NJACP monitors and responds to issues affecting people with intellectual and developmental disabilities at the federal level.
ADA Amended Regulations Strengthen Disability Rights
On August 11, the Department of Justice (DOJ) issued final rule RIN 1190-AA59 which amends current regulations implementing the Americans with Disabilities Act (ADA) to incorporate statutory changes to the law that went into effect on January 1, 2009. Congress enacted the ADA Amendments Act in 2008 to restore the understanding that the definition of “disability” should be broadly construed and applied without extensive analysis. In the final rule, the DOJ adds new sections to Title II and Title III ADA regulations to clarify the proper meaning and interpretation of the definition of “disability” and to make other related changes required by the ADA Amendments Act. NJACP will inform members as additional info and analysis become available.
CCD Fact Sheet on Housing Resources
On August 2, the Consortium for Citizens with Disabilities’ (CCD’s) Housing task force released an fact sheet on the National Housing Trust Fund (NHTF) and the Department of Housing and Urban Development’s (HUD’s) new Affirmatively Furthering Fair Housing (AFFH) rule. The fact sheet outlines why the NHTF and AFFH are vital for people with disabilities, and how state and local disability advocates can get involved in these new initiatives. Click here for the fact sheet.
FCC Seeks Comments on Accessibility Procedures
On August 3, the Federal Communications Commission (FCC) released a Public Notice to seek comment on the accessibility of the FCC’s programs and activities.
Federal agencies are required to make their programs and activities accessible to people with disabilities in order to comply with the requirements of Section 504 of the Rehabilitation Act of 1973. FCC has rules that require it to review its accessibility policies and practices at least every three years. The FCC also regularly updates its Section 504 handbook. The FCC Section 504 Handbook contains guidance on the provision of accommodations for the Commission’s programs and activities, procedures for securing reasonable accommodations, and information about disabilities and accessibility.
Comments may be filed by accessing the Electronic Comment Filing System here and inserting the docket number “CG Docket No.10-162”. For further information, please contact Helen Chang, Consumer and Governmental Affairs, Section 504 Compliance Officer, at 202-418-0424 or Helen.Chang@fcc.gov.
Support for Disability Community Act Grows
In a letter (attached below) dated August 9, Easterseals expressed support for the Disability Community Act of 2016 (H.R. 5902). Easterseals is a national organization that provides services, education, outreach and adovacy on behalf of people with autism and other disabilities. In the letter, Easterseals notes that “the fiscal reality of state Medicaid reimbursement is grim…failing to meet the full costs of program services.” The organization supports the temporary increase in federal Medicaid funding to permit providers to meet the increased costs of compliance with new federal rules. NJACP also supports the legislation and is working with ANCOR to advocate for the bill.
Technical Assistance for WIOA Available
The Rehabilitation Services Administration (RSA) has announced three regional meetings to provide technical assistance on the final Workforce Innovation and Opportunity Act (WIOA) regulations. In the regional meetings, RSA will provide technical assistance on the following areas: competitive integrated employment, employment outcome, and limitations on the use of subminimum wage (section 511); transition services, including pre-employment transition services; supported employment; and fiscal requirements.
Additionally, the RSA has posted several slide presentations and other resources that detail various aspects of the new regulations. Those are available at the links below:
- Employment Outcomes, Competitive Integrated Employment, and Limitations on Use of Subminimum Wage
- State Supported Employment Services Program – Title VI of the Rehabilitation Act, as Amended by WIOA
- Transition of Students and Youth With Disabilities from School to Postsecondary Education and Employment
- Fiscal Overview – Pre-Employment Transition Services and State Supported Employment Services Program
- Technical Assistance Resources
CMS Issues Guidance on Strengthening and Stabilizing Medicaid Home Care Workforce
On August 3, the Centers for Medicare and Medicaid Services (CMS) issued an informational bulletin that highlights steps available to states, providers, and others to strengthen the home care workforce, defined in the document as encompassing individuals furnishing home and community based services (HCBS). The document is split into subsections, with recommendations under each. The subsections are:
- Workforce Identity
- Provider Qualifications and Basic Training
- Wage Analyses
- Related Prior Guidance
Notably, in the “Wage Analyses” section, the guidance says, “When developing payment rates for home care services, states should also consider business costs incurred by a provider – whether a home care agency or an individually employed worker – associated with the recruitment, skills training, and retention of qualified workers.” This is an important acknowledgement that states should ensure that rates will be sufficient to provide adequate compensation for workers. There is also a direct reference to the Department of Labor’s Home Care rule, with the guidance noting that states should take into account geographic differences in wages within a state and keep in mind any joint-employer obligations the state may have.
