TITLE 2. AGRICULTURE
BOARD OF AGRICULTURE AND CONSUMER SERVICES
Initial Agency Notice
Title of Regulation: 2VAC5 - a regulation regarding home service contract providers currently does not exist.
Statutory Authority: § 59.1-434.4 of the Code of Virginia.
Name of Petitioner: David Sacks.
Nature of Petitioner's Request: Petitioner requests that the Board of Agriculture and Consumer Services promulgate regulations governing the issuance and provision of home service contracts to protect the Virginia consumers who purchase these contracts.
Agency Plan for Disposition of Request: The Board of Agriculture and Consumer Services will consider this request at its next scheduled meeting following the public comment period. This meeting will occur in July 2021. As of April 12, 2021, the board has not established the date for its July 2021 meeting. The agency will update its plan when this meeting date is established.
Public Comment Deadline: May 30, 2021.
Agency Contact: Michael Menefee, Program Manager, Charitable and Regulatory Programs, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3983, or email michael.menefee@vdacs.virginia.gov.
VA.R. Doc. No. PFR21-31; Filed April 12, 2021, 10:46 a.m.
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TITLE 12. HEALTH
STATE BOARD OF HEALTH
Agency Decision
Title of Regulation: 12VAC5-371. Regulations for the Licensure of Nursing Facilities.
Statutory Authority: § 32.1-127 of the Code of Virginia.
Name of Petitioner: Vic Nicholls.
Nature of Petitioner's Request: Virginia regulations must be changed to conform to federal Medicare and Medicaid regulations for long-term care facilities to comply with the clear direction of § 32.1-127 of the Code of Virginia. That law requires that Virginia regulations for hospitals and nursing homes "conform" to "health and safety standards established under provisions of Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act." 42 CFR Part 483. 12VAC5-371, Regulations for the Licensure of Nursing Facilities, contains Virginia licensure regulations for the same facilities. The Virginia licensure regulations not only do not conform to their federal certification counterparts but are weaker across the board. That is, 95% of Virginia NFs and SNFs seek certification for Medicare or Medicaid and thus must comply with the more stringent federal regulations. There is no reason that Virginia regulations for licensing the other 5.0% should be different, and by Virginia law they may not be. A few of the federal regulations allow for waivers in the presence of verified temporary shortages of health personnel or in the presence of equivalent alternative patient safeguards. CMS Medicare SNF waiver authority is re-delegated to the CMS Regional Offices (ROs). Waivers for NFs to provide licensed personnel on a 24-hour basis repose with the states. Life safety code waivers for NFs and Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IIDs) are the responsibility of the states (See 42 CFR 483.470(j)(2)(A)). I recommend that the State Board of Health delete the current contents of 12VAC5-371 and incorporate by reference 42 CFR Part 483 to comply with Virginia law. Incorporation by reference rather that mirroring the language will ensure that they are always in compliance with Virginia law and always up to date. I also recommend that the Board of Nursing review 18VAC90-19-250. Criteria for delegation, and other nursing practice regulations to ensure they conform to the federal rules for nursing homes and hospitals. Similarly, the Department of Medical Assistance Services should review its regulations for conformity. A list of waived and emergency regulations, whether for a single home or for the industry, can be maintained on a web page of the Department of Health.
Agency Decision: Request granted.
Statement of Reason for Decision: The State Health Commissioner, acting on behalf of the State Board of Health, has decided that a standard regulatory action should be initiated.
Agency Contact: Rebekah E. Allen, Senior Policy Analyst, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2102, or email regulatorycomment@vdh.virginia.gov.
VA.R. Doc. No. R20-53; Filed April 7, 2021, 4:51 p.m.
Agency Decision
Title of Regulation: 12VAC5-501. Rules and Regulations Governing the Construction and Maintenance of Migrant Labor Camps.
Statutory Authority: § 32.1-211 of the Virginia Code.
Name of Petitioner: Legal Aid Justice Center.
Nature of Petitioner's Request: "Dear Commissioner Oliver: We write to follow up on our petitions of March 30 and May 6 requesting rulemaking and immediate protection for the Commonwealth's farmworker and migrant worker community during this dire health crisis. We just entered June. We must act now, as many migrant workers are already here, imminently arriving, or slated to arrive in the thousands in the coming months.
