New Virginia Regulations Limit Caregiver Pay

Stephen Grammer suffers from cerebral palsy, a physical disability that makes it impossible for the 36-year-old to walk, feed himself, or go to the bathroom on his own. Currently, he’s able to live alone in an apartment because he has caregivers with him 16 hours a day. However, Grammer worries that his independence is in jeopardy because of a recent law passed by the Virginia General Assembly that prohibits many caregivers for disabled Virginians from being paid overtime.

Due to low wages and lack of benefits, and now no overtime pay, thousands of personal care assistants in Virginia have less of an incentive to remain in difficult, low-paying jobs. Grammer explains that it’s “already a challenge to find qualified caregivers who are notoriously underpaid and the promise of no overtime makes it even harder to recruit and retain them.”

Federal Law Mandated Overtime Pay for Caregivers — What Happened in Virginia?

Last year, the federal Department of Labor extended the overtime and minimum-wage protections of the Fair Labor Standards Act to most home care workers, including the homecare workers paid by the state using tax-funded Medicaid dollars.  In Virginia, Medicaid caregivers used to be paid “straight time” — their standard hourly wage — for any hours they worked beyond 40 each week.

After court battles, the Department of Labor rule went into effect in January 2016, and for the first time, the Commonwealth of Virginia had to start paying time-and-a-half for overtime. Between January 1, and June 30, 2016, Medicaid caregivers worked 2.1 million hours of overtime, according to a presentation given to the Virginia Disability Commission last month. Those hours cost the state an additional $11.2 million compared with the way caregivers had previously been paid. The state paid $407.4 million for 38 million caretaker hours worked in the full fiscal year that ended June 30. That year, 35,231 caregivers helped 21,231 people with disabilities, according to the Department of Medical Assistance Services, which administers Medicaid in Virginia. Despite the data on the number of people being helped, the Virginia General Assembly capped hours at 40 as of July 1, 2016.

Advocating for Change

Grammer is a 2013 graduate of the Partners in Policymaking program through the Virginia Board for People with Disabilities. He and other advocates have been trying to get the General Assembly to allow Medicaid-paid caregivers to work overtime — or at least allow exceptions in particular cases.

Governor Terry McAuliffe agrees that there should be overtime pay for caregivers of those with disabilities. In fact, his proposed budget for this fiscal year included funds to pay for up to 56 hours of labor a week for home care workers, said Joe Flores, Virginia’s deputy secretary of health and human resources. That would have covered 40 hours of straight time and 16 hours of time-and-a-half overtime.

According to McAuliffe, the “elimination of all overtime for consumer-directed attendants could have a significant adverse impact on the continuity of care received by some of Virginia’s most vulnerable citizens and jeopardize the health of older adults and people with disabilities.” Despite the governor’s recommendations, the General Assembly failed to approve his change to the budget.

In Grammer’s case, his caretakers said they have been working for free because they don’t want to leave him alone.

Currently, Washington state, California, Florida and Massachusetts are among states that pay personal caregivers overtime, according to the National Employment Law Project. Vermont has created a process for requesting an exception to the overtime cap when a person with disabilities is at risk of harm or institutionalization.

Other Living Options for Adults with Special Needs

Most adults with special needs have a strong desire to live in their own homes and communities. Unfortunately, due to the shortage of home health aides due to overtime pay being cut and other issues, this may no longer be a viable option.

Here are some other housing options for adults with special needs:

•Family members. According to, 76% of individuals with developmental disabilities live at home. In a quarter of these situations, the average age of the adult child was 38; caregivers were age 60 or older.

•Community-based homes and supported living arrangements. Adults living in group homes enjoy some independence, but receive support as necessary depending on their needs. Caregivers living or working at these homes provide a range of services, from supervision to help with medication to advice on getting to work and dressing appropriately.

•Long-term care facilities. Some adult children with special needs require extensive support around the clock.  In cases such as this, parents may feel their child’s needs are best served in a long-term, live-in care facility (i.e., a nursin home) which could be extremely costly ($10,000 – $14,000 a month in the DC Metro area). If this is the best option for your loved one, we can help you plan now  for the catastrophic costs of long-term care.

Do You Have an Adult Child with Special Needs?

If you have a special needs child who will likely need care for life, it’s important to provide legal protections for your child. A special needs trust is recommended to protect a disabled individual’s financial future. Also known as Supplemental Needs Trusts, this type of trust preserves legal eligibility for federal and state benefits by keeping assets out of the disabled person’s name while still allowing those assets to be used to benefit the person with special needs. Read more here.

This month is National Special Needs Law Month. When it comes to special needs planning, Farr Law Firm, P.C. can guide you through this process. If you have a loved one with special needs, call one of our offices to make an appointment for a consultation:

Fairfax Special Needs Attorney: 703-691-1888
Fredericksburg Special Needs Attorney: 540-479-1435
Rockville Special Needs Attorney: 301-519-8041
DC Special Needs Attorney: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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