DOL Issues Guidance Regarding Implementation and Enforcement of WIOA Including 14c Certificates
On July 27, 2016, the Department of Labor (DOL) Wage and Hour Administrator Dr. David Weil issued Field Assistance Bulletin No. 2016-2 and released Fact Sheet #39H regarding implementation of the Workforce Innovation and Opportunity Act (WIOA) and Wage and Hour Division enforcement of WIOA limitations on payment of subminimum wages under section 14(c) of the Fair Labor Standards Act (FLSA), effective July 22, 2016.
In conjunction with this guidance, Branch Chief Helen Applewhaite wrote a letter to current section 14(c) certificate holders about the new limitations mandated by WIOA. Under WIOA:
- Employers may not continue to pay a subminimum wage to persons with disabilities under section 14(c) of the FLSA unless each worker, regardless of their age, has been provided with career counseling and information about self-advocacy, self-determination and peer mentoring training opportunities in their local area at specified intervals.
- Employers are prohibited from hiring workers who are age 24 or younger unless the employer obtains, verifies, and maintains copies of documents proving that these workers have completed specific requirements (transition services, vocational rehabilitation and career counseling) designed to improve their access to competitive integrated employment.
DOL maintains a website dedicated to housing information regarding employment for workers with disabilities, which is available here.
Minnesota Accused of Segregating People with Disabilities in Group Homes
In a class-action suit against the state of Minnesota, attorneys with Mid-Minnesota Legal Aid allege that the Department of Human Services maintains a “discriminatory residential service system” that funnels individuals with disabilities into nearly 3,500 group homes statewide, where they are surrounded by other people with disabilities and have little control over their daily lives, while depriving them of access to housing options that would enable them to live more independently.
The lawsuit alleges that such restrictions are a violation of the Olmstead decision that requires states to ensure that people with disabilities receive services in integrated settings. View the article for more information on the lawsuit at http://m.startribune.com/state-accused-of-segregating-minnesotans-with-disabilities-in-group-homes/389129591/?section=%2F
Disabilities Group Sues state Over Institutions
A lawsuit filed Tuesday seeks to force Washington state to speed up the transition of adults with developmental disabilities from institutional settings to homes in the community.
Disability Rights Washington (DRW), a nonprofit with the mission of supporting persons with disabilities, filed the suit in U.S. District court. It asks the Department of Social and Health Services (DSHS) and the state’s Health Care Authority to develop plans and procedures to move people out of institutions who have been identified as able to do so and have expressed that they would like to move into regular neighborhoods with appropriate support and care.
“Defendants have no effectively working plan to ensure that Plaintiffs….will avoid institutionalization. This failure violates their rights under Title II of the Americans with Disabilities Act,” wrote attorneys for DRW in the complaint.
DRW attorneys said they filed the suit after conducting an eight-month investigation. They also cited the public awareness of the issue brought about by the KING 5 series “Last of the Institutions,” an investigative series that explored why Washington has failed to follow the lead of many other states in closing its state-run institutions for disabled adults.
“We know that living in an institution is not the same as living in the community and people have a right to live in the community when they want to. So this is about people’s choice of where they want to be, how they want to spend their days,” said Sarah Eaton, lead attorney on the case for DRW.
Americans with Disabilities Act Turns 26
July 26th was the 26th anniversary of the Americans with Disabilities Act (ADA), a sweeping piece of legislation that significantly advanced the rights and access for people with disabilities. The Administration marked the occasion with a Presidential proclamation, as well as other events and new resources released.
In his proclamation, President Obama promised to keep moving the work of the ADA forward, saying, “we know our work to expand opportunity and confront the stigma that persists surrounding disabilities is not yet finished: We have to address the injustices that linger and remove the barriers that remain.”