The Present and Looming Crisis for Farmworkers in the Commonwealth. As we have noted, migrant workers are plainly essential workers, feeding both Virginians and indeed the world, but they are also highly vulnerable to COVID-19, particularly in light of their lack of access to medical care, health insurance, and personal transportation; their incredibly close-quartered living and working conditions (often working shoulder to shoulder); and their often limited English proficiency (leaving them less likely to have access to testing or treatment). Many workers are also older, adding additional risk factors. Additionally, hundreds of these workers will be located on the Eastern Shore, which has been a hotspot both for Virginia and indeed nationwide. Without further protections, they are left abandoned while they work to feed us.
The Commonwealth has not Enacted Enforceable COVID Protections for Farmworkers. Despite numerous petitions from our office for enforceable regulations and protections for farmworkers, we have not seen anything issued beyond recommendations, many of which are untenable or shift the burden to the workers; none of them can be enforced against an employer who chooses not to follow them. Recommendations plainly do not create enforceable protections for workers. That is: None of the Virginia Department of Health's (VDH's) suggestions are mandatory.
Other States Are Proactively Taking Enforceable Measures to Protect Vulnerable Workers. By way of contrast, other state governments, in recognition of the need to treat essential workers as essential, have been implementing measures to protect farmworkers. As we previously noted, in late April and early May in Oregon, temporary regulations were enacted by the Oregon Occupational Safety and Health Administration to require farms to maintain social distancing during work, break and meal periods, and in employer-provided housing and transportation. Oregon also released $12 million in emergency housing funds, for which a large portion was earmarked for providing safe housing for migrant and seasonable farmworkers. In Wisconsin, in late April, the Wisconsin Department of Health Services issued an emergency order that mandated agricultural employers to take certain steps to prevent the spread of COVID-19.
The Commonwealth Can and Should Do More to Protect Farmworkers. Although some states have indeed begun to take measures to protect their most vulnerable workers, many been derelict in their duties to these workers. Virginia still has the opportunity to be a leader amongst states to enact enforceable protections. Virginia law grants the State Board of Health additional powers that may be used to protect public health during public health emergencies. Governor Northam declared COVID-19 a communicable disease of public health threat in his state-of-emergency order in March 2020, which has been extended. VDH, moreover, has broad authority to issue orders and special regulations needed to protect public health in emergencies. See § 32.1-13 of the Code of Virginia. It has the authority to issue mandatory requirements for employers to protect farmworkers' health, not just recommendations. VDH additionally has broad oversight over migrant labor camps. See §§ 32.1-203 through 32.1-211 of the Code of Virginia. Thus, pursuant to § 32.1-13 of the Code of Virginia, we again request VDH to promulgate regulations for the following:
1. Requiring Additional COVID-19 Plans Prior to Issuance of License for Migrant Housing. VDH must review and license farmworker housing. In addition to its current checklist, VDH should add additional COVID-19 plans prior to the issuance of any license. 1. Those requirements should include, but not be limited to: (a) Ensuring that employer provided migrant housing sleeping arrangements comply with recommended six feet apart social distancing and are highly ventilated. (b) Providing separate living facilities for workers that are over 60 or have underlying health conditions and have these workers work within six feet of other workers. (c) Requiring designated quarantine sleeping areas with separate cooking and bathing facilities for quarantined workers. (d) Requiring proof of sufficient sanitizing and handwashing supplies. (e) Requiring proof of sufficient masks for all quarantined workers who develop COVID-19 symptoms or test positive for COVID-19. (f) Requiring a designated specific individual responsible for ensuring workers comply with health and sanitation requirements. (g) Requiring a designated specific individual to receive reports from workers who may have COVID-19 symptoms and be able to coordinate and transport such workers to obtain medical services. (h) Requiring a designated specific individual whose sole responsibility is to care for quarantined workers and ensure they have sufficient food, that the quarantine is enforced, and that transportation to medical care is provided.
2. Requiring Employers to Inform Workers about COVID-19 Concerns. In addition to informing workers about the terms and conditions of employment when workers are still in their hometowns, all persons who are recruiting workers for agricultural and migrant employment in Virginia in 2020 must provide detailed information about the risks of COVID-19. That information should include how employers will protect their safety while transporting, housing, and employing them in the United States. Prospective workers should also be advised that they will not be required to pay for any cleaning and sanitizing products and the agricultural employer will have an approved health plan for all workers that includes regular sanitizing of the housing and vehicles and other communal areas. All prospective H-2A and H-2B employees should also be informed that they will receive health care at no cost should they develop COVID-19 symptoms and need to be tested, and how they will be quarantined if they develop symptoms or test positive.
