Frequently Asked Questions - Commonwealth of Virginia and the U.S. Department of Justice
Virginia’s Settlement Agreement with the U.S. Department of Justice (DOJ) for Persons with Intellectual and Developmental Disabilities
Prepared by staff of the Fairfax-Falls Church Community Services Board
What is the settlement agreement between the United States Department of Justice (DOJ) and the Commonwealth of Virginia?
On January 26, 2012, Virginia and DOJ reached a settlement agreement which resolved DOJ’s investigation of Virginia’s training centers (state-operated residential facilities) and community-based services for individuals with intellectual and developmental disabilities with respect to compliance with the Americans with Disabilities Act (ADA) and the U.S. Supreme Court Olmstead Ruling.
What was the basis for DOJ’s investigation which led to the settlement agreement?
In August 2008, DOJ initiated an investigation of Central Virginia Training Center (CVTC) pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA). In April 2010, DOJ expanded its investigation to include all five state training centers and community-based services to focus on Virginia’s compliance with ADA and Olmstead. The Olmstead decision requires that individuals with intellectual and developmental disabilities be served in the most integrated setting appropriate to meet their needs consistent with their choice. In February 2011, DOJ submitted a findings letter to Virginia, and in March 2011 the Commonwealth entered into negotiations with DOJ to reach a settlement without subjecting the Commonwealth to costly and lengthy court proceedings.
What were the findings of the DOJ investigation that resulted in the settlement agreement?
DOJ found that Virginia:
- Is not providing services in the most integrated and appropriate settings.
- Is not developing a sufficient quantity of community services.
- Needs to improve its process for discharging people from training centers to community services.
Who is affected by this agreement?
The agreement applies to anyone with an intellectual or developmental disability who meets any of the following criteria:
- Currently resides at any of the state’s five training centers;
- Meets the criteria for the Medicaid Home and Community Based Services (HCBS) Intellectual Disability (ID) waiver or Developmental Disability (DD) waiver wait lists; or
- Currently resides at a nursing home or intermediate care facility (ICF).
What are the major areas of the settlement agreement?
There are four major areas of the agreement:
- Serving individuals with ID/DD in the most integrated settings and building quality community-based alternatives, particularly for individuals with complex needs;
- Supporting independent housing and employment options for persons with ID/DD;
- Facilitating transitions from state training centers to community-based services; and
- Improving quality and risk management systems to include monitoring and evaluating services and implementing quality improvement processes at an individual, provider and state-wide level.
How will the settlement agreement be implemented?
The Virginia Department of Behavioral Health and Developmental Services (DBHDS) is the state agency responsible for developing and implementing the Commonwealth’s compliance plan and reporting on-going progress to the Governor, the Virginia General Assembly and to DOJ. The agreement calls for the establishment of a minimum of 4,170 new HCBS Medicaid waivers by 2021 as the primary funding source to provide community based services for the target population. The Commonwealth also established a trust fund of $30,000,000 in January 2012 to begin implementation of the agreement. Another $30,000,000 was added by 2013.
What is a Medicaid waiver?
A waiver is Medicaid funding (50% state and 50% federal) assigned to an individual that pays approved service providers for residential and employment supports, environmental modifications, assistive technology, and other services. The term “waiver” refers to the fact that states are allowed to “waive” the requirement that Medicaid funds for long-term care services and supports can only be used in an institutional setting.
What is the role of a Community Services Board (CSB), such as Fairfax-Falls Church CSB, in implementing the agreement?
CSBs are the local public entities in Virginia established by the Code of Virginia to provide support coordination for individuals admitted to or discharged from state training centers and for persons diagnosed with ID who receive community-based services. The CSBs operate under a state performance contract with DBHDS, are licensed by DBHDS, and are approved providers of the Virginia Department of Medical Assistance Services (DMAS) which jointly administers the Virginia HCBS Medicaid ID waiver program with DBHDS. CSBs must provide the Medicaid reimbursable targeted case management (support coordination) for individuals with ID waivers and for many on the waiver wait lists. Although the agreement is between the Commonwealth of Virginia and the U.S. Department of Justice, the CSBs have an important role in its implementation. To that end, CSBs will need to dedicate more resources to provide support coordination to the increased numbers receiving waivers each year.
How does the agreement benefit Fairfax County residents with ID who are living in the community (not in the training centers)?
