TITLE 12. HEALTH

DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

Fast-Track Regulation

Title of Regulation: 12VAC30-130. Amount, Duration and Scope of Selected Services (adding 12VAC30-130-3040, 12VAC30-130-3050, 12VAC30-130-3060).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: March 26, 2025.

Effective Date: April 10, 2025.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance. Section 32.1-324 of the Code of Virginia authorizes the director of the Department of Medical Assistance Services (DMAS) to administer and amend the Plan for Medical Assistance according to the board's requirements.

Purpose: The purpose of this action is to provide a paid sick leave benefit for consumer-directed attendants. This benefit will make it easier for families to find care providers for individuals who need these services and will benefit the health and welfare of the public by providing sick leave for individuals providing care to vulnerable Medicaid members. This benefit will enhance the health and welfare of the public by reducing the spread of illness while allowing the attendants to take paid sick leave when needed.

Rationale for Using Fast-Track Rulemaking Process: This action is expected to be noncontroversial because the amendments outline a benefit for consumer-directed (CD) attendants, who previously have received no benefits providing their services to eligible individuals. The proposed methods and requirements for determination and calculation in the regulation both adhere to basic guidelines outlined in Chapter 449 of 2021 Acts of Assembly, Special Session I, and are not expected to be burdensome to the population of CD attendants interested in receiving the benefit.

Substance: This action provides Medicaid personal care attendants with one hour of sick leave for every 30 hours worked with a maximum of 40 hours per year.

Issues: This action creates no disadvantages to the public, the agency, the Commonwealth, or the regulated community. The advantages of this action to the public and the Commonwealth are that the action aligns the regulation with federal and state requirements and codifies the agency's procedures and requirements as it relates to how CD attendants become eligible for the paid sick leave benefit, how the eligibility is calculated, and when and how the paid sick leave benefit is issued by the Fiscal or employer agents.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 449 of the 2021 Special Session I Acts of the Assembly², the Director of the Department of Medical Assistance Services (DMAS), acting on behalf of the State Board of Medical Assistance Services (board), proposes to incorporate in the regulation paid sick leave benefits for Medicaid consumer-directed (CD) attendants that were implemented in November 2021.

Background. This regulatory action incorporates in the regulatory text the requirements of Article 2.1 of the Virginia Minimum Wage Act (§40.1-33.3 et seq. of the Code of Virginia), which passed during the 2021 General Assembly.³ The legislation provided paid sick leave benefits to home health workers, which the legislation defines as individuals who provide "personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services." This definition refers to attendants in Medicaid's consumer directed model of care. These attendants provide personal care, respite, or companion services to Medicaid-eligible individuals in the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program, Medicaid Works program, and three of Virginia's four § 1915(c) Home-and-Community-Based Services Waivers: Community Living, Family and Individual Supports, and Commonwealth Coordinated Care Plus. The parameters of the paid sick leave benefit eventually adopted by DMAS follow the guidelines provided in the legislation. As such, it is available to attendants who work "on average at least 20 hours per week or 90 hours per month." Attendants accrue one hour of sick leave for every 30 hours of work, up to a total of 40 hours in a given fiscal year. No more than 40 hours of unused sick leave can be rolled over to the next fiscal year. Eligibility for sick leave is determined by the fiscal-employer agent (FEA) of the Medicaid member. Under this arrangement, the Medicaid member is the employer referred to in the legislation,⁴ and the FEA is a vendor who serves as the employer's agent under the Internal Revenue Code as an employer agent on behalf of the employer.⁵ The FEAs already provide payroll and tax processing for the consumer-directed model for both fee-for-service and managed care members. The FEA looks at the hours worked in every quarter and if the attendant is deemed eligible, the attendant is assumed to be eligible for the rest of the fiscal year. If an attendant is not eligible in one quarter, the FEA keeps checking the eligibility status in the following quarter.