3. Requiring Employers to Implement COVID-19 Workplace Protections and Plans. Employers must plan work crew activity to ensure proper distancing to avoid unnecessary transmission of the disease at work. Additionally, most H-2A worker housing is located in rural areas, and employers normally bus workers into small towns to purchase groceries and obtain banking and financial services. Sufficient vehicles must be available such that workers are not sitting directly next to other workers and sufficient ventilation exists. Given the recent hoarding of essential supplies and food, it is possible that small grocery stores could run out of such items and leave workers or members of the community vulnerable. Moreover, a busload of 50 to 100 or so H-2 workers all entering stores at busy times for local shoppers could drastically increase the likelihood of spreading COVID-19. Therefore, advance arrangements must be made with these services to avoid creating a scarcity of essential food and supplies at grocery stores and to protect against the spread of the virus in these small communities already stressed by the impacts of this global pandemic.
4. Disallowing Terminations Based on COVID-19. Under no circumstances should growers or their agents be allowed to terminate and send home H-2A and H-2B workers who are sick with or have been exposed to COVID-19.
5. Disallowing Evictions from Employer Housing. H-2A employers (and many H-2B employers) control workers' housing, and have, in the past, revoked workers' access to that housing on short notice. No H-2A or H-2B workers should be evicted or in any way removed from their housing without prior review and approval of the Department of Health (H-2A) and written notification provided to the Mexican Consulate.
6. Ensuring Medical Coverage and Resources for Migrant Workers. All medical treatment and costs for all COVID-19 related treatment and medical expenses should be covered by the Commonwealth of Virginia, and no worker should be sent home with any COVID-19 symptoms. In order to help stop the spread of COVID-19, all H-2A and H-2B workers need to know their medical treatment and expenses related to COVID-19 will be fully covered during the time they are working and residing in Virginia. This should include assurances that any worker who is tested for COVID-19 will have those costs covered even if the result is negative for COVID-19. A designated hotline in Spanish capable of receiving information or messages 24 hours a day should be established within the Department of Health to allow workers to report potential symptoms and request medical assistance, and the Departments should have ready access to COVID-19 testing. Workers' compensation coverage needs to cover H-2A and H-2B workers who contract COVID-19 or must be quarantined due to the virus. These workers would not be exposed to the virus if they had not come to Virginia to perform migrant work.
Conclusion. Legal Aid Justice Center reiterates its petition for prompt rulemaking and emergency, enforceable measures to ensure the protection of all farmworkers, their families and communities, and the residents of the Commonwealth of Virginia and asks the Commonwealth to support our most vulnerable workers in these harrowing times."
Agency Decision: Request denied.
Statement of Reason for Decision: This petition for rulemaking was considered by the State Health Commissioner on April 8, 2021. After a review of the information provided, wherein no comments were received, the State Health Commissioner on behalf of the State Board of Health responds as follows:
Response to Section 1: Proactively, the Virginia Department of Health has coordinated with both private and state agency stakeholders to convey best practices and guidance to mitigate the spread of COVID-19 within agricultural worker communities. This guidance encompasses the concerns outlined in section 1 of the petition; a sample of available guidance is listed.
• Meat and Poultry Industry Guidance (VDH) (3/12/2021)
• Summary of Options for Managing COVID-19 Exposed, Asymptomatic Meat and Poultry Plant Workers (3/12/2021)
• Poultry Plant Workers Tested for COVID-19 (VDH) (3/12/2021)
• Poultry Employer Toolkit for COVID-19 (VDH): English, Spanish, Korean, Mandarin Chinese, Arabic, Haitian Creole
• Meat and Poultry Industry Guidance (CDC)
• Protecting Seafood Processing Workers from COVID-19 (CDC)
• Guidance for Meat and Seafood Processors (CDC)
• Interim Guidance for Migrant Labor Camp Operators and Employees Regarding COVID-19
Response to Sections 2-3: In January of 2021, the Virginia Department of Labor and Industry finalized emergency standards to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19. It appears these standards address the concerns of sections 2 and 3 of the petition.