It is anticipated that Fairfax County will receive more ID waivers. As of June 1, 2013, there are 980 Fairfax residents with ID on the ID waiver wait list; of that number 571 have been determined to have urgent need for services. The agreement provides for a minimum number of waivers to be funded each year by the Virginia General Assembly, but it is anticipated that additional waivers will be added to this baseline, as has happened in the past two sessions of the General Assembly, in order to address the increasing number of people added to the waiting lists each year.
Does the agreement require the closure of Virginia’s five residential training centers, including the Northern Virginia Training Center (NVTC) in Fairfax County?
DOJ required the Commonwealth to provide community-based options to residents of training centers, but it did not require that the Commonwealth close its five training centers. In January, 2012, when the agreement was reached, DBHDS determined it would close all but one of its five training centers by 2020. The NVTC was one of the four training centers to be closed. The rationale for closing training centers was based on two primary reasons: (1) the declining numbers of persons residing in training centers over the years, and (2) the high cost of operating training centers given the need to build quality community-based service capacity per the agreement.
What is the timeline for closing the state training centers?
Southside Virginia Training Center (SVTC) in Petersburg is scheduled to close in 2014; Northern Virginia Training Center (NVTC) in Fairfax in 2015; Southwestern Virginia Training Center in Hillsville in 2018; Central Virginia Training Center (CVTC) in Lynchburg in 2020. Southeastern Virginia Training Center (SEVTC) in Chesapeake is scheduled to remain open with a 75 bed capacity.
How many people from Fairfax County currently live in state training centers? What is the plan for them?
As of June 1, 2013, of the 835 Virginians residing in state training centers, 108 are from Fairfax County. A plan is being developed for each individual to identify the supportshe or she will need when they move into the community. Staff members from the training centers and the CSB are working with residents and their families or authorized representatives to identify providers of residential and employment/day support services who are approved by DBHDS and DMAS to provide Medicaid ID waiver or ICF services. The choice of service providers is made by the individual and his/her family or authorized representative.
What will happen to people who are still in state training centers at the time of closure?
DBHDS has informed families and authorized representatives that anyone who is still living at the training center at the scheduled time for closure will be relocated to another state training center. Families of persons living at NVTC have been given the deadline of March 31, 2015.
How are the settlement agreement and implementation plan being monitored?
DBHDS has hired additional staff to develop and implement the plan; document and measure outcomes; and provide monitoring and oversight. DBHDS also amended its performance contracts with CSBs to include new requirements for compliance. In addition, an independent evaluator, Donald Fisher, provides ongoing monitoring and produces formal progress reports to the Commonwealth, DOJ, and the U.S. Court every six months.
What will happen to the land and property when NVTC closes?
The Commonwealth intends to sell the property, approximately 80 acres, and use the proceeds to help fund the implementation plan of the settlement agreement.
Are there any services that NVTC provides to individuals living in the community that will be impacted by its closure?
NVTC provides respite (short term admissions) to some persons with ID who live at home with their families in Fairfax County and other jurisdictions in northern Virginia. Respite admissions can range from a few days to a number of weeks and provide families necessary relief in order to address family emergencies or needed time away.
NVTC also provides short term emergency respite admissions for some individuals who are temporarily homeless when no other community options are available and until the CSB can access alternative community placements. Or respite can be used for crisis stabilization when persons with ID who have significant behavioral or psychiatric challenges are in crisis but do not require hospitalization.
In addition, NVTC provides medical specialty, dental and behavioral consultation services, through contracts with private practitioners, for persons with ID who live in the community but have difficulty accessing these services.
With the closure of NVTC, respite services will be discontinued. However, DBHDS is examining the feasibility of and alternatives for continuing outpatient medical, dental and behavioral consultation services.
What housing options need to be developed in Fairfax County to support individuals transitioning from training centers and individuals on waiting lists for community services?
Individuals moving from training centers and individuals currently on waiting lists will need the same variety of housing arrangements that most Fairfax County residents enjoy. Their first priority is to find housing that is near public transportation, shopping, recreation, health care and other community services. Many individuals will also want to live within reasonable driving distance from their families.
Over the next three years, approximately 168 individuals will choose to live on their own or with a friend in a place they can rent. Most individuals have incomes that are at or below 15% of the area median income (approximately $11,280/year) and many have mobility, vision or sensory limitations. Therefore, the availability of rental subsidies and physically accessible properties will be critical.
