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2022

NEWSLETTER

January

Disability Rights of West Virginia

Successful Client Resolutions

2021

As Disability Rights of West Virginia (DRWV) closes out fiscal/program year 2021, I thought it would be nice to provide data and successful outcome stories for the people with disabilities we served this year. While the pandemic continued to rage on, the DRWV staff didn’t miss a beat.  We have been working every day to help ensure the human and civil rights of our most vulnerable citizens are protected.

 

In FY 2021, 973 Federally funded Service Requests were created for 694 clients. In addition to individual advocacy, DRWV conducted a total of 268 monitoring visits, using a combination of in-person and virtual visits for 126 different sites. These sites included, state and private operated psychiatric facilities, prisons, jails, state and private operated nursing homes, intermediate care facilities (ICF), Specialized Family Care homes, assisted living facilities and children’s residential facilities.

 

DRWV also conducted polling place accessibility studies for 316 sites in 12 counties.

 

In addition to our federally funded programs, DRWV serves over 300 individuals with developmental disabilities through the Medley/Hartley Advocacy Program, which is a state funded grant.

 

Following is a collection of successful outcomes that we were able to deliver for our clients in FY 21.

DRWV received a report that a client with a serious mental illness harmed herself while in a seclusion room at a state psychiatric hospital. DRWV conducted an investigation. As a result of the incident and DRWV's involvement, the facility modified policies related to seclusion/restraint which should provide for a safer environment. Also, as result of the investigation, DRWV was able to clarify our access to "Peer Review" documents from state operated psychiatric hospitals.

DRWV opened an investigation to address the death of a client who had been served under the Medley/Hartley Advocacy Program, our state grant. DRWV completed interviews and a document review for the investigation. Our investigation determined policy violations with the Specialized Family Care (SFC) program. A complaint was filed with the WV Nursing Board and Medicaid Fraud Unit. Findings letters were also sent. Findings were also reviewed with SFC program supervisors.

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A client’s legal guardian sought assistance with potential financial exploitation by the previous representative payee. The guardian alleged that several of the client’s personal belongings were missing after the client was moved. DRWV requested and reviewed records, interviewed the client, guardian, and staff, then communicated with the service provider to address issues identified related to the client's belongings. DRWV arranged for a mediation with the guardian and service provider, drafted a settlement agreement, and followed up to ensure that the settlement agreement was executed by all parties. As a result, DRWV confirmed that the client was reimbursed for lost personal items.

Abuse/Neglect/Financial Exploitation

Accessibility

DRWV conducted accessibility studies when requested throughout the fiscal year and sent findings to the sites. The sites included: a Unites States Post Office; a children’s museum; medical providers; potential office sites for our satellite office; and outdoor recreation areas including a state forest. These letters included the ADA or ABA violations, suggestions for remedying them, and resources that may be of assistance. We were also contacted by the West Virginia Coalition to End Homelessness about the need to conduct studies at several homeless shelters in WV in the coming year.

A client with a mobility impairment requested assistance regarding accessible parking at a public recreational area. DRWV completed a site visit then communicated with the owner of the marina regarding the need to properly designate and stripe the accessible parking. Due to intervention by DRWV, the marina owner agreed to pave the parking area in the Spring, before they re-open for the season. They assured DRWV that the accessible parking spots will be appropriately marked and striped and will be in compliance with ADA guidelines.

Access to Services

A client requested assistance with her Medicaid Title XIX Aged & Disabled Waiver (ADW) Provider's refusal to add staffing hours after the client was approved for more hours. DRWV contacted KEPRO and learned that the client was approved to receive approximately 124 hours of personal attendant services per month. DRWV communicated with the ADW provider and found that they were only providing her with 10 hours a week (40-50 hours per month) of personal attendant services based on their independent assessment of the client's needs. The client also informed DRWV that her assigned personal care attendant abused/neglected/financially exploited her in the following manner: asked the client to say she worked when she did not, or she refused to work when at the client's home; add her to the client's cell phone plan; give her some of the client's prescription medication; and used the client's food stamps. DRWV filed a complaint against the ADW provider due to their refusal to provide the client with staffing at the level she was assessed and to address the alleged abuse/neglect/exploitation. This complaint was sent to the ADW provider as well as Adult Protective Services (APS), Medicaid Fraud Control Unit, Bureau for Medical Services and Bureau of Senior Services. DRWV educated the client on other ADW Provider Agencies as well as Personal Options, the self-directed option for the ADW program. Due to advocacy provided by DRWV, the client's allegations are being investigated by APS. The personal attendant is no longer on the client's cell phone plan and the client was reimbursed for the costs incurred. The client chose to self-direct her ADW services, hiring her own staff, and has chosen a different provider agency.

