Abuse and Neglect of Disabled

West Virginians in Care

Settings

West Virginia Legislative Interims:

LOCHHRA

Jeremiah Samples
Deputy Secretary
Office of the Secretary
September 14, 2021
 Issue Recap
➢ West Virginia has experienced an unacceptably high number of individuals with intellectual and
developmental disabilities (IDD) suffering from abuse and neglect, which has led to serious injuries and deaths
in certain circumstances.
➢ These abuses have occurred in three settings:

1. Intensively Supported Settings (ISS)

a. These are placements of four or fewer individuals paid for by the IDD Waiver under Medicaid.

b. These homes are not licensed or regularly surveyed, which includes homes owned/ rented by consumers and provider
owned homes rented to consumers. (Services are provided by licensed providers.)

c. Homes are only entered by Office of Health Facility Licensure and Certification (OHFLAC) if a complaint is received or if a
home is selected for a site visit when surveying the licensed provider providing services.

2. Group homes with four or more consumers

a. These homes are licensed as behavioral health centers by OHFLAC and specifically listed on a provider’s license.

b. Penalties for citations include closure, admission ban or reduction, and financial penalties.

3. Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID)

a. These placements usually serve eight individuals but can serve fewer.

b. ICFs/IID are federally certified and monitored. ICF/IID Penalties for citations include closure.

c. Survey activity is conducted by the OHFLAC.

d. These facilities are also state licensed as behavioral health centers and may be penalized under these state regulations,
including closure, admission ban or reduction, and financial penalties.
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 Documented Issues
There has been a multi-year trend of severe incidents within these settings, raising concern over
consumer rights, individual care, and safety. As reported, survey activity by state regulators has
disclosed serious, systemic issues:

➢ Critical medication errors

➢ Failure to provide and obtain emergency medical attention

➢ Failure to secure chemicals and other dangerous substances

➢ Failure to activate door alarms to prevent elopement when required by an individuals’ behavioral
needs

➢ Lack of staffing

➢ Abuse and neglect by staff

➢ Failure to report incidents, investigate incidents, correct deficient practices, and provide training

➢ Failure to provide appropriate basic nutrition

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 Actions Taken
Following the presentation in May 2021, DHHR has taken several
actions:
1. OHFLAC has continued to conduct surveys across the state.
Regulators have seen some improvements but continue to
report situations with deplorable living conditions, including
an additional death with citations indicating it did not occur
due to natural causes.
2. DHHR has facilitated closure of some facilities where heinous
abuses have occurred.
3. DHHR is in the process of bidding out placements lost when
one facility had been closed by the provider.
4. DHHR has engaged stakeholders from both the provider and
advocacy community for purpose of developing
recommendations.

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 Advocate Recommendations
1. Have a better workforce, both direct services and supervisors by
paying more and ensuring better training
2. Take all steps to prosecute perpetrators
3. Eliminate ICF settings and replace with home and community-based
supports through IDD waiver
4. Have a more rigorous system of oversight on human/programmatic
services by trained individuals instead of relying only on regulators
5. Provide active and ongoing technical assistance to agencies on best
methods
6. Actively support/involve family and other people from the outside
of the residential settings in the lives of those who reside there
7. Levy fines against provider companies and agencies that poorly
manage services and settings and do not take adequate steps to
keep neglect and abuse from occurring
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 Advocate Recommendations
8. Require service agencies to help the individuals develop useful
skills that will help them acquire valued social roles
9. Make info about substantiated abuse and neglect readily
available to the public
10. Properly train and supervise DHHR guardians to have high
expectations of the individuals and to provide a layer of
oversight
11. Improve the IDD Waiver to properly support individuals in the
community, not just to prevent institutionalization
12. Require all providers to have Adult Protective Services (APS)
background checks performed on all potential hires
13. Enforce strong consequences for dumping clients at hospitals
and not allowing them to return to the service agencies if that
is the desire of the person or their legal representative

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 Provider Recommendations
1. Development of Core Staffing Model (CSM) where 25% of staff
will be paid $18 per hour, 50% at $15 hour and 25% at $12.
The rate calculation includes supervision, training, and
benefits needed to significantly improve the quality of care.