Tom Harkin, who retired after serving many terms as a Senator from Iowa, and who was instrumental in the drafting and ultimate passage of the ADA, released a video celebrating the accomplishments over the past quarter-century, as well as looking forward to more progress.
The ADA National Network and its ten regional ADA Centers are one important tool for this work. Funded by ACL’s National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR), the ADA National Network provides a comprehensive “one-stop” resource for information, guidance, and training on the ADA.
Last year, ACL celebrated the 25th anniversary of the ADA with a guest blog series featuring reflections from a number of disability community leaders. Here are just a few highlights:
- Yes, we did! And there’s more to do. by Judy Heumann, Special Advisor for International Disability Rights, U.S. Department of State
- Assistive Technology 25 Years After the ADA by Marty Exline, Director, Missouri Assistive Technology
- The 25th Anniversary of the ADA: Celebrating Progress, Re-envisioning the Future by Lex Frieden, Director, Independent Living Research Utilization Program, TIRR Memorial Hermann
- The Four Pillars of Integration by Donna Meltzer, CEO, National Association of Councils on Developmental Disabilities
As reported by ANCOR.
TAC Releases Section 8 Resource Guide
The Technical Assistive Collaborative (TAC), an organization that focuses on affordable housing solutions for vulnerable populations, has released “Section 8 Made Simple – Special Edition: Using the Housing Choice Voucher Program to End Chronic Homelessness“. This guide offers step-by-step guidance on finding and securing housing through the Housing Choice Voucher program, with a special focus on helping those who are experiencing chronic homelessness. Though the guide is not disability-focused, it contains valuable information for anyone interested in learning more about how the voucher program works.
House Introduces Transition to Independence Act
On July 14, the House of Representatives introduced the Transition to Independence Act (H.R. 5903), a bill that would provide states an enhanced match for meeting certain outcomes regarding competitive, integrated employment for people with disabilities. Senator Grassley (R-IA) has already introduced the Senate version, S. 1604.
The House version of the bill differs from the Senate version which was introduced last year (S. 1604). The House version reflects ongoing conversations between Congressional offices and national disability organizations, and the revisions are generally seen as positive. NJACP Legislative and Policy Committee considered the legislation at their May meeting and have decided to monitor the bill.
Special Needs Trust Fairness Act Clears House Committee
On July 13, the House Energy and Commerce Committee approved a markup of the Special Needs Trust Fairness Act (H.R. 670). The bills would allow individuals to establish special needs trusts on their own. Currently, only certain relatives, legal guardians, or a court may establish such a trust. This limitation creates difficulty for individuals who do not have a legal guardian or living relative that can establish the trust. The House version is a companion to the Senate bill (S. 349) which was passed in September 2015.
Medicaid Report Shows HCBS Spending Continues to Increase
Home and Community Based Services continues to grow as a percentage of Medicaid’s expenditures according a report by The Centers on Medicaid and Medicare (CMS), Medicaid Expenditures for Long-Term Services and Supports (LTSS) in FY 2014: Managed LTSS Reached 15 Percent of LTSS Spending. The finds of the $152 billion spent on long-term care services across the country during the 2014 fiscal year, 53 percent was directed to community-based services. This reflects the national trend of integrating people into the community rather than providing services in institutional settings. The year 2013 marked the first year a majority of Medicaid long term care dollars were spent on services in the community. Since 1995 community spending has increased by one to two percentage points annually.
However, funding was not even in all states across the country, with Mississippi having the lowest percentage, representing just 27.2 percent of that state’s Medicaid long-term care allocation, and Oregon having the highest, where it accounted for 79.2 percent, the report found. The report also found that 75 percent of dollars allocated for people with developmental disabilities were spent on services in the community, while the number was lower for people who are aging and those with physical disabilities.
For New Jersey, the report found the state at the seventh lowest spot for what percentage of funding is allocated to HCBS at 40.6% (figure 7, page 15). However, New Jersey was the state with the highest percentage increase of funding for HCBS at 13%. Further, the report reflects up the year 2014 and the Division of Developmental Disabilities has recently announced they have passed the 50% mark with regard to expenditures on HCBS. For more information, please view the report at https://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/downloads/ltss-expenditures-2014.pdf.