Estimated Benefits and Costs: During the 2021 legislative session, the fiscal impact of this benefit was estimated to be $3,443,865 in state general funds and an additional $3,443,865 in federal matching funds, covering approximately 30,390 eligible attendants in a given year. Item 313 BBBBBB of the 2021 Appropriation Act provided the authority and funds to implement this new benefit, and the federal Centers for Medicare and Medicaid Services approved this change on October 6, 2021. In November 2021, DMAS started determining eligibility and providing sick leave. Therefore the main impact of this regulatory action is to incorporate the sick leave benefit for Medicaid consumer-directed attendants into the regulatory text. The legislation itself however clearly benefits the attendants who accrue sick leave by providing compensation for the times they are sick and cannot work, thereby enabling them to rest and recover. The Medicaid members served by these attendants are also expected to benefit in terms of their attendants being less likely to come in contact with them when sick. When sick, attendants are not likely to be as productive and their sickness may be contagious. One half of the total costs of this benefit is absorbed by the general fund and the remaining half is provided by the federal government. While general fund dollars represent an expenditure of state funds, which could potentially be used for other purposes, the federal funds are a net injection into the Commonwealth's economy. In other words, if it was not for this purpose, the federal funds would not be available. Thus, the additional federal funds should help expand Virginia's economy.

Businesses and Other Entities Affected. This regulation applies to approximately 30,390 consumer-directed attendants eligible for the paid sick leave benefit. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. The main impact of this action is to codify DMAS procedures and requirements in the regulation as they relate to how consumer-directed attendants become eligible for the paid sick leave benefit, how the eligibility is calculated, and when and how the paid sick leave benefit is issued by the FEAs. Thus, no adverse impact is indicated.

Small Businesses⁷ Affected.⁸ The proposed changes do not appear to adversely affect small businesses.

Localities⁹ Affected.¹⁰ The proposed amendments apply the same in all of the localities of the Commonwealth and do not create costs for local government.

Projected Impact on Employment. The provision of the sick leave as a result of the legislation would increase the demand for labor, because another attendant would be needed to cover for those attendants who use the sick leave benefit. However, the regulation itself is not expected to impact employment because it is implementing pre-existing statutory provisions and the program is already in effect.

Effects on the Use and Value of Private Property. The proposed regulation is not expected to affect the use and value of private property nor real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0449.

³ Ibid.

⁴ See https://vamedicaid.dmas.virginia.gov/sites/default/files/2023-07/CCC Plus Appendix C (updated 9.1.21)_Final.pdf.

⁵ See https://www.irs.gov/government-entities/federal-state-local-governments/third-party-payer-arrangements-section-3504-agents.

⁶ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁸ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁰ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Medical Assistance Services has reviewed the economic impact analysis prepared by the Department of Planning and Budget and raises no issues with this analysis.

Summary:

Pursuant to Chapter 449 of 2021 Acts of Assembly, Special Session I, the amendments provide paid sick leave benefits to attendants who provide personal care, respite care, or companion services to Medicaid-eligible individuals through the consumer-directed model of service.

Part XVIII

Consumer-Directed Attendants

12VAC30-130-3040. Definitions.

The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise:

"Consumer-directed attendant" or "CD attendant" means a person who provides, via the consumer-directed model of services, personal care, companion services, or respite care, or any combination of these three services. "Consumer-directed" or "CD" means the model of service delivery under which the individual enrolled in the waiver or benefit program or the individual's employer of record, as appropriate, is responsible for hiring, training, supervising, and firing of the attendants who render the services that are reimbursed by DMAS.

"DMAS" means the Department of Medical Assistance Services.

"Employer of record" or "EOR" means the person who performs the functions of the employer in the consumer-directed model of service delivery. The EOR may be the individual enrolled in the waiver or benefit program, a family member, caregiver, or another person.

"Fiscal or employer agent" or "FEA" means a state agency or other entity as determined by DMAS that meets the requirements of 42 CFR 441.484.

12VAC30-130-3050. Scope.

A. The paid sick leave benefit for consumer-directed attendants applies to any CD attendant who meets the eligibility requirements at 12VAC30-130-3060 A 2, consistent with the requirements of Article 2.1 (§ 40.1-33.3 et seq.) of Chapter 3 of Title 40.1 of the Code of Virginia.

