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WV Legislative Interims: Committee on Health hears testimony on the federal investigation into the WVDHHR

By Autumn Shelton, WV Press Association

CHARLESTON, W.Va – The West Virginia Legislature’s Joint Committee on Health met this week during the December Interim meetings to hear testimony concerning the recently announced federal civil rights investigation into the West Virginia Department of Health and Human Resources (DHHR) on allegations of discrimination and improper administration of the intellectual and developmentally disabled (IDD) waiver program. 

Michael Folio, legal director of Disability Rights of West Virginia (DRWV), the organization which spurred the investigation after filing complaints, told committee members that services provided by William R. Sharpe, Jr. Hospital in Weston have been an “abysmal failure.” 

He explained that multiple employee sources have confirmed that the hospital is not in compliance with the Hartley order, which requires facilities to provide support, therapy and interventions for the state’s IDD population. 

Folio added that employees were directed, by leadership, to not discuss their concerns with DRWV advocates, and they had expressed a fear of retaliation if they were to do so. Lastly, he said the Department of Health and Human Resources (DHHR), under the leadership of DHHR Cabinet Secretary Bill Crouch, showed a “lack of transparency” in financial matters. 

“The more we dig into this, the more we see a pattern, a practice, a habit, a custom of concealing information, withholding information, trying to mischaracterize information,” Folio noted. “That violates federal law.” 

Cabinet Secretary Crouch, who was not included as a speaker on the committee’s agenda, later in the committee meeting took the stand to provide his sworn testimony (see below) regarding these allegations. Crouch noted that Folio had been an employee of the DHHR as general counsel for two years before assuming his current role. Crouch said before that time, the DHHR and the DRWV had not been “adversarial.” 

Folio told the committee that “the state has broken its promise with the IDD patients,” adding that 88 IDD patients are currently institutionalized statewide. 

“Roughly $20 million has been spent on those 88 patients,” Folio said. “The average patient (expenditure) per year, for an IDD patient who has been institutionalized, is over $310,000.” 

“For the amount of money that DHHR is spending to warehouse IDD patients, we could buy roughly 150 homes,” he noted. “There is just mismanagement of resources and a lack of oversight. It raises the question, ‘Why are these individuals institutionalized and not placed in the community?’” 

Folio stated that with regard to the federal investigation, “we have evidence that Mr. Crouch himself was involved in voluntarily committing an IDD patient. This should not happen,” Folio said. “This is not what this system is supposed to be.” 

He also stated that an Office of Health Facility Licensure & Certification (OHFLAC) informant shared that “a certain secretary” of the DHHR would be tipped off to any questions concerning DHHR facilities. As a result, he said a notice will be served to DHHR officials this week requiring them to “preserve all electronic data.” 

“We are convinced there has been preferential treatment provided to the state healthcare facilities,” Folio stated. 

Folio then shared a concern about “patient dumping.” 

According to Folio, approximately one month ago an IDD patient spent five days in the emergency department at Charleston Area Medical Center because his provider wouldn’t “take him back.” The patient was later committed to the Sharpe Hospital. 

Additionally, Folio said that geriatric patients are being institutionalized when they should be in nursing homes. 

Folio explained that 20 geriatric patients, who met discharge criteria for nursing home placement, were recently institutionalized at the cost of $16.9 million. 

“We have been told, and our monitoring has revealed, that Crouch has intervened and stopped the placement of those (patients),” Folio stated. 

Lastly, he said that “probable cause” has been found into discriminatory practices regarding IDD patients. 

Roughly, 40 percent of the time, the Sharpe Hospital exceeds its licensed bed capacity, according to Folio, but “nothing is being done.” 

Folio referenced a “plan” that Crouch allegedly claimed to have in place to correct these issues, before stating, “I have not seen this plan. I don’t think the plan has ever been disclosed–it’s never been revealed. I think it’s because there is no plan, and that’s where we are at. That is why this vicious cycle of institutionalization just continues to occur.” 

In his response, Secretary Crouch, who noted Folio had been with DHHR, said since Folio took his current position, the DHHR has received 25-30 letters regarding the Sharpe Hospital, Crouch said, adding that Folio’s testimony was both a “personal attack” and an “attack” on the DHHR. 

He explained that patients admitted to Sharpe Hospital are there via a court order and are often considered a “danger to themselves and others.” 

He added that the Centers for Medicare and Medicaid Services (CMS) is aware of the overbedding issues at the hospital, but that court ordered patients cannot be turned away. Instead, the DHHR must find another patient who can be relocated to another facility. 

“That is not always easy,” Crouch said, noting that diverting patients is part of his plan. 

“We work hard to make sure we keep that census down below the 200 beds at Sharpe,” Crouch said. 

He also noted that every employee is a mandatory reporter. 

“It’s not perfect, but we take good care of folks. So, the implication that we are covering anything up or not doing what we are supposed to do – it is wrong,” Crouch continued, before adding that he would like to see an investigation into both Sharpe Hospital and the DRWV. 

Sen. Amy Grady, R-Mason, then asked about an email that was sent to the staff at Sharpe and Huntington’s Mildred Mitchell-Bateman Hospital by Office of Health Facilities Chief Operating Officer Shevona Lusk which allegedly stated, ‘If you receive a request from Disability Rights of West Virginia requesting information, don’t provide a response.” The email then directed staff to DHHR leadership to “help with the response.” 

Crouch responded that at the time the email was sent, the DHHR did not have appropriate counsel. 

“It only went to CEOs,” Crouch further explained of the email. “It was a discussion Shevona and I had. It could have been written better. I agree. But the discussion was, we were getting all of these letters in, and how were we even going to respond to these.” 

“We were trying to make sure we had legal representation in terms of those responses. That’s it. It’s that simple,” Crouch said. 

In response to further questions about the IDD waiver system abuse problems that were brought up in prior meetings, Crouch stated that some group homes are underfunded. 

The largest in-state group home provider “promised” they would do a better job, but they aren’t, Crouch said. 

He added that no patient should be in a psychiatric hospital unless that is the “last resort.” 

“We try to move people into lower levels of care – the least restrictive level of care they can be in,” Crouch continued. “The problem we have is that group homes are inadequate–the number of group homes are inadequate in West Virginia. And that’s part of the plan that we had. Mr. Folio is aware of that.” 

Crouch said plans include creating additional facilities, but staffing remains an issue.

Additionally, he said, some long-term care facilities will not take combative patients. 

“But, we need more community placement and we need more people to staff those facilities in the community,” Crouch stated. 

In regards to the recent DHHR hiring freeze, Crouch noted that it does not affect “critical, crucial positions,” of which there is a current 30 percent staff shortage.

“The implication is we are keeping them in a level of care that they shouldn’t be in,” Crouch added of IDD patients. “If we are, it’s because we can’t find placement elsewhere.” 

“Everything we do is open. It’s public. Ask us for it, we will give it to you. We aren’t hiding anything,” Crouch said. 

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