Missouri's Health and Senior Services department doesn't have the authority to propose raising the base wage home health attendants are paid in the Consumer Directed Services (CDS) Program, members of the Legislature's Joint Committee on Administrative Rules (JCAR) said Tuesday.
By a 7-2 vote, the House and Senate lawmakers rejected a proposed state rule to raise the base from $7.65 an hour - the state's current minimum wage - to a range from $8.50 an hour to $10.15, and would have let the consumers set the rate vendors paid the workers.
"There's nothing in statute that contemplates the actual wage rate to be set by the department, by administrative rule," state Sen. Eric Schmitt, R-Glendale, said.
But Loretta Haggard, an attorney for the Missouri Home Care Union, which represents the attendants and last December completed negotiations for the wage increase, argued the department has the legal authority.
The law creating the CDS program, Haggard explained, "says the department shall establish the statewide rate for personal care attendance services. That could, certainly, be reasonably interpreted as including the wage rate as well as the Medicaid reimbursement rate."
The program uses disability money to pay home attendants who are hired by the consumers, then do a number of jobs that helps those consumers stay in their homes rather than requiring more expensive care situations.
Before the testimony began, committee chairman Jay Barnes, R-Jefferson City, warned supporters and opponents of the proposal that JCAR "is not a policy committee. As the chair, I'm not at all interested in the policy rationale for the rule."
Instead, he urged those testifying to address whether the department has authority to propose the rule, if the rule conflicts with existing state law and whether it is "so arbitrary and capricious as to create substantial inequity as to be unreasonably burdensome on persons affected."
Less than a day after some attendants and clients urged the committee to approve the rule, attorneys and other representatives of several vendors said the proposed rule created several problems.
Michael Schmid, representing Pyramid Home Health Services, argued the Missouri Quality Home Care Council - which voters created in November 2008 - "has the authority to recommend changes in personal care attendants' wages and benefits to the General Assembly," but not to the department.
Shawn Dabreu, a lobbyist for the Missouri Centers for Independent Living, told the JCAR members: "The proposed rule has significant negative impact on small businesses."
And Leslie Anderson, public policy and advocacy director at Columbia's Services for Independent Living, provided some numbers backing Dabreu's point.
"We currently pay our attendants $9.25 an hour for the authorized services through the Department of Health and Senior Services program," Anderson explained.
"The provider rate for the CDS Program is $15.56 per hour - that is a difference of $6.31 per hour, which is then shared between: employer payroll taxes/Social Security at 6.2 percent, Medicare at 1.45 percent, state withholding tax at 3.51 percent up to $13,000 of wages, and federal unemployment tax at 6 percent, up to $7,000 of wages."
Independent Living Centers also are required to have at least 51 percent of their jobs filled by people with disabilities.
Raising the wage, Anderson told the committee, means "we will have to lay off individuals who will not, probably, be able to find employment elsewhere - so that creates an undue burden on our Center for Independent Living and on us as an employer."
Jefferson City attorneys Lowell Pearson and Harvey Tettlebaum also were among the witnesses urging the committee to reject the rule.
In the end, the joint committee passed Barnes' motion that the proposed rule violated those legal requirements and the department "failed to comply with the state's Small Business Regulatory Fairness Act," he said, and the fiscal note was wrong.