A client who was in state prison needed nursing home level of care upon discharge but was experiencing barriers. The state-operated nursing home that accepted him later denied him just prior to his discharge date. DRWV communicated with the nursing home and WVDHHR, advocating for the client's need for services. As a direct result of our involvement, the client was approved then transferred to the state-operated nursing home upon discharge from prison.

A client whose primary language was Spanish had been denied interpreter services by his primary care physician (PCP). DRWV communicated with the hospital where the physician's office was located regarding interpreter access. DRWV provided the PCP's office with information on how to access the hospital's existing translation service. Due to advocacy provided by DRWV, translation services were arranged for the client's appointment. DRWV also educated the client and the staff at the facility where he resided of the proper way to request translation services for upcoming appointments.

A client's legal guardian requested DRWV's representation for a Medicaid fair hearing related to an insufficient I/DD Waiver budget amount for the client. The client was in need of more nursing services than were approved. DRWV communicated with the case manager and reviewed records. DRWV attended the pre-hearing conference call to advocate for the client's needs. As a result of the pre-hearing, it was agreed that the client will get the services she needs in order to remain in her home.

In late FY 2020 the legal guardian of a client with a TBI who was on the I/DD Waiver, along with the client’s Service Coordinator, requested DRWV's assistance. The client’s residential service provider did not have appropriate positive behavior supports nor sufficiently trained staff which resulted in staff filing multiple criminal charges against the client. DRWV attended multiple meetings and provided feedback on the draft positive behavior support plan. Due to the advocacy provided by DRWV, the team developed a new positive behavior support plan in FY 2021 which included information on traumatic brain injuries. The service provided retrained all of the client's staff.

Education

The father of a student with a disability requested assistance regarding the scheduled placement for the 2021-22 academic year. DRWV communicated with the school and the Local Education Agency (LEA) and reviewed Individualized Education Programs (IEPs). The LEA confirmed that services will remain in place, but in a more integrated classroom. The student will continue to receive necessary specialized educational services in the home county.

Employment

A client requested assistance regarding his employer's inability or reluctance to use the assistive technology (AT) device that DRWV negotiated for him to use at work through a previous service request. DRWV worked with the client and the employer to compromise with communication since the AT device was not working inside the building. The employer provided the client and the shift manager with cell phones to use for effective communication while the client is at work.

As a result of DRWV’s collaboration with the WV Developmental Disabilities Council (DDC), House Bill 2290 was passed, and the WV Employment First Taskforce was created in July 2021. DRWV is a required member of this Taskforce, and our Executive Director participates in meetings as well as the Strengths and Weaknesses sub-committee. The Taskforce is charged with developing and implementing a statewide Employment First Plan.

Housing

A client requested DRWV's assistance with issues she was having with her landlord. She was at risk of being evicted. DRWV communicated with the Comprehensive Behavioral Health Center who served the client as well as the landlord regarding the client's concerns. DRWV found that the client hears voices which distract her causing her to leave faucets run, which previously flooded her apartment, and a neighboring apartment. DRWV assisted the client and her case manager with completing a housing modification request form. Due to advocacy provided by DRWV, the client's leaky faucets were repaired then automatic shut-off faucets were installed.

The mother of a child with a disability requested assistance to fight an eviction that she was facing because of alleged noises that her son was accused of making. DRWV negotiated a settlement of this eviction case, communicated with the attorney for the housing provider to inform him that if the client and her family were evicted, she would have a claim for disability discrimination under the Fair Housing Act. In exchange for the client's agreement to waive her claim under the Fair Housing Act, the housing provider purchased her interest in the apartment for $10,000. The client and her remained in the apartment for several more months without paying rent or maintenance fees.

