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Reports from the Policy Front

by: 
Katherine Berland, Esq.

ANCOR's Government Relations staff distributes stories in the Washington Insiders Club (WICS) – a weekly round-up of top stories and headlines – to ANCOR Members to keep them up to date on policy and political developments of note to the disability community. The following entries highlight the most significant reports of the last two months.

Bills to Delay DOL Overtime Rule Introduced Before Recess

(October 3, 2016)

Last week, prior to breaking for more than a month-long recess, several new bills were introduced in the House and Senate that would delay the implementation of the Department of Labor's Overtime Exemption rule. ANCOR continues to believe that these bills have little chance of success, as the Administration has promised to veto any that pass out of both houses of Congress. We continue to advocate for the Disability Community Act (H.R. 5902), which would not block or delay the rule, but that would temporarily increase Medicaid funding to help providers comply with this and other targeted federal rules. Here is the update on other bills that have been introduced recently. 

Regulatory Relief for Small Businesses, Schools, and Nonprofits (H.R. 6094/S. 3462) - This bill was introduced on September 21, and passed by the House on September 29. It would delay implementation of the DOL overtime exemption rule for six months, making the effective date June 1, 2017. On September 29, a companion bill was introduced in the Senate. The Senate bill was not voted on before Congress recessed.

Overtime Reform and Review Act (S. 3464) - This bill was introduced on September 29. The Senate bill is a modified version of the Overtime Reform and Enhancement Act (H.R. 5813) which was introduced in the House on July 14, 2016. Both bills would create a phase-in for the rule and block automatic increases. With the new Senate bill, there would also be a "pause year" after the first, substantial increase to allow for the impact to be absorbed, reviewed and measured. Additionally, it would require the Government Accountability Office to conduct a comprehensive study after the initial increase. Finally, it would exempt non-profit, Medicaid and Medicare dependent providers as well as state and local governments after the first increase, unless the Administration certifies that the increase did not increase part-time work, or negatively impact workplace flexibility, benefit structures, career advancement opportunity or job growth. 

While ANCOR advocated for delayed or phased-in implementation during the rulemaking process, we do not believe there is a realistic path forward for legislation that seeks to block or delay the rule at this time and are not working on behalf of any bills other than the Disability Community Act (H.R. 5902). ANCOR continues to advocate for increased funding to comply with the rule, which we believe will be fully implemented on December 1, 2016. We encourage our members to continue to urge their elected officials to sign on as a cosponsor of the Disability Community Act. For more information and resources on how to contact your Members of Congress, contact ANCOR's GR Manager, Doris Parfaite-Claude at dparfaite-claude@ancor.org.

Representatives Urge CMS to Expand Provider Taxes to HCBS

(September 30, 2016)

On September 30, four Congressmen sent a letter (attached below) to CMS Administrator Andrew Slavitt, urging his agency to recognize home and community based services as a permitted class under the Social Security Act's provider tax provision. The provision permits states to draw additional federal funds by imposing assessments, up to a legally-proscribed cap, on certain health services providers. These assessments are currently in use for ICFs, hospitals, and other provider types, but are not explicitly permitted for HCBS waiver services. ANCOR has advocated strongly for the expanded use of provider taxes. The letter was the direct result of ANCOR's working with Rep. Langevin's office, who circulated the letter among his colleagues. The signatories on the letter are: Reps. Jim Langevin (D-RI), William Keating (D-MA), Paul Tonko (D-NY), and David Cicilline (D-RI).

medicaid_provider_tax_letter_9-30-16.pdf

Congress Averts Government Shutdown, Reaches Zika Compromise

(September 28, 2016)

On September 28, just one day before recessing until after the November presidential election, Congress approved a short-term continuing resolution (CR) that will keep the federal government funded through December 9. Prior to the CR, funding was set to run out on September 30, which would have caused a government shutdown reminiscent of the one in 2013. The CR passed easily through both chambers and will now head to the President's desk for signature. 

The funding bill comes after weeks of negotiations, that included a myriad of issues, including financial aid to the city of Flint, Michigan, Planned Parenthood funding, and the much-disputed Zika virus prevention funding. The final amount allocated to preventing the spread of Zika is $1.1 billion, with $935 million of that to be used domestically, and the remaining $175 million to target efforts abroad, which is where most domestically-reported cases were contracted. Recently, it has been reported by medical professionals that while the virus is not generally passed on by casual physical contact, it can be transmitted through sweat or tears, in addition to the bite of an infected mosquito. 

