Letter to CMS on 1915c Waiver Information Bulletin

October 12, 2012

Cindy Mann
Deputy Administrator
Center for Medicaid, CHIP and Survey and Certification (CMCSC)
7500 Security Boulevard, Room S2-26-12
Baltimore, MD  21244-1850

Dear Ms. Mann:
 
I am writing on behalf of the National Council on Disability (NCD), an independent federal agency that advises the President, Congress, and other federal agencies regarding laws, policies, practices, and procedures affecting people with disabilities.
 
NCD recently issued a report regarding subminimum wage, specifically provision 14(c) of the Fair Labor Standards Act, which permits people with disabilities to be paid less than minimum wage in certain settings.  Within our report, we make several recommendations regarding phasing out 14(c) settings, including developing an infrastructure that supports meaningful, integrated employment at minimum wage or higher. 

NCD is pleased that in September 2011, CMS issued an extremely valuable Informational Bulletin (Bulletin) regarding 1915c waiver employment and employment related services.  In NCD’s report, we call for enhanced monitoring, compliance and enforcement activities regarding state employment support policies to promote alignment with CMS’ Bulletin.
The Bulletin laid out many things - but there are three which are immediately relevant for our work: 

1. The Bulletin clarified that prevocational services should not be viewed as ends unto themselves and must be seen as time-limited (though a specific time-limitation was not provided) services towards the end of integrated employment (see page 2). CMS also instructed states to specify in their core service definitions how states will determine if a service is prevocational or vocational in nature.
2. The Bulletin separates the supported employment service definition into two definitions - individual supported employment and small group supported employment.
3. The Bulletin created a new service definition for career planning that can be used for youth with disabilities, individuals seeking to transition from prevocational (sheltered workshop) services to competitive, integrated employment and individuals in supported employment that want a job that is better or more in line with their interests and talents.

The National Council on Disability would like to request the following:

a) An update on CMS’ follow up activities relating to the September 2011     Informational Bulletin since it was issued one year ago.

b)State responses to the Informational Bulletin to enforce the clarification that prevocational services are not ends unto themselves and must be viewed as time-limited services aimed at leading to integrated employment.

c)State changes to core service definitions to clarify the definition of supported  employment services in individual and small group settings.

d)State use of the new Career Planning core service definition.

e)CMS’ intent to incorporate the provisions of the September 2011 Informational Bulletin in waiver review, renewal and approval processes relating to both the 1915(c) waiver, 1915(b)(c) waivers, 1115 waiver applications and state demonstration applications under the Financial Alignment Initiative (the Dual Eligible demonstrations).

f)Any additional information CMS can provide regarding its current activities and future plans regarding enforcement of the Olmstead decision and the ADA’s integration mandate in the area of employment and employment related services within the Medicaid program.

Thank you for your ongoing commitment to the full integration of people with disabilities. We appreciate your continued efforts to promote integrated employment and look forward to working with you on these issues. Please contact me through NCD’s General Counsel & Director of Policy, Joan Durocher, at jdurocher@ncd.gov. 

Sincerely,
Ari Ne’eman
Chair, Entitlements Committee 

Cc:
Barbara Edwards, Director, Disabled and Elderly Health Programs Group

Eve Hill, Senior Counselor to the Assistant Attorney General
Department of Justice

Sharon Lewis, Commissioner, Administration on Developmental and Intellectual Disabilities Administration for Community Living (ACL)

Henry Claypool, Principal Deputy Administrator
Administration for Community Living

Kathy Martinez, Assistant Secretary
Department of Labor 

Kathleen Greenlee, Administrator, Administration for Community Living, Assistant Secretary for Aging