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The Advocare – September 2010

September 2010

A Publication of West Virginia Advocates.

Protecting and Advocating for the Human and Legal Rights of People with Disabilities

Download the September 2010 Advocare in PDF.


From the Executive Director

It seems that in the fast moving electronic age in which we are living, change occurs so quickly that sometimes it is virtually impossible to keep up with all of it. That has never been truer than in September of 2010. It is that time of the year again when we publish our priorities and objectives for our fiscal year (FY 2011) that will begin on October 1, 2010. I want to thank everyone who so generously participated in our public comment period and P&O workgroup to help us create the blueprint to guide us in serving the disability community in the coming year. Your efforts are greatly appreciated. The FY 2011 P&Os are printed for you in this newsletter and they can also be accessed on our website.

As this newsletter goes to print there are several changes happening in the coming months that everyone concerned about disabilities should be aware of and concerned about. Like all changes, they contain the seeds of new opportunities, but also carry the risk for harm. It is important to be aware of these changes as they are implemented and be vigilant to assure that the rights and life safety of the people impacted by these changes are upheld and protected and that the right of access to programs and related due process rights guaranteed by law be preserved.

While Olmstead is the law of the land, somehow in West Virginia the bias toward institutional care rather than community based mental health services continues to flourish. Despite yet to be implemented Hartley court orders and Olmstead more progress is occurring on increasing the number of in-patient psychiatric treatment beds than on creating more cost effective and healthier community services. Economic development plans in Clarksburg WV include Highland Hospital taking over the soon to be vacated premises of United Hospital Center and opening about 300 inpatient psychiatric and addiction treatment beds. With an expansion of beds already done at Bateman Hospital and an expansion of beds at Sharpe Hospital in the construction stage, one wonders why more beds are being planned. While this plan may produce jobs, those jobs could be created just as effectively to serve adults and children with mental illness in their communities instead of placing them in more restrictive institutional settings. When these plans are combined with the planned changes in WV Medicaid for SSI recipients, the question needs to be asked exactly for whose benefit these changes have been designed. Developments certainly do not suggest that the civil rights and treatment needs of citizens with mental illness in West Virginia have been a priority. When one adds into account the troublesome number of Behavioral Health Providers who are currently having serious problems meeting licensure requirements to maintain their licenses, especially in the area of life safety, it becomes disturbingly clear that the problems are not just in the area of mental health, but in the area of developmental disabilities as well. We may have closed our large ICF/MR institutions, but there are serious indications that folks may not be safe enough receiving services in the community, including ICF/MR group homes. Instead of focusing on attaining the highest quality of care and making sure that people with disabilities receive full access to their civil and legal rights, it seems profit making, politics and experiments to control government spending at the expense of those whom the government is responsible to serve is alive and well in West Virginia.

Beginning July 1, 2010, the West Virginia Bureau of Medical Services (BMS) is making a sweeping and historic change in the delivery of Medicaid services to people who receive SSI benefits. Except for SSI recipients receiving Title XIX MR/DD or Aged and Disabled Waiver service, Medicaid coverage will be changed from a Fee For Service to a Managed Care services model that will be provided by a Managed Care Organization (MCO). The familiar “fee for service model” where you choose any doctor you want who will accept a Medicaid card and then go to your doctor for treatment and your doctor bills Medicaid directly each time they serve you, is being done away with. A new system based on “capitated payments ” is being put in its place. Capitated means that the state pays a fixed amount of money per year for each person on Medicaid. That cost is paid to an insurance company called an MCO. The cost to the state stays the same no matter how much or how little you use your Medicaid card. The more services you use the less money the insurance company gets to keep as profit. The less you use the more profit the insurance company makes. There will be three Managed Care Organizations (MCOs) who will be responsible for providing and overseeing all Medicaid services in West Virginia for SSI recipients who come under this plan. This includes behavioral health services as well as medical services. This MCO system completely changes how healthcare works for both the consumers and healthcare providers affected. There are many concerns about these changes and the impact they will have. One of West Virginia Advocates’ greatest concerns is that it will result in more commitments to the already overcrowded state psychiatric hospital system. Sharpe and Bateman Hospitals do not use Medicaid money to pay for the services at those hospitals. Community based services are charged to Medicaid. Therefore there is a potential for it to be more profitable for an MCO to commit a person with mental illness to the hospital than to serve them in the community. This has the potential not only to cause significant civil rights violations for people with mental illness, but to make the already overcrowded state facilities even more crowded rather than carrying out the agreed upon Hartley Order to develop community based mental health services. This situation will need to be monitored very closely. Our other serious concern is that in most other states where this has been tried it has not been successful. Both insurance companies (MCO) and health care providers suffered financial losses and access to and quality of services deteriorated significantly for the Medicaid recipients. The rural nature of WV and the limited number of specialists in some parts of the state, especially psychiatrists, raises some serious issues as well regarding the ability of each MCO to attract and retain enough providers to meet the needs of the patients assigned to their plan. Given the dreadful track record of the WV Medicaid reform with Mountain Health Choices Program, people whom these new changes effect, whether they are patients or doctors, should pay very close attention to what is happening.