Autism Wandering Bill Approved by Senate
On July 14, the Senate unanimously passed Kevin and Avonte’s Law (S. 2614). The bill, led by Sens. Charles Schumer (D-NY), Thom Tillis (R-NC) and Chuck Grassley (R-IA) would expand existing federal programs that provide grants to assist in the design, establishment, and operation of location tracking technology to locate people prone to wandering, including children with autism and adults with dementia. The bill would also provide funding for preventative measures including training and resources aimed at parents, school personnel, first responders, and other members of the public.
The bill will now move to the House for consideration.
House Bill Introduced to Delay Full Implementation of DOL Overtime Rule
On July 14, Representative Kurt Schrader (D-OR) introduced the Overtime Reform and Enhancement Act (H.R. 5813– not available yet), which would phase in the new salary threshold of the Department of Labor (DOL) Overtime final rule over three years and eliminate future automatic salary threshold updates. As you know, the Overtime rule, finalized in May, more than doubled the salary threshold for exempt “white collar” workers, including those that perform certain supervisory or managerial duties. The former threshold was $23,660/yr ($455/wk), which was increased by the rule to $47,476/yr ($913/wk). The new threshold is set to go into effect on December 1, 2016.
The legislation as introduced would phase in the increases, starting at $692/wk in 2016, $765/wk in 2017, and $839/wk in 2018 before increasing to $913/wk in 2019. It would also require new rulemaking for any increases past that level, nullifying the DOL’s regulation that created a mechanism to increase the threshold automatically every three years.
Secretary of Labor Thomas Perez said in a statement released Friday, “Millions of workers have been waiting years for the overtime rules to catch up to reality and ensure that working people get the pay or time with their families that they deserve. This legislation would ask them to wait even longer. The President and I think that American workers have waited long enough for a fair day’s pay for a long day’s work. That’s our vision of an economy that works for everyone. By delaying implementation and removing the automatic updating of the salary threshold, the proposed legislation stands in stark contrast to that vision.”
This bill was introduced the same day as the ANCOR legislation that NJACP has been supporting, the Disability Community Act of 2016 (H.R. 5902), to allow for an increased federal match for providers to cover costs associated with the rule. The NJACP Legislative and Policy Committee will consider the legislation at their next meeting.
Disability Community Act Introduced in the House in Response to DOL Overtime Rule
On July 14, Representatives Paul Tonko (D-NY) and Steve Stivers (R-OH) introduced the Disability Community Act of 2016 (H.R. 5902 – is not online yet so please click on link below), with original co-sponsors James Langevin (D-RI) and Gregg Harper (R-MS). The legislation will permit a 90/10 enhanced FMAP for three years for increased expenses stemming from the Department of Labor (DOL) Overtime and Home Care final rules, and the CMS HCBS rule. This additional funding is critical to permit states the time required to adjust rates to meet the requirements of the rules going forward. The bill also seeks to replace outdated language that is still contained in statute.
NJACP’s national affiliate, ANCOR drafted the legislation and has been lobbying on it as a key part of its Save our Services (S.O.S.) campaign work. NJACP members, as well as ANCOR members from across the nation, have also responded to several calls for action to Members of Congress about the proposed legislation. A major legislative push is expected from the bill’s co-sponsors after the August Congressional recess, your advocacy will be needed before then.
If you haven’t already done so, bookmark www.disabilitySOS.org for information related to advocacy efforts.
Click below for the text of the legislation:
Disability.gov Updates Website
Disability.gov, which is designed to be a one-stop shop for government disability resources, sent the following notice of website updates on July 12:
Visitors to Disability.gov have asked for a series of “quick links” to use as a way to find the information they need faster. Many have also requested a list of toll-free numbers they can call to learn about disability-related programs and services in their own communities. In response to your requests, we have developed a new webpage of “quick links” and phone numbers so you can easily access the information and resources Disability.gov’s visitors are most often seeking. Please share this email with family members, friends and colleagues you believe may benefit from these important resources.
For more information visit: https://www.disability.gov/disability-govs-quick-links
State Minimum Wage Chart
Attached is a chart detailing each state’s minimum wage and, if adjusted annually, the date of the adjustment. New Jersey’s minimum wage is 8.38 and is adjusted each year in January depending on the rate of inflation each year. If of interest, please click here.
