West Virginia House Health Committee moves bill providing protections to people with disabilities

HB 3247 requires that patients with IDD to be visited at least once per month by case workers when the state is their guardian, with case workers and advocates receiving unlimited access.

The bill permits the mental health, long-term care and foster care ombudsman within the state Department of Health and Human Resources to investigate and resolve complaints for IDD patients in the care of the state. It also requires the Inspector General’s Office to send to county prosecutors any findings that could pertain to abuse and neglect.

The bill would consolidate all provisions in State Code regulating behavioral health centers within one section, broken down into residential and non-residential categories. It gives authority to the DHHR’s Office of Inspector General to regulate these facilities.

“These types of facilities are already regulated in West Virginia. What this bill is doing is breaking up those rules into the different settings,” said an attorney for the committee.

The bill requires DHHR’s Office of Health Facility Licensure and Certification (OHFLAC) to inspect residential behavioral health centers at least once per year. Currently, those facilities are only inspected when complaints are filed. Facilities can be fined up to $100,000 and can have their bed capacity reduced if inspectors feel that move is warranted.

The bill removes a moratorium on the creation of intermediate care facilities and places their creation back within the state’s certificate of need law while also being exempted. It creates a new specialized intermediate care facility (ICF), defined as a temporary and transitional facility approved by the Centers for Medicare and Medicaid Services. There are no specialized ICFs in the state.

HB 3247 provides authority to the state Health Care Authority to redistribute beds from a reduction of bed capacity or from the closing of an ICF using the certificate of need process.

It requires the Bureau for Medicare and Medicaid Services to create a tiered model to increase access to home services for those receiving an IDD waiver. And it requires BMS to change to a performance-based contract with metrics.

Disability Rights West Virginia — an organization that serves as the designated federal Protection and Advocacy System agency that provides third-party monitoring of state agencies that serve the disabled — has raised numerous issues involving alleged abuse and neglect of IDD patients, including patients being abandoned by providers and sometimes being diverted to the correctional system and DHHR-operated psychiatric hospitals.

“We did a deep dive into 200 of our clients who were IDD waiver participants. Of those individuals, we identified roughly 27 policy violations by 50 different IDD providers that has resulted in over 200 adverse client impacts,” said Mike Folio, legal director for Disability Rights West Virginia. “That’s neglect. That’s not following a treatment plan. That’s not providing behavioral health supports. That, in turn, results in involuntary commitments.”

One issue facing behavioral health care providers is the low amount of state and federal reimbursement for caring for IDD patients, resulting in low-paid staff and constant turnover.

“If wages haven’t been increased in roughly 12 years, this is what you’re going to get,” Folio said. “If you can make more money making hamburgers at McDonald’s than you can caring for an IDD individual, that explains why you’re going to have an influx of individuals who will have to be committed because they’re not providing the services in the community.”

West Virginia once managed a home for IDD patients, but the Colin Anderson Center in St. Marys closed in 1998. The state replaced the Colin Anderson Center with the Title IX IDD Waiver program, which allowed these individuals to remain with family members instead of being placed in institutions. The program once had a wait list, but the state fully funded the program in 2020.

Del. Daniel Linville, R-Cabell, is the lead sponsor of HB 3247. He discussed a 2021 report from OHFLAC to lawmakers detailing numerous incidents of abuse and neglect, including one in which a 19-year-old in Greenbrier County consumed antifreeze and informed their caregiver but didn’t receive immediate medical attention for 12 hours before being rushed to an intensive care unit.

“If you can read that and do nothing, I don’t know what to say to you,” Linville said. “This is an attempt to deal with the problems we’ve had with some of these facilities…Mr. Folio testified there were more than 50 IDD providers who were having some of these problems. It is systemic.”