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Virginia settles DOJ CRIPA/ADA investigation: to close 4 of 5 training centers.

After almost one year of intense negotiations, the Commonwealth of Virginia and the United States Department of Justice ("DOJ") resolved the DOJ investigation of Central Virginia Training Center ("CVTC") under the Civil Rights of Institutionalized Persons Act ("CRIPA") and the Americans with Disabilities Act ("ADA") by filing a Settlement Agreement with the United States District Court in Richmond on January 26, 2011. DOJ initiated a CRIPA investigation into the conditions of care at CVTC in August 2008, and in April 2010, expanded the investigation to focus on Virginia's compliance system-wide with the ADA. In February 2011, DOJ issued a lengthy "findings" letter detailing Virginia's failure under the ADA to serve individuals with intellectual disabilities residing in state-operated training centers in the most integrated settings appropriate to meet their needs consistent with their choice.

Newly Mandated Services

The centerpiece of the Settlement Agreement is the increase in the number of waiver slots to be made available under the Home and Community Based Waiver programs to 4,170 over a period of ten years to address the needs of the Agreement's "target population." The target population is defined as all individuals with a developmental disability who 1) reside at any of the training centers, 2) meet the wait list criteria for the Intellectual Disability ("ID") or Developmental Disability ("DD") waivers, or 3) currently reside in a nursing home or intermediate care facility.

There are currently 5932 individuals on Virginia's wait list. In order to address the needs of all individuals with intellectual and developmental disabilities beyond the number of waiver slots available, Virginia has also agreed to develop an individual and family support program to serve individuals not receiving waiver services. "Individual and family support services" are defined as "a comprehensive and coordinated set of strategies that are designed to ensure that families who are assisting family members with [ID or DD] or individuals with ID/LDD who live independently have access to person-centered and family-centered resources, supports, services and other assistance."

In addition, Virginia must also develop a statewide crisis system to support individuals and their families in each health service area. Crisis services will include mobile crisis teams that will provide assessments, support, and treatment to de-escalate a crisis, available 24 hours per day for up to three days with a three-hour response capability by June 30, 2012, and ultimately within one hour in urban areas and two hours in rural areas. Each region will have at least one crisis stabilization program containing no more than six beds with lengths of stay not to exceed 30 days. With the exception of the Pathways Program at Southwestern Virginia Training Center, which must close by July 1, 2015, no crisis stabilization program may be located on the grounds of any training center or inpatient psychiatric hospital.

The Department of Behavioral Health and Developmental Services ("DBHDS") must also hire at least one employment service coordinator to develop a plan the first year to establish Employment First practices that will focus on development of integrated and paid employment services to enable people with intellectual disabilities to participate in meaningful mainstream work activities. In addition, Virginia must also hire a housing service coordinator to develop a plan the first year of the Settlement Agreement to increase access to independent living options. It must also establish an $ 800,000 fund to provide rental assistance to those in the target population who need it.

Facility Closures

With such a significant enhancement to the community services system, there will be little need to operate expensive and outdated and dilapidated state institutions. Southside Virginia Training Center in Petersburg is therefore projected to close by June 30, 2014; Northern Virginia Training Center in Fairfax by June 30, 2015; Southwestern Virginia Training Center in Hillsville by June 30, 2018; and Central Virginia Training Center near Lynchburg by June 30, 2020. Southeastern Virginia Training Center in Chesapeake, will continue to operate a 75-bed safety net program. Ironically, former Governor Timothy Kaine proposed its closure in 2009. The General Assembly rejected the proposal and funded the building of a 75-bed replacement center. Construction is projected to be complete this Spring.

Only 1,018 individuals currently reside in the five state-operated training centers. The average annual cost to care for an individual with an intellectual disability in a state training center is $216,000. The average cost to provide comparable care to the same individual in the community is $138,000. The Department of Planning and Budget estimates the cost of implementing this Settlement Agreement over the next 10 years at $2 Billion. However, approximately 50% of the cost of services under the Medicaid waivers will be reimbursed by the federal government. Each of the five training centers contain very large, old, dilapidated and asbestos ridden buildings that have become very expensive to maintain, plus they also sit on very large, attractive and valuable parcels of land. In the long term, savings to the Commonwealth should far outweigh the costs to institutionalize individuals with the added benefit that the quality of life and autonomy for Virginians with intellectual and developmental disabilities and their families will be significantly improved.

Virginia will face enormous challenges implementing the Settlement Agreement over the next ten years. It remains to be seen whether legislators in the localities where facilities are located will permit the closures; whether employees who may lose their jobs will embrace the changes that will need to be made to safely discharge the people for whom they have cared for many years; and whether family members fearful that their loved ones will become isolated in the community and subjected to abuse, neglect and a diminished level of care will sue to prevent the closures. Adequate employment opportunities should be developed in the community to provide a livelihood for current state employees who embrace the intensive person-centered planning programs that will soon be provided. DBHDS will need, however, to earn the trust of family members by significantly expanding its licensing and quality insurance infrastructure and capacity in order to ensure adequate monitoring of community programs to prevent abuse, neglect and inadequate levels of care. The Settlement Agreement contains numerous requirements to do this.