House Passes Mental Health Bill
On July 6, the House passed the “Helping Families in Mental Health Crisis Act” (H.R. 2646). The bill passed overwhelmingly, with a vote of 422-2. The bill has a long history, having first been introduced three years ago. It has undergone significant revision in that time, and contains multiple provisions related to mental health services. On his website, the bill’s sponsor, Rep. Tim Murphy (R-PA), said, “The federal government’s approach to mental health has been a chaotic patchwork of antiquated programs and ineffective policies across numerous agencies. Sadly, patients end up in the criminal justice system or on the streets because services are not available. The Helping Families In Mental Health Crisis Act fixes the nation’s broken mental health system by focusing programs and resources on psychiatric care for patients & families most in need of services.”
The bill has moved to the Senate for consideration, but the upper chamber is currently working on its own mental health bill, the “Mental Health Reform Act of 2016” (S. 2680), which differs significantly from the House legislation. We will continue to monitor both bills and report back on any developments.
SSA Releases Final Rule Revising Medical Criteria for Evaluating Neurological Disorders
On July 1, the Social Security Administration (SSA) released final rule RIN 0960-AF35 (81 Fed. Reg. 43048), “Revised Medical Criteria for Evaluating Neurological Disorders.” According to the preamble, the SSA is “comprehensively revising the listings for evaluating neurological disorders to update the medical criteria, provide additional methods of evaluating neurological disorders, provide more information on how we evaluate neurological disorders, make other changes that reflect our program experience, and address adjudicator questions.” The last revisions to the requirements were made in 1985.
The new criteria will go into effect on September 29, 2016. As reported by ANCOR.
HHS OCR Issues Guidelines for Long-Term Care Facilities
In guidance dated May 20, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) laid out new guidelines to assist long term care facilities – specifically nursing homes – in complying with regulations issued by the Centers for Medicare and Medicaid Services (CMS) that require facilities which are Medicare and/or Medicaid-certified to ensure their residents receive services in the most integrated setting appropriate to their needs. The guidance notes that failing to adhere to the Minimum Data Set (MDS) may place a facility’s reimbursements in jeopardy.
The guidance emphasizes the importance of a good working relationship between facilities and local agencies, the proper administration of relevant sections of the MDS, and ongoing policy review and training.
NJ Lawmaker Urges HHS to Include HCBS in Medicaid Access Rule
In a letter dated July 5, Senate Finance Ranking Member Ron Wyden (D-OR) and House Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-NJ) urged the Department of Health and Human Services (HHS) to include hospital and Home and Community Based Services (HCBS) in the review process set forth by the recently-finalized Medicaid Access rule.
The rule seeks to ensure that Medicaid beneficiaries under state plans, including those covered by 1915(i) and 1915(k) state plans, will have access to covered services to the same degree as the general population as required by the Medicaid access provision contained in Section 1902(a)(30)(A) of the Social Security Act. The rule sets forth certain requirements that states will use to assess their systems, and includes timeframes for evaluations, guidance on services and metrics to be included, and requirements for public input. Notably, the rule does not address the access of beneficiaries to either Medicaid managed care programs or HCBS waiver programs.
The lawmakers thanked HHS for finalizing the rule, but believes that the scope should be expanded to include HCBS and Medicaid managed care services. NJACP submitted comments (attached) to the RFI that was issued along with the final rule, recommending that HCBS waiver services be included.
CMS Releases Reports on Medicaid LTSS Expenditures
The Centers for Medicare & Medicaid Services (CMS) recently posted two reports with Medicaid long-term services and support (LTSS) expenditures data.
The first report focuses on the most recent data available, for Fiscal Year 2014, and recent trends such as 1) an increase in LTSS provided in managed care programs and 2) increased used of newer Medicaid LTSS options authorized in the Deficit Reduction Act and the Affordable Care Act.
The second report, called “Improving the Balance“, provides a historical perspective, with data from FY 1981 through FY 2014. This report documents the impressive transformation of Medicaid LTSS from primarily institutional services to the present home and community-based services (HCBS) that represent 53 percent of LTSS spending.
