The Conflict of Interest component of TCM has been an area of much confusion, concern, and conflicting guidance throughout the STBI TCM development process. It is not an minor issue. There is an existing state-funded (to the tune of approximately $8 million/year authorized in funding from the General Assembly) award-winning nonprofit brain injury support provider network that has been nurtured & developed by Virginia for decades through dedicated state dollars administered by DARS. This is not insignificant or irrelevant.
This network, which represents thousands of ABI survivors served and hundreds of Virginian employees contributing millions to our state's economy, will be significantly impacted by the final determination and interpretation of TCM conflict of interest rules. It is economically and ethically imperative that there be clear and correct communication of how the rules will work. It is not as simple, as DMAS staff have told state-funded BIS providers, as "choosing a lane". These are existing organizations with actual employees serving real live people and actions/interpretations that will negatively impact support provision in the Commonwealth must be well thought out and accurately and consistently communicated.
In this iteration of the draft TCM manual it states the following on page 7 addressing conflict of interest:
Please note that on page 4 of the draft manual, under Defintions, HCBS services are defined as:
“Home and Community Based Services (HCBS)” or "waiver services" means the range of community services approved by CMS pursuant to § 1915(c) of the Social Security Act to be offered to persons as an alternative to institutionalization. They provide opportunities for Medicaid beneficiaries to receive services in their own home or community rather than institutions or other isolated settings. These programs serve a variety of targeted populations groups, such as people with intellectual or developmental disabilities, physical disabilities, and/or mental illnesses.
On it's face, this language is quite clear. The language, "In order to meet this requirement an individual that provides case management services must not be employed (directly or as a contractor) by an entity that provides other HCBS services" & "Furthermore, an individual or entity that provides case management/support coordination services must not have an interest (as defined in 42 CFR 411.354) in a provider of other HCBS services" is not ambiguous, and neither is the DMAS provided definition of HCBS services listed above, which clearly indicates that "HCBS services" encompasses the "range of community services" that "serve a variety of targeted populations groups [sic]" as listed and as approved by CMS.
This language, if taken literally, excludes employees of & those who hold an interest in providers of other HCBS services. Full stop. It will prohibit any organization (i.e., most if not all CSBs, many mental health providers, existing providers who provide other HCBS services) from being an STBI TCM provider, as it is written. There is nothing in this language that limits the HCBS services in question to those specifically designated as targeting brain injury survivors. Even if it did, that would be problematic, considering that it is not uncommon to have survivors dually diagnosed and eligible for non ABI-targeted HCBS services, including a large number of individuals who were disabled by ABI prior to their 22nd birthday who have developmental disability services & waiver eligibility.
There is a 'willing and qualified" provider exception, where if the state can demonstrate that the only willing & qualified entity to provide TCM/develop ISPs in a geographic area also provides "HCBS". The process for making this determination should be explicitly spelled out. Virginia has granted the CSBs a monopoly on case management provision for the ID/DD population statewide based on this exception, which serves to severely restrict choice of providers for that population as well as inhibiting the development of independent conflict-free potential case management providers who are locked out of the system due to this determination. It does not serve to promote person-centered choice for persons served or meet either the letter or the intent of CMS conflict free case management regulations and should be exercised only with caution and clear and transparent guidelines as TCM is introduced to the brain injury survivor population. Any such determinations should include a plan to promote the development of additional qualified and willing providers in the identified region as soon as realistically feasible.
Other than advising great care and sensitivity to genuine consumer choice, I am not commenting specifically to request revision of the conflict of interest language. If that is the language needed to meet CMS requirements, so be it. It must be applied universally and consistently, however, without fear or favor.
This is complicated by the ongoing conflicting guidance from DMAS. A high-ranking DMAS employee was specifically asked, during the current public comment period, how the conflict of interest rules as written would be implemented/how the prohibitions indicated would apply to potential providers of STBI TCM who are already providing other HCBS services through the ID/DD waivers.
The written response from the DMAS official was, "At this time, there are no brain injury waiver service [sic] so the conflict would not exist when providing TCM services.", and, "There is no 'provider of HCBS' (waiver services), therefore there is no conflict consistent with this section because the TCM entity can't provide something that doesn't exist (waiver services).". When further pressed, all the DMAS official would say was, "Please read the information again. I did answer the question. DD waiver is not the same as nor has anything to do with the BIS waiver.".
With all due respect, not only is this interpretation not reflected in the manual language, it is directly contradicted by the manual language, and by the truth that HCBS and/or waiver services do, in fact, exist for persons served. I cannot emphasize enough how critical it is that this fundamental information be transmitted in a clear and consistent manner that meets CMS requirements. It is crucial information to both persons served and existing business entities across Virginia and no one reading the rules should have any doubt as to what it means and how/where/to whom it applies, which unfortunately is not currently the case.
It is worth noting that the DMAS official quoted also provided a citation from the eCFR (Electronic Code of Federal Regulations) underneath their response. Here is the federal code cited ( https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-C/part-441/subpart-G ):
§441.301 (c)(1)(vi)- “Providers of HCBS for the individual, or those who have an interest in or are employed by a provider of HCBS for the individual must not provide case management or develop the person-centered service plan, except when the State demonstrates that the only willing and qualified entity to provide case management and/or develop person-centered service plans in a geographic area also provides HCBS. In these cases, the State must devise conflict of interest protections including separation of entity and provider functions within provider entities, which must be approved by CMS. Individuals must be provided with a clear and accessible alternative dispute resolution process.”
Please note that the federal code cited refers to "a provider of HCBS" and "also provides HCBS" without any distinctions regarding whether the HCBS is targeted towards any specific disability population (which makes sense, considering the overlap created by comorbid conditions).
It goes on to specifically require that if an 'only willing and qualified' entity exception is applied the State must also devise conflict of interest protections including separation of entity & provider functions within provider entities, which must be approved by CMS.
Finally, the federal code requires that individuals must be provided with a clear and accessible alternative dispute resolution process". Neither the dispute resolution process nor the CMS-approved conflict of interest safeguards appear in the draft manual. This is a significant omission. These elements are required to protect the persons served, promote person-centered processes, and prevent system-centered actions that impede human and civil rights and it is not okay to only include a portion of the relevant requirements in this plan.
The only aspect of the cited codes that seems to possibly introduce "wiggle room" is the part where the code states, "providers of HCBS for the individual" but this does not seem to be the aspect DMAS is emphasizing. Focusing on the "for the individual" component would mean that providers of other (non TCM) HCBS would be allowed to provide TCM to an individual AS LONG AS they do not provide any other HCBS services TO THAT INDIVIDUAL. That interpretation hews to the code language and would prevent the dissolution of existing nonprofit organizations as it would allow providers to provide specialized brain injury support coordination without first divesting of any other HCBS provision within their agencies, as long as they don't provide both to the same person in the absence of an only willing & qualified provider exception.
That is not how the manual is written nor is it reflected in the most recent DMAS guidance, however, although it does align with what we were briefly advised by DMAS in the spring of this year at a stakeholder meeting.
This is such an important issue and it has created a great deal of consternation and conflict throughout the entire year of brain injury TCM and potential waiver development. I recommend, for the sake of transparency and to promote confidence in a final rule interpretation, that DMAS review these conflicts with CMS in the presence of process stakeholders (such as the existing support providers, brain injury specific or not, who will be economically and operationally impacted) and provide one last clear, final, and comprehensive conflict-free case management rule. Inscrutability is not an asset here.