Discharge Planning

In order to meet the formidable goal of closing four facilities, DBHDS must change staff culture from one that views individuals with disabilities as people for whom they must provide care to one that embraces the concept that individuals with disabilities can live safely in the community and thrive. To do so, Virginia has agreed to implement a comprehensive discharge planning process by July 1, 2012. All staff must be trained in a person-centered and family-centered discharge planning process, designed to assist the individual in achieving outcomes that promote the individual's growth, well-being, and independence, based on the individual's strengths, needs and preferences. Staff must also be provided with knowledge about resources available in the community. Discharge planning will be based on the presumption that with sufficient supports and services, all individuals can live in an integrated setting, including those with complex behavioral and medical needs. Each training center will have coaches to provide guidance to each individual's Personal Services Team.

DBHDS will also establish a central office Community Integration Manager position at each training center to facilitate communication and planning with individuals, their families, the Personal Support Teams and private providers. Community Resource Consultants will also be hired for each region to provide oversight and guidance to community services boards ("CSBs") and providers. Each region will also have a Regional Support Team ("RST") to resolve individually indentified barriers to discharge and to review placements to ensure they are the most integrated setting for that individual. Anyone for whom continued placement at a training center, or placement in a nursing home, intermediate care facility ("ICF"), or congregate care setting, defined as any placement with five or more residents, is recommended must be referred to the RST.

All individuals currently residing in a training center must have a discharge plan developed within six months and for all individuals admitted thereafter, within 30 days of admission. Provider choice and involvement in the individual's transition is mandated. For individuals and/or their authorized representatives who oppose a proposed placement after being informed of the proposed options for placement, their Personal Support Teams must identify and try to resolve the concerns, develop individual strategies to address the concerns and document steps taken to resolve the concerns and provide them with information about community placements. Discharge plans must be updated within 30 days prior to discharge and once a provider is selected, the individual should be discharged within six weeks. Follow-up monitoring of the placement must occur at 30, 60, and 90 day intervals.

Quality and Risk Management Systems

In order to ensure the quality of placements and the safety of each individual, and earn the trust of objecting family members, Virginia must significantly enhance its quality assurance, risk management and licensing infrastructure. All training centers, CSBs and providers of residential and day services will be required to implement risk management programs that must include uniform risk triggers and thresholds, and quality improvement programs, including root cause analyses designed to identify and address significant service issues. Virginia must develop a real-time, web-based incident reporting system requiring any staff of any public or private provider to report any suspected abuse or neglect to DBHDS. All reports must then be investigated with corrective action plans developed under the DBHDS licensing and human rights regulations.

DBHDS must also establish a mortality review team to conduct monthly mortality reviews for all reported unexplained or unexpected deaths. DBHDS must begin collecting and analyzing reliable data concerning 1) safety and freedom from harm, such as abuse, neglect, injuries, seclusion, restraint, deaths, effectiveness of corrective actions and licensing violations; 2) physical, mental and behavioral health and well-being; 3) crisis avoidance; 4) stability of placements and living situations; 4) choice and self-determination; 5) community inclusion; 6) access to services; and 7) provider capacity.

Further, Virginia must establish Regional Quality Councils composed of residential and other providers, CSBs, individuals receiving services and families, individuals experienced in data analysis, and other stakeholders. These Councils will be responsible for assessing relevant data, assessing trends and recommending responsive actions. In addition, Virginia must develop positive and negative outcome measures that each CSB and provider must report to a DBHDS quality improvement committee. DBHDS must also implement Quality Service Reviews to assess the adequacy of all providers' quality improvement strategies.

By January 2013, case managers must meet with individuals face-to-face at least every 30 days, with at least one visit every two months occurring in the individual's residence, to observe the individual in his or her environment to assess for risks, injuries, needs and other changes in status, and to assess whether the individual's support plan remains appropriate and is being implemented appropriately. DBHDS' licensing staffmust also conduct regular, unannounced inspections of community providers and more frequent inspections of providers with conditional or provisional licenses or who serve individuals with intensive medical or behavioral needs, utilize crisis services, serve individuals discharged from training centers within the previous 12 months, or operate congregate settings.

Administrative Provisions

The Settlement Agreement will give Virginia ten years, until June 30, 2021, to comply unless extended upon agreement of Virginia and DO J, or proof by DOJ that Virginia has failed to substantially comply. The Settlement Agreement could be dismissed sooner if Virginia demonstrates substantial compliance with all of its terms for a full year. The Agreement will be monitored by an independent reviewer, Donald J. Fletcher, former Executive Director of the Association for Community Living that provides supports, resources and programs to individuals with intellectual disabilities and their families residing in western Massachusetts. The independent reviewer must file semi-annual compliance reports with the Court. In carrying out his obligations under the Agreement, the independent reviewer may hire whatever staff he may need and will have unaccompanied and unsupervised access to all programs, facilities, employees, individuals receiving services, their families, and records, including all individual medical and services records, death and serious incident reports, root cause analyses, and quality improvement and risk management data. Virginia will pay all the costs of the independent reviewer and his staff, subject to the test of reasonableness, which will be monitored by the Court.

The DOJ Settlement Agreement containing the detailed requirements and timelines, as well as the Complaint filed in the United States District Court may be accessed on the DOJ website at: 12.p_d_df. The DOJ "findings" letter, DBHDS Fact Sheet, Settlement Agreement and other information may be accessed on the DBHDS website at:
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Title Annotation:United States Department of Justice, Civil Rights of Institutionalized Persons Act
Publication:Developments in Mental Health Law
Date:Feb 1, 2012
Previous Article:Understanding and applying Virginia's new statutory civil commitment criteria.
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