Case 3:12-cv-00059-JAG Document 1 Filed 01/26/12 Page 1 of 11 PageID# 1

IN THE UNITED STATES DISTRICT COURT

f

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

. . 2 62012

UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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COMMONWEALTH OF VIRGINIA,

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Defendant.

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COMPLAINT

CLERK. u.s. DISTRICT COURT
RICHMOND VA
CIVIL ACTION NO: 0: I-<..CYosq
COMPLAINT FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. §§ 12131-12134

The Commonwealth of Virginia ("Commonwealth") discriminates against persons with

disabilities, within the meaning of title II of the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. §§ 12131-12134, and its implementing regulations by depriving persons

with intellectual and developmental disabilities ("IDIDD") of the opportunity to receive services

in the most integrated setting appropriate to their needs, placing such individuals at risk of

unnecessary institutionalization, and unnecessarily institutionalizing many of them.

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action under title II of the ADA, 42 U.S.C.

§§ 12131-12132, and 28 U.S.c. §§ 1331 & 1345. This Court may grant the relief sought in this

action pursuant to 28 U.S.C. §§ 2201-2202.

2. Venue is proper in this district pursuant to 28 U.S.C. § 1391, as a substantial portion of

the acts and omissions giving rise to this action occurred in the Eastern District of Virginia.

28 U.S.C. § 1391(b).

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PARTIES 3. Plaintiff is the United States of America. 4. Defendant, the Commonwealth of Virginia, is a "public entity" within the meaning of the ADA, 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104, and is therefore subject to title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.
STATUTORY AND REGULATORY BACKGROUND 5. Congress enacted the ADA in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities[.]" 42 U.S.C. § 12101(b)(1). It found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem[.]" 42 U.S.C. § 12101(a)(2). 6. For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities: "(N}o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. 7. The Department of Justice has authority to enforce title II and to issue regulations implementing the statute. 42 U.S.C. §§ 12133-34. The title II regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The preamble discussion of the "integration regulation" explains that "the most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]" 28 C.F.R. § 35.130(d), App. Bat 673 (2011).

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8. Regulations implementing title II of the ADA further prohibit public entities from utilizing "criteria or methods of administration" that have the effect of subjecting qualified individuals with disabilities to discrimination or "that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's progmm with respect to individuals with disabilities[.]" 28 C.F.R. § 35.l30(b)(3). 9. In Olmsteadv. L.e., 527 U.S. 581,597 (1999), the Supreme Court held that title II prohibits the unjustified segregation of individuals with disabilities. The Court explained that its holding "reflects two evident judgments." Id. at 600. "First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." Id. "Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." [d. at 601. 10. Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607.

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FACTUAL ALLEGATIONS The United States' Investigation of Virginia 11. On August 21, 2008, the United States notified the Commonwealth that it was commencing an investigation of the Central Virginia Training Center ("CVTC"), pursuant to the Civil Rights ofInstitutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. 12. On April 23, 2010, the United States notified the Commonwealth that it was expanding the investigation to focus on the Commonwealth's compliance with the ADA and Olmstead with respect to individuals at CVTC. 13. During the course of the expanded investigation, the United States determined that an examination of the Commonwealth's measures to address the rights of individuals at CVTC under the ADA and Olmstead implicated the statewide system and required a broader scope of review. Accordingly, the United States examined statewide policies and practices, and met with and collected information from individuals from throughout the Commonwealth, including persons in statewide leadership positions, providers of community services, and individuals with ID/DD receiving services in a variety of settings throughout Virginia. 14. On February 10,2011, the U.S. Department of Justice sent a letter of findings notifying the Commonwealth that it was violating the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia. The letter reported in detail the findings of the Department's investigation, provided the Commonwealth notice of its failure to comply with the ADA, and outlined the specific steps necessary for the Commonwealth to meet its obligations under the ADA. 15. The Commonwealth and the United States subsequently entered into negotiations to resolve the violations identified in the letter of findings. After months of negotiations, the

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Parties have reached a settlement agreement to resolve these claims and simultaneously are filing a "Joint Motion for Entry of Settlement Agreement and Brief in Support Thereof."
The Commonwealth's System for Serving Individuals with IDIDD 16. The Commonwealth is responsible for the administration, funding, planning, licensing, and delivery of services to its citizens with ID/DD. Specifically, the Commonwealth plans and designs the services offered, reviews the quality of care and safety across settings, and licenses and inspects IDIDD service providers, including the state-operated training centers. It also allocates within the system all funds appropriated from federal, state, and other sources, including Medicaid funding for the training centers, private Intermediate Care Facilities for the Mentally Retarded ("ICF-MR"), private nursing facilities, and Home and Community-Based Services ("HCBS") waivers. The Commonwealth also administers the waitlists for services provided through HCBS waivers and seeks approval from the U.S. Department of Health and Human Services to obtain new waivers. 17. The Commonwealth's system for serving individuals with IDIDD is comprised of five state-operated training centers for individuals with intellectual disabilities; 40 locally-run community services boards ("CSBs"); and multiple private providers of services and services in various settings, including group homes, sponsored placements, private nursing facilities, and private ICF-MRs. 18. The Commonwealth funds community-based services for individuals with ID/DD primarily through its HCBS waivers under the federal Medicaid waiver program, which permits the waiver of certain Medicaid statutory requirements to enable states to cover a broad array of community-based services for targeted populations as an alternative to institutionalization. The

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Commonwealth's HCBS waiver services are delivered through CSBs and private providers that are approved by the Commonwealth. 19. Through the waiver and other funding and coordination, the Commonwealth provides treatment and support services to assist persons with ID/DD with integrating into, successfully living in, and contributing to the community. Among the services that the Commonwealth provides or contracts for are: assistive technology; companion services; crisis stabilization and crisis supervision; day support; environmental modifications; in-home residential support services; residential support services; respite services; personal assistance; personal emergency response system; prevocational services; skilled nursing; supported employment; therapeutic consultation; and transition services. 20. Approximately 7,000 individuals with ID/DD are on waitlists for HCBS services in the community. 21. The Commonwealth's five state-operated training centers are licensed ICF-MRs located throughout the Commonwealth: (1) CVTC in Madison Heights, (2) Northern Virginia Training Center in Fairfax, (3) Southeastern Virginia Training Center in Chesapeake, (4) Southside Virginia Training Center in Petersburg, and (5) Southwestern Virginia Training Center in Hillsville. 22. The training centers are large institutional settings in which people receive residential and treatment services. The facilities' populations range from approximately 120 individuals to approximately 400 individuals. 23. The Commonwealth institutionalizes approximately 1,100 individuals in its stateoperated training centers. The average length of stay for individuals in the training centers

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ranges from approximately 21 years at Southside Virginia Training Center, to almost 42 years at CVTC. 24. In addition to the approximately 1,100 individuals institutionalized in the Commonwealth's five training centers, hundreds of other individuals with IDIDD, including children, are institutionalized in private ICF-MRs located throughout the Commonwealth. 25. More than 1,000 additional individuals with intellectual or other developmental disabilities, including children, are institutionalized in nursing homes throughout the Commonwealth.
Individuals in the Community Are at Risk of Unnecessary Institutionalization 26. The Commonwealth fails to provide services in the community of sufficient quality and in sufficient quantity to enable individuals with ID/DD to be served in the most integrated settings appropriate to their needs and prevent unnecessary institutionalization. As a result, individuals who want to remain in the community are forced to enter institutional settings, including the training centers, nursing homes, and private ICF-MRs. 27. The individuals with ID/DD on the HCSS waiver waitlists require community-based services and supports in order to avoid unnecessary institutional placements. 28. More than 3,000 of the nearly 6,000 individuals on the waitlist for the Intellectual Disability waiver have significant enough needs that the Commonwealth has designated them as "urgent." Without waiver services, these individuals are at particularly high risk of unnecessary institutionalization. 29. Approximately 1,000 individuals are on the waitlist for the Developmental Disability waiver, including many who qualify under "emergency" criteria due to the significance of their

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needs. Without waiver services, these individuals are at particularly high risk of unnecessary institutionalization. 30. The Commonwealth adds hundreds of individuals to the waitlists, including the "urgent" list, each year, and allocates insufficient numbers of new waivers to keep up with growth of the waitlists. 31. Individuals typically are on the waitlists for years before they receive, through a waiver or otherwise, the services they need to remain in the community. Some individuals are forced into institutional settings while they wait for services. 32. The Commonwealth has acknowledged, and the United States' investigation found, that more waivers, and more flexible waivers, are necessary to prevent unnecessary institutionalization, particularly of individuals with complex needs; a lack of housing options pose a critical barrier to individuals successfully receiving services in integrated settings in the community; deficient crisis services result in unnecessary institutionalization, especially for individuals with complex needs; and employment and other day programs are too often in segregated workshops or otherwise do not provide meaningful employment opportunities. 33. Serving individuals in community placements instead of in institutional settings is generally a more cost-effective option for the Commonwealth. The Commonwealth spends approximately $215,000 to serve a person in the training Center. It costs, on average, approximately $75,000 to serve an individual with IDIDD in the community. Even individuals with the most complex needs can be served appropriately in the community for significantly less than the cost of serving them in a training center, with the average cost being approximately $135,000 per person.

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Individuals Are Unnecessarily Institutionalized 34. Individuals in the training centers and in other institutional settings remain segregated in institutions despite the requirements of the ADA that they have the opportunity to receive services in the most integrated settings appropriate to their needs. 35. The training centers are congregate facilities managed and staffed by the Commonwealth for individuals with IDIDD. 36. The training centers are institutions that segregate individuals with IDIDD and do not "enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]" 28 C.F.R. § 35. 130(d). 37. The vast majority, and likely all, of the individuals at the training centers can benefit from community settings with appropriate community-based services and supports. Commonwealth officials have acknowledged that nearly all of the individuals in its training centers could be served in the community. Individuals at the training centers have needs that are similar to the needs of individuals who currently are being served in the community, including individuals who previously were institutionalized at the training centers. 38. Many individuals do not object to receiving services in a more integrated setting but remain in the training centers due to the lack of appropriate community services and supports, a flawed discharge planning process, and deficient coordination with community providers. 39. Additional individuals with IDIDD are institutionalized in nursing homes and private ICF-MRs that are funded, and part of the system administered, by the Commonwealth. Many of these individuals are unnecessarily institutionalized due to the lack of adequate communitybased supports and services.

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40. The Commonwealth lacks a comprehensive oversight and quality assurance system to ensure the safety and quality of services provided to individuals in the community. As a result, individuals and their families are often reluctant to seek community-based services.
VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 41. The allegations of Paragraphs 1 through 40 are hereby re-alleged and incorporated by reference. 42. Defendant discriminates against "qualified individual[s] with a disability," within the meaning of the ADA, by administering the Commonwealth's system of delivering services to individuals with IDIDD in a manner that denies thousands of people the opportunity to receive services in the most integrated setting appropriate to their needs, places such individuals at risk of unnecessary institutionalization, and leads to the unnecessary institutionalization of many of them, including individuals who are qualified to receive services in a more integrated setting and do not oppose receiving services in a more integrated setting. 43. The Commonwealth's actions as alleged herein constitute discrimination in violation of title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations.
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court: 44. Require Defendant to administer services for individuals with IDIDD in the most integrated settings appropriate to the needs of the individuals; and 45. Enjoin Defendant from administering services for individuals with IDIDD in a manner that unnecessarily isolates and segregates such individuals from the community; and 46. Order such other appropriate relief as the interests ofjustice require.

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Dated: January 26, 2012 FOR THE UNITED STATES:

Respectfully submitted,

NEIL H. MacBRIDE United States Attorney Eastern District of Virginia
Assistant United States Attorney 600 East Main St., Suite 1800 Richmond, VA 23219 (804) 819-5400 Fax: (804) 819-7417 Robert.Mclntosh@usdoj.gov VA Bar #66113

Assistant Attorney General Civil Rights Division
EVE HILL Senior Counselor
ALISON N. BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
JONATHAN SMITH Chief Special Litigation Section
B NJA IN . TAYLOE, JR. Duty, Chief A~ B. ZISSER JACQUELINE K. CUNCANNAN Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington. D.C. 20530 (202) 305-3355 Fax: (202) 514-4883 Aaron.zisser@usdoj.gov

 </s> Case 3:12-cv-00059-JAG Document 19 Filed 03/02/12 Page 1 of 9 PageID# 77

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff, v.
COMMONWEALTH OF VIRGINIA, Defendant.

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CIVIL ACTION 3:12-cv-059

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MOTION TO INTERVENE

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Fed. R. Civ. R. 24

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Proposed Intervenors, PEGGY WOOD, by and through her father, Wriley Wood; BARBARA SUSAN FALLIS, by and through her father, Charles Fallis; TAMI LASSITER, by and through her father, Arnold Lassiter; TERESA KOURY, by and through her sister, Lorraine Koury; JONATHON SPEILBERG, by and through his father, Howard Spielberg; MARINDA LEWIS, by and through her father, Charles Lewis; ADAM SAMUEL BERTMAN, by and through his mother, Judith Korf; JASON KINZLER, by and through his mother, Jane Anthony; KEVIN PATRICK MORAN, by and through his mother, Mary Jane Moran; NEAL HAMPTON, by and through his Mother, Loretta Evans; SEAN JOHNSON by and through his mother Alice Johnson; KENT OLSEN, by and through his father, Kent Olsen and AMBER ROBINSON, by and through her father, Wade Robinson, (hereinafter collectively referred to as the “Proposed Intervenors”) respectfully submit this Motion to Intervene, pursuant to Rule 24 of the Federal Rules of Civil Procedure, for an Order allowing the Proposed Intervenors to intervene in the above-captioned matter, and aver the following:
BACKGROUND 1. The Proposed Intervenors are residents of the five (5) training centers in the Commonwealth of Virginia whose rights are affected by this action. Not only do the Proposed

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Intervenors reside in the training centers, but they have chosen to reside at the training centers. The Proposed Intervenors require the services at the training centers and are being served in the least restrictive setting appropriate to their needs.
2. On January 26, 2012, Plaintiff, the United States of America, through the Department of Justice, Civil Rights Division (hereinafter referred to as the “DOJ”), filed a Complaint in the United States District Court for the Eastern District of Virginia against the Commonwealth of Virginia (hereinafter referred to as the “Commonwealth”), alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134. [Dkt. #1, Complaint ¶ 12]. The DOJ alleged that the Commonwealth was “violating the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia.” [Dkt. #1, Complaint ¶ 14]. That Complaint seeks declaratory relief and injunctive relief. Id. ¶ 44-45.
3. On the same day, the original parties filed a Joint Motion for Entry of a Settlement Agreement. [Dkt. #1, Complaint ¶15] (stating “the parties have reached a settlement agreement to resolve these claims and simultaneously are filing a ‘Joint Motion for Entry of Settlement Agreement and Brief in Support Thereof’”).
4. Among other things, the proposed settlement agreement requires the closure of four (4) training centers and thus requires the cessation of services at those training centers. [Dkt. #2-2, Settlement Agreement at 11 ¶9].
5. The Proposed Intervenors have a meaningful and concrete interest in their own care and their legally protectable rights, and therefore have an interest in this action. Notwithstanding the DOJ’s claim that appropriate care can only be provided by communitybased programs, the Proposed Intervenors believe that persons with intellectual disabilities
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should receive the care and services they require in a setting appropriate to each individual’s unique needs, be it an Intermediate Care Facility for the Mentally Retarded (“ICF/MR”) or an alternative setting. The Proposed Intervenors object to this action being allegedly prosecuted on their behalf when they do not seek the results that the DOJ has agreed to in the settlement agreement. Further, the Proposed Intervenors object because this action implicates their federally-protected rights and the settlement agreement executed by the original parties will deprive the Proposed Intervenors of these rights.
6. Pursuant to the settlement agreement, the Commonwealth of Virginia is required to discharge individuals from the training centers, but it is silent on the legally-required determinations by treating professionals of the most appropriate setting to meet the needs of the Proposed Intervenors, and silent on the legally-recognized rights of parents and guardians to oppose transfer or discharge.
7. If the settlement agreement were to be approved, the Proposed Intervenors would be transferred or discharged from the training centers without regard for the rights afforded them by the ADA, the decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), and other relevant law.
GROUNDS FOR INTERVENTION AS OF RIGHT 8. A movant is entitled to intervention as of right where: (a) the motion is timely, (b) the intervenor claims an interest relating to the property or transaction that is the subject of the action; (c) the intervenor is so situated that disposing of the action may as a practical matter impair or impede his ability to protect the interest; (d) existing parties do not adequately represent that interest. Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989); Fleming v.
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Citizens for Albemarle, Inc., 577 F.2d 236 (4th Cir. 1978), see also, JLS, Inc. v. Pub. Serv. Comm’n of W. Virginia, 321 F. App’x 286, 289 (4th Cir. 2009).
9. The Proposed Intervenors respectfully submit that this request for intervention is timely because the case is in its initial pleadings stage, in that the Complaint was just recently filed and because the intervention will not significantly expand the issues to be litigated. Scardelletti v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001); Media Gen. Cable of Fairfax, Inc., v. Sequoyah Condo Council of Co-Owners, 721 F. Supp. 775, 780 (E.D.Va. 1989). Further, no discovery has occurred yet in this case. See e.g., Cox Cable Communications, Inc., v. United States, 699 F. Supp. 917, 924 (M.D. Ga. 1988).
10. The Proposed Intervenors have a concrete, legally protectable interest in their own care (in particular, the availability of ICF/MR care), which is implicated in this litigation, particularly by the settlement agreement entered into by the parties. Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109 (E.D. Va. 1993). Specifically, they are all residents of ICFs/MR who do not wish to be forced into community-based care. Ligas v. Maram, 2010 U.S. Dist. LEXIS 34122, 12 (N.D. Ill. Apr. 7, 2010). The Proposed Intervenors have rights afforded them by the ADA to receive services in the most appropriate setting for their needs. They also have rights recognized by the Olmstead decision to be transferred or discharged only upon the recommendation of treating professionals and where such transfers or discharges are not opposed by the residents or their guardians. Olmstead at 587.
11. The settlement agreement, if approved, will impair or defeat the rights of the Proposed Intervenors to choose ICF/MR care, as well as their rights to be discharged in compliance with the ADA and the Olmstead decision. The Proposed Intervenors will, as a practical matter, be bound by the terms of the settlement in this case. Additionally, the Proposed
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Intervenors will suffer substantial harm if the settlement agreement were adopted and they were forced into community supported living against their wishes or inconsistent with professional judgment. JLS, Inc. v. Pub. Serv. Comm’n of W. Virginia, 321 F. App’x 286, 289 (4th Cir. 2009). Because both the DOJ and the Commonwealth seek to force all training center residents to “choose” community-based care, whereas the Proposed Intervenors wish to protect their rights to choose appropriate treatment in an ICF/MR setting, the original parties lack the ability to adequately represent the interests of the Proposed Intervenors. Furthermore, the Commonwealth, which appears to acquiesce in assertion by the DOJ that community placement is appropriate for all persons residing in the state-operated ICFs/MR, cannot adequately represent the interests of the Proposed Intervenors. Additionally, as a matter of law, the DOJ does not represent the interests of any of the residents in the training centers. See, 42 U.S.C. § 1997; H. Conf. Rep. No. 96-897, 96th Cong., 2d Sess. 13, reprinted in 1980 USCCAN 837.
12. The original parties do not adequately represent the interests of the Proposed Intervenors because (a) they lack the substantive knowledge as to treating professionals’ judgments concerning appropriate placement for the residents at the training centers at issue as well as whether residents or their guardians would oppose discharge to alternative settings, (b) as government agencies, they represent, at best, only the public interest as a whole and not the specific interests of the Proposed Intervenors, JLS, Inc., 321 F. App’x at 289; and (c) they have settled on terms unfavorable to the Proposed Intervenors, including failing to raise issues associated with the appropriateness of care of residents in ICFs/MR as well as rights afforded them by the ADA and the Olmstead decision. [Dkt. #2-2, Settlement Agreement at 11].
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ALTERNATIVE GROUNDS FOR INTERVENTION 13. In the alternative, should the Court deny this motion for intervention as of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, the Proposed Intervenors move this Court for an Order, pursuant to Rule 24(b), allowing them to permissively intervene. 14. Federal Rule of Civil Procedure 24(b) permits, upon timely motion, permissive intervention when the party seeking intervention “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b). Permissive intervention lies within the discretion of this Court. Hill v. W. Elec. Co., Inc., 672 F.2d 381, 385-86 (4th Cir. 1982). 15. The Motion to Intervene is timely because (1) the case is in its initial pleadings stage in that the Complaint was filed recently; (2) the intervention will not significantly expand the issues to be litigated (see, Media Gen. Cable of Fairfax, Inc., v. Sequoyah Condo Council of Co-Owners, 721 F. Supp. 775, 780 (E.D.Va. 1989)); and (3) no discovery has occurred yet in this case. See, e.g., Cox Cable Communications, Inc., v. United States, 699 F. Supp. 917, 924 (M.D. Ga. 1988). 16. The Proposed Intervenors share a common question of law or fact with the main action because they are residents of the training centers at issue and set forth a question of whether the pending settlement agreement will protect their rights under the ADA as set forth in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), including whether community-based care is in fact desired by all of the residents of the five (5) training centers in the Commonwealth.
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CONCLUSION
In support of this Motion, the Proposed Intervenors submit the accompanying
Memorandum of Law and, attached as Exhibit A, their proposed Motion to Dismiss pursuant to
Rule 24 of the Federal Rules of Civil Procedure.
WHEREFORE, Proposed Intervenors respectfully request that this Court grant their
Motion to Intervene as of right, or, alternatively, Proposed Intervenors respectfully request that
this Court exercise its discretion to grant permissive intervention.
Respectfully Submitted,
__________/s/_______ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
__________/s/_______ Thomas B. York Pennsylvania Bar # 32522 Donald B. Zaycosky Pennsylvania Bar # 91821 Cordelia Elias Pennsylvania Bar # 204965 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
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CERTIFICATE OF SERVICE I, hereby certify that on the 2nd day of March, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson K. Tysinger Virginia Office of the Attorney General
900 East Main Street Richmond, Virginia 23219 ATysinger@oag.state.va.us
Robert McIntosh Assistant United States Attorney 600 East Main Street, Suite 1800
Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Alison N. Barkoff Special Counsel for Olmstead Enforcement
Civil Rights Division 950 Pennsylvania Avenue, NW
Washington D.C. 20530 Alison.Barkoff@usdoj.gov
Benjamin O. Tayloe Jr. Deputy Chief
950 Pennsylvania Avenue, NW Washington D.C. 20530
Benjamin.tayloe@usdoj.gov Aaron B. Zisser Trial Attorney
950 Pennsylvania Avenue, NW Washington D.C. 20530 Aaron.Zisser@usdoj.gov
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__________/s/_______ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com __________/s/_______ Thomas B. York Pennsylvania Bar # 32522 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com
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 </s> Case 3:12-cv-00059-JAG Document 2-2 Filed 01/26/12 Page 1 of 38 PageID# 21

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, Defendant.

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CIVILACTIONN0:-.3: I.Z..,CVO.Sq

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SETTLEMENT AGREEMENT
I. Introduction
A. The Commonwealth of Virginia ("'the Commonwealth") and the United States (together, "'the Parties") are committed to full compliance with Title II of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, as interpreted by Olmstead v. L. C., 527
U.S. 581 (1999). This Agreement is intended to ensure the Commonwealth's compliance with the ADA and Olmstead, which require that, to the extent the Commonwealth offers services to individuals with intellectual and developmental disabilities; such services shall be provided in the most integrated setting appropriate to meet their needs. Accordingly, throughout this document, the Parties intend that the goals of community integration, self-determination, and quality services will be achieved.
B. On August 21, 2008, the United States Department of Justice ("United States") initiated an investigation of Central Virginia Training Center (""CVTC"), the largest of Virginia's five state-operated intermediate care facilities for persons with intellectual and developmental disabilities ("ICFs"), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. On April21, 2010, the United States notified the Commonwealth that it was expanding its investigation under the ADA to focus on the Commonwealth's compliance with the ADA's integration mandate and Olmstead with respect to individuals at CVTC. During the course of the expanded investigation, however, it became clear that an examination ofthe Commonwealth's measures to address the rights of individuals at CVTC under the ADA and Olmstead implicated the statewide system for serving individuals with intellectual and developmental disabilities and required a broader scope of review. Accordingly, the policies and practices that the United States examined in its expanded investigation were statewide in scope and application. On 'February 10, 2011, the United States issued its findings, concluding that the Commonwealth fails to provide services to individuals with intellectual and

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developmental disabilities in the most integrated setting appropriate to their needs as required by the ADA and Olmstead.
C. The Commonwealth engaged with the United States in open dialogue about the allegations and worked with the United States to resolve the alleged violations of the ADA arising out ofthe Commonwealth's provision of services for individuals with intellectual and developmental disabilities.
D. In order to resolve all issues pending between the Parties without the expense, risks, delays, and uncertainties of litigation, the United States and the Commonwealth agree to the terms ofthis Settlement Agreement as stated below. This Agreement resolves the United States' investigation ofCVTC, as well as its broader examination of the Commonwealth's compliance with the ADA and Olmstead with respect to individuals with intellectual and developmental disabilities.
E. By entering into this Settlement Agreement, the Commonwealth does not admit to the truth or validity of any claim made against it by the United States.
F. The Parties acknowledge that the Court has jurisdiction over this case and authority to enter this Settlement Agreement and to enforce its terms as set forth herein.
G. No person or entity is intended to be a third-party beneficiary of the provisions of this Settlement Agreemen~ for purposes of any other civil, criminal, or administrative action, and, accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Settlement Agreement in any separate action. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the Commonwealth or their officials, employees, or agents.
H. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; and 42 U.S.C. §§ 12131-12132. Venue is proper in this district pursuant to
28 u.s.c. § 1391(b).
II. Definitions
A. "Developmental disability" means a severe, chronic disability of an individual that: (1) is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) is manifested before the individual attains age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more ofthe following areas of major life activity: (a) self-care; (b) receptive and expressive language; (c) learning; (d) mobility; (e) self-direction; (f) capacity for independent living; (g) economic self-sufficiency; and (5) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. 42 U.S.C. § 15002.
B. "Intellectual disability" means a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. This disability originates before the age of 18. An intellectual disability is a type of developmental disability.
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C. Home and Community-Based Services Waivers ("HCBS Waivers") means the program approved by the Centers for Medicare and Medicaid Services ("CMS") for the purpose of providing services in community settings for eligible persons with developmental disabilities who would otherwise be served in ICFs. For purposes ofthis Settlement Agreement, "HCBS Waivers" includes the Intellectual Disabilities Waiver ("ID Waiver") and the Individual and Family Developmental Disabilities Support Waiver ("DO Waiver"), or any other CMS approved waivers that are equivalent to the ID or DO Waivers that may be created after the execution of this Agreement.
D. Individual and family supports are defined as a comprehensive and coordinated set of strategies that are designed to ensure that families who are assisting family members with intellectual or developmental disabilities ("ID/DD") or individuals with ID/DD who live independently have access to person-centered and family-centered resources, supports, services and other assistance. Individual and family supports are targeted to individuals not already receiving services under HCBS waivers, as defined in Section II.C above. The family supports provided under this Agreement shall not supplant or in any way limit the availability of services provided through the Elderly or Disabled with Consumer Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment ("EPSDT"), or similar programs.
III. Serving Individuals with Developmental Disabilities In the Most Integrated Setting
A. To prevent the unnecessary institutionalization ofindividuals with ID/DD and to provide them opportunities to live in the most integrated settings appropriate to their needs consistent with their informed choice, the Commonwealth shall develop and provide the community services described in this Section.
B. Target Population:
1. The target population of this Agreement shall include individuals with 10/DD who meet any of the following additional criteria:
a. are currently residing at any of the Training Centers;
b. who (i) meet the criteria for the wait list for the 10 waiver, or (ii) meet the criteria for the wait list for the DO waiver; or
c. currently reside in a nursing home or ICF.
2. The Commonwealth shall not exclude any otherwise qualifying individual from the target population due to the existence of complex behavioral or medical needs or of co-occurring conditions, including but not limited to, mental illness, traumatic brain injuries, or other neurological conditions.
3. Individuals shall remain in the target population if they receive HCBS waiver services or individual and family supports under this Agreement.
4. Individuals who are otherwise in the target population and who have been released from forensic status or placed on conditional release by a court shall not be excluded
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from the target population solely on the basis of their former forensic status or current conditional release status. 5. Inclusion in the target population does not guarantee or create a right to receipt of services.
C. Enhancement of Community Services 1. By June 30, 2021, the Commonwealth shall create 4,170 waiver slots for the target population, to be broken down as follows: a. The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the target population in the Training Centers to transition to the community according to the following schedule: i. In State Fiscal Year 2012, 60 waiver slots 11. In State Fiscal Year 2013, 160 waiver slots 111. In State Fiscal Year 2014, 160 waiver slots
iv. In State Fiscal Year 2015,90 waiver slots v. In State Fiscal Year 2016, 85 waiver slots vi. In State Fiscal Year 2017, 90 waiver slots
Vll. In State Fiscal Year 2018,90 waiver slots Vlll. In State Fiscal Year 2019, 35 waiver slots ix. In State Fiscal Year 2020, 35 waiver slots b. The Commonwealth shall create a minimum of2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities), according to the following schedule:
1. In State Fiscal Year 2012,275 waiver slots n. In State Fiscal Year 2013, 225 waiver slots, including 25 slots prioritized for
individuals under 22 years of age residing in nursing homes and the largest ICFs iii. In State Fiscal Year 2014, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
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tv. In State Fiscal Year 2015, 250 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
v. In State Fiscal Year 2016,275 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
v1. In State Fiscal Year 2017, 300 waiver slots
vii. In State Fiscal Year 2018, 325 waiver slots
viii. In State Fiscal Year 2019, 325 waiver slots
tx. In State Fiscal Year 2020, 355 waiver slots
x. In State Fiscal Year 2021, 360 waiver slots
c. The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities), according to the following schedule:
t. In State Fiscal Year 2012, 150 waiver slots
n. In State Fiscal Year 2013,25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
111. In State Fiscal Year 2014, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
iv. In State Fiscal Year 2015, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
v. In State Fiscal Year 2016, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
vt. In State Fiscal Year 2017, 25 waiver slots, including 10 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
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vu. In State Fiscal Year 2018, 25 waiver slots, including I0 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
viii. In State Fiscal Year 2019, 25 waiver slots
tx. In State Fiscal Year 2020, 50 waiver slots
x. In State Fiscal Year 2021, 75 waiver slots
d. If the Commonwealth creates more waiver slots than are required in Sections III.C.l.a, b, or c above for a particular fiscal year, the number of slots created above the requirement shall be counted towards the slots required to be created in the subsequent fiscal year in the relevant Section.
2. The Commonwealth shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be most at risk of institutionalization, according to the following schedule:
a. In State Fiscal Year 2013, a minimum of700 individuals supported b. In State Fiscal Year 2014, a minimum of I000 individuals supported
c. In State Fiscal Year 2015, a minimum of 1000 individuals supported
d. In State Fiscal Year 2016, a minimum of 1000 individuals supported
e. In State Fiscal Year 2017, a minimum of l 000 individuals supported
f. In State Fiscal Year 2018, a minimum of 1000 individuals supported
g. In State Fiscal Year 2019, a minimum of 1000 individuals supported
h. In State Fiscal Year 2020, a minimum of 1000 individuals supported
1. In State Fiscal Year 2021, a minimum of 1000 individuals supported 3. If the Commonwealth substantially changes or amends its ID or DD waivers, the
Parties shall meet within 15 days of final approval from CMS to determine if any provisions of this Agreement should be amended. The Parties agree that under any new terms, at least as many individuals in each category in Sections III.C.1.a, b, and c and C.2 above shall receive HCBS waivers and individual and family supports under the Agreement. If the Parties cannot reach agreement within 90 days, the Court shall resolve the dispute. 4. With the consent of the United States and the Independent Reviewer, the Commonwealth may re-allocate any unused waiver slot from one category of III.C.1.a-c to another in any State Fiscal Year covered by this Agreement.
5. Case Management
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a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.
b. For the purposes of this agreement, case management shall mean:
1. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (""ISP") that are individualized, person-centered, and meet the individual's needs;
ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and
iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.
c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.
d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
6. Crisis Services
a. The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall:
1. Provide timely and accessible support to individuals with intellectual and developmental disabilities who are experiencing crises, including crises due to behavioral or psychiatric issues, and to their families;
n. Provide services focused on crisis prevention and proactive planning to avoid potential crises; and
iii. Provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual from his or her current placement whenever practicable.
b. The crisis system shall include the following components:
i. Crisis Point of Entry
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A. The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. Where necessary, the crisis hotline will dispatch at least one mobile crisis team member who is adequately trained to address the crisis.
B. By June 30, 2012, the Commonwealth shall train CSB Emergency Services personnel in each Health Planning Region ("Region") on the new crisis response system it is establishing, how to make referrals, and the resources that are available.
ii. Mobile crisis teams
A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.
B. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual's home or other community setting.
C. Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.
D. Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.
E. Mobile crisis teams shall provide local and timely in-home crisis support for up to 3 days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator.
F. By June 30, 2012, the Commonwealth shall have at least one mobile crisis team in each Region that shall respond to on-site crises within three hours.
G. By June 30,2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.
H. By June 30, 2014, the Commonwealth shall have a sufficient number of mobile crisis teams in each Region to respond on site to crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time.
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iii. Crisis stabilization programs
A. Crisis stabilization programs offer a short-term alternative to institutionalization or hospitalization for individuals who need inpatient stabilization services.
B. Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement and if that is not possible, has then attempted to locate another communitybased placement that could serve as a short-term placement.
C. If an individual receives crisis stabilization services in a community-based placement instead ofa crisis stabilization unit, the individual may be given the option of remaining in the placement if the provider is willing and has capacity to serve the individual and the provider can meet the needs of the individual as determined by the provider and the individual's case manager.
D. Crisis stabilization programs shall have no more than six beds and lengths of stay shall not exceed 30 days.
E. With the exception of the Pathways Program operated at Southwestern Virginia Training Center ("SWVTC"), crisis stabilization programs shall not be located on the grounds of the Training Centers or hospitals with inpatient psychiatric beds. By July l, 2015, the Pathways Program at SWVTC will cease providing crisis stabilization services and shall be replaced by off-site crisis stabilization programs with sufficient capacity to meet the needs of the target population in that Region.
F. By June 30, 2012, the Commonwealth shall develop one crisis stabilization program in each Region.
G. By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.
7. Integrated Day Activities and Supported Employment
a. To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.
b. The Commonwealth shall maintain its membership in the State Employment Leadership Network ("SELN") established by the National Association of State Developmental Disability Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy. The Employment
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First policy shall, at a minimum, be based on the following principles: ( l) individual supported employment in integrated work settings is the first and priority service option for individuals with intellectual or developmental disabilities receiving day program or employment services from or funded by the Commonwealth; (2) the goal of employment services is to support individuals in integrated work settings where they are paid minimum or competitive wages; and (3) employment services and goals must be developed and discussed at least annually through a person-centered planning process and included in ISPs. The Commonwealth shall have at least one employment service coordinator to monitor implementation of Employment First practices for individuals in the target population.
t. Within 180 days ofthis Agreement, the Commonwealth shall develop, as part of its Employment First policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities. The plan will be under the direct supervision of a dedicated employment service coordinator for the Commonwealth and shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
B. Establish, for individuals receiving services through the HCBS waivers:
1. Annual baseline information regarding:
a. The number of individuals who are receiving supported employment;
b. The length of time people maintain employment in integrated work settings;
c. Amount of earnings from supported employment;
d. The number of individuals in pre-vocational services as defined in 12 VAC 30-120-211 in effect on the effective date of this Agreement; and
e. The length of time individuals remain in pre-vocational services.
2. Targets to meaningfully increase:
a. The number of individuals who enroll in supported employment each year; and
b. The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.
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c. Regional Quality Councils, described in Section V.D.S below, shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly to the Regional Quality Councils and the Quality Management system by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to take additional measures to further enhance these services.
d. The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
8. Access and Availability of Services
a. The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth's HCBS Waivers.
b. The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
9. The Commonwealth has made public its long-standing goal and policy, independent of and adopted prior to this Agreement or the Department of Justice's findings, of transitioning from an institutional model of care to a community-based system that meets the needs of all individuals with 10/DD, including those with the most complex needs, and of using its limited resources to serve effectively the greatest number of individuals with ID/DD. This goal and policy have resulted in a decline in the population of the state training centers from approximately 6000 individuals to approximately 1000 individuals. The Commonwealth has determined that this significant and ongoing decline makes continued operation of residential services fiscally impractical. Consequently, and in accordance with the Commonwealth's policy of transitioning its system of developmental services to a community-based system, the Commonwealth will provide to the General Assembly within one year of the effective date of this Agreement, a plan, developed in consultation with the Chairmen ofVirginia's House of Delegates Appropriations and Senate Finance Committees, to cease residential operations at four of the five training centers by the end of State Fiscal Year 2021.
D. Community Living Options
1. The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family's home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or
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apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources, including local, State, or federal affordable housing or rental assistance programs (tenant-based or project-based) and the fund described in Section Ill.D.4 below.
3. Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals' own homes or apartments. The Commonwealth undertakes this initiative recognizing that comparatively modest housing supports often can enable individuals to live successfully in the most integrated settings appropriate to their needs.
a. The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services ("'DBHDS") and in coordination with representatives from the Department of Medical Assistance Services ("DMAS"), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations as determined appropriate by DBHDS.
b. The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement:
1. Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and
ii. Recommendations to provide access to these settings during each year of this Agreement.
4. Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii, to as many individuals as possible who receive HCBS waivers under this Agreement, express a desire for living in their own home or apartment, and for whom such a placement is the most integrated setting appropriate to their needs.
5. Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual's choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.
6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual's needs and informed choice and has been reviewed by the Region's Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team.
7. The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive
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community options on at least an annual basis to any individuals living outside their own home or family's home (and, if relevant, to their authorized representative or guardian). E. Community Resource Consultants and Regional Support Teams 1. The Commonwealth shall utilize Community Resource Consultant C'CRC") positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office. The CRCs shall provide on-site, electronic, written, and telephonic technical assistance to CSB case managers and private providers regarding personcentered planning, the Supports Intensity Scale, and requirements of case management and HCBS Waivers. The CRC shall also provide ongoing technical assistance to CSBs and community providers during an individual's placement. The CRCs shall be a member of the Regional Support Team in the appropriate Region.
2. The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team ("PST'') and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual's needs, consistent with the individual's informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC.
3. The CRC shall refer cases to the Regional Support Teams for review, assistance in resolving barriers, or recommendations whenever:
a. The PST is having difficulty identifying or locating a particular community placement, services and supports for an individual within 3 months of the individual's receipt ofHCBS waiver services.
b. The PST recommends and, upon his/her review, the CRC also recommends that an individual residing in his or her own home, his or her family's home, or a sponsored residence be placed in a congregate setting with five or more individuals.
c. The PST recommends and, upon his/her review, the CRC also recommends an individual residing in any setting be placed in a nursing home or ICF.
d. There is a pattern of an individual repeatedly being removed from his or her current placement.
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IV. Discharge Planning and Transition from Training Center
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this Section, excluding other dates agreed upon, and listed separately in this Section.
A. To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms ofthis Section and personcentered principles.
B. Discharge Planning and Discharge Plans
1. Discharge planning shall begin upon admission.
2. Discharge planning shall drive treatment of individuals in any Training Center and shall adhere to the principles of person-centered planning.
3. Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
4. The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual's growth, well being, and independence, based on the individual's strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual's life (including community living, activities, employment, education, recreation, healthcare, and relationships).
5. The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) will include:
a. Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
b. Identification of the individual's strengths, preferences, needs (clinical and support), and desired outcomes;
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c. Assessment ofthe specitic supports and services that build on the individual's strengths and preferences to meet the individual's needs and achieve desired outcomes, regardless of whether those services and supports are currently available;
d. Listing of specific providers that can provide the identified supports and services that build on the individual's strengths and preferences to meet the individual's needs and achieve desired outcomes;
e. Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.
1. Such barriers shall not include the individual's disability or the severity of the disability.
11. For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
6. Discharge planning will be done by the individual's PST. The PST includes the individual receiving services, the authorized representative (if any), CSB case manager, Training Center staff, and persons whom the individual has freely chosen or requested to participate (including but not limited to family members and close friends). Through a person-centered planning process, the PST will assess an individual's treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.
7. Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.
8. For individuals admitted to a Training Center after the date this Agreement is signed by both parties, the Commonwealth shall ensure that a discharge plan is developed as described herein within 30 days of admission. For all individuals residing in a Training Center on the date that this Agreement is signed by both parties, the Commonwealth shall ensure that a discharge plan is developed as described herein within six months of the effective date of this Agreement.
9. In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider those options.
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a. The individual shall be offered a choice of providers consistent with the individual's identified needs and preferences.
b. PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representative with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family and peer programs to facilitate these opportunities.
c. PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual's transition.
10. The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about community services and supports to: propose appropriate options about how an individual's needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals' and families' questions about community living.
a. In collaboration with the CSBs and community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of this Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
b. Person-centered thinking training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meetings and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the person-centered tools and skills. Coaches throughout the state will have regular and structured sessions with person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person-centered thinking practices throughout all levels of the Training Centers.
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11. In the event that an individual or, where applicable, authorized representative opposes the PST's proposed options for placement in a more integrated setting after being provided the information and opportunities described in Section IV.B.9, the Commonwealth shall ensure that PSTs:
a. Identify and seek to resolve the concerns of individuals and/or their authorized representatives with regard to community placement;
b. Develop and implement individualized strategies to address concerns and objections to community placement; and
c. Document the steps taken to resolve the concerns of individuals and/or their authorized representatives and provide information about community placement.
12. All individuals in the Training Center shall be provided opportunities for engaging in community activities to the fullest extent practicable, consistent with their identified needs and preferences, even if the individual does not yet have a discharge plan for transitioning to the community.
13. The State shall ensure that information about barriers to discharge from involved providers, CSB case managers, Regional Support Teams, Community Integration Managers, and individuals' ISPs is collected from the Training Centers and is aggregated and analyzed for ongoing quality improvement, discharge planning, and development of community-based services.
14. In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and fand IV.D.3 below, and such placements shall only occur as permitted by Section IV.C.6.
C. Transition to Community Setting
1. Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
2. Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth's control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for
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discharge will be developed by the PST. Where discharge does not occur within 3 months of selecting a provider, the PST shall identify the barriers to discharge and notify the Facility Director and Community Integration Manager in accordance with Section IV.D.2 below, and the case shall be referred to the Regional Support Teams in accordance with Section IV.D.3 below.
3. The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct post-move monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual's movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
4. The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual's discharge.
5. The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual's community placement prior to the individual's discharge from the Training Center. This determination will be documented. The absence of those services and supports identified as non-essential by the Commonwealth, in consultation with the PST, shall not be a barrier to transition.
6. No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual's informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual's informed choice.
7. The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
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D. Community Integration Managers and Regional Support Teams
l. The Commonwealth will create Community Integration Manager ("CIM") positions at each operating Training Center. The CIMs will be DBHDS Central Office staff members who will be physically located at each of the operating Training Centers. The CIMs will facilitate communication and planning with individuals residing in the Training Centers, their families, the PST, and private providers about all aspects of an individual's transition, and will address identified barriers to discharge. The CIMs will have professional experience working in the field of developmental disabilities, and an understanding ofbest practices for providing community services to individuals with developmental disabilities. The CIMs will have expertise in the areas of working with clinical and programmatic staff, facilitating large, diverse groups of professionals, and providing service coordination across organizational boundaries. The CIMs will serve as the primary connection between the Training Center and DBHDS Central Office. The CIMs will provide oversight, guidance, and technical assistance to the PSTs by identifying strategies for addressing or overcoming barriers to discharge, ensuring that PSTs follow the process described in Sections IV.B and C above, and identifying and developing corrective actions, including the need for any additional training or involvement of supervisory staff.
2. CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances:
a. The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;
b. The PST is having difficulty identifying or locating a particular type of community placement, services and supports for an individual within 90 days of development of a discharge plan during the first year of the Agreement; within 60 days of development of a discharge plan during the second year of the Agreement; within 45 days of development of a discharge plan in the third year of the Agreement; and within 30 days of development of a discharge plan thereafter.
c. The PST cannot agree on a discharge plan outcome within 15 days of the annual PST meeting, or within 30 days after the admission to the Training Center.
d. The individual or his or her authorized representative opposes discharge after all the requirements described in Section IV.B.9 have been satisfied or refuses to participate in the discharge planning process;
e. The individual is not discharged within three months of selecting a provider, as described in Section IV.C.2 above. The PST shall identify the barriers to discharge and notify both the facility director and the CIM; or
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f. The PST recommends that an individual remain in a Training Center. If the individual remains at the Training Center, an assessment by the PST and the CIM will be performed at 90-day intervals from the decision for the individual to remain at the Training Center, to ensure that the individual is in the most integrated setting appropriate to his or her needs.
3. The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM. The CIM may consult at any time with the Regional Support Teams and will refer cases to the Regional Support Teams when:
a. The CIM is unable, within 2 weeks of the PST's referral to the CIM, to document attainable steps that will be taken to resolve any barriers to community placement enumerated in Section IV.D.2 above.
b. A PST continues to recommend placement in a Training Center at the second quarterly review following the PST's recommendation that an individual remain in a Training Center (Section IV.D.2.f), and at all subsequent quarterly reviews that maintain the same recommendation. This paragraph shall not take effect until two years after the effective date of this Agreement.
c. The CIM believes external review is needed to identify additional steps that can be taken to remove barriers to discharge.
4. The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed, including recommendations that individuals remain at a Training Center.
V. Quality and Risk Management System
A. To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals' needs, and help individuals achieve positive outcomes, including avoidance of harms, stable community living, and increased integration, independence, and self-determination in all life domains (e.g., community living, employment, education, recreation, healthcare, and relationships), and to ensure that appropriate services are available and accessible for individuals in the target population, the Commonwealth shall develop and implement a quality and risk management system that is consistent with the terms of this Section.
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B. The Commonwealth's Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals' needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.
C. Risk Management
1. The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm. Harm includes any physical injury, whether caused by abuse, neglect, or accidental causes.
2. The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol. The protocol shall require that any staff of a Training Center, CSB, or community provider aware of any suspected or alleged incident of abuse or neglect as defined by Virginia Code § 37.2-100 in effect on the effective date ofthis Agreement, serious injury as defined by 12 VAC 35-115-30 in effect on the effective date of this Agreement, or deaths directly report such information to the DBHDS Assistant Commissioner for Quality Improvement or his or her designee.
3. The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DBHDS Human Rights Regulations" (12 VAC 35-115-50(0)(3)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations.
4. The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
5. The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The Commissioner shall establish the monthly mortality review team, to include the DBHDS Medical Director, the Assistant Commissioner for Quality Improvement, and others as determined by the Department who possess appropriate experience, knowledge, and skills. The team shall have at least one member with the clinical experience to conduct mortality reviews who is otherwise independent of the State. Within ninety days of a death, the monthly mortality review team shall: (a) review, or document the unavailability of: (i) medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual's death;
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(ii) the most recent individualized program plan and physical examination records; (iii) the death certificate and autopsy report; and (iv) any evidence of maltreatment related to the death; (b) interview, as warranted, any persons having information regarding the individual's care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems at the individual service-delivery and systemic levels and develop and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable.
6. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations (12 VAC 35-115240), the DBHDS Licensing Regulations (12 VAC 35-1 05-170), Virginia Code § 37.2-419 in effect on the effective date of this Agreement, and other requirements in this Agreement.
D. Data to Assess and Improve Quality
I. The Commonwealth's HCBS waivers shall operate in accordance with the Commonwealth's CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers; identification, response and prevention of occurrences of abuse, neglect and exploitation; administrative oversight of all waiver functions including contracting; and financial accountability. Review of data shall occur at the local and state levels by the CSBs and DBHDS/DMAS, respectively.
2. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement. The Commonwealth shall use data to:
a. identity trends, patterns, strengths, and problems at the individual, servicedelivery, and systemic levels, including, but not limited to, quality of services, service gaps, accessibility of services, serving individuals with complex needs, and the discharge and transition planning process;
b. develop preventative, corrective, and improvement measures to address identified problems;
c. track the efficacy of preventative, corrective, and improvement measures; and
d. enhance outreach, education, and training.
3. The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas
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in State Fiscal Year 20 12 and will ensure reliable data is collected and analyzed from each ofthese areas by June 30,2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area:
a. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion or restraints, deaths, effectiveness of corrective actions, licensing violations);
b. Physical, mental, and behavioral health and well being (e.g., access to medical care (including preventative care), timeliness and adequacy of interventions (particularly in response to changes in status));
c. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or hospitals, admissions to Training Centers or other congregate settings, contact with criminal justice system);
d. Stability (e.g., maintenance of chosen living arrangement, change in providers, work/other day program stability);
e. Choice and self-determination (e.g., service plans developed through personcentered planning process, choice of services and providers, individualized goals, self-direction of services);
f. Community inclusion (e.g., community activities, integrated work opportunities, integrated living options, educational opportunities, relationships with non-paid individuals);
g. Access to services (e.g., waitlists, outreach efforts, identified barriers, service gaps and delays, adaptive equipment, transportation, availability of services geographically, cultural and linguistic competency); and
h. Provider capacity (e.g., caseloads, training, staff turnover, provider competency).
4. The Commonwealth shall collect and analyze data from available sources, including, the risk management system described in Section V.C. above, those sources described in Sections V.E-G and I below (e.g., providers, case managers, Quality Service Reviews, and licensing), Quality Management Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.
5. The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions ofthe Commonwealth.
a. The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
b. Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement
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initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
6. At least annually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in this Agreement) and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.
E. Providers
I. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement ("QI'') program, including root cause analyses, that is sufficient to identify and address significant service issues and is consistent with the requirements of the DBHDS Licensing Regulations at 12 VAC 35-105-620 in effect on the effective date of this Agreement and the provisions of this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3. above. The measures will be monitored and reviewed by the DBHDS quality improvement committee, with input from Regional Quality Councils, described in Section V.D.5 above. The DBHDS quality improvement committee will assess the validity of each measure at least annually and update measures accordingly.
3. The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers' quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
F. Case Management
I. For individuals receiving case management services pursuant to this Agreement, the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual's residence, as dictated by the individual's needs.
2. At these face-to-face meetings, the case manager shall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual's support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an
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unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual's support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual's strengths and preferences, then the case manager shall report and document the issue, convene the individual's service planning team to address it, and document its resolution.
3. Within 12 months of the effective date of this Agreement, the individual's case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual's place of residence, for any individuals who:
a. Receive services from providers having conditional or provisional licenses;
b. Have more intensive behavioral or medical needs as defined by the Supports Intensity Scale ("SIS") category representing the highest level of risk to individuals;
c. Have an interruption of service greater than 30 days;
d. Encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;
e. Have transitioned from a Training Center within the previous 12 months; or
f. Reside in congregate settings of 5 or more individuals.
4. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
5. Within 24 months from the date of this Agreement, key indicators from the case manager's face to face visits with the individual, and the case manager's observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section Y.D.3 above.
6. The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness.
G. Licensing
I. The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including:
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a. Providers who have a conditional or provisional license;
b. Providers who serve individuals with intensive medical and behavioral needs as defined by the SIS category representing the highest level of risk to individuals;
c. Providers who serve individuals who have an interruption of service greater than 30 days;
d. Providers who serve individuals who encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;
e. Providers who serve individuals who have transitioned from a Training Center within the previous 12 months; and
f. Providers who serve individuals in congregate settings of 5 or more individuals.
3. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.
H. Training
1. The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self-determination awareness, and required elements of service training.
2. The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.
I. Quality Service Reviews
l. The Commonwealth shall use Quality Service Reviews ("QSRs") to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals' needs and choice. QSRs shall collect information through:
a. Face-to-face interviews of the individual, relevant professional staff, and other people involved in the individual's life; and
b. Assessment, informed by face-to-face interviews, oftreatment records, incident/injury data, key-indicator performance data, compliance with the service requirements of this Agreement, and the contractual compliance of community services boards and/or community providers.
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2. QSRs shall evaluate whether individuals' needs are being identified and met through person-centered planning and thinking (including building on individuals' strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals' needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals). Information from the QSRs shall be used to improve practice and the quality of services on the provider, CSB, and system wide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.
4. The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
VI. Independent Reviewer
A. The Parties have jointly selected Donald J. Fletcher as the Independent Reviewer for this Settlement Agreement. In the event that the Independent Reviewer resigns or the Parties agree to replace the Independent Reviewer, the Parties will select a replacement. If the Parties are unable to agree on a replacement within 30 days from the date the Parties receive a notice of resignation from the Independent Reviewer, or from the date the Parties agree to replace the Independent Reviewer, they shall each submit the names of up to three candidates to the Court, and the Court shall select the replacement from the names submitted.
B. The Independent Reviewer shall conduct the factual investigation and verification of data and documentation necessary to determine whether the Commonwealth is in compliance with this Settlement Agreement, on a six-month cycle continuing during the pendency of the Agreement. The Independent Reviewer is not an agent of the Court, nor does the Independent Reviewer have any authority to act on behalf of the Court. The Independent Reviewer may hire staff and consultants, in consultation with and subject to reasonable objections by the Parties, to assist in his compliance investigations. The Independent Reviewer and any hired staff or consultants are neither agents nor business associates of the Commonwealth or DOJ.
C. The Independent Reviewer shall file with the Court a written report on the Commonwealth's compliance with the terms of this Agreement within 60 days of the close of each review cycle. The first report shall be filed nine months from the effective date of this Agreement. With the consent of the Court, the Court will hold a status conference after the filing of each written report. The Independent Reviewer shall provide the Parties a draft of his/her report at least 21 days before issuing the report. The Parties shall have 14 days to review and comment on the proposed report before it is filed with the Court. The Parties may agree to allow the Independent Reviewer an additional 20 days to finalize a report after he/she receives comments from the Parties, and such an agreement does not require Court approval. In preparing the report, the Independent
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Reviewer shall use appendixes or other methods to protect confidential information so that the report itself may be filed with the Court as a public document. Either Party may file a written report with the Court noting its objections to the portions of the Independent Reviewer's report with which it disagrees. The Commonwealth shall publish and maintain these reports on the DBHDS website.
D. The Independent Reviewer, and any hired staff or consultants, may:
l. Have ex parte communications with the Court upon the Court's request or with the consent of the Parties.
2. Have ex parte communications with the Parties at any time.
3. Request meetings with the Parties and the Court.
4. Speak with stakeholders with such stakeholders' consent, on a confidential basis or otherwise, at the Independent Reviewer's discretion.
5. Testify in this case regarding any matter relating to the implementation or terms of this Agreement, including the Independent Reviewer's observations and findings.
6. Offer to provide the Commonwealth with technical assistance and, with the Commonwealth's consent, provide such technical assistance, relating to any aspect of this Agreement or its stated purposes.
7. Conduct regular meetings with both Parties. The purpose of these meetings shall include, among other things, to prioritize areas for the Independent Reviewer to review, schedule visits, discuss areas of concern, and discuss areas in which technical assistance may be appropriate.
E. The Independent Reviewer and any hired staff or consultants shall not be liable for any claim, lawsuit, or demand arising out of their duties under this Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for reviewing compliance with this Agreement.
F. The Independent Reviewer and any hired staff or consultants shall not be subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer's records or communications, or those of his/her staff and consultants, although the Independent Reviewer may provide copies of records or communications at the Independent Reviewer's discretion. The Court may review all records of the Independent Reviewer at the Court's discretion.
G. In order to determine compliance with this Agreement, the Independent Reviewer and any hired staff or consultants shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, including individuals' medical and other records, in unredacted form, and materials that are necessary to assess the Commonwealth's compliance with this Agreement, to the extent they are within the State's custody or control. This shall include, but not be limited to, access to the data and
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records maintained by the Commonwealth pursuant to Section V above. The provision of any information to the Independent Reviewer pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties. The Independent Reviewer and any hired staff or consultants may also interview individuals receiving services under this Agreement with the consent of the individual or his/her authorized representative. Access to CSBs and private providers and entities shall be at the sole discretion of the CSB or private provider or entity; however, the Commonwealth shall encourage CSBs and private providers and other entities to provide such access and shall assist the Independent Reviewer in identifying and contacting them. The Independent Reviewer shall exercise his/her access to Commonwealth employees and individuals receiving services under this Agreement in a manner that is reasonable and not unduly burdensome to the operation of Commonwealth agencies and that has minimal impact on programs or services being provided to individuals receiving services under this Agreement. Such access shall continue until the Agreement is terminated. The Parties agree that, in cases of an emergency situation that present an immediate threat to life, health, or safety of individuals, the Independent Reviewer will not be required to provide the Commonwealth notice of such visit or inspection. Any individually identifying health information that the Independent Reviewer and any hired staff or consultants receive or maintain shall be kept confidential.
H. Budget of the Independent Reviewer
I. Within 45 days of appointment, the Independent Reviewer shall submit to the Court for the Court's approval a proposed budget for State Fiscal Year 2013. Using the proposed budget for State Fiscal Year 2013, the Independent Reviewer shall also propose an equivalent amount prorated through the remainder ofState Fiscal Year 2012 as the budget for State Fiscal Year 2012.
2. The Independent Reviewer shall provide the Parties a draft of the proposed budget at least 30 days in advance of submission to the Court. The Parties shall raise with the Independent Reviewer any objections they may have to the draft of the proposed budget within 10 business days of its receipt. If the objection is not resolved before the Independent Reviewer's submission of a proposed budget to the Court, a Party may file the objection with the Court within 10 business days ofthe submission of the proposed budget to the Court. The Court shall consider such objections and make any adjustments it deems appropriate prior to approving the budget.
3. Thereafter, the Independent Reviewer shall submit annually a proposed budget to the Court for its approval by April I in accordance with the process set forth above.
4. At any time, the Independent Reviewer may submit to the Parties for approval a proposed revision to the budget, along with any explanation of the reason for the proposed revision. Should the Parties and Independent Reviewer not be able to agree on the proposed revision, the Court will be notified as set forth in Section V.H.2 above.
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5. The approved budget of the Independent Reviewer shall not exceed $300,000 in any State Fiscal Year during the pendency of this Agreement, inclusive of any costs and expenses ofhired staff and consultants, without the approval ofthe Commonwealth or the Court pursuant to Sections V.H.2. or H.4. above.
I. Reimbursement and Payment Provisions
1. The cost of the Independent Reviewer, including the cost of any consultants and staff to the Reviewer, shall be borne by the Commonwealth in this action up to the amount of the approved budget for each State Fiscal Year. All reasonable expenses incurred by the Independent Reviewer in the course of the performance of his/her duties as set forth in this Agreement shall be reimbursed by the Commonwealth. In no event will the Commonwealth reimburse the Independent Reviewer for any expense that exceeds the approved fiscal year budget or the amount approved under Sections V.H.4 or H.5 above. The Court retains the authority to resolve any dispute that may arise regarding the reasonableness of fees and costs charged by the Reviewer. The United States shall bear its own expenses in this matter. If a dispute arises regarding reasonableness of fees or costs, the Independent Reviewer shall provide an accounting justifying the fees or costs.
2. The Independent Reviewer shall submit monthly statements to DBHDS, with copies to the United States and the Court, detailing all expenses the Independent Reviewer incurred during the prior month. DBHDS shall issue payment in accordance with the monthly statement as long as such payment is within the approved State Fiscal Year budget. Such payment shall be made by DBHDS within 10 business days of receipt of the monthly statement. Monthly statements shall be provided to: Assistant Commissioner for Developmental Services, DBHDS, P.O. Box 1797, Richmond, Virginia 23238-1797.
3. In the event that, upon a request by the United States or the Independent Reviewer, the Court determines that the Commonwealth is unreasonably withholding or delaying payment, or if the Parties agree to use the following payment procedure, the following payment procedure will be used:
a. The Commonwealth shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Reviewer. This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors.
b. The Court shall order the clerk to make payments to the Independent Reviewer. The clerk shall make those payments within 10 days ofthe entry of the Order directing payment. Within 45 days of the entry of each Order directing payment, the Commonwealth shall replenish the fund with the full amount paid by the clerk in order to restore the fund's total to $100,000.00.
J. The Independent Reviewer, including any hired staff or consultants, shall not enter into any contract with the Commonwealth while serving as the Independent Reviewer. If the
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Independent Reviewer resigns from his/her position as Independent Reviewer, he/she may not enter into any contract with the Commonwealth on a matter related to this Agreement during the pendency of this Agreement without the written consent of the United States.
K. Other than the semi-annual compliance report pursuant to Section VI.C above or proceedings before the Court, the Independent Reviewer, and any hired staff or consultants, shall refrain from any public oral or written statements to the media, including statements "on background," regarding this Agreement, its implementation, or the Commonwealth's compliance. In addition, the Independent Reviewer shall not establish or maintain a website regarding this Agreement, its implementation, or the Commonwealth's compliance.
VII. Construction and Termination
A. The Parties agree jointly to file this Agreement with the United States District Court for the Eastern District of Virginia, Richmond Division.
B. The Parties anticipate that the Commonwealth will have complied with all provisions of the Agreement by the end of State Fiscal Year 2021. Compliance is achieved where any violations of the Agreement are minor or incidental and are not systemic. The Court shall retain jurisdiction ofthis action for all purposes until the end of State Fiscal Year 2021 unless:
1. The Parties jointly ask the Court to terminate the Agreement before the end of State Fiscal Year 2021, provided the Commonwealth has complied with this Agreement and maintained compliance for one year; or
2. The United States disputes that the Commonwealth is in compliance with the Agreement at the end of State Fiscal Year 2021. The United States shall inform the Court and the Commonwealth by January 1, 2021, that it disputes compliance, and the Court may schedule further proceedings as appropriate. The Party that disagrees with the Independent Reviewer's assessment of compliance shall bear the burden of proof.
C. The burden shall be on the Commonwealth to demonstrate compliance to the United States pursuant to Section VII.B.1 above. Ifthe Commonwealth believes it has achieved compliance with a portion of this Agreement and has maintained compliance for one year, it shall notify the United States and the Independent Reviewer. If the United States agrees, the Commonwealth shall be relieved of that portion of the Settlement Agreement and notice of such relief shall be filed with the Court. The Parties may instead agree to a more limited review of the relevant portion of the Agreement.
D. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals receiving services under this Agreement, if the United States believes that the Commonwealth has failed to fulfill any obligation under this Agreement, the United States shall, prior to initiating any court proceeding to remedy such failure, give written notice to the Commonwealth which, with specificity, sets forth the details of the alleged noncompliance.
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1. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, the Commonwealth shall have forty-five (45) days from the date of such written notice to respond to the United States in writing by denying that noncompliance has occurred, or by accepting (without necessarily admitting) the allegation of noncompliance and proposing steps that the Commonwealth will take, and by when, to cure the alleged noncompliance.
2. If the Commonwealth fails to respond within 45 days or denies that noncompliance has occurred, the United States may seek an appropriate judicial remedy.
3. If the Commonwealth timely responds by proposing curative action by a specified deadline, the United States may accept the Commonwealth's proposal or offer a counterproposal for a different curative action or deadline, but in no event shall the United States seek an appropriate judicial remedy for the alleged noncompliance until after the time provided for the Commonwealth to respond under Section VII.D.2 above. If the Parties fail to reach agreement on a plan for curative action, the United States may seek an appropriate judicial remedy.
4. Notwithstanding the provisions of this Section, with the exception of conditions that pose an immediate and serious threat to the life, health, or safety of individuals receiving services under this Agreement, the United States shall neither issue a noncompliance notice nor seek judicial remedy for the nine months after the effective date of this Agreement.
E. Ifthe United States believes that conditions or practices within the control of the Commonwealth pose an immediate and serious threat to the life, health, or safety of individuals in the Training Centers or individuals receiving services pursuant to this Agreement, the United States may, without further notice, initiate a court proceeding to remedy those conditions or practices.
F. This Agreement shall constitute the entire integrated Agreement of the Parties.
G. Any modification of this Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it.
H. The Agreement shall be applicable to, and binding upon, all Parties, their employees, assigns, agents, and contractors charged with implementation of any portion of this Agreement, and their successors in office. If the Commonwealth contracts with an outside provider for any of the services provided in this Agreement, the Agreement shall be binding on any contracted parties, including agents and assigns. The Commonwealth shall ensure that all appropriate Commonwealth agencies take any actions necessary for the Commonwealth to comply with provisions of this Agreement.
I. The Commonwealth, while empowered to enter into and implement this Agreement, does not speak for the Virginia General Assembly, which has the authority under the Virginia Constitution and laws to appropriate funds for, and amend laws pertaining to, the Commonwealth's system of services for individuals with developmental disabilities. The
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Commonwealth shall take all appropriate measures to seek and secure funding necessary to implement the terms of this Agreement. If the Commonwealth fails to attain necessary appropriations to comply with this Agreement, the United States retains all rights to enforce the terms of this Agreement, to enter into enforcement proceedings, or to withdraw its consent to this Agreement and revive any claims otherwise barred by operation of this Agreement.
J. The United States and the Commonwealth shall bear the cost of their fees and expenses incurred in connection with this case.
VIII. General Provisions
A. The Commonwealth agrees that it shall not retaliate against any person because that person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the United States' investigation or the Independent Reviewer's duties related to this Agreement. The Commonwealth agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation ofthis Agreement and take any necessary corrective actions identified through such investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirement of this Agreement, the Commonwealth shall notify the United States and the Independent Reviewer in writing within 20 calendar days after the Commonwealth becomes aware of the unforeseen circumstance and its impact on the Commonwealth's ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The Commonwealth shall take reasonable measures to avoid or minimize any such failure.
C. Failure by any Party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Agreement.
D. The Parties shall promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof, and shall defend against any challenge to the Agreement.
E. Except as provided in this Agreement, during the pendency of the Agreement, the United States shall not file suit under the ADA or CRIPA for any claim or allegation set forth in the complaint.
F. The Parties represent and acknowledge this Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of any and all claims arising out of the allegations set forth in the Complaint and pleadings in this Action, and for the express purpose of precluding any further or additional claims arising out of the allegations set forth in the Complaint and pleadings in this Action. Each Party to this Agreement represents and warrants that the person who has signed this Agreement on behalf of his or her entity is duly authorized to enter into this Agreement and to bind
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that Party to the terms and conditions of this Agreement.
G. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or evidence of liability of the Commonwealth under federal or state law, and this Agreement shall not be used as evidence of liability in this or any other civil or criminal proceeding.
H. This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same agreement, notwithstanding that each Party is not a signatory to the original or the same counterpart.
I. ""Notice" under this Agreement shall be provided to the following or their successors:
For the United States:
Chief of the Special Litigation Section United States Department of Justice Civil Rights Division 601 D Street, N.W. Washington, D.C. 20004
For the Commonwealth:
Attorney General of Virginia 900 E. Main Street Richmond, VA 23219
Counsel to the Governor Patrick Henry Building, 3rd Floor 1111 E. Broad Street Richmond, VA 23219
For the Independent Reviewer:
Donald J. Fletcher P.O. Box 54 16 Cornwell Road Shutesbury, MA 01072-0054
IX. Implementation of the Agreement
A. The implementation of this Agreement shall begin immediately upon the Effective Date, which shall be the date on which this Agreement is approved and entered as an order of the Court.
B. Within one month from the Effective Date of this Agreement, the Commonwealth shall appoint an Agreement Coordinator to oversee compliance with this Agreement and to serve as a point of contact for the Independent Reviewer.
C. The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented and shall make such records available
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to the Independent Reviewer for inspection and copying upon request and on a reasonable basis.
D. The Commonwealth shall notify the Independent Reviewer and the United States promptly upon the unexplained or unexpected death or serious physical injury resulting in on-going medical care of any individual cover~d by this Agreement. The Commonwealth shall, via email, forward to the United States and the Independent Reviewer electronic copies of all completed incident reports and final reports of investigations related to such incidents, as well as any autopsies and death summaries in the State's possession. The provision of any information to the Independent Reviewer and the United States pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties.
E. The United States shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are within the control and custody of the Commonwealth and are necessary to assess the Commonwealth's compliance with this Agreement and/or implementation efforts. 1. Such access shall include departmental and/or individual medical and other records in unredacted form.
2. The United States shall provide notice at least one week in advance of any visit or inspection.
3. The Parties agree that, in cases of an emergency situation that presents an immediate threat to life, health, or safety of individuals, the United States will be required to provide the Commonwealth with sufficient notice of such visit or inspection as to permit a Commonwealth representative to join the visit.
4. Such access shall continue until this case is dismissed. 5. The Commonwealth shall provide to the United States, as requested, in unredacted
form, any documents, records, databases, and information relating to the implementation of this Agreement as soon as practicable, but no later than within thirty (30) business days of the request, or within a time frame negotiated by the Parties if the volume of requested material is too great to reasonably produce within thirty days. 6. The provision of any information to the United States pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties.
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FOR THE UNITED STATES:

Respectfully submitted,

NEIL H. MacBRIDE United States Attorney Eastern District of Virginia
ROBERT MciNTOSH Assistant United States Attorney 600 East Main St., Suite 1800 Richmond, VA 23219 (804) 819-5400 Fax: (804) 819-7417 Robert.Mclntosh@)usdoj .gov VA Bar #66113

Assistant Attorney General Civil Rights Division
EVE HILL Senior Counselor
ALISON N. BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
JONATHAN SMITH Chief Special Litigation Section
IN 0. AYLOE, JR. eput Chief A NB.ZISSER JACQUELINE K. CUNCANNAN Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 305-3355 Fax: (202) 514-4883 Aaron.Zisser@usdoj .gov

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FOR THE COMMONWEALTH:
WILL~4rr~
Secretary of Health and Human Resources on Behalf of Governor Robert F. McDonnell
KENNETH T. UCCINELLI, II as Attorney General of Virginia pursuant to Virginia Code§ 2.2-514
Senior Assistant Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 Fax: (804) 371-8718 ATysinger@oag.state. va.us Virginia State Bar No. 41982
37

Case 3:12-cv-00059-JAG Document 2-2 Filed 01/26/12 Page 38 of 38 PageID# 58 ENTERED THIS_ day of_ _ _ _~ 2012.
UNITED STATES DISTRICT JUDGE
38

 </s> Case 3:12-cv-00059-JAG Document 22 Filed 03/06/12 Page 1 of 6 PageID# 229

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

v.

Civil Action No. 3:12cv59-JAG

COMMONWEALTH OF VIRGINIA,
Defendant.

ORDER

This case involves the treatment of mentally disabled people by the Commonwealth of

Virginia. The United States has filed suit, contending that Virginia has violated the rights of

developmentally and intellectually disabled people (hereafter, "disabled" people) in a number of

significant ways. On the day suit was filed, the United States and the Commonwealth of

Virginia submitted a joint agreement to this Court. The agreement settles the case. The parties

have asked the Court to incorporate the settlement agreement into its final order.

The Court has received a great deal of correspondence from families of disabled

individuals, advocates for the disabled, and other groups. The submissions to the Court express

deep and understandable concern. A common theme of the letters is that the agreement will

force the Commonwealth to close its five Training Centers, which currently are home to

approximately 1,000 residents. Some comments to the Court take the opposite view, namely that

disabled people should all be allowed to live in the community, not the confines of a Training

Center.

These voices—on both sides—will be heard. How that will happen is described below.

The Court has thoroughly reviewed the suit papers and settlement agreement. At heart,

the purpose of this agreement is to allow disabled people to live in the community. The Court,

Case 3:12-cv-00059-JAG Document 22 Filed 03/06/12 Page 2 of 6 PageID# 230
however, is concerned that the agreement is being misconstrued by some. Most importantly, the agreement does not force the closing of any institution or Training Center in Virginia. Rather, the agreement requires the Governor of Virginia to submit to the General Assembly a plan to close four of the residential Training Centers. The General Assembly need not close the facilities, and, in fact, can easily pass legislation requiring the Executive Branch to keep the Training Centers open.
Our system of government allocates responsibilities to both the federal and state government, and, within those governments, to the executive, legislative, and judicial branches. The states—not the federal government—decide what kind of treatment facilities to operate. This is essentially a political decision to be made by the states on how to spend their funds to address the needs of the people. Putting the settlement agreement aside, the Commonwealth could decide to close the Training Centers. If the Court refused to enter the agreement, Virginia and the federal government could still agree to close the facilities. On the other hand, even if the Court approves the agreement, Virginia can keep the Training Centers open. But this decision is a political one, over which the Court has no authority.
In short, this Court cannot close the Training Centers; it also cannot keep them open. The agreement is simply a plan or system for the Court to hold the state accountable on how it treats disabled citizens. For example, the agreement provides for an independent reviewer, who is an expert in the care of developmentally and intellectually disabled people, to submit public written reports to the Court every six (6) months. Under the agreement, the Court would use the reviewer's detailed reports and determine whether the Commonwealth is in compliance with the terms of the agreement.

Case 3:12-cv-00059-JAG Document 22 Filed 03/06/12 Page 3 of 6 PageID# 231
Anyone who opposes the closingof a Training Center should contact the Governor, or his or her Delegate or Senator in the Virginia General Assembly to make a complaint. They have
the ultimate authority on whether to maintain state institutions. That being said, the Court will still allow interested people and groups to submit written
comments about the agreement. American courts have a long-standing practice of receiving "briefs amicus curiae," also called "friend of the court briefs." In such briefs, people with an interest in the outcome of the case are allowed to state their position and the legal and practical reasons their view is the correct one. The Court will receive amicus briefs until April 6, 2012. These comments need not be in any particular form. If a person or group has already sent a letter to the Court, it will be treated as a written comment and properly considered.
The Court will consider these written comments in deciding if the agreement is adequate, fair, and reasonable, if the agreement is unlawful, or if it is against public policy. Generally, people who submit written comments or amicus briefs may not speak or argue at a hearing, because they are not parties to the case. But, if the Court receives a consolidated written comment from a large enough group of interested people, then it may allow a group representative to speak at a hearing prior to its final decision on the agreement.
Written comments or more formal amicus briefs concerning the agreement may be submitted before April 6, 2012 to:
The Honorable John A. Gibney Jr. District Court Judge United States District Court, Eastern District ofVirginia Spottswood W. Robinson III and Robert R. Merhige, Jr., Federal Courthouse
701 East Broad Street
Richmond, VA 23219
A copy and descriptions of the agreement are available at:
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http://www.iustice.gov/va-ada and
http://www.dbhds.virginia.gov/Settlement.htm.
The Court will hold a final hearing on the agreement after April 6, 2012, but the date has not been set yet. At this hearing, the Court will hear argument on whether to enter the agreement. Either before or at the hearing, the Court will receive factual submissions from representatives of the Community Service Boards regarding the effect of this agreement on them, on the availability of community services to meet the needs of intellectually disabled Virginians, on the Community Service Boards' personnel needs to implement the settlement, and on the funding needed to achieve the goals of the settlement. The Court will also receive factual submissions from private providers of services to disabled Virginians concerning the agreement's effects on them. Moreover, the Court will consider whether and how the agreement is enforceable by the Court.
In addition, between now and the hearing, the Court, accompanied by counsel, will visit at least one Training Center and several community facilities. The Commonwealth is directed to provide to the Court a list of all Intermediate Care Facilities for the Mentally Retarded within thirty (30) miles of the State Capitol. The Commonwealth will also provide to the Court a list of all private nursing facilities or other facilities equipped to deal with profoundly disabled individuals within thirty (30) miles of the State Capitol.
Although the Court will review the agreement and its implementation fully at its hearing, the Court will allow the agreement to be entered temporarily at this time. The Court has not decided whether to enter the agreement, but it has decided to allow the state of Virginia to begin certain planning stages, which is the reason for the temporary approval.

Case 3:12-cv-00059-JAG Document 22 Filed 03/06/12 Page 5 of 6 PageID# 233
The Commonwealth is directed to post a copy of this Order on the portion of its website dealing with the settlement of this case. The Order shall remain posted at least until April 6, 2012. The Commonwealth is further directed to mail a copy of this Order to parent and family groups associated with the Training Centers, to the various ARC groups in Virginia, to the Virginia Association of Community Services Boards, and to a list of interested persons provided to it by the Court. The Commonwealth will certify its compliance with this provision within seven (7) days from the date of this Order.
Accordingly, the Court ORDERS the following: (1) Interested people and groups shall have until April 6, 2012, to submit written comments or amicus curiae briefs to this Court regarding the proposed agreement; (2) The Joint Motion for Entry of Settlement Agreement (the "agreement") (Dk. No. 2) is PROVISIONALLY GRANTED, subject to final approval after the submission of comments and briefs to the Court; (3) The defendant shall make available and provide public notice of this Order by: (1) maintaining it on the website of the Virginia Department of Behavioral Health and Developmental Services until at least April 6, 2012; (2) transmitting it to parent groups associated with the Defendant's Training Centers, the Arc of Virginia, the Virginia Office for Protection and Advocacy, and the Virginia Association of Community Services Boards; and (3) transmitting it to such other interested persons as the Court identifies to the defendant. The defendant shall certify that it has provided such notice; and (4) The defendant will provide to the Court a list of all ICF/MRs and private facilities equipped to deal with profoundly disabled people within thirty (30) miles of the State Capitol.

Case 3:12-cv-00059-JAG Document 22 Filed 03/06/12 Page 6 of 6 PageID# 234
It is so ORDERED.
Let the Clerk send a copy of this Order to all counsel of record.

Date: March 6, 2012
Richmond, VA

/s/
John A. Gibney,
United States District'Judge

 </s> Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 1 of 17 PageID# 241

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division

UNITED STATES OF AMERICA, Plaintiff, v.
COMMONWEALTH OF VIRGINIA, Defendant.

)

)

)

)

CIVIL ACTION NO: 3:12CV059

)

)

)

)

)

)

DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION TO INTERVENE Comes now the Defendant, the Commonwealth of Virginia ("Commonwealth"), by
counsel, and opposes Proposed Intervenors' ("Applicants") motion to intervene. Defendant asks this Court to deny the Applicants' Motion to Intervene and in support thereof, states as follows:
I. STATEMENT OF FACTS On August 21, 2008, the United States, through its Department of Justice, initiated an investigation of Central Virginia Training Center pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. O n April 23, 2010, the United States expanded its investigation to determine whether the Commonwealth violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., by discriminating against individuals with developmental disabilities. The United States issued a findings letter to the Commonwealth on February 10, 2011, a lleging that the Commonwealth failed to provide services to individuals with developmental disabilities in the most integrated setting appropriate to their needs in violation of the ADA.

1

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After receipt of the findings letter, the Commonwealth engaged in negotiations with the United States in an effort to reach an amicable resolution of the United States' claims to avoid complex and costly litigation. A fter almost a year of negotiations, a settlement agreement between the parties was reached. On January 26, 2012, the United States filed the Complaint in this case and simultaneously filed the parties' Joint Motion for Entry of the Settlement Agreement. Applicants now seek to intervene.
II. APPLICANTS' MOTION TO INTERVENE SHOULD BE DENIED In order to intervene as of right, the Applicants must show an interest sufficient to merit intervention, that without intervention their interest may be impaired, and that the present litigants do not adequately represent their interests. Fed. R. Civ. P. 24(a)(2); Commonwealth of Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir. 1976). All three prongs of this standard must be met to establish a right to intervene. Id.; Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 110 (E.D. Va. 1993). Permissive intervention may be granted when an applicant's claim or defense and the main action have a question of law or fact in common. Fed. R. Civ. P. 24(b)(1)(B). Granting of permissive intervention lies within the sound discretion of the Court and in making a determination regarding intervention, the Court must consider whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed. R. Civ. P. 24(b)(3); Allen v. County School Board of Prince Edward County, 28 F.R.D. 358, 363 (E.D. Va. 1961). Applicants are residents of the Commonwealth's five state-operated ICFs/MR, commonly referred to as Training Centers. Applicants contend that they have a right to intervene pursuant to Fed. R. Civ. P. 24(a)(2) because they have an interest in the subject matter of this litigation based on t heir status as residents of the Training Centers. A pplicants further contend that the
2

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 3 of 17 PageID# 243
disposition of the litigation will impair their ability to protect that interest, and the Commonwealth does not adequately represent their interests. In the alternative, the Applicants assert that they should be allowed to permissively intervene because there is a common question of law or fact with the main action based on their status as residents of the Training Centers.
Because the Applicants do not have a legal interest in the subject matter of this litigation and their ability to protect their purported interest will not be impaired by the disposition of this case, they are not entitled to intervention as of right. Moreover, permissive intervention is also not warranted because the Applicants do not have a claim or defense with a question of law or fact in common with the case and intervention would create delay and hinder the resolution of the litigation. In addition, denial of intervention would in no way prejudice the interests asserted by the Applicants.
A. Applicants Are Not Entitled to Intervention as of Right 1. Applicants Do Not Assert an Interest Sufficient to Warrant Intervention as of Right
The nature of an interest that is sufficient to entitle an applicant to intervention as of right is not defined in Fed. R. Civ. P. 24(a)(2). The United States Court of Appeals for the Fourth Circuit has held that "the only interest that will entitle an applicant to the right of intervention is a legal interest as distinguished from interests of a general and indefinite character which do not give rise to definite legal rights." Radford Iron Co., Inc. v. Appalachian Electric Power Co., 62 F.2d 940, 942 (4th Cir. 1933), cert. denied, 289 U.S. 748 ( 1933); See also Jewell Ridge Coal Corp. v. Local No. 6167 United Mine Workers of America, 3 F .R.D. 251, 253 ( 1943). T he United States Supreme Court has stated that it is a significantly protectable interest. Donaldson v. United States, 400 U.S. 517, 531 ( 1971). It is well-established that a mere general interest is not a protectable interest. Dairy Maid, 147 F.R.D. at 111; NISH and Goodwill Services, Inc. v.
3

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 4 of 17 PageID# 244
Cohen, 191 F .R.D. 94, 96 (2000). To be protectable, the interest claimed must bear a cl ose relationship to the dispute between the existing litigants and must be direct, rather than remote or contingent. Id.
Applicants move to intervene to protect their interest in their own care and specifically the availability of ICF/MR care provided by the state-operated Training Centers. They argue that the proposed Settlement Agreement requires the closure of four of the Commonwealth's Training Centers and would cause their discharge or transfer in violation of their rights under the ADA, Olmstead v. L.C. ex rel. Zimring1, and Virginia Code § 37.2 -837(A)(3). It is clear that Applicants seek to challenge closure of the Training Centers through intervention. Applicants misinterpret and mischaracterize the proposed Settlement Agreement in an attempt to derive a significantly protectable interest. Ultimately, Applicants fail to express an interest that entitles them to intervention.
Contrary to the assertions of Applicants, the proposed Settlement Agreement does not require the Commonwealth to close its state-operated Training Centers. It only requires the Commonwealth to provide to its General Assembly a plan to cease residential operations at four of the five Training Centers. Implementation of the plan is not required by the proposed Settlement Agreement. In fact, the United States has no authority, through the proposed Settlement Agreement or otherwise, to force the Commonwealth to close its state-operated institutions and as this Court recognized in its Order dated March 6, 2012, i t has no authority to order closure. Ultimately, the decision regarding closure of the Training Centers rests with the Commonwealth's Governor and General Assembly.2 See Baccus v. Parrish, 45 F.3d 958, 961 (5th
1 527 U.S. 581 (1999). 2 A state must administer services with an even hand and judicial deference should be given to the discretion of the state in determining the manner in which it allocates its resources. Olmstead, 527 U.S. 581, 597 (1999); Olmstead, 527 U.S. at 610 (Kennedy, J., concurring in judgment); Arc of Virginia, Inc., v. Kaine, 2009 U.S. Dist. LEXIS
4

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 5 of 17 PageID# 245
Cir. 1995) ("The state reserves the right to unilaterally close a state school [for individuals with
developmental disabilities] for administrative or financial reasons, even if it means that certain
residents will have to relocate as a r esult."); Lelsz v. Kavanagh, 783 F . Supp. 286, 298 ( N.D. Tex. 1991), aff’d, 983 F.2d 1061 (5th Cir. 1993), cert. denied, 510 U.S. 906 (1993) ("[T]he state
has always possessed the power and frequently exercises the power to relocate its residents for
its own administrative needs. If it so desired, the state could unilaterally close any of the state
[ICFs/MR] for economic reasons or otherwise.").
It should also be noted that Applicants do not have a right or an entitlement to care in a state-operated Training Center3. Although the Supreme Court in Olmstead recognized that the
ADA does not require a state to close its state-operated institutions, it did not say that a state was
required to maintain such institutions either. Applicants have not pointed to any law that
requires states to operate ICFs/MR or that gives them a right to receive services from a particular service provider4 because they cannot do so. To the contrary, federal law does not give
Applicants the right to reside in a particular facility. See Rolland v. Patrick, 562 F. Supp. 2d
176, 185 (D. Mass. 2008), aff'd sub nom., Voss v. Roland, 592 F.3d 242 (1st Cir. 2010); Leslz, 783 F. Supp. at 298; Bruggeman v. Blagojevich, 324 F.3d 906, 910-11 (7th Cir. 2003); O'Bannon
v. Town Court Nursing Center, 447 U .S. 773, 785 ( 1980). While Virginia Code § 37.2 -
117677, *17 (E.D. Va. 2009). It cannot be ignored that there are approximately 7,100 individuals on the Commonwealth's waiting lists for community services under the Home and Community Based Services Waiver. Currently there are 1,018 individuals residing in the Commonwealth's Training Centers. The average number of long-term admissions to all five of the Training Centers has been only 13 per year. See Backgrounder: A Brief History and Background on Virginia's Developmental Disability System, at http://www.DBHDS.Virginia.Gov/settlement/ID-DDSystem.pdf. 3 Under current Virginia law, admission to a Training Center is not absolute. The Training Center must first approve the admission by finding that there is available space and service capacity to meet the needs of the individual. See Virginia Code § 37.2-806(B); 12 VAC 35-190-30. 4 A Medicaid recipient has the right to choose whether to receive services through an ICF/MR or a Home and Community Based Services Waiver. 42 U.S.C. § 1396n(c)(2)(C); 42 C.F.R. § 441.302(d). The Medicaid Act provides that an individual eligible for medical assistance may obtain such assistance from any institution, agency, community pharmacy, or person qualified to perform the services who undertakes to provide such services. 42 U.S.C. § 1396a(a)(3)(A). Pursuant to 42 C.F.R. § 431.51(b)(1)(ii), a Medicaid recipient may receive services from any institution, agency, pharmacy, person, or organization that is willing to furnish them to that particular recipient.
5

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 6 of 17 PageID# 246
837(A)(3) states that no c onsumer in a Training Center who is a Medicaid recipient may be discharged if he or his authorized representative chooses continued placement, it in no w ay requires the continued operation of the Training Centers. A pplicants' desire for the continued state operation of the Training Centers and their continued placement in the Training Centers is not a legal or significantly protectable interest sufficient to entitle them to intervention. See Benjamin v. Department of Public Welfare, 432 Fed. Appx. 94, 99 (3rd Cir. 2011); Richard C. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999), aff'd, 229 F.3d 1139 (3rd Cir. 2000).
The proposed Settlement Agreement also does not in any way prohibit ICFs/MR. Instead, the proposed Agreement clearly states that the Commonwealth shall serve individuals in the most integrated setting consistent with their informed choice and needs. See Sections III.A; III.C.6.b.iii.C; III.D.1; III.D.2; III.D.4; III.D.5; III.D.6; III.E.2; IV.A; IV.B.5; IV.B.9; IV.B.10; IV.C.6; V.A; V.D.1; and V.I.2 of the proposed Settlement Agreement. The Agreement simply ensures that individuals are not served in congregate settings, whether sponsored homes, group homes or ICFs/MR, unless it is consistent with their choice and in some cases reviewed to ensure that informed choice was offered. See Sections III.D.5 and 6, and IV.C.6 of the proposed Settlement Agreement. Under the proposed Settlement Agreement, Applicants will continue to maintain their choice to receive services in any willing ICF/MR. Because the proposed Settlement Agreement is replete with language of choice, Applicants cannot show an interest in the litigation that justifies intervention as of right. See Benjamin v. Department of Public Welfare, 267 F.R.D. 456, 462 (M.D. Pa. 2010), aff’d, 432 Fed. Appx. 94 (3rd Cir. 2011).
Applicants further argue that the proposed Settlement Agreement will force their discharge from the Training Center without regard to the opinions of their treating professionals. This is simply untrue. The Agreement does call for the creation of waiver slots to enable
6

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 7 of 17 PageID# 247
individuals residing in the Training Centers to transition to the community. N othing in the Agreement requires those waiver slots to be used or requires any particular individual to accept a created waiver slot. If created waiver slots are unused, the proposed Agreement permits the reallocation of those unused slots to individuals on the urgent wait list. See Section III.C.4 of the proposed Settlement Agreement.
The proposed Agreement also ensures the involvement of the individual's treating professionals. Discharge planning will be performed by the individual's personal support team, made up of the individual and his authorized representative, Training Center staff including treating professionals, and the community services board case manager. This team will assess an individual's treatment, training, and habilitation needs and make recommendations for services. See Section IV.B.6 of the proposed Settlement Agreement. Specific options for services will be recommended by the personal support team and the team will assist the individual in choosing a provider. See Section IV.B.9 of the proposed Settlement Agreement. The personal support team is not prohibited from making a recommendation for continued placement in a Training Center. See Section IV.B.14 of the proposed Settlement Agreement.
Finally, Applicants argue that they have an interest in protecting themselves from harm. However, the proposed Settlement Agreement will ensure that the Commonwealth improves its quality and risk management system. The system is designed not only to protect individuals from harm but to also ensure that appropriate services are available for all individuals. See Section V.A of the proposed Settlement Agreement. All providers of services, including Training Centers, community ICFs/MR, and community providers, must establish risk management systems to address harms and risks of harm. See Section V.C.1 of the proposed Settlement Agreement. The Commonwealth must also implement a process to investigate and
7

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 8 of 17 PageID# 248
remediate suspected abuse and neglect. See Section V.C.3 of the proposed Settlement Agreement. Data will be collected from providers of services, case managers and the Office of Licensing of the Commonwealth's Department of Behavioral Health and Developmental Services to identify trends, strengths and problems at individual and systemic levels regarding quality of services and areas where service gaps exist. See Section V.D.2 of the proposed Settlement Agreement. Regional Quality Councils will be established by the Commonwealth to assess the data and recommend actions for improvement. See Section V.D.5 of the proposed Settlement Agreement.
Applicants have a general interest in the outcome of this litigation in the same respect that all other citizens of the Commonwealth with developmental disabilities do. Applicants' general interest in their own health care and protecting themselves from harm is insufficient to warrant intervention as of right. See Benjamin, 267 F.R.D. at 462. If it were, all individuals with developmental disabilities would have a similar right. Applicants' specific concerns focus on the possible closure of the Training Centers and their understandable apprehension of being forced from their current Training Center placements. A s this Court does not have the authority to order the Training Centers to close or remain open, Applicants do not stand to gain or lose by the direct legal operation of the Court's judgment in this case. See Teague v. Bakker, 931 F.2d 259, 261 (1991). A s such, their interests are not direct and do not bear a close relationship to the litigation between the existing parties. Dairy Maid, 147 F.R.D. at 111; NISH, 191 F.R.D. at 96. Thus, Applicants fundamentally do not have a significantly protectable or legal interest entitling them to intervention as of right.
8

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 9 of 17 PageID# 249
2. Applicants Alleged Interests Will Not Be Impaired by Denying Intervention As argued above, Applicants do not have a legally protectable interest that warrants intervention as of right. T hus, their alleged interest cannot be placed in jeopardy by this litigation because the interest they allege is not implicated in this case. See Benjamin, 267 F.R.D. at 462. Even if this Court finds that Applicants' interest for continued placement at the Training Centers is sufficient to support intervention as of right, Applicants cannot show that their interests will be impaired if they are denied intervention. A s stated above, this Court cannot order the Commonwealth to close or continue operation of its Training Centers. Because the future of the Training Centers rests solely with the Commonwealth's Governor and General Assembly and is outside the scope of the present litigation, Applicants can protect their interests by advocating their position with the Governor and General Assembly members. The disposition of this litigation, either by entry of the proposed Settlement Agreement or other Court order, cannot require closure of the Training Centers and will in no w ay affect Applicants' ability to advocate for their position. See Lelsz, 783 F . Supp. at 298. Thus, Applicants' alleged interest in continued placement in the Training Centers will not be impaired if intervention is denied. See Cooper Technologies, Co. v. Dudas, 247 F.R.D. 510, 515 (2007). In addition, the proposed Settlement Agreement in no way prohibits the Applicants from choosing to receive services in an ICF/MR and ensures that treating professionals, as part of the personal support team, assist individuals in making placement choices. Similarly, the proposed Settlement Agreement will significantly improve the Commonwealth's quality and risk management system thereby ensuring individuals with disabilities greater protection from harm. Therefore, Applicants’ general interest in their own health care and protection from harm is not
9

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 10 of 17 PageID# 250
impaired. See Benjamin, 478 F.3d at 774; Ligas ex rel. Foster v. Maram, 478 F.3d 771, 774 (7th Cir. 2007).
3. The Commonwealth Adequately Represents the Interests of the Applicants Although the burden of demonstrating inadequate representation is minimal, a presumption of adequacy of representation exists if the Applicants and the Commonwealth have the same interest or ultimate objectives in the litigation. NISH and Goodwill Services, 191 F.R.D. at 97; Dairy Maid, 147 F.R.D. at 112. The Commonwealth and the Applicants share the same interpretation of the ADA and Olmstead that a state cannot be forced to close its institutions. The Commonwealth also shares the Applicants' position that individuals with developmental disabilities should not be forced into placements that are not appropriate to meet their needs or are inconsistent with individual choice. During settlement negotiations, the Commonwealth vigorously fought for these very principles. In fact, the proposed Settlement Agreement contains abundant language promoting the provision of services in the most integrated settings appropriate to individuals' needs and consistent with their informed choice after receiving options for services. See Sections III.A; III.C.6.b.iii.C; III.D.1; III.D.2; III.D.4; III.D.5; III.D.6; III.E.2; IV.A; IV.B.5; IV.B.9; IV.B.10; IV.C.6; V.A; V.D.1; and V.I.2 of the proposed Settlement Agreement. The Commonwealth also agrees with Applicants that a continuum of care, including ICFs/MR, should be available to individuals with developmental disabilities. As stated previously, the proposed Settlement Agreement does not prohibit the provision of services in an ICF/MR, and the Commonwealth would defend against attempts to prohibit the ICF/MR level of care.
10

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 11 of 17 PageID# 251
The only area in which the Commonwealth may diverge from the views of the Applicants is with respect to the future of the Training Centers. As argued above, the continued operation of the Training Centers by the Commonwealth is not at issue in this litigation and cannot be addressed by the Court. Additionally, Applicants do not have a legal interest in the continued state-operation of the Training Centers. Thus, the fact that the Commonwealth's position with respect to the Training Centers may differ from that of the Applicants does not affect the Commonwealth's ability to adequately represent the interests of the Applicants in this particular case and is not sufficient to overcome the presumption of adequacy of representation. W ith respect to the interpretation of the pertinent laws governing this case and the interests and objectives that can be addressed by this litigation, the Commonwealth's interpretation of the pertinent laws and positions are not sufficiently different from or at odds with those of the Applicants. See Cooper Technologies, 247 F.R.D. at 516; NISH and G oodwill Services, 1191 F.R.D. at 97.
Applicants do not allege collusion between the parties or malfeasance. No collusion occurred. Negotiations were conducted at arms’ length and continued over the course of close to a year. Both parties vigorously represented their positions and there were at least two occasions where negotiations reached an impasse causing both sides to stop communicating.5 As the Seventh Circuit has recognized, a co nsent decree may be the inescapable legal consequence of application of fundamental law to the facts. The fact that Applicants would have been less prone to agree to the facts and would have taken a different view of the applicable law does not mean that the Commonwealth failed to adequately represent their interest. United States v. Board of
5 It is doubtful that Applicants’ counsel could make a good faith allegation of collusion. Counsel for the Commonwealth contacted Applicants’ counsel to discuss his representation of the Commonwealth should the case proceed to trial. In the two instances where negotiations stalled and the parties stopped communicating, counsel for the Commonwealth contacted Applicants’ counsel to inform him of the status of negotiations and to inform him that his representation could become necessary.
11

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 12 of 17 PageID# 252
School Commissioners, 466 F.2d 573, 575 ( 7th Cir. 1972), cert. denied, 410 U .S. 909 (1973); Washington v. Keller, 479 F. Supp. 569, **7-8 (D. Md. 1979). The Commonwealth has and will continue to adequately represent the general interests of the Applicants.
B. Permissive Intervention Is Not Warranted Applicants argue that if intervention of right is denied, they should be granted permissive intervention. Fed. R. Civ. P. 24(b)(1)(B) states that a court may permit anyone to intervene who has a cl aim or defense that shares with the main action a co mmon question of law or fact. In deciding whether to permit intervention, the Court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights. Fed. R. Civ. P. 24(b)(3). In this case, the United States alleges that the Commonwealth violates the ADA by administering its system of delivering services to individuals with developmental disabilities in a manner that denies such individuals the opportunity to receive services in the most integrated setting appropriate to their needs and that leads to the unnecessary institutionalization of many individuals who are qualified to receive services in a more integrated setting and do not oppose receiving services in a more integrated setting. See Complaint ¶ 42. Applicants are individuals who choose to reside in the state-operated Training Centers (ICFs/MR) and oppose receiving services in a more integrated setting. The United States does not allege that the Commonwealth is violating the ADA with respect to Applicants. Similarly, the Applicants are not arguing that the Commonwealth is currently violating the ADA with respect to its provision of services to them. Instead, Applicants argue that the Commonwealth will violate their ADA rights if the Training Centers cease to operate. The United States does not seek closure of the Training Centers, nor does the proposed Settlement Agreement require the Commonwealth to close its
12

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 13 of 17 PageID# 253
facilities. The Applicants' claim does not involve a question of law or fact in common with the main action. In addition, it is a claim that is baseless because the ADA does not require a state to operate institutions. Further, the Court has no authority to order the Commonwealth to continue operating its Training Centers and thus, can offer no remedy to the Applicants.
If Applicants are permitted to intervene, it w ill unduly delay and prejudice the adjudication of this action. Allowing Applicants to intervene would provide an incentive for any individual with a developmental disability, as well as advocacy groups, to intervene. Because individuals with developmental disabilities, their authorized representatives, and various advocacy groups hold a myriad of viewpoints on how best to administer the services system for individuals with developmental disabilities, the litigation would become unmanageable and the complexity of the litigation would increase resulting in increased cost and judicial time. See Westinghouse Electric Corp., 542 F.2d at 217.
Further, Applicants have made clear that if permitted to intervene, they will file a motion to dismiss on which the Court would be obligated to rule. There is no doubt that resolution of the litigation would be delayed if intervention is allowed.
Clearly, the adjudication of the rights of the parties will be unduly delayed and prejudiced if intervention is permitted. O n the other hand, Applicants will not be prejudiced by being denied intervention as the Court cannot order the Training Centers to remain open thereby providing the relief they seek. Applicants can adequately convey their interests to this Court by submitting their comments and amicus briefs to the Court for consideration as set forth in this Court’s Order of March 6, 2012. Additionally, Applicants can advocate for their interests in the political realm. Because Applicants do not present a common question of law or fact to the main
13

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 14 of 17 PageID# 254
action and intervention would unduly delay and prejudice the adjudication of the parties' rights, the Applicants' request for permissive intervention should be denied.
III. CONCLUSION The Applicants do not have a significantly protectable interest in this litigation and fail to meet the standard that would entitle them to intervention as of right. Similarly, permissive intervention must also be denied as Applicants have not raised a common question of law or fact with the main action and intervention would unduly delay and prejudice the adjudication of this case. The Court has already established a process in its Order dated March 6, 2012, t hrough which Applicants can submit written comments and amicus briefs regarding the proposed Settlement Agreement. Applicants should avail themselves of this process. Intervention should be denied.
Respectfully submitted, COMMONWEALTH OF VIRGINIA
By: _________/s/__________________ Allyson K. Tysinger, Counsel Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
14

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 15 of 17 PageID# 255 The Honorable Kenneth T. Cuccinelli, II Attorney General of Virginia David E. Johnson Deputy Attorney General Allyson K. Tysinger Virginia State Bar No. 41982 Senior Assistant Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 Fax (804) 371-8718 ATysinger@oag.state.va.us
15

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 16 of 17 PageID# 256
CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of March, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Aaron Zisser Alison Barkoff Benjamin O. Tayloe, Jr. U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Aaron.Zisser@usdoj.gov Alison.Barkoff@usdoj.gov Benjamin.Tayloe@usdoj.gov
Robert P. McIntosh Assistant United States Attorney 600 East Main Street, Suite 180 Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Gerald T. Schafer Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, Virginia 23464 rschafer@schaferlawgroup.com
Notification of such filing has also been made by placing a copy of the foregoing in the United States mail, first-class postage prepaid, to the following:
Thomas B. York Donald B. Zaycosky Cordelia Elias The York Legal Group, LLC 3511 North Front Street Harrisburg, Pennsylvania 17110
16

Case 3:12-cv-00059-JAG Document 27 Filed 03/16/12 Page 17 of 17 PageID# 257 /s/
Allyson K. Tysinger, VSB #41982 Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
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 </s> Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 1 of 27 PageID# 258

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Defendant.