2. Evaluate the budget allocation system in IDD 24/7 settings

(including ICF). The current system does not meet the staffing
needs of clients. Too many clients in three-person homes are
receiving 1:3 staffing ratios.

3. Given the degradation in medication services in the IDD

Waiver, re-implement the option to use LPN services for
medication passes. In the past, IDD clients were given two
hours of LPN services per day.

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Solutions Under Consideration

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 Recommendation 1
Recommendation: Modifications to proposed reimbursement model
and rate increases.

DHHR Response: DHHR recognizes the need to address labor shortage

issues through rate restructuring. The Department agrees with the
provider proposed concept of a tiered Core Staffing Model.

➢ DHHR continues to analyze the budgetary implications and feasibility

of the provider proposal, which would reflect a $49.1M total increase
annually.

➢ DHHR proposes leveraging American Rescue Plan Act COVID funding

for Intensively Supported Settings as an intermediate strategy to
mitigate labor market issues.
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 Recommendation 1, Continued
BMS ARPA Funds for Home and Community-Based Services (HCBS)
➢ The direct-care workforce is the mainstay of the HCBS system and
West Virginia has a shortage.

➢ The American Rescue Plan Act (APRA) of 2021 has made available
over $530M to WV Medicaid until March 2024 for HCBS.

➢ Medicaid plans to invest over $100M of ARPA funding into the

workforce to expand recruitment and improve retention, which will
bolster both provider capacity and members’ quality of care.

➢ A particular emphasis on rural provider sustainability will be made to

help ensure access to care across the state.

➢ This increase will apply only to HCBS in the ISS placements, not for
ICF placements. ICFs are considered institutions by the federal
government.
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 Recommendation 1, Continued
Behavioral Health Workforce Shortages
➢ In 2020, only 17% of the need for mental health care professionals
was met in West Virginia, compared to 27% in the U.S.

➢ West Virginia ranks 48th nationally in terms of the number of

behavioral health professionals.

➢ This includes psychiatrists, psychologists, licensed clinical social

workers, counselors, marriage and family therapists, providers who
treat alcohol and other drug abuse, as well as advanced practice
nurses specializing in mental health care.

➢ Direct care and behavioral health staff on average make thousands

less annually than their counterparts in other states.

➢ Additional strategies are needed to recruit direct care and

behavioral health staff in West Virginia.
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 Recommendation 2
Recommendation: Develop new regulatory framework in ISS.

DHHR Response: DHHR agrees that a new regulatory framework is necessary to

ensure the health and safety of individuals placed in an ISS. The Department
continues to analyze the budgetary implications of implementation. Cost of this
proposal is estimated to be $969,996.

➢ Annual review for 100% of members who live in ISS to ensure health and
welfare.

➢ HCBS face-to-face residential interview where 100% of members in each site

participate in a standardized interview.

➢ Annual review of individual service plans.

➢ Ensure Medicaid Administration Record (MAR) documentation of

health/welfare education (both general and member specific) provided to
direct staff, and documentation to support RN oversight of staff who
administer medications.
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 Recommendation 2, Continued
➢ Annual Review: Incident Management
• 100% of member files, for those who live in an ISS, receive this review.
• Since incidents are also entered in real-time, identify trends and problems
per agency, age group, area of the state, etc.
➢ Technical Assistance
• Provide targeted training and education following reviews.
• Expand training directly to direct care staff once issues have been
identified.
• Training topics tailored to specific deficits identified, specific staff, and
other trends.
➢ Staff Training
• Provide general training sessions four times a year to provide updated
information on topics such as reporting, documentation, care plans and
areas identified as risks from analysis of survey data.

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 Recommendation 2, Continued
➢ Additional Monitoring
• Develop criteria for deficits and increased frequency of monitoring sites.
• Option for unannounced visits.
• Monitoring BMS’ Mortality Review Committee findings to compare with
incidents (reported and not reported), follow-up to obtain finalized
investigations of outstanding data, analyze trends and data, and develop
and implement interventions accordingly.
• Provide trend analysis of community-based services.
• Develop risk analysis report based on surveys and incident reports.

