Virginia Regulatory Town Hall
Department of Medical Assistance Services
Board of Medical Assistance Services
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6/16/23  9:23 am
Commenter: Kathy Stumm - Family Member and Legal Guardian of TBI Survivor

Pattern of Discrimination against TBI Survivors who Reside in an Assisted Living Facility Continues

It appears that the  Draft TCM Manual will prohibit otherwise eligible TBI survivors  from receiving TCM Services.  This is clear from reading the definitions of "Home" (page 3); the  Medical Necessity requirement that the individual "reside in the community" (page 9); the service limitation on Case managers to "identifying when a participant is in a provider owned or controlled service setting that does not meet the HCBS settings requirements" (page 12).  These provisions appear to preclude a TBI survivor who resides in an Assisted Living Facility(ALF) from receiving TCM services.  However,  the reimbursement provisions on page 18 appear to suggest a TBI survivor living in an ALF could receive services and providers could be reimbursed. What is the public policy?

Several other reviewers (Ashley Dunlap and Jamie Peed)have directly raised this question which needs to be clearly answered in the manual. 


Failure to allow TBI survivors who live in an ALF to receive TCM services perpetuates the pattern of discrimination  against such individuals outlined below.

Brain injury survivors who live in an Assisted Living Facility (ALF) in Virginia are excluded from services available to other brain injured survivors. 

 Issue 1:  Virginia will not pay for the cost of care for a brain injured person who lives in an ALF.


A brain injured person who lives in a group home, a private home, supported living, an intermediate care facility or a Skilled Nursing Facility (SNF) will have their cost of care substantially paid for by Virginia Medicaid if they are otherwise eligible for either the Medicaid CCC Plus Waiver or the Medicaid DD Waiver (Home and Community Based Services Waivers (HCBS) managed by DMAS.


The same brain injured person will pay 100 per cent of their cost of care simply because they reside in an ALF.  There is no Medicaid reimbursement for the costs of care for a brain injury survivor who lives in an ALF.  Our family continues to private pay over $7000 a month even though Tom was found eligible for both the CCC Plus Waiver and the DD Waiver based his income and level of care needs.


The Virginia public policy described above provides an ironic incentive to families such as ours.  If we just agreed to put Tom into a more restrictive setting (for example a SNF), Medicaid would pay for that cost of care and we would save the $7000 per month we are paying for his care in an ALF.  This is totally contrary to the entire point of HCBS Waivers which strive to keep persons in the least restrictive setting possible within the community.  It is also contrary to the physical, emotional, mental well being of Tom who is a vibrant member of the community living with dignity in a less restrictive environment than a SNF.  His ALF community is his home.


Issue 2:  Virginia regulations (DMAS) prohibit persons who live in an ALF from receiving any HCBS waiver services at all.  The mere fact of ALF residency disqualifies a person from waiver services.   A brain injured person who lives in an ALF is excluded from receipt of services such as non-medical transportation and aide services to participate in community events.  Brain injured persons who live in a SNF, a group home, supported living or ICF are provided these waiver services.



  IWhy does Virginia have this discriminatory public policy?

State agencies (DMAS, DARS and DBHDS) and their county counterparts have provided        two reasons to our family.  This is what we have been told:


  1. ALF’s are not considered by DMAS to be appropriate “settings” for HCBS waivers under the federal CMS “settings” rules and therefore may not be used as residential placements under HCBS waivers to be paid for by Medicaid.  DMAS officials say Virginia ALF’s can’t meet the CMS standards.  Others from brain injury advocacy services have said this issue is highly dependent upon the individual ALF.  Some within DMAS suggest that CMS requirements can’t be met because ALF licensing standards in Virginia are much less strict than those for facilities like group homes and approved residential options in the DD waiver program. 


Members of the JCHC asked staff in Dec. 2022 to look at this issue. There is a detailed accounting in the supplemental staff report. It is in the staff memo for the hearing on Dec. 7th contained within the written discussion of what was referred to as Option 8.


We know that 34 states have successfully implemented the type of licensing and accreditation standards required for ALF’s to serve as residential placements in Medicaid waivers.  Judy Hackler of VALA (Virginia Assisted Living Association) has indicated that organization would be open to finding a solution or perhaps establishing a pilot program to address this issue.


  1. As a result of the above held belief, DMAS has passed a rule to codify the public policy that ALF’s don’t meet the standards required by CMS to serve as residential providers under HCBS waivers such as the CCC Plus and DD Waiver in Virginia.  See 12 VAC30-120-920(C)(9).  (Issue 1 above)


This rule has been interpreted by DMAS not only to preclude payment of the costs of an ALF but also to exclude persons who live in an ALF from receiving any waiver services (even if the family would continue to private pay for the costs of care) (Issue 2 above)


DMAS plans to perpetuate this discriminatory policy by drafting both the Target Case Management Services Manual and the proposed Brain Injury Waiver to include the same prohibition on persons who live in ALF’s.

Study mandated by Virginia 2022 Appropriations Act, Item 308 CC.1; 2023Budget Amendment, Item 308 #1s (proposed)


DMAS has defined the eligibility for Brain Injury Waiver Services to require individuals to “reside in the community”.


 At the most recent Steering Committee meeting for the BI waiver, DMAS representatives explained this term was intended to exclude persons who live in an ALF. I have been advocating since the group’s inception for DMAS to address this inequity, but they are unwilling to tackle the CMS “settings” requirements or Virginia licensing requirements as they currently exist.  They have stated unequivocally that they will not propose that Virginia adopt the certification requirements for ALF’s that would allow them to serve as residential placements under CMS criteria.  They have further stated that residence in an ALF would also disqualify a brain injured person from receiving any services at all under the waiver.




CommentID: 217275