Another 250 individuals in the County will choose to live with other individuals in a condominium, townhouse or single family home where residential support services are provided daily. The CSB estimates that over the next three years approximately 55 to 60 homes must be developed to meet the needs of individuals leaving training centers and individuals on waiting lists. Most (more than two-thirds) of these homes will need to be built or modified so that they are barrier free and fully accessible to people with disabilities.
What will it cost to support individuals who are moving from training centers to live in the community?
There have been no new admissions to the training centers for many years, and the census at these facilities has slowly declined. As reported by DBHDS, the average annual cost to fully support someone residing in the training center is $224,245 /year. In comparison, the average annual cost to serve a current training center resident in the community instead under Medicaid waiver is $105,860 [reference: James W. Stewart, Commissioner, DBHDS, “Virginia’s Implementation of The Settlement Agreement with the U.S. Department of Justice”, Presentation to the Joint Subcommittee, Virginia General Assembly, January 11, 2013.] However, it should be noted that the average costs for both residential and employment /day support services are higher in Northern Virginia than in other areas of the state.
In addition to ongoing expenses, the “up-front” expansion costs must be funded in order to increase community capacity. For example, the cost to acquire a four bedroom single family home in Northern Virginia and renovate it to become a fully accessible home for four individuals is around $1 million. Another $30,000 - $50,000 may be needed to furnish and outfit it with adaptive equipment. In addition, new staff must be hired and trained before individuals move to their new homes and providers can be reimbursed under the Medicaid waiver.
What is the strategy to develop the housing that is needed in Fairfax County for this population?
The CSB has been working at both the state and local levels and with public and private entities to create a strategy to develop housing options for individuals in the DOJ target population. The CSB has developed cost estimates for the state and continues to advocate for resource commitments to get projects up and going. The CSB’s strategy includes:
- The identification of federal, state and local funding sources to serve this population. The CSB continues to identify the target population as one that must be served through Fairfax County’s Housing Blueprint and continues to seek resources that can assist with future property acquisitions by nonprofit organizations. In addition, the CSB is urging the Virginia Housing Development Authority to reconsider its recent decision to stop providing acquisition financing for group homes.
- The development of new partnerships with the private sector around equity investment. This involves efforts by the CSB to engage community development finance institutions, community development corporations, and the CSB’s partner nonprofit residential providers in the development of equity investment strategies that do not rely on government resources to create a source of financing and that stimulate development.
- The establishment of creative alternatives to leverage housing resources through partnerships with nonprofit organizations and families. The goal of this effort is to lay the groundwork to enable families and nonprofits to utilize estate planning and private investment tools to create housing options.
What has been accomplished so far?
In FY 2013, the Fairfax County Redevelopment and Housing Authority purchased and awarded three single family homes to two nonprofit organizations that will support 12 individuals in new residences. In addition, the CSB is collaborating with the DBHDS to pilot a state rental assistance program with 10 individuals who would like to live on their own or in a shared living rental arrangement. This project will offer individuals the opportunity to receive rental assistance and supportive services provided in their own homes and will examine whether de-linking the housing and support services in residential funding streams could lead to more cost-effective, quality outcomes.
What are ongoing challenges and opportunities?
The housing requirements related to the settlement agreement are coming forward at the same time as Fairfax County is experiencing the impact of sequestration in the Federal government. The loss of federal housing resources through the Housing Choice Voucher program, the HOME Investment Partnerships program, and the Community Development Block Grant will all have an impact on the CSB’s and nonprofit partners’ ability to develop housing options for individuals in the target population. At the same time, the Virginia Housing Development Authority (VHDA) and the Virginia Department of Housing & Community Development (DHCD) have chosen to no longer provide acquisition financing for group homes. This decision leaves the community without a source of below-market acquisition financing for group homes, which makes it difficult to fund viable housing and service packages.
Individuals and whole communities benefit when persons with disabilities live in neighborhoods. Federal laws and local ordinances give “use by right” to individuals with disabilities who live together in groups of eight or fewer. These legal protections require no special permissions or notification requirements to the neighbor, the homeowners association, or to locally elected officials. The CSB and its provider partners have a long history of being good neighbors in Fairfax County and have recently signed a “Good Neighbor” pledge to the community.
How can I obtain more information on the settlement agreement, implementation plan and progress updates?
Additional information is available from these websites:
- Settlement Agreement Between the Commonwealth of Virginia and the U.S. Department of Justice
- Department of Justice Americans with Disabilies Act Olmstead Implementation
- Department of Justice Americans with Disabilies Act
- The Arc of Virginia