)

)

_________________________________________ )

CIVIL ACTION 3:12-CV-059

THE UNITED STATES’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION FOR INTERVENTION

The Proposed Intervenors (“Movants”), thirteen family members of people who live in

Training Centers operated by the Commonwealth of Virginia (“Commonwealth”), seek to

intervene in this case and to dismiss it in its entirety. Motion to Intervene (“Mot. to Intervene”)

[Dkt. #19]; Motion to Dismiss [Dkt. #19-1]. The United States respectfully submits that

Movants’ Motion to Intervene is based on a misreading of the Settlement Agreement

(“Agreement”) [Dkt. #2-2], and that the process set forth by this Court for the public to be heard

on the Agreement – not intervention and dismissal of this action – is the appropriate mechanism

to address Movants’ concerns. As detailed below, this Court should deny Movants’ motion

because they do not meet the requirements for intervention as of right and because permissive

intervention is unnecessary and will cause prejudice to the parties and to the thousands of other

Virginians who will get relief under this Agreement.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 2 of 27 PageID# 259 - 2 -
INTRODUCTION Following an extensive investigation, the United States found that the Commonwealth systematically violates the civil rights of people with intellectual and developmental disabilities (“ID/DD”) under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), by exposing them to unnecessary institutionalization and the risk of unnecessary institutionalization. The Agreement remedies these systemic violations of the ADA and provides relief to thousands of people. It is carefully calibrated to accommodate the Commonwealth’s legal obligations under the ADA, the diverse needs and circumstances of Virginians with ID/DD, and the Commonwealth’s available resources. It furthers the Commonwealth’s goal of “meet[ing] the needs of all individuals with ID/DD, including those with the most complex needs, and of using its limited resources to serve effectively the greatest number of individuals with ID/DD.” Agreement III.C.9. The Agreement was reached after meetings with hundreds of people, including a range of people with ID/DD and their family members. These conversations provided critical information for the development of the negotiated terms. The Agreement requires the expansion of essential community services for people with ID/DD (including those with the most complex needs), ensures that people are provided real options and given necessary information to make informed choices about them, and creates mechanisms to ensure quality of services and the safety of people served. It will bring remedial relief to a wide range of Virginians with ID/DD – people on long waitlists for community services, people who are currently receiving community services that are inadequate to meet their needs, and people who are in state-operated and private institutions who have not been offered any meaningful alternatives. As the Court noted in its March 6, 2012 Order, “[a]t heart, the purpose of this

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 3 of 27 PageID# 260 - 3 -
agreement is to allow disabled people to live in the community.” March 6, 2012 Order [Dkt. #22] at 1.
The Movants seek both to be parties to this lawsuit and to move for the dismissal of the entire action. Their goal is to prevent the entry of the Agreement, which will jeopardize longneeded relief to thousands of people and interfere with the Commonwealth’s efforts to comply with the ADA. Despite their claim to the contrary, the Movants have no legally protectable interest that is impaired by this Agreement. Their motion for intervention, at its core, is based on a misunderstanding that the Agreement requires closure of the Training Centers and will eliminate all institutional care, known as Intermediate Care Facilities for the Mentally Retarded (“ICF-MR”) services. In truth, any decisions about closure of Training Centers will be made by the Commonwealth’s Executive and Legislative branches and is not required or otherwise dictated by the Agreement. Accord March 6, 2012 Order at 2. State-funded institutional care, whether through Training Centers or privately-operated ICF-MRs, remains an option under the Agreement.
If the Court denies their Motion, the Movants will not be denied an opportunity to be heard. The Court has established a mechanism for anyone who wishes to be heard to provide written, and in some cases, oral comments on the Agreement. Id. at 3-4. If, on the other hand, the Court permits the Movants to become a party to this action, the United States and the Commonwealth – along with the thousands of people who will get relief under the Agreement – will be severely prejudiced.
In the absence of a legally cognizable right and in light of the procedure established by the Court for public comment, Movants have no right to intervention and permissible intervention is inappropriate. Movants’ motion should be denied.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 4 of 27 PageID# 261 - 4 -
FACTUAL BACKGROUND After years of investigation, on February 10, 2011, the United States issued comprehensive findings, concluding that the Commonwealth systematically violates the ADA by placing thousands of people in, or at risk of, needless institutionalization in order for them to receive ID/DD services. Specifically, the United States found that more than 6,000 people are without necessary services while they are on the Commonwealth’s years-long waitlists for community services. These people want to remain in the community, yet more than 3,000 of them are in living situations that place them at particularly high risk of institutionalization. Findings Letter from Thomas E. Perez, Assistant Attorney Gen., Dep’t of Justice, to Robert F. McDonnell, Governor of Virginia, 16 (Feb. 10, 2011) (“Findings Letter”). The United States found that the lack of adequate crisis and respite services for individuals with acute medical or behavioral issues is a primary cause of people being forced to leave their communities and enter the Commonwealth’s Training Centers. Findings Letter at 17. The United States also found that the Commonwealth’s process for assessing and transitioning residents of the Training Centers creates unreasonable barriers that prevent people, including those whose treatment teams have agreed community placement is appropriate, from moving to the community. Findings Letter at 10. Finally, the United States found that the Commonwealth fails to use available resources to expand community-based services, and instead prioritizes investment in institutions over addressing the critical need to expand community services. Findings Letter at 2.1

1

Accord, e.g., United Cerebral Palsy, The Case for Inclusion, 8 (2011), available at

http://medicaid.ucp.org/download.php (ranking Virginia 41st nationally in allocating resources to

those in the community and 47th in keeping families together through family support for persons

with disabilities); Charlie Lakin et al., Residential Services for Persons with Developmental

Disabilities: Status and Trends Through 2009, 33, 37 (2010), available at

http://rtc.umn.edu/publications/index.asp#risp (finding that Virginia has third highest use

nationally of large, congregate settings for people with ID/DD).

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 5 of 27 PageID# 262 - 5 -

Following issuance of its findings, the United States commenced negotiations with the

Commonwealth to resolve the identified violations of the ADA. The United States engaged in

complex negotiations and eventually reached the Agreement at issue here. While the

negotiations were underway, the United States continued the statewide effort to meet with people

with ID/DD and their families that it had begun during the investigation. Community meetings

were held in every corner of the State, and hundreds of concerned citizens participated, including

some of the Movants. The information gathered at these community meetings directly informed

all aspects of the relief the United States sought in the Agreement, including not only provisions that expand community services but also those that ensure the quality of those services2 and people’s informed choice about them.3

On January 26, 2012, the United States filed a complaint detailing the Commonwealth’s

alleged violations of the ADA, and the parties jointly moved for entry of the Agreement as an

order of this Court. Complaint [Dkt. #1]. The Agreement, if approved by the Court, will

substantially expand the Commonwealth’s ID/DD system over the next nine years, to enable

people who need and qualify for services to have real options to receive appropriate services in

integrated settings, with substantial safeguards regarding the quality and safety of those services.

The Agreement is comprehensive, covering all aspects of the Commonwealth’s system of

services for people with ID/DD. It requires the Commonwealth to expand significantly a range

2

As discussed more fully below, the Agreement provides for a robust quality and risk

management system. Agreement V.C (Risk Management), V.D (Data to Assess and Improve

Quality), V.F (Case Management), V.G (Licensing), V.H (Training), V.I (Quality Service

Review).

3

As discussed more fully below, the Agreement requires that people with ID/DD and their

families be provided a choice to receive services in the most integrated setting appropriate to

their needs and the information necessary to make a choice. But ultimately, a person with

ID/DD or, when relevant, their authorized representative can make a choice for institutional care.

Agreement VI.A-D; I.A (regarding transition planning); III.A, D.1-2, 4-6, E.23; IV.B.4- 6, 9,11,

C.5-6; V.A, D.1,3, F.2, H.1-2, I.1-2 (regarding choice of services).

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 6 of 27 PageID# 263 - 6 -
of critical community services so it can safely serve more people with ID/DD in integrated settings, including individuals with complex behavioral or medical needs. Agreement III.C. The Agreement recognizes that safety is paramount, requiring the provision of appropriate services that meet each person’s needs and close oversight of providers. It also requires the Commonwealth to create comprehensive systems for responding to crises and ensuring that people receive safe and appropriate services through rigorous oversight and quality assurance at the individual, regional, and statewide levels, with providers, case managers, and other components of the system providing data across a range of relevant outcome measures.4 Agreement III.C.6, V. At the individual level, this oversight includes post-transition monitoring for people who leave Training Centers and enhanced case management to ensure that each person is receiving appropriate services in a safe placement. Agreement IV.C.3, V.F.3.
The Agreement also requires the Commonwealth to implement an individualized process for discharge planning that involves the individual and his or her family, ensures that people receive sufficient information from adequately trained professionals about a range of options, and requires that individuals have the opportunity to visit placements and meet with other people with disabilities and their families so that they can make informed decisions about where they want to live and can ensure that the placement is appropriate and safe. Agreement IV. There will be comprehensive oversight of the implementation of the Agreement by both an Independent Reviewer with extensive experience in the field and this Court. Agreement VI. The Independent Reviewer’s semi-annual public reports will ensure transparency throughout the life of the Agreement. Agreement IV.C.

4

These data include measures, for example, about safety and freedom from harm; access

to physical, mental and behavioral healthcare; avoiding crises; and community inclusion.

Agreement V.D.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 7 of 27 PageID# 264 - 7 -
On March 2, 2012, the Movants filed their motion to intervene. The basis for their Motion – and their primary objection to the Agreement – is their contention that the “settlement agreement requires the closure of four (4) training centers and thus requires the cessation of services at those training centers.” Mot. to Intervene at 2. The Movants also attached a motion to dismiss that, if granted, would set aside the relief provided under the Agreement designed to remedy the violation of the rights under the ADA of thousands of Virginians who are at risk of or experiencing unnecessary – and unwanted – institutionalization.
On March 6, 2012, this Court issued an Order setting forth a process for interested people and groups to comment on the Agreement. The Court invited “interested people or groups to submit written comments about the agreement,” and stated it “will consider these written comments in deciding if the agreement is adequate, fair, and reasonable, and if the agreement is unlawful, or if it is against public policy.” March 6, 2012 Order at 3.
LEGAL ARGUMENT This Court should deny the Movants’ motion for intervention. The Movants have not met the legal standards for intervention as a matter of right. They have failed to identify a legally protectable interest that will be impaired by the Agreement and have failed to show that their interests are not adequately represented. This Court should also deny their motion for permissive intervention. Intervention is not necessary because this Court has already set forth a mechanism for the Movants and other interested persons to comment on the Agreement. Moreover, intervention would prejudice the parties and elevate the interests of the Movants over those of the thousands of other people who would be affected by the Agreement.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 8 of 27 PageID# 265 - 8 -
I. THE MOVANTS DO NOT MEET THE LEGAL STANDARD FOR INTERVENTION AS A MATTER OF RIGHT Rule 24 (a)(2) of the Federal Rules of Civil Procedure allows intervention as a matter of
right only when: [o]n timely motion . . . [the applicant] claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. The standard in the Fourth Circuit requires that Movants demonstrate that they meet each
of the following four factors in order to intervene as a matter of right: (1) their motion is timely; (2) they possess a “direct and substantial interest” in the subject matter of the litigation; (3) the denial of intervention would significantly impair or impede their ability to protect their interests; and (4) their interests are not adequately represented by the existing parties. Richman v. First Woman’s Bank, 104 F.3d 654, 658-59 (4th Cir. 1997). “[A] would-be intervenor bears the burden of demonstrating to the court a right to intervene.” Id. at 658. If an intervenor fails to meet his burden to show that all four criteria are met, then the district court must deny intervention as of right. Id. at 659-60; see also Reid L. v. Ill. State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002). Other than timeliness, the Movants meet none of the requirements for intervention as of right.
A. The Movants Have Not Asserted A Legally Protectable Interest That Is Impaired By The Settlement Agreement
In order to intervene, a party must have a legally protectable interest. Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998); see also Radford Iron Co. v. Appalachian Elec. Power Co., 62 F.2d 940, 942 (4th Cir. 1933); Jewell Ridge Coal Corp. v. Local No. 6167 United Mine Workers of America, 3 F.R.D. 251, 253 (W.D. Va. 1943). Under Rule 24(a), “[w]hat is obviously meant

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. . . is a significantly protectable interest.” Donaldson v. United States, 400 U.S. 517, 531 (1971). “Of course, a general interest in the subject matter of pending litigation” will not suffice. Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va. 1993). “To be protectable, the putative intervenors claim must bear a close relationship to the dispute between the existing litigants and therefore must be direct, rather than remote . . . .” Id.; see also Sch. Bd. of Newport News v. T.R. Driscoll, Inc., 2011 WL 3809216, *3 (E.D. Va. July 29, 2011).
Even if Movants can identify a legally protectable interest, they must also show that disposition of the action, as a practical matter, impairs or impedes their ability to protect that interest. Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 431 (4th Cir. 2000) (denying intervention as of right because there was no showing that the action would “impair or impede” proposed intervenors’ ability to protect their interests). In other words, the Movants “must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.” Benjamin v. Pennsylvania, 432 F. App’x 94, 97 (3d Cir. 2011) (internal quotations omitted).
Here, the Movants have failed to show that they have a legally protectable interest that is directly related in a concrete fashion to the relief sought and that would be impaired by the Agreement. Thus, their motion to intervene as of right must be denied.
1. The Movants’ Alleged Interest In Institutional Care Is Not Impaired Because The Settlement Agreement Does Not Require Closure Of The Training Centers Or Eliminate The Option Of Institutional Care In ICF-MRs
The Movants contend that the Agreement requires closure of four of the Commonwealth’s five state-operated Training Centers and will eliminate ICF-MR services as an option. Mot. to Intervene at 2; Memorandum of Law in Support of Motion for Intervention by

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Proposed Intervenors at 2-4, 9, 18-19 [Dkt. #20] (“Intervention Memo.”). These claims are factually incorrect and based on a misreading of the Agreement.
As this Court has already determined, the Agreement does not mandate the closure of Training Centers. Instead, the Agreement recognizes that decisions about continued operations of the Training Centers are within the purview of the Commonwealth’s Executive and Legislative Branches. Agreement III.C.9; accord March 6, 2012 Order at 2 (“Most importantly, the agreement does not force the closing of any institution or Training Center in Virginia. Rather, the agreement requires the Governor of Virginia to submit to the General Assembly a plan to close four of the residential Training Centers. The General Assembly need not close the facilities . . . .”) (emphasis in original). The Commonwealth has already met the terms of paragraph III.C.9 of the Agreement – to submit a plan to the legislature.5 Any further action or decision by the Virginia legislature regarding a plan to close Training Centers is beyond the scope of this action and the Agreement.
In a similar circumstance, the Third Circuit affirmed denial of intervention when plans to close one or more state-operated ICF-MRs were not definite, finding that “any possible impact on Intervenors’ interest in maintaining their current institutional care is not the kind of direct impact that gives rise to a right to intervene.” Benjamin, 432 F. App’x at 99; accord ARC of Va. v. Kaine, 2009 WL 4884533 *7 (E.D. Va. December 17, 2009) (holding that plan to build new facility dependent on legislative approval and funding was not ripe for judicial intervention because it was “uncertain and contingent”); Messier v. Southbury Training Sch., 183 F.R.D. 350, 358 (D. Conn. 1998) (denying motion to opt out by class members claiming the action could lead

5

On January 26, 2012, the Governor submitted a preliminary plan to the General

Assembly. William Hazel, Sec’y of Health and Human Res., Commonwealth of Va., Plan to

Transition Individuals from State Training Centers to Community-based Settings (Feb. 13,

2012), available at http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD862012/$file/RD86.pdf.

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to closure of the institution, stating that “the Court must follow the law free from speculation as to the legislature’s eventual reaction to the final result in this case”).
The Movants also misread the Agreement as eliminating the option of institutional care in any ICF-MR. Mot. to Intervene at 4 (“The Settlement Agreement, if approved, will impair or defeat the rights of the Movants to choose ICF/MR care . . . .”). Nothing in the Agreement eliminates this institutional option. To the contrary, the Agreement specifically preserves the ability of individuals to make an informed choice for congregate care, including ICF-MR services. Agreement III.D.5 (“Individuals in the target population shall not be served in a sponsored home or congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports . . . .”); Agreement IV.C.6, IV.D.2.f, IV.D.3.b.6 Even if the Commonwealth chooses to close one or more of its Training Centers, state-funded, privately-operated ICF-MR services will remain.
The Movants also misunderstand the section of the Agreement that gives priority for a portion of new waiver slots to people leaving the Training Centers. Agreement III.C.1.a. These waiver slots are not a “quota system that dictates” discharge, Intervention Memo. at 20; they are waiver slots set aside for Training Center residents who want to transition to the community. Nothing in that provision requires that those waivers be filled. In fact, a separate provision in the Agreement allows the Commonwealth to shift unused waivers set aside for people in the Training Centers to individuals on waitlists for services. Agreement III.C.4. In sum, the

6

Courts have denied intervention in circumstances where the complaint is “replete with

language of choice” and nothing in the complaint would eliminate institutional care. Benjamin v.

Dep’t. of Pub. Welfare, 267 F.R.D. 456, 462 (M.D. Pa. 2010), aff’d 432 F. App’x 94 (3d Cir.

2011) (citing Ligas v. Maram, 478 F.3d 771, 774 (7th Cir. 2007)). The Agreement contains

numerous provisions regarding individual choice, preferences, and self-determination.

Agreement I.A, III.A, III.D.1, 2, 4, 5, 6, III.E.2, IV.B.4, 5, 6, 9,11, IV.C.5,6, V.A, V.D.1,3,

V.F.2, V.H.1, V.I.1-2.

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Agreement does not require closure of any Training Center, nor will it deny state-funded ICFMR services to Movants or others who choose them.
2. The Movants Do Not Have A Legally Protectable Interest In Remaining In Their Training Centers Or In Overriding State Decisions About Allocation Of Resources
Even if the Agreement could be interpreted to constrain the Movants’ claimed interest in institutional care, that interest does not rise to the level of being legally protectable. The Movants do not have the right to placement in a particular facility. Rolland v. Patrick, 562 F. Supp. 2d 176, 185 (D. Mass. 2008) (“[N]either federal nor state law gives class members the right to reside in a particular facility.”); Lelsz v. Kavanaugh, 783 F. Supp. 286, 298 (N.D. Tex. 1991), aff’d, 983 F.2d 1061 (5th Cir. 1993) (no right to remain in two state-operated ICF-MRs that were closing pursuant to a settlement agreement). Available placement choices can legitimately be limited by the placements a state chooses to fund. O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 775, 785-86 (1980) (no right to remain in decertified facility); Bruggeman v. Blagojevich, 324 F.3d 906, 910-11 (7th Cir. 2003) (no right to ICF-MRs other than those offered by the state).
Thus, if the Commonwealth elects to close Training Centers, it has the right to do so, although such decisions are subject to the Agreement’s requirements about the safety of individuals and the appropriateness of services. Courts have shown particular deference to a state’s discretion regarding closure of institutions where, as here, the state’s efforts are intended to maximize its available resources to serve effectively the greatest number of people. Agreement III.C.9 (The Commonwealth has a “goal and policy . . . of using its limited resources to serve effectively the greatest number of individuals with ID/DD.”); Ricci v. Patrick, 544 F.3d 8, 17-18 n.8 (1st Cir. 2008) (noting the importance of the state’s broad discretion in “allocating

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its resources to ensure equitable treatment of its citizens,” including discretion to close any facility); see also Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir. 1995) (holding that the state “reserves the right to unilaterally close a state school for administrative or financial reasons, even if it means that certain residents will have to relocate as a result”); Lelsz, 783 F. Supp. at 298 (“The State has always possessed the power – and frequently exercises the power – to relocate its residents for its own administrative needs. If it so desired, the State could unilaterally close any of the State schools for economic reasons or otherwise.”); accord March 6, 2012 Order at 2. The Olmstead decision itself underscores that states are to allocate limited resources with an even hand. Olmstead v. L.C., 527 U.S. 581, 605, 612 (1999) (“No State has unlimited resources, and each must make hard decisions on how much to allocate to treatment of diseases and disabilities. . . . The judgment, however, is a political one and not within the reach of the statute.”).
Despite the Movants’ arguments to the contrary, nothing in the ADA or Olmstead creates a legal right to remain in an institution or to override state decisions about closure. Intervention Memo. at 8, 20.7 The ADA and Olmstead require public entities to avoid unnecessary institutionalization and provide community-based services under certain circumstances – they cannot reasonably be read to require public entities to provide segregated services. In passing the ADA, Congress intended to eliminate discrimination against people with disabilities,

7

Movants’ reliance on United States v. Oregon, 839 F.2d 635 (9th Cir. 1988), is

misplaced. Intervention Memo. at 14-15, 18. In Oregon, a pre-ADA, pre-Olmstead case, the

proposed intervenors were residents of a state-operated ICF-MR seeking community-based care.

Id. In granting intervention, the Ninth Circuit noted that the United States – unlike in this case –

had limited the relief it was seeking in its complaint to remedying unconstitutional conditions

within the facility and was not seeking the broader systemwide relief, including expansion of

community services, that the movants wanted. Id. at 638-39. Considered in light of the ADA

and Olmstead, the Oregon decision supports the need for states to allocate resources with an

even hand and provide options for community-based care. It certainly does not support

Movants’ alleged interest in state-operated ICF-MR care.

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including segregation and institutionalization. 42 U.S.C. § 12101(a).8 Consistent with this purpose, the ADA’s implementing regulations require public entities to “administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). In Olmstead, the Supreme Court held that the ADA prohibits unjustified segregation of people with disabilities and described the harms of segregation: that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 600-01.
Intervention as a matter of right was denied under nearly identical circumstances in Benjamin v. Dep’t. of Pub. Welfare, 267 F.R.D. 456, 465 (M.D. Pa. 2010), aff’d 432 F. App’x 94 (3d Cir. 2011). Like the Movants here, the Benjamin putative intervenors argued “that they have a concrete, legally protectable interest in their own care, i.e., the availability of institutional care.” Id. at 459. The district court found that while the intervenors had “a bona fide interest in their own care, that concern does not rise to the level of a significantly protectable interest in the litigation warranting intervention as a party” where the litigation, like the instant matter, would

8

See 42 U.S.C. § 12101(a)(1) (“Physical or mental disabilities in no way diminish a

person’s right to fully participate in all aspects of society, yet many people with physical or

mental disabilities have been precluded from doing so because of discrimination.”);

§ 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals with

disabilities, and, despite some improvements, such forms of discrimination against individuals

with disabilities continue to be a serious and pervasive social problem.”); § 12101(a)(3)

(“[D]iscrimination against individuals with disabilities persists in such critical areas as . . .

institutionalization . . . .”); § 12101(a)(5) (“[I]ndividuals with disabilities continually encounter

various forms of discrimination, including outright intentional exclusion, . . . [and] segregation . .

. .”).

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not deny the movants a choice of institutional care. Id. at 462. The Third Circuit affirmed, finding that institutional care remained a choice. 432 F. App’x at 98. Accordingly, the Movants do not have a legally protectable interest in remaining in their Training Centers or in overriding the state’s decisions about allocation of resources and thus cannot intervene on this basis.
3. The Movants’ Interest In Receiving Services That Meet Their Needs and Keep Them Safe Is Not Impaired By This Agreement
The Movants also misread the Agreement as forcing them into community settings that are inadequate and inappropriate, claiming it impairs their right to safety. Intervention Memo. at 2, 4, 5, and 11.9 But the Agreement does no such thing. First, as discussed above, ICF-MR services remain an option for people who so choose. See supra at 10-11. The Movants can continue to receive state-funded ICF-MR services if they believe those services are necessary to keep their loved ones safe and meet their needs.
Second, the Agreement ensures that individuals are not discharged to settings that are unsafe or lack necessary services. The discharge planning process is designed to ensure proper assessment of a person’s specific needs and informed choice. The process is individualized, requires deep knowledge by and extensive training of relevant staff, includes the individual and the family’s input and the “opportunity to discuss and meaningfully consider” the various options, connects people to potential community-based placements on a timely basis, and provides opportunities to meet with potential providers. Agreement IV.B, C.

9

They also imply that community settings are, by their nature, unsafe. However, Movants

rely on single study in support of this contention. Intervention Memo. at 15-16. In contrast,

multiple studies demonstrate that even persons with complex needs who have transitioned from

institutions can thrive in community settings. See, e.g., K. Charlie Lakin et al., Behavioral

Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental

Disabilities: Third Decennial Review of U.S. Studies 1977-2010, 2 RESEARCH AND TRAINING

CENTER ON COMMUNITY LIVING, 8 (review of 45 studies finding “consistent evidence of benefits

accruing to people with ID/DD from movement from institutions to community”).

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Individuals who have complex needs must have those needs met in whatever placement is provided. Agreement IV.B.2, 7. Essential supports must be identified and be “in place at the individual’s community placement prior to the individual’s discharge from the Training Center.” Agreement IV.C.5. People discharged from Training Centers will be closely monitored through post-move checks, monthly face-to-face visits by case managers, and enhanced licensing inspections. Agreement IV.C.3, V.F.3, V.G.2. Any potential closures must comport with the Agreement’s provisions requiring safety and appropriate services upon discharge.
Third, the Agreement greatly expands the Commonwealth’s quality assurance system in the community, through mechanisms that monitor safety and the quality of services both for individuals and systemically, a risk management system, quality service reviews, statewide training for providers and staff, and regional quality councils that include people receiving services and their families. Agreement V.C-I. Additional mechanisms for public involvement and accountability are provided, including making the independent reviewer’s reports public. Agreement VI.C.
Thus, the Agreement does not force individuals into unsafe or inappropriate community placements. Rather, it mandates the creation of a community infrastructure that is safe and appropriate, so that people and their families will be comfortable in choosing community rather than an institution. Moveover, any decision the Commonwealth independently makes to close Training Centers is subject to the protections of the Agreement. Accordingly, the Agreement does not impair any right individuals have to receive appropriate services and be kept safe. Accord Lelsz, 783 F. Supp. at 298 (approving settlement agreement over concerns about inappropriate community placements where the agreement provided that placements would be

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made in accordance with individuals’ plans, quality assurance mechanisms would be put in
place, and monitoring of community placements would be greatly enhanced).
4. The Movants’ Alleged Interest In Recommendations By Treatment Professionals Is Not Impaired By The Agreement
The Movants claim a right to “have the benefit of the recommendations of treating
professionals regarding the most appropriate setting to receive services,” Intervention Memo. at
4-5, and contend that the Agreement “ignores residents’ rights to have treating professionals
render judgments as to where these individuals should receive services,” id. at 11. Whether or
not the Movants have a legally protectable interest to receive recommendations of treating professionals,10 nothing in the Agreement impinges on treating professionals providing their
recommendations. To the contrary, the Agreement expressly contemplates that the Personal
Support Team (“PST”) for Training Center residents will include the Training Center’s treating
professionals, and the PST “will assess an individual’s treatment, training, and habilitation needs
and make recommendations for services, including recommendations of how the individual can
be best served.” Agreement IV.B.6. Accordingly, the Movants cannot show that their alleged
interest in treating professional recommendations is impaired by the Agreement.
Because the Movants have not demonstrated that they have a legally protectable interest
that will be impaired by the Agreement, this Court must deny their motion for intervention as of
right.
10 A determination by a state’s treating professional is not a “prerequisite to community placement,” as the Movants contend, nor does Olmstead create such a legally protectable interest. See, e.g., DAI v. Patterson, 653 F. Supp. 2d 184, 258-59 (E.D.N.Y. 2009) (Olmstead does not “create a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting.”); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008) (same); Long v. Benson, 2008 WL 4571905, at *2 (N.D. Fla. Oct. 14, 2008); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d at 541 (same).

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B. The Movants Have Failed To Show Adversity Of Interest, Collusion, Or Nonfeasance By The Parties
To permit intervention as of right, the Movants must show that their interests are not adequately represented by an existing party in the litigation. JLS, Inc. v. Pub. Serv. Comm’n of W. Va., 321 F. App’x 286, 289 (4th Cir. 2009). The primary result the Movants are seeking in this case is the protection of their ability to choose institutional care. See, e.g., Intervention Memo. at 2-4, 9, 18-19. But, as discussed previously, the Agreement allows people, like Movants, who want institutional care, to make that choice. Agreement III.D.5 (“Individuals in the target population shall not be served in a sponsored home or congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports . . . .”); see supra at 11. Therefore, the Court should presume that Movants’ interests are adequately represented unless they show “adversity of interest, collusion, or nonfeasance.” JLS, 321 F. App’x at 289. The Movants have failed to do so.
The Movants have not shown the United States and the Commonwealth colluded in reaching this Agreement. Prior to this Agreement, the United States conducted a full investigation and issued a Findings Letter. The parties engaged in a year-long, arms-length negotiation, in which the state officials tasked with implementing the Agreement and with serving people with developmental disabilities had full participation in the negotiation process. Negotiations were difficult, and several times over the course of the year, they broke down.
The Movants likewise have not shown nonfeasance by the parties. The United States and the Commonwealth have invested extensive time and energy into negotiations to reach an Agreement that carefully balances the variety of needs and circumstances of Virginians with ID/DD in developing a remedy to comply with violations of the ADA. As explained above, the United States sought the input of affected persons, including the Movants, throughout the course

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of the investigation and negotiations. The protections in the Agreement are in part the product of this extensive public engagement and fact-finding. See supra at 2-4. Not only is reaching an Agreement here not nonfeasance, but conservation of resources and the law itself encourage settlement under these circumstances. See 42 U.S.C. § 12212 (“Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations . . . is encouraged to resolve disputes arising under [the ADA].”); United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999) (holding, in a civil rights case, that “[i]n considering whether to enter a proposed consent decree, a district court should be guided by the general principle that settlements are encouraged”); United States v. Arch Coal, Inc., --- F. Supp. 2d ----, 2011 WL 5358723, *6, 7-8 (S.D. W. Va. Nov. 7, 2011) (discussing interest in avoiding “consum[ing] a significant amount of time and expense by the parties, including the public fisc”); Am. Canoe Ass’n, Inc. v. U.S. Envtl. Prot. Agency, 54 F. Supp. 2d 621, 625 (E.D. Va. 1999) (holding that the parties’ “expertise and comparative freedom in crafting a remedy promise a more sensible and practical resolution to the problems presented by complex . . . litigation than that likely to result from judicial intervention”).
Moreover, the Commonwealth is charged with protecting the interests of the people with ID/DD it serves, and the United States is charged with protecting the public interest in its enforcement of civil rights law. The evidence establishes that the Parties considered and balanced the diverse needs and circumstances of all Virginians with ID/DD. See Reaching Hearts Int’l, Inc. v. Prince George’s Cnty., 2011 WL 4459095, *4 (D. Md. Sept. 23, 2011) (“[T]here is an assumption of adequacy when the government is acting on behalf of a constituency that it represents.”) (internal citation and quotations omitted); Am. Canoe Ass’n, Inc., 54 F. Supp. 2d at 629 (“[W]here a government agency . . . has pulled the laboring oar in

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 20 of 27 PageID# 277 - 20 -
constructing the proposed settlement, a reviewing court may appropriately accord substantial weight to the agency’s expertise and public interest responsibility . . . .”) (internal quotations omitted); accord, Ligas, 478 F.3d at 775 (“The intervenors have made no effort to show gross negligence or bad faith on the part of the state defendants, and therefore have not overcome the presumption that the defendants, as governmental bodies charged with protecting the interests of proposed intervenors, will provide adequate representation.”); Benjamin, 267 F. App’x at 464 (finding that the state developmental disabilities service agency adequately represented the interests of the proposed intervenors). Thus, there is no adversity of interest with respect to the actual issues in this action and the terms of this Agreement.
Because the Movants have not shown adversity of interest, collusion, or nonfeasance by the parties, this Court must deny their intervention as a matter of right. II. THE COURT SHOULD DENY PERMISSIVE INTERVENTION
The Court should also deny permissive intervention. As discussed below, the Movants have not asserted a claim or defense that shares a “common question of law or fact” with one that is actually at issue in this action or resolved by the Agreement. Moreover, intervention is unnecessary because this Court has already set forth a process for the Movants – like all other interested parties – to raise concerns about the Agreement prior to the Court’s final determination. Finally, permitting the Movants’ intervention in this matter would prejudice the parties and unfairly elevate the interests of the Movants above the thousands of other Virginians affected by the Agreement.
When, as here, there is no right to intervene, the Court may, in its discretion, nevertheless grant permission to intervene to a person who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). A court, in exercising its

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discretion, “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
In moving for permissive intervention, the Movants assert that “[t]he common issues include whether individuals living in the training centers should be permitted to continue to receive services at these training centers or whether they should be discharged in violation of the rights guaranteed them under the ADA and by Olmstead.” Intervention Memo. at 27. But, as discussed throughout this brief, the Agreement does not require closure of the Training Centers, institutional care remains an option, and the discharge planning provisions respect informed choice. See supra at 9-10, 16. Thus, the Movants have failed to assert a “claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
Moreover, permissive intervention is not necessary. This Court has already granted the Movants the right to comment and raise concerns about the Agreement before the Court makes a determination about its final approval. Under the process set forth by the Court in its March 6, 2012 Order, the Movants have the same opportunity as the thousands of other people with ID/DD and their families who are affected by this Agreement.11 Accord Benjamin, 267 F. App’x at 465 (denying permissive intervention when that intervention would not add to the litigation).
The Movants’ reliance on Ligas v. Maram, 2010 WL 1418583, *1 (N.D. Ill. Apr. 7, 2010), to support their intervention is misplaced. In Ligas, the proposed intervenors sought to intervene for the “limited purpose” of participating in the approval of Consent Decree. Id. Because the Ligas intervenors were not part of the Rule 23 class, they did not otherwise have a
11 Indeed, under the terms of the Agreement, people with I/DD and their families, including the Movants, will have an ongoing opportunity throughout the life of the Agreement to be involved in its implementation, through regional quality councils, independent reviewer’s public reports, and court oversight. Agreement V.D.5; VI.

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right to comment on the fairness of the proposed Consent Decree. Here, intervention is
unnecessary for that purpose because, unlike in Ligas, this Court already has created a vehicle
through which the Movants’ concerns can be raised. See March 6, 2012 Order at 3-4 (inviting
amicus briefs addressing whether the Agreement should be entered as an order).12
Additionally, an important factor to consider for permissive intervention is whether the
original parties will be prejudiced. See Hill v. W. Elec. Co., Inc., 672 F.2d 381, 386 (4th Cir.
1982). “Courts have properly emphasized the seriousness of the prejudice which results when
relief from long-standing inequities is delayed.” Id. (internal quotations omitted). Movants seek
more than a delay of relief; they propose a denial of relief by seeking to have this case dismissed
in its entirety.13 Permitting the Movants to become a party to this action would be extremely
prejudicial to the thousands of other interested Virginians affected by this Agreement. The Court
has provided a forum in which everyone with an interest in this matter is on equal footing to raise
concerns and otherwise be heard. The Movants have asserted no basis for elevating their
concerns over the thousands of other people impacted by the Agreement.
12 Also, unlike the Movants here, the intervenors in Ligas did not seek to dismiss the entire action and eliminate the relief for the thousands of members of the class. 13 The United States reserves the right to provide this Court with a full response to Movants’ Motion to Dismiss, should the Court grant Movants’ Motion to Intervene. The United States has jurisdiction to bring this action to enforce Title II of the ADA. The plain language of Title II of the ADA authorizes the United States to bring a civil action to address violations of Title II, 42 U.S.C. §12131; §12133, and the ADA explicitly contemplates that the United States play “a central role in enforcing the standards established . . . [by the ADA] on behalf of individuals with disabilities.” 42 U.S.C. § 12101. Moreover, contrary to the Movants’ claims, the United States has complied with the ADA’s pre-requisites of notice and attempt at voluntary compliance before filing this action. 42 U.S.C. § 2000d-1 (incorporated into Title II by 42 U.S.C. §12133). As the United States’ complaint demonstrates, the United States provided notice through its February 10, 2011 findings letter and attempted voluntary compliance through a year-long negotiation, which ultimately resulted in this Agreement. Complaint, ¶¶ 12-15. Finally, the Movants’ citation to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997, its statutory pre-requisites to suit, the United States’ authority under CRIPA, and CRIPA cases are inapposite; the United States did not bring this action pursuant to CRIPA, but rather, pursuant to its enforcement authority under Title II of the ADA.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 23 of 27 PageID# 280 - 23 -
Moreover, “the potential unmanageability of the [ ] litigation should [a court] allow intervention” is a factor that must be considered. Commonwealth of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 217 (4th Cir. 1976). The Fourth Circuit affirmed denial of intervention where, like here, the movants “success would provide the incentive for other [people] to seek intervention,” and “the resultant complexity of the litigation, combined with increases in cost and judicial time, would hinder resolution of the present conflict.” Id. Accord Benjamin, 432 F. App’x at 99 (denying permissive intervention, noting that “[e]very competitor for [a state’s] limited resources has an interest that potentially may be adversely affected” by budgetary decisions made by the state).
Accordingly, this Court should deny permissive intervention here because it will cause undue prejudice to the parties and the thousands of people who will get relief under this Agreement and is unnecessary because this Court has already created a process for the Movants to have their concerns heard.
CONCLUSION The Agreement before this Court remedies systemic violations of the ADA and will provide relief to thousands of people. It is the result of extensive outreach and months of negotiation, and reflects careful and deliberate consideration of the Commonwealth’s legal obligations under the ADA, the diverse needs and circumstances of Virginians with ID/DD, and the Commonwealth’s available resources. The Movants seek to intervene in this case, and to prevent the Agreement from taking effect, based on an erroneous understanding that the Agreement requires closure of Training Centers. The Agreement does not eliminate the choice of institutional care. Rather, it ensures that people who want to live in the community have a meaningful opportunity to do so.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 24 of 27 PageID# 281 - 24 -
As set forth above, Movants have no legally protectable interests that will be impaired by the Agreement and, therefore, are not entitled under the law to intervene as a matter of right. Moreover, this Court already has provided a forum for Movants – along with all the other people interested in this Agreement – to voice concerns and otherwise be heard. Permitting the Movants to become parties to this action is unnecessary and will cause prejudice both to the parties and to the thousands of other Virginians who are impacted by the Agreement.
For these reasons, the Court should deny Movants’ Motion to Intervene.

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 25 of 27 PageID# 282 - 25 -

Dated: March 16, 2012 FOR THE UNITED STATES:

Respectfully submitted,

NEIL H. MacBRIDE United States Attorney Eastern District of Virginia

THOMAS

E. PEREZ

Assistant Attorney General

Civil

Rights Division

EVE

HILL

Senior Counselor to the Assistant Attorney General

__/s/ ____________________

ALISON N. BARKOFF

ROBERT McINTOSH

Special

Counsel for Olmstead Enforcement

Virginia Bar Number 66113

Civil Rights Division

Attorney for the United States of America

United States Attorney’s Office

JONATHAN SMITH

600 East Main Street, Suite 1800

Chief

Richmond, VA 23219

Special

Litigation Section

Telephone: (804) 819-5400

Facsimile: (804) 819-7417

BENJAMIN O. TAYLOE, JR.

Email: Robert.McIntosh@usdoj.gov

Deputy Chief

Special Litigation Section

__/s/______________________________ AARON B. ZISSER Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 305-3355 Fax: (202) 514-4883 Aaron.Zisser@usdoj.gov

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 26 of 27 PageID# 283
- 26 -
CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of March , 2012, I will electronically file the foregoing THE UNITED STATES’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION FOR INTERVENTION with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson Kurzmann Tysinger Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-2071 atysinger@oag.state.va.us
Gerard Thomas Schafer Schafer Law Group 5265 Providence Rd Suite 303 Virginia Beach, VA 23464 rschafer@schaferlawgroup.com
Cordelia Elias The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 celias@yorklegalgroup.com
Donald Zaycosky The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 dzaycosky@yorklegalgroup.com
Thomas York The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 tyork@yorklegalgroup.com

Case 3:12-cv-00059-JAG Document 28 Filed 03/16/12 Page 27 of 27 PageID# 284 - 27 -
And I hereby certify that I will mail the document by U.S. mail to the following nonfiling user(s):

Virginia Attorney
600 Richm Telephone: Facsim Robert.McIntosh@usdoj.gov

/s/ Robert P. McIntosh
Bar Number 66113 for the United States of America United States Attorney’s Office East Main Street, Suite 1800 ond, Virginia 23219
(804) 819-5400 ile: (804) 819-7417

 </s> Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 1 of 40 PageID# 1139

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, Defendant.

) ) ) ) ) Civil Action No. 3: 12-CV-00059 JAG ) ) ) ) )

BRIEF AMICI CURIAE ON BEHALF OF THE ARC OF VIRGINIA, THE AUTISM SOCIETY OF CENTRAL VIRGINIA, THE AUTISM SOCIETY OF NORTHERN VIRGINIA, THE AUTISM SOCIETY OF TIDEWATER VIRGINIA,
THE PENINSULA AUTISM SOCIETY, AND THE VIRGINIA DOWN SYNDROME ALLIANCE, AND THREE NATIONAL ORGANIZATIONS, THE
ARC OF THE UNITED STATES, TASH, AND THE ASSOCIATION OF UNIVERSITY CENTERS ON DISABILITIES
IN OPPOSITION TO MOTION TO INTERVENE
Victor M. Glasberg Bar No. 16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA. 22314 (703) 684-1100 vmg@robinhoodesq.com
Robert D. Fleischner (pro hac vice pending) RFleischner@cpr-ma.org Steven J. Schwartz (pro hac vice pending) SSchwartz@cpr-ma.org Deborah A. Dorfman (pro hac vice pending) DDorfman@cpr-ma.org Sara Fawk SFawk@cpr-ma.org Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 2 of 40 PageID# 1140
FINANCIAL DISCLOSURE STATEMENT
Pursuant to Local Rule 7.1, amici curiae in the above-captioned matter, submit the following financial disclosure statements:
The Arc of Virginia (''The Arc of VA") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) ofthe Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of The Arc of VA's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A)(l )(a).
The Association of University Centers on Disabilities ("AUCD") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of AUCD's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1(A)(l)(a).
The Autism Society of Central Virginia ("ASCV") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) ofthe Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of ASCV's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A)(l )(a).
The Autism Society of Northern Virginia ("ASNV") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of ASNV's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7. 1(A)(l )(a).
The Autism Society, Tidewater Virginia ("AS Tidewater") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of AS Tidewater's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A)(1)(a).

