Webinar, Thursday, May 12, 12noon
Registration required: Webinar on CD 40 Limit (https://attendee.gotowebinar.com/register/8030345120234988546
After registering, you will receive a confirmation email containing information about joining the webinar. The webinar will cover the history of this issue and advocacy strategies.
Survey to Gather Information on CD 40 Hour Cap
The Virginia Association of Centers for Independent Living has a survey to gather information about the
potential impact of the 40-hour cap. Results of the survey will be used to formulate advocacy strategies.
Participate in the survey at Survey CD 40 (https://www.surveymonkey.com/r/CD40)
Medicaid Consumer-Directed (CD) Assistants to Be Limited to 40 Hours a Week
In 2013, federal Department of Labor regulations were amended to require overtime pay to certain
types of employees previously exempted from some provisions of the Fair Labor Standards Act. DOL on Homecare. One of the changes required overtime for certain employees. This change impacts Virginia
Medicaid-funded consumer-directed (CD) personal care, respite and companion assistants.
In response to the federal regulations, the Virginia Department of Medical Assistance Services (DMAS) began paying overtime to Medicaid CD assistants on January 1, 2016. The General Assembly then eliminated all overtime for Medicaid CD assistants effective July 1.
The General Assembly did not limit the number of hours that an individual can use each week for services. People with disabilities can continue to use the number of hours they have authorized. For many people this might mean they have to hire additional CD assistants.
At this time, Medicaid live-in CD assistants are not be impacted by this change. Also at this time, a Medicaid CD assistant can work for more than one individual and work more than 40 hours between the individuals they work for. For example, the CD assistant can work 40 hours for individual A and 40 hours for individual B. If in the future it is determined that DMAS is a joint employer with the employer of record, live-in assistants and CD assistants working for more than one individual could also be limited to 40 hours a week of CD employment. This change may –
Make it even harder to recruit assistants in rural areas with low populations and long travel distances and in northern Virginia where the cost of living is so high
Put people at risk due to their unique support needs making it hard to find multiple assistants for these unique needs
Cause harm when there are weather or other emergencies in which one assistant has to stay longer because the second assistant cannot travel to the person’s home
Increase struggles related to unexpected illnesses like the flu when an adult with significant disabilities living on their own may temporarily need more extensive support to deal with symptoms.
The potential for crisis is very real for people with disabilities who need supports to avoid placement in a nursing facility or other institution. For many people, agency-directed personal care services are not an option either because agencies do not have appropriate staff or the individual already tried agency-directed services and the agency was not able to meet the individual’s needs.
What Can We Do Now?
The Virginia General Assembly has completed their legislative session for this year. However, you can meet with your state Senators and Delegates in their home district offices. Continue to educate legislators about how limiting assistants to 40 hours a week will impact you. Contact information for legislators can be found at Who Is My Legislator ( http://whosmy.virginiageneralassembly.gov )
The Virginia Association of Centers for Independent Living (VACIL) has a survey to gather information about the potential impact of the 40-hour cap. Results of the survey will be used to formulate advocacy strategies. Participate in the survey at Survey CD 40 ( https://www.surveymonkey.com/r/CD40 )
Participate in the May 12 webinar. Webinar on CD 40 Limit ( https://attendee.gotowebinar.com/register/8030345120234988546 )
Advocate for an exceptions process to minimize the negative impact of the 40 hour cap. Information about a possible exceptions process can be found at Exception Process. ( http://www.bazelon.org/LinkClick.aspx?fileticket=qFkSrIu15xw%3d&tabid=64 )
We will discuss this during the May 12 webinar.
Background on Consumer-Directed Overtime
1998 – Virginia Medicaid began paying for CD personal care services. Services are authorized based on the needs of people with disabilities and assistants work the hours needed without consideration of overtime wages. 2013 – Federal Department of Labor (DOL) regulations amended to require overtime pay for “companionship services” which include personal care, respite and companion services.
2014 & 2015 – Regulations challenged and ultimately upheld in court.
December 17, 2015 – Governor McAuliffe introduces the state budget for the fiscal year beginning July 1, 2016. The introduced budget would continue limited Medicaid CD overtime; assistants could work up to 56 hours a week for the same individual (16 hours a week of overtime).
January 1, 2016 –Commonwealth of Virginia began paying overtime for Medicaid CD assistants working more than 40 hours a week for the same individual.
March 11, 2016 –General Assembly votes to prohibit overtime wages for Medicaid CD assistants.
April 10, 2016 – Governor submits a budget amendment to allow Medicaid CD assistants to work up to 56 hours in a work week and pay 16 hours of overtime.
April 20, 2016 – General Assembly votes to reject the Governor’s amendment. The budget amendment adopted on March 11 is effective July 1. General Assembly Budget Amendment ( http://budget.lis.virginia.gov/amendment/2016/1/HB30/Introduced/CR/306/21c/ )
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