New Rules: Overtime Wages for Home-Based Support Services Personal Support Workers

Helping Families. Supporting Communities. Empowering Individuals.
Illinois Department of Human Services
Division of Developmental Disabilities
Information Bulletin
DD.015.067

New Rules: Overtime Wages for Home-Based Support Services Personal Support Workers
October, 2015

Purpose

This informational notice is to inform all interested parties, especially Personal Support Workers (PSWs) and Service Facilitation agencies, that the United States Department of Labor (DOL) has made changes to the Fair Labor Standards Act (FLSA) which will require that PSWs hired by individuals or families must be paid overtime wages for time exceeding 40 hours per week. The overtime rate is 1.5 times the worker's standard pay rate.  The overtime rule is in effect as of October 13, 2015. 

The Department is foregoing the draft comment period in order to issue the Bulletin as final and inform stakeholders of the necessary action steps due to the recent Court action and tight implementation date. We will, however, accept comments, make needed modifications to the Bulletin, and reissue it if needed. Please submit any comments to DHS.DDDComments@Illinois.gov.

Background

The DOL had previously issued changes to FLSA, but the changes were challenged in court. The DOL lost the challenge but won in appeal. Challengers requested a stay of the appeal decision, but that stay was denied by Supreme Court Chief Justice Roberts. The challenge and appeal process has led to uncertainty and delays in implementing the new overtime rules.

A version of this bulletin was originally posted as draft for comment on October 10, 2014, when the rule change was initially to be placed in effect. The Division did not receive any comments on the draft posting and subsequently issued it. That Bulletin was later rescinded based on the Court action.

Process and Procedures

Workers may meet two exemptions to the overtime rule: workers who live in the individual's household and workers who provide companionship. The DOL has created fact sheets to determine which workers meet the exemption criteria. Please see the links below to access the DOL fact sheets.

The two Fiscal/Employer Agencies (F/EA) have sent each worker a Personal Support Worker Certification and Exemption Form. All workers who have not completed and returned the form to the worker's F/EA need to do so immediately. In addition to certifying basic worker qualifications, the form is used to document workers that are exempt from overtime wages and which workers are not. Enrollment packets will include this form for all new workers.

Failure to accurately complete and return the required Personal Support Worker Certification and Exemption Form will result in a disruption of payment. We regret any difficulty this may cause, but requiring the completed form is necessary to ensure compliance with the new federal regulations. The forms for each F/EA and other related information are attached for reference:

  1. ACES$ Fiscal/Employer Agency  
  2. Public Partnerships (PPL) 

Please remember the total for all home-based services, including any possible overtime wages, must not exceed the monthly service cost maximum. Individuals, families, PSWs, service facilitators, and fiscal/employer agents must all work together to establish PSW overtime status and to make necessary adjustments to service authorizations that reflect those decisions. If there are any unresolved problems during this process, please contact Dave.Adden@illinois.gov or (217) 524-0848 to let the Division know of the situation and request assistance.

In addition, if you represent an advocacy organization and become aware this new rule has a negative impact on service delivery in general, please inform us of those concerns.

Also be aware that, as always, wages earned - regular and overtime - must be paid, and ultimately the employer of record is responsible for payment.

Overtime Payment Codes

The payment codes below are to be used in service agreements and service authorizations. Timesheets SHOULD NOT include the overtime codes. Both F/EAs have payment systems that will automatically calculate overtime hours and appropriate worker payments.

  • 550 is the payment code for qualified personal support workers who exceed 40 hours in a work week. A work week is from midnight Sunday to midnight Saturday.
  • 53O is the payment code for crisis services for qualified personal support workers who exceed 40 hours in a work week, including non-crisis personal support work. A work week is from midnight Sunday to midnight Saturday.

Contact

If you have questions or concerns, please contact your F/EA or Dave Adden at: Dave.Adden@illinois.gov  or (217) 524-0848.

Effective Date

With the latest Court action, the overtime rule will go into effect on October 13, 2015.