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 3 of 40 PageID# 1141
The Down Syndrome Alliance states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of the Down Syndrome Alliance's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A)(l )(a). The Peninsula Autism Society states that it does not have a parent corporation. It is a nonprofit corporation operating under §501 (c)(3) ofthe Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of the Peninsula Autism Society's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A) (1 )(a). T ASH states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of TASH' s stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1 (A)(l)(a). The Arc of the United States ("The Arc") states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of The Arc's stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7. 1(A)(l)(a).
11

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 4 of 40 PageID# 1142

TABLE OF CONTENTS

FINANCIAL DISCLOSURE

INTRODUCTION

1

INTEREST OF AMICI

1

ARGUMENT

3

I.

Intervention Is Not Necessary For Families To Have A

3

Forum To Express Their Concerns With The Settlement

Agreement Or Its Implementation.

A. The Court Has Afforded Families a Broad Opportunity to Express Any Concerns with the Settlement Agreement. 4

B. The Agreement ItselfAffords Families Multiple

Opportunities and Forumsfor Expressing Concerns

with All Aspects of the Service System, Transitions,

or the Implementation of the Agreement.

4

C. Consumers and Families Can Invoke an Administrative

Fair Hearing Process, With Full Due Process

Protections, to Challenge A Discharge or Transfer

Decision to Which They Object.

7

II. The Standards For Intervention Of Right Are Not Satisfied. 9

A. The Standards for Intervention ofRight

9

B. Cons,umers and Families Will Not Be Denied ICFIMR

Services by the Agreement, Since They Can Continue

to Live in an ICFIMR.

10

c. While Families Have Rights Under Federal Law to

Quality Care. They Do Not Have a Right Under the

ADA to Remain in an Institution of Their Choice.

13

1. The proposed intervenors misstate the Supreme

Court's holding in Olmstead.

13

2. Families do not have a right to have their family members remain in the institution of their choice. 15

III

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 5 of 40 PageID# 1143

3. Family members do not have a right to compel an institution to remain open when the state executive branch or the legislative branch decides to close it. 17

D. The Commonwealth Should Equitably Allocate

Its Resources to All Persons with Disabilities.

18

E. The Proposed Intervenors ' Interests Are Adequately Protected by the Commonwealth and the United States. 22

III. The Proposed Intervenors Have Not Satisfied the Standards

for Permissive Intervention.

24

IV. Many States Have Demonstrated the Ability to Accommodate

Concerns from Families and to Safely Transition Individuals

from Institutions to Community Programs.

25

A. States Have A Successful Record ofSafely Transitioning

Individuals with Disabilities from Segregated Institutions

to Integrated Settings.

25

B. The Professional Literature Demonstrates that Individuals

with Intellectual and Developmental Disabilities Can Be

Safely and Appropriately Transitioned to the Community,

Regardless ofthe Extent oftheir Disabilities.

27

CONCLUSION

30

APPENDIX A

31

EXHmITS

iv

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 6 of 40 PageID# 1144
INTRODUCTION Thirteen family members of residents of several state Training Centers have filed a Motion to Intervene in this case. See Doc. 19. These families are plainly committed to obtaining the best care possible for their loved ones and understandably skeptical of changes in the Commonwealth of Virginia's service system for persons with developmental disabilities. Their Motion, and the accompanying Motion to Dismiss, not only oppose the Proposed Settlement Agreement (Agreement), but also seek to terminate the case. See Doc. 19-1. Seven Virginia organizations comprised of over 5900 family members and persons with intellectual and developmental disabilities (IDIDD), including The Arc of Virginia, the Autism Society of Central Virginia, the Autism Society of Northern Virginia, the Autism Society of Tidewater Virginia, the Peninsula Autism Society, and the Virginia Down Syndrome Alliance, as well as three national organizations, including The Arc of the United States, TASH, and the Association of University Centers on Disabilities, acknowledge the intervenors' concerns, but do not believe these general concerns constitute a legal basis to intervene in this case and delay or derail the substantial benefits that this Agreement provides for thousands of Virginians with IDIDD who are on lengthy waiting lists for community-based services. Therefore, amici submit this memorandum in opposition to the Motion to Intervene.
INTEREST OF AMICI Amici are several Virginia and national organizations that include thousands of individuals with intellectual and developmental disabilities and their families. Amici deeply value the views and preferences of all families. Each organization and its members have a fundamental belief in, and an abiding respect for. the right of all people
1

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 7 of 40 PageID# 1145
with disabilities and their families to have a voice in important decisions about their lives. Moreover, amici fully support the right of all people with disabilities and their families to make informed decisions about residential and support services provided by the Commonwealth of Virginia ("Commonwealth").
The Virginia amici organizations have members who have a direct interest in this case. They, like the proposed intervenors, receive or seek services from the Virginia Department of Behavioral Health and Developmental Services ("the Department"). They, like the proposed intervenors, are deeply affected by the Agreement. But they, unlike the proposed intervenors, believe that intervention is neither necessary nor legally warranted for affected families to have their concerns about, or their support for, the Agreement fairly considered by the Court, especially in light of the inclusive procedures established by the Court's March 6, 2012 Order and the provisions of the Agreement ensuring that the views of families are respected during its implementation. Were the Court to determine otherwise, the Virginia amici organizations also would seek to intervene, in order to ensure that their views, like those of the proposed intervenors, are presented to the Court and that the proposed intervenors' efforts to dismiss this case in its entirety are opposed.
If the Agreement is approved and implemented, it will have a beneficial impact on the Virginia amici's members. See, e.g., Agreement'JI Ill.B.1 (individuals who are on a wait list for certain services are some of the beneficiaries of the Agreement). It will greatly expand the community programs available to the members and enable thousands of them who have been waiting for years for services from the Commonwealth to finally
2

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 8 of 40 PageID# 1146

receive the care that they need and deserve. A description of each amicus organization is

attached in an Appendix to this Memorandum.

ARGUMENT

I.

Intervention Is Not Necessary For Families To Have A Forum To Express

Their Concerns With The Settlement Agreement Or Its Implementation.

The Commonwealth and the United States have entered into the Agreement in

order to ensure the Commonwealth's compliance with the Americans with Disabilities

Act ("ADA") and Olmstead v. L.c., 527 U.S. 581 (1999). Agreement, Section I.A. As

more fully described in the Oppositions of the Commonwealth (Doc. 27) and the United

States (Doc. 28), the Agreement provides a wide range of new services and supports for

residents of the five state Training Centers, as well as for individuals living in the

community who meet the criteria for - or are currently on - the waiting list for the

Commonwealth's Medicaid Home and Community-based Services Waiver (HCBS) and

for those who reside in a nursing facility or in a private Intermediate Care Facility for

Persons with Mental Retardation (ICFIMR). Agreement, Section III.B.I. The

Agreement also guarantees family involvement in the development of service and

discharge plans, in all decisions concerning the range and location of needed services,

and in the implementation of the expanded community service system in the

Commonwealth. Agreement, Section N.B.9. Finally, the Agreement provides for

significant safeguards for individuals moving to the community, including post-move

monitoring, quality assurance, and the appointment of an independent reviewer.

Agreement, Section N.C.3, V, VI.

Significantly, although the Agreement broadly expands the community-based

services and supports available to all individuals with IDIDD in Virginia, it does not

3

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 9 of 40 PageID# 1147
mandate the restriction. closure or elimination of any facilities or services that are currently available.
A. The Court Has Afforded Families a Broad Opportunity to Express Any Concerns with the Settlement Agreement.
As this Court has acknowledged in its March 6, 2012 Order, it is important that all interested persons and groups have an opportunity to present their views regarding the Agreement. See 03/06112 Order, Doc. 22 ("Order"). Ensuring that interested parties, such as the proposed intervenors, have an opportunity to be heard with regard to the Agreement, does not, however, require intervention. Rather, the Court has adopted a comprehensive process in this case similar to that required for approval of a class action settlement under Fed. R. Civ. P. 23(e) that affords interested parties a meaningful opportunity to be heard.
This process includes allowing individuals or groups of individuals to submit written formal or informal comments to the Court. Order at 3. Additionally, the Court will accept amicus curiae briefs and will consider allowing representatives of sufficiently large groups of interested people to speak at a settlement hearing. Id. The Court also has required the defendants to post a copy of the Agreement and the Court's March 6 Order on their website, and to mail a copy of the Order to parent and family groups who are associated with the Training Centers, to members of The Arc throughout Virginia, to the Virginia Association of Community Services Boards, and to a listed of interested persons provided to it by the Court. Id. at 5. Defendants must certify compliance with the Order.
Id. B. The Agreement Itself Affords Families MUltiple Opportunities and Forums
for Expressing Concerns with All Aspects of the Service System. Transitions. or the Implementation ofthe Agreement.
4

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 10 of 40 PageID# 1148
In addition to the extensive process afforded by the Court for families to express concerns with the content of the Agreement, numerous provisions of the Agreement also afford a wide range of opportunities and forums for families to participate in all aspects of its implementation, including decisions concerning the type, intensity, and location of needed services. As a result, concerns of families about whether, where, and how support services should be provided can be fully considered, on an ongoing basis, through the procedures and protections established by the Agreement.
First, the Agreement contains seven-pages exclusively devoted to discharge planning and transition from the Training Centers to the community. Agreement, Section IV. The Commonwealth must offer each individual a discharge planning and transition process that includes, among other things: provision to individuals of "necessary support to ensure that they have a meaningful role in the process", and the development of discharge and transition plans that are "consistent with informed individual choice." Agreement, Section IV.B.3, 4, and 5 (emphasis added). Discharge planning must include both the individual consumer and his or her authorized representative and anyone else whom the consumer elects to participate, such as a family member. Agreement. Section IV.B.6. The Agreement requires that an individualized process must be available to address any concerns and/or objections by the individual or his or her authorized representative to community placement. Agreement., Section IV.B.!].
The Agreement provides for individualized professional assessments, service planning, discharge planning, and quality assurance and risk management provisions to ensure safety in the community. See Agreement, Sections IV.B, & V. Discharge plans must be developed in collaboration with a Community Service Board ("CSB") case
5

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 11 of 40 PageID# 1149
manager, who "shall provide to individuals, and where applicable, their authorized representatives, specific options for types of community placements, services and supports based on the discharge plan...and the opportunity to discuss and meaningfully consider those options." Agreement, Section IV.B.9. Training will be provided to the Person Support Teams ("PST") to ensure that they can answer the families' questions about community living. Agreement, Section IV.B.lO. The Commonwealth also must create family-to-family and peer-to-peer programs to facilitate opportunities to exercise choice regarding community-based services. I Agreement, Section IV.B.9.
Second, the Commonwealth will create Community Integration Managers at each Training Center who will "facilitate communication and planning with individuals residing in the Training Centers, their families, the PST, and private providers about all aspects of an individual's transition, and will address identified barriers to discharge," including if the individual or his or her authorized representative opposes discharge or refuses to participate in the discharge planning process. Agreement, Section IV.D.I. If, after the process of evaluating and discussing discharge, an individual, or his or her authorized representative, still opposes the PST's proposed options for placement in a more integrated setting, the Commonwealth will ensure that PSTs: "a. identify and seek to resolve the concerns of individuals and/or their authorized representatives with regard to community placement; b. [d]evelop and implement individualized strategies to address concerns and objections to community placement; and c [d]ocument the steps taken to
I Moreover, ''The individual shall be offered a choice of providers consistent with the individual's identified needs and preferences," and "PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider ... and ensure that providers are timely identified and engaged in preparing for the individual's transition." Agreement, Section IV.B .9.a, c.
6

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 12 of 40 PageID# 1150
resolve the concerns of individuals and/or their authorized representatives and provide information about community placement." Agreement, Section IV.B.ll.
Finally, the Agreement establishes an independent expert to monitor its implementation and make regular reports to the Court. Agreement, Section VIC. Families have broad access to the monitor and can express concerns to him, and through him to the Court, on any aspect of implementation.
Thus, the Agreement itself ensures that there are extensive opportunities afforded to families to meaningfully participate in its implementation, and specifically in any transition from a Training Center to the community. These opportunities, coupled with the process established by the Court's March 6, 2012 Order, together provide families with ample opportunity to express their views and preferences at every juncture of this Agreement.
C. Consumers and Families Can Invoke an Administrative Fair Hearing Process, With Full Due Process Protections, to Challenge A Discharge or Transfer Decision to Which They Object.
In addition to the process and content of the Agreement, families have access to a state administrative procedure to challenge any service or discharge decision with which they disagree. This state process provides ample procedural protections and more than adequately ensures that the proposed intervenors' concerns with procedural rights and the exercise of professional judgment are adequately safeguarded. See Memorandum of Law in Support of Motion for Intervention by Proposed Intervenors ("Mem.") at 20-21 (Doc. 20 (claiming that the Agreement "ignores existing recommendations and does not allow for recommendations from treating professionals or for the residents' and guardians' possible opposition to transfer or discharge").
7

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 13 of 40 PageID# 1151
State and federal law set forth a comprehensive, individualized discharge planning process to be completed by mental health professionals to assess and ensure that the needs of all residents of the ICFIMRs are met. See 42 c.F.R.§ 488.483 .12. Moreover, if consumers and families are dissatisfied with the recommendations of the treatment professionals, they can appeal pursuant to the fair hearing regulations of the Virginia Administrative Code ("VAC"). 12 VAC § 30-110-90 (stating that consumers have "the right to file an appeal when an individual's request for a particular medical service is denied, suspended, reduced, or terminated, in whole or in part"); see generally 12 VAC §§ 30-110-10 - 30-110-370; see also 42 c.F.R.§ 431.222 (a)(2). The appeals process provides a range of due process protections, including a formal administrative hearing, with adequate notice and a right to representation, where a hearing officer hears testimony, evaluates evidence, and then issues a written decision. 12 VAC § 30-110-220. If still dissatisfied. families may seek judicial review, pursuant to the Administrative Process Act and the rules of the Virginia Supreme Court. 12 VAC § 30-110-40.; see Roanoke v. Finnerty, 692 S.E. 2d 277, 280 (Va. App. 201O)(Citing VAC § 2.2-4027); School Bd. v Nicely, 408 S.E. 2d 545, 551 (Va. App. 1991)("[T]he circuit court's role in an appeal from an agency decision is equivalent to an appellate court's role in an appeal from trial court.")
In addition to this formal administrative procedure, which indisputably comports with due process, the Commonwealth also provides an accessible complaint procedure whereby any individual, or someone acting on her behalf, can demand a timely and fair review of a complaint that the provider has violated a right afforded through the Department's regulations, including a right to appropriate services. 12 VAC § 35-115-
8

Case 3:12-cv-00059-JAG Document 37 Filed 03/22/12 Page 14 of 40 PageID# 1152
140; see also §§ 35-115-50, 150, 170. Finally, residents of a hospital, Training Center, or other facility or program operated, funded, or licensed by the Department, have the right to "an impartial review of violations of the rights assured under this section and the right of access to legal counsel," which includes the right to "[b]e treated under the least restrictive conditions consistent with his condition and not be subjected to unnecessary physical restraint and isolation." VAC § 37.2-400. This review presumably applies to discharge or transfer decisions that a family member believes are inconsistent with the individual's condition.
These multiple administrative and state adjudicatory processes are readily available, individualized, and comport with constitutional requirements of procedural due process. These processes supplement those discharge and transition planning provisions of the Agreement, and ensure multiple opportunities for families to challenge service decisions. As the First Circuit noted, disagreements about the adequacy of individual assessments, service, and placement decisions are properly resolved in state proceedings, rather by federal courts. Ricci v. Patrick, 544 F.3d 8, 20 (1 st Cir. 2008). II. The Standards For Intervention Of Right Are Not Satisfied.
A. The Standards for Intervention ofRight Under Fed. R. Civ. P. 24(a)(2), a proposed intervenor must: "(1) claim an interest relating to the property or transaction that is the subject of the action;" (2) show that he or she "is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interests;" and (3) demonstrate that his or interests "are not adequately represented by existing parties." Fed. R. Civ. P. 24(a)(2). A general interest in the pending litigation does not meet the requirements for intervention under
9

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the Rule - it must be a "legal interest" in a "definite legal right[]." Radford Iron Co., Inc. v. Appalachian Electric Power Co., 62 F.2d 940, 942 (4th Cir. 1933) ; see also Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109 (E.D. Va. 1993) citing Donaldson v. U.S., 400 U.S. 517 (1971). Although not specifically defined under Rule 24(a)(2), "[c]ourts have required an intervenor's claim to 'bear a close relationship to the dispute between the existing litigants and[] be direct, rather than remote or contingent." School Board of the City ofNewport News v. T.R. Driscoll, Inc. 2011 WL 3809216 (E.D. Va. July 29,2011) *3, quoting Cooper Technologies v. Dudas, 247 F.R.D. 501, 514 (E.D. Va 2007), citing Dairy Maid Dairy, supra.
The proposed intervenors have not articulated a significantly protected interest or a right that the parties will not adequately represent.2 The rights at stake in this case are those guaranteed by the ADA, since the Department of Justice's Complaint asserts only ADA claims. The proposed intervenors contend that absent intervention their interests under the ADA will be impaired in the following ways: (1) that they need, but will be denied an ICFIMR, facility; (2) that they may not be able to remain in their current ICFIMR; and (3) that they will be harmed by transfer to the community. See Mem. at 3-5, 8-18. However, the proposed intervenors mischaracterize the provisions of the Agreement, misconstrue the requirements of the ADA and the Supreme Court's decision in Olmstead, and misunderstand the role of the parties. Consequently, they have not articulated a protected right that will not be adequately represented by the existing parties to the litigation.
B. Consumers and Families Will Not Be Denied ICFIMR Services by the Agreement, Since They Can Continue to Live in an ICFIMR.
2 Amici do not contest the timeliness of the Motion to Intervene.
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Pursuant to its State Medicaid Plan, the Commonwealth has opted to provide a Medicaid funded service, called Intermediate Care Facilities for Persons with Mental Retardation ("ICFIMR"). 12 VAC § 30-50-240. The Commonwealth offers this level of care through publicly-operated and privately-operated ICFIMR facilities. Five of the publicly-operated ICFIMR facilities are the state Training Centers, where the thirteen proposed intervenors reside. But the Commonwealth also provides eight other ICFIMRs operated by public entities that have 221 beds, and 26 ICFIMRs operated by private entities, with 273 beds. See Declaration of Jamie Liban, attached as Exhibit 1 and Spreadsheet listing ICFIMRs excluding the Training Centers, attached as Exhibit 2. Since 2000, the number of admissions to the training centers has dropped by 42% and is continuing to decline. See 2012 Power Point Presentation to House Appropriations by Dr. Bill Hazel, Secretary of Health and Human Services, attached as Exhibit 3.
The proposed intervenors misunderstand the Agreement to require the closure of the four of the five Training Centers. However, as the Court has already recognized, the Agreement does no such thing. Order at 2. It does not mandate the closure of any institution, but instead, leaves it to Virginia to determine the future of the Commonwealth's public facilities. Agreement, Section III.e.9.
Moreover, as the Court also noted, and the Supreme Court has acknowledged, state and federal officials have broad discretion to determine what public facilities they should operate, where they should be located, how much funding they should be allocated, how they should be staffed, and, most importantly, how their limited resources should be allocated between various publicly-funded programs. Order at 2; Lincoln v. Vigil, 508 U.S. 182, 193 (1993); see also Ricci, 544 F.3d at 21.
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Finally, the Agreement has no impact on the large number of other publicly and privately operated ICFIMR facilities. In fact, regardless of the outcome of the Executive and Legislature's deliberations and decisions concerning four Training Centers, there will remain a significant number of other ICFIMR facilities. The facilities must provide the same level of care, are required to serve the same level of need, and are subject to the same federal regulations as are the Training Centers. See 42 C.F.R. § 400 et seq. Nothing in the Agreement alters the availability of ICF services in these other facilities.
Nevertheless, proposed intervenors contend their intervention is necessary to protect their rights and interests under the ADA in continuing to receive ICFIMR services. Mem. at 18. Specifically, they assert that they will be denied an ICFIMR level of care that they need if the Agreement is approved. [d. As already noted, and as described below, this assertion is entirely incorrect.
First, even if the plans for the four Training Centers mentioned by the Agreement are eventually approved by the General Assembly, consumers and their families will still have the opportunity to continue to live in an ICFIMR and received ICF level of services if it is determined that such services are needed. See Agreement § IV.C IJI 6, p. at 18. As the proposed intervenors acknowledge, Mem. at 10, one of the Training Centers, the Southeast Virginia Training Center (SEVTC), will remain open.3 See Exhibit 2; see also
l Without any support. the proposed intervenors claim that "The Commonwealth's plan with regard to Southeastern Virginia is to reconstitute the facility to accommodate 75 residents at a time for short-term, 30 day placements. Current residents will be displaced, which implicates their rights in the very same way as the rights of the residents of the training centers which will be closing due to the settlement." Mem. at 10, n. 3. The Agreement does not contain any requirement to transform SEVTC into a facility for short-term (e.g, 3~-day) admissions. Moreover, this assertion is inconsistent with Virginia's stated plans which are that SEVTC will remain open and will have a capacity of75 beds. See January 26, 2012 Letter to the General Assembly from Governor McDonnell, attached as Exhibit 4, and January 30, 2012 Power Point Presentation to House Appropriations by Dr. Bill Hazel, Secretary of Health and Human Services, attached as Exhibit. 3.
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Agreement, Section Ill.C.1j{ 9. Finally, there are a significant number of privately operated ICFIMRs for adults
throughout the Commonwealth of Virginia. with between four and 28 beds, and the number of IFCs have recently increased.4 See Exhibit 2. Thus, many of the current residents of each Training Center who qualify for and request ICFIMR services will be able to receive them in an ICFIMR facility in their area. Therefore, the proposed intervenors cannot reasonably argue that their rights to receive the ICFIMR services or an ICRlMR level of require intervention.
C. While Families Have Rights Under Federal Law to Quality Care, They Do Not Have a Right Under the ADA to Remain in an Institution of Their Choice. 1. The proposed intervenors misstate the holding in Olmstead.
The proposed intervenors argue that ADA, as interpreted by the Supreme Court in Olmstead, conveys a right to remain in a segregated institution, as opposed to a right to live in the community.5 See Mem. at 7. No case supports this novel interpretation of the ADA's integration mandate and its prohibition on segregation. Rather, the Olmstead Court concluded that the unjustified institutionalization and isolation of persons with
4 An ICF for children (St. Mary's Home for the Disabled) has 92 beds. Exhibit 2. 5 Pursuant to the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The corresponding Attorney General regulations further require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities," which is defined as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible. "28 C.F.R. pt. 35, App. A, p. 450 & §35.130(d). Consistent with these statutory mandates, a public entity must make "reasonable modifications in policies, practices, or procedures" in order to avoid discrimination on the basis of disability, unless the public entity can "demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity." 28 C.F.R. § 35.130(b)(7).
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mental disabilities violates the ADA.6 527 U.S. 581, 597 (1999). The Supreme Court reached this conclusion based upon two factors. First, the Court observed that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." Id. at 600. Second, the Court noted that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." /d. at 601.
More recently, the Ninth Circuit explained that states must now: Provide care in integrated environments for as many disabled persons as is reasonably feasible, so long as such an environment is appropriate to their mental-health needs ...This requirement serves as one of the principal purposes of Title II of the ADA; ending the isolation and segregation of disabled persons... (citations omitted). Arc of Washington, Inc. v. Braddock, 427 F.3d 617, 618 (9th Cir. 2005). Numerous other courts have construed to ADA to prevent unnecessary institutionalization, not to require continued institutionalization simply because an individual opposes moving, at least where the state appropriately exercises its discretion to reduce the capacity or close the particular institution where the individual currently resides. Richard C. v. Houstoun, 196 F.R.D. 288 (W.D. Pa. 1999) (rejecting parents' interpretation of Olmstead to require continued institutionalization and denying intervention); Messier v. Southbury Training School, 562 F. Supp. 2d 294, 338 (D. Conn.
6 This statement represents the holding of a majority of the Court. In Justice Ginsburg's plurality opinion, the Court went on to hold that "under Title II of the ADA, States are required to provided community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead, 527 U.S. at 607.
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2008); see also Benjamin v. Dept. ofPublic. Welfare of Commonwealth, 267 F.R.D. 456 (M.D. Pa. 2010) aff'd 432 Fed. Appx. 94 (3d Cir. 2011).
2. Families do not have a right to have their family members remain in the institution of their choice.
The basic legal interest asserted by the proposed intervenors -- as opposed to their general concern with quality services and apprehension about changes to the Commonwealth's developmental disability service system - is their claim of a right to remain in the Training Center where they currently reside.7 They gamer that "right" by translating Olmstead into a rationale for perpetuating institutionalization, and even for continuing institutionalization in an individual's current facility, based solely on the person or family member's opposition to leaving. Mem. at 12-14. This misconstruction of the ADA's integration mandate is inconsistent with the purpose and history of the statute, is not supported by the case law, and effectively converts a safeguard identified by the Olmstead plurality into an individual veto over the lawful exercise of executive discretion concerning the operation of state facilities. To the contrary, there is no obligation for the Commonwealth to continue to operate a specific institution. Numerous courts have concluded that states have broad discretion to close public facilities, that residents have no right to remain in a particular facility, and that federal courts have no role in requiring states to maintain specific facilities.
7 The thirteen families assert that intervention is necessary to protect their interests under the ADA in having their individual needs assessed to determine their appropriateness for discharge, and in protecting them from harm resulting from any discharge from a training center. Mem. at 11-15. They rely, in part, on a state law, Va. Code Ann. § 37.2-837(A)(3), to argue that they have aJederally-protected right to "receive recommendations from treating professionals as to whether community placement is appropriate and to oppose the transfer, even if the proposed transfer is from institutional care to an appropriate setting." Mem. at 12. This argument is plainly overbroad, since the ADA's integration mandate is not triggered exclusively by treating professionals, does not guarantee that an individual can remain in her current facility, and does not bar states from transferring persons to other facilities. when necessary.
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The Fifth Circuit Court of Appeals has recognized that "the state reserves the right to unilaterally close a state school [for people with mental retardation] for administrative or financial reasons, even if it means that certain residents will have to relocate as a result." Baccus v. Parrish, 45 F. 3d 958, 961 (5th Cir. 1995); see also, Alexander v. Rendell, U.S. Dist. LEXIS 3378, at *18-19 (W.D. Pa. Jan. 30, 2006)(Add. 47, 56)("The Court concludes that the Defendant' closing the Altoona Center and its plans for transfer of its residents serves both the public policy of the ADA, Rehabilitation Act, and the applicable Medicaid statutes and proper judicial deference to the discretion of the state in determining the manner in which it allocates its resources."). In Lelsz v. Kavangauh, the court addressed a challenge to the closure of a state school and explained:
It is certainly true that closing a school may cause some residents deemed Inappropriate for community placement to be relocated to one of the remaining Eleven state schools. The Court recognizes in some cases hardship will result. The reality is, however, that the State has always possessed the power and frequently exercises the power to relocate its residents for its own administrative needs. If it is so desired, the State could unilaterally close any of the State schools, for economic reasons or otherwise. The ability of individual residents and parents to fight closure of their own school would likely be limited to political means.
783 F. Supp. 296, 298 (N.D. Tex. 1991), aff'd983 F. 2d 1061 (5th Cir.), cert. denied, 510 u.S. 906 (1993). The Seventh Circuit reached a similar conclusion in a case where plaintiffs claimed a right to have institutional services provided a short distance from their homes. Bruggerman ex. rei. Bruggeman v. Blagojevich, 324 F. 2d 906,910-11 (7th Cir. 2003). The Supreme Court also rejected nursing home residents' claim of right under the ADA and the Medicaid Act to challenge their transfer to another nursing facility,
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noting that the Medicaid Act "does not confer a right to continued residence in the home
of one' s choice." o'Bannon v. Town Court Nursing Center, 447 U.S. 773, 785 (1980).
As these cases demonstrate, the proposed intervenors have no basis to assert a right under the ADA to remain in an institution of their choice, or a right not to be transferred to another, similar facility providing the same level of services, if the state appropriately determines to phase down or close a specific institution.
3. Family members do not have a right to compel an institution to remain open when the state executive branch or the legislative branch decides to close it.
Similarly, there is no right under the ADA for persons with disabilities, or their families, to require that the state maintain a specific institution, once the state executive or legislative branch decides to close it. The Supreme Court in Olmstead noted that states must be accorded leeway to operate a range offacilities and programs. 527 U.S. at 605. The exact blend of institutions and community settings is properly left to the state, provided that persons with disabilities are not forced to endure unnecessary segregation or isolation as a result ofthe State's decision to maintain its institutions. Id. at 601-602, 605. The Court also afforded states a broad flexibility to manage and distribute those resources to achieve the goal of nondiscrimination. /d. at 605 .
The proposed intervenors' interpretation of Olmstead would effectively allow them to assume for themselves the power of the legislative and executive branches of Virginia concerning the operation, location, and funding of public facilities, and as weB as the allocation of resources for developmental disability services. It would also afford them a virtual veto over decisions to reduce state reliance on large institutions, even when necessary to comply with federal law or to obtain additional federal funding to expand
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community services. Such a result would effectively preclude the Commonwealth, quite apart from any Agreement, from implementing its executive decision to alter or phase down any of the five Training Centers, even though the state has determined that maintaining all current is not financially feasible in light of the dwindling admissions and concurrent growing demand for community based services.8 See Exhibit. 4. To allow proposed intervenors such a veto power plainly contravenes the proper authority of the Executive branch and the Department to allocate funds and formulate budgets, as well as public policy and common sense. See Va. Code Ann. § 2.2-103.C (''The Governor shall be the chief planning and budget office for the Commonwealth of Virginia."); see also Va. Code Ann. § 37.2.-509 (giving authority and responsibility to determine the allocation of funds for services, including developmental disability services, to community services boards). Such an interpretation of the ADA cannot serve as a basis for a protected interest that supports intervention.9
D. The Commonwealth Should Equitably Allocate Its Resources to All Persons with Disabilities.
Olmstead requires that states consider the needs of all their citizens with disabilities and allocate resources equitably. 527 U.S. at 604. As both the Commonwealth and the United States have recognized, the current allocation of resources for people with intellectual or developmental disabilities in Virginia is significantly imbalanced, tipping sharply in favor of funding institutions over services in
K The Governor, in his 1/26112 letter to the Virginia General Assembly, stated "the continued operation of residential service in current levels, in five centers is unsustainable due to the significant and ongoing popUlation. While the demand for community is growing (as is evidenced by the waiver waiting list), only about 13 families per year statewide are choosing to live long-term in a training center." Exhibit 4. ~ The proposed intervenors also allege that living in the community is unsafe. Mem. at 15-18. This assertion is contradicted by the vast body of professional literature as well as the experience of many states that have successfully and safely closed some or all of their large institutions. See section IV, infra.
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the community. See DOJ Findings Letter at 4, 16-18; see also Agreement, Section Ill. C,
'II 9, p. 11; Exhibit 3.
In order to serve some of the needs of individuals with IDIDD in the community, the Commonwealth, as an alternative to ICFIMR placements, has created three different Medicaid waiver programs, with the approval of CMS, to serve these individuals. These programs, frequently referred to as "HCBS waivers," include: the Intellectual Disability ("ID") Waiver, Individual and Family Developmental Disabilities Support (IFDDS) Waiver, and the Day Support ("DS") Waiver. See Exhibit. 3; August 29, 2011 "Department of Medical Assistance Services: A Comparison of Medicaid Waivers for Persons with Developmental Disabilities" Presented to Senate Finance Committee HHR Subcommittee by Terry A. Smith, Director Division, LTC, August 29, 2011, attached as Exhibit 6, see also Exhibit 4. Currently, more than 8,600 persons are being served by the ID waiver (see Exhibit 3) and, the State reports, it has a waiting list of 6,074. Statewide ID Waiting List as of March 13,2012, attached as Exhibit 5. Approximately 800 people are being served on the DD Waiver and the state reports a waiting list of approximately 1,012 persons. See Exhibit 3. The IFDDS serves up to 300 individuals. Exhibit 6. Thus, there are currently over 7,000 individuals who are waiting for waiver services. Exhibits 3,4. 5. All 7,000 persons who are waiting for waiver services are eligible for these services, need these services, and have a compelling interest in receiving these services.
Moreover, the waiting lists are growing rapidly, at a pace approximating 800 per year. See Chart from Lee Price, Director of the Office of Developmental Services of DBHDS received by Jamie Liban on January 31, 2012, attached as Exhibit 7. The average waiting time for the ID waiver is 3-7 years, while the average waiting period for
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the DD waiver is 3-5 years. Ex. 6. Of the 6074 people on the ill waitlist, 3,427 have been deemed to be at "urgent" need of services. See Ex. 5. It is further estimated that approximately 1500 people have been waiting to get on to the ill waiver for four years. Email from Rupinder Kaur at the Department to Jamie Liban dated March 15,2012, attached as Exhibit 8.
While there are over 9,000 individuals served in the community through one of the three waiver programs, and 7,000 more who are waiting for services, there are only approximately 1,000 individuals currently residing at the Training Centers. See Exhibit 3. Even though the Commonwealth reports that residents of the Training Centers account for only 15.6% of the overall number of individuals with ill served by the Commonwealth, Training Center costs make up 63.8% of all of the legislative appropriations for services for people with ill. Jd. This gross discrepancy is not logically related to need, since the average annual cost of serving an individual in a Training Center is $216,000, while the Commonwealth has reported that the average cost of serving a person with comparable needs in the community is only $138,000. Jd.
In order to remedy these glaring inequities and to ensure an even distribution of resources for people with disabilities, as is required by the ADA and Olmstead, the Commonwealth has determined that it must reduce the costs of operating the Training Centers and, therefore, has made the executive decision to close four of its five Training Centers over ten years, reallocating these institutional resources to support communitybased services. Agreement Section III. C.9; Exhibit 4. If the Commonwealth is prohibited from exercising its discretion to close antiquated institutions - as the proposed intervenors claim they have a right to do and intend to do if allowed to intervene in this
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litigation - Virginia's efforts to equitably allocate its resources will be seriously stymied. Concomitantly, its efforts to comply with the ADA will be thwarted, as it will be forced to devote a disproportionately large percentage of its resources to a disproportionately small percentage of the individuals it is required to serve, leaving the rest with no assurance that any of their needs ever will be met.
Indeed, if the Court were to heed the proposed intervenors' interpretation of the ADA, it would exacerbate the current inequity in allocation of funding of services for individuals with IDIDD, in direct violation of the ADA and Olmstead. 10 Since the waiting list is growing at a rate of approximately 800 persons annually, if its disproportionate allocation of resources remains unchecked, the list will continue grow exponentially. In turn, the number of people who are deemed to be at "urgent" need of services also is likely increase substantially. This would place thousands of individuals who are currently in the community and are waiting for services at risk of unnecessary institutionalization in violation of the ADA. M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011) (right under the ADA to avoid risk of institutionalization due to loss of Medicaid home services), Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (the ADA applies to individual risk of institutionalization in a long-term care facility), Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (1oth Cir. 2003) (the ADA applies to individual risk of institutionalization in nursing homes); see also DOJ Findings Letter at 4 (finding that the "quantity of available services in the community is deficient, preventing individuals from being discharged from CVTC and other institutions and placing others at risk of unnecessary institutionalization") and at 16-18 (extensively discussing the
10 Congress has recently recognized the imbalance between institutional and community-based care and has provided States with significant financial incentives to increase community-based resources. Patient Protection and Affordable Care Act, Pub.L. No.II I-148, § 12202 (Mar. 23, 2010).
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significant risk of "unnecessary and costly institutionalization" of individuals currently residing in the community who are waiting for services, particularly those deemed to be in urgent need of services, as a result of the "inadequate slots and the inflexibility of the waiver").
E. The Proposed Intervenors' Interests Are Adequately Protected by the Commonwealth and the United States.
A government entity charged by law with representing a national policy is presumed adequate for the task. Brody v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992). Therefore. the United States, charged with protecting the constitutional and statutory rights of all citizens with intellectual and developmental disabilities, including the rights and national policies that are embodied in the ADA, presumably adequately protects the rights and the interests of the proposed intervenors. Likewise, the Commonwealth is responsible for administering Virginia's Medicaid and disabilities programs and, therefore, is presumed to be adequately protecting the interests of all its citizens who are recipients of those programs.
Courts have denied intervention in similar ADA cases, even when the plaintiff is a class rather than a government agency. The Third Circuit affirmed the trial court's denial of intervention, discussing the alleged unrepresented interests:
It is sufficient to hold that any possible impact on Intervenors' interest in maintaining their current institutional care is not the kind of direct impact that gives rise to a right to intervene. In virtually every suit successfully prosecuted against a governmental entity, the judgment will occasion some reallocation of limited public resources. Every competitor for those limited resources has an interest that potentially may be adversely affected by that reallocation. Benjamin, 432 F. App'x at 98-99; 2011); see also United States v. City ofNew York, 198 F.3d 360, 367 (2d Cir. 1999) ("The governmental parties to this litigation share
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appellants' concerns about safety and cost and their representation is not inadequate simply because they have different ideas about how best to achieve these goals").
The sole "significant interest" that the proposed intervenors assert is their interest in remaining in the Training Center where they current reside, and preventing the closure of any of these institutions. But as the Court has noted, no decision has been made to close any of the Training Centers. That decision is rightfully in the hands of the Virginia General Assembly, not this Court. Moreover, its outcome is entirely speculative. Accordingly, since the proposed intervenors' core complaint is hypothetical, conjectural, and outside of the scope of this litigation, they have no direct, concrete, and legally protectable interest in this action, or at least in the future use of the Training Centers.
The proposed intervenors also lack standing to assert any protected interest in the possible closure of a Training Center. Where, as here, the proposed intervenors seek to advance a position that is not aligned with the - but instead is directly contrary to - the position of the parties, they must satisfy Article ill standing requirements. City of Chicago v. Federal Emergency Management Agency, 660 F.3d 980, 984-85 (7th Cir. 2011); City of Cleveland, Ohio v. Nuclear Regulatory Comm'n, 17 F.3d 1515, 1516-17 (D.C. Cir. 1994); Southern Christian Leadership Conference v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984). Under well established standing law, a person with only a hypothetical or contingent interest in the subject matter of a case lacks standing. City ofLos Angeles v. Lyons, 461 U.S. 95, 102-06 (1983). Since the proposed intervenors' primary concern is that some of the Training Centers may be closed - something that the Agreement does not require and is contingent upon future actions by the Virginia Executive and Legislative Branches - the proposed intervenors have neither Article ill standing nor a
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protected interest sufficient to support intervention. See United States v. City ofNew York, 179 F.R.D. 379 (Denying intervention because "An interest that is ... contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy [Rule 24]." (quoting Washington Elec. , Inc. v. Mass. Municipal Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990)).
Finally, if the proposed intervenors believe that they have an enforceable right to the services of the public entity, they may bring their own lawsuits. Benjamin, 432 F. App'x at 99. In. The Proposed Intervenors Have Not Satisfied the Standards for Permissive
Intervention. In the alternative, but with little discussion, the proposed intervenors also argue that they satisfy the standards for permissive intervention. Such intervention is discretionary if the proposed intervenors have "a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. Pro. 24(b). As more described supra, the proposed intervenors concerns about the potential closure of some Training Centers is entirely conjectural, and not an issue that is part of the subject matter of this case. Furthermore, they do not have a legal right or interest in remaining in their current institution, nor a right to prevent institutional closure, should the Executive and Legislative Branches determine this is appropriate. As a result, they do not share a legal claim or question with the parties. Even if there is a shared question, it would not be an abuse of discretion to deny permissive intervention. Allowing this motion will almost certainly invite others to seek formal party status. See Wyatt v. Hanan, 170 F.R.D. 189, 194 (M.D. Ala. 1995) (''To allow representatives of all residents who have an interest in this litigation-that is, all
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representatives-to intervene would render this lawsuit more unmanageable and unnecessarily confusing than it already is"). Given the legal interests of thousands of families in various Virginia amici organizations that are safeguarded by the Agreement, affording party status to the proposed intervenors without doing so to other, similarly impacted families, would be unfair and inequitable. And since the proposed intervenors are seeking intervention not only to oppose the Agreement but also to dismiss the case, the impact on thousands of other families is plainly significant.
Like all persons and organizations with an interest in the litigation, the proposed intervenors will have an opportunity to make their views known to the Court. Moreover, as is argued in Section I supra, the proposed intervenors have several other adequate forums in which to address their concerns. Accordingly, the Court should exercise its discretion and deny permissive intervention. Brody, 957 F.2d at 1124 ("[I]f intervention of right is not available, the same reasoning would indicate that it would not be an abuse of discretion to deny permissive intervention"). IV. Many States Have Demonstrated the Ability to Accommodate Concerns from
Families and to Safely Transition Individuals from Institutions to Community Programs. A. States Have a Successful Record ofSafely Transitioning Individuals with
Disabilities from Segregated Institutions to Integrated Settings. Many states have substantial positive experience in implementing systems to integrate individuals with intellectual disabilities into community-based settings. Since the mid-1960s, every state has reduced the numbers of individuals in institutions. For example, from 1967 to 2009, the popUlation of state institutions decreased from 194,650 to 33,732. David Braddock et al., The State of the States in Developmental Disabilities 2011 (2011), 50-57. Indeed, community living for people with intellectual and
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developmental disabilities is undisputedly the norm. In fact, a 2005 study reported that 92% of individuals with intellectual disabilities then lived with family or alone; 6% lived in community-supported living; 1% lived in nursing homes and only 1% lived in institutions. Bonnie Shoultz, et aI, Policy Research Brief" Status ofInstitutional Closure Efforts in 2005, University of Minnesota, 2 (2005). The percentage of person in community supported living may have increased since 2005 because of the increase in Medicaid waiver funding.
New Hampshire was the first state to operate an "institution-free" system, which has been followed by at least eleven other states and the District of Columbia, including, most recently. Indiana and in December 2011, Alabama. Id. at 51-52. Dana Beyerle, "Paltrow Center Closes After 88 Years," Tuscaloosa News, Dec. 29, 2011, available at http://www.tuscaloosanews.comlarticleI201112. Virginia is one of only twelve states that has not closed a institution for people with intellectual disabilities since 1970 and is only one of six states with more than one such facility that has not yet closed even one. Id. at 52.
In most of the states where there have been institutional closures, some families have expressed understandable concerns, fears, and sometimes resistance. State officials have become increasingly adept in addressing those concerns, through outreach and education about community options; providing opportunities for families to visit and learn about community living arrangements; offering support from other families who are familiar with community services and positive about community living; including families in every aspect of the service planning and transition process; affording families avenues to question, or even appeal, discharge decisions; developing effective monitoring
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and oversight programs that promote quality community services; and, most importantly, respecting family preferences, views, and choices. As a result of these approaches, state officials have successfully transitioned thousands of individuals with IDIDD from large institutions to the community, have closed numerous segregated facilities, and have achieved significant savings that then are devoted to expanding community services.
B. The Professional Literature Demonstrates that IDIDD Can Be Safely and Appropriately Transitioned to the Community, Regardless of the Extent of their Disabilities.
The advantages of community living are powerfully and convincingly supported by a large body of professional literature. As described in the literature, these proven benefits have been demonstrated in a range of community settings, and regardless of the degree of the individual's disability. Importantly, gains from community living are achieved whether the move is voluntary or involuntary. Individuals with intellectual and developmental disabilities show gains and improvements in adaptive behavior, independence, self-care skills, social skills and vocational skilIs when they are transferred to the community. While there may be an initial adjustment period, transition to the community presents individuals with opportunities unavailable in institutional settings. If transitions follow well laid-out standards, policies and clinical guidelines that make transitions as easy as possible, the research clearly shows that individuals who leave institutions and move to the community experience fuller lives from increased family contact and community integration.
The first major research data was reported in the seminal Pennhurst Longitudinal Study, in which researchers assessed more than 1,100 individuals over five years as they moved into the community from the Pennhurst State School and Hospital in
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Pennsylvania. The study found that people who moved into the community were more independent and showed improvements in adaptive behavior. James W. Conroy & Valerie J. Bradley, The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis. 314-15 (1985)(hereafter "Pennhurst Study"). This report unequivocally shows that gains were largely due to community placement, rather than aging or natural development, and all occurred notwithstanding the involuntary nature of the transfers.
Thereafter, an overwhelming number of research studies corroborated the Pennhurst Study's results. There have been at least two surveys of the relevant research data. In a 1989 survey of 18 studies of 1,358 subjects from 13 states, the authors concluded that institutions were "consistently less effective than community-based settings in promoting growth, particularly among individuals diagnosed as severely or profoundly retarded." Sheryl A. Larson & K. Charles Lakin, "Deinstitutionalization of Persons with Mental Retardation: Behav,ior Outcomes," 141. of the Ass'nfor Persons with Severe Handicaps 324-32 (1989). Based on these findings, the authors concluded that "it must be recognized that based on a substantial and remarkably consistent body of research. placing people from institutions into small, community-based facilities is a predictable way of increasing their capacity to adapt to the community and culture." Id. at 331. In a later review of 33 more research evaluations, the authors found that the literature continued to support their earlier findings that improvements in adaptive behaviors are consistently found in individuals who are transferred to the community. See Shannon Kim, et aI., "Behavioral Outcomes of Deinstitutionalization for People with Intellectual Disabilities: A Review of Studies Conducted between 1980 and 1999." 261.
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of Intellectual and Developmental Disability, 35 (2001). Subsequent research continues to confirm these conclusions. See Marguerite Brown et al., "Eight Years Later: The Lives of People who Moved from Institutions to Communities in California. Year 2001 Report of the Quality of Life Evaluation of People with Developmental Disabilities Moving from Developmental Centers into the Community (,The Quality Tracking Project'), Final Report (Year 2)" (2001) (families were "unexpectedly and overwhelmingly happy with community living, even those who formerly opposed the change").
Moreover, the research also consistently has found that integration and community orientation significantly improve upon transfer to the community. Those who moved to the community greatly increased their opportunities to go places and interact with non-disabled citizens. See Brown, et al. at 31. Significantly, community living also has been found to diminish challenging behavior. See Kim at 45.
Finally, the professional research consistently and unequivocally shows that families of individuals relocated from institutional into community placement are overwhelmingly satisfied with the results of that relocation. Notably, even where families initially opposed the transfer, the great majority ultimately become supporters of community placement. See Braddock at 11; see also Pennhurst Study at 177. These changes in family attitudes were highly statistically significant. Pennhurst Study at 178. Brown at 125-26. Families' positive attitudes about community living grow stronger the longer their relatives are out of institutions. Id. at 127. Interestingly, family members are often surprised by their own change in fee lings and report unexpected changes for the better in their own lives, and in the lives of their disabled relatives. Pennhurst at 188.
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While family worries over transfer and change often lead to initial opposition to community placement, they ultimately do not playa role in long-term reactions. Brown. et al. at 127-128. V. Conclusion
For the reasons cited above, the Motion to Intervene should be denied.