B. The paid sick leave benefit shall only apply to CD attendants who perform consumer-directed services in accordance with the requirements under the following programs or waivers:

1. Early Periodic Screening, Diagnostic, and Treatment benefit program (12VAC30-50-130);

2. Medicaid Works benefit program (12VAC30-60-200);

3. Commonwealth Coordinated Care Plus Waiver (Part X (12VAC30-120-900 et seq.) of 12VAC30-120);

4. Community Living Waiver (12VAC30-122-250); or

5. Family and Individual Support Waiver (12VAC30-122-260).

12VAC30-130-3060. Eligibility and Use.

A. The FEA shall have the responsibility of determining eligibility for paid sick leave each state fiscal year quarter.

1. A CD attendant shall be determined eligible to earn paid sick leave based on a quarterly evaluation of the CD attendant's hours worked for the EOR.

2. The FEA shall calculate the average number of hours the CD attendant worked for the EOR during the quarter. CD attendants who work an average of 20 hours per week or at least 90 hours per month for the quarter shall be eligible to earn paid sick leave.

3. Work shift entries shall be submitted by the CD attendant and approved by the EOR within 20 days of the end of the preceding quarter in order to be included in the eligibility determination.

B. The FEA shall have the responsibility of documenting the accrual and use of sick leave hours by the CD attendant. The benefit shall be available to eligible CD attendants no later than the first day of the second month after the quarter has concluded.

1. Once a CD attendant has been determined eligible to accrue the paid sick leave benefit, the CD attendant's eligibility shall remain in effect for the duration of the CD attendant's employment.

2. Eligible CD attendants shall accrue the paid sick leave benefit in accordance with § 40.1-33.4 of the Code of Virginia at the rate of one hour for every 30 hours worked.

3. No eligible CD attendant shall accrue more than 40 hours of paid sick leave benefit in a state fiscal year. Any amount of paid sick leave benefit carried over from the previous state fiscal year shall not count toward accrual in the current state fiscal year.

4. In accordance with § 40.1-33.4 of the Code of Virginia, any unused paid sick leave benefit shall be carried over to the state fiscal year following the state fiscal year in which it was accrued. No unused paid sick leave benefit shall be carried over for more than one state fiscal year.

5. Any CD attendant who qualified and accrued a paid sick leave benefit in the immediately prior fiscal year shall be entitled to use the benefit in accordance with Article 2.1 (§ 40.1-33.3 et seq.) of Chapter 3 of Title 40.1 of the Code of Virginia, even if the CD attendant is not eligible for the benefit in the current state fiscal year.

6. Should a CD attendant be determined ineligible to accrue the benefit, the FEA shall reevaluate the CD attendant's eligibility upon the conclusion of the following quarter.

C. No use of this paid sick leave benefit by an eligible CD attendant shall be counted as hours worked for purposes of the following:

1. Calculation for overtime pay;

2. Accrual of additional paid sick leave benefit hours; or

3. Determination of future eligibility for this paid sick leave benefit.

D. Allowable uses of this paid sick leave benefit by a CD attendant shall be in accordance with § 40.1-33.5 of the Code of Virginia.

1. The CD attendant shall not be required to identify a replacement for any hours in which the CD attendant uses this paid sick leave benefit. When a CD attendant uses the paid sick leave benefit, it shall be the responsibility of the EOR to utilize the documented backup plan for the individual who receives CD services.

2. The EOR shall not require the CD attendant to make up any hours missed providing CD services for hours that the CD attendant used paid sick leave.

E. Pursuant to § 40.1-33.6 of the Code of Virginia, the EOR shall not engage in any retaliatory action because of an eligible CD attendant's request or use of the paid sick leave benefit or because of an allegation that the EOR has violated a provision of Article 2.1 (§ 40.1-33.3 et seq.) of Chapter 3 of Title 40.1 of the Code of Virginia.

F. No sick leave balances accrued during employment shall be paid out to the attendant at termination.