Sources: Washington PostKaiser Health News

PA Court Rules Governor Cannot Compel Unionization of Home Care Workers

(September 22, 2016)

On September 22, the Commonwealth Court of Pennsylvania ruled that Executive Order 2015-05, issued by PA Governor Tom Wolf on February 27, 2015, was not legal. The executive order sought to "create new arrangements for direct care workers who provide personal services to certain aged and disabled participants in their homes," according to the opinion. The court noted that the executive order would empower non-state employees to negotiate with the state for collective bargaining purposes. The order also created an advisory group to advise the Governor and relevant state agency on whats to improve quality of care. 

The court determined that the executive order, which would apply to direct care workers including those hired directly by individuals, exceeded the Governor's authority and would be overly invasive as it would compel union workers to gather information through visits and other contact from individuals receiving services, creating privacy concerns. 

The suit was filed by several groups, including the Pennsylvania Homecare Association (PHA), who released a statement on the ruling, available here.

States, Chambers of Commerce Challenge DOL Overtime Rule

(September 20, 2016)

On September 20, twenty-one states and dozens of Chambers of Commerce (and other industry groups) filed separate but related lawsuits (attached below) challenging the Department of Labor's (DOL's) final Overtime Exemption rule. The suits were filed in the United States District Court for the Eastern District of Texas, Sherman Division. The states challenge the rule on several points, including the contention that the rule means that the federal government is compelling states to pay state government employees in a manner that violates the constitution. The complaint argues that the automatic updating mechanism is contrary to Congressional intent in drafting the Fair Labor Standards Act (FLSA). It goes on to argue that prior precedent from Supreme Court decisions should be overturned, and the rule invalidated. 

The second suit, filed by business groups, puts forth the same argument regarding the automatic updates to the threshold. It further argues that the DOL has exceeded the scope of its authority by extending new requirements to businesses and employees that formerly were considered exempt. 

Department of Labor Secretary Thomas Perez came out quickly with a statement condemning the lawsuits and supporting the rule. In his statement, Secretary Perez said,"We are confident in the legality of all aspects of our final overtime rule. It is the result of a comprehensive, inclusive rule-making process. Despite the sound legal and policy footing on which the rule is constructed, the same interests that have stood in the way of middle-class Americans getting paid when they work extra are continuing their obstructionist tactics. Partisan lawsuits filed today by 21 states and the U.S. Chamber of Commerce seek to prevent the Obama administration from making sure a long day’s work is rewarded with fair pay. The overtime rule is designed to restore the intent of the Fair Labor Standards Act.”

ANCOR will continue to monitor the lawsuits, and notes that a recent, similar lawsuit challenging another DOL rule on grounds that the department exceeded its authority was struck down, setting recent precedent in favor of the DOL. If the district court finds in favor of the states and Chambers, there will be an appeal to a higher court. The process is likely to take months to years to fully resolve. ANCOR recommends that providers assume that the rule's effective date still applies unless or until a court rules otherwise. As always, providers are advised to seek the advice of legal counsel to determine the scope of their obligations as employers under the FLSA.

Complaint filed 20September2016 EDTX (States)

Complaint filed 20September2016 EDTX (Chambers)

President's Committee for People with Intellectual Disabilities' Statement on WIOA Advisory Committee Final Report

(September 19, 2016)

The Administration for Community Living sent this announcement out on September 19: 

Last week, the Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (ACICIEID) sent its final report to the Secretary of the U.S. Department of Labor. The issue of competitive integrated employment and meaningful lives for people with intellectual disabilities is a core value of PCPID's work, and the ACICIED heard testimony from several members of the President’s Committee during their two-year-long deliberations.

The President’s Committee for People with Intellectual Disabilities (PCPID) applauds the powerful recommendations in the report, and we congratulate ACICIEID on completing this difficult work.

NCD Urges Against ADA Notification Bill

(September 13, 2016)

On September 13, the current chair and several past chairs of the National Council on Disability (NCD) sent a letter to Speaker of the House Paul Ryan (R-WI) and Minority Leader Nancy Pelosi (D-CA), urging against the passage of the ADA [Americans with Disabilities Act] Education and Reform Act of 2015 (H.R. 3765). The bill would permit a notice and cure period prior to private civil action under the ADA. (See WICs article, "House Legislation Would Weaken ADA Protections," July 15, 2016.)

In the letter, NCD says that this bill "improperly shifts the burden of ensuring compliance with the ADA to individuals with disabilities who are denied access to public accommodations due to business owners’ failures to comply with the ADA." It goes on to note that the ADA was enacted over a quarter century ago, and that this bill would "[give] the business two months to explain how they will fix a problem that never should have occurred in the first place and another 4 months to fix the problem, during which time the business remains out of compliance with existing law and inaccessible to people with disabilities".