Dated: March 20, 2012

Respectfully submitted,
lsI Victor M. Glasberg Victor M. Glasberg Bar No. 16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA. 22314 (703) 684-1100 vmg@robinhoodesq.com
Robert D. Fleischner (pro hac vice pending) RFleischner@cpr-ma.org Steven J. Schwartz (pro hac vice pending) SSchwartz@cpr-ma.org Deborah A. Dorfman (pro hac vice pending) DDorfman@cpr-ma.org Sara Fawk SFawk@cpr-ma.org Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

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APPENDIX A
AMICI ORGANIZATIONS
The Arc of Virginia ("The Arc of VA") is a state chapter of The Arc of the United States, the world's largest grassroots organization of and for people with intellectual and developmental disabilities. Established in 1955, The Arc of VA has fought for decades to improve Virginia's services for all children and adults disabilities. The Arc of VA's mission is to promote and protect the human rights of people with intellectual and developmental disabilities and actively support their full inclusion and participation in the community throughout their lifetimes. The Arc of VA is comprised of 25 local chapters from across the Commonwealth. The Arc of VA has 3,704 members, including many individuals and families who are on a waiting list for services.
The Autism Society of Central Virginia ("ASCV"), a local chapter of the Autism Society, has over 25 years of non-profit services, advocacy, and support to children, youth and adults, their families and providers. The mission of the Central Virginia chapter is to improve the lives of all affected by autism by promoting lifelong access and opportunities for persons within the autism spectrum and their families, to be fully included, participating members of their communities through advocacy, public awareness, education and research related to autism. Four hundred seventeen individuals and families are members of the ASCV.
The Autism Society of Northern Virginia ("ASNV"), a local chapter of the Autism Society, is an organization that promotes the general welfare of children and adults with autism. ASNV provides support for their families, including educational support, vocational training and recreation of those with autism. The chapter also aids in the collection and dissemination of information to parents, professionals and the general public.
The Autism Society, Tidewater Virginia ("AS Tidewater"), a local chapter ofthe oldest and largest international autism-specific member organization, The Autism Society, is a grassroots organization established to help improve the lives of all affected by autism. AS-Tidewater does this by increasing public awareness, advocating for appropriate services for individuals across the lifespan, and providing the latest information on treatment, education, research and advocacy. Formed in 1981, AS Tidewater's mission includes creating a world where persons within the autism spectrum disorder are fully included, participating members of their communities.
The Virginia Down Syndrome Alliance (VDSA) is dedicated to improving the quality of life for individuals with Down syndrome and other intellectual and developmental disabilities by effecting positive systems change at the federal, state and local levels of government. The VDSA is a coalition comprised of representatives from: Down Syndrome Association of Fredericksburg, Down Syndrome Association of Greater Richmond, Down Syndrome Association of Hampton Roads, Down Syndrome
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Association of Northern Virginia, and the Down Syndrome Association of Roanoke. All of the associations that comprise the VDSA envision individuals with Down syndrome as fully included and valued members of society. The associations provide education, family support and public awareness in order to empower individuals with Down ~~drome to lead fulfilling lives. Membership among these five Down Syndrome AssocIatIons of Virginia totals more than 1500 families. The VDSA affords the Down syndrome associations of Virginia the ability to coordinate involvement in legislative matters affecting individuals with Down syndrome and their families.
The Peninsula Autism Society's mission is to provide information to individuals with autism and their families, friends, educators and professionals in the Virginia Peninsula area. The Society strives to educate the community about autism, inform parents and professionals about the available resources in the community, and to serve as a support system, advocating for those with autism. The Society has approximately 350 affiliates and family members.
The Arc of the United States (The Arc) promotes and protects the human rights of people with intellectual and developmental disabilities and actively supports their full inclusion and participation in the community throughout their lifetimes. The Arc consists of more than 700 state and local chapters across the United States, whose 140,000 members include people with intellectual and developmental disabilities, their families, and professionals in the field. The Arc believes that people with intellectual and developmental disabilities belong in the community and have fundamental moral, civil, and constitutional rights to be fully included and actively participate in all aspects of society.
The Association of University Centers on Disabilities ("AUCD") is comprised of a network of interdisciplinary centers advancing policy and practice for and with individuals with developmental and other disabilities, their families, and communities. Based in Maryland, AUCD currently represents 67 University Centers for Excellence in Developmental Disabilities Education, Research, and Service ("UCEDD") with at least one center in every state. AUCD's mission is to advance policy and practice for and with people with developmental and other disabilities, their families, and their communities via supportive research, education, and service activities. AUCD sees a future in which everyone, including people living with developmental and other disabilities, are fully integrated, participating members of their communities. AUCD is striving for a time in which culturally appropriate supports lead to independence, productivity and a satisfying quality of life universally available to all those with developmental and other disabilities.
TASH is an international leader in disability advocacy, based in Washington, D.C. Founded in 1975, TASH advocates for human rights and inclusion for people with significant disabilities and support needs, particularly those vulnerable to segregation and institutionalization. TASH works to advance inclusive communities through advocacy, research, professional development, policy, and information and resources for parents, families and self-advocates. TASH members include a diverse array of individuals and
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perspectives, including researchers, professionals, direct service workers, family members and people with disabilities.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
(Richmond Division)

UNITED STATES OF AMERICA, Plaintiff,
v. COMMONWEALTH OF VIRGINIA,
Defendant.

) ) ) ) ) C.A. #3: 12-cv-059 ) ) ) )

CERTIFICATE OF SERVICE I, Victor M. Glasberg, hereby certify that on this 22nd day of March 2012, I electronically
filed with the clerk of the court, the foregoing BriefAmici Curiae on Behalf of the Arc of
Virginia. The Autism Society of Central Virginia, The Autism Society of Northem Virginia, The
Autism Society of Tidewater Virginia, The Peninsula Autism Society, and the Virginia Down
Syndrome Alliance, and Three National Organizations, The Arc of the United States, TASH, and
the Association of University Centers on Disabilities In Opposition to Motion to Intervene.
/ls/l Victor M. Glasberg Victor M. Glasberg, #16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 (703) 684-1100 / Fax: 703-684-1104 vmg@robinhoodesq.com
Counsel for Amici Curiae

 </s> Case 3:12-cv-00059-JAG Document 52 Filed 04/05/12 Page 1 of 32 PageID# 1940

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

____________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA, )

)

Defendant.

)

____________________________________)

Civil Action No. 3:12-CV-00059 JAG

BRIEF AMICI CURIAE ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE DIRECTORS OF DEVELOPMENTAL DISABILITY SERVICES, THE AMERICAN ASSOCIATION OF INTELLECTUAL AND DEVELOPMENTAL
DISABILITIES, THE ASSOCIATION OF UNIVERSITY CENTERS ON DISABILITIES, TASH AND ROBERT M. GETTINGS IN SUPPORT OF THE SETTLEMENT AGREEMENT
Victor M. Glasberg Bar No. 16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA. 22314 (703) 684-1100 vmg@robinhoodesq.com
Robert D. Fleischner (pro hac vice) RFleischner@cpr-ma.org Steven J. Schwartz (pro hac vice ) SSchwartz@cpr-ma.org Deborah A. Dorfman (pro hac vice) DDorfman@cpr-ma.org J. Paterson Rae PRae@cpr-ma.org Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

Case 3:12-cv-00059-JAG Document 52 Filed 04/05/12 Page 2 of 32 PageID# 1941
FINANCIAL DISCLOSURE STATEMENT
Pursuant to Local Rule 7.1, amici curiae in the above-captioned matter, submit the following financial disclosure statements:
The National Association of State Directors of Developmental Disability Services (“NASDDDS”) states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of NASDDDS’ stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1(A)(1)(a).
The American Association of Intellectual and Developmental Disabilities (“AAIDD”) states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of AAIDD’s stock and it does not have any parties in any partnerships, general or limited, or owners or members of nonpublicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1(A)(1)(a).
The Association of University Centers on Disabilities (“AUCD”) states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of AUCD’s stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1(A)(1)(a).
TASH states that it does not have a parent corporation. It is a nonprofit corporation operating under §501(c)(3) of the Internal Revenue Code that does not issue stock. As it has no stock, no publicly held corporation owns 10% or more of TASH’s stock and it does not have any parties in any partnerships, general or limited, or owners or members of non-publicly traded entities such as LLCS or other close held entities. There is, therefore, nothing to report under Local Civil Rule 7.1(A)(1)(a).
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TABLE OF CONTENTS

FINANCIAL DISCLOSURE STATEMENT

i

INTEREST OF AMICI

1

ARGUMENT

4

1. Many States Have Significantly Expanded Community

Services, Successfully Phased Down Institutions, and

Safely Transitioned Residents from Institutions to the

Community.

5

A. Case Studies Nationwide Demonstrate that Residents

of ID/DD Institutions Can Be Successfully Transitioned

into Integrated Community Settings.

7

1. Pennsylvania

8

2. Indiana

10

3. Massachusetts

11

a. Belchertown State School

11

b. Dever Developmental Center

13

B. The Provisions of the Settlement Agreement Regarding

Discharge Planning, Quality and Risk Management,

and Monitoring by the Independent Reviewer Ensure

that Transfers Will be Done Safely and in Accord with

Professional Standards.

14

II. The Professional Literature Establishes That Residents of

Institutions Benefit From Transfer to the Community.

16

A. Community Integration and its Benefits Are Well

Supported by Professional Research and Literature.

17

B. Community Integration Provides Individuals With an

Opportunity to Participate in their Communities.

21

C. Community Integration Leads to Improvements in

Challenging Behavior.

22

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D. Families of Relatives Who Move to the Community

Are Consistently Supportive of the Transfer.

23

CONCLUSION

26

iii

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In its Order of March 6, 2012, this Court provided an opportunity for all interested persons and organizations to submit written comments or amicus curiae briefs to the Court regarding the proposed Settlement Agreement. The Court indicated that it would consider all of these comments in determining whether the Agreement is adequate, fair and reasonable, whether it is lawful, and whether it is against public policy. Order at 3, 5. Pursuant to this invitation, the national organizations and individual described below submit this brief amici curiae in support of final approval and entry of the Agreement.
INTEREST OF AMICI The national organizations submitting this amici brief are comprised of the state officials who administer developmental disability service systems in all fifty states, professionals who serve and support individuals with intellectual or developmental disabilities (ID/DD), professors and researchers who study developmental disability systems, and persons with disabilities themselves. They all are interested in the maximizing the developmental potential of all individuals with ID/DD, including the current residents of the State Training Centers. They have a wealth of knowledge and experience regarding best practices in the care and treatment of individuals with ID/DD. They also have extensive, direct experience regarding the closure and downsizing of state institutions for individuals with ID/DD, the transition of residents of such facilities to alterative service settings, the ability of community-based service delivery systems to meet the needs of individuals with ID/DD, including the needs of individuals with severe or complex medical or psychiatric conditions, and the systems required to ensure that the needs of individuals who are transferred from state institutions to other settings are, in fact, being met.
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This brief is supported by the detailed affidavit of amicus Robert Gettings, a resident of Virginia and one of the leading experts in the country on public service systems for persons with ID/DD. His affidavit provides an historical perspective on the evolution of these systems, the opportunities for expanding federal funding, new legal requirements that must be met by all States in operating their systems, and the challenges of administering ID/DD services in a manner that reflects professional standards, consumer needs, and family concerns.
The National Association of State Directors of Developmental Disability Services (“NASDDDS”) is the leading organization in the nation for state-sponsored services for persons with intellectual and developmental disabilities. NASDDDS is comprised of the public agencies in all fifty States and the District of Columbia with a statutory mandate to serve persons with ID/DD. NASDDDS members are responsible for providing, financing, and overseeing the delivery of long-term supports for persons with ID/DD in the context of institutional, home, and community-based programs. NASDDDS assists State agencies to build person-centered systems of services and supports for persons with ID/DD and their families. It also provides technical assistance in organizing, financing and delivering services to eligible individuals and families.
The American Association on Intellectual and Developmental Disabilities (“AAIDD”) is the oldest and largest interdisciplinary organization of professionals and others concerned about intellectual and related disabilities. Founded in 1876 to discuss all questions relating to the causes, conditions, and statistics of intellectual and developmental disabilities and to develop best practices in education and services, today AAIDD represents professionals and others in the United States and more than 50 other
2

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countries. AAIDD members are united by the ideal that each person with a disability has the right to develop personal potential to the maximum extent possible, to satisfy his or her individual needs and preferences, and to become an independent and useful member of the community. The major functions of the Association are to (a) support its members’ leadership in activities that impact people with intellectual and developmental disabilities; (b) publish cutting edge research and materials that inform policy and practice; (c) develop and implement educational opportunities for professionals, policy makers, and others; and (d) engage in activities that promote progressive public policy.
The Association of University Centers on Disabilities (“AUCD”) is comprised of a network of interdisciplinary centers advancing policy and practice for and with individuals with developmental and other disabilities, their families, and communities. Based in Maryland, AUCD currently represents sixty-seven University Centers for Excellence in Developmental Disabilities Education, Research, and Service, with at least one center in every state. AUCD's mission is to advance policy and practice for and with people with developmental and other disabilities, their families, and their communities via supportive research, education, and service activities.
TASH is an international leader in disability advocacy, based in Washington, D.C. Founded in 1975, TASH advocates for human rights and inclusion for people with significant disabilities and support needs, particularly those vulnerable to segregation and institutionalization. TASH works to advance inclusive communities through advocacy, research, professional development, policy, and information and resources for parents, families and self-advocates. TASH members include a diverse array of individuals and
3

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perspectives, including researchers, professionals, direct service workers, family members and people with disabilities.
Robert M. Gettings is a nationally renowned expert on systems of care for individuals with ID/DD. Mr. Gettings was the Executive Director of NASDDDS from 1970 to 2007 and, during that time monitored and assisted States’ efforts to improve the quality of care for individuals with ID/DD, including the movement away from care in large institutions to care in the community. He has written extensively on these subjects and continues to provide training, support and assistance concerning systems of care for individuals with ID/DD. As a long-time citizen of the Commonwealth and an expert on the delivery of services to individuals with ID/DD, he has a particular interest in the Settlement Agreement in this case.
ARGUMENT The amici are not unsympathetic to the concerns raised by the families of the residents of the State Training Centers. In many cases, the Training Center may have been a resident’s residence for an extended time. The possibility that the resident might have to relocate to another setting is, understandably, unsettling and challenging for both the resident and family.1 That possibility, however, even were it to occur, would not justify rejection of this Agreement, given the vast experience, research, and successful strategies that have been developed and tested over the past four decades, as many States
1 It is important to note that the Agreement does not require the closure of any facilities. Any decision to close any Training Center will, of necessity, be made by the General Assembly, not this Court. Such a decision is not required by this Agreement, nor is the implementation of the terms of the Agreement dependent upon legislative action authorizing the closure of any Training Centers. See Order of March 6, 2012 at 2-3. Rather it is a political decision entrusted to the General Assembly. Nevertheless, because much of the opposition to the Agreement is predicated upon the possibility that some of the Training Centers will be closed and the residents required to relocate to settings ill-equipped to meet their needs, this brief also will address the reasons why such concerns, while understandable, do not justify rejecting the Agreement.
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have closed some or all of their large institutions and safely transitioned residents to new
homes in the community.
The Agreement contains all of the protections, and more, that are necessary to
ensure that any transfers from the Training Centers are done in a fashion that is safe,
sensitive to the needs and wishes of the individual and designed to maximize the
individual’s abilities and opportunities for independence and self-determination.
I. Many States Have Significantly Expanded Community Services, Successfully Phased Down Institutions, and Safely Transitioned Residents from Institutions to the Community.
States have increasingly implemented more effective, community-based services
while closing expensive and outmoded institutional facilities like the State Training Centers.2 In the last twenty-five years, States have closed more than 190 public institutions or special units of 16 or more ID/DD persons.3 All fifty states and the District of Columbia have reduced their reliance on state-operated institutions.4 Twelve
States and the District of Columbia now operate without a single public institution for persons with developmental disabilities.5
As discussed below, the successful experience of many States in transitioning
their public service systems from ones that rely upon large institutions to ones that
2 Throughout this brief, amici cite to numerous studies and reports. Many are available online and, where this is the case, the web address is included. In the interest of space, amici have not attached copies of the studies. Should the Court desire a paper copy of any cited report or study, amici will promptly provide it. 3 K.C. Lakin, S. Larson, P. Salmi et al., Residential Services For Persons With Developmental Disabilities: Status And Trends Through 2009 at iv, 18 (2010) (hereinafter K.C. Lakin et al., Residential Services) (and also indicating 5 additional closures slated for 2010) (copy available at http://rtc.umn.edu/docs/risp2009.pdf); Affidavit of Robert M. Gettings at 3 (hereafter Gettings Aff.), attached as Exhibit 1. 4 K.C. Lakin et al., Residential Services, supra n. 3, at 5 (from 1980 to 2009, the population of large stateoperated ID/DD residential facilities declined by more than 70%); Gettings Aff. at 3. 5 K.C. Lakin et al., Residential Services, supra n. 3, at iii (listing Alaska, the District of Columbia, Hawaii, Maine, Michigan, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont and West Virginia); Gettings Aff. at 4 (reporting one additional state, Indiana, that has closed its large institutions).
5

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provide most services for most persons in the community demonstrates that the basic goal
and specific provisions of the Settlement Agreement are consistent with national
experience and professional standards. In transforming their service systems for persons
with ID/DD, these States have maximized funding, minimized per person costs, and
vastly expanded the number of individuals served. The Agreement provides the
foundation for Virginia to do the same. While system transformation is challenging, and
may cause concerns from families who are understandably anxious about change,
numerous States have successfully addressed these concerns and safely transitioned
thousands, if not tens of thousands, of persons with ID/DD from institutions to new community homes.6 Based upon the experiences of other states, the Agreement’s
requirements of enhanced services, for person-centered planning and discharge processes,
for quality and risk management systems, and for ongoing monitoring by the independent
reviewer, are strong indications that expanded community services and transitions to community living will result in improved lives for thousands of Virginians with ID/DD.7
6 An argument that all current Training Center residents should be allowed to choose to remain at their current facility indefinitely would be predicated upon an assumption that several Training Centers will be closed if the Settlement Agreement is approved and entered by this Court. These concerns, however, are not only predicated upon a speculative assumption which the Agreement does not require and may never come to pass, but also run counter to the overwhelming national consensus on how to best deliver services to persons with ID/DD. Any assertion that Training Center residents will be irreparably harmed if they are required to transition into new environments would be erroneous. This assertion is unsupported by, and inconsistent with, amici’s experience in the field and a growing body of careful research which demonstrates that individuals with ID/DD who transition from institutional to community-based care do better in the community. Gettings Aff. at 4-6. 7 Residents of Training Centers are specifically covered by the Agreement and are included in the target group. Agreement at III.B.1.a. It also bears noting that, even were some Training Centers to close, there is no requirement that any resident be transferred to a community setting. Based upon the person-centered planning process set forth in the Agreement with its emphasis on informed choice by the individual with ID/DD, any resident who wishes to transfer to an alternative ICF setting will be permitted to do so. See Commonwealth’s Brief in Opposition to Motion to Intervene at 6, 9, 10.
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A. Case Studies Nationwide Demonstrate that Residents of ID/DD Institutions Can Be Successfully Transitioned into Integrated Community Settings.
In the amici’s years of experience across all fifty States and the District of Columbia, a large number of States that have closed all or some of their ID/DD institutions and transferred residents into alternative service settings, including more effective community care. As demonstrated time and again, with proper planning, sensitivity, and funding, residents young and old can successfully and effectively be transitioned into different environments. That result is equally true when residents’ families and guardians initially oppose the transfer.8
Amici know, from direct experience in administering, monitoring, and evaluating the expansion of community services and the transition of institutional residents to new homes in the community, that the most successful transitions require substantial investment in the capacity and quality of the community service system. Good fiscal planning and use of available federal funding for transition activities help reduce the cost of maintaining a “dual system” of institutional and community-based services. Moreover, involving those persons who are most affected by movement from institutions to other settings is important to a successful transition. By creating open dialogue and building trust among all stakeholders, the transition process should allay fears and identify solutions.
With these principles in mind, amici have overseen the successful transition nationwide of facility residents into different environments – primarily community-based care – with very positive results. These transitions, often related to facility closure or
8 Gettings Aff. at 5-6.
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consolidation, have occurred in a large number of States and an even larger number of institutions. Amici focus here on the experiences in Pennsylvania, Indiana and Massachusetts, where institutional closures posed challenges that were comparable to, if not greater than, those that may occur if some of the Training Centers are closed. These case studies demonstrate the overwhelming likelihood of an effective transfer process for any Training Center residents who might relocate to new community homes or other ICF/MR facilities.
1. Pennsylvania The Commonwealth of Pennsylvania has closed eleven state-operated ID/DD institutions and special units, including three large facilities that were the subject of litigation: Pennhurst Center in 1987, Embreeville Center in 1997, and Western Center in 2000. All these institutions served a large number of residents many of whom had been institutionalized since childhood. The Commonwealth’s Office of Mental Retardation established transition teams that oversaw the entire planning process, assured the availability of adequate funding to develop community-based services before the facilities were closed, and completed follow-up visits to monitor services, health care, therapies, behavioral services, and to obtain feedback from former residents and their families. These teams worked closely with families throughout the entire process to ensure they were apprised of the changes and the benefits of transitioning to communitybased services.9 Despite opposition from some guardians and families who were initially opposed to any change in residential settings, Pennsylvania’s closure of these institutions
9 Nancy Thaler, Review of the Tennessee State Arlington Developmental Center Closure and Community Transition Plan, United States of America v. State of Tennessee, Civil Action No. 92-2062 (W.D. Tenn) (2006) at 7 (Thaler Report).
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has been heralded as an unqualified success by public officials, legislators, involved
professionals, and, most importantly, the residents themselves.10
Opposition to closing Western Center was probably the most strident that the
Commonwealth encountered. The families and guardians of Western Center residents
litigated to prevent community placements; however, the courts declined to interfere with
the State officials’ policy choices and refused the invitation to dictate which specific
facilities and programs must be maintained by Pennsylvania’s public agency.11 Despite
their opposition, however, the families of all but fifty-six out of 380 residents actively
participated in the development of individual transition plans. Perhaps most telling was
the fact that after the institution was closed, the fifty-six families who did not participate
were very pleased with their sons’ and daughters’ community living arrangements, and
only one family sought to have a former resident returned to the institution.12
10 See, e.g., “Independent Monitoring for Quality: What Consumers in Pennsylvania Say About Their Services,” and “What Families, Friends and Guardians Say About Services,” Dep’t of Public Welfare, Office of Mental Retardation. Report of Independent Monitoring for Quality in the Pennsylvania Mental Retardation System (2002) at 7, 10; Pennsylvania Dep’t of Public Welfare, Office of Mental Retardation, Everyday Lives: Making it Happen (2001); S. Kim, S.A. Larson & K.C. Lakin, Behavioral Outcomes of Deinstitutionalization for People with Intellectual Disabilities: A Review of Studies Conducted Between 1980 and 1999 (2001) at 3, 5 (studies of deinstitutionalization in Pennsylvania consistently show growth and development after community placement) (available at http://ici.umn.edu/products/prb/101/101.pdf) (hereafter “Kim, et al. Behavioral Outcomes: 1989-1999”); J. W. Conroy and V. J. Bradley, The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis (1985) at 322-23 (“the people deinstitutionalized under the Pennhurst court order are better off in every way measured … the results are not mixed”) (emphasis in original) (hereafter Pennhurst Study) (copy available online at http://aspe.hhs.gov/daltcp/reports/5yrpenn.pdf); J. W. Conroy, Selected Findings from Two Decades of Research on Community versus Institutional Living, (n.d.) (copy available online at http://www.outcomeanalysis.com/DL/pubs/DITASHNwsltr.PDF). 11 See, e.g., Richard C. v. Houston, 196 F.R.D. 288, 289 (W.D. Pa. 1999), aff’d., 229 F.3d 1139 (3d Cir. 2000) (denying parents’ motion to intervene to stop community placement); M. Bucsko, “Western Center Moves Delayed,” Pittsburgh Post-Gazette, February 1, 2000, http://www.postgazette.com/regionstate/20000201western1.asp; J. Ackerman, “Judge won’t hear Western Center parents’ petitition,” Pittsburgh Post-Gazette, March 31, 2000, http://www.post-gazette.com/regionstate/ 20000331western6.asp; J. Ackerman, “State closing home for mentally retarded amid continued appeals, protests,” Pittsburgh Post-Gazette, April 12, 2000, http://www.postgazette.com/regionstate/20000412western1.asp. 12 Thaler Report, supra n. 9, at 8.
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2. Indiana Indiana closed its last large institution, the Fort Worth State Developmental Center (“Fort Worth”) on April 18, 2007. Like their Virginia counterparts, officials in Indiana were concerned about the disproportionate funds that were maintaining old, less effective institutional facilities, and instead sought to promote more effective and less wasteful community-based services. The State had closed other institutions successfully, including New Castle and Northern Indiana State Developmental Centers, where longitudinal studies showed that after a year in the community, former residents demonstrated statistically significant and meaningful gains in skills, and professionals and involved families expressed the view that residents were far better off in their new homes.13 Nevertheless, the State’s decision to close the facility in January 2005 was particularly controversial because the 239 Fort Worth residents had complex needs, were considered difficult to serve, and indeed, were regarded as some of the most severely disabled persons in the public service system. When the institution closed, only eight of the 239 residents were placed in mental health facilities, while the remaining 231 moved to community settings.14 Although critics predicted that many of these residents with severe disabilities would not be successful in the community, the State’s careful planning and appropriate funding helped ensure an effective and successful transition into integrated community-based services. Specifically, the State formed a special team to follow former Fort Worth residents for
13 J. Conroy and J. Seiders, Outcomes of Community Placement at One Year for the People Who Moved from New Castle and Northern Indiana State Developmental Centers, Report Number 6 of the Indiana Community Placement Quality Tracking Project (2000) at 23. 14 Peter Bisbecos, Closing Institutions and Opening Doors to the Community, 14 Community Services Rptr. 6 (2007).
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one year after placement and to monitor their treatment. The State also enlisted community providers to build “extensive support needs” homes for people with the most significant behavioral challenges. By closing the institution, the State freed up substantial funds that it then reinvested to build community services and to provide much needed services to hundreds of other non-institutionalized persons on waiting lists.15
3. Massachusetts Massachusetts has closed several large state institutions for individuals with ID and, like the other states described above, has demonstrated that transitions from institutional to community-based care can be beneficial for even those residents with the most significant disabilities. With strong planning and sensitivity to residents’ and family members’ concerns during the closures of the Belchertown and Dever State Schools in 1992 and 2001, respectively, the transfers of the residents was accomplished in a manner that resulted in a better quality of life for them and, despite initial reservations, positive feedback from the families. Both institutions were the subject of long-standing court involvement and consent decrees designed to remedy constitutionally-deficient conditions at the facilities.
a. Belchertown State School To plan for the downsizing of Belchertown, the facility superintendent and the Department of Mental Health’s community service system managers created a collaborative process to systematically develop community services for Belchertown residents. As a result, the Commonwealth created a comprehensive array of community services to respond to the identified needs of each individual resident. Residents and
15 Id.
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families were engaged in the transition process; they were encouraged and assisted to visit new homes and to express preferences about roommates and staff; and when new residences were constructed, families were asked to participate in their design. As the service system grew, so did supervision, oversight, and quality assurance.
In the early phases of community placement, residents were given the option of returning to Belchertown. This, however, was rarely necessary. Initially, Massachusetts officials focused on developing community services without considering whether to close Belchertown. As more successful transitions occurred, however, it became less feasible and more wasteful to operate a large institution when so few residents remained. Moreover, the great majority of Belchertown residents had chosen a new home in the community.16 When the decision was made to close the institution, most of the remaining residents and families – including those who had lived at Belchertown for many decades – chose community living. The few who preferred to continue living in an institution were offered a transfer to another ICF/MR, just as the Virginia Training Center residents who are assessed to need ICF/MR level of services will be allowed to transfer to another Training Center or ICF/MR facility.
Shortly after the plan to close Belchertown was announced a study was conducted to measure family satisfaction and family and resident perceptions of the quality of life both for those who had moved from Belchertown to the community and for those who
16 E. A. Eastwood & G.A. Fisher, Skills Acquisition Among Matched Samples of Institutionalized and Community-based Persons with Mental Retardation, 93 Am. J. on Mental Retardation 75 (1988) (hereafter “Eastwood et al., Skills Acquisition”) (indicating that the group of Belchertown residents who transferred to the community had significantly greater level of cognitive and social skills after placement than the matched group that remained in the institution); see also V. J. Bradley, C. S. Feinstein, et al., Results of the Survey of Current and Former Belchertown Residents and their Families: The Belchertown Follow-Project 20 (Dec. 1992) (reporting results of Eastwood & Fisher study) (hereafter “Belchertown Follow Study”) (copy available online at http://bit.ly/Hg0S8z).
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remained at the facility at the time of the study. Although 78% of the residents who left Belchertown were reported to have severe or profound mental retardation and the level of disability was “not at all different” from those who remained, 89% of the families of residents who moved were satisfied or very satisfied with the move and only 2% expressed any dissatisfaction.17 The researchers found that “[w]hen comparing Belchertown families to community families, the community families were happier overall, perceived their relatives to be happier, [and] believed that their relatives were continuing to learn new things.”18
b. Dever Developmental Center An even more sophisticated transition planning process was initiated several years later, when Massachusetts decided to close the Dever Developmental Center. This policy decision was strongly opposed by family members and guardians who protested the closure and argued for “Dever Forever.” Eventually, through careful planning, engaged participation and an emerging history of successful placements, the opposition waned. Over several years, hundreds of residents with severe disabilities were carefully transitioned to other settings, the vast majority to the community. All were offered, and a few requested, placements in other institutions. Massachusetts was a pioneer in person-centered planning – a systematic individual planning process characterized by searching actively for a person’s gifts and capacities in the context of community life and by strengthening the voice of the person and those who know her best to define desirable changes in her life. By 1995, this
17 Belchertown Follow Study at 17. 18 Id.
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process was being used for people leaving Dever.19 Subsequently, Massachusetts developed the concept of building “social units” as part of the transition planning for each resident, in which the consumer and family/guardian had the opportunity to identify staff who would remain with the client through the transition and into the community.20
B. The Provisions of the Settlement Agreement Regarding Discharge Planning, Quality and Risk Management, and Monitoring by the Independent Reviewer Ensure that Transfers Will B Done Safely and in Accord with Professional Standards.
As the above-examples demonstrate, as well as the other similar expenses in most states throughout the country, institutions can be closed and residents safely transitioned to new homes in the community, without compromising the health or continuing development of the individual. Indeed, despite skepticism or outright opposition by family members, study after study demonstrates that when the resident transfers are based upon a person-centered discharge planning process, with support provided to assist the individual and family with the transition, transfers to the community are not only safe, but result in improvement in the individual’s cognitive and social development, particularly for people with the most significant disabling conditions, resulting in increased satisfaction both by the individual with ID/DD and the family.21
The Agreement incorporates all of the key safeguards, processes, and strategies that many other States, like those discussed above, have used to successfully reduce reliance on institutions and expand community services. The Agreement ensures that any
19 C.L. O’Brien and J. O’Brien, The Origins of Person Centered Planning: A Community of Practice Perspective (2000) at 3. 20 E.G. Enbar et al. A Nationwide Study of Deinstitutionalization and Community Integration: Massachusetts (2004). 21 Gettings Aff. at 6, 9; Pennhurst Study, supra note 10, Executive Summary at p. 7 (Finding that “the people with the most severe impairments turn out to be among those who benefit the most from community placement.”).
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transfers, whether to the community or to another ICF facility, will be undertaken in accord with professional standards. The Agreement sets forth a detailed person-centered discharge planning process. It requires that a case manager be assigned to any individual being considered for discharge or transfer. It mandates that the resident and family be provided with the ability to visit any proposed transition, prior to any final decision about transfer, in order to ensure that any concerns of the individual and family are addressed. The entire process is based upon the “informed choice” of the resident and family. All of these protections, and more, are derived from the lessons learned over the past thirty years during which hundreds of institutions have been closed and residents transferred.22
The Agreement reflects current professional standards regarding how to implement transitions and transfers from institutional settings. There is every reason to expect that Virginia will be as successful as the States described above with respect to any transfers that may be undertaken pursuant to the Agreement. Indeed, with the quality and risk management system set forth in the Agreement, coupled with oversight by the Independent Reviewer, the Department of Justice and this Court, there is every reason to anticipate that any transfers will be more successful and satisfying to residents and families than those described above, many of which did not have these additional protections.23
22 Gettings Aff. at 6, 10. 23 Gettings Aff. at 10. Thus, the concerns and fears of the families of Training Center residents, while understandable, are belied by the experience of similarly-situated families in most other States that have phased down their institutions.
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II. The Professional Literature Establishes That Residents of Institutions Benefit from Transfer to the Community. A substantial body of professional literature, as well as the direct experience,
informal evaluations, and formal research by amici, convincingly demonstrates that community living offers far greater benefits for persons with ID/DD than large institutions. These proven benefits have been shown in a variety of community settings, and for individuals with varying degrees of disability. Importantly, gains from community living include improvements in adaptive behavior, control of challenging behaviors, independence, self-care skills, social skills and vocational skills.
While there may be an initial adjustment period, transition to the community generally is successful for persons with ID/DD. This is particularly true where, during the transition process, the individual and family are able to meet with the new provider, visit the new home, and gradually adjust to the new environment. Community living also provides individuals with ID/DD with opportunities not generally available in large institutions like the Training Centers, including regular interactions with individuals without disabilities and greater freedom to experience day-to-day community life, such as shopping in the grocery store, participating in religious services, going to the movies, and visiting friends. These experiences cannot be duplicated in the isolation of an institutional setting. Community living also allows persons with ID/DD to develop fuller lives and to enjoy the benefits and experiences that those without an intellectual disability experience daily.
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A. Community Integration and its Benefits Are Well Supported by Professional Research and Literature.
The advantages of community living are powerfully and convincingly supported by a large body of professional literature. These results have been consistently reconfirmed in the United States and around the world over the past 30 years. It is welldocumented that individuals who leave institutions and move into the community have a better quality of life, improve adaptive behaviors and acquire more skills that help them on a daily basis. Transition to a community home makes “a significant impact on acquisition of the more complex cognitive and social skills.”24 While transitions can be challenging,25 the long term impact of moving from institutions to community living is almost universally positive of all ages and disability levels.26
The Pennhurst Longitudinal Study was a seminal study in the field of intellectual disability. The study was launched in connection with a landmark class action lawsuit, which provided the researchers with the opportunity to study a sizable population as they moved into community placement. Research and analysis were conducted for five years and followed over 1,100 individuals involuntarily moved into the community following the court-ordered phase down of the Pennhurst State School and Hospital.
The study found that people who moved into the community were more independent and showed improvements in adaptive behavior.27 The individuals who left Pennhurst (called “Movers” in the study) increased their adaptive behavior scores on the
24 See Eastwood et al., Skills Acquisition, supra n. 16, at 75. 25 See generally D. Braddock, Closing the North Dakota Developmental Center: Issues, Implications, Guidelines, at 23-24 (2006) (hereafter North Dakota Study (available at http://www.arccassnd.com/images/ClosingGraftonPDFonline.pdf). 26 Gettings Aff. at 4-5. 27 See Pennhurst Longitudinal Study, supra n. 10, at 314-315.
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Behavior Development Survey significantly, improving their scores by over 11 points, while those who remained in the institution (the “Stayers”) improved their scores by less than 1 point.28 These results demonstrate that “Movers” experienced the significant increases in adaptive behavior, while their counterparts who remained showed no similar growth.29 As such, the study established that the gains were largely due to community living, rather than aging or natural development, and all occurred notwithstanding the fact that many transfers were opposed by families.
An overwhelming number of studies, meanwhile, have corroborated the Pennhurst results, finding a statistically significant increase in overall adaptive behavior scores associated with community living. In 1989, for example, Larson and Lakin published a survey of eighteen studies on changes in adaptive behavior for formerly institutionalized individuals who had transitioned to the community.30 Fully 1,358 subjects were involved in the 18 studies, from 13 different States from all regions of the country. Studies included both consented to and opposed transitions. The review found that institutions were “consistently less effective than community-based settings in promoting growth, particularly among individuals diagnosed as severely or profoundly retarded.”31 Based on these findings, Larson and Lakin noted that:
It must be recognized that based on a substantial and remarkably consistent body of research, placing people from institutions into small, community-based facilities is a predictable way of increasing their capacity to adapt to the community and culture.32
28 Id. at 56. 29 Id. at 57. 30 See Sheryl A. Larson & K. Charlie Lakin, Deinstitutionalization of Persons with Mental Retardation: Behavioral Outcomes, 14 J. of the Ass’n for Persons with Severe Handicaps, 324-32 (1989). 31 Id. at 330. 32 Id. at 331.
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They concluded that “available research denies support for the assertion that people obtain greater or even equal benefit in adaptive behavior from living in institutions. In fact, this research suggests that those benefits very consistently accrue more to the people who leave institutions to live in small community homes.”33
In a follow-up to their ground-breaking 1989 work, Kim, Larson and Lakin reviewed 33 more studies and found that the literature continued to support their earlier findings that improvements in adaptive behaviors are consistently found in individuals who moved from large institutions to smaller homes in the community.34 The more recent studies, in addition to showing an increase in adaptive behaviors, also showed a decrease in challenging behaviors among those who moved to the community.35 The authors concluded that:
The studies reviewed here demonstrate strongly and consistently that people who move from institutions to community settings have experiences that help them to improve their adaptive behavior skills. The studies suggest that community experiences increasingly provide people with environments and interventions that reduce challenging behavior. And, a growing body of research suggests that people enjoy a better quality of life along dimensions that have been quantified differently by different researchers.36 Kim, Larson and Lakin updated their work again in 2011 to include analysis of studies up through 2010. This most recent report once again documents that individuals
33 See Kim, et al., Behavioral Outcomes: 1980-1999, supra n. 10 at 6 quoting Larson & Lakin, Deinstitutionalization of Persons with Mental Retardation, supra n. 30. 34 Id. 35 Id. 36 Id. at 8 (additional areas of improvement noted by some researchers included: self-care or domestic skills; academic skills; communication; community living skills; social skills; and vocational skills).
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ho move from institutions to the community experience significant improvement in their adaptive behavior skills.37
Additionally, a study of over 2,000 persons with ID/DD in California from 1993
to 2001 yielded similar results -- confirming the unquestionable benefits of community living.38 This study analyzed over 700 items of information for each individual. These
results were compared before and after the transition to the community. The researchers
primarily asked one question: “[A]re the people who moved better off than they were when living in Developmental Centers?”39 The results showed that individuals who left institutions “benefited considerably from community living.”40 Quality of life for
individuals who transitioned from large institutions to the community “improved in more than three times as many dimensions as they have declined.”41 The study found
improvements in several quality of life dimensions, including progress in personal goals, individualized treatment, integration, challenging behavior and choice-making.42 The
researchers also concluded that families were “unexpectedly and overwhelmingly happy with community living, even those who formerly opposed the change.”43
As the literature shows, community living provides persons with ID/DD with
opportunities to improve adaptive behavior and acquire useful skills. Improvements are
37 Behavioral Outcomes of Deinstitutionalization for People with Intellectual and/or Developmental Disabilities: Third Decennial Review of U.S. Studies, 1977-2010 at 8 (2011) (copy available at http://ici.umn.edu/products/prb/212/212.pdf. 38 See M. Brown, A. Fullerton, J.W. Conroy & M.F. Hayden, Eight Years Later: the Lives of People who Moved from Institutions to Communities in California. Year 2001 Report of the Quality of Life Evaluation of People with Developmental Disabilities Moving from Developmental Centers into the Community, Final Report (Year 2) (2001) (hereafter California Study) (copy available online at http://www.outcomeanalysis.com/DL/pubs/ca2r4.pdf). 39 Id. at 2. 40 Id. 41 Id. at 27. 42 Id. at 26. 43 Id. at 3.
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consistently found in reading/writing skills, quantitative skills, independent living skills, vocational skills, and social interaction skills.44 The body of professional literature shows
that these gains are significant and that those who left the institutions are decidedly
“better off."
B. Community Integration Provides Individuals With an Opportunity to Participate in their Communities.
Integration into the mainstream of community activities is fundamental in
supporting those with disabilities who have transitioned from institutions to the
community. Integration can be defined as the opportunities people with disabilities possess for contact with people without disabilities.45 Studies consistently have found integration to significantly improve after transition from institutions.46 Brown concluded
that individuals who entered the community were involved in an additional 13.3
community events per month and that this almost doubling of integrative activities was statistically significant.47 Conroy showed increases in 15 of 16 types of integrative activities, six of which were significant.48 These results were found to be consistent with data from other States.49 Individuals who left institutions greatly increased their opportunities to go places and interact with citizens without disabilities.50
44 See Eastwood et al., Skills Acquisition at 80; see also J.W. Conroy, J. Garrow, et al., Initial Outcomes of Community Placement for the People who Moved from Stockley Center, (2003) at 47-48 (copy available online at http://www.dhss.delaware.gov/ddds/files/conroyrep.pdf) (hereafter “J.W. Conroy, et al. Stockley Study”); see also S. Kim, et al., Behavioral Outcomes: 1980-1999, supra n. 10 at 6-8; Gettings Aff. at 4-5. 45 See J. W. Conroy, et al., Stockley Study, supra n. 44, at 33. 46 See California Study, supra n. 38, at 31; see also Eastwood et al., Skills Acquisition, supra n. 25 at 80; Kim, Larson & Lakin, Behavioral Outcomes: 1980-1999, supra n. 10, at 6. 47 California Study, supra n. 38, at 31. 48 J.W. Conroy, et al., Stockley Study, supra n. 44, at 35. 49 Id. at 36. 50 Id.
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Community integration is compelling precisely because it seeks to maximize inclusion for persons with ID/DD and enhance their integration into society.51 Not only does it lead to a marked increase in adaptive behaviors, it results in a richer and more satisfying overall quality of life.
C. Community Integration Leads to Improvements in Challenging Behavior. Community integration also has been found to diminish challenging behavior. While studies in the 1980s suggested that community living may lead to some deterioration in challenging behavior, more recent studies have shown conclusively that behavior actually improves upon moving to community placements.52 Brown identified the largest improvements ever documented in research on behavior, finding a substantial increase for the ability of persons who moved to the community to control challenging behaviors.53 From this research, the researchers determined that "[t]he proper conclusion is that these 191 Movers are far better off now, in the community, in terms of being able to control their own potentially challenging behavior."54 The ability to control challenging or maladaptive behavior is particularly significant, since many individuals with ID/DD initially were placed in institutions precisely because of such behaviors. As community providers have developed services,
51 See 42 U.S.C. § 12101(a) (Congressional finding that “historically, society has tended to isolate and segregate individuals with disabilities;” see also Olmstead, 527 U.S. at 600 (holding that “unjustified institutional isolation of persons with disabilities is a form of discrimination” because “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment”). 52 S. Kim, et al., Behavioral Outcomes: 1980-1999, supra n. 10, at 6, 8 (noting that while early studies in the 1980s showed some increase in challenging behaviors, all of the studies from 1990 onward showed a decrease in such behaviors, suggesting that community integration services and supports have improved and developed strategies to not only enhance adaptive behaviors, but decrease maladaptive behavior). 53 California Study, supra n. 38, at 40-43. 54 Id. at 43.
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supports and strategies to address these challenges, it is no longer necessary or appropriate to continue to isolate and segregate these individuals.55
D. Families of Relatives Who Move to the Community Are Consistently Supportive of the Transfer.
Studies unequivocally show that families of individuals who move to the
community are overwhelmingly satisfied with the results of the transition. Notably, even
where families initially opposed the transfer, the great majority ultimately become supporters of community living.56 Many of these families have been studied since the
late 1970s, with the studies consistently demonstrating that, after transitioning to the
community, families report lower levels of satisfaction with earlier institutional placement and higher levels of satisfaction with community living.57
These changes in family attitudes were highly statistically significant.58 Brown
found that families saw improvements in their relative's quality of life following their
transition to the community, which led to a clear shift from opposition to support for community living.59 This trend grows stronger the longer their relatives are out of institutions.60 In those instances, families felt that their relatives were "happy" or "very
happy" with living in the community and strongly opposed the idea of relatives moving back to institutions.61
55 Gettings Aff. at 4-5. 56 See North Dakota Study, supra n. 25, at 11; see also Pennhurst Study, supra n. 10, at 79-80, 108-09; see also Braddock, David & Heller, Tamar, The Closure of Mental Retardation Institutions: Trends and Implications (a Working Paper) at 20-21(1984) (copy available online at http://www.mnddc.org/parallels2/pdf/80s/84/84-PPM-UOI.pdf); Gettings Aff. at 9-10. 57 Braddock & Heller, Closure of Mental Retardation Institutions at 20-21; California Study, supra n. 38, at 124-124. 58 Pennhurst Study, supra n. 10, at 105. 59 California Study, supra n. 38, at 125-26. 60 Id. at 127. 61 Id. at 127-28.
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Preferences to stay in institutions are often "based on lack of experience with other alternatives and fear of something new and different."62 Interestingly, family members are often surprised by their own change in feelings and report unexpected changes for the better in their own lives, and in the lives of their relatives with disabilities.63
The transfers are not simple, of course. To help address legitimate concerns or fears, families must be informed that adjustment issues may occur during and following transfer to a new home. Concerns of both the individual and family can be mitigated by involving them in the process and enabling them to visit their new home, meet the provider, and assist in selecting potential house mates. Clinical judgment, a critical aspect of the relocation process, utilizes professional standards to ensure best practices and enhanced accuracy, precision and integrity in decision-making. As study after study has shown, when done well and in accord with professional standards, transitions from institutional settings are not only safe, but result in significant growth and improvement by the individual.64
The Agreement contains detailed procedures to ensure that the individual and family are involved in a person-centered planning process that is predicated upon “informed-choice.” The planning process will be done by the individual’s Personal
62 B. Shoultz, P. Walker et al., Status of Institutional Closure Efforts in 2005 at 3 (2005) (copy available at http://ici.umn.edu/products/prb/161/161.pdf). 63 Pennhurst Study, supra n. 10, at 109. 64 While opponents often assert that such moves will result in “transfer trauma,” even suggesting that there is a significantly increased risk of death, the data demonstrates the opposite. In a study focused directly on the risk of increased mortality due to transfers out of an institutional placement, the authors concluded that “[t]he evidence … clearly indicates that being a mover or having stability in placement did not account for differentials in the rates of deaths.” P. Lerman, D.H. Apgar et al., Deinstitutionalization and Mortality: Findings of a Controlled Research Design in New Jersey, 41 Mental Retardation 225, 234 (August 2003) (copy available online at http://www.closevineland.org/Deinstitutionalization_20and_20Mortality.pdf).
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Support Team, which includes the individual, family members, the CSB case manager, Training Center staff and any other individuals chosen by the individual. Discharge plans developed by the team will identify all needed supports, protections and services. Individuals and their family members will be provided with the opportunity to visit any proposed home to assess whether it has the staffing and resources to meet the individual’s needs. All individuals who transition to the community will have a case manager. Mobile crisis intervention and crisis stabilization resources will be available 24 hours per day, 7 days per week to respond to any individual who experiences a problem in the community. Quality and risk management systems will monitor the quality and safety of the services and supports provided in the community, and require prompt corrective action of any deficiencies. An Independent Reviewer will be charged with the responsibility to collect data and conduct investigations to determine whether the Commonwealth is complying with the Agreement, and to report his findings to the Court and parties. In addition to the Independent Reviewer, the Department of Justice will also be monitoring the Commonwealth’s compliance with the Agreement.
The Agreement contains all of these protections, and more, to ensure that any transfers from the Training Centers are done in a fashion that is safe, sensitive to the needs and wishes of the individual and designed to maximize the individual’s abilities and opportunities for independence and self-determination. The protections that the Agreement provides far exceed those present in many of the closures that were the subject of the studies cited in this brief. 65 They offer reasonable assurances of safety,
65 Just as the fears of the families who objected to facility closures and resultant transfers in other States proved to be unfounded, so too the projections of unsafe outcomes presented by the objectors to this
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the decidedly better hope of improved outcomes, and the undeniable expansion of community services for persons currently denied all supports from the Commonwealth while they languish on waiting lists.66
CONCLUSION For the foregoing reasons, this Court should approve the Settlement Agreement as a fair, just and adequate resolution of the claims raised by the United States' Complaint against the Commonwealth of Virginia.

Dated: April 5, 2012

Respectfully submitted,
/s/ Victor M. Glasberg________ Victor M. Glasberg, Bar No. 16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA. 22314 (703) 6841100 vmg@robinhoodesq.com
Robert D. Fleischner (pro hac vice) RFleischner@cpr-ma.org Steven J. Schwartz (pro hac vice) SSchwartz@cpr-ma.org Deborah A. Dorfman (pro hac vice) DDorfman@cpr-ma.org J. Paterson Rae PRae@cpr-ma.org Center for Public Representation 22 Green Street Northampton, MA 01060 (413) 586-6024

Agreement are likely to be exaggerated, since they are similarly based upon unjustified fears and assumptions. 66 See Gettings Aff. at 10.
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CERTIFICATE OF SERVICE I hereby certify that on the 5th day of April, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Aaron Zisser Alison Barkoff Benjamin O’Tayloe, Jr. U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave., NW Washington, D.C. 20530 Aaron.Zisser@usdoj.gov Alison.Barkoff@usdoj.gov Benjamn.Tayloe@usdoj.gov
Robert P. McIntosh Assistant United States Attorney 600 East Main Street, Suite 180 Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Allyson Kurzmann Tysinger Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-2071 atysinger@oag.state.va.us
Gerald T. Schafer Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 rschafer@scaferlawgroup.com
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Thomas York Donald Zavcosky Cordelia Elias The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 tyork@yorklegalgroup.com celias@yorklegalgropu.com dzaycosky@yorklegalgroup.com
Victor M. Glasberg__________ Victor M. Glasberg, Bar No. 16184 Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA. 22314 (703) 684-1100 (telephone) (703) 684-1104 (facsimile) vmg@robinhoodesq.com
28

 </s> Case 3:12-cv-00059-JAG Document 65 Filed 05/09/12 Page 1 of 6 PageID# 3564

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

v.

