Senate Labor-HHS Subcommittee Releases Draft Spending Bill

On June 10, the Senate Appropriations Subcommittee on Labor, Health and Human Services, and Education (Labor-HHS) approved a $156.8 billion fiscal year (FY) 2015 spending bill.  Frequently among the more contentious of the 12 annual spending bills, the Labor-HHS measure recommends funding levels for many critical non-defense discretionary programs, including the Older Americans Act (OAA).  

Upon approval by the Subcommittee, next steps for the bill would typically include consideration by the full Appropriations Committee.  However, no hearing date has been set, and with the August recess and November elections quickly approaching, the FY15 appropriations process is increasingly unlikely to yield a standalone FY15 Labor-HHS spending bill. 

In seeming recognition of these time and political constraints, yesterday, the Labor-HHS Subcommittee released the text of its draft bill and accompanying committee report.  This release, more than a month after the Subcommittee approved the measure by voice vote, indicates that the Appropriations Committee will not consider the bill in the near term, and will instead pursue an omnibus or short-term Continuing Resolution (CR) to carry federal program funding into FY15.

Though the Senate is not expected to endorse the Labor-HHS draft bill, the measure could be a placeholder for future negotiations, and it provides valuable insight into the Subcommittee's funding priorities.  In particular, the panel rejects several cuts proposed by the Administration in its FY15 budget request, opting instead to maintain FY14 funding levels for initiatives such as Low Income Home Energy Assistance (LIHEAP) and Community Services Block Grant (CSBG).   The measure would also provide level funding, relative to FY14, for most OAA programs.

Significantly, the bill includes $10 million to implement the Elder Justice Initiative at the Administration for Community Living (ACL). While short of the $25 million requested in the President's FY15 budget, this funding would represent the first direct appropriation for the Elder Justice Act, which was signed into law in 2010.  The committee report reveals the Subcommittee's intent that these funds be used to provide competitive grants to states to test and evaluate innovative approaches to preventing and responding to elder abuse, as well as to support the implementation of a nationwide Adult Protective Services data system, and to both research and evaluate promising violence intervention strategies. 

Citing budget constraints, the Subcommittee does not include funding for several new initiatives requested by the Administration, including the Holocaust Survivors Fund and the White House Conference on Aging (WHCOA).  Nor does the bill seek to maintain current ADRC funding levels, which are set to fall by $10 million in FY15 due to the expiring mandatory dollars authorized by the ACA.

With respect to the WHCOA, the committee report contains language acknowledging ACL's commitment to moving forward with a Conference in FY15, and urges ACL to utilize existing resources with other agencies within HHS, in the White House, and across the federal government in doing so.

The House has yet to unveil a draft of its FY15 Labor-HHS bill.

To download the draft bill and committee report, click here.

To view NASAUD's FY15 budget chart, which has been updated to reflect the Senate's draft bill, please click here.

Courts Split on ACA Subsidies

This week, two U.S. appeals courts issued contradictory decisions on the availability of tax credits for those obtaining coverage through the ACA's health exchanges.  At issue in both cases is whether the subsidies may be offered through both the federal and state exchanges, or if the law limits this assistance to individuals in state-operated exchanges.

Under the ACA, each state is authorized  to set up its own exchange, but is not required to do so.  A state may instead defer to the federal government, which will establish and run the exchange on the state's behalf.  Currently, 16 states and D.C. operate their own exchanges, while the federal government administers the remaining 36.

To help consumers purchase coverage through the exchanges, the ACA directs the Internal Revenue Service (IRS)  to provide premium tax credits to qualifying individuals - those with household incomes between 100 and 400 percent of the federal poverty level who are not otherwise eligible for coverage, such as that offered through an employer, Medicaid, or Medicare.    

The dispute over the availability of these subsidies is due to the law's ambiguous wording, which ACA supporters claim conflicts with its goal of increasing access to affordable health insurance for all Americans. Specifically, the ACA states that tax credits will be paid to low-income consumers, but explicitly references those purchasing coverage in exchanges "established by the state," saying nothing of those run by the federal government.  Were the ACA to be administered thusly, individuals living in states that have federally-facilitated exchanges would not be able to receive premium tax credits, making their coverage less affordable.

Charged with implementing this provision of the ACA, the IRS issued a regulation in May, 2012 interpreting the law to allow all eligible individuals to receive subsidies, regardless of whether they are in an exchange run by a state or the federal government.

Opponents of the ACA quickly questioned the IRS, claiming the law as written clearly directs subsidies to state-based exchanges only.  The law's proponents countered, arguing that Congress fully intended the subsidies to be offered on both state and federal exchanges.

On Tuesday, those conflicting viewpoints played out in neighboring circuit courts.

First, in Halbig v. Burwell, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 against the IRS, finding that the insurance subsidies cannot be awarded through the 36 exchanges run by the federal government.  Hours later, the Fourth Circuit Court in Richmond, Virginia ruled 3-0 in King v. Burwell that the IRS correctly deferred to Congressional intent in making the tax credits available through all exchanges, despite the ACA's unclear wording.

