What is a non-enforcement policy?
A non-enforcement policy is a non-binding internal policy announcement
- May be revised, expanded, contracted or revoked without going through notice and comment process
- Issued concurrently with the final rule, but not part of the final rule
- Scope is limited to Department of Labor’s enforcement authority
What does the DOL Overtime Rule Non-Enforcement Policy say?
- From December 1, 2016 to March 17, 2019, DOL will not enforce the updated salary threshold of $913/week for a limited subset of employers.
- All other provisions will be enforced, including the previous $455/week threshold.
Who does the DOL Overtime Rule Non-Enforcement Policy cover?
ONLY providers of Medicaid-funded services for individuals with IDD in residential homes and facilities with 15 beds or fewer
- Does include ICFs
- Does apply to both for-profits and non-profits
- Does not apply to other operations of the same provider (i.e. day program, vocational rehabilitation, transportation)
What are the intent and purpose of the policy?
To support the federal government’s efforts to encourage community integration
- End date corresponds to deadline for states to complete transitioning under CMS’ HCBS rule
- To allow the Department to devote its time and resources to providing assistance to these providers and allow time to work with state legislatures and HHS on implementation of final rule
What does the policy do?
DOL will not engage in enforcement activities against covered entities during this period. Enforcement activities include:
- Conducting investigations prompted by worker complaints
- Supervising settlements
- Filing lawsuits regarding violations
- DOL will provide technical assistance to employers during this period
- May shield states from damages due to sovereign immunity
What it does not do
- Shield providers from private lawsuits
- Prohibit states from enforcing state law in states with higher standards than the FLSA
- Obviate contractual obligations to comply with federal and state regulations
ANCOR is currently seeking further guidance from DOL on the non-enforcement policy. INARF will continue to provide members with information as it is received.
INARF has also learned that the National Association of Medicaid Directors, the National Association of State Mental Health Program Directors, the National Association of State Directors of Developmental Disabilities Services, and the National Association of States United for Aging and Disabilities have sent a letter to DOL Secretary Perez expressing their concerns about the DOL Overtime Rule.
We hope this information is helpful. If you have questions, please contact the INARF office.