Civil Action No. 3:12cv59-JAG

COMMONWEALTH OF VIRGINIA,
Defendant.

MEMORANDUM ORDER

THIS MATTER is before the Court on the Motion to Intervene (Dk. No. 19) pursuant to

Rule 24 of the Federal Rules of Civil Procedure1 filed by PEGGY WOOD, by and through her father, Wriley Wood; BARBARA SUSAN FALLIS, by and through her father, Charles Fallis;

TAMI LASSITER, by and through her father, Arnold Lassiter; TERESA KOURY, by and through her sister, Lorraine Koury; JONATHON SPEILBERG, by and through his father,

Howard Spielberg; MARINDA LEWIS, by and through her father, Charles Lewis; ADAM

1Federal Rule of Civil Procedure 24 states, in relevant part:
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately
represent that interest.
(b) Permissive Intervention.
(1) In General. On timelymotion, the courtmay permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law
or fact.
Fed. R. Civ. P. 24.

Case 3:12-cv-00059-JAG Document 65 Filed 05/09/12 Page 2 of 6 PageID# 3565
SAMUEL BERTMAN, by and through his mother, Judith Korf; JASON KINZLER, by and through his mother, Jane Anthony; KEVIN PATRICK MORAN, by and through his mother, Mary Jane Moran; NEAL HAMPTON, by and through his Mother, Loretta Evans; SEAN JOHNSON by and through his mother Alice Johnson; KENT OLSEN, by and through his father, Kent Olsen, and AMBER ROBINSON, by and through her father, Wade Robinson, (hereinafter collectively referred to as the "Petitioners"). For the reasons stated herein, the motion will be granted. The Petitioners shall be added as defendants to this lawsuit.
On January 26, 2012, the plaintiff-United States of America filed its Complaint against the defendant-Commonwealth of Virginia (the "Commonwealth"), alleging violations of Title II of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12131-12134, through the unnecessary institutionalization of individuals with intellectual and developmental disabilities ("ID/DD") in Virginia. (Compl. f 14.) The parties simultaneously filed a consent
decree (Dk. No. 2-2, the "Agreement") which established a ten-year plan for the expansion of "theavailability of existing community services to support individuals with ID/DD." (Joint Mot. for Entry of Agreement 3.) Among its provisions, the Agreement requires the Governor of Virginia to submit to the General Assembly a plan to close four of the state's residential "Training Centers." The Petitioners are all Training Center residents who wish to remain at their
current facilities. In their motion, the Petitioners claim that the lawsuit affects their rights and interests such that intervention is required under Rule 24. See Fed. R. Civ. P. 24(a).
According to the Fourth Circuit, timely intervenors are entitled to intervention of right underRule 24(a)(2) if they can demonstrate: (1) that they have an interestin the subjectmatter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant's interest is not adequately represented by existing parties to the litigation.

Case 3:12-cv-00059-JAG Document 65 Filed 05/09/12 Page 3 of 6 PageID# 3566
Teague v. Bakker, 931 F.2d 259, 260-261 (4th Cir. N.C. 1991) (citing Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)); see also Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989) (finding four requirements of Rule 24(a)(2): timeliness, interest, impairment of interest, and inadequate representation).
Here, the Motion to Intervene was filed in a timely manner. The United States filed its Complaint on January 26, 2012. The Petitioners filed their motion on March 2, 2012—before the initial pleading stage had finished. Where a case has not progressed beyond the initial pleading stage, a motion to intervene is timely. See Scardelletti v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001).
Furthermore, the Petitioners have a significant, protectable interest in receiving the appropriate care of their choice and protecting their rights under the ADA. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) ("Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it."). The operative
document in the Court's analysis is the Complaint, not the Agreement.2 Plainly, the Complaint
contains a very broad request for relief that directly implicates the rights and interests of the Petitioners.3 Judging the prayer for relief, nearly any request related to the*care of Virginians
2 Even assuming the Agreement is the operative document, the consent decree is designed to
alter the types of care and housing arrangements for disabled Virginians in general. While it does not explicitly require the closing of the Training Centers, the Agreement may inevitably lead to that result. As such, it has a dramatic effect on the lives and basic rights of the
Petitioners.
The Prayer for Relief states: WHEREFORE, the United States of America prays that the Court: 44. Require Defendant to administer services for individuals with ID/DD in the most integrated settings appropriate to the needs of the individuals; and

Case 3:12-cv-00059-JAG Document 65 Filed 05/09/12 Page 4 of 6 PageID# 3567
with ID/DD can be fathomed—even a demand for a court order that closes the Training Centers
altogether. In other words, if the Court disapproves of the Agreement, all possible relief is on the table, and the Commonwealth has shown little interest in supporting a proposal that sustains the Training Centers.
The Petitioners are all Training Center residents who wish to continue receiving institutional care in their current settings. As such, their interests are certainly affected by a lawsuit alleging deficiencies in their care and a consent decree whose stated purpose is to prohibit the unnecessary institutionalization of Virginians with ID/DD. They are even members of the "Target Population" identified in the Agreement. (See Agreement III.B.l.a. ("The target population . . . shall include individuals with ID/DD who ... are currently residing at any of the
Training Centers;"). In short, the Petitioners have a federally protected right, under Olmstead and the ADA, to receive the appropriate care of their choice. That care is the central focus of the Complaint, thus the Courtmust permitthe Petitioners to intervene in this matter.
Similarly, the relief requested in the Complaint represents a tangible threat to the Petitioners' right to receive the appropriate level of care. At this stage, the Petitioners are prohibited from fully expressing their objections and concerns with the Agreement. If the Agreement is rejected and the case proceeds forward, they would lack the voice to address the potential relief in the absence of a consent decree. Such an inability to defend satisfies the third
requirement of Rule 24(a).
45. Enjoin Defendant from administering services for individuals with ID/DD in a manner that unnecessarily isolates or segregates such individuals from the community;
and
46. Order such other appropriate relief as the interests ofjustice require. (Compl. UK 44-46.)

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Finally, the existing parties in this litigation do not adequately represent the rights and interests of the Petitioners. The parties' desire to phase out the residential Training Centers and transition all Virginians with ID/DD to community-based care is readily apparent. The Petitioners have expressed a significant interest in receiving the appropriate level of care, which they argue, necessitates their continued placement at the Training Centers. Whether this litigation actually infringes their rights is not the question presentlybefore the Court. Rather, the Court must determine whether the Complaint simplyimplicates the significant, yet unrepresented interests of a voiceless group who wishes to intervene. In this case, the Court finds such implication—Rule 24's requirements for intervention have been satisfied.
Accordingly, the Court hereby ORDERS the following: (1) The Petitioners' Motion to Intervene is GRANTED;
(2) The Petitioners' Motion to Dismiss (Dk. No. 19-1) filed as Exhibit A to the Motion to
Intervene is DEEMED filed;
(3) The plaintiffand defendant are DIRECTED to respond to the Petitioners' Motion to
Dismiss within ten (10) days from the entry of this Memorandum Order;
(4) A reply brief to each response from the plaintiff or defendant may be filed by the
Petitioners, due no later than six (6) days from the filing of the respective response;
(5) As the Court will decide the Petitioners' Motion to Dismiss on the papers, a hearing is
unnecessary; and
4 In the alternative and at its discretion, the Court also finds that the requirements for permissive intervention under Fed. R. Civ. P. 24(b) have been satisfied. The Petitioners' protected right to the appropriate care for their disabilities implicates a claim that shares a common question of law with the instant suit. Moreover, the litigation will not be unduly delayed, nor will the existing
parties be unduly prejudiced, by intervention in this case.

Case 3:12-cv-00059-JAG Document 65 Filed 05/09/12 Page 6 of 6 PageID# 3569
(6) All parties are DIRECTED to contact theundersigned's chambers within five (5) days of the entryof this Memorandum Orderto set a hearing date for evaluation of the Agreement.
It is so ORDERED.
Let the Clerk send a copy of this Memorandum Order to all counsel of record.

Date: Mav09.2012
Richmond, VA

S r t /s/
John A. Gibney, United States District Judge

 </s> Case 3:12-cv-00059-JAG Document 66 Filed 05/09/12 Page 1 of 4 PageID# 3570

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
and
COMMONWEALTH OF VIRGINIA, Defendant,

CIVIL ACTION NO: 3:12-cv-059

against

PEGGY WOOD, by and through her father, Wriley Wood, et aI.·
Intervenors.

INTERVENORS' MOTION TO DISMISS
Intervenors, by and through their counsel, move, pursuant to Fed.R. Civ. 12 (b)(l) and
12(b)(6) to dismiss the Complaint for Declaratory and Injunctive Relief on the grounds that this
Court lacks subject matter jurisdiction to entertain this claim and on the grounds that the
Department of Justice has failed to state a claim upon which relief can be granted. In support,
the Intervenors respectfully refer this Honorable Court to the accompanying Memorandum of
Law.
Respectfully Submitted,
lsi Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com

Case 3:12-cv-00059-JAG Document 66 Filed 05/09/12 Page 2 of 4 PageID# 3571
Isl
. Thomas B. York Pennsylvania Bar # 32522 Donald B. Zaycosky Pennsylvania Bar # 91821 . Cordelia Elias Pennsylvania Bar # 204965 Attorneys for Intervenors The York Legal Group~ LLC 3511 North Front Street Harrisburg~ PA 17110 Phone: 717 236-9675 Fax: 717236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
2

Case 3:12-cv-00059-JAG Document 66 Filed 05/09/12 Page 3 of 4 PageID# 3572
CERTIFICATE OF SERVICE
I, hereby certify that on the 2nd day of March, 2012, I electronically filed the foregoing with the Clerk of Court using the CMlECF system, which will then send a notification of such filing (NEF) to the following:
. Allyson K. Tysinger Virginia Office ofthe Attorney General
900 East Main Street Richmond, Virginia 23219 ATysinger@oag.state.va.us
Robert McIntosh Assistant United States Attorney 600 East Main Street, Suite 1800
Richmond, VA 23219 Robert.Mclntosh@usdoj.gov
Alison N. Barkoff Special Counsel for Olmstead Enforcement
Civil Rights Division 950 Pennsylvania Avenue, NW
Washington D.C. 20530 Alison.Barkoff@usdoj.gov
Benjamin O. Tayloe Jr. Deputy Chief
950 Pennsylvania Avenue, NW Washington D.C. 20530
Benjamin.tayloe@usdoj.gov
Aaron B. Zisser Trial Attorney 950 Pennsylvania Avenue, NW Washington D.C. 20530 Aaron.Zisser@usdoj.gov
3

Case 3:12-cv-00059-JAG Document 66 Filed 05/09/12 Page 4 of 4 PageID# 3573
/s/ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
/s/ Thomas B. York Pennsylvania Bar # 32522 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 1711 0 Phone: 717236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com
4

 </s> Case 3:12-cv-00059-JAG Document 75 Filed 05/21/12 Page 1 of 5 PageID# 3660

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division

UNITED STATES OF AMERICA, Plaintiff, v.
COMMONWEALTH OF VIRGINIA, Defendant,
and PEGGY WOOD, et al.,
Intervenor-Defendants.

) ) ) ) CIVIL ACTION NO: 3:12CV59-JAG ) ) ) ) ) ) ) ) ) ) )

DEFENDANT COMMONWEALTH'S RESPONSE TO INTERVENORS’ MOTION TO DISMISS
Comes now the Defendant, the Commonwealth of Virginia ("Commonwealth"), by counsel, and in response to Intervenors’ Motion to Dismiss states as follows:
On February 10, 2011, t he United States issued a findings letter to the Commonwealth alleging that the Commonwealth failed to provide services to individuals with developmental disabilities in the most integrated setting appropriate to their needs in violation of title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131 -12134. After receipt of the findings letter, the Commonwealth engaged in negotiations with the United States in an effort to reach an amicable and voluntary resolution of the United States' claims to avoid complex and costly litigation and the risks to the Commonwealth inherent in such litigation. After almost a
1

Case 3:12-cv-00059-JAG Document 75 Filed 05/21/12 Page 2 of 5 PageID# 3661
year of negotiations, the Commonwealth and the United States entered into a settlement agreement. In the settlement agreement, the Commonwealth agreed to the jurisdiction of this Court and to defend the agreement if it was attacked. The Commonwealth filed a Joint Motion for Entry of the Settlement Agreement with the Court and at this time, will not take a position that is adverse to that motion or the settlement agreement.
Should the Court deny the Joint Motion for Entry of the Settlement Agreement and the case proceeds to trial, the Commonwealth does not waive any arguments, grounds, or justification that it may have to assert that the Court lacks jurisdiction, including an argument that the United States has failed to satisfy the statutory prerequisites to bringing suit under 42 U.S.C. § 2000d-1 (incorporated by 42 U.S.C. § 12133). Without admitting the truth or validity of the United States’ claims that the Commonwealth is in violation of the ADA, the Commonwealth would maintain that its willingness to enter into the settlement agreement demonstrates that the United States could secure, and in fact did secure, the compliance of the Commonwealth with the ADA by voluntary means without the need to resort to litigation. Because 42 U.S.C. § 2000d-1 requires the United States to make a d etermination that it cannot secure the Commonwealth’s voluntary compliance with the ADA prior to bringing suit, it is the Commonwealth that is in the best position to challenge whether this prerequisite has been met. However, at this time, and in accordance with the settlement agreement, the Commonwealth believes it to be in its best interests to pursue its Joint Motion for Entry of the Settlement Agreement.
2

Case 3:12-cv-00059-JAG Document 75 Filed 05/21/12 Page 3 of 5 PageID# 3662
Respectfully submitted, COMMONWEALTH OF VIRGINIA
By: _________/s/__________________ Allyson K. Tysinger, Counsel Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
The Honorable Kenneth T. Cuccinelli, II Attorney General of Virginia Craig M. Burshem Interim Deputy Attorney General Allyson K. Tysinger Virginia State Bar No. 41982 Senior Assistant Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 Fax (804) 371-8718 ATysinger@oag.state.va.us
3

Case 3:12-cv-00059-JAG Document 75 Filed 05/21/12 Page 4 of 5 PageID# 3663
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of May, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Aaron Zisser Alison Barkoff Benjamin O. Tayloe, Jr. Vincent P. Herman U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Aaron.Zisser@usdoj.gov Alison.Barkoff@usdoj.gov Benjamin.Tayloe@usdoj.gov Vincent.Herman@usdoj.gov
Robert P. McIntosh Assistant United States Attorney 600 East Main Street, Suite 180 Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Gerald T. Schafer Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, Virginia 23464 rschafer@schaferlawgroup.com
Thomas B. York Donald B. Zaycosky Cordelia Elias The York Legal Group, LLC 3511 North Front Street Harrisburg, Pennsylvania 17110 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
4

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/s/ Allyson K. Tysinger, VSB #41982 Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
5

 </s> Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 1 of 21 PageID# 3665

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Defendant,

)

)

and

)

)

PEGGY WOOD, et al.,

)

)

Intervenor-Defendants.

)

)

_________________________________________ )

CIVIL ACTION NO: 3:12cv59-JAG

UNITED STATES’ OPPOSITION TO INTERVENORS’ MOTION TO DISMISS

The United States brought this action to address serious and long-standing violations of

the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., by the

Commonwealth of Virginia. The United States and the Commonwealth have agreed to a

comprehensive remedy to ensure that there are high quality community services so that people

with intellectual and developmental disabilities are not subjected to unnecessary

institutionalization and segregation, in violation of the ADA, in order to obtain the supports and

services that they need. Intervenors have challenged the authority of the United States to address

these civil rights violations and moved to dismiss this action. Intervenors do not have standing

to raise these challenges, and their assertions of jurisdictional limitations do not have merit.

Their motion should be denied.

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 2 of 21 PageID# 3666
Intervenors’ Motion to Dismiss [Dkt. No. 66] fails for the following reasons: (1) the ADA authorizes the United States Department of Justice (“Department of Justice” or “the Department”) to bring suit to remedy violations of the statute; (2) this action is not brought pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 et seq., and thus Intervenors’ assertions of a violation of CRIPA procedures are irrelevant; (3) the allegations contained in the Complaint meet the requirements of the ADA and the Federal Rules of Civil Procedure; and (4) Intervenors’ arguments regarding the Center for Medicaid and Medicare Services (“CMS”) regulations are not a grounds for dismissal and are incorrect. More fundamentally, Intervenors lack standing to pursue dismissal of the Complaint because the Complaint advances no claims against them.
I. FACTUAL BACKGROUND On August 21, 2008, the United States notified the Commonwealth that it was commencing a CRIPA investigation of the Central Virginia Training Center (“CVTC”). Complaint [Dkt. No. 1] at ¶ 11. On April 23, 2010, the United States notified the Commonwealth that it was expanding the investigation to focus on the Commonwealth’s compliance with the ADA and Olmstead v. L.C., 527 U.S. 581 (1999), with respect to individuals at CVTC. Id. at ¶ 12. During the course of the expanded investigation, the United States determined that an examination of the Commonwealth’s measures to address the rights of individuals at CVTC under the ADA and Olmstead implicated the statewide system and required a broader scope of review. Id. at ¶ 13. Accordingly, the United States examined statewide policies and practices and met with and collected information from individuals throughout the Commonwealth,
2

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 3 of 21 PageID# 3667
including persons in statewide leadership positions, providers of community services, and individuals with intellectual and developmental disabilities (“ID/DD”) receiving services in a variety of settings throughout Virginia. Id.
On February 10, 2011, the United States sent a letter of findings notifying the Commonwealth that it was violating the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia. Id. at ¶ 14. The 20-page letter reported in detail the findings of the United States’ investigation, provided the Commonwealth notice of its failure to comply with the ADA, and outlined the specific steps necessary for the Commonwealth to meet its obligations under the ADA. Id. at ¶ 14. The Commonwealth and the United States subsequently entered into negotiations to resolve the violations identified in the letter of findings. After approximately one year of negotiations, the Parties reached a settlement agreement to resolve these claims and simultaneously filed with this Court the proposed settlement agreement (“Agreement”), a Joint Motion for Entry of Settlement Agreement and Brief in Support Thereof [Dkt. No. 2], and the Complaint. Id. at ¶ 15. The Court provisionally approved the Agreement on March 6, 2012. March 6, 2012 Order [Dkt. No. 22] at 5. On March 2, 2012, Intervenors filed a Motion to Intervene [Dkt. No. 19] with the Motion to Dismiss [Dkt. No. 19-1] attached as Exhibit A. The Court deemed the Motion to Dismiss filed on May 9, 2012. May 9, 2012 Order [Dkt. No. 65] at 5; Intervenors’ Motion to Dismiss [Dkt. No. 66].
II. ARGUMENT A. The ADA Gives the United States Authority to Bring This Claim The ADA empowers the Department of Justice to bring suit to remedy violations of Title
3

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II of the ADA, and Intervenors’ arguments to the contrary must be rejected. In enacting the ADA, Congress set forth a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Specifically, Congress sought to create strong national standards to address discrimination and to ensure that the federal government played a “central role” in creating and enforcing those standards. 42 U.S.C. § 12101(b)(2) & (3). As directed by Congress, 42 U.S.C. § 12134, the Attorney General promulgated the regulations under Title II of the ADA, which, among other things, require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.103(d). The Department of Justice’s prominent enforcement role is reflected in the authorization given to the Attorney General to commence a legal action when discrimination prohibited by the ADA takes place. 42 U.S.C. § 12133; 28 C.F.R. Pt. 35, App. B, subpts. F, G.
Courts have routinely recognized the Department of Justice’s authority to bring such claims. See, e.g., United States v. City of Baltimore, Nos. JFM-09-1049, JFM-09-1766, 2012 WL 662172, *1 (D. Md. Feb. 29, 2012) (granting Department of Justice’s Motion for Summary Judgment in Title II claim); United States. v. City and Cnty. of Denver, 927 F. Supp. 1396, 1399 (D. Colo. 1996) (finding that the Department of Justice had met the requirements necessary to bring a Title II claim); McCachren v. Blacklick Valley Sch. Dist., 217 F. Supp. 2d 594, 600 (W.D. Pa. 2002).
Also, federal courts have approved settlement agreements between the Department of Justice and states resolving statewide, systemic ADA violations, similar to the provisionallyapproved Agreement before the Court in this matter. See, e.g., United States v. Georgia, No.
4

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 5 of 21 PageID# 3669
1:10cv00249 (N.D. Ga. Filed Jan. 28, 2010) (Dkt. Nos. 112 (Settlement Agreement) and 115 (Court Order)); United States v. Delaware, No. 1:11cv00591 (D. Del. Filed July 6, 2011) (Dkt. Nos. 5 (Settlement Agreement) and 6 (Court Order)). Federal courts have also recognized the Department of Justice’s authority to intervene in ADA matters brought by private parties regarding claims under Title II. See, e.g., Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, 675 F.3d 149, 162 (2d Cir. 2012) (Department of Justice’s standing in ADA/Olmstead matter “not disputed”); Lynn E. v. Lynch, 1:12-cv-53-LM, (D.N.H. Apr. 4, 2012) (granting Department of Justice’s Motion for Intervention in case regarding statewide violations of Title II of the ADA); Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 490 (E.D. Pa. 2004) (holding that Department of Justice had “separate and independent basis” supporting its motion to intervene in private ADA lawsuit).
Title II of the ADA imported the remedial provisions of the Rehabilitation Act of 1973, 29 U.S.C. § 700 et seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., (“Title VI”): “The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.” 42 U.S.C. § 12133. The Rehabilitation Act in turn incorporates the enforcement mechanism of Title VI. 29 U.S.C. § 794a. Title VI states that “Compliance with any requirement adopted pursuant to this section may be effected . . . by any other means authorized by law.” 42 U.S.C. § 2000d-1; see McCachren, 217 F. Supp. 2d at 600 (holding that “the enforcement mechanism for Title II of the ADA is Section 505 of the Rehabilitation Act, and therefore derivatively Title VI of the Civil Rights Act”). The “other means” referenced in Title VI – and incorporated into the ADA
5

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 6 of 21 PageID# 3670
through Section 504 – include the right of the United States to bring suit for violations of the law. United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984) (recognizing United States’ authority to sue to enforce Section 504 of the Rehabilitation Act, which incorporates the remedies of Title VI); Nat’l Black Police Ass’n v. Velde, 712 F.2d 569, 575 (D.C. Cir. 1983) (“Title VI clearly tolerates other enforcement schemes . . . [including] referral of cases to the Attorney General, who may bring an action against the [federal fund] recipient.”). The legislative history of the ADA is also instructive:
The Committee envisions that the Department of Justice will identify appropriate Federal agencies to oversee compliance activities for State and local government. As with section 504, these Federal agencies, including the Department of Justice, will receive, investigate, and where possible, resolve complaints of discrimination. If a Federal agency is unable to resolve a complaint by voluntary means, the Federal government would use the enforcement sanctions of section 505 of the Rehabilitation Act of 1973. . . . The Department of Justice may then proceed to file suits in Federal District Court.
S. Rep. No. 101-116, at 57-58 (1989) (describing enforcement under Title II of the proposed legislation) (emphasis added); see also H. Rep. No. 101-485, at 98 (1990) (same).
In summary, as confirmed by federal courts nationwide, Title II of the ADA authorizes the Department of Justice to enforce the statute. The ADA’s legislative history reinforces this conclusion. As this ADA claim is a federal question, this Court has subject matter jurisdiction to hear the Complaint. See 28 U.S.C. § 1331.
B. The United States Has Complied With the Procedural Requirements of the ADA The Intervenors argue that the United States has failed to comply with Title II’s requirement that “no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” Intervenors’ Memorandum
6

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of Law In Support of Their Motion to Dismiss (Int. Mem.) [Dkt. No. 67] at 9-12; 42 U.S.C. § 2000d-1; 42 U.S.C. § 12133; 29 U.S.C. § 794(a)(2).1 Intervenors’ argument must fail. The United States complied with this requirement by providing clear notice of the ADA violations to the Commonwealth in the form of a 20-page findings letter, by negotiating in good faith with the Commonwealth over the course of 11 months, and by submitting with the Commonwealth the Settlement Agreement to this Court as a proposed order after determining that compliance could not be secured short of a court-enforceable agreement.
Misapplying this provision to force the Parties into unnecessary litigation would fly in the face of the provision’s obvious purpose and common sense. The provision is designed to prevent a federal agency from initiating an adversarial proceeding against a public entity without first providing notice and attempting to resolve the matter. It is intended to avoid unnecessary litigation and encourage settlement agreements. That is exactly what happened in this case.2 Intervenors’ reading of the statute also would deny the Department of Justice, which is charged with enforcing the ADA, 42 U.S.C. § 12133, a remedy available to any private plaintiff pursuing a Title II claim: the ability to settle that claim through a court-enforceable agreement without contested litigation.

1

Contrary to the Intervenors’ assertion, Int. Mem. at 1, the Department of Justice has the

discretion to investigate ADA violations by a public entity without referral from another federal

agency. 28 C.F.R. § 35.190(e) (Department of Justice may “exercise its discretion to retain [a]

complaint for investigation under [Title II]” even if another agency also has jurisdiction); see

also 28 C.F.R. § 35.172(b) (federal agencies, including the Department of Justice, may conduct

“compliance reviews of public entities in order to ascertain whether there has been a failure to

comply with the nondiscrimination requirements of this part”).

2

These provisions are intended to protect the Commonwealth, not Intervenors. Yet the

Commonwealth agreed that this Court had jurisdiction in the Settlement Agreement itself, see

Agreement at ¶ I.H. and when it jointly with the United States sought the Settlement Agreement

to be entered as an order of the Court. [Dkt. No. 2.]

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As noted above, on February 10, 2011, the United States sent a formal 20-page letter of findings to the Commonwealth of Virginia “notifying the Commonwealth that it was violating the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia.” Complaint at ¶¶ 13-14. The letter reported in detail the findings of the Department’s investigation, provided the Commonwealth notice of its failure to comply with the ADA, and outlined the specific steps necessary for the Commonwealth to meet its obligations under the ADA. Id. Those findings are described in detail in the Complaint. Id. at ¶¶ 11-40. The United States, thus, properly informed the Commonwealth, in detail, of the violations. The United States then engaged in nearly a year of negotiations with the Commonwealth.
Further, although the voluntary compliance determination applies to circumstances where the United States has not secured a settlement, the United States nevertheless did determine that compliance cannot be secured voluntarily here. Throughout the two and a half-year investigation by the Department of Justice and the 11-month negotiations, at no time did the Commonwealth demonstrate that it was in compliance with the ADA or could achieve compliance without a court-enforceable agreement. Nor would the United States be required to accept a representation of intent to comply as sufficient to demonstrate voluntary compliance. The fact that the Commonwealth will require nearly 10 years to achieve compliance, by necessity spanning three gubernatorial administrations, demonstrates that voluntary compliance in the absence of a court order cannot be assured, as the Commonwealth has acknowledged. Agreement at VII.B; Hearing Transcript [Dkt. No. 54-4] (Feb. 23, 2012) at 45:15-23; accord Agreement I.F. (“The Parties acknowledge that the Court has jurisdiction over this case and
8

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 9 of 21 PageID# 3673
authority to enter this Settlement Agreement”). In fact, it is a virtual certainty that the Commonwealth officials who agreed to these extensive reforms will not be the individuals responsible for completing their implementation. Hearing Transcript (Feb. 23, 2012) at 42:1-13. Consequently, while the United States need not put on evidence validating its determination that voluntary compliance without a court-enforceable agreement could not be secured, the record clearly reflects and validates that determination. As a result, the United States has met the requirements of 42 U.S.C. § 2000d-1 and 28 C.F.R. § 35.174.3
C. Intervenors’ Objections Regarding CRIPA Are Inapplicable This action was brought pursuant to the ADA and not CRIPA. Intervenors’ arguments that the CRIPA rules were not followed are irrelevant to this case and not grounds for dismissal. The United States’ Complaint in this matter and the proposed Agreement are exclusively focused on the Commonwealth’s compliance with Title II of the ADA and serving individuals with developmental disabilities in the most integrated setting appropriate to their needs. Complaint at ¶¶ 5-10. CRIPA gives the United States the authority to investigate and litigate violations of the Constitution and other federal law in institutions such as prisons, jails, juvenile detention centers, and certain treatment facilities. 42 U.S.C. § 1997. CRIPA describes the process by which the United States may investigate institutional conditions, provide notice to a state regarding findings, and litigate any violations. The Complaint does not bring claims regarding conditions of confinement in the Commonwealth’s Training Centers or other institutional facilities, nor does

3

Intervenors also make an uncited reference to additional requirements regarding an

“individual complainant” and “informal resolution” of the matters complained of in the lawsuit.

Int. Mem. at 11. These are not requirements to bringing suit under Title II of the ADA. See 42

U.S.C. § 12133.

9

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it invoke CRIPA as a basis for the United States’ standing to bring suit. As a result, the CRIPA procedural requirements are not applicable to this proceeding.
The United States originally opened this investigation regarding the Central Virginia Training Center pursuant to CRIPA. Complaint at ¶ 11. However, in 2010, the United States expanded its investigation pursuant to the ADA. It is this expanded investigation upon which the United States’ 2011 findings letter and Complaint are based. Complaint at ¶ 14.
D. The Allegations Contained Within the Complaint are Sufficient and Intervenors Lack Standing to Challenge them.
Intervenors have no right or justiciable interest in this issue. All claims asserted in the Complaint are against the Commonwealth. None are asserted against the Intervenors and the Intervenors do not stand in the shoes of the Commonwealth. The Federal Rules protect defendants from being subjected to discovery and litigation when a complaint pleads no plausible basis for a claim. Iqbal, 556 U.S. at 678-79. The Commonwealth has not asserted a deficiency in the pleadings, rather it has joined the motion to enter the consent decree.
Only the party against which a claim is asserted can move to dismiss the claim; a party cannot move to dismiss a claim on behalf of another party. See Mantin v. Broad. Music, 248 F.2d 530, 531 (9th Cir. 1957) (reversing district court’s dismissal because “the moving defendants, obviously, had no standing to seek dismissal of the action as to the nonmoving defendants”); see also Ohio Cas. Ins. Co. v. Mohan, 350 F.2d 54, 57 (3d Cir. 1965) (“Ordinarily a motion to dismiss is taken as running only in favor of the party who makes the motion to dismiss.”); Quest Corp. v. Ariz. Corp. Comm’n, No. CV 08-2374, 2009 WL 3059127, at *5 (D. Ariz. Sept. 23, 2009) (“The Court simply does not believe that a non-party to a claim can move to dismiss that claim on behalf of the actual, non-moving party to the claim.”); E.E.O.C. v.
10

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 11 of 21 PageID# 3675
Brooks Run Mining Co., No. 5:08-CV-08071, 2008 WL 2543545, at *3 (S.D.W. Va. June 23, 2008). Here, the moving party is the Intervenors, but the United States has no claims against the Intervenors. The only claims pending in this litigation are the United States’ claims against the Commonwealth of Virginia, and the United States cannot expand any of its existing claims against the Commonwealth to include the Intervenors. Those claims include Title II of the ADA, which can only be asserted against a public entity, and Section 504 of the Rehabilitation Act, which can only be asserted against a recipient of federal financial assistance. Thus, the Intervenors have no standing to seek dismissal of this action on behalf of the Commonwealth, and their motion should be denied on these grounds.
Nevertheless, the claims of the United States have been adequately pled. Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides that a complaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In deciding a motion to dismiss, the court takes the allegations of the complaint as true and construes them in a manner favorable to the plaintiffs. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). To survive a motion to dismiss, the factual allegations in a complaint need only “be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v. Twombley, 550 U.S. 544, 555 (2007). A complaint that “states a plausible claim for relief” will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
In Olmstead, the Supreme Court held that a violation of Title II’s “integration mandate”
11

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 12 of 21 PageID# 3676

is a form of discrimination that violates the statute. Olmstead, 527 U.S. at 597. Specifically, under Title II of the ADA, states are required to provide community-based treatment for persons with mental disabilities when such treatment is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. at 607.
The United States’ Complaint sets forth a valid claim that the Commonwealth of Virginia violates Olmstead and the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD. The Complaint is based on the findings of a thorough investigation and examination of Virginia’s policies and practices, which included the collection of information from individuals in State leadership positions, providers of community services, and individuals with ID/DD receiving services in Virginia. Complaint at ¶ 13. The Complaint sets forth a facially plausible claim that, with respect to both the 7,000 individuals with ID/DD in Virginia that are on waitlists for Home and Community-Based Services (“HCBS”) Waivers, and the 1,100 individuals institutionalized in its five State-operated Training Centers, Virginia fails to operate its service system for people with ID/DD in compliance with the ADA and Olmstead requirements. Id. at ¶¶ 20-23.
Intervenors challenge the sufficiency of the Complaint regarding its claim that individuals currently being served in Virginia’s Training Centers and other institutional settings remain unnecessarily segregated in institutions in violation of the ADA.4 The Complaint avers that Virginia’s Training Centers are “institutions that segregate individuals with ID/DD and do not ‘enable individuals with disabilities to interact with nondisabled persons to the fullest extent

4

Intervenors do not challenge the United States claim regarding individuals at risk of

institutionalization.

12

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 13 of 21 PageID# 3677
possible.’” Id. at ¶ 36 (citing 28 C.F.R. § 35.130(d)). The Complaint alleges that “the vast majority, and likely all, of the individuals at the Training Centers can benefit from community settings with appropriate community-based services,” and alleges that individuals at Training Centers have needs that “are similar to the needs of individuals who currently are being served in the community.” Id. at ¶ 37. Moreover, the Complaint alleges that “Commonwealth officials have acknowledged that nearly all of [these individuals] could be served in the community.” Id. The Complaint further alleges that many individuals “do not object to receiving services in a more integrated setting but remain in the Training Centers due to the lack of appropriate community services and supports, a flawed discharge planning process, and deficient coordination with community providers.” Id. at ¶ 38. These factual allegations adequately plead the elements of an ADA integration mandate claim, see Olmstead, 527 U.S. at 607, and are sufficient “to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555. See Joseph S. v. Hogan, 561 F. Supp. 2d 280, 292 (E.D.N.Y. 2008) (“Plaintiffs’ allegations that individuals with mental illness are unnecessarily segregated in highly restrictive nursing homes, even though their needs could be met in a more integrated setting, and that these individuals desire to reside in a more integrated setting, are adequate to state violations of the ADA and Section 504 under Olmstead and meet Twombly’s plausibility standard.”).
Intervenors nonetheless argue that the Complaint fails to state a plausible claim for relief because it does not allege “that any treating professional has recommended discharge for any resident of Virginia’s Training Centers.” Int. Mem. at 16. The argument is without merit, as nothing in the ADA or its implementing regulations requires a plaintiff to show a determination by a state treatment professional as to whether community care is appropriate in order to make a
13

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 14 of 21 PageID# 3678

prima facie ADA claim. A plaintiff may rely on a variety of evidence to establish the appropriateness of an integrated setting, and a reasonable, objective assessment by a public entity’s treatment professional is only one way of doing so. See Joseph S., 561 F. Supp. at 29091 (rejecting the argument that the state’s treatment professionals must be the ones to make an appropriateness determination). If the Intervenors’ position were correct, a public entity would be able to indefinitely retain individuals with disabilities in institutions by either failing to evaluate them for community placement or by refusing to recommend community placement. Allowing the public entity to hold ultimate control over individuals’ rights would contradict the spirit and purpose of the Olmstead decision and the ADA.5 See, e.g., Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 258-59 (E.D.N.Y. 2009) (subsequently dismissed on other grounds) (finding that plaintiffs need not provide determinations from state treatment professionals to demonstrate that they are qualified for community placement and noting that holding otherwise would “eviscerate the integration mandate”); Long v. Benson, No. 4:08cv26, 2008 WL 4571904, at *2 (N.D. Fla. Oct. 14, 2008) (noting that the right to receive services in the community would become illusory if the state could deny the right by refusing to acknowledge the appropriateness of community placement); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 540 (E.D. Pa. 2001) (finding that states cannot avoid the

5

Olmstead’s statements on this issue do not mandate a different result. See 527 U.S. at

602, 607 (noting that “the State generally may rely on the reasonable assessments of its own

professionals” in determining whether community placement is appropriate and stating that

community-based treatment is required when “the State’s treatment professionals determine that

such placement is appropriate”). The Olmstead Court did not need to address this issue because,

as it noted, in that case the State’s treatment professionals had already determined that

community placement would be appropriate for those plaintiffs. Id. at 602-03. Thus, the Court

in Olmstead simply acknowledged one set of facts, but did not establish a legal standard that was

confined solely to those facts.

14

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 15 of 21 PageID# 3679

integration mandate by failing to make recommendations for community placement). The Complaint alleges that “the vast majority, and likely all, of the individuals at the training centers can benefit from community settings,” that the Commonwealth has itself acknowledged that “nearly all of the individuals in its training centers could be served in the community,” and that individuals currently served in the Training Centers have needs comparable to those being served in the community already. Complaint at ¶ 37. These allegations are sufficient to survive the Motion to Dismiss.
The Motion to Dismiss also attacks the sufficiency of the Complaint on the grounds that it fails to allege that Training Center residents favor discharge, and that the Complaint actually seeks to nullify residents’ choice and require the “deinstitutionalization or the closure of residential facilities.” Int. Mem. at 17-18. However, the Complaint explicitly alleges that many individuals residing in Virginia’s Training Centers “do not object to receiving services in a more integrated setting” but nonetheless remain institutionalized because of the inadequacies of Virginia’s community services system. The Complaint also alleges that Virginia’s lack of a comprehensive oversight and quality assurance system is itself the reason why some individuals are reluctant to seek community-based services. Complaint at ¶¶ 38, 40.
Finally, Intervenors invite the Court to consider the “competing claims on limited State resources,” even though Virginia has not raised a “fundamental alteration” affirmative defense under 28 C.F.R. § 35.150.6 Int. Mem. at 18-19. It is the defendant’s burden to demonstrate that the requested relief would fundamentally alter its system of services. Olmstead, 527 U.S. at 603-

6

28 C.F.R. § 35.150(a)(3) exempts any state from having to take “any action that it can

demonstrate would result in a fundamental alteration in the nature of a service, program, or

activity or in undue financial and administrative burdens.”

15

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 16 of 21 PageID# 3680

06; Frederick L., 364 F.3d at 492 n.4. Further, even if Virginia had raised the affirmative defense, dismissal at this stage would still be inappropriate. Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio 2002) (“[W]hether [the] requested relief would entail a fundamental alteration is a question that cannot be answered in the context of a motion to dismiss.”).
D. Remedying ADA violations does not violate the Center for Medicaid and Medicare Services’ Regulations
Intervenors’ arguments that the Complaint conflicts with CMS regulations are substantively divorced from its Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) arguments and are not a basis for dismissal. Int. Mem. at 19; see Fed. R. Civ. P. 12(b)(1); 12(b)(6).7 Because Intervenors’ contentions are not related to standing or the sufficiency of the pleadings in the Complaint, they should be disregarded.8
Nonetheless, there is no conflict between the Complaint and the ICF-MR regulations. Intervenors incorrectly claim that the Complaint conflicts with the ICF-MR regulations because “the relief sought by DOJ in this matter is ‘discharge’ of residents from Virginia’s Training Centers,” or, in other words, the Agreement will force Training Centers to close. Int. Mem. at 19.9 First, this Court has already stated that the “agreement does not force the closing of any

7

A CMS certified Intermediate Care Facility for the Mentally Retarded (“ICF-MR”) has

met the conditions necessary to receive Medicaid funding. 42 C.F.R. § 483.400-480. The

certification process does not examine whether individuals are in the most integrated setting

appropriate to their needs.

8

While Intervenors’ arguments are incorrect on the merits, this Court need not address

their arguments now. Their claim is not ripe because the Agreement does not require closure,

and they can raise their arguments in a separate proceeding should the Commonwealth decide to

close a Training Center.

9

Intervenors also argue that “The Complaint fails to even acknowledge the existence of

these [ICF-MR] regulations.” Int. Mem. at 20. This is not relevant to a motion to dismiss under

12(b)(1) or 12(b)(6). The Complaint does not, and need not, cite the myriad of statutes and

regulations that are relevant to the lives of individuals with ID/DD. The Complaint cites the

16

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 17 of 21 PageID# 3681

institution or Training Center in Virginia.” March 6, 2012 Order [Dkt. No. 22] at 2.10 Moreover, even if the Commonwealth decides to close a facility, that does not violate the ICFMR regulations. The ICF-MR regulations state that a person living in an ICF-MR may be discharged for “good cause.” 42 CFR § 483.440 (b)(4-5). Further, the ICF-MR regulations do not bar people who live in an ICF-MR from being discharged, provided that the facility follows proper discharge procedure. Id.11 Should the Commonwealth de-certify and close a Training Center, that would qualify as good cause. Cf. O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 775, 785-86 (1980) (no right to remain in decertified facility). The vast efforts states have undertaken during the last 40 years to expand community-based service opportunities, which have reduced institutional populations and increased facility closures, were not carried out in violation of the ICF-MR regulations.12
Furthermore, the ICF-MR regulations cannot justify discrimination against people with disabilities. Once a state has elected to provide services to individuals with ID/DD, the state

statutes and regulations that the United States alleges the Commonwealth is violating.

10

See also May 9, 2012 Order [Dkt. No. 65] at 3 (“While it does not explicitly require the

closing of the Training Centers, the Agreement may inevitably lead to that result.”).

11 Intervenors also invoke discharge provisions from a CMS guidebook, the “State

Operations Manual,” but these are not part of the federal regulations. Int. Mem., at 19-10. These

are interpretive guidelines created by CMS for surveyors who inspect ICF-MRs to determine if

they meet the conditions for continued funding from CMS. See CMS, “State Operations Manual:

Appendix J – Guidance for Surveyors: Intermediate Care Facilities for Persons With Mental

Retardation,” available at http://www.cms.gov/Regulations-and-

Guidance/Guidance/Manuals/downloads//som107ap_j_intermcare.pdf (last checked April 29,

2012). 12 See Decl. of Robert Gettings [Dkt. No. 52-1]. Between 1960 and 1979, the states,

collectively, closed twelve large, public residential facilities for persons with ID/DD. In

contrast, 155 state institutions or special units were closed between 1980 and 2003. Id. at 3.

Thirteen states have no large state operated ICF-MRs, and two states have no ICF-MRs at all.

Id. at 4.

17

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must administer those services in accordance with the ADA. Haddad v. Arnold, 784 F. Supp. 2d 1284, 1302 (M.D. Fla. 2010); see also Doe v. Chiles, 136 F.3d 709, 714 (11th Cir. 1998) (when a state chooses to provide an optional Medicaid service, it must do so in accordance with the requirements of federal law); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003) (even though a waiver program is optional, a state may not, under Title II of the ADA, amend optional programs in such a way as to violate the integration mandate).
IV. CONCLUSION This Court should deny Intervenors’ Motion to Dismiss because: (1) the ADA and its interpreting case law set out the United States’ standing to bring an ADA claim; (2) this matter was sufficiently pled pursuant to the ADA, and, as a result, Intervenors’ CRIPA related arguments are inapplicable; (3) the United States has complied with all of the ADA’s statutory prerequisites; (4) Intervenors’ arguments regarding the ICF-MR regulations are not a grounds for dismissal and are incorrect; and (5) Intervenors lack standing to challenge the Complaint. For the foregoing reasons, the United States respectfully requests that this Court deny Intervenors’ Motion to Dismiss.
18

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Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 20 of 21 PageID# 3684
CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of May , 2012, I will electronically file the foregoing THE UNITED STATES’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION FOR INTERVENTION with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson Kurzmann Tysinger Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-2071 atysinger@oag.state.va.us
Gerard Thomas Schafer Schafer Law Group 5265 Providence Rd Suite 303 Virginia Beach, VA 23464 rschafer@schaferlawgroup.com
Cordelia Elias The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 celias@yorklegalgroup.com
Donald Zaycosky The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 dzaycosky@yorklegalgroup.com
Thomas York The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 tyork@yorklegalgroup.com
/ / / /
/ / / /
20

Case 3:12-cv-00059-JAG Document 76 Filed 05/21/12 Page 21 of 21 PageID# 3685

/ / / /
/ / / /
And I hereby certify that I will mail the document by U.S. mail to the following nonfiling user(s):

Virginia Attorney
600 Richm Telephone: Facsim Robert.McIntosh@usdoj.gov

/s/ Robert P. McIntosh
Bar Number 66113 for the United States of America United States Attorney’s Office East Main Street, Suite 1800 ond, Virginia 23219
(804) 819-5400 ile: (804) 819-7417

21

 </s> Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 1 of 9 PageID# 4146

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

Civil Action No. 3:12cv59-JAG

COMMONWEALTH OF VIRGINIA, Defendant,

and

PEGGY WOOD, et al.9

Intervenor-Defendants.

MEMORANDUM ORDER

THIS MATTER is before the Court on the Intervenor-Defendants' Motion to Dismiss
(Dk. No. 66) filed May 9, 2012. The facts and legal contentions are adequately presented in the materials for the Court, and oral argument would not aid in the decisional process. For the

reasons stated herein, the motion to dismiss is DENIED.
On January 26, 2012, the plaintiff-United States of America filed its complaint (the "Complaint") against the defendant-Commonwealth of Virginia ("Commonwealth"), alleging

violations of Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§
12131-12134, through the unnecessary institutionalization of individuals with intellectual and developmental disabilities ("ID/DD") in Virginia. (Compl. f 14.); Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999). The parties simultaneously filed a consent decree (Dk. No. 2-2, the "Agreement") which established a ten-year plan for the expansion of "the availability of existing community services to support individuals with ID/DD." (Joint Mot. for Entry of Agreement 3.) The Complaint and Agreement represent the culmination of more than three

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 2 of 9 PageID# 4147
years of investigation and negotiation between the parties. In August of 2008, the United States had begun an investigation of the Central Virginia Training Center for potential violations of the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997, et seq. CRIPA protects persons with ID/DD from civil rights violations related to institutional conditions and
treatment.
As information concerning all of Virginia's facilities was collected, the Department of Justice ("DOJ") realized the need to expand its investigation to resolve broader, more fundamental deficiencies. Such deficiencies implicated the ADA and necessitated the instant
suit.
On March 2, 2012, a group of Training Center residents (the "Intervenor-Defendants" or "Intervenors") filed a motion to intervene in the litigation, contending that their rights were implicated by the Complaint and Agreement. The Court permitted intervention by order on May 9, 2012. Simultaneously, the Court docketed the Intervenors' motion to dismiss attached to their motion to intervene. That motion is now ripe for decision. Ultimately, the Intervenors claim this Court does not have subject matter jurisdiction because the United States lacks standing to enforce the ADA, and even assuming standing, the plaintiff failed to follow the procedural prerequisites for filing a claim under Title II of the statute. See Fed. R. Civ. P. 12(b)(1). Alternatively, the Intervenors move for dismissal of the Complaint under Rule 12(b)(6) for failure to state a plausible claim. As to all of the Intervenors' arguments, the Court disagrees. The claims in the instant motion are either incorrect, inappropriate at this juncture, or both.
A. Motion to Dismiss pursuant to Federal Rule of Procedure 12(b)(1)
A motion under Rule 12(b)(1) may attack subject matter jurisdiction in two ways. The Intervenors may contend either that the Complaint fails to allege facts upon which subject matter

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 3 of 9 PageID# 4148
jurisdiction can be based, or that the jurisdictional facts alleged in the Complaint are untrue. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In both situations, the burden is on plaintiff, as the party assertingjurisdiction, to prove that federal jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697 F.2d at 1219. In the first type of 12(b)(1) motion to dismiss, "the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection ashe would receive undera Rule 12(b)(6) consideration." Id. The Court construes all facts in favor of the plaintiff, and it relies solely on the pleadings, disregarding affidavits or other materials. Id. Alternatively, the Intervenors may argue that the jurisdictional facts in the complaint are simplynot true. This type of Rule 12(b)(1) motion attacks "the existence of subject matter jurisdiction in fact, quite apart
from any pleadings." White v. CMA Const. Co., Inc., 947 F. Supp. 231, 233 (E.D. Va. 1996) (quoting Mortensen v. First Fed. Sav. and Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977). When presented with this type of argument, no presumption of truthfulness attaches to the allegations in the Complaint, and the Court must weigh the evidence presented and evaluate for itself the merits of the jurisdictional claims. Arthur Young & Co. v. City of Richmond, 895 F.2d 967, 971
n.4 (4th Cir. 1990); White, 947 F. Supp. at 233.
Although somewhat unclear, the Court will treat the Intervenors' motion pursuant to Fed. R. Civ. P. 12(b)(1) as the second type. Nevertheless, their arguments fail to demonstrate a lack
of subject matter jurisdiction. As a threshold matter, the United States has the authority to initiate legal action to
enforce Title II of the ADA.1 Courts have routinely recognized or implicitly supported this
1The Court, therefore, rejects the Intervenors' claim that the United States' sole enforcement
mechanism to resolve the alleged violations is CRIPA. That argument ignores statutory language, legal precedent, and clear Congressional intent. The Complaint alleges fundamental, statewide ADA deficiencies, not CRIPA violations at Virginia's institutions for ID/DD.

