In this Policy Round Up:
- HHS Announces Proposed Rule to Strengthen Non-Discrimination in Health Care: Section 1557 of the Affordable Care Act; Stakeholder Webinar Thursday
- Centers for Medicare and Medicaid Services Releases First-Ever Home- and Community-Based Services Quality Measure Set
- FDA Authorizes Pharmacists to Prescribe Paxlovid for COVID-19 Infection with Certain Limitations
- Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons
- Request for Information on Medicare Advantage Program: Comments requested by August 31, 2022
- New Guidance from the Department of Education Helps Schools Support Students with Disabilities and Avoid Discriminatory Use of Discipline
- Department of Education Releases Proposed Regulations to Expand and Improve Targeted Relief Programs for Student Loan Borrowers. Comments due August 12th.
- CMS Offers Roadmap for States to Help Connect Children with Complex Medical Conditions to Critical Medicaid Services
- Two new Updates Related to Sub-Minimum Wage Employment for People with Disabilities Under the Fair Labor Standards Act Section 14(c).
- HHS Repeals Rules on Good Guidance Practices and Transparency and Fairness in Civil Administrative Enforcement Actions
HHS Announces Proposed Rule to Strengthen Non-Discrimination in Health Care: Section 1557 of the Affordable Care Act; Stakeholder Webinar Thursday
The U.S. Department of Health and Human Services (HHS) has announced a proposed rule implementing Section 1557 of the Affordable Care Act that prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities. The rule will significantly improve access to care for people with disabilities, particularly in the areas of accessible telehealth and will help ensure people with disabilities are able to live and receive services in integrated community settings.
- ACL will join the HHS Office for Civil Rights for a webinar on August 11th at 2:30 PM ET to provide an overview of the proposed rule for aging and disability stakeholders. Click here to register (required for attendance).
- For more detailed information on the proposed rule, please see our blog on Section 1557.
- OCR is now accepting comments, comments are due by October 3, 2022.
Centers for Medicare and Medicaid Services Releases First-Ever Home- and Community-Based Services Quality Measure Set
In an effort to improve quality of care and accessibility in Home and Community-Based Services (HCBS), CMS released its first nationally standardized quality measure set for Medicaid-financed HCBS. ACLs networks can work with their states in the adoption and implementation of these new measures.
The State Medicaid Director Letter (SMDL), which was released July 21, 2022, creates a standardized set of measures for voluntary use by states in their quality improvement and reporting programs. The measures fall into three main domains: access, rebalancing and community integration. The SMDL also includes information on the purpose of the measure set, selection criteria, organization of the measure set, and considerations for implementation. A second forthcoming guidance document will provide detailed information on how states can use the measure set as a part of their quality measurement, reporting and improvement activities.
CMS anticipates that use of a national HCBS measure set will produce uniform, comparative data for CMS and states to drive quality improvement programs and produce better outcomes for beneficiaries. Standardized measures will also reduce some of the burden states face when identifying and using disparate HCBS quality measures.
FDA Authorizes Pharmacists to Prescribe Paxlovid for COVID-19 Infection with Certain Limitations
Pharmacists are now authorized to prescribe the medication Paxlovid, an FDA approved antiviral for the treatment of COVID-19 infection in high risk individuals, without a prescription to eligible persons. Individuals must be able to provide health records less than one year old, including bloodwork, and a list of all current medications. The FDA is still encouraging COVID-19 positive patients to first consider seeking care from their regular health care provider or locating a Test-to-Treat site in their area before seeking a prescription from their pharmacist.
Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons
In new guidance the HHS Office for Civil Rights (OCR) and DOJ’s Civil Rights Division (CRT) various federal civil rights laws require health care providers make services offered via telehealth accessible to people with disabilities and limited English proficient persons. Telehealth may improve access to health care but for some people with disabilities, for example those who are blind or have low vision or people who are deaf or hearing impaired, telehealth technology and provider behavior can impede the full use and benefit of telehealth services. The guidance seeks to inform providers and other covered entities of their obligations under federal law and provides examples and best practices to ensure people with disabilities are able to fully access telehealth services. It also includes information on how to file complaints if you believe you have been discriminated against by a health care or telehealth provider.
Request for Information on Medicare Advantage Program: Comments requested by August 31, 2022
In a recent Request for Information, CMS is seeking public comment on the Medicare Advantage program. CMS is asking for input on ways to achieve the agency’s vision so that all parts of Medicare are working towards a future where people with Medicare receive more equitable, high quality, and person-centered care that is affordable and sustainable. Input is requested in the areas of health equity, access to care, innovation to drive person-centered care, affordability and sustainability. Comments will be accepted through August 31, 2022 and can be submitted through regulations.gov.
New Guidance from the Department of Education Helps Schools Support Students with Disabilities and Avoid Discriminatory Use of Discipline
In an effort to support students with disabilities, public schools, teachers and families, the Department of Education’s Office for Civil Rights and Office of Special Education and Rehabilitative Services released a series of new guidance documents targeted at curbing the discriminatory use of student discipline. The guidance includes information on schools’ legal responsibilities under Section 504 of the Rehabilitation Act and the Individual’s with Disabilities Education Act (IDEA) and provides best practices for supporting children with disabilities in schools.
This comprehensive set of guidance documents on the civil rights of students with disabilities and disciplinary practices build on the Department’s continued efforts to support students and schools through pandemic recovery. The new resources reflect the Department of Education’s concern that some students with disabilities are not receiving the supports and services necessary to address their educational and behavioral health needs and that schools may be taking impermissible disciplinary actions.