Litigation

The Hartley lawsuit is systemic litigation grounded in W.Va. Code 27-5-9, which provides rights to persons involuntarily committed to mental health facilities. DRWV’s position as a party in the Hartley case provides leverage to DRWV’s systemic advocacy efforts. The lawsuit was closed in February 2021. The dismissal order obligates the WV Department of Health and Human Resources (WVDHHR) to continue to fund community-based mental health services, as well as independent patient advocates in WV’s two state psychiatric hospitals. The WVDHHR is also obligated to implement the Therapeutic Activities Group (TAG) Program as the 2 state psychiatric hospitals. In addition, the WVDHHR will create a new Office of the Mental Health Ombudsman to transition from judicial oversight to a departmental administrative process.

DRWV along with A Better Childhood (a national nonprofit) and a local WV law firm filed a federal class action lawsuit against the WV Department of Health and Human Resources (WVDHHR) and several state officials at the end of FY 2019. The suit alleges that the WV Foster Care system is failing to protect children and failing to provide needed services. During FY 2021, the federal district court granted the defendants’ Motion to Dismiss. In reply, plaintiffs filed a notice of appeal with the Fourth Circuit challenging that decision. During FY 2022, the appeal will be fully litigated complete with a detailed brief by plaintiffs supported by amici including ChildUSA and the disAbility Law Center of Virginia, Virginia’s P&A. Plaintiffs are asserting the decision was based on outdated legal precedent.

DRWV has continued our partnership with the Arc, the Arc of Three Rivers, the Judge David L Bazelon Center for Mental Health Law, Mountain State Justice, and Latham and Watkins, LLP to examine the placement of students with disability-related behaviors. The federal district court certified the class in this matter and the defendants have filed for a permissive appeal with the Fourth Circuit challenging that decision. While the appeal is pending, the parties are engaging in mediation to see if they can resolve the matter without further litigation. Should mediation be unsuccessful, a trial will ensue.

With the COVID-19 pandemic still having adverse effects on long-term care residents, Advocates were able to monitor changing policies regarding residents’ rights such as visitation, dining, activities, and medical treatment to ensure residents weren’t having their rights violated. One specific issue that Advocates assisted with directly related to changing policies was communication with visitors. DRWV advocated for appropriate screen time with visitors who couldn’t come to the facilities in person. In addition, DRWV requested and received a proclamation from the governor declaring October 2020 Residents Rights Month.

A client requested assistance with transition services from an ICF/IID that serves youth to a Specialized Family Care placement. He also wanted to ensure that the ICF/IID did not unnecessarily file a guardianship petition. DRWV filed a complaint with the Foster Care Ombudsman in order to get the WVDHHR to release the client's original birth certificate and Social Security card so that an identification card could be obtained. DRWV found that the ICF/IID had a medical provider blanketly recommend guardianship for each of their clients when they turn 18. DRWV attended the discharge meeting and educated facility staff on supported decision making. DRWV brought this to the attention of Working Interdisciplinary Networks of Guardianship Stakeholders (WINGS). Due to advocacy provided by DRWV, the client was re-evaluated to see if he required a guardian. It was found that he did not require a guardian. The client was discharged from the ICF/IID to live in a Specialized Family Care home where he receives I/DD Waiver services

Rights Restrictions/Violations

Voting

As a result of the collaboration between DRWV and the WV Secretary of State's Office on the option for and promotion of electronic absentee ballots in 2020, 271 people with disabilities voted in this manner in the November 2021 election, up from just 20 people when it was first offered.

DRWV conducted polling site accessibility studies at 316 sites in 12 counties in WV in FY 2021 to ensure access for people with disabilities. Reports were sent to the County Clerk of each county detailing the findings and providing information about the applicable accessibility standards.

I hope this newsletter conveys the commitment that DRWV has to citizens with disabilities in West Virginia.  If you know of anyone in need of our services, please have them call 800-950-5250.

Susan Given

Executive Director