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 4 of 9 PageID# 4149
authority. See, e.g., United States v. City ofBaltimore, Nos. JFM-09-1049, JFM-09-1766, 2012 WL 662172, *1 (D. Md. Feb. 29, 2012); McCachren v. Blacklick Valley Sch. Dist., 217 F. Supp. 2d 594, 600 (W.D. Pa. 2002); United States, v. City and Cnty. of Denver, 927 F. Supp. 1396,
1399 (D. Colo. 1996).2
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. In its enactment, Congress set forth a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). As such, Congress specifically sought to ensure that the federal
government played a "central role" in creating and enforcing those standards. 42 U.S.C. § 12101(b)(2) & (3); seealso 42 U.S.C. § 12133; 28 C.F.R. Pt. 35, App. B, subpts. F, G (providing the Attorney General with the authority to commence legal action at the occurrence of ADAimplicating discrimination). Although Title II coverage is not dependent onthe receipt of federal funds, the remedies are borrowed from existing statutes prohibiting discrimination in federally assisted programs and activities. See City & County of Denver, 927 F. Supp. at 1399-1400; Adams v. Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972). The relevant provision states: "The
2The legislative history of the ADA also supports DOJ enforcement:
The Committee envisions that the Department of Justice will identify appropriate Federal agencies to oversee compliance activities for State and local government. As with section 504, these Federal agencies, including the Department of Justice, will receive, investigate, and where possible, resolve complaints of discrimination. If a Federal agency is unable to resolve a complaint by voluntary means, the Federal government
would use the enforcement sanctions of section 505 ofthe Rehabilitation Act of 1973....
The Department of Justice may then proceed to file suits in Federal District Court. S. Rep. No. 101-116, at 57-58 (1989).

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remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title." 42 U.S.C. § 12133.
In turn, section 794a ofTitle 29, § 505 of the Rehabilitation Act provides: "The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d etseq.] shall be available to any person aggrieved " 29 U.S.C. § 794a(2).
Title VI provides: "Compliance ... maybe effected (1) by the termination of or refusal to grant or to continue [federal financial] assistance ... or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." 42
U.S.C. §2000d-l.
Courts have interpreted the words "by anyother means authorized by law" to mean that a funding agency, after finding a violation and determining that voluntary compliance is not forthcoming, could refer a matter to the DOJ to enforce the statute's nondiscrimination requirements in court. City & County ofDenver, 927 F. Supp. at 1399-1400; see, e.g., National BlackPolice Ass'n, Inc. v. Velde, 229 U.S. App. D.C. 255, 712 F.2d 569, 575 & n.33 (D.C. Cir. 1983), cert, denied, 466 U.S. 963 (1984); United States v. Marion County Sch. Dist., 625 F.2d
607, 612 & n.12 (5th Cir. 1980), cert, denied, 451 U.S. 910 (1981).
Here, through extensive investigation, the United States alleged significant violations of the ADA by Virginia's current framework for ID/DD care. Pursuant to its statutory enforcement power, the DOJ approached the Commonwealth to secure its voluntary compliance and remedy the identified violations. See 28 C.F.R. § 35.174 ("If the public entity declines to enter into

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 6 of 9 PageID# 4151
voluntary compliance negotiations or if negotiations are unsuccessful, the designated agency shall refer the matter to the Attorney General with a recommendation for appropriate action.") That process resulted in a 20-page findings letter and year-long negotiation between the parties. The letter reported the DOJ investigation findings, provided notice to the Commonwealth of its failure to comply with the ADA, and outlined the specific steps necessary for compliance with its ADA obligations. (Compl. f 14.) Ultimately, the negotiation period culminated in the
Agreement—a consent decree that represents the Commonwealth's voluntary compliance and encapsulates the parties' concerted efforts to resolve the ADA violations. See 28 C.F.R. § 50.3(c), I.C. The fact that the parties petitioned this Court to endorse the Agreement is irrelevant to the voluntary-compliance calculus. The United States recognized certain ADA violations, approached the Commonwealth with them, negotiated a complex, 10-year plan for remedy purposes, and now seeks to memorialize that long-term compliance plan with a consent decree. See Adams, 351 F. Supp. at 641 ("The underlying thrust of the statute [§ 20Q0d-l of Title VI]
requires the agency involved ... to secure compliance by voluntary means . . . [which] involves
negotiation, and negotiation takes time.").
As such, the Court finds that the plaintiff has the authority to enforce the ADA in the manner it has pursued in this case. It also finds that the procedural prerequisites of voluntary compliance under 42 U.S.C. § 2000d-l have been met. Finally, the Court determines that it has proper subject matter jurisdiction over this matter.
B. Motion to Dismiss pursuant to Federal Rule of Procedure 12(b)(6)
Next, the Intervenors move for dismissal of the Complaint on the basis that it fails to assert sufficient facts to state a plausible claim under the ADA. Among other things, the Intervenors argue that the Complaint ignores the role of treating professionals under Olmstead

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 7 of 9 PageID# 4152
and fails to allege that Training Center residents favor discharge.3 These claims ignore the plain
language of the Complaint and Agreement. The standard of review on a 12(b)(6) motion is well-established. A motion to dismiss for
failure to state a claim upon which relief can be granted challenges the legal sufficiency of a claim, not the facts supporting it. Fed R. Civ. P. 12(b)(6); Goodman v. Praxair, Inc., 494 F.3d 458,464 (4th Cir. 2007). Thus, in deciding a Rule 12(b)(6) motion, a court must accept all of the factual allegations in the Complaint, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam), as well as provable facts consistent with those allegations, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and view those facts in the light most favorable to the plaintiff. Christopher v. Harbury, 536 U.S. 403, 406 (2002). Although a motion to dismiss challenges only the legal sufficiency of a claim, Rule 8(a)(2) requires a plaintiff to allege facts that show that its claim is plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). As the Fourth Circuit has explained, "'naked assertions' of wrongdoing necessitate some 'factual enhancement' within the complaint to cross 'the line between possibility and plausibility of entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557). The Court need not accept legal conclusions couched as factual allegations, Twombly, 550 U.S. at 555, or"unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Ultimately, the Complaint must contain factual allegations sufficient to apprise a defendant of "what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
3 These are the Intervenors' primary contentions. None of their arguments pursuant to Rule
12(b)(6) warrant dismissal of the Complaint at this stage. Furthermore, nothing in the ADA or its regulations requires a treating professional's determination to be an element of a prima facie
ADA claim.

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Here, the Complaint is well-pleaded and states a plausible claim for ADA violations as interpreted by Olmstead. Title II of the ADA requires public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.103(d). Under Olmstead, violations of this integration mandate qualify as ADA discrimination. See 527 U.S. at 597. In its Complaint, the United States alleges that the Commonwealth's current system houses approximately 1,100 individuals with ID/DD in its five Training Centers while nearly 6,000 disabled Virginians remain on waitlists to receive necessary services. (Compl. ffi[ 20-23.) Three thousand of these waitlist individuals are classified as "urgent," creating a greater risk of unnecessary institutionalization. (Id. f 28.) Citing extensive investigation and analysis, the Complaint concludes that the Commonwealth's current set-up poses a significant risk of unnecessary institutionalization, thereby threatening the well-being of disabled Virginians. (Id. ffl| 34-40.)
Specifically, the Complaint contends that "the vast majority, and likely all, of the individuals at the Training Centers can benefit from community settings with appropriate community-based services," (Id. f 37.), and "[m]any individuals do not object to receiving services in a more integrated setting but remain in the Training Centers due to the lack of appropriate community services and supports, a flawed discharge planning process, and deficient
coordination with community providers." (Id. ^[ 38.) Assuming these allegations as true,
violations of the ADA are readily apparent. In short, the Court finds the Intervenors' motion under Rule 12(b)(6) to be an attempt to
decide the merits of this litigation at an improper juncture.4 The Complaint states a prima facie
4 Similarly, the Court rejects the Intervenors' argument that the Complaint violates the ICF/MR
regulations promulgated by the Centers for Medicare and Medicaid Services. Despite being an improper consideration on a motion to dismiss, this argument assumes the Agreement's closing of Virginia's Training Centers, which is false, and ignores the ADA's role in holding states

Case 3:12-cv-00059-JAG Document 90 Filed 06/05/12 Page 9 of 9 PageID# 4154 case for violations of the ADA's integration mandate, citing sufficient facts to allege a plausible
claim.
Accordingly, the Court hereby DENIES the Intervenor-Defendants' Motion to Dismiss
(Dk. No. 66).
It is so ORDERED.
Let the Clerk send a copy of this Memorandum Orderto all counsel of record.
Date: June 4, 2012
Richmond, VA
accountable for providing previously-elected services to individuals with ID/DD. See Haddad v. Arnold, 784 F. Supp. 2d 1284, 1302 (M.D. Fla. 2010).

 </s> Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 1 of 42 PageID# 4208

Cluunbtnof
JohnA.Gibncy.Jr.
United States District Judge

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA 701 East Broad Street. Suite 6014
RICHMOND. VIRGINIA 23219-3S28
June 13,2012

(804) 916-2870

Robert P. Mcintosh, Esquire United States Attorney's Office
600 E. Main Street, 18th Floor
Richmond, VA 23219
Alison Barkoff, Esquire BenjaminO. Tayloe, Jr., Esquire U. S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW
Room 5537
Washington, DC 20530
Allyson K. Tysinger, Esquire Office of the Attorney General
900 E. Main Street
Richmond, VA 23219
Thomas York, Esquire The York Legal Group LLC
3511 North Front Street
Harrisburg, PA 17110
Re: United States v. Commonwealth of Virginia
Civil Action No. 3:12CV00059
Counsel:
Attached please find a settlement agreement with suggested language for the changes I
mentioned in the hearing last week. The changes are redlined.
I apologize for the errors in formatting—I was unable to figure out how you had
formatted the document. I hope thatone of you can format these changes correctly.
I suggest that the United States and the Commonwealth check with their respective clients to determine preliminarily whether the changes are acceptable. If so, please finalize the document pending formal approval by the Governor and anyone who needs to approve it for the United States. Please also forward any new or revised drafts to counsel for the intervenors, and, to the extent possible, accommodate the intervenors' needs. In other words, if Mr. Yorkdoes not think the agreement makes clear what I said in court, please take his concerns into account.

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 2 of 42 PageID# 4209
Page Two June 13,2012
As decided in court, we will discuss this by conference call on June 29, 2012.
Anticipating approval, I request the United States to draft an order approving and adopting the
settlement agreement.
Thank you for your cooperation in this regard.
Sincerely,
(Ut-
John A.. Gibney, Jr.
JAGjr/s
Attachment

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 3 of 42 PageID# 4210

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA,
Defendant.

CIVIL ACTION NO:

SETTLEMENT AGREEMENT
I. Introduction
The Commonwealth of Virginia ("the Commonwealth") and the United States (together, "the Parties") are committed to full compliance with Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999). This Agreement is intended to ensure the Commonwealth's compliance with the ADA and Olmstead, which require that, to the extent the Commonwealth offers services to individuals with intellectual and developmental disabilities, such services shall be provided in the most integrated setting appropriate to meet their needs. Accordingly, throughout this document, the Parties intend that the goals of community integration, self-determination, and quality services will be achieved.
On August 21,2008, the United States Department of Justice ("United States") initiated an investigation of Central Virginia Training Center ("CVTC"), the largest of Virginia's five state-operated intermediate care facilities for persons with intellectual and developmental disabilities ("ICFs"), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. On April 21, 2010, the United States notified the Commonwealth that it was expanding its investigation under the ADA to focus on the Commonwealth's compliance with the ADA'S integration mandate and Olmstead with respect to individuals at CVTC. During the course of the expanded investigation,
however, it became clear that an examination of the Commonwealth's measures to address the rights of individuals at CVTC under the ADA and Olmstead implicated the statewide system for serving individuals with intellectual and developmental disabilities and required a broader scope of review. Accordingly, the policies and practices that the United States examined in its expanded investigation were statewide in scope and application. On February 10, 2011, the United States issued its findings, concluding that the Commonwealth fails to provide services to individuals with intellectual and
1

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 4 of 42 PageID# 4211
developmental disabilities in the most integratedsetting appropriateto their needs as required by the ADA and Olmstead.
C. The Commonwealth engaged with the United States in open dialogue about the allegations and worked with the United States to resolve the alleged violations of the ADA arising out of the Commonwealth's provision of services for individuals with intellectual and developmental disabilities.
D. In order to resolve all issues pending between the Parties without the expense, risks, delays, and uncertaintiesof litigation, the United States and the Commonwealth agree to the terms of this Settlement Agreement as stated below. This Agreement resolves the United States' investigation of CVTC, as well as its broader examination of the Commonwealth's compliance with the ADA and Olmstead with respect to individuals with intellectual and developmental disabilities.
E. By entering into this Settlement Agreement, the Commonwealthdoes not admit to the truth or validity of any claim made against it by the United States.
F. The Parties acknowledge that the Court has jurisdiction over this case and authority to enter this Settlement Agreement and to enforce its terms as set forth herein.
G. No personor entity is intendedto be a third-party beneficiary of the provisions of this Settlement Agreementfor purposes of any other civil, criminal, or administrativeaction, and, accordingly, no person or entity may assert any claim or right as a beneficiary or protectedclass under this SettlementAgreement in any separateaction. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the Commonwealth or their officials, employees, or agents.
H. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; and 42 U.S.C. §§ 12131-12132. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
II. Definitions
A. "Developmental disability" means a severe, chronic disability of an individual that: (1) is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) is manifested before the individual attains age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more of the following areas of major life activity: (a) self-care; (b) receptive and expressive language; (c) learning; (d) mobility; (e) self-direction; (f) capacity for independent living; (g) economic self-sufficiency; and (5) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. 42 U.S.C. § 15002.
B. "Intellectual disability" means a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. This disability originates before the age of 18. An intellectual disability is a type of developmental disability.

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 5 of 42 PageID# 4212

Home and Community-Based Services Waivers ("HCBS Waivers") means the program approved by the Centers for Medicare and Medicaid Services ("CMS") for the purpose of providing services in community settings for eligible persons with developmental disabilities who would otherwise be served in ICFs. For purposes of this Settlement Agreement, "HCBS Waivers" includes the Intellectual DisabilitiesWaiver ("ID Waiver") and the Individual and Family Developmental Disabilities Support Waiver ("DD Waiver"), or any other CMS approved waivers that are equivalent to the ID or DD Waivers that may be created after the execution of this Agreement.

Jndividual and family supports are defined as a comprehensiveand coordinated set of strategiesthat are designedto ensure that families who are assisting family memberswith intellectual or developmental disabilities ("ID/DD") or individuals with ID/DD who live independently have access to person-centered and family-centered resources, supports, services and other assistance. Individual and family supports are targeted to individuals not already receiving services under HCBS waivers, as defined in Section II.C above. The family supports provided under this Agreementshall not supplant or in any way limit the availability of services provided through the Elderly or Disabled with Consumer Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment
("EPSDT"), or similar programs.

As used in this Agreement, the term Authorized Representative meansa person

*

authorized to make decisions about health care or residence on behalf of an individual

who lacks the capacity to consent or make a knowing decision.

1. The Authorized Representative shall be recognized by the Commonwealth (which may
be delegated to local care providers') from the following, ifavailable:

a. An attorney-in-fact who is currently empowered to consent or authorize the disclosure under the terms of a durable power of attorney;

b. A health care agent appointed by the individual under an advance directive or power of attorney in accordance with the laws of Virginia; or

c. A legal guardian of the individual, or if the individual is a minor, a parent with legal custody of the minor or other person authorized to consent to treatment
pursuant to $ 54.1-2969 A of the Code of Virginia.

2. If an attorney-in-fact, health care agent or legal guardian is not available, the Commonwealth or its designee shall designate a substitute decision maker as authorized representative in the following order of priority:

a. The individual's family member as designated by the individual, unless doing so is clinically contraindicated.

b. If the individual does not have a preference, the best qualified person shall be selected according to the following order of priority:

[ Formatted: indent: Hanging: 0.25"

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 6 of 42 PageID# 4213

i. A spouse:
ii. An adult child:
iii. A parent:
iv. An adult brother or sister: or
v. Any other relative of the individual.
c. Next friend of the individual. If no other person specified above is available
and willing to serve as authorized representative, the Commonwealth may designate a next friend of the individual, who has either:
i. Shared a residence with the individual: or
ii. Had regular contact or communication with the individual and
provided significant emotional, personal, financial, spiritual, psychological, or other support and assistance to the individual.
3. No director, employee, or agent of a provider of services may serve as an authorized
representative for any individual receiving services delivered by that provider unless the authorized representative is a relative or the legal guardian.
©t
Ill.Serving Individuals with Developmental Disabilities In the Most Integrated Setting A. To preventthe unnecessary institutionalization of individuals with ID/DD and to provide them opportunities to live in the most integrated settings appropriate to their needs consistent with their informed choice, the Commonwealth shall develop and provide the community services described in this Section.
B. Target Population:
1. The target population of this Agreement shall include individuals with ID/DD who meet any of the following additional criteria:
a. are currently residing at any of the Training Centers;
b. who (i) meet the criteria for the wait list for the ID waiver, or (ii) meet the criteria for the wait list for the DD waiver; or
c. currently reside in a nursing home or ICF.
2. The Commonwealth shall not exclude any otherwise qualifying individual from the target population due to the existence of complex behavioral or medical needs or of co-occurring conditions, including but not limited to, mental illness, traumatic brain injuries, or other neurological conditions.

Formatted: Space After: 0 pt, Don't add space between paragraphs of the same style, No bullets or numbering
Formatted: Indent: Left: 0.5", Space After: 0 pt, Don't add space between paragraphs of the
same style, Nobullets or numbering

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 7 of 42 PageID# 4214
3. Individuals shall remain in the target population if they receive HCBS waiver services or individual and family supports under this Agreement.
4. Individuals who are otherwise in the target population and who have been released from forensic status or placed on conditional release by a court shall not be excluded from the target population solely on the basis of their former forensic status or current
conditional release status.
5. Inclusion in the target population does not guarantee or create a right to receipt of
services.
C. Enhancement of Community Services 1. By June 30,2021, the Commonwealth shall create 4,170 waiver slots for the target population, to be broken down as follows:
a. The Commonwealth shall create a minimum of 805 waiver slots to enable
individuals in the target population in the Training Centers to transition to the community according to the following schedule: i. In State Fiscal Year 2012, 60 waiver slots ii. In State Fiscal Year 2013, 160 waiver slots iii. In State Fiscal Year 2014, 160 waiver slots iv. In State Fiscal Year 2015, 90 waiver slots v. In State Fiscal Year 2016, 85 waiver slots vi. In State Fiscal Year 2017, 90 waiver slots vii. In State Fiscal Year 2018, 90 waiver slots viii. In State Fiscal Year 2019, 35 waiver slots ix. In State Fiscal Year 2020, 35 waiver slots b. The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities), according to the following schedule: i. In State Fiscal Year 2012, 275 waiver slots ii. In State Fiscal Year 2013, 225 waiver slots, including 25 slots prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 8 of 42 PageID# 4215
iii. In State Fiscal Year 2014, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
iv. In State Fiscal Year 2015, 250 waiver slots, including 25 slots prioritized for individualsunder 22 years of age residing in nursing homes and the largest
ICFs
v. In State Fiscal Year 2016, 275 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
vi. In State Fiscal Year 2017, 300 waiver slots vii. In State Fiscal Year 2018, 325 waiver slots viii. In State Fiscal Year 2019, 325 waiver slots ix. In State Fiscal Year 2020, 355 waiver slots x. In State Fiscal Year 2021, 360 waiver slots The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than
intellectualdisabilities in the target populationwho are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities), according to the following schedule:
i. In State Fiscal Year 2012, 150 waiver slots ii. In State Fiscal Year 2013, 25 waiver slots, including 15 prioritized for
individuals under 22 years of age residing in nursing homes and the largest
ICFs
iii. In State Fiscal Year 2014, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
iv. In State Fiscal Year 2015, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
v. In State Fiscal Year 2016, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 9 of 42 PageID# 4216
vi. In State Fiscal Year 2017, 25 waiver slots, including 10 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
vii. In State Fiscal Year 2018, 25 waiver slots, including 10 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
viii. In State Fiscal Year 2019, 25 waiver slots ix. In State Fiscal Year 2020, 50 waiver slots x. In State Fiscal Year 2021, 75 waiver slots d. If the Commonwealth creates more waiver slots than are required in Sections
Ill.C.l.a, b, or c above for a particular fiscal year, the number of slots created above the requirement shall be counted towards the slots required to be created in the subsequent fiscal year in the relevant Section. The Commonwealth shall create an individual and family support program for
individuals with ID/DD whom the Commonwealth determines to be most at risk of
institutionalization, according to the following schedule: a. In State Fiscal Year 2013, a minimum of 700 individuals supported b. In State Fiscal Year 2014, a minimum of 1000 individuals supported c. In State Fiscal Year 2015, a minimum of 1000 individuals supported d. In State Fiscal Year 2016, a minimum of 1000 individuals supported e. In State Fiscal Year 2017, a minimum of 1000 individuals supported f. In State Fiscal Year 2018, a minimum of 1000 individuals supported g. In State Fiscal Year 2019, a minimum of 1000 individuals supported h. In State Fiscal Year 2020, a minimum of 1000 individuals supported i. In State Fiscal Year 2021, a minimum of 1000 individuals supported If the Commonwealth substantially changes or amends its ID or DD waivers, the Parties shall meet within 15 days of final approval from CMS to determine if any provisions of this Agreement should be amended. The Parties agree that under any new terms, at least as many individuals in each category in Sections Ill.C.l.a, b, and c and C.2 above shall receive HCBS waivers and individual and family supports under the Agreement. If the Parties cannot reach agreement within 90 days, the Court shall resolve the dispute. With the consent of the United States and the Independent Reviewer, the Commonwealth may re-allocate any unused waiver slot from one category of

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 10 of 42 PageID# 4217
III.C.l .a-c to another in any State Fiscal Year covered by this Agreement.
5. Case Management a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. b. For the purposes of this agreement, case management shall mean: i. Assembling professionals and nonprofessionalswho provide individualized
supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans ("ISP") that are individualized, person-centered, and meet the individual's needs; ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and iii. Monitoringthe ISP to make timely additionalreferrals,service changes, and amendments to the plans as needed. c. Case management shall be provided to all individualsreceiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers. d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
6. Crisis Services
a. The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall: i. Provide timely and accessible support to individuals with intellectual and developmental disabilities who are experiencingcrises, including crises due to behavioral or psychiatric issues, and to their families; ii. Provide services focused on crisis prevention and proactive planning to avoid potential crises; and iii. Provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual from his or her current placement whenever practicable.
8

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b. The crisis system shall include the following components:
i. Crisis Point of Entry A. The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. Where necessary, the crisis hotline will dispatch at least one mobile crisis team member who is adequately trained
to address the crisis.
B. By June 30, 2012, the Commonwealth shall train CSB Emergency Services personnel in each Health Planning Region ("Region") on the new crisis response system it is establishing, how to make referrals, and the
resources that are available.
ii. Mobile crisis teams
A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.
B. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual's home or other community setting.
C. Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual
with ID/DD comes into contact with law enforcement.
D. Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.
E. Mobile crisis teams shall provide local and timely in-home crisis support for up to 3 days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator.
F. By June 30, 2012, the Commonwealth shall have at least one mobile crisis team in each Region that shall respond to on-site crises within three hours.
G. By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.
H. By June 30, 2014, the Commonwealth shall have a sufficient number of mobile crisis teams in each Region to respond on site to crises as follows:

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 12 of 42 PageID# 4219
in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time.
iii. Crisis stabilization programs A. Crisis stabilization programs offer a short-term alternative to institutionalization or hospitalization for individuals who need inpatient
stabilization services.
B. Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement and if that is not possible, has then attempted to locate another communitybased placement that could serve as a short-term placement.
C. If an individual receives crisis stabilization services in a community-based placement instead of a crisis stabilization unit, the individual may be given the option of remaining in the placement if the provider is willing and has capacity to serve the individual and the provider can meet the needs of the individual as determined by the provider and the individual's case
manager.
D. Crisis stabilization programs shall have no more than six beds and lengths of stay shall not exceed 30 days.
E. With the exception of the Pathways Program operated at Southwestern VirginiaTraining Center ("SWVTC"), crisis stabilization programsshall not be located on the grounds of the Training Centers or hospitals with inpatient psychiatric beds. By July 1, 2015, the Pathways Program at SWVTC will cease providing crisis stabilization services and shall be replaced by off-site crisis stabilization programs with sufficient capacity to meet the needs of the target population in that Region.
F. By June 30, 2012, the Commonwealthshall develop one crisis stabilization program in each Region.
G. By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.
7. Integrated Day Activities and Supported Employment a. To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment. b. The Commonwealth shall maintain its membership in the State Employment Leadership Network ("SELN") established by the National Association of State
10

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Developmental Disability Directors. The Commonwealthshall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy. The Employment First policy shall, at a minimum, be based on the following principles: (1) individual supported employment in integratedwork settings is the first and priority service option for individualswith intellectual or developmental disabilities receiving day program or employment services from or funded by the Commonwealth; (2) the goal of employment services is to support individuals in integrated work settings where they are paid minimum or competitive wages; and (3) employment services and goals must be developed and discussed at least annually through a person-centered planning process and included in ISPs. The Commonwealth shall have at least one employment service coordinator to monitor implementation of Employment Firstpractices for individuals in the target population. i. Within 180 days of this Agreement, the Commonwealthshall develop, as part
of its Employment First policy, an implementation plan to increaseintegrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and otherintegrated day activities. The plan will be underthe directsupervision of a dedicated employment service coordinator for the
Commonwealth and shall:
A. Provideregional trainingon the Employment Firstpolicy and strategies throughout the Commonwealth; and
B. Establish, for individuals receiving services through the HCBS waivers:
1. Annual baseline information regarding: a. The number of individuals who are receiving supported employment;
b. The length of time people maintain employment in integrated work
settings; c. Amount of earnings from supported employment; d. The number of individuals in pre-vocationalservices as defined in
12 VAC 30-120-211 in effect on the effective date of this
Agreement; and e. The length of time individuals remain in pre-vocational services.
2. Targets to meaningfully increase: a. The number of individuals who enroll in supported employment each year; and
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Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 14 of 42 PageID# 4221
b. The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.
c. Regional Quality Councils, described in Section V.D.5 below, shall review data regarding the extent to whichthe targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly to the Regional Quality Councils and the Quality Managementsystem by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to
take additional measures to further enhance these services.
d. The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
8. Access and Availability of Services
a. The Commonwealth shall providetransportation to individuals receiving HCBS waiverservices in the target population in accordance with the Commonwealth's
HCBS Waivers.
b. The Commonwealth shall publishguidelines for families seekingintellectual and developmental disability services on howand where to apply for and obtain services. The guidelineswill be updated annually and will be providedto appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
9. The Commonwealth has made public its long-standing goal and policy, independent of and adopted prior to thisAgreement or the Department of Justice's findings, of transitioning from an institutional model of care to a community-based system that meets the needs of all individuals with ID/DD, including those with the most complex needs, and of usingits limited resources to serve effectively the greatest number of individuals with ID/DD. This goal and policy have resulted in a decline in the population of the statetraining centers from approximately 6000individuals to approximately 1000 individuals. The Commonwealth has determined thatthis significant and ongoing decline makes continued operation of residential services fiscally impractical. Consequently, and in accordance withthe Commonwealth's policyof transitioning its system of developmental services to a community-based system, the Commonwealth will provide to the General Assembly within one year of the effective date of this Agreement, a plan, developed in consultation with the Chairmen of Virginia's House of DelegatesAppropriations and Senate Finance Committees, to cease residential operationsat four of the five training centers by the
end of State Fiscal Year 2021.
D. Community Living Options
1. The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
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2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family's home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources, including local, State, or federal affordable housing or rental assistance programs (tenant-based or project-based) and the fund described in
Section III.D.4 below.
3. Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals' own homes or apartments. The Commonwealth undertakes this initiative recognizing that comparatively modest housing supports often can enable individuals to live successfully in the most integrated settings appropriate to their needs.
a. The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services ("DBHDS") and in coordination with representatives from the Department of Medical Assistance Services ("DMAS"), Virginia Board for People with Disabilities, Virginia Housing DevelopmentAuthority, Virginia Department of Housing and Community Development,and other organizations as determined appropriate by DBHDS.
b. The plan will establish, for individualsreceivingor eligible to receive services through the HCBS waivers under this Agreement:
i. Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and
ii. Recommendations to provide access to these settings during each year of this Agreement.
4. Within 365 days of this Agreement, the Commonwealthshall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental
assistance in accordance with the recommendations described above in Section
III.D.3.b.ii, to as many individuals as possible who receive HCBS waivers under this Agreement,express a desire for living in their own home or apartment, and for whom such a placement is the most integrated setting appropriate to their needs.
5. Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual's choice after receiving options for community placements, services, and supports consistent
with the terms of Section IV.B.9 below.
6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual's needs and informed choice and has been reviewed by the
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Region's Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team. 7. The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family's home (and, if relevant, to their authorized representative or guardian). E. Community Resource Consultants and Regional Support Teams 1. The Commonwealth shall utilize Community Resource Consultant ("CRC") positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office. The CRCs shall provide on-site, electronic, written, and telephonic technical assistance to CSB case managers and private providers regarding personcentered planning, the Supports Intensity Scale, and requirements of case management and HCBS Waivers. The CRC shall also provide ongoing technical assistance to CSBs and community providersduring an individual's placement. The CRCs shall be a member of the Regional Support Team in the appropriate Region. 2. The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team ("PST") and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriateto the individual's needs, consistent with the individual's informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC.
3. The CRC shall refer cases to the Regional Support Teams for review, assistance in resolving barriers, or recommendations whenever:
a. The PST is having difficulty identifying or locating a particular community placement, services and supports for an individual within 3 months of the individual's receipt of HCBS waiver services.
b. The PST recommends and, upon his/her review, the CRC also recommends that an individual residing in his or her own home, his or her family's home, or a sponsored residence be placed in a congregate setting with five or more
individuals.
c. The PST recommends and, upon his/her review, the CRC also recommends an individual residing in any setting be placed in a nursing home or ICF.
d. There is a pattern of an individual repeatedly being removed from his or her current placement.
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IV. Discharge Planning and Transition from Training Center By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centersconsistent with the termsof this Section, excluding other dates agreed upon, and listed separately in this Section.
A. To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealthshall develop and implement dischargeplanning and transition processes at all Training Centers consistent with the termsof this Sectionand personcentered principles.
B. Discharge Planning and Discharge Plans 1. Discharge planning shall begin upon admission.
2. Discharge planning shall drivetreatment of individuals in anyTraining Centerand shall adhere to the principles of person-centered planning.
3. Individualsin Training Centers shall participatein their treatment and discharge planning to the maximum extentpracticable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limitedto, communication supports) to ensure that they have a meaningful role in the process.
4. The goalof treatment and discharge planning shall be to assist the individual in achievingoutcomesthat promotethe individual'sgrowth, well being,and independence, based on the individual's strengths, needs, goals, and preferences, in the most integratedsettingsin all domainsof the individual's life (including community living, activities, employment, education, recreation, healthcare, and
relationships). 5. The Commonwealth shall ensure that discharge plans are developed for all
individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistentwith informed individual choiceand needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) will include:
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Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 18 of 42 PageID# 4225
a. Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
b. Identification of the individual's strengths, preferences, needs (clinical and support), and desired outcomes;
c. Assessment of the specific supports and services that build on the individual's strengthsand preferences to meet the individual'sneeds and achievedesired outcomes, regardless of whether those services and supports are currently
available;
d. Listingof specific providers that can provide the identified supportsand services that build on the individual's strengths and preferences to meet the individual's
needs and achieve desired outcomes;
e. Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers. i. Such barriers shall not include the individual's disability or the severity of the disability. ii. For individuals with a history of re-admission or crises, the factors that led to
re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual's PST. The PSTincludes the individualreceiving services, the authorizedrepresentative (if any), CSB case manager, Training Center staff, and persons whom the individual has freely chosen or requested to participate (including but not limited to family members and close friends). Through a person-centeredplanning process,the PST will assess an individual's treatment, training, and habilitation needs and make recommendations for services, includingrecommendations of how the individual can be best served. Discharge planning shall be based on the presumption that, with sufficientsupports and services, all individuals (including individualswith complex behavioral and/or
medical needs) can live in an integrated setting. For individuals admitted to a Training Center after the date this Agreement is signed by both parties, the Commonwealthshall ensure that a dischargeplan is developed as described herein within 30 days of admission. For all individuals residing in a Training Center on the date that this Agreement is signed by both parties, the Commonwealth shall ensure that a discharge plan is developed as described herein within six months of the effective date of this Agreement.
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9. In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunityto discuss and meaningfully consider those options.
a. The individual shall be offered a choice of providers consistent with the individual's identified needs and preferences.
b. PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representative with opportunities to speak with those providers, visit communityplacements(including, where feasible, for overnight visits) and programs, and facilitateconversationsand meetingswith individuals currently livingin the community and their families, before being asked to make a choice regarding options. The Commonwealth shall developfamily-to-family and peer programs to facilitate these opportunities.
c. PSTs and the CSB case managers shall assist the individual and, where applicable, theirauthorized representative in choosing a provider afterproviding
the opportunities described above andensure thatproviders are timely identified and engaged in preparing for the individual's transition.
«7 10. The Commonwealth shall not change an individual's residence or level of treatment without the consent of the individual or. if the individual is not capable of consent, his authorized representative, except that providers mav decline to offer services or continued services to an individual. With respect to individuals residing in Training Centers as of June 1. 2012. the Commonwealth mav not move individuals from state-run facilities to facilities operated bv local governments, community
service boards, or private entities withoutthe consent of the individual or his authorized representative. Nothing in this paragraph, however, shall prevent the
Commonwealth from closing or consolidating Training Centers and moving
individuals to the remaining Training Centers, provided that the Commonwealth shall
maintain a Training Center for individuals who do not consent to discharge.
10. The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about communityservices and supportsto: propose appropriate options about how an individual's needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals' and families' questions about community living.
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Formatted: Indent: Left: 0.5", Hanging:
0.25", Nobullets or numbering

Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 20 of 42 PageID# 4227
a. In collaboration with the CSBs and community providers, the Commonwealth shall develop and provide training and informationfor Training Center staff about the provisions of this Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
b. Person-centered thinking training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meetings and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the person-centered tools and skills. Coachesthroughout the state will have regular and structured sessions with person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person-centered thinkingpracticesthroughout all levels of the Training Centers.
11. In the event that an individual or, where applicable, authorized representative opposes the PST's proposedoptions for placement in a moreintegrated setting after being provided the information and opportunities described in Section IV.B.9, the
Commonwealth shall ensure that PSTs:
a. Identify and seekto resolve the concerns of individuals and/or theirauthorized representativeswith regard to communityplacement;
b. Develop and implement individualized strategies to address concerns and objections to community placement; and
c. Document the steps taken to resolve the concerns of individuals and/ortheir authorized representatives and provideinformation about community placement.
12. All individuals in the Training Center shall be provided opportunities for engaging in community activitiesto the fullest extent practicable, consistent with their identified needs and preferences, even if the individual does not yet have a discharge plan for transitioning to the community.
13. The State shall ensure that information about barriers to discharge from involved providers, CSB case managers, Regional Support Teams,Community Integration Managers, and individuals' ISPs is collected from the Training Centers and is aggregated and analyzedfor ongoingqualityimprovement, discharge planning, and development of community-based services.
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14. In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 below, and such placements shall only occur as permitted by Section IV.C.6.
C. Transition to Community Setting
1. Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
2. Once trial visits are completed, the individual has selected a provider, and the provideragreesto serve the individual, discharge will occur within6 weeks,absent conditions beyond the Commonwealth's control. If discharge doesnot occurwithin6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST. Wheredischarge does not occur within 3 monthsof selectinga provider, the PST shall identifythe barriersto discharge and notifythe Facility Director and Community Integration Manager in accordance with Section IV.D.2 below, and the case shall be referred to the Regional Support Teams
in accordance with Section IV.D.3 below.
3. The Commonwealth shall develop and implementa system to follow up with individuals after dischargefrom the TrainingCentersto identify gaps in care and address proactively any such gaps to reducethe risk of re-admission, crises, or other negativeoutcomes. The Post Move Monitor, in coordination with the CSB, will conductpost-move monitoringvisits withineach of three (3) intervals (30, 60, and 90 days) following an individual'smovement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
4. The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual's discharge.
5. The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to
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community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual's community placement prior to the individual's discharge from the Training Center. This determination will be documented. The absence of those services and supports identified as non-essential by the Commonwealth, in consultation with the PST, shall not be a barrier to transition.
6. No individual shall be transferred from a Training Center to a nursing home or congregatesetting with five or more individualsunless placement in such a facility is in accordance with the individual's informed choice after receiving options for communityplacements, services, and supports and is reviewedby the Community Integration Manager to ensure such placement is consistent with the individual's
informed choice.
7. The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problemsare identified, the Commonwealth shall developand implement plans to remedy the problems.
D. Community Integration Managers and Regional Support Teams
1. The Commonwealth will create Community Integration Manager ("CIM") positions at eachoperating TrainingCenter. The CIMswill be DBHDS Central Officestaff members who will be physically located at each of the operating Training Centers. The CIMs will facilitate communication and planning with individuals residing in the Training Centers, their families, the PST, and private providers aboutall aspects of an individual's transition, and will address identified barriers to discharge. The CIMs will have professional experienceworkingin the field of developmental disabilities, and an understanding of best practices for providing community services to individuals with developmental disabilities. The CIMswill have expertisein the areas of working with clinical and programmatic staff, facilitatinglarge, diverse groupsof professionals, and providing servicecoordination acrossorganizational boundaries. The CIMs will serve as the primary connection between the Training Center and DBHDS Central Office. The CIMs will provide oversight, guidance, and technical assistance to the PSTs by identifying strategies for addressing or overcoming barriersto discharge, ensuringthat PSTsfollow the processdescribed in Sections IV.B and C above, and identifying and developing corrective actions, including the need for any additional training or involvementof supervisory staff.
2. CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances:
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a. The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;
b. The PST is having difficulty identifying or locating a particular type of community placement, services and supports for an individual within 90 days of development of a discharge plan during the first year of the Agreement; within 60 days of development of a discharge plan during the second year of the Agreement; within 45 days of development of a dischargeplan in the third year of the Agreement; and within 30 days of development of a discharge plan thereafter.
c. The PST cannot agree on a discharge plan outcomewithin 15 days of the annual PST meeting, or within 30 days after the admission to the Training Center.
d. The individual or his or her authorized representativeopposes discharge after all the requirements describedin SectionIV.B.9have been satisfied or refusesto participate in the discharge planning process;
e. The individual is not discharged within three monthsof selecting a provider, as described in Section IV.C.2 above. The PST shall identify the barriers to discharge and notify both the facility director and the CIM; or
f. The PST recommends that an individual remain in a Training Center. If the individual remains at the Training Center, an assessmentby the PST and the CIM
willbe performed at 90-day intervals from the decision for the individual to remainat the TrainingCenter, to ensurethat the individual is in the most integrated setting appropriate to his or her needs. The Commonwealth will create five Regional SupportTeams, each coordinated by the CIM. The Regional SupportTeamsshall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall workwiththe PSTand CIMto reviewthe case and resolve identified barriers. The Regional SupportTeam shall have the authority to recommend additional steps by the PST and/orCIM. The CIM may consult at any time with the Regional SupportTeams and will refer cases to the Regional Support
Teams when:
a. The CIM is unable, within 2 weeks of the PST's referral to the CIM, to document attainablesteps that will be taken to resolve any barriersto community placement
enumerated in Section IV.D.2 above.
b. A PST continues to recommend placement in a Training Center at the second quarterly review following the PST's recommendation that an individual remain
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in a Training Center (Section IV.D.2.f), and at all subsequent quarterly reviews that maintain the same recommendation. This paragraph shall not take effect until two years after the effective date of this Agreement.
c. The CIM believes external review is needed to identify additional steps that can be taken to remove barriers to discharge.
4. The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed, includingrecommendations that individuals remain at a Training Center.
V. Quality and Risk Management System A. To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals' needs, and help individuals achievepositiveoutcomes, includingavoidanceof harms, stable community living, and increased integration, independence, and self-determination in all life domains (e.g., community living,
employment, education, recreation, healthcare, and relationships), and to ensurethat appropriate services are available and accessible for individuals in the target population, the Commonwealth shall develop and implement a quality and risk management system
that is consistent with the terms of this Section.
B. The Commonwealth's QualityManagement System shall: identify and address risksof harm; ensurethe sufficiency, accessibility, and quality of services to meetindividuals' needsin integrated settings; and collect andevaluate datato identify and respond to
trends to ensure continuous quality improvement.
C. Risk Management
1. The Commonwealth shall requirethat all TrainingCenters, CSBs,and other community providersof residential and day servicesimplement risk management processes, including establishment of uniform risktriggers andthresholds, thatenable them to adequately address harms and risks of harm. Harm includes anyphysical injury, whether caused by abuse, neglect, or accidental causes.
2. The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol. Theprotocol shall require thatanystaffof a Training Center, CSB, or community provider aware of anysuspected or alleged incident of abuseor neglectas defined by Virginia Code§ 37.2-100 in effecton the effectivedate of this Agreement, serious injuryas defined by 12 VAC 35-115-30in effect on the effective date of this Agreement, or deaths directly report such information to the DBHDS Assistant Commissioner for Quality Improvement or his or her designee.
3. The Commonwealth shall have and implementa process to investigate reports of suspected or allegedabuse, neglect, critical incidents, or deathsand identify remediation steps taken. The Commonwealth shall be required to implement the processfor investigation and remediation detailedin the VirginiaDBHDS Licensing
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Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DBHDS Human Rights Regulations" (12 VAC 35-115-50(D)(3)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations.
4. The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
5. The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpecteddeaths reported through its incident reportingsystem. The Commissioner shall establish the monthly mortality review team, to include the DBHDS Medical Director, the Assistant Commissioner for Quality Improvement, and others as determined by the Department who possess appropriateexperience, knowledge, and skills. The team shall have at least one member with the clinical experience to conduct mortalityreviewswho is otherwise independent of the State. Within ninety days of a death, the monthly mortality review teamshall: (a) review, or document the unavailabilityof: (i) medical records, includingphysiciancase notes and nurses notes, and all incidentreports, for the three months preceding the individual's death; (ii) the mostrecentindividualized program planand physical examination records; (iii) the death certificateand autopsyreport; and (iv) any evidenceof maltreatment relatedto the death; (b) interview, as warranted, any personshaving information regarding the individual's care; and (c) prepare and deliverto the DBHDS Commissioner a reportof deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems at the individual service-delivery and systemic levels and develop and
implement quality improvement initiatives to reduce mortality ratesto the fullest
extent practicable.
6. If the TrainingCenter, CSBs, or othercommunity provider fails to report harmsand implement correctiveactions, the Commonwealth shall take appropriate action with the providerpursuantto the DBHDS Human Rights Regulations (12 VAC 35-115240), the DBHDS Licensing Regulations(12 VAC 35-105-170), Virginia Code § 37.2-419 in effect on the effective date of this Agreement, and other requirements in
this Agreement.
D. Data to Assess and Improve Quality
1. The Commonwealth's HCBS waivers shall operate in accordance with the Commonwealth's CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers; identification, response and prevention of occurrences of abuse,
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neglect and exploitation; administrative oversight of all waiver functions including contracting; and financial accountability. Review of data shall occur at the local and state levels by the CSBs and DBHDS/DMAS, respectively. 2. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individualsin the target population and the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall use data to:
a. identify trends, patterns, strengths, and problems at the individual, servicedelivery, and systemic levels, including,but not limited to, quality of services, service gaps, accessibilityof services, serving individualswith complex needs, and the discharge and transition planning process;
b. developpreventative, corrective, and improvement measures to addressidentified
problems; c. track the efficacy of preventative, corrective, and improvement measures; and
d. enhance outreach, education, and training. 3. The Commonwealth shall begin collecting and analyzing reliable data about
individuals receivingservices under this Agreement selected from the following areas
in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from
each of these areas by June 30, 2014. Multiple types of sources(e.g., providers, case managers, licensing, riskmanagement, Quality Service Reviews) canprovide datain each area, though any individual type of sourceneed not provide data in every area: a. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion
or restraints, deaths, effectiveness of correctiveactions, licensingviolations); b. Physical, mental, and behavioral health and well being(e.g., access to medical
care (includingpreventative care), timeliness and adequacy of interventions (particularly in response to changes in status)); c. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or hospitals, admissions to Training Centersor other congregate settings, contact with criminal justice system); d. Stability(e.g., maintenance of chosen livingarrangement, change in providers, work/other day program stability); e. Choice and self-determination (e.g., service plans developed through personcenteredplanningprocess, choice of servicesand providers, individualized goals,
self-direction of services); f. Community inclusion (e.g., community activities, integrated work opportunities,
integrated living options,educational opportunities, relationships with non-paid
individuals);
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g. Access to services (e.g., waitlists, outreach efforts, identified barriers, service gaps and delays, adaptive equipment, transportation, availability of services geographically, cultural and linguistic competency); and
h. Provider capacity (e.g., caseloads, training, staff turnover, provider competency).
4. The Commonwealth shall collect and analyze data from available sources, including, the risk management system described in Section V.C. above, those sources described in Sections V.E-G and 1below (e.g., providers, case managers, Quality Service Reviews, and licensing), Quality Management Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.
5. The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.
a. The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individualsreceiving services,and families, and may
include other relevant stakeholders.
b. Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
6. At leastannually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in this Agreement)and qualityof supports and services in the community and gaps in services, and shall make recommendationsfor improvement.
E. Providers
1. The Commonwealthshall require all providers(includingTraining Centers, CSBs, and other community providers) to develop and implement a quality improvement ("QI") program, including root causeanalyses, that is sufficient to identify and addresssignificantservice issues and is consistent with the requirements of the DBHDS Licensing Regulations at 12 VAC35-105-620 in effect on the effectivedate of this Agreement and the provisions of this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other communityprovidersare required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or throughtheir QI program. Reported key indicators shall capture informationregarding both positive and negativeoutcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3. above. The measures will be monitored and reviewed by the DBHDS quality improvement committee, with input from Regional Quality Councils, described in Section V.D.5 above. The DBHDS quality improvement committee will
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assess the validity of each measure at least annually and update measures accordingly. 3. The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers' quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
F. Case Management
1. For individuals receiving case managementservicespursuantto this Agreement,the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conductregular visitsto the individual'sresidence, as dictatedby the
individual's needs.
2. At these face-to-face meetings, the case managershall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identifiedrisks, injuries, needs, or otherchange in status; assess whether the individual's support plan is beingimplemented appropriately and remains appropriate for the individual; and ascertainwhethersupportsand servicesare being implemented consistent with the individual's strengthsand preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an unidentifiedor inadequatelyaddressed risk, injury, need, or change in status; a deficiency in the individual's support planor its implementation; or a discrepancy between the implementation of supports andservices andthe individual's strengths and preferences, then the case manager shallreportand document the issue, convene the individual'sserviceplanning teamto address it, and document its resolution.
3. Within 12 months of the effective date of this Agreement, the individual's case
manager shall meet with theindividual face-to-face at least every 30 days, andat least onesuchvisiteverytwo months must be in the individual's placeof residence, for
any individuals who: a. Receiveservices from providers havingconditional or provisional licenses; b. Have more intensive behavioral or medical needs as defined by the Supports
Intensity Scale("SIS") category representing the highest levelof risk to
individuals;
c. Have an interruption of service greater than 30 days; d. Encounter the crisis systemfor a seriouscrisis or for multiple less seriouscrises
within a three-month period; e. Have transitioned from a Training Center within the previous 12 months; or f. Reside in congregate settings of 5 or more individuals.
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4. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
5. Within 24 months from the date of this Agreement, key indicators from the case manager's face to face visits with the individual, and the case manager's observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicatorsshall capture information regarding both
positive and negative outcomes for both health and safety and community integration,
and will be selected from the relevant domains listed in Section V.D.3 above.
6. The Commonwealth shall develop a statewide core competency-basedtraining curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be builton the principles of self-determination and person-centeredness.
G. Licensing
1. The Commonwealth shall conduct regular, unannounced licensing inspections of community providersserving individuals receiving servicesunder this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall haveand implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including: a. Providers who have a conditional or provisional license; b. Providers who serve individuals with intensive medical and behavioral needs as defined bythe SIScategory representing the highest level of riskto individuals; c. Providers who serve individuals who have an interruptionof service greater than 30 days; d. Providers who serve individuals who encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;
e. Providers who serve individuals who have transitioned from a
Training Center within the previous 12 months; and f. Providers who serve individuals in congregatesettingsof 5 or more individuals. 3. Within 12 months of the effective date of this Agreement, the Commonwealthshall ensure that the licensureprocess assessesthe adequacy of the individualized supports andservices provided to persons receiving services under this Agreement in each of
the domains listed in Section V.D.3 above and that these data and assessments are
reported to DBHDS. H. Training
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1. The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self-determination awareness, and required elements of service training.
2. The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.
I. Quality Service Reviews
1. The Commonwealth shall use Quality Service Reviews ("QSRs") to evaluate the qualityof servicesat an individual, provider, and system-wide leveland the extent to which services are provided in the most integratedsetting appropriateto individuals' needs and choice. QSRs shall collect information through:
a. Face-to-face interviews of the individual, relevant professional staff, and other people involved in the individual's life; and
b. Assessment, informed by face-to-face interviews, of treatment records, incident/injury data, key-indicator performance data, compliance withthe service requirements of this Agreement, andthe contractual compliance of community services boards and/or community providers.
2. QSRs shall evaluate whether individuals' needs arebeing identified andmetthrough person-centered planning andthinking (including building on individuals' strengths, preferences, and goals), whether services arebeing provided in themost integrated setting appropriate to the individuals' needs and consistent with theirinformed choice, and whether individualsare having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities forrelationships with non-paid individuals). Information from the QSRsshall be usedto improve practice and the qualityof serviceson the provider, CSB, and systemwide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliabilityof the QSR process.
4. The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
VI. Independent Reviewer
A. The Partieshavejointly selected DonaldJ. Fletcher as the Independent Reviewer for this SettlementAgreement. In the event that the Independent Reviewerresigns or the Parties agree to replacethe Independent Reviewer, the Parties will selecta replacement. If the Parties are unable to agree on a replacement within 30 days from the date the Parties receive a notice of resignation from the Independent Reviewer, or from the date the
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Parties agree to replace the Independent Reviewer, they shall each submit the names of up to three candidates to the Court, and the Court shall select the replacement from the
names submitted.

