Shaping policy  Sharing solutions  S trengthening communities

1. Shaping policy  Sharing solutions  Strengthening communities

2. Federal Fiscal and Policy Developments Presenter: Katherine Berland, Esq., Director of Public Policy American Network of Community Options and Resources VNPP Fall Conference October 15, 2015

3. ANCOR is…A national nonprofit trade association advocating and supporting • Over 1,000 private providers of services and supports to • Over 600,000 people with disabilities and their families • And employing a workforce of over 500,000 direct support professionals(DSPs) and other staff • Membership benefits include robust government relations representation at federal level and access to exclusive ANCOR content, as well as exclusive discounts on technology and I/DD products through the ANCOR marketplace.

4. Overview • Inside the Beltway: What’s Going on in DC? • Rules and Regulations • DOL Home Care Rule • CMS HCBS Rule • DOL Overtime Exemption Rule • DOE/DOL WIOA Rules • CMS Managed Care Rule • IRS ABLE Act Rule • CMS Medicaid Equal Access Rule • CMS PACE-Like Pilot • Federal Legislation • Community Integration Act • Transition to Independence Act • Judicial/Litigation • Armstrong v. Exceptional Child • Olmstead ADA Enforcement • Additional Resources • Questions

5. Inside the Beltway: What’s Going on in DC?

6. Inside the Beltway: What’s Going on in DC? Boehner resigns as House Speaker Congress Passes CR Government shutdown averted! (Until December 11)

7. Inside the Beltway: What’s Going on in DC?

8. Inside the Beltway: What’s Going on in DC? • The upcoming election means: • Every issue Congress takes up has potential ramifications in the 2016 election • Incentive to maintain status quo to hold onto seats in both houses of Congress • Candidate positions will move further away from the center until field narrows

9. Inside the Beltway: What’s Going on in DC? • As the Obama Administration ends: • The Administration is making a final push on priority agenda issues, including: • Gun control • Criminal Justice/Policing • Climate Change/EPA • Federal Minimum Wage/Summit on Worker Voice • High-level staff in executive agencies are moving into the private sector • Any regulatory action must already be in the pipeline to be completed prior to end of term

10. Rules and Regulations

11. FINAL RULE: DOL Home Care Rule • The Home Care Rule (aka “Companionship Rule”) • Finalized in 2013, effective date of January 1, 2015 • Prohibits third-party/joint employers from taking companionship exemption • Narrows the definition of duties permitted as companionship activities • Current Status • Reinstated, after an appeals court reversed a district court ruling vacating the third-party prohibition against taking the exemption • The rule is reinstated in full and back in effect as of October 13, 2015 (with the original effective date of January 1, 2015) • DOL will begin enforcement on November 13, 2015 • Original Plaintiffs asked for, and were denied, a stay pending a Supreme Court appeal.

12. FINAL RULE: CMS HCBS Rule • Key Provisions • Person-centered planning and conflict of interest provisions went into effect on 3/17/2014. • States have until March 2019 to come into compliance on residential and day settings. • NO statewide transition plans have been approved; CMS has issued CMIA letters to 36 states so far. • CMS has issued guidance regarding heightened scrutiny process.

13. PROPOSED RULE: DOL Overtime Exemption • Proposed:July 6, 2015, comments were due September 4, 2015 (RIN 1235-AA11) • Purpose: To update the “white collar” exemptions threshold which has not been updated since 2004 • Key Provisions: • Sets threshold for “white collar” exemptions at the 40th percentile of weekly earnings for full time salaried workers, highly compensated at 90th • Auto update mechanism, set as percentile rather than fixed dollar amount • Discussion of duties requirements (no proposed changes at this time, comments requested) • Will most likely be finalized early next year, with an effective date before the November election.

14. PROPOSED RULE: DOL Overtime Exemption Setting a fixed percentile rather than a fixed dollar amount means the dollar threshold may change each year. The projected rate of growth is 2% annually. Proposed Threshold: $50,440/yr ($970/wk) (40th percentile) Current Threshold: $23,660/yr ($455/wk) Amounts based on projected 2016 data from the Bureau of Labor Statistics

15. PROPOSED RULE: DOL Overtime Exemption • ANCOR Comments (submitted August 31) Recommended: • Close coordination with related Federal agencies to ensure funding is in place to implement rule • A threshold no higher than the 15th percentile • No changes to duties test, with additional comment period if changes are proposed • Setting the threshold by region to account for geographic variances in cost of living • Adjusting the threshold not more frequently than every two years • Phasing in any initial increase over three to five years

16. Proposed: Five NPRMs were published on April 16, 2015, comments were due June 15, 2015. Purpose: To implement the Workforce Innovation and Opportunity Act. PROPOSED RULES: DOE/DOL WIOA

17. WIOA Advisory Committee Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities • Six Meetings Held in 2015 • ANCOR provided written and oral testimony to committee • The Committee issued an Interim Report on Sept. 15 • Emphasis on early intervention and setting high expectations for families • Better integration of various systems to mitigate transition issues • Improving professional supports and incentives • Improved education and outreach to businesses • Building capacity for training programs • Consider phasing out 14(c) as CIE increases • Improved oversight and accountability of the AbilityOne Program