Unsatisfied with the D.C. Circuit's ruling, the Justice Department is seeking an "en banc" review, meaning that the full court would rehear the case if a majority of the judges agree to do so.  Such review is likely to be granted, and the process is expected to take several months. 

In the Fourth Circuit, the plaintiffs may also request an en banc hearing.  However, the Richmond court is unlikely to review the case, in part due to the panel's unanimous ruling.  Alternatively, the plaintiffs may seek to appeal directly to the Supreme Court, but accepting the case would be premature according to the Court's standard practice, which is to delay acting absent an actual circuit court split.  Thus, with further action expected in Halbig, the Supreme Court is unlikely to step in at this time.  Meanwhile, there are two other similar cases pending in courts in Oklahoma and Indiana.

Ultimately, this issue could be decided by the Supreme Court, or it could be resolved at the circuit court level, with no higher review necessary.  Regardless of the eventual outcome, the process itself will take time.  In the interim, the current subsidies will remain in place, available to consumers in federal and state-run exchanges.

The opinion of the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell is available here.

The opinion of the U.S. Court of Appeals for the Fourth Circuit in King v. Burwell is available here. 

Earlier this week, President Obama signed into law the Workforce Innovation and Opportunity Act (WIOA, H.R. 803).  The measure, which reauthorizes and updates the long-expired Workforce Investment Act (WIA, P.L. 105-220), was introduced by Congressional leaders in May, and recently adopted by wide margins in both the House and Senate. WIOA represents a compromise between the SKILLS Act (H.R. 803), which passed the House of Representatives in March 2013, and the Workforce Investment Act of 2013 (S. 1356), which passed the Senate Health, Education, Labor, and Pensions (HELP) Committee last July. 

The largest single source of federal funding for workforce development activities, the reauthorized programs send states nearly $3 billion annually to help adults, displaced workers, and youth obtain skills training and employment; nearly eight million Americans were served in 2010, the last year such data is available. Despite these successes, WIOA has not kept pace with changing economic conditions, and has been unauthorized since 2003. Until now, a divided Congress was unable to reach a compromise that would modernize these crucial workforce programs. This long-awaited agreement, WIOA, eliminates 15 current workforce programs, sets authorized funding levels for formula grant programs, maintains the 15 percent set-aside for governors to address state-determined workforce needs, and incorporates several other provisions that guide state workforce boards and programs.

In addition, WIOA includes the Rehabilitation Act of 1973 (P.L. 93-112), and makes amendments to its programs that include transferring the Independent Living Programs to the Administration for Community Living (ACL), adding transition as a fifth core service, improving State Independent Living Council (SILC) activities, expanding State Plan for Independent Living (SPIL) sign-off to include CIL Directors, and allowing states to choose their 'designated state entity', formerly known as the DSU. WIOA also transfers the National Institute on Disability, Independent Living, and Rehabilitation Research (formerly NIDRR) and the programs authorized under the Assistive Technology Act of 2004 (P.L. 108-364) from the Department of Education to ACL.

Click here to view a statement from Kathy Greenlee, Assistant Secretary for Aging and Administrator of ACL.

Click here to view the full bill text.

Click here to view a one-page summary.

Click here to view the Manager's Statement, which includes a section-by-section summary.

Click here to view a summary of key improvements WIOA makes to current workforce development programs.

Gala Celebration at the HCBS Conference

Click here to register for the conference.

Arthritis Advice Fact Sheet Available

Joint Training and Employment Notice on Employment Networks

The Office of Disability Employment (ODEP) and Employment and Training Administration (ETA) have released a joint Training and Employment Notice (TEN) entitled "Receiving Ticket to Work Payments as an Employment Network." This TEN announces that the Workforce Investment Act (WIA) Employment Network (EN) Payment Agreement has been rescinded by the Social Security Administration (SSA), and provides information on a new process for public workforce entities to become ENs under SSA's Ticket to Work and Self Sufficiency Program.

National Disability Employment Awareness Month Poster Now Available

The 2014 National Disability Employment Awareness Month (NDEAM) poster is now available. NDEAM is held each October and raises awareness about disability employment issues. NDEAM also celebrates the many and varied contributions of America's workers with disabilities. This year's theme is "Expect. Employ. Empower." The poster can be ordered in hard copy and online, along with several other tools that can assist organizations in planning for this year's observance, including sample articles, proclamations and press releases. 

National Disability Coalition Seeks Comments

SSA is seeking participants for an online comment forum on the Disability Decision Process. The online forum is now open for public ideas and comments via IdeaScale through August 15, 2014. This forum will assist SSA develop responsive and effective policies that will empower people with disabilities, minimize their financial hardship, and ensure proper use of Disability Trust funds.

The Disability Coalition plans to meet three times per year, beginning with the first meeting on September 24, 2014.  Prior to each meeting, SSA will host a four-week engagement using IdeaScale to promote stakeholder discussion. After the meetings, SSA will host a two-week post meeting engagement to provide a final opportunity for discussion.