B. The IndependentReviewer shall conduct the factual investigation and verificationof data and documentation necessary to determine whether the Commonwealthis in compliance with this Settlement Agreement, on a six-monthcycle continuingduring the pendency of the Agreement. The Independent Reviewer is not an agentof the Court, nor does the Independent Reviewerhave any authorityto act on behalfof the Court. The Independent Reviewer may hire staff and consultants, in consultation with and subjectto reasonable objections by the Parties, to assist in his compliance investigations. The Independent Reviewer and anyhiredstaff or consultants are neither agents nor business associates of
the Commonwealth or DOJ.

C. The IndependentReviewer shall file with the Court a written report on the Commonwealth's compliance with the termsof this Agreement within60 days of the close of each review cycle. The first report shall be filed nine months from the effective
date of this Agreement. With the consent of the Court, the Court will hold a status conferenceafter the filing of each written report. The Independent Reviewer shall provide the Parties a draftof his/her report at least 21 days before issuing the report. The Parties shallhave 14daysto review and comment on the proposed report before it is filed with the Court. The Parties mayagree to allowthe Independent Reviewer an additional
20days to finalize a report afterhe/she receives comments from the Parties, andsuch an agreement does notrequire Court approval. In preparing thereport, the Independent Reviewer shall use appendixes or other methods to protect confidential information so thatthe report itselfmaybe filed withthe Court as a public document. Either Partymay file a written report with theCourt noting itsobjections to theportions of theIndependent Reviewer's report with which it disagrees. TheCommonwealth shall publish and
maintain these reports on the DBHDS website.

GtP.

The Commonwealth shall immediately report to the Independent Reviewer the

death or serious injury of any former resident of a Training Center. The Independent

Reviewer shall forthwith investigate anv such death or injury and report his findings to

the Court in a special report, to be filed under seal.

PrE. The Independent Reviewer, and any hired staff or consultants, may:

1. Have ex partecommunications withthe Court upon the Court's request or withthe
consent of the Parties.

2. Have ex parte communications with the Parties at any time.

3. Request meetings with the Parties and the Court.

4. Speakwithstakeholders withsuch stakeholders' consent, on a confidential basisor
otherwise, at the Independent Reviewer's discretion.

5. Testify in this case regarding any matter relatingto the implementation or terms of this Agreement, including the Independent Reviewer's observations and findings.

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6. Offer to provide the Commonwealth with technical assistance and, with the Commonwealth's consent, provide such technical assistance, relating to any aspect of this Agreement or its stated purposes.

7. Conduct regular meetings with both Parties. The purpose of these meetings shall include, among other things, to prioritize areas for the Independent Reviewer to review, schedule visits, discuss areas of concern, and discuss areas in which technical
assistance may be appropriate.

£t|\

The Independent Reviewer and any hired staff or consultants shall not be liable

for any claim, lawsuit, or demand arisingout of their duties underthis Agreement. This

paragraph doesnot apply to any proceeding before this Court for enforcement of payment

of contracts or subcontracts for reviewing compliance with this Agreement.

£tG. The Independent Reviewer and any hired staff or consultants shall not be subject to formal discovery, including, but not limitedto, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or otherdisclosures. The Parties are not entitledto access the Independent Reviewer's recordsor communications, or those of his/her staff and consultants, although the Independent Reviewer mayprovide copiesof records or communications at the Independent Reviewer's discretion. The Court may review all records of the Independent Reviewerat the Court's discretion.

GrH. In order to determine compliance with this Agreement, the Independent Reviewer and anyhired staff or consultants shall havefull access to persons, employees, residences, facilities, buildings, programs, services, documents, records, including
individuals' medical and other records, in unredacted form, and materials that are
necessary to assess the Commonwealth's compliance withthis Agreement, to the extent they arewithin the State'scustody or control. This shall include, butnotbe limited to, access to the data and records maintained by the Commonwealth pursuant to Section V above. Theprovision of anyinformation to theIndependent Reviewer pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information fromdisclosure to third parties. The Independent Reviewer and any hired staff or consultants may also interviewindividuals receiving servicesunder this Agreement withthe consent of the individual or his/her authorized representative. Access to CSBsand private providers and entities shall be at the solediscretion of the CSB or private provider or entity; however, the Commonwealth shallencourage CSBs and private providers and otherentities to provide such access andshallassist the Independent Reviewer in identifying and contacting them. The Independent Reviewer shall exercise his/her access to Commonwealth employees and individuals receiving servicesunder this Agreement in a mannerthat is reasonable and not unduly burdensome to the operation of Commonwealthagencies and that has minimal impact on programs or servicesbeing providedto individuals receivingservicesunderthis Agreement. Such access shall continue until the Agreement is terminated. The Parties agree that, in cases of an emergency situation that present an immediate threat to life,health, or safetyof individuals, the Independent Reviewerwill not be required to providethe Commonwealth notice of such visit or inspection. Any individually identifying health information that the Independent Reviewer and any hired staff or consultants receive or maintain shall be
kept confidential.

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UrL

Budget of the Independent Reviewer

1. Within 45 days of appointment, the Independent Reviewershall submit to the Court for the Court's approval a proposed budget for State Fiscal Year 2013. Using the proposed budget for State Fiscal Year 2013, the Independent Reviewershall also propose an equivalent amount prorated through the remainderof State Fiscal Year
2012 as the budget for State Fiscal Year 2012.

2. The Independent Reviewer shall provide the Parties a draftof the proposed budgetat least30 daysin advance of submission to the Court. The Parties shall raise with the Independent Reviewer any objections theymayhaveto the draftof the proposed budget within 10business daysof its receipt. If the objection is not resolved before the Independent Reviewer's submission of a proposed budgetto the Court, a Party may filethe objection with the Court within 10business days of the submission of the proposed budget to the Court. TheCourt shall consider such objections andmake any adjustments it deemsappropriate prior to approving the budget.

3. Thereafter, the Independent Reviewer shall submit annually a proposed budget to the Court for its approval by April 1 in accordance with the process set forth above.

4. At any time, the Independent Reviewer may submit to the Parties forapproval a proposed revision to the budget, along with any explanation of the reason for the proposed revision. Should the Parties and Independent Reviewer notbeableto agree on theproposed revision, the Court will benotified as setforth in Section V.H.2
above.
5. The approved budget of the Independent Reviewer shall not exceed $300,000 inany StateFiscal Yearduring the pendency of this Agreement, inclusive of any costsand expenses ofhired staffand consultants, without the approval ofthe Commonwealth
or the Court pursuantto Sections V.H.2.or H.4.above.

^Reimbursement and Payment Provisions
1. Thecost of the Independent Reviewer, including thecost of any consultants andstaff to the Reviewer, shall be borne by the Commonwealth in this action up to the amount of theapproved budget for each State Fiscal Year. All reasonable expenses incurred by the Independent Reviewer in thecourse of theperformance of his/her duties as set forth in thisAgreement shall be reimbursed bytheCommonwealth. In no event will
the Commonwealth reimburse the Independent Reviewer for any expense that exceeds theapproved fiscal year budget or the amount approved under Sections V.H.4 or H.5 above. The Court retains the authority to resolve any dispute that may arise regarding the reasonableness of fees andcosts charged bythe Reviewer. The UnitedStates shall bear its own expensesin this matter. If a disputearises regarding reasonableness of fees or costs, the Independent Reviewer shall provide an accounting justifying the fees or costs.
2. The Independent Reviewer shall submit monthly statements to DBHDS, with copies
to the United States and the Court, detailing all expenses the Independent Reviewer incurred during the prior month. DBHDS shall issue payment in accordance with the

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monthly statement as long as such payment is within the approved State Fiscal Year budget. Such payment shall be made by DBHDS within 10 business days of receipt of the monthly statement. Monthly statements shall be provided to: Assistant Commissioner for Developmental Services, DBHDS, P.O. Box 1797, Richmond, Virginia 23238-1797.
3. In the event that, upon a request by the United States or the Independent Reviewer, the Court determines that the Commonwealth is unreasonably withholding or delaying payment, or if the Parties agree to use the following payment procedure, the following payment procedure will be used:
a. The Commonwealth shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Reviewer. This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors.
b. The Court shall order the clerk to make payments to the Independent Reviewer. The clerk shall make those payments within 10 days of the entry of the Order directingpayment. Within45 days of the entry of each Order directingpayment, the Commonwealthshall replenishthe fund with the full amount paid by the clerk
in order to restore the fund's total to $100,000.00.
hK, The Independent Reviewer, including any hiredstaffor consultants, shall not enter into any contract with the Commonwealth while serving as the Independent Reviewer. If the Independent Reviewer resigns from his/her position as Independent Reviewer, he/she may not enter into any contractwith the Commonwealth on a matter related to this Agreement during the pendency of this Agreement without the written
consent of the United States.
KtL. Other than the semi-annual compliance report pursuantto Section VI.C above or proceedings before the Court, the Independent Reviewer, and anyhired staffor consultants, shall refrain from any public oral or written statementsto the media, including statements "on background," regarding this Agreement, its implementation, or the Commonwealth'scompliance. In addition, the Independent Reviewer shall not establish or maintain a website regarding this Agreement, its implementation, or the Commonwealth's compliance.
VII. Construction and Termination
A. The Partiesagreejointly to file this Agreement with the United StatesDistrictCourt for
the Eastern District of Virginia, Richmond Division.
B. The Parties anticipate that the Commonwealth will have complied with all provisions of the Agreement by the end of State Fiscal Year 2021. Compliance is achievedwhere any violations of the Agreement are minor or incidental and are not systemic. The Court shall retainjurisdiction of this action for all purposes until the end of State FiscalYear 2021
unless:
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1. The Parties jointly ask the Court to terminate the Agreement before the end of State Fiscal Year 2021, provided the Commonwealth has complied with this Agreement and maintained compliance for one year; or
2. The United States disputes that the Commonwealth is in compliance with the Agreement at the end of State Fiscal Year 2021. The United States shall inform the Court and the Commonwealth by January 1, 2021, that it disputes compliance, and the Court may schedule further proceedings as appropriate. The Party that disagrees with the Independent Reviewer's assessment of compliance shall bear the burden of proof.
C. The burden shall be on the Commonwealth to demonstrate compliance to the United States pursuantto SectionVII.B.l above. If the Commonwealth believesit has achieved compliance with a portion of this Agreement and has maintained compliance for one year, it shall notify the United States and the Independent Reviewer. If the United States agrees, the Commonwealth shall be relieved of that portion of the Settlement Agreement and notice of such relief shall be filed with the Court. The Parties may instead agree to a more limited review of the relevant portion of the Agreement.
D. With the exception of conditions or practices thatposean immediate and serious threatto the life,health, or safetyof individuals receiving services underthis Agreement, if the
United States believes that the Commonwealth has failed to fulfill any obligation under
thisAgreement, the United States shall, prior to initiating anycourt proceeding to remedy suchfailure, givewritten noticeto the Commonwealth which, withspecificity, sets forth
the details of the alleged noncompliance.
1. With the exception of conditions or practices thatposean immediate andserious threat to the life, health,or safety of individuals coveredby this Agreement, the Commonwealth shall have forty-five (45) days from the date of such writtennotice to respond to the United States in writing bydenying that noncompliance hasoccurred, or by accepting (without necessarily admitting) theallegation of noncompliance and proposing steps thattheCommonwealth will take, and bywhen, to curethealleged
noncompliance.
2. If the Commonwealth fails to respondwithin45 daysor deniesthat noncompliance has occurred, the United States may seek an appropriatejudicial remedy.
3. If the Commonwealthtimely responds by proposingcurative action by a specified deadline, the United States may accept the Commonwealth's proposal or offer a counterproposal for a different curative action or deadline, but in no eventshall the United Statesseek an appropriate judicial remedyfor the allegednoncompliance until after the time providedfor the Commonwealth to respond under SectionVII.D.2 above. If the Parties fail to reach agreement on a plan for curative action, the United States may seek an appropriate judicial remedy.
4. Notwithstanding the provisions of this Section, with the exception of conditions that pose an immediate and serious threat to the life, health, or safetyof individuals receiving services under this Agreement, the United States shall neither issue a
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noncompliancenotice nor seek judicial remedy for the nine months after the effective date of this Agreement.
E. If the United States believes that conditions or practices within the control of the Commonwealth pose an immediate and seriousthreat to the life, health,or safety of individuals in the Training Centers or individuals receiving servicespursuantto this Agreement, the United Statesmay, without further notice, initiate a courtproceeding to remedy those conditions or practices.
F. This Agreement shall constitutethe entire integrated Agreement of the Parties.
G. Anymodification of this Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it.
H. The Agreement shall be applicable to, and binding upon, all Parties, theiremployees, assigns, agents, andcontractors charged with implementation of anyportion of this Agreement, and theirsuccessors in office. If the Commonwealth contracts withan outside provider for any of the services provided in this Agreement, the Agreement shall be binding on anycontracted parties, including agents and assigns. TheCommonwealth shallensure thatall appropriate Commonwealth agencies take anyactions necessary for the Commonwealth to comply with provisions of this Agreement.
I. TheCommonwealth, while empowered to enter into and implement thisAgreement, does not speak for theVirginia General Assembly, which hastheauthority under theVirginia Constitution and lawsto appropriate funds for, and amend laws pertaining to, the Commonwealth's system of services for individuals with developmental disabilities. The Commonwealth shall take all appropriate measures to seekand securefunding necessary to implement theterms of this Agreement. If theCommonwealth fails to attain necessary appropriations to comply with thisAgreement, the United States retains allrights to enforce the terms of this Agreement, to enter into enforcement proceedings, or to withdrawits consentto this Agreement and reviveany claimsotherwise barred by
operation of this Agreement.
J. The United States and the Commonwealth shall bear the cost of their fees and expenses
incurred in connection with this case.
VIII. General Provisions
A. The Commonwealth agrees that it shall not retaliate againstany personbecause that person has filed or mayfile a complaint, provided assistance or information, or participated in anyothermanner in the United States' investigation or the Independent Reviewer's duties relatedto this Agreement. The Commonwealth agreesthat it shall timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and take any necessary corrective actions identified through such
investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any requirementof this Agreement,the Commonwealth shall notify the United States and the
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Independent Reviewer in writing within 20 calendar days after the Commonwealth becomes aware of the unforeseen circumstance and its impact on the Commonwealth's ability to perform under the Agreement. The notice shall describe the cause of the failure to perform and the measures taken to prevent or minimize the failure. The Commonwealth shall take reasonable measures to avoid or minimize any such failure. C. Failure by any Party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Agreement. D. The Parties shall promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof, and shall defend against any challenge to the Agreement. E. Except as provided in this Agreement, during the pendency of the Agreement, the United States shall not file suit under the ADA or CRIPA for any claim or allegation set forth in the complaint. F. The Parties represent and acknowledge this Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Agreement have been voluntarilyaccepted,after consultation with
counsel, for the purpose of making a full and final compromise andsettlement of any and all claims arising out of the allegations set forth in the Complaint and pleadings in this Action, and for the express purpose of precluding any further or additional claimsarising out of the allegations set forth in the Complaint and pleadings in this Action. Each Party to this Agreement representsand warrantsthat the personwho has signed this Agreement on behalfof his or her entityis duly authorized to enter intothis Agreement and to bind that Party to the terms and conditions of this Agreement. G. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or evidenceof liabilityof the Commonwealth under federal or state law, and this Agreement shall not be used as evidenceof liabilityin this or any othercivil or criminal proceeding. H. This Agreement maybe executed in counterparts, eachof which shallbe deemed an original,and the counterparts shall togetherconstitute one and the same agreement, notwithstanding that each Party is not a signatory to the original or the same counterpart. I. "Notice" under this Agreementshall be providedto the followingor their successors:
For the United States:
Chief of the Special Litigation Section United States Department of Justice Civil Rights Division 601 D Street, N.W. Washington, D.C. 20004
For the Commonwealth:
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Case 3:12-cv-00059-JAG Document 100 Filed 06/13/12 Page 38 of 42 PageID# 4245
Attorney General of Virginia
900 E. Main Street
Richmond, VA 23219
Counsel to the Governor
Patrick Henry Building, 3rd Floor
HUE. Broad Street
Richmond, VA 23219
For the Independent Reviewer:
Donald J. Fletcher P.O. Box 54 16 Comwell Road
Shutesbury, MA 01072-0054
IX. Implementation of the Agreement
A. The implementation of this Agreement shall begin immediately upon the Effective Date, which shall be the date on whichthis Agreement is approved and entered as an order of
the Court.
B. Within one month from the Effective Date of this Agreement, the Commonwealthshall
appoint anAgreement Coordinator to oversee compliance with this Agreement and to
serve as a point of contact for the Independent Reviewer. C. The Commonwealth shall maintain sufficient records to document that the requirements
of thisAgreement arebeing properly implemented and shall make such records available to the Independent Reviewer for inspection and copying upon request and on a
reasonable basis.
D. The Commonwealth shall notify the Independent Reviewer and the UnitedStates
promptly upon the unexplained orunexpected death orserious physical injury resulting in on-going medical care of any individual covered by this Agreement. The
Commonwealth shall, via email, forward to the UnitedStatesand the Independent Reviewer electronic copies of all completed incident reports and final reports of investigations related to such incidents, as well asany autopsies and death summaries in the State's possession. The provision of anyinformation to the Independent Reviewer and the United States pursuant to this Agreement shall not constitute a waiver of any privilege thatwould otherwise protect theinformation from disclosure to third parties. E. The United States shall have full access to persons,employees, residences, facilities, buildings, programs, services, documents, records, and materials thatare within the control and custodyof the Commonwealth and are necessary to assessthe Commonwealth's compliance with this Agreement and/or implementation efforts. 1. Such access shall includedepartmental and/or individual medical and other records in
unredacted form.
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2. The United States shall provide notice at least one week in advance of any visit or inspection.
3. The Parties agree that, in cases of an emergency situation that presents an immediate threat to life, health, or safety of individuals, the United States will be required to provide the Commonwealth with sufficient notice of such visit or inspection as to permit a Commonwealth representative to join the visit.
4. Such access shall continue until this case is dismissed.
5. The Commonwealth shall provide to the United States, as requested, in unredacted form, any documents, records, databases, and information relating to the implementation of this Agreement as soon as practicable, but no later than within thirty (30) business days of the request, or within a time frame negotiated by the Parties if the volume of requested material is too great to reasonably produce within thirty days.
6. The provision of any information to the United States pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the
information from disclosure to third parties.
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FOR THE UNITED STATES:

Respectfully submitted,

NEIL H. MacBRIDE
United States Attorney Eastern District of Virginia
ROBERT McINTOSH
Assistant United States Attorney 600 East Main St., Suite 1800 Richmond, VA 23219 (804)819-5400 Fax: (804)819-7417
Robert.McIntosh@usdoi.gov VA Bar #66113

THOMAS E. PEREZ
Assistant Attorney General Civil Rights Division
EVE HILL Senior Counselor
ALISON N. BARKOFF
Special Counsel for Olmstead Enforcement
Civil Rights Division
JONATHAN SMITH Chief
Special Litigation Section
BENJAMIN O. TAYLOE, JR.
Deputy Chief
AARON B. ZISSER
JACQUELINE K. CUNCANNAN Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 305-3355 Fax: (202)514-4883
Aaron ,Zi sser(a),usdoi. gov

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FOR THE COMMONWEALTH:
WILLIAM A. HAZEL, JR., M.D. Secretary of Health and Human Resources
on Behalf of Governor Robert F. McDonnell
KENNETH T. CUCCINELLI, II
as Attorney Generalof Virginiapursuantto VirginiaCode § 2.2-514
ALLYSON K. TYSINGER
Senior Assistant Attorney General
900 East Main Street
Richmond, Virginia 23219 (804) 786-1927 Fax: (804)371-8718 ATysinger@oag.state.va.us Virginia State Bar No. 41982
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ENTERED THIS

day of

, 2012.
UNITED STATES DISTRICT JUDGE

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 </s> Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 1 of 53 PageID# 4639

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

Civil Action No. 3:12cv59-JAG

COMMONWEALTH OF VIRGINIA, Defendant,

and

PEGGY WOOD, etaL,

Intervener-Defendants and Third-Party Plaintiffs,

ROBERT MCDONNELL, et al., Third-Party Defendants.
ORDER APPROVING CONSENT DECREE
This case comes before the Court on a joint motion of the United States and the Commonwealth of Virginia (the "Commonwealth" or "Virginia") for the Court to approve and adopt a consent decree. The Court finds that the parties entered into their settlement agreement without collusion, and that the agreement, as embodied in the decree, is lawful, fair, adequate,
and reasonable. The Court therefore APPROVES the decree and GRANTS the Joint Motion for Entry of Settlement Agreement (Dk. No. 2).
I. Proceedings
The United States commenced this proceeding by filing a complaint alleging that the
Commonwealth had violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et
seq. Simultaneously, Virginia and the United States submitted a consent decree for the Court's

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 2 of 53 PageID# 4640
consideration. In essence, they had worked out a settlement before the suit was filed. As discussed below, the settlement dramatically changes the way Virginia provides services to its intellectually and developmentally disabled population.
Not everyone liked the terms of the settlement, and a group of disabled citizens moved to intervene to oppose the settlement (the "Intervenors"). The Court granted their motion to intervene, and they participated activelyin the litigation, arguing at every step that the proposed settlementwas unfair to the residents of Virginia's five training centers (the "Training Centers").
Funded and operated by the Commonwealth, the Training Centers are large, hospital-like facilities built to house hundreds of disabled people. The Intervenors considered the Training Centers their homes. They opposed the settlement because they believed that the proposed consent decree would mandate removing them from the Training Centers and putting them in
harm's way.
The Court received hundreds of letters both for and against the consent decree. The Court has treated those letters as briefs amicus curiae. In addition, the Court received several
formal amicus briefs, filed by counsel for interested groups. The Court has considered the letters
and briefs in reaching its decision.
Several months ago, the Court toured a number of facilities, accompanied by counsel
and the Commissioner of Behavioral Health and Developmental Services. The tourincluded not
only residential homes but also sites for supported day activities—essentially examples of most of the types of facilities that provide services to disabled Virginians. The Court selected places to inspect from a list of facilities provided by the Attorney General of Virginia's office. The Court created an itinerary for its tour, but did not share the proposed stops with the parties.
1The inspection of facilities occurred before the Court granted the motion to intervene, so
counsel for the Intervenors did not participate in the tour.

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 3 of 53 PageID# 4641
Rather, after inspecting one facility, the Court would then tell counsel the next place to visit. The Court's purpose was to prevent anyone from receiving advanced notice of the visit and somehow improving the conditions before the Court's arrival.
The Court also held a fairness hearing. It allowed the Commonwealth, the United States, and the Intervenors ninety minutes each to put on evidence supporting their positions. A Courtappointed expert also testified regarding the impact of the consent decree on Virginia's community service boards and, specifically, whether those boards could handle the number of
new clients envisioned in the decree.
Having held these proceedings, the Court is now prepared to decide whether to adopt the
settlement as a consent decree. II. Facts
This case involves Virginia's treatment of its intellectually and developmentally disabled population. Intellectual disabilities consist of a number of conditions, including autism, Downs Syndrome, self-destructive behavior, retardation, and a host of other behavioral and intellectual difficulties. Developmental disability refers to people born with physical issues that prevent them from being able to feed themselves, to walk, and to accomplish myriad other activities.
Although intellectual disability and developmental disability are two different categories, most of the people with developmental issues also have intellectual disabilities. In this Order, therefore, the Court will simplyrefer to "disabled" individuals, encompassing both branches of disability.
Several decades ago, Virginia developed a group of five Training Centers to serve its disabled population. As noted above, the Training Centers are large hospital-like facilities housing a number of disabled people. Although the Training Center residents sometimes go on

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outside trips, most of their time is spent with other disabled people in the centers. The facilities provide recreation, housing, supported work, and meals to their residents.
At the time it created the Training Centers, the Commonwealth encouraged families to put their disabled relatives in them, in order to provide a safe and healthful environment. The Intervenors in this case largely come from families that accepted the Commonwealth's invitation to use the Training Centers. The Intervenors are uniformly satisfied with the treatment of their loved ones in the centers, and are afraid that a change of homes will lead to disruption and
danger. In its tour of facilities, the Court visited the Southside Regional Training Center in Petersburg, Virginia. That facility is clean and well-run. The residents seemed largely content. The staff was very supportive and loving to the residents.
As the years passed, however, new modalities of care were developed, and became the preference of experts inthe disability field. Specifically, the preferred method involved allowing disabled people to live in the broader community, rather than in facilities restricted to disabled residents. Over the years, the Commonwealth has taken fewer and fewer residents into Training Centers, and has discharged many residents to community facilities. As a result, the population of the Training Centers has diminished from 6000 to less than a thousand residents. Nevertheless, the Commonwealth maintains the facilities to house the vastly diminished
population of disabled citizens.
Congress passed the Americans with Disabilities Act ("ADA") in 1990, providing further impetus to the movement toward community services. In the ADA, "Congress explicitly identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination.'"
Olmstead v. L.C., 527 U.S. 581, 600 (1999). "The ADA stepped up earlier measures to secure

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opportunities for people with developmental disabilities to enjoy the benefits of community living." Id. at 599.
The United States, through the Department of Justice ("DOJ"), believes that hospital-type settings are precisely the kind of segregated facility frowned upon in the ADA. In 2008, the DOD began to look into the Central Virginia Training Center in Lynchburg, Virginia. Recognizing system-wide problems, the DOJ eventually broadened the investigation to include all of Virginia's Training Centers. The DOJ concludedthat Virginia's entire system of Training
Centers violated the ADA by denying disabled citizens the right to be part of the broader community. Accordingly, the DOJ sent a letter of findings to the Commonwealth, demanding
changes in the system. The DOJ's demands were consonant with Virginia's own plans. As noted above,
Virginia had taken long strides to lessen the population of the Training Centers by this time. The Commonwealth essentially agreed with the DOJ's goal of community-based services.
Thereafter, a lengthy negotiation commenced between the Commonwealth and the United States to find a solution. It became apparent that the issue of community services had ramifications that would affect many more people than those in the Training Centers. Virginia has long waiting lists of disabled people who are notreceiving appropriate services, and any plan to reduce the Training Center population needed to address the broader problems of the disabled
community. The solution came in the form of a vast increase in the number of "Medicaid waivers"
available to Virginians. Medicaid waivers are, essentially, government subsidies to pay for care and services for disabled people. The funds are provided by both the federal and state government. Virginia's problem was that it spent so much money on Training Centers that it had

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very little left over for waivers. Hence, Virginia has extensive waiting lists of people who need
waivers to secure services.
Waivers can be used to fund any number of services. These include community-based living arrangements such as intermediate-care facilities for disabled people, group homes, residences with "sponsored families," and supported apartments. The Court visited most ofthese types of facilities in its tour, and they are, like the Training Centers, clean, healthful, and managed by caring staff members. Going further, however, the waivers can also provide assistance to families who choose to have disabled people live in their homes. This can include medical equipment and even part-time help with the care of a disabled family member.
After months of negotiations, the United States and the Commonwealth agreed on a plan to address both the Training Centers and the waiting lists. The consent decree embodies that
agreement.2 Under the proposed settlement, Virginia has agreed to provide 4170 additional
waiver slots, divided among current Training Center residents, disabled people in various segregated facilities other than theTraining Centers, and people on the waiting list for services.
The settlement also prescribes in great detail how Virginia will administer the services it provides to disabled citizens. This process will be a shared responsibility of the Department of Behavioral Health and Developmental Services and local community service boards ("CSBs"). CSBs are agencies that coordinate—and sometimes provide—a variety of services in the communities of the Commonwealth, including services for disabled people. The CSBs will be responsible for placing disabled people who are discharged from a Training Center into an appropriate community setting. Under the consent decree, the CSBs will need to find a large
2The Court suggested several minor changes to the proposed decree, but they do not affect the heart of the agreement.

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number of community placements for residents of Training Centers as well as people on the waiting lists. The Court-appointed expert testified that the CSBs can handle this task.
The decree also provides for changed procedures at the Training Centers and spells out how the Commonwealth will assist the CSBs with technical assistance. Each Training Center resident will have a discharge plan crafted by the professionals at the facility. Virginia will set up case-management teams, crisis teams, and plans for supported day services in the community. Essentially, the Commonwealth's efforts—and those of the CSBs—will all be focused on keeping disabled people in the community.
To protect its disabled citizens, the Commonwealth also agrees in the decree to conduct inspections to determine the quality of services. Further, Virginia must develop a riskmanagement plan that will insure that community-based disabled people are safe. At each stage
from planning to implementation, health professionals will participate in the process of
identifying appropriate services.
Finally, the consent decree requires the appointment ofan independent reviewer who will
reportto the Court on the progress of implementing the decree.
III. Discussion
"In considering whether to enter a proposed consent decree, a district court should be guided by the general principle that settlements are encouraged." United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999). Courts may accord deference to the judgment of parties with experience in the area ofthe decree, and should especially give substantial weight to the expertise of public agencies entering settlements. American Canoe Association v. United States EPA, 54 F. Supp. 2d 621, 625 (E.D. Va. 1999). While settlements are desirable, the court must not "blindly accept" the terms of a proposed consent decree. Id. Rather, the court should

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insure that the agreement is not illegal, is not the product of collusion, is not against the public interest, and is fair, adequate and reasonable. North Carolina, 180 F.3d at 581. Obviously, these concepts—illegality, collusion, public interest, fairness, adequacy, and reasonableness—overlap a great deal. For instance, it is hard to imagine a fair, adequate, and reasonable settlement that is not also in the public interest. These factors are not a checklist, but rather considerations that point the court in the right direction. In this case, they support approval of the settlement and
consent decree.
A. Illegality
Clearly, the agreement is not illegal. The decision of what kind of services to offer to
citizens and how to allocate limited funds are inherent in the sovereign power of the states. In
this instance, the consent decree is completely consonant with the principles set forth in the ADA, as interpreted by Justice Ginsburg in Olmstead, supra. One purpose of the ADA is "to
secure opportunities for people with developmental disabilities to enjoy the benefits of
community living." Id. at 599.
The Intervenors, however, argue that the settlement agreement requires Virginia to close down the Training Centers and allows the Commonwealth to force current Training Center residents out of their long-term homes, all in violation of the ADA. They point out that Olmstead also states that no one should be compelled to leave a facility without his or her consent. Id. at 602 (noting that there is no "federal requirement that community-based treatment
be imposed on patients who do not desire it."). The Intervenors read the consent decree incorrectly. Nothing in the decree compels
Virginia to close any facility. Decisions of that sort lie in the hands of the Virginia General Assembly. If it deems it wise, the General Assembly can appropriate funds to continue to
8

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operate some or all of the Training Centers, even while funding the Medicaid waivers. The Court recognizes that the Virginia Department of Behavioral Health and Developmental Services is trying to move away from a care model with Training Centers, but the ultimate decision whether to close any Training Center lies not with the Department, but with the legislature.
Moreover, the Intervenors ignore a provision of state law that forbids the horrible outcomes they conjure up. Virginia Code Section 37.2-837(A)(3) provides that no one may be forced to leave a Training Center against his or her will. Va. Code § 37.2-837(A)(3). The statute serves as bedrock assurancethat no one will be evicted from a Training Center. The parties have
even agreed that the Court may reopen the case in the event § 37.2-837(A)(3) is repealed. (See Settlement Agreement, Ex. A, § IV, ^ 10.) At that time, the Court can revisit the fairness of the
decree. B. Collusion
The agreement is also not the product of collusion between the Commonwealth and the United States. The DOJ began an investigation of the Central Virginia Training Center in 2008, and eventually expanded the scope to include all of the Training Centers. It sent a letter to the Commonwealth outlining various ADA violations and demanding changes. The parties then engaged in long and difficult negotiations at arms' length to reach an agreement. The settlement agreement provides hundreds of millions of dollars of benefits for disabled Virginians. Clearly, the plaintiff and the Commonwealth did not collude inany way to reach the agreement presented
to the Court.
C. Public Interest, Fairness, Adequacy, and Reasonableness As the Intervenors have demonstrated, one can argue vigorously that disabled people are
best treated in a hospital-type setting, such as a Training Center. The existence of such an

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argument, however, does not mean that the consent decree is improper. The Commonwealth, as its right, has decided that the public interest compels community placements. As observed above, a public agency charged with protecting the public interest deserves substantial deference. See American Canoe Assoc, 54 F. Supp. 2d at 625. The Court trusts the expertise of the Commonwealth's Department of Behavioral Health and Developmental Services to adopt a plan of action that benefits Virginia's disabled citizens. In this case, the Court need not look beyond
the number of people receiving greater, more beneficial services. In Training Centers, fewer than one thousand Virginians receive services. When the waivers are fully funded, over 4000 people willbe ableto afford the services theyneed. The entry of the decree is a valid decision in
the public interest.
Furthermore, the settlement agreement addresses pressing needs. Virginia currently has over 2900 people on an "urgent wait list" for Medicaid waivers. Those citizens and their families must fend for themselves in dealing with disability. Many of them will receive benefits under the decree. The decree, thus, balances the needs of these citizens. The Court certainly
cannot say that the agreement is not fair, reasonable, and adequate. Rather, the parties have come up with a plan to fund a broad range of services fordisabled Virginians.
The Court finds thatthe agreement is fair, reasonable, adequate, and in the public interest. The Court therefore approves the consent decree; the final settlement agreement is attached as
Exhibit A to this Order, and is deemed part of this Order. IV. Third Party Complaint
The Intervenors have filed a third party complaint against a number of state officials. Their claim arises under the ADA, the Rehabilitation Act of 1973, and the Medicaid statute and regulations. 42 U.S.C. § 12132; 29 U.S.C. § 794(a); 42 U.S.C. § 1396, et seq. In essence, the
10

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Intervenors say that they are being forced out of Training Centers, and ask this Court to fashion appropriate relief, whatever that may be.
The third-party complaint fails in at least three ways. First, it is not a proper third-party pleading. A third-party complaint is brought by a litigant who claims that someone else "is or may be liable to it for all or part of the claim against it." Fed. R. Civ. P. 14(a). The Intervenors' third-party complaint simply does not fit in the mold setby the rules for such pleadings.
Second, the claims are not ripe. No one has been involuntarily removed from a state facility. Whatever injury the Intervenors might suffer simplyhas not occurred yet.
Third, the claim is based on a misreading of the settlement agreement. The agreement
compels Virginia to offer Medicaid waivers and associated services; it does not compel the shutdown of any Training Center. The Court recognizes that it is unlikely that the Commonwealth can afford to operate five Training Centers while funding the Medicaid waivers. It is possible, however, that the Commonwealth will keep one center open and consolidate its operations there. Nothing in the agreement forbids the state from doing so. This matter is a
judgment left to the Virginia General Assembly as it considers the state's various needs. Nothing, however, forces the General Assembly to close down any facility. The settlement
agreement does not have the effect attributed to it inthe third-party complaint.
For these reasons, the third-party complaintis DISMISSED.
Furthermore, the Joint Motion for Entry of Settlement Agreement (Dk. No. 2) is
GRANTED. The Court FINDS that the consent decree is fair, reasonable, adequate, and in the
public interest. Accordingly, the Court hereby APPROVES the final settlement agreement (Ex.
A) in this case.
It is SO ORDERED
11

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 12 of 53 PageID# 4650 Let the Clerk send a copy ofthis Order to all counsel of record.

Date: August 23.2012
Richmond, VA

/s/
John A. Gibney, Jr7 J j
United States District Judge

12

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 13 of 53 PageID# 4651
Exhibit A

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 14 of 53 PageID# 4652

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA,

CIVIL ACTION NO: 3:12cv059-JAG

Defendants,
and
PEGGY WOOD, etal
Intervenor-Defendants.

SETTLEMENT AGREEMENT
I. Introduction
The Commonwealth of Virginia ("the Commonwealth") and the United States (together, "the Parties") are committed to full compliance with Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999). This Agreement is intended to ensure the Commonwealth's compliance with the ADA and Olmstead, which require that, to the extent the Commonwealth offers services to individuals with intellectual and developmental disabilities, such services shall be provided in the most integrated setting appropriate to meet their needs. Accordingly, throughout this document, the Parties intend that the goals of community integration, self-determination, and quality services will be achieved.
B. On August 21,2008, the United States Department of Justice ("United States") initiated an investigation of Central Virginia Training Center ("CVTC"), the largest of Virginia's five state-operated intermediate care facilities for persons with intellectual and developmental disabilities ("ICFs"), pursuant to the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. On April 21,2010, the United States notified the Commonwealth that it was expanding its investigation under the ADA to focus on the Commonwealth's compliance with the ADA's integration mandate and Olmstead with respect to individuals at CVTC. During the course of the expanded investigation,
1

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however, it became clear that an examination of the Commonwealth's measures to
address therights of individuals at CVTC under the ADA and Olmstead implicated the statewide system for serving individuals with intellectual and developmental disabilities and required a broader scope of review. Accordingly, the policies andpractices thatthe United Statesexamined in its expanded investigation were statewide in scope and application. OnFebruary 10, 2011, the United States issued its findings, concluding that the Commonwealth fails to provide services to individuals with intellectual and developmental disabilities in the most integrated setting appropriate to their needs as
required by the ADA and Olmstead.
C. The Commonwealth engaged with the United States in open dialogue about the allegations and worked withthe United States to resolve the alleged violations of the ADA arising out of the Commonwealth's provision of services for individuals with intellectual and developmental disabilities.
D. In order to resolve all issues pending between the Parties without the expense, risks, delays, and uncertainties of litigation, the United States and the Commonwealth agree to the terms of this Settlement Agreement as stated below. This Agreement resolves the United States' investigation of CVTC, as well as its broader examination of the Commonwealth's compliance with the ADA and Olmstead with respect to individuals with intellectual and developmental disabilities.
E. By entering into this Settlement Agreement, the Commonwealth does not admit to the truth or validity of any claim made against it by the United States.
F. The Parties acknowledge that the Court has jurisdiction over this case and authority to enter this Settlement Agreement and to enforce its terms as set forth herein.
G. No person or entity is intended to be a third-party beneficiary of the provisions of this Settlement Agreement for purposes of any other civil, criminal, or administrative action, and, accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Settlement Agreement in any separate action. This Settlement Agreement is not intended to impair or expand the right of any person or organization to seek relief against the Commonwealth or their officials, employees, or agents.
H. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; and 42 U.S.C. §§ 12131-12132. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
II. Definitions
A. "Developmental disability" means a severe, chronic disability of an individual that: (1) is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) is manifested before the individual attains age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in 3 or more of the following areas of major life activity: (a) self-care; (b) receptive and expressive language; (c) learning; (d) mobility; (e) self-direction; (f) capacity for independent living; (g) economic self-sufficiency; and (5) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or

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other forms of assistance that are of lifelong or extendedduration and are individually planned and coordinated. 42 U.S.C. § 15002.
B. "Intellectual disability" means a disability characterized by significant limitations both in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of everyday social and practical skills. This disability originates before the age of 18. An intellectual disability is a type of developmental disability.
C. Home andCommunity-Based Services Waivers ("HCBS Waivers") means the program approved by the Centers for Medicare and Medicaid Services ("CMS") for the purpose of providing services in community settings for eligible persons with developmental disabilities who would otherwise be served in ICFs. For purposes of this Settlement Agreement, "HCBS Waivers" includes the Intellectual Disabilities Waiver ("ID Waiver") andthe Individual and Family Developmental Disabilities Support Waiver ("DD Waiver"), or any otherCMS approved waivers that are equivalent to the ID or DD Waivers that may be created after the execution of this Agreement.
D. Individual and family supports are defined as a comprehensive and coordinated set of strategies that are designed to ensure that families who are assisting family members with intellectual or developmental disabilities ("ID/DD") or individuals with ID/DD who live independently have access to person-centered and family-centered resources, supports, services and other assistance. Individual and family supports are targeted to individuals not already receiving services under HCBS waivers, as defined in Section II.C above. The family supports provided under this Agreement shall not supplant or in any way limit the availability of services provided through the Elderly or Disabled with Consumer Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment
("EPSDT"), or similar programs.
E. As used in this Agreement, the term Authorized Representative means a person authorized to make decisions about treatment or services, including residence, on behalf of an individual who lacks the capacity to consent.
1. The Authorized Representative shall be recognized by the Commonwealth (which may be delegated to local care providers) from the following, if available:
a. An attorney-in-fact who is currently empowered to consent or authorize the disclosure under the terms of a durable power of attorney;
b. A health care agent appointed by the individual under an advance directive or power of attorney in accordance with the laws of Virginia; or
c. A legal guardian of the individual, or if the individual is a minor, a parent with legal custody of the minor or other person authorized to consent to treatment pursuant to §54.1-2969A of the Code ofVirginia.

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2. If an attorney-in-fact, health care agent or legal guardian is not available, the Commonwealth or its designee shalldesignate a substitute decision maker as Authorized Representative in the following order of priority:
a. The individual's family member as designated by the individual, unless doing so
is clinically contraindicated.
b. If the individual does not have a preference or the preference is clinically contraindicated, the best qualified person shall be selected according to the following order of priority:
i. A spouse; ii. An adult child; iii. A parent; iv. An adult brother or sister; or v. Any other relative of the individual.
c. Next friend of the individual. If no other person specified above is available and willingto serve as Authorized Representative, the Commonwealth or its designee may designate a next friend of the individual in accordance with 12 VAC 35-115-
146, who has either:
i. Shared a residence with the individual; or
ii. Had regular contact or communication with the individual and provided significant emotional, personal, financial, spiritual, psychological, or other support and assistance to the individual.
3. No director, employee, or agent of a provider of services may serve as an Authorized Representative for any individual receiving services delivered by that provider unless the Authorized Representative is a relative or the legal guardian.
III. Serving Individuals with Developmental Disabilities In the Most Integrated Setting
A. To prevent the unnecessary institutionalization of individuals with ID/DD and to provide them opportunities to live in the most integrated settings appropriate to their needs consistent with their informed choice, the Commonwealth shall develop and provide the community services described in this Section.
B. Target Population:
1. The target population of this Agreement shall include individuals with ID/DD who meet any of the following additional criteria:
a. are currently residing at any of the Training Centers;

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b. who (i) meet the criteria for the wait list for the ID waiver, or(ii) meet the criteria
for the wait list for the DD waiver; or
c. currently reside in a nursing home or ICF. 2. The Commonwealth shall not excludeany otherwise qualifying individual from the
target population due to the existence of complex behavioral ormedical needs orof co-occurring conditions, including but not limited to, mental illness, traumatic brain
injuries, or other neurological conditions. 3. Individuals shall remain in the target population if they receive HCBS waiver services
or individual and family supports under this Agreement. 4. Individuals who are otherwise in the target population and who have been released
from forensic status or placed on conditional release by a court shall not be excluded from the target population solely on the basis of their former forensic status or current
conditional release status.
5. Inclusion in the target population does not guarantee or create a right to receiptof
services.
C. Enhancement of Community Services
1. By June 30, 2021, the Commonwealth shall create 4,170 waiver slots for the target population, to be broken down as follows:
a. The Commonwealth shall create a minimum of 805 waiver slots to enable
individuals in the target population in the Training Centers to transition to the community according to the following schedule:
i. In State Fiscal Year 2012,60 waiver slots
ii. In State Fiscal Year 2013,160 waiver slots
iii. In State Fiscal Year 2014,160 waiver slots
iv. In State Fiscal Year 2015, 90 waiver slots
v. In State Fiscal Year 2016, 85 waiver slots
vi. In State Fiscal Year 2017, 90 waiver slots
vii. In State Fiscal Year 2018, 90 waiver slots
viii. In State Fiscal Year 2019, 35 waiver slots
ix. In State Fiscal Year 2020, 35 waiver slots
b. The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the

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community individuals with intellectual disabilities under 22 years of age from
institutions other thanthe Training Centers (i.e., ICFs andnursing facilities), accordingto the following schedule:
i. In State Fiscal Year 2012, 275 