18. PROPOSED RULES: CMS Managed Care • Proposed:On June 1, 2015 (RIN 0938–AS25), comments were due July 27, 2015. • Purpose:To update Medicaid and the Children's Health Insurance Program (CHIP) which have not been updated for over a decade. • Key Provisions: • Improving the Beneficiary Experience • Quality Improvement • Program and Fiscal Integrity Improvement and Alignment • Strengthening the Delivery of Managed Long Term Services and Supports (MLTSS) • Children's Health Insurance Program (CHIP) Provisions • Alignment with Medicare Advantage and Private Coverage Plans • Strengthening States' Delivery System Reform Efforts

19. PROPOSED RULE: IRS ABLE Act • Proposed: June 22, 2015 (RIN 1545-BM68), comments were due September 21 • Purpose: To provide states rules and guidance to establish 529A accounts. • Key Provisions: • Allows individuals and families to create IRC §529 tax-advantaged savings plans to save private funds to use for qualified disability-related expenses • Restricted to individuals acquiring disability prior to age 26 • Contributions may not exceed annual gift-tax exemption amount, with a lifetime cap of $100,000 • Proposed rule implements ABLE Act; comments centered on technical aspects regarding eligibility, funds transfer, and portability.

20. PROPOSED RULE: CMS Medicaid Equal Access • Proposed: May 6, 2011 (RIN 0938-AQ54), comments were due July 5, 2011 • Purpose:Seeks to ensure that Medicaid beneficiaries have access to services at same level as privately-insured individuals. • Key Provisions: • Would require states to use data to determine assessment methodology including: • Enrollee needs • Availability of care and providers • Utilization of services • Would increase transparency in process, requiring public input and publishing of results • The rule is currently at OMB, final rule is expected soon.

21. PENDING ACTION: CMS PACE-Like Pilot • PACE-like Pilot to Expand Community Services for People with I/DD • PACE, the Program of All-Inclusive Care for the Elderly • ANCOR supports a Request for Information (RFI) on a PACE-like pilot for a disability population under 55 with assurance it would be: • Olmstead/HCBS Rule compliant • Open to providers regardless of corporate status • Would consider overlap of providers in current PACE service areas

22. Federal Legislation

23. PENDING: Community Integration Act • Would eliminate the nursing home bias in Medicaid • Would prohibit states from excluding people from HCBS due to specific disability • Would require states to develop affordable housing stock plan • Would ensure funding levels adequate to support DSP workforce • Would require states to report on how many people have been transitioned to HCBS • Is planned to be introduced again by Senator Brown (D-OH) and Representative Cartwright (D-PA).

24. PENDING: Transition to Independence Act (T2I) • Low expectations and poorly designed policy have created a system with many structural barriers impeding Medicaid recipients to be able to live and work in the community. • The T2I Act, sponsored by Sen. Chuck Grassley (R-IA), would create incentives for states that create opportunities for integrated employment through a demonstration project. • States that meet certain performance benchmarks related to employment will receive a higher Federal match. • Incentives paid to states will be used to support integrated employment goals, promoting the long-term goals of increasing employment and financial independence for people with disabilities. • This legislation supports the spirit of the HCBS rule and will help states meet their Olmstead obligations.

25. Judicial/Litigation

26. Armstrong v. Exceptional Child Held:Providers do not have standing to sue the state to enforce Medicaid rates. Providers (and, by implication, beneficiaries as well) should turn to HHS, not the courts, for help in requiring that states live up to the minimum legal terms of the Medicaid statute. Pressure is on CMS finalize the proposed equal access rule in a manner that will enforce the requirement that the states pay rates that provide Medicaid beneficiaries with access to care that is at least equal to that of the general population.

27. Olmstead ADA Enforcement Lane v. Brown Proposed Settlement Court found that ADA and Olmstead applies to all government services, programs, and activities, not just to residential services and programs. Will impact 7,000 individuals. U.S. v. Rhode Island Settlement State must provide real opportunities for competitive employment and integrated day activates. Will impact 3,250 individuals with IDD. DOJ has been clear in noting that Olmstead obligations are separate from CMS HCBS or other approvals.

28. Additional Resources • DOL Home Care Rule: http://www.dol.gov/whd/homecare/ • DOL Overtime Exemption NPRM: http://www.dol.gov/whd/overtime/NPRM2015/ • CMS HCBS Rule:http://www.medicaid.gov/hcbs • Workforce Innovation and Opportunity Act: http://www.doleta.gov/wioa/ • Armstrong v. Exceptional Child: http://www.scotusblog.com/case-files/cases/armstrong-v-exceptional-child-center-inc/ • Olmsteadnews and activity: http://www.ada.gov/olmstead/

29. Questions

30. Contact Information Katherine Berland, Esq. Director of Public Policy kberland@ancor.org (703) 535-7850, ext. 104