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 Recommendation 3
Recommendation: Evaluate the budget allocation system in IDD 24/7 settings
to address staffing ratio issues.

DHHR Response: DHHR is open to further work on this recommendation but

believes staffing ratios can currently be managed to meet the intent of the
Behavioral Health Association suggestion.

➢ A review of authorizations for IDD Waiver members residing in 3-person

residential settings indicated that members are to receive an average of
eight hours per day of 1:1 staffing ratio (one staff to one member) services.
This allows members to participate in person-centered activities without
their housemates.

➢ Authorized services for the remaining sixteen hours a day indicated an

average of eight hours of 1:2 staffing ratio and eight hours of 1:3 staffing
ratio.

➢ Members in two- or three-person residential settings may be authorized

more 1:1 staffing ratio services depending on their needs and activities.
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 Recommendation 4
Recommendation: Implement the option to use LPN services for medication passes.

DHHR Response: DHHR is open to further work on this recommendation, has

developed strategies that may be currently used, and continues to assess financial
and workforce implication of broader reforms.

➢ COVID-19 has significantly impacted the direct-care workforce in HCBS

programs, including a shortage of certified Approved Medication Assistive
Personnel (AMAP).

➢ Currently, a policy exception allows up to two units of the regular skilled nursing
LPN rate to be billed for routine medication administration.

➢ BMS is researching options for reimbursing agencies for the training and
supervision of AMAPs by RNs.

➢ Methods for reimbursing for medication administration are also being

considered including a higher rate for certified AMAPs or an event code/fixed
rate for administering medications.

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 Recommendation 4, Continued
➢ Members living in one-, two- or three-person residential settings may
require assistance with medication administration.

➢ Under OHFLAC’s AMAP program, trained unlicensed direct care staff

may administer medications and perform certain health maintenance
tasks.

➢ AMAP services are performed under the supervision of the agency

RN. Some agencies choose to utilize nurses for routine medication
administration, but the nurse is required to bill the unlicensed direct-
care rate of $23.00/hour instead of the skilled nursing rates of
$44.08/hour for LPN or $65.12/hour for RN.

➢ The LPN rate is allowed to be billed for medication administration

tasks that AMAPs are not allowed to perform such as determining the
amount of insulin to administer if a member’s blood sugar is too high.

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 Recommendation 5
Recommendation: Transition from ICF placements to placements
in home and community-based settings.

DHHR Response: DHHR is working to transition to a more home

and community-based model.

➢ The majority of ISS homes have fewer residents/members

than ICF homes.
➢ ISS homes are most often leased by the member(s) living in
the home from a private landlord and this provides the
members with renter protections available under the law.
➢ The cost of services in ISS settings is typically less than the cost
of the more restrictive ICFs.
➢ Federal funding increases have been focused on home and
community-based services.

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 Recommendation 6
Recommendation: Enhance training supports for direct care
workers and offer technical assistance when issues are identified.

DHHR Response: DHHR will develop new training supports for

direct care workers and provide technical assistance.

➢ BMS will provide a standard training curriculum for all direct

care workers. Members, provider staff, and other
stakeholders will be given the opportunity to provide input
regarding courses and instruction methods.

➢ BMS has proposed ARPA funding to be provided from CMS to

purchase a curriculum for direct care training.
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 Recommendation 7
Recommendation: Increase prosecution of abuse and neglect by
caregivers of IDD populations.

DHHR Response: DHHR agrees with recommendation but after

making referral is not in a position to prosecute such cases.

➢ Preliminary discussions have taken place with the Attorney

General’s Office.
➢ OHFLAC will track how many referrals are made to
prosecutors.

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 Recommendation 8
Recommendation: Increase visibility of care being provided to IDD
populations by trained individuals beyond only regulators.

DHHR Response: DHHR agrees with recommendation.

➢ Members that have a DHHR guardian are visited in their

homes by the guardians at least every six months. DHHR is
committed to conducting these visits much more frequently
and analyzing resources necessary to do so.
➢ DHHR proposes to increase advocates’ visits for Medley class
member homes.

