By Dave Ranney

A spokesperson for the Kansas Department for Aging and Disability Services says the agency will need an additional $6.5 million to comply with a recent ruling that requires employers to pay in-home workers minimum wage and overtime.

The department has asked Gov. Sam Brownback’s budget office to build the additional funding into its budget for the current fiscal year, according to Angela de Rocha, KDADS director of communications. However, tax revenues are more than $60 million below projections so far this fiscal year, creating a bleak budget situation in Kansas.

Last week Chief Justice John Roberts of the U.S. Supreme Court denied an application to stay that U.S. Department of Labor ruling, which is expected to have the biggest effect on the state’s Medicaid-funded services — called sleep cycle supports — that involve paying workers to be present while frail elders or people with serious disabilities sleep.

These workers help beneficiaries with toileting, taking medication, being repositioned to prevent bedsores or getting out of bed in the morning. The services are designed to help people continue living in community-based settings and avoid having to move to nursing homes, which are more expensive.

For years, sleep-support workers in Kansas have been paid about $35 per evening, which per hour is less than minimum wage. After the ruling takes effect Nov. 12, most of these workers will need to be paid between $45 and $60 per evening. De Rocha said KDADS and the managed care organizations (MCOs) that administer KanCare, the state’s Medicaid program, will “continue to work with consumers to ensure adequate support is maintained.”

Some services, she said, may have to be realigned in ways that have not yet been defined. Last year, KDADS Secretary Kari Bruffett called lawmakers’ attention to the Department of Labor ruling’s potential to reduce or eliminate sleep-cycle support for 1,400 people and force “more consumers … into institutions.”

The ruling also requires employers to pay attendant care workers for some of the time they spend driving between their care recipients’ homes.

“But the biggest concern centers around sleep cycle support,” said Mike Oxford, executive director of the Topeka Independent Living Resource Center, a nonprofit program that helps arrange in-home services for people with physical disabilities. “What the ruling says, essentially, is that the services really can’t be paid for on a daily-rate basis like they are now,” Oxford said.

“It has to be by the hour, and it has to be minimum wage.” Oxford said he welcomed news of the KDADS request to Gov. Sam Brownback’s administration for the additional $6.5 million. “There hasn’t been a lot information that’s been shared with the public on this, so it’s great to hear,” he said. “Our hope now is that KDADS, the MCOs and the service providers can all work together on this.”

Though the ruling takes effect in mid-November, federal officials won’t begin enforcing the new requirements until 2016.

“What that means is that between Nov. 12 and Dec. 31, the Department of Labor will have ‘prosecutorial discretion’ as long as employers are making a good faith effort to come into compliance,” said Deane Beebe, a spokesperson for the Paraprofessional Healthcare Institute, a national organization that represents home health aides and personal care attendants and has been outspoken in its support for the ruling.

“But on Jan. 1, that discretion gets replaced with enforcement,” she said. “Workers who feel like they’ve not been paid minimum wage can file complaints with the Department of Labor in their state.

They will have legal standing.” Beebe said her organization is encouraging states to resist cutting services in an effort to offset the ruling’s costs. “The solution to this is not to cut services,” she said. “If they do, they’ll be out of compliance with the Olmstead ruling and with the Americans with Disabilities Act, and that will be a real problem.”

The Olmstead ruling refers to a 1999 U.S. Supreme Court decision that said people with disabilities have a right to services that allow them to live in community-based settings rather than institution-based settings.

Dave Ranney is a reporter for Heartland Health Monitor, a news collaboration focusing on health issues and their impact in Missouri and Kansas.