Department of Labor Publishes Proposed Rules on Overtime Pay Protections

Last week, the Department of Labor (DOL) published a notice of proposed rulemaking updating the regulations defining who is entitled to overtime pay protections.   The rules have not been updated since 2004. The primary change is to raise the standard salary level to 40th percentile of weekly earning for full-time salaried workers ($47,892). The salary level is one of the three tests to determine if a person’s job is exempt from overtime protection. The other two tests involve being paid a salary and having job duties that primarily involve executive, administrative, or professional functions.   For more information about the rule visit the DOL website.

Managed Care Regulations released

Last week, the Centers for Medicare & Medicaid Services (CMS) released a notice of proposed rulemaking toward modernization of the Medicaid and Children’s Health Insurance Program (CHIP) managed care regulations and to update the programs’ rules and strengthen beneficiary services.  For more information, including summaries of key provisions of the proposed rule, visit medicaid.gov. Staff from The Arc will be reviewing the regulations and providing comments. The deadline to submit comments is July 27, 2015.

Department of Justice Releases A Notice of Proposed Rulemaking to Amend the Americans with Disabilities Act Regulations

The US Department of Justice released a notice of proposed rulemaking (NPRM) to amend the Americans with Disabilities Act (ADA) regulations in order to incorporate the changes made by the ADA Amendments Act (ADAAA) of 2008. The NPRM makes changes to Titles II and III ADA regulations to amend the definition of disability which was broadened by the ADAAA and expand the definition of major life activities by including major bodily functions.  The NPRM includes examples of impairments, such as intellectual disability, that should easily be found to substantially limit a major life activity and cause the necessary individualized assessment of the impairments to be simple and straightforward.    The Title I ADA regulations were amended by the Equal Employment Opportunity Commission in March 2011.  The NPRM will align the definitions in Titles II and III with those in Title I.  The NPRM is open for comment for 60 days until March 31, 2014.

The Department of Education Has Issued Proposed Rulemaking on Academic Achievement Standards

The Department of Education issued a notice of proposed rulemaking (NPRM) on August 23, 2013 concerning the “2% rule.” Comments about the NPRM are due October 7. The proposed rule would overturn a rule from 2007 which permitted states to define modified academic achievement standards for some students with disabilities, develop alternate assessments based on those standards, and use up to 2% of those the scores for school accountability purposes. Since 2007, much work has been done to create assessments that are more accessible to students with disabilities so that their progress toward meeting college and career ready standards can be accurately measured. Two federally funded consortia are designing new assessments that accommodate a broad range of learners and use the principles of Universal Design of Learning. The two consortia are: Smarter Balanced Assessments and the PARCC Assessments.

“…research has shown that low-achieving students with disabilities make academic progress when provided with appropriate supports and instruction. More accessible general assessments, in combination with such supports and instruction for students with disabilities, can promote high expectations for all students, including students with disabilities, by encouraging teaching and learning to the academic achievement standards measured by the general assessments,” NPRM p. 52468.

States would still be permitted to define alternate academic achievement standards and administer alternate assessments to students with the most significant cognitive disabilities – up to 1% of all students.

HUD Issued Proposed Regulation on Affirmatively Furthering Fair Housing

The Department of Housing and Urban Development (HUD) has issued a long-anticipated proposed regulation under the Fair Housing Act of 1968, entitled “Affirmatively Furthering Fair Housing” (AFFH). The proposed rule does not create any new obligations, but instead seeks to provide clearer guidance and tools to help entities understand and carry out their AFFH obligations. AFFH refers to the Fair Housing Act’s obligation for state and local governments to improve and achieve more meaningful outcomes from fair housing policies, so that every American has the right to fair housing, regardless of their race, color, national origin, religion, sex, disability or familial status. As stated in HUD’s press release, “Under the proposed new rule, HUD will provide program participants with: A more clearly articulated definition of what it means to affirmatively further fair housing; An assessment template that replaces the current, loosely defined Analysis of Impediments; Nationally uniform data and a geospatial tool; and Clear guidance and technical assistance.” In addition to the proposed rule, HUD has made available made available background materials and a prototype geospatial tool.

Proposed regulations regarding The Affordable Care Act

Last week, the Department of Health and Human Services (HHS) released a number of proposed regulations and guidance regarding the Affordable Care Act.  The regulations address the essential health benefits that must be included in the health insurance plans sold in the private state exchange insurance market place.  The Arc is very concerned about the lack of definition of habilitation in the proposed rule and will carefully review the regulations.

HHS also released proposed rules on the health insurance market reforms that will take effect in 2014.  The reforms include guaranteed availability of coverage, fair health insurance premiums, and guaranteed renewability of coverage.  Comments on these critical rules are due December 26, 2012.

Centers for Medicare & Medicaid Services issues a correction – Comment period extended

On May 1, 2012 The Centers for Medicare & Medicaid Services (CMS) issued a correction to a proposed rule announced on April 26. The proposed rule, which would give states more flexibility to offer home and community-based services and support to Medicaid enrollees, originally set a 30-day public comment period ending June 4. The proposed rule as corrected allows for a 60-day public comment period ending July 2.

Both the rule and the correction were officially published in the Federal Register on May 3:

Proposed Rule on Minimum Wage and Overtime Protections for In-Home Care Workers

On December 15, the U.S. Department of Labor announced that it intends to publish a Notice of Proposed Rulemaking that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care services.  The proposal would revise the companionship and live-in worker regulations under the Fair Labor Standards Act to more clearly define the tasks that may be performed by an exempt companion, and to limit the companionship exemption to companions employed only by the family or household using the services.  In addition, the Department proposes that third party employers, such as in-home care staffing agencies, could not claim the companionship exemption or the overtime exemption for live-in domestic workers, even if the employee is jointly employed by the third party and the family or household.  The proposed rule has not yet been published in the Federal Register.  More information is available at http://www.dol.gov/whd/flsa/companionNPRM.htm.

Proposed rule would set goals for federal contractors to hire people with disabilities

The U.S. Department of Labor proposed a new rule to require federal contractors and subcontractors to set a hiring goal of having 7 percent of their workforces be people with disabilities, among other requirements. The proposed rule seeks to strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.  Current rules require federal contractors to make a “good faith” effort to recruit and hire people with disabilities, but set no numeric hiring goal.  In contrast, the proposed rule sets a 7 percent hiring goal and details specific actions contractors must take in the areas of recruitment, training, record keeping, and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities.  Click here to read the proposed rule.

Regulatory Reform Passes in the House of Representatives

On Friday, December 2, the House of Representatives passed H.R. 3010 with a vote of 253-167. This bill will radically reform the federal rule-making procedures to make them more complex and require additional analysis and justification for rules. Federal rules are developed to implement and explain federal legislation. Often major laws such as the recent Affordable Care Act leave important definitions and provisions to the regulatory process. The intent of this legislation is to make it much harder to produce regulations, particularly those that protect the public health, the environment, and workplace safety – areas that major businesses and industries feel are over regulated – and require agencies to choose the least costly rules. The Arc is concerned that this legislation could make it difficult to produce critical regulations and would weigh too heavily in favor of special interests who oppose many regulations that we have supported. The President has announced his intent to veto the legislation.