Response to Sections 4-6: The Virginia Department of Health does not hold the statutory or regulatory authority to administer or enforce the rules regarding termination of employment or eviction of H-2A or H-2B workers. In regards to treatment and costs associated with COVID-19 treatment, the Virginia Department of Health has embarked on a campaign to ensure equitable access to COVID-19 testing and vaccines for all Virginians while focusing on vulnerable populations, such as our agriculture workers. Costs associated with COVID-19 testing or vaccines are typically covered by state or federal funds where services are rendered at no cost. It appears the items listed in sections 4-6 fall outside of the scope of authority of the Virginia Department of Health.
Agency Contact: Kristin Marie Clay, Senior Policy Analyst, Virginia Department of Health, 109 Governor Street, 5th Floor, Richmond, VA 23219, telephone (804) 864-7474, or email kristin.clay@vdh.virginia.gov.
VA.R. Doc. No. PFR21-17; Filed April 8, 2021, 2:21 p.m.
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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES
COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM
Initial Agency Notice
Title of Regulation: 24VAC35-30. VASAP Case Management Policy and Procedure Manual.
Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.
Name of Petitioner: Cynthia Hites.
Nature of Petitioner's Request: "I, Cynthia Hites, a citizen of the Commonwealth of Virginia, pursuant to § 2.2-4007 of the Code of Virginia, do humbly submit this petition.
For years VASAP has been flying blind regarding the number of false positive interlock readings being suffered by their clients.
Unexplained instances of failed interlock readings have classically been attributed to a glitch, or malfunction in an individual device, instead of VASAP admitting the issue is systemic in nature.
Utilizing the electrochemical fuel cell as sensor technology for interlock devices means a very high number of failed readings are expected due to sources other than consumed ethanol (C2H6O). ASAP has chosen to adopt this vastly inferior technology and has also grossly misapplied it.
In order to evaluate the full scope of effects wrought by using the fuel cell, it is now imperative the VASAP agency strive to quantify how this choice impacts the efficacy of its Interlock Program.
Certain metrics need to be consistently and continually obtained for review in order to properly evaluate the VASAP IID program.
We need to know how may IIDs are installed, and how many failed readings (>.02) occur per device. Then, out of those fails, how many are deemed "violations," and of those "violations" the number of revocation hearings set, the number of clients denied due process by having their interlock time altered by ASAP, and the number of subsequent convictions.
It was estimated during a recent quarterly VASAP meeting that there are 200 failed IID readings per day. If this holds true, and if there are 7000 interlocks installed at any given time, then statistically, after 35 days, every single client has one failed reading; after 70 days that jumps to two failed readings per client, and these numbers are unacceptable.
A high number of failed interlock readings due to high BrAc would clearly be indicative of a failed program. Either the IID machines are detecting non-consumed ethanol at an unacceptably high rate, indicating systemic failure, or despite their installation, people in large numbers are deciding to attempt drunk driving, indicating systemic failure.
For VASAP to continue to neglect the obscenely high number of false positives and operate as if interlocks were reasonably accurate, would be irresponsible and highly suspect.
VASAP owes the citizens of Virginia a level of interlock accountability that, to this date, has not been realized. Without obtaining this empirical data, VASAP can continue to claim program integrity and assert purely anecdotal evidence that the interlock devices are accurate.
I would be very willing to wager that after the number of Virginia's false positives is ascertained, the interlock devices will lose all of their assumed credibility.
Employing any language the agency sees fit, I propose that the following amendment of interlock data acquisition be made to either 24VAC35-30-150, included in the annual VASAP Executive Summary, and/or included in an otherwise appropriate agency document, to be publicly disseminated on a yearly basis.
To be broken down by each individual ASAP, and by case worker, we need to know:
1) Number of IIDs installed
2) Number of failed IID readings per machine (per client).
Of all the interlock fails, further disseminated by:
(A) Number of men, and number of women
(B) Number of fails occurring upon rolling retest
(C) Number of those clients with readings deemed "violations."
a) Number of clients with "violations" being given the benefit of a revocation hearing.
b) Number of clients with "violations" being given additional interlock time without being afforded due process.
(D) Number of these revocation hearings resulting in conviction.
Keeping track of these statistics will serve a vital role in affirming program integrity.
Most humbly,
Cynthia Hites"
Agency Plan for Disposition of Request: This petition will be considered by the Commission on Virginia Alcohol Safety Action Program at its quarterly meeting on September 17, 2021.
Public Comment Deadline: September 10, 2021.
Agency Contact: Richard L. Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, or email richard.foy@vasap.virginia.gov.
VA.R. Doc. No. PFR21-32; Filed April 21, 2021, 1:16 p.m.