The guidance makes clear that schools do not need to choose between complying with their legal obligations and keeping their school community – including students and staff – safe.
The new resources include:
- Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 and an accompanying Fact Sheet.
- Questions and Answers Addressing the Needs of Children with Disabilities and the Individuals with Disabilities Education Act's (IDEA's) Discipline Provisions.
- Positive, Proactive Approaches to Supporting the Needs of Children with Disabilities: A Guide for Stakeholders. And,
- A letter from Secretary Cardona to our nation's educators, school leaders, parents, and students about the importance of supporting the needs of students with disabilities.
Department of Education Releases Proposed Regulations to Expand and Improve Targeted Relief Programs for Student Loan Borrowers. Comments due August 12th.
The US Department of Education has proposed a rule that would expand and improve targeted relief programs for student loan borrowers, including people with disabilities. While borrowers who become totally and permanently disabled are currently entitled to discharge of their student loans, the proposed regulations would make it easier to qualify for this relief by expanding the definition of disability and widening the types of acceptable documentation of disability. The proposed rule also makes it easier to maintain the benefit after it is awarded by eliminating cumbersome income monitoring requirements that are currently mandatory for the first three years after discharge.
More information can be found on the Department of Education’s website. Comments are due August 12, 2022 and can be filed on regulations.gov. ACL network partners are urged to comment to ensure borrowers with disabilities can achieve and maintain greater financial stability and independence without the burden of student loan debt they are unable to repay.
CMS Offers Roadmap for States to Help Connect Children with Complex Medical Conditions to Critical Medicaid Services
The Centers for Medicare & Medicaid Services (CMS) unveiled guidance on a new Medicaid health home benefit for children with medically complex conditions. This new optional benefit helps state Medicaid programs provide Medicaid-eligible children who have medically complex conditions with person-centered care management, care coordination, and patient and family support. CMS anticipates that the new benefit will help these children receive the care they need, including across state lines. More information on the guidance can be found in the August 1, 2022 press release.
Two new updates Related to Sub-Minimum Wage Employment for People with Disabilities Under the Fair Labor Standards Act Section 14(c).
Recent actions by the Biden-Harris Administration will help ensure competitive integrated employment for people with disabilities. Guidance from the Department of Labor and a final rule from the Committee for Purchase from People Who Are Blind or Severely Disabled (US AbilityOne Commission) reminds employers of their responsibilities under federal civil rights laws and encourage employers to pay employees with disabilities fair, equitable wages.
New Guidance on Enforcement of Section 511 of the Rehabilitation Act For 14(c) entities
The US Department of Labor (DOL) has published new guidance on laws governing employers authorized to pay subminimum wages to persons with disabilities under the Fair Labor Standards Act Section 14(c). Section 14(c) provides exemptions to statutory minimum-wage requirements to employers of people with disabilities who receive a special certification from the DoL Wage and Hour Division. However, Section 511 of the Rehabilitation Act imposes limitations and requirements on these employers and certain state entities. Field Assistance Bulletin No. 2022-4 Enforcement of the Rehabilitation Act Section 511 Requirements for Workers with Disabilities in the Section 14(c) Program provides information and clarification on some of these requirements. Building on prior guidance, it further details employer responsibilities under Section 511 related to employment for youth, career counseling, self-advocacy, self-determination, peer mentoring and training opportunities.
New Final Rule on the Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O'Day Act
The AbilityOne Commission released a rule that will prohibit the federal government from buying products from organizations that employ people with disabilities in sub-minimum wage positions. The AbilityOne Program was created under the Javits Wagner O’Day Act to improve employment opportunities for people with disabilities by leveraging the purchasing power of the federal government to buy necessary products from authorized participating Non-Profit Agencies that employ people with disabilities. This new rule stipulates that those Agencies must now pay disabled employees a statutory minimum wage or higher to continue participating in the program, creating more competitive positions for workers with disabilities.
HHS Repeals Rules on Good Guidance Practices and Transparency and Fairness in Civil Administrative Enforcement Actions
In an effort to improve its ability to respond to changing circumstances and promote administrative simplicity, the Department of Health and Human Services has rescinded two rules: The Good Guidance Practices rule finalized in 2020 and the Transparency and Fairness in Civil Administrative Enforcement Actions rule finalized in 2021. This will ensure ACL networks are able to quickly receive important regulatory interpretations, policies and recommendations from agencies across HHS and administrative simplicity in HHS enforcement actions.
The Good Guidance Practices rule created significant new procedural requirements for the Department when issuing guidance like fact sheets, bulletins and letters. Guidance is released when HHS agencies need to respond nimbly to developing circumstances or provide clarification or interpretation that does not require full notice and comment rulemaking (which usually takes months). These changes will allow the Department to remain as efficient and responsive as possible to stakeholders. Only the requirement to store all guidance in a central repository will stay in effect while all other requirements contained in the 2020 rule that effectively delayed issuance of guidance will end.
HHS also rescinded the Transparency and Fairness in Civil Administrative Enforcement Actions final rule which required agencies to follow new procedures for civil enforcement actions and adjudications. Civil enforcement actions allow HHS to enforce and apply the law, for example, with health care providers to protect the privacy of health care consumers HIPAA, in Medicare appeals to ensure beneficiaries receive the care to which they are entitled, and for State Agency survey and certification actions against hospitals and nursing homes who are not meeting quality standards. The process will now revert to its pre-2021 format, alleviating confusion and delay caused by new requirements in the 2021 rule.