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 Recommendation 8, Continued
➢ Each IDD Waiver member has a Case Manager who is required to
visit the member in their home each month. A standard checklist
that addresses the members’ health, safety, and support needs is
completed during each monthly visit. Implementation of
Conflict-Free Case Management (CFCM) will help to ensure that
Case Managers independent from the agencies that manage the
residential settings.

➢ KEPRO, BMS’ operating agency for the IDD waiver, currently

reviews provider agencies annually and this includes a sample of
the residential settings managed by the agencies. This sample
will be expanded so that 100% of residential settings will be
visited/reviewed by KEPRO annually. In addition, it is
recommended that KEPRO conduct a follow-up home visit
whenever a Case Manager identifies a safety issue during their
routine monthly visit.

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 Recommendation 9
Recommendation: Strongly enforce regulations and levy
fines in abuse/neglect cases of IDD populations.

DHHR Response: DHHR agrees with recommendation and

will continue to enforce regulations and levy fines as
stipulated by law.

➢ Per legislation proposed by DHHR and passed during the

2021 session, behavioral health providers may be
assessed monetary fines.
➢ Admission bans, expanded provider reporting, enhanced
survey activity, and facility closure will be pursued
regarding non-compliant providers.
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 Recommendation 10
Recommendation: Enhance role of Mental Health Ombudsman Office.

DHHR Response: DHHR is analyzing the budgetary implications of the proposal.

Proposed Cost: First year - $651,076; ongoing of $634,876.

➢ On February 4, 2021, the nearly 40-year-old Hartley case was finally dismissed and
established a Mental Health Ombudsman office in DHHR’s Office of Inspector
General.
➢ The Mental Health Ombudsman promotes the safety, wellbeing, and rights of
consumers and has the independence to administratively resolve complaints or
issues in psychiatric hospitals and behavioral health centers.
➢ Expansion of the program, similar to the Long-Term Care Ombudsman and Foster
Care Ombudsman, would allow for additional oversight of this extremely vulnerable
population.
➢ Legislation and funding for enhanced staffing to promote development and
oversight would be required.
➢ In order to properly serve the public and carry out this charge, eight regional
Ombudsmen are recommended.
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 Recommendation 11
Recommendation: Development of a Direct Care Certification and Abuse and
Neglect Registry.

DHHR Response: DHHR is analyzing the budgetary and labor force implications of the
proposal. Proposed Cost: First year - $365,866; ongoing - $264,686.

➢ Under this concept and upon completion of training, direct care personnel would be
required to pass a competency test. Successful completion of the test would certify
the individual as direct care staff for the state of West Virginia, allowing them to be
employed by a behavioral health provider. Certification would be renewed every two
years.
➢ Complaints alleging abuse, neglect and exploitation regarding the individual would
be investigated by OHFLAC. Substantiated complaints against an individual will result
in placement on an abuse and neglect registry and the individual would not be able
to work in a health care setting.
➢ Program would be modeled after the Registered Long-Term Care Nurse Aide
program, which includes due process.
➢ This proposal would require both a statute and rule.
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 Recommendation 12
Recommendation: ICF beds in facilities closed voluntarily or by
OIG revert to State for redistribution.

DHHR Response: DHHR is analyzing this option as a means to shift

limited ICF placements to providers that are able to properly care
for IDD populations.

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 Conclusion
➢ DHHR staff are committed to working with all stakeholders to
resolve the pervasive abuse and neglect issues that have
occurred in West Virginia over the past several years against
IDD populations.

➢ Sustained attention on this issue is necessary to ensure

implemented recommendations are successful and ultimately
solve the problem.

➢ It is critical that West Virginia protect vulnerable populations

and treat these individuals with respect as we endeavor to
provide critical services in a safe environment.

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 Contact

Jeremiah Samples
Deputy Secretary
West Virginia Department of Health and Human Resources
One Davis Square, Suite 100E
Charleston, WV 25301
Phone: 304-352-5143
Email: Jeremiah.Samples@wv.gov
Website: dhhr.wv.gov

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