It is very important that if you receive notices in the mail about your Medicaid services you don’t throw them away. Make sure you read them and get help understanding them if necessary. They will be extremely important to your ability to obtain medical and behavioral health services. Consumers are scheduled to begin to be enrolled in December 2010, and it is expected that by, if not before, November 2011 all eligible SSI recipients will be enrolled statewide. Notices will be sent out 45 days before your coverage is scheduled to change over to an MCO. If you do not respond to this notice, you will be automatically assigned to an MCO who will then become your provider and you lose your right to make that choice. Make sure to ask the doctors and other people that you now use your Medicaid card to get services from if they are signed up as a provider with an MCO and if so what it is called. If your doctor is not a member of the MCO you get assigned to, you cannot continue to use that doctor. It is important that you ask questions and make the best choice for you while you have the right to do so. As the information becomes available, West Virginia Advocates will be keeping our website updated to help you understand these changes. You can also call our intake department if you need assistance.

The Bureau of Medical Services (BMS) will be implementing a new Title XIX MR/DD Waiver Program authorization in the coming months. This program has to be reauthorized every five years by the Centers for Medicaid and Medicare (CMS), the federal government agency that pays for Medicaid. Once the application is approved by CMS, the Bureau of Medical Services will have to publish a new MR/DD Waiver Manual with all of the details for the program and distribute that to all recipients of services, as well as, providers and train everyone on the changes. At this time the schedule for implementation of the new authorization is not available, but you can expect it to probably occur between late fall of 2010 and June 30th 2011. The application that was submitted to CMS does not contain significant changes in the rules used to establish initial or recertification eligibility. However, it does contain some significant changes in the way services will be delivered. However, until CMS approves the final application it is not possible to provide factual information on what those changes will be. The proposed application sent to CMS contains a choice for self directed services for the first time. While this is not the option of choice for everyone, it is a long awaited opportunity for those individuals who can benefit from it. West Virginia Advocates is very pleased to see the increased transparency that is occurring in the administration of the MR/DD Waiver program. For the first time in many years, there were genuine good faith efforts made by BMS to offer a meaningful public comment period on the application packet before it was submitted. It was refreshing to know comments were taken seriously and changes were made based on some of that input. It is also heartening to see a change of attitude toward the role of the MR/DD Waiver QA/QI Advisory Council. We are hopeful that the recent changes in the administration and management of the MR/DD Waiver Program made by BMS will bring some much needed improvements to this program, especially in the areas of life safety and quality of services. APS Healthcare appears to genuinely be working hard to make the transition as the agency administering the MR/DD Waiver successful and to carry out the requirements of that program that have been grossly neglected for far too long.

