On June 29, the Department of Education announced that it would delay the regulations that were set to take effect this month to address racial/ethnic disproportionality in the identification, placement, and discipline of students served by the Individuals with Disabilities Education Act (IDEA). The requirement for states and school districts to collect and report data on significant disproportionality, and take certain action if it is found, was added to the IDEA in 2004. However, since that time few states and school districts have reported any such significant disproportionality. In response to this problem, documented in a 2013 study by the Government Accountability Office (GAO), the Department of Education issued regulations in 2016 to require a standard methodology to calculate significant disproportionality. In February, the Department solicited public comment on a proposed delay of these regulations as part of President Trump’ Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” Nearly 400 comments were submitted in response with the vast majority opposing the delay, including comments from The Arc and from school districts already in the implementation process. The Department cited concerns about creating incentives for quotas and the need to study the issue further as justification for postponement. The Arc is very disappointed with the Department’s action and remains very concerned about the disproportionate numbers of minority students being over identified with certain types of disabilities, placed in segregated settings, and suspended and/or expelled.
On April 9, the Centers for Medicare and Medicaid Services (CMS) released a final rule weakening consumer protections in the Affordable Care Act. The final rule increases the amount by which insurers can increase premiums without regulatory approval, from 10% to 15%. Furthermore, it exempts student health plans from this process. The rule also broadens the circumstances when plans are allowed to spend less than 80% of premiums on providing care without being required to reimburse beneficiaries. Additionally, it allows states to narrow the scope of essential health benefits that plans are required to cover. Learn more about the final rule here.
Last week, the U.S. Department of Housing and Urban Development (HUD) issued a new fair housing regulation aimed at promoting diverse, inclusive communities and overcoming the negative effects of segregation. The Fair Housing Act prohibits discrimination in housing on the basis of disability, race, color, national origin, religion, sex, and familial status. HUD’s new regulation is designed to help states and local jurisdictions comply with their existing obligations to “affirmatively further fair housing,” a key provision of the Fair Housing Act. As noted by HUD, the new rule “creates a streamlined Assessment of Fair Housing planning process, which will help communities analyze challenges to fair housing choice and establish their own goals and priorities to address the fair housing barriers in their community.”
On October 1, 2013, the Wage and Hour Division of the U.S. Department of Labor (DOL) released “Application of the Fair Labor Standards Act to Domestic Service; Final Rule”, 78 FR 60454, (Final Rule) which extended minimum wage and overtime protections to most home care workers. Under the rule, most home care workers will have the same protections provided to the majority of U.S. workers under the Fair Labor Standards Act (FLSA), including many direct support professionals (DSPs) who provide supports and services to individuals with intellectual and/or developmental disabilities (I/DD).
The rule goes into effect on January 1, 2015. However, DOL has received requests for a deadline extension from state agencies, national and state associations, and advocacy organizations, citing the need for additional time to secure budgetary, programmatic, and operational adjustments. In response to these requests, on October 8, 2014, DOL announced the adoption of a time-limited, non-enforcement policy which applies to all employers. In a blog post, DOL stated the following:
“After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance. Throughout 2015, we will continue to provide robust compliance and technical assistance”.
Despite the deadline extension, DOL officials have pointed out that while as of the effective date DOJ may not bring enforcement actions, employers may be subject to a private right of action by an employee who believes s/he has been harmed by the employers’ actions.
DOL is maintaining a website dedicated to the Final Rule containing information related to the Final Rule, a series of webinars, FAQs, and Fact Sheets to assist employers, employees, and consumers navigate requirements of the Final Rule.
Today, the National Association of Councils on Developmental Disabilities, the National Disability Rights Network, and the Association of University Centers on Disabilities announced a new resource for advocates to follow implementation of the HCBS final rule. The rule set forth new requirements for several Medicaid authorities under which states may provide home and community-based long term services and supports. The website will have both state and federal resources to help track what states are doing to comply with the rule and educate advocates about the important provisions.
Last month, the Department of Justice issued a Final Rule that adjusts inflation for the civil monetary penalties assessed or enforced by the Civil Rights Division, including civil penalties available under title III of the Americans with Disabilities Act (ADA). For the ADA, this adjustment increases the maximum civil penalty for a first violation under title III from $55,000 to $75,000; for a subsequent violation the new maximum is $150,000. The new maximums only apply to violations occurring on or after April 28, 2014.
This Final Rule is a non-discretionary agency action made pursuant to Section 4 of the Federal Civil Penalties Adjustment Act of 1990, as amended (Adjustment Act), which mandates the Attorney General to adjust for inflation the civil penalties assessed or enforced by the Department of Justice. The amounts of the adjustment were determined according to a specific mathematical formula set forth in Section 5 of the Adjustment Act. The previous adjustment under the ADA occurred in 1999.
The Department of Health and Human Services announced regulations last week that would allow states and insurers the option to renew plans that do not meet the consumer protections and other Affordable Care Act (ACA) requirements. Specifically, it allows renewal of non-compliant plans until October 1, 2016. This means that non-compliant plans could potentially remain in effect until well into 2017 as long as the policy year began before October 2016. Thus far 27 states, plus Puerto Rico and Guam, have allowed insurers to renew these plans. The Administration also announced that it was extending the 2015 open enrollment period to run from November 15, 2014 to February 15, 2015.
The Centers for Medicare and Medicaid Services (CMS) published final rules in the January 16, 2014 Federal Register that implement Section 1915(i) of the Medicaid program and define the characteristics of a home and community-based (HCB) setting. The Arc’s national public policy team has developed a National Policy Matters that describes the new CMS definition of HCB setting.
The Department of Labor (DOL) has announced a final rule on the “Application of Fair Labor Standards to Domestic Service.” The rule extends the Fair Labor Standards Act (FLSA) minimum wage and overtime protections to most direct support professionals by narrowing exemptions for companionship service and live-in domestic service. Once published in the Federal Register, the final rule will take effect January 1, 2015. According to DOL, this one-year extension of the effective date is designed to take into account “the complexity of the federal and state systems that are a significant source of funding for home care work and the needs of the diverse parties affected by this Final Rule.” Learn more about the rule at DOL’s new, dedicated web portal. DOL will host five webinars on the rule during October, organized by geographic region.
Incentives for Nondiscriminatory Wellness Programs in Group Health Plans, a rule about employer-sponsored wellness programs, was released by the Obama administration. Although research has yet to demonstrate that workplace wellness programs achieve their intended goals – reduce healthcare costs and improve employee health, employers will be permitted to reward employees who participate in wellness programs by reducing their health insurance premiums by up to 30% and up to 50% for programs that are designed to prevent or reduce smoking. Employers can penalize employees who do not participate by increasing their premiums. The rules are intended to prevent discrimination against people who cannot meet wellness targets due to their disability. Employers must provide reasonable alternatives so that employees who cannot meet health targets can still participate and be eligible for rewards.