The letter also takes issue with requirements contained in the bill that the Department of Justice (DOJ) conduct additional education to state and local officials, and the general public, about the ADA's requirements. NCD argues that such a requirement is unnecessary and redundant of guidance and outreach currently being carried out by the DOJ. 

In conclusion, the letter says that the proposed legislation is "an attempt to fix a law that isn't broken, and in doing so, this proposed legislation rolls back waht is widely recognized as one of the most important civil rights achievements of the past 30 years."

RAISE Act Gains More Visibility

(September 13, 2016)

The Recognize, Assist, Include, Support, and Engage (RAISE) Family Caregivers Act, which ANCOR strongly supports, continues to gain momentum. (See WICs article, "ANCOR Supports Continuing RAISE Act Efforts," September 12, 2016.) On September 13, the National Academies of Sciences, Engineering, and Medicine released a report on family caregiving, which outlines the need for supports, as well as discusses strategies for a national family caregiver strategy. AARP posted an article that goes into more depth on the report and the role the RAISE Act can play in addressing the increasing need for family supports. 

On September 15, Autism Speaks posted a blog titled, "Why supporting caregivers should be a national priority." In the blog, the organization strongly advocates for supports for family caregivers, including respite, that are needed to ensure that individuals supported can live full lives in the community. The blog ends with a strong statement of support for the RAISE Act.

Congress Scrambles to Pass Spending Bill During Short Session

(September 12, 2016)

Not wanting to repeat the government shutdown that caused the public to have intensely negative feelings about Congress in October 2013, Congress is eyeing a short-term spending bill while in session this week to avoid a repeat of that scenario. The return from the August recess is short, with Congressmembers anxious to return to their home districts to focus on their own reelection campaigns, or to assist in campaigning for the Presidential race. 

Congressional leaders are in talks with the Obama administration on what a continuing resolution (CR) will look like. It will likely fund the government through mid-December, at which point another CR would have to be put in place to fund the government into the new year, and the next administration. Rather than passing an all-encompassing omnibus bill, Republican lawmakers have expressed a preference to pass smaller appropriation bills in the lame-duck session. Democrats, on the other hand, are seeking a more expansive spending bill, without any "vexatious riders", according to Senate Minority Leader Harry Reid (D-NV). 

Familiar sticking points appear to be resurfacing, particularly the battle over Planned Parenthood funding, which has in recent months kept lawmakers from reaching a compromise on funding measure to prevent and treat the Zika virus. 

Source: The Hill

CMS Issues Final Rule on Emergency Preparedness Requirements

(September 8, 2016)

On September 8, the Centers for Medicare and Medicaid Services (CMS) released final rule RIN 0938-AO91, "Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers". The press release from CMS announcing the rule is available here

The rule lists four best practice standards that providers must follow: developing an emergency plan, creating a communications plan, having a training program, and developing appropriate policies and procedures. During the public comment phase of the rule, several organizations expressed concerns over the cost of developing the plans required, which CMS estimated would cost around $225 million and impact 83,000 providers. Some commenters believed this cost estimate was lower than what the actual cost will be. The final rule includes additional flexibility in annual testing from what was originally proposed, and also removes requirements for extra generator testing. Additionally, it permits a separately certified facility within a healthcare system to take part in the system's unified emergency preparedness program. 

CMS has also updated its emergency preparedness rule website with guidance and resources. That website is here.

ANCOR Supports Continuing RAISE Act Efforts

(September 6, 2016)

On September 6, ANCOR joined AARP and more than 50 other national aging and disabilities organizations in sending a letter to Chairman John Kline (R-MN) and Ranking Member Bobby Scott (D-VA) of the House Committee on Education & the Workforce, strongly supporting the Recognize, Assist, Include, Support, and Engage (RAISE) Family Caregivers Act. The legislation was passed unanimously by the Senate in December, and the House is expected to vote on it while in session this week.The bill would implement the federal Commission on Long-Term Care's bipartisan recommendation that Congress required the development of a national strategy to support family caregivers. 

In addition to the letter, ANCOR also joined in an advertisement in support of the RAISE Act that ran in Politico on September 7 and 8. The letter and advertisement are attached below:

RAISE Act Sign-on Letter September 2016

RAISE Act Advertisement September 2016

 

Katherine Berland is ANCOR's Director of Public Policy. She can be reached at kberland@ancor.org.