Policy Round-Up: Voting Rights, Overtime Rule, HCBS Quality Resources, and More

May 28, 2024

Vicki Gottlich, Deputy Administrator for Policy and Evaluation

In this Policy Round-Up:

Updated guidance on voting rights of people with disabilities from DOJ.
Final DOL rule extends overtime pay, with implications for HCBS.
New HCBS quality improvement resources from CMS.
Input needed:
- Wireless Emergency Alerts Template in languages including ASL (Comments due 7/12).
  Census Bureau proposed testing of questions regarding sexual orientation and gender identity (Comments due 5/29).
- Draft guidance for second cycle of the Medicare Drug Price Negotiation Program (Comments due 7/2).
- HUD proposed rule addressing housing for people with criminal records (Comments due 6/10).
ACF finalizes rule expanding public agencies’ ability to fund legal representation on behalf of families involved in child welfare.
OCR issues new rule to support reproductive health care privacy.
CMS fact sheet on potential Medicare Part B coverage of PrEP therapy to prevent HIV.
CMS finalizes policies to increase access to health coverage for DACA recipients.
EEOC releases workplace guidance to prevent harassment.

Updated Guidance on Voting Rights of People With Disabilities From DOJ

The U.S. Department of Justice (DOJ) has released updated guidance to states, local jurisdictions, election officials, poll workers, and voters on how the Americans with Disabilities Act (ADA) and other federal laws help ensure fairness in the voting process for people with disabilities.

The guidance covers a number of topics, including:

Federal laws protecting the right to vote for people with disabilities.
Accessibility of voter registration.
Accessibility of polling places.
Obligation of state and local governments and election officials to ensure that their policies, procedures, or practices do not interfere with or prohibit people from registering to vote or voting based on their disability.
Rights to assistance in the voting process.
Accessible voting systems and effective communication around voting.
Training for election staff and volunteers.

The guidance also provides additional resources on how the ADA applies to voting, where to learn more about federal voting rights laws, and how to report complaints of possible violations of federal voting rights laws.

Final DOL Rule Extends Overtime Pay With Implications for HCBS

The U.S. Department of Labor (DOL) released a final rule that updates and revises regulations under the Fair Labor Standards Act that implement the exemption from minimum wage and overtime pay requirements for executive, administrative, and professional employees.

The rule increases the salary and compensation threshold for workers who qualify as executive, administrative, and professional employees exempt from overtime pay. The rule responds to commenters who raised concerns about the rule’s application to supervisors who work for Medicaid-funded home and community-based services (HCBS) providers — and often fill in for shifts of direct care professionals — as well as the need to coordinate with state Medicaid agencies on rates.

The rule goes into effect on July 1, 2024, with the new salary and compensation levels going into effect on January 1, 2025. Future updates to the salary and compensation levels will occur every three years.

More information on the rule is available on DOL’s website.

New HCBS Quality Improvement Resources From CMS

The Centers for Medicare & Medicaid Services (CMS) released three resources to promote quality improvement efforts within Medicaid-funded HCBS. The resources are:

Input Needed: Wireless Emergency Alerts Template in Languages Including ASL

The Federal Communications Commission (FCC) is seeking comments on emergency message templates for multilingual Wireless Emergency Alerts (WEA), which the FCC proposes to provide in English, the 13 most commonly spoken languages in the United States, and American Sign Language (ASL).

In October, the FCC adopted rules to require participating wireless providers to make certain WEA available in these languages and to allow consumers to opt-in to receive them in ASL. Currently, WEAs are only available in English and Spanish. Providing WEAs in additional languages will help ensure these messages are accessible to as many people as possible.

For the video messages signed in ASL, the FCC seeks comment on the effectiveness of the ASL videos, as well as the format and production of the ASL videos. The proposed templates for ASL are not final and are presented solely for the purpose of seeking comment on what the final templates should be.

Comments on the 18 proposed WEA emergency message templates can be submitted online or by mail until June 12, and the public may respond to submitted comments until July 12. All filings must reference PS Docket Nos. 15-91 and 15-94. People with disabilities who need assistance to file comments online may request assistance by email.

Input Needed: Census Bureau Proposed Testing of Questions Regarding Sexual Orientation and Gender Identity

The U.S. Census Bureau is requesting feedback on the proposed testing of sexual orientation and gender identity questions on the American Community Survey (ACS). The test would begin this summer and continue into next year. Comments will assist the Census Bureau in making final decisions regarding the upcoming test.

The ACS is an ongoing survey that collects detailed housing and socioeconomic data. Before adding questions to the ACS, the Census Bureau tests questions among a subset of ACS respondents to evaluate the quality of the data collected from the questions.

Comments can be submitted online until May 29.

Input Needed: Draft Guidance for Second Cycle of the Medicare Drug Price Negotiation Program

CMS is seeking feedback on draft guidance regarding the second cycle of negotiations under the Medicare Drug Price Negotiation Program. As we’ve discussed before, this program could reduce drug costs for some older people and people with disabilities who have Medicare coverage.

The negotiations on the first set of 10 prescription drugs are currently underway. For this second cycle of negotiations, CMS will select up to 15 additional drugs for negotiation, which will be announced by February 1, 2025. Any negotiated maximum fair prices for this second set of drugs will be effective starting January 1, 2027.

