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Audio (MP3) Listen in New Window Presentation (PDF) Open in new window Handout - CMS-2249-P2: Comments to Proposed Rulemaking Amending Medicaid Regulations to establish Community Setting Requirements (PDF) Open in New Window Handout - Commonly Found Department of Labor Audit Violations (PDF) Open in new window Handout - Wage & Hour Division: Allowance for Non-Productive Time (PDF) Open in New Window Handout - Bills Reauthorizing the Workforce Investment Act (PDF) Open in new window National Policy Issues Affecting Consumer Wages James M. Hammond III Federal Issues Relating to Consumer Wages A. Fair Wages for Workers with Disabilities (HR 3086) I. Authored by Cliff Sterns (R-FL) & Tim Bishop (D-NY) - 82 co-sponsors II. Assigned to House Education & Workforce Committee III. Died - Likely to be re-introduced during this Congress B. Reauthorization of the Rehabilitation Act I. House & Senate bills somewhere different The Workforce Investment Improvement Act of 2012 (H. R. 4297) II. Definition of competitive employment III. Funding for VR services IV. Two committees to hear draft legislation - HELP (Health, Education, Labor & Pensions) and the House Committee on Education and the Workforce. C. Department of Justice Activities relative to Day, Employment and Residential settings. I. Virginia settlement - Developmental Training Centers II. Oregon - A "letter of interest" filed by DOJ D. CMS definition of settings I. Proposed rulemaking - April 15, 2011, CMS published a Notice of Proposed Rulemaking to amend the HCBS regulation. On May 3, 2012, CMS issued a new proposed rule, which supersedes previous proposed rules. II. Current HCBS regulation defines "expanded habilitation" as including prevocational services and supported employment services. III. The proposal also specifies that a HCBS setting may not include any locations that have "qualities of an institutional setting, as determined by the Secretary." IV. INARF, ANCO, ACCESES' responses (see handout) Preparing for a DOL Audit A. FLSA, as amended Regulation 525 I. General Coverage & Section 14(c)/Regulation 525 II. Objective of a section 14(c) investigation/audit III. Commonly Found Violations IV. Recordkeeping requirements Commonly Found Violations Failure to use proper sources when conducting a prevailing wage survey. Failure to properly document the prevailing wage survey and to maintain that documentation. Failure to obtain the experienced rate when conducting prevailing wage surveys. Failure to determine prevailing wage rates at a minimum of once a year. Failure to adjust prevailing wage rates after a minimum wage increase. Failure to adjust piece rates and hourly rates as a result of adjustments/changes to the prevailing wage. Failure to evaluate hourly paid workers with disabilities on a timely basis and/or failure to timely adjust the hourly rates after the employee is evaluated. Payment of a blanket "training wage" or "training rate" rather than basing pay on the commensurate wage (see FOH 64g07(a)(2)b). Using behavioral standards when conducting quantity and/or quality evaluations of hourly paid workers (see FOH 64g05(d)). Rounding errors in time studies and when computing the commensurate wages, for example, where the piece rate multiplied by the standard units per hour fails to yield at least the prevailing wage rate. Inadequate time studies, such as failure to include irregular elements (like equipment failure or depletion of needed supplies).