CMS will offer a webinar to present and discuss data from both reports on July 14 at 2:00 Eastern. Webinar registration is available here. Both reports, as well as other resources, are available here. As reported by ANCOR.
Three States Provide Feedback on HCBS plans Receiving Initial or Final Approval
On July 11th, NJACP attended an webinar hosted by national affiliate, ANCOR, entitled “Approved HCBS State Transition Plans – What Does It Really Mean for Providers?”. Speakers from Tennessee, where the HCBS plan received final approval, and two speakers from Ohio and Kentucky, which have received initial HCBS plan approvals. Tennessee discussed the many levels of stakeholder involvement during the development of the plan, Kentucky discussed the challenges with stakeholder inclusion and obtaining information from the state during the process and Ohio discussed some of CMS’s primary concerns. All three states shared there has not been an effort to provide financial reimbursement to agencies for changes made to comply with the rule.
There were also concerns about liability in non-provider settings. Providers in Ohio are hoping to have recognition that there is risk involved in day to day living in the community for everyone and have this acknowledged in the Individual Support Plan. All three states agreed one of CMS’s primary concerns was the relying on “reverse integration” or bringing the community into a facility based setting rather than people going into the community. It is also important to include non-disability options for day programs. These were some of the issues providers who had a more traditional, facility based model struggled with.
Call for Action Continues on Bill to Provide Relief from the DOL Overtime Exemption
The Save Our Services (SOS) Funding the Future Of Disability Services campaign was launched earlier this year by our national association, the American Network of Community Options and Resources (ANCOR), to address the challenges presented by the DOL overtime exemption rule on Medicaid funded disability service providers. ANCOR has been working with the Department of Labor (DOL) on changes to the rule and in response, DOL provided a time-limited nonenforcement policy for residential providers. The immediate ask of the campaign now is to introduce and pass legislation, the Disability Community Act of 2016, that would provide increased funding to providers to comply with the new rule.
There are less than two weeks left during which Members in Congress will be in DC to work on legislation – after that, they will return to their districts for almost two months so NOW is the time to weigh in. The Disability Community Act of 2016 is being led by Representatives Tonko (D-NY) and Stivers (R-OH). Its goal is to increase Medicaid funding for providers so they comply with the DOL Overtime Exemption Rule before its implementation on December 1, 2016, as well as other federal mandates such as the HCBS settings rule and the companionship rule. Please take action NOW to apply pressure to your Members of Congress so they become familiar with the Disability Community Act of 2016 and become a cosponsor.
ANCOR created two online tools you can use to do so:
- An email action tool: This tool has a pre-written message with built-in areas you can personalize in just a few minutes. Once you are done personalizing and hit send, the message goes directly to your Member of Congress – without you having to look them up!
- A Twitter action tool: Like the email tool, this tool have a pre-written tweet waiting for you which will go right to your own Members of Congress once you send it. This will take less than two minutes to do so please use this page often!
- The DOL Overtime Exemption Rule will pose challenges to providers because it increases costs without addressing the limitations providers have due to fixed Medicaid rates – you can find out more at www.disabilitySOS.org. These are a critical two weeks when Members of Congress can reach out to each other to push legislation forward – please help us take advantage of them!
House Marks Up Appropriations Bill, Retains Clauses to Block DOL Overtime and Fiduciary Rules
On July 7, the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies marked up an appropriations bill for FY 2017. The bill would deny funding necessary to implement two Department of Labor rules, specifically the Fiduciary rule and the Overtime rule. (See ANCOR article, “House Appropriations Subcommittee Draft FY2017 Spending Bill Would Block Funding for DOL Rules,” July 7, 2016.)
The bill language that came out of the subcommittee is available here. The bill will now move to the full committee for consideration.
2016 Democratic Party Platform Draft Released
The Democratic National Committee (DNC) has released a draft party platform that lays out the party’s positions on a number of topics. Though the final platform has not yet been released, party committee members met last week to hammer out a final version which will be unveiled at the DNC convention later this month. The draft document includes several provisions relevant to people with disabilities, and uses inclusive language throughout. Disability rights are highlighted in one section, with the party saying it believes in access to gainful employment for people with disabilities, and pledges to support family caregivers of the aging and disabled populations.