Comments can be submitted by email until July 2. Comments should use the subject line “Medicare Drug Price Negotiation Program Draft Guidance.” For more information, check out this fact sheet.

Input Needed: HUD Proposed Rule Addressing Housing for People With Criminal Records

The U.S. Department of Housing and Urban Development (HUD) issued a proposed rule that would ensure having a criminal record would not automatically or categorically deny access to, or terminate someone from, HUD-assisted housing — including public housing, housing choice vouchers, and HUD multifamily housing.

Instead, public housing agencies (PHAs) and owners of HUD-assisted multifamily housing would be required, when making an admissions decision, to use an individualized assessment that only considers criminal records relevant to endangering health and safety of staff and residents and also would be required to provide full consideration to mitigating factors and circumstances.

When a PHA or owner is considering denying or terminating assistance, or evicting someone based on that person’s criminal record, the proposed rule would require PHAs and owners to consider the following set of mitigating factors:

The facts or circumstances surrounding the criminal conduct.
The age of the person at the time of the conduct.
Evidence that the person has maintained a good tenant history before and/or after the criminal conviction or the criminal conduct.
Evidence of rehabilitation efforts.

HUD is particularly interested in comments on whether there are other mitigating factors that should be considered and whether HUD should define these mitigating factors in greater detail in regulation or guidance.

Comments can be submitted online or by mail until June 10.

ACF Finalizes Rule Expanding Public Agencies’ Ability to Fund Legal Representation on Behalf of Families Involved in Child Welfare

The U.S. Department of Health and Human Services (HHS) Administration for Children and Families (ACF) announced a new final rule that expands access to legal representation for children in foster care, parents, and kinship caregivers by allowing state and tribal child welfare agencies to use federal funds to provide legal representation.

Under the new rule (which we discussed when it was proposed), a child welfare agency can use federal funds to help provide access to an attorney for a family at risk of entering the foster care system during civil legal proceedings that can assist with securing stable housing, securing public benefits, or establishing custody or guardianship to prevent the unnecessary removal of a child from the home.

Children and parents with disabilities are overrepresented in the foster care system. For example, within the foster care system, children with disabilities are institutionalized at higher rates and for longer periods of time than children without disabilities, and children of parents with disabilities are more likely to be placed outside of the home. Providing access to legal representation can help provide these families with the supports they need and keep these families together.

OCR Issues New Rule To Support Reproductive Health Care Privacy

HHS’ Office for Civil Rights (OCR) has released a final rule that prohibits the disclosure of protected health information (PHI) related to lawful reproductive health care in certain circumstances. The final rule prohibits the use or disclosure of PHI to identify, investigate, or hold liable individuals, health care providers, or others who seek, obtain, provide, or facilitate lawful reproductive health care.

The rule will help better protect patient confidentiality and prevent medical records from being used against people who are providing or obtaining lawful reproductive health care. The rule goes into effect June 25, 2024. Regulated health care providers, health plans, and clearinghouses must be in compliance by December 23, 2024.

CMS Fact Sheet on Potential Medicare Part B Coverage of PrEP Therapy To Prevent HIV

CMS released a fact sheet to encourage pharmacies and other interested parties to prepare for a potential national coverage determination (NCD) for pre-exposure prophylaxis (PrEP) using antiretroviral drugs to prevent HIV.

While CMS is not announcing any coverage changes at this time, the agency issued the fact sheet to share as much information as possible before issuing a NCD to avoid any possible disruptions for beneficiaries. The fact sheet provides details on how people with Medicare would be able to get medications to prevent HIV without cost-sharing (i.e., deductibles or co-pays under Part B) if the proposed decision is finalized.

According to the CDC, PrEP is highly effective for preventing HIV when taken as prescribed.

CMS Finalizes Policies To Increase Access to Health Coverage for DACA Recipients

CMS finalized a rule (which we discussed when it was proposed) to expand eligibility for health coverage to Deferred Action for Childhood Arrivals (DACA) recipients and allow otherwise eligible DACA recipients to receive financial assistance that helps pay for premiums and reduces cost-sharing for Marketplace plans.

DACA allows undocumented people who were brought to the United States as children to remain here and to work legally. Until now, DACA recipients have been ineligible for many federal programs, including programs providing health coverage.

Under this rule, DACA recipients will now be able to enroll in a qualified health plan (QHP) through the Health Insurance Marketplace or a Basic Health Program (BHP). While the proposed rule had included changes to allow for enrollment in Medicaid and CHIP, those changes are not being finalized at this time.

The rule goes into effect on November 1, 2024. For more information, check out this fact sheet.

EEOC Releases Workplace Guidance To Prevent Harassment

The U.S. Equal Employment Opportunity Commission (EEOC) has published guidance on harassment in the workplace that outlines the legal standards and employer liability that apply to harassment claims under the federal employment discrimination laws. These laws protect covered employees from harassment based on race, color, religion, sex (including pregnancy, childbirth, or related medical conditions; sexual orientation; and gender identity), national origin, disability, age (40 or older) or genetic information.

The guidance includes over 70 examples illustrating unlawful harassment, including situations involving older workers and workers with disabilities. Along with the final guidance, the EEOC issued several educational resources, including a "Summary of Key Provisions" document, a document for employees, and a fact sheet for small businesses.