If you are concerned about disability issues and you are not a registered voter, we urge you to get registered and then make sure to vote. There will be important WV elections in November of this year and in November 2012. The WV Legislature and the Governor have tremendous power to decide what programs do and do not get funded in this state. Voting is one tool that you can use, without ever even having to leave your house, and without spending any money. This is your chance to tell your legislators, governor, judges and other elected officials what is important to you. As I write this, a few blocks away at the Capitol Rotunda in Charleston memorial services are underway for Senator Robert Byrd who passed away this week. There will be an election to select his successor in the U.S. Senate. I hope, regardless of your political views, you will give thought to the impact Senator Byrd had, not only on West Virginia, but on the nation. The impact may be to your liking or not to your liking, but that is not the point. Whoever is voted into the Senate to fill his seat will make decisions about disability rights and funds for disability programs for years to come. You have a right and a responsibility to make sure that you learn who the candidates are and their positions on disability issues. You have the opportunity to vote for a candidate that supports your interests on disability issues. Think about that carefully, because your life just might depend on it! Soon WV will choose a new Senator for the first time in over 50 years, but we will also elect a new Governor in 2012. It is critical to have a Governor who is supportive of disability issues. One of the powers of the Governor that can impact strongly on people with disabilities is his or her veto power over the budget the Legislature approves. Access to services that support people living in the community of their choice rather than in an institution are often directly controlled by actions of the Legislature and the Governor. Like it or not services cost money and that money typically comes from state government through the budgeting process controlled by the Legislature and the Governor. In 2010 and 2012, the people who will make those decisions for years to come will be elected. What are you planning to do about it?


West Virginia Advocates is currently accepting editorials and letters to the editor. We will sort through submissions and will choose one to print in our next edition of the Advocare. The subject should be disability related. This is a chance to have your voice heard on the issues that affect you. You may submit your editorials and letters to:

  • WV Advocates
    1207 Quarrier St Ste 400
    Charleston, WV 25301;
  • Facsimile: (304) 346-0867; or
  • E-mail:

West Virginia Advocates reserves the right to edit content as WVA deems necessary. By submitting content you authorized WVA to use and print your content, name, and any other information you submit. If you wish to remain anonymous, please indicate this prominently in your submission.

Update on Hartley

In March of 2009, the Hartley Petitioners became aware that the Respondent Department of Health and Human Resources (DHHR) had informed the behavioral health care providers that all Medicaid benefits for SSI recipients, including clinic and rehabilitation services, would be administered by three managed care organizations (MCOs). DHHR had not advised Petitioners in advance of this proposed change, which will likely have a significant impact on the implementation of the Agreed Order.

When confronted, DHHR representatives asserted that this transition to managed care was being done in order to “coordinate” all of the care of a given individual. Petitioners learned subsequently, however, that the MCOs will be subcontracting behavioral health services to other entities, so we have questioned this explanation.

Petitioners are also concerned that this transition will have the effect of increasing commitments to the state hospitals. Managed care reimbursement rates are too low, and their utilization guidelines too strict, for people with chronic and severe mental illness. This has been demonstrated time and again in the states that have tried to use MCOs to provide mental health services to this population. Clearly, utilizing for-profit organizations to curtail services to such a highly fragile and needy population as those with chronic and severe mental illness seems to contradict all reasoning behind the Hartley Orders.

On June 11, 2010, Petitioners filed a “Request for Resolution Regarding Respondents’ Failure to Produce Documents and Proposed Transition of Medicaid to Managed Care”. In this Request, Petitioners argued that DHHR had failed to provide necessary information and that the proposed transition of Medicaid to managed care will cause an increase in inpatient commitments. On July 26, 2010, Judge Bloom entered an “Order Denying Petitioners’ Request for Resolution”. Judge Bloom stated that there was no basis for holding an evidentiary hearing at this time, because “no injury has occurred and any proposed future injury as alleged by the Petitioners is purely speculative.”

Meanwhile, the portion of the Hartley Order that addresses issues related to Traumatic Brain Injury (TBI) has been appealed by DHHR to the West Virginia Supreme Court of Appeals. The Court will hear oral arguments on that appeal during its Fall Term.

WV Special Education Forum

If you have questions regarding Special Education in West Virginia, please register for WVA’s Special Education Forum at

WVA is recruiting for its Board of Directors

WVA has several vacancies on our Board of Directors that it needs to fill. We need at least one person who is the legal guardian (court-appointed) of an individual with mental illness to serve on the Board to meet the requirements of our PAIMI grant.

If you are interested in serving on WVA’s Board, the application can be found on our website, or you may call us at (800) 950-5250.

Update on Benjamin H.

In 2008, West Virginia Advocates, Inc. joined with Mountain State Justice, Inc., the National Health Law Program and WV EMS Technical Support Network, Inc. to file a Motion for Enforcement in federal court on behalf of a class of individual Plaintiffs who are placed on the West Virginia Medicaid MR/DD waiver wait list after being determined to be eligible for waiver program services.

The motion filed in the United States District Court in Huntington, West Virginia asked the Court to find the Defendant, West Virginia Department of Health and Human Resources (DHHR), in violation of a March 15, 2000, Order in Benjamin H. v. Joan Ohl, Secretary, West Virginia Department of Health and Human Resources, which required the State to assure that the West Virginia Medicaid MR/DD Waiver wait list move “at a reasonable pace”, defined as having services begin within 90 days of the date eligibility is determined.

The complaint filed on behalf of this group of plaintiffs addressed issues such as the rights of individuals to be aware of the choice of institutional or home and community-based services, the right to apply for Medicaid services, the sufficiency of the Medicaid services provided by the DHHR, and the promptness with which those determined to be eligible for Medicaid services can receive them.

A settlement was reached between the parties and an Agreed Order was signed by Judge Robert C. Chambers and entered on April 8, 2009. Since that time, the parties have monitored DHHR’s compliance with provisions contained in the Agreed Order. This year, DHHR decided to accelerate its expansion of the MR/DD waiver and added 150 slots to the program for the period beginning July 1, 2010, rather than waiting until July 1, 2012 (FY 2013), as provided in the agreement. In addition, the Department filed a Medicaid state plan amendment to include the provision of “personal care services” in the home or community, based on medical necessity criteria. DHHR also started a program called “inROADS” (Information Network for Resident Online Access and Delivery of Services), which includes an online screening process that evaluates individuals for eligibility for programs and allows them to apply for and review benefit information online.

As provided in the Order, the parties will continue to meet on a quarterly basis to assess the adequacy and efficiency of the MR/DD waiver program.

Community Corner

Community corner is a place in our newsletter for you to read information on disability related organizations, events, activities, et cetera in our community. If you know of an event that is disability related from your community and want to see it published in our newsletter, please contact us at (800) 950-5250;; or 1207 Quarrier St Ste 400, Charleston, WV 25301.

NWVCIL Seeks Board Members

The Northern West Virginia Center for Independent Living, NWVCIL, is seeking volunteer board members to provide direction and guidance for their consumer directed, non profit disability resource center. The full board meets bimonthly. Currently, there are 6 vacancies that need filled with community members, local business representatives, consumers, and others who are interested in equality for all. 51% of their board positions must be held by qualified individuals with disabilities.

In addition to growing their general membership representing their vast service area, their most immediate need includes a Treasurer. NWVCIL receives federal, state, and local dollars from multiple funding sources. Accounting of these funds is provided by a contracted CPA firm, using Quick Books for Non Profits and must follow the standards outline in the OMB Circular A-122. The center is subject to an A133 compliance audit annually. The treasurer assists the management of the center in monitoring compliance with federal grants management and works with the CPA firm in presenting the financial reports to the remaining members, while providing additional over sight with fiduciary responsibilities.

They are seeking volunteers who have an interest in non-profit management, providing guidance and direction as they continue to be a community based, consumer directed resource center for persons with disabilities working to ensure equality for all. If interested, please contact Jan Derry, Executive Director at 296-6091 or

WVDRS Consumer Affairs Committees

Consumer Affairs Committees support the mission of the West Virginia Division of Rehabilitation Services by working to empower people with disabilities in making informed choices and achieving equality of opportunity, meaningful employment, independent living, and economic and social self-sufficiency.

The committees plan and carry out a broad range of activities in cooperation with community leaders in business, government, health care and education, along with other interested organizations and individuals. The committees’ activities address a broad range of shared goals, including public awareness and support for the rights, individual dignity, personal responsibility, full inclusion, equal access, self-determination and community involvement for all people with disabilities.

With local leadership, the Consumer Affairs Committees work independently as concerned citizens. Membership is open to all persons desiring to participate, whether or not they are persons with disabilities. All committee members are volunteers, and all committee meetings are open to the public.

The Division recognizes and values the contributions made by Consumer Affairs Committees. To maintain and strengthen this long-standing partnership, the Division provides guidance, information and other resources to committees statewide through its District Offices and the Consumer Affairs Office.

To learn more about the committee nearest you or to volunteer as a member, telephone either the District Office serving your area or the Consumer Affairs Office at 1-800-642-8207 (V/TDD) or 304-766-4845.