Dear Ms. Halbleib,

The disAbility Law Center of Virginia (dLCV) appreciates the opportunity to comment on the proposed regulation for the Standards for Licensed Assisted Living Facilities (ALF), 22VAC-40-73, as drafted by the Virginia Department of Social Services (DSS). dLCV is grateful for DSS working towards an effective appeals system for involuntary ALF discharges.

dLCV supports the proposed regulation for the following reasons: 

1. The involuntary discharge appeal process is necessary for all residents, but particularly those receiving Social Security (SSA) or Supplemental Security Income (SSI) benefits. SSA/SSI beneficiaries may not be able to make timely room and board payments for a number of reasons. New applicants for SSA/SSI benefits can experience long delays between their initial application and the first benefits payment. Delays at Social Security can also affect residents who are forced to change their representative payee when moving to a new ALF and might have to wait months for their new payee to receive conserved funds as well as monthly benefits. While many ALF administrators understand the delays at Social Security and are willing to work with their residents, others aren’t familiar with these issues or worse yet, willfully ignore the circumstances surrounding nonpayment. The appeals process allows residents and their designees to explain nonpayment and work with the ALF to ensure that payment is made once Social Security has resolved new applications or changes to representative payees.
2. For ALF residents whose funds are managed by a representative payee, conservator, or another third party, the appeals process provides an important safety net in the event of financial exploitation. When safety measures to monitor the performance these third parties fail, the risk of financial exploitation increases drastically. ALF residents should not be involuntarily discharged from a stable ALF placement because of mismanagement or outright financial exploitation by a third-party payor. Some ALF administrators are able to recognize these issues and make appropriate referrals, but that is not always the case. By requiring that ALFs provide a copy of the involuntary discharge notice to the Long-Term Care (LTC) Ombudsman, the new regulation creates a needed mechanism to ensure that ALF residents are protected from financial harm.
3. Section K of the proposed regulation prohibits facilities from charging residents for packing, moving, and transport costs. ALF residents who are supported by the Auxiliary Grant receive less than $100 per month to cover pharmacy, hygiene, and any other expenses. They simply do not have the funds to pay for packing, moving, or transportation services in the event of an involuntary or emergency discharge. dLCV appreciates DSS acknowledging these circumstances and ensuring that residents are not subject to additional financial hardship during the emergency/involuntary discharge process.
4. Requiring that ALFs send a copy of the discharge notice to DSS Licensing allows Licensing to track providers with frequent involuntary discharges. Ideally, Licensing can use this information to identify problematic providers and address issues with them. This data may also help Licensing identify trends throughout the state.

dLCV recommends the following:

1. Ensure that LTC Ombudsman offices are trained in reporting misuse by representative payees, conservators, and other third-party payors whose actions have resulted in involuntary discharge notices for beneficiaries in their care. LTC Ombudsman can report misuse directly to Social Security’s Fraud Hotline and to Adult Protective Services. The Ombudsman can also refer the beneficiary to dLCV to make a complaint about an organizational representative payee.
2. Once the proposed regulation has been finalized, dLCV recommends that fact sheets about involuntary discharge appeals be placed in common areas in all DSS licensed ALFs. It is imperative that ALF residents understand their rights under the final regulation.
3. Finally, DSS must hold mandatory trainings with all ALF administrators to explain the new regulation. dLCV also recommends that DSS provide manuals for ALF administrators to include instructions on how to follow the regulations, sample discharge notices, and fact sheets to post in common areas in their facilities.

Thank you again for the opportunity to comment on the proposed regulation for the Standards for Licensed Assisted Living Facilities, 22VAC-40-73. If you have questions, please do not hesitate to reach out to Robert Gray, Director of Compliance and Quality Assurance, at robert.gray@dlcv.org.

Sincerely,

Colleen Miller

Executive Director

disAbility Law Center of Virginia