In reference to the Notice of Intended Regulatory Action, VAPCA would like to make the following three conceptual recommendations.

 

First, new omnibus waiver regulations should be geared to maximize use of person-centered language and principles that enable all consumers who are eligible to have access to consumer directed services. Efforts to streamline the current regulations should consider carefully whether any changes will interfere with consumer choice or otherwise reduce access to attendant services. Attendant shortages are a severe problem in the Commonwealth and efforts should be make to improve recruitment and retention of personal care assistants.

 

Second, VAPCA  recommends that any changes to the existing background check and training requirements of personal care attendants consider the impact on consumers’ access to attendants. Where possible, those drafting the new regulations should be conscious to avoid changes that might inadvertently exclude providers due to unnecessary screening such as language or training requirements that are prohibitive or exclusionary.  Consideration should also be given to grandfathering those attendants who are currently working in the programs for consumers and have met all existing requirements.

 

Likewise, VAPCA recommends that those attendants who seek additional training in personal care be encouraged to do so by coordinating any existing and new attendant care training requirements so that attendants can work for consumers in the four waivers that currently allow consumer directed attendant care.

 

Third, VAPCA is concerned about the lack of clear definitions for companion care services in the current regulations may be resulting in unfair treatment of attendants in the Commonwealth and may place some providers at risk of violating the Fair Labor Standards Act (FLSA). In reference to any proposed changes in the omnibus regulations that might affect the definition of companionship care or companion services, the Commonwealth should attend to the existing federal regulations concerning the precise definition of companionship services for purposes of wage and hour law under the Fair Labor Standards Act (FLSA). Those services meeting those requirements should be explicitly named and not subject to confusing or conflicting guidelines as currently exist in the regulations. Any omnibus waiver regulations should specify the more narrow circumstances in which companion care is permitted distinct from personal care services. Employers seeking an exemption from the FLSA should be reminded that there are record keeping requirements that exist under federal law that require employers to carefully distinguish between those services that are personal care related and those that are strictly defined as companion care. Finally, to encourage administrative simplicity for purposes of the FLSA, the Commonwealth’s omnibus regulations should specify that any attendant or home care worker providing both personal care and companion care should be treated as a personal care worker. 

 

VAPCA appreciates the opportunity to comment on the Department's proposal to draft omnibus regulations and would be happy to answer any questions from staff or other interested parties.