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FOUR FACTS YOU NEED TO KNOW ABOUT THE DISABILITY COMMUNITY ACT (HR 5902)
FACT 1: The Disability Community Act (HR 5902) provides a three year temporary FMAP increase for additional costs of compliance related to the DOL Overtime Rule, DOL Home Care Rule, and HCBS Settings Rule.
The Disability Community Act seeks temporary relief (up to three years) by states in implementing three major federal rules – the DOL overtime exemption rule (part 591 of title 29 CFR), the DOL home care rule or “companionship exemption rule” (part 552 of title 29 CFR) and the CMS HCBS Settings rule (part 430, 431, 435, 436, 440, 441, 447 of title 42 CFR).
Essentially, states would quantify the ADDITIONAL costs of compliance with these three federal rules over any and/or all quarters in years 2017, 2018, and 2019. The federal government would assist in providing this temporary relief by paying 90% of the ADDITIONAL costs. The legislation focuses on these three specific rules because they are key to community integration for people with intellectual and developmental disabilities, but are not achievable without funding in place. The rule purposefully covers costs up to 2019 when states must meet compliance with the CMS HCBS Settings rule, which ensures community services are being provided in the most integrated manner and setting. In 2015 ANCOR issued a letter to every member of Congress with 43 additional disability organizations noting support for the HCBS rule but also making it clear that funding for implementation must be secured.
In addition to the funding components, HR 5902 also removes the offensive and antiquated reference of “mental retardation” and replaces it with “intellectual and developmental disabilities.” Rosa’s Law, which was signed in 2010 by President Obama, required federal statutes to no longer use “mental retardation” terminology – but it did not apply to the Social Security Act where Medicaid law resides. This bill remedies that.
FACT 2: The Electronic Visit Verification (EVV) section of the Bill has bipartisan support and creates a way to pay for the bill.
The final section of the Disability Community Act (HR 5902) is what is called a pay-for, specifically how the costs of the bill will be paid for so that the legislation is as budget neutral as possible. In today’s fiscally austere Congress, it is imperative to present a pay-for in order for any bill to have a chance to succeed. The electronic visit verification (EVV) requirements of the pay-for would create savings over the course of 10 years by reducing funds to states that did not use EVV systems for personal care or home health services – services which impact intellectual and developmental disabilities and other disability populations.
As a result of bipartisan discussion, including by disability champions in Congress, and stakeholder engagement, the language of the EVV section ensures that any EVV system put in place would require stakeholder involvement at the state level, be minimally burdensome, and not require that services be provided solely in home, among other requirements. Further, the EVV section includes FUNDING for states that work with providers who provide personal care and home health services to create and maintain an EVV system. An identical version of this EVV section was included in the mental health reform bill and was passed unanimously by ALL Democrats and Republicans of the Energy and Commerce Committee and 422 Members of the House ofRepresentatives when it moved to the House Floor in July 2016.
FACT 3: The I/DD population is the focus of the Disability Community Act based on available data and how Medicaid applies to the population.
The Disability Community Act arose from a series of data and analytical reports on the impact of the DOL overtime rule on the specific population of individuals with intellectual and developmental disabilities (I/DD). In August 2015 ANCOR conducted a survey of its members of the impact to their services based on the proposed rule and published some of these findings in its own thorough comments to the proposed rule. ANCOR immediately began working with healthcare data and analytics firm, Avalere Health, to analyze its survey and other national significant data and produce several scenarios of impact from the rule on intellectual and developmental disability services showing compliance with the DOL overtime rule alone would cost over 1 billion dollars. Before and following the publication of the final rule by DOL in May 2016, ANCOR shared its data with the media, the Administration and Congress, and ultimately the legislation developed to address the funding gap,
The I/DD population is also specifically addressed because it is a population that is almost 100% solely funded by Medicaid, which is why the data on impact collected was so significant. The Department of Labor itself recognized this unique quality to I/DD services which is why this specific population was the ONLY one addressed in the final DOL overtime exemption rule offering a time-limited non enforcement of federal action for certain services offered to this population.
FACT 4: We need your help to pass the Disability Community Act and further community integration.
As the data that ANCOR collected illustrates, without funding for states to help providers comply with new DOL and CMS federal rules, there is a danger that there will be a reversal of community integrated services and a return to state-run institutional services. ANCOR has led on issues of community integration and continues to be at the forefront of federal policy encouraging deinstitutionalization. This work includes efforts to include HCBS in the state requirements under the Medicaid Access rule, applying provider taxes to HCBS to rebalance funds from institutional to HCBS, implementation of the HCBS rule, reevaluating service models to incorporate fair wages for quality staff, offering tools for shared living arrangements, and so much more!
Now is the time to act to ensure that the Disability Community Act can be successful and continue to provide quality services for individuals with I/DD in the community. Visit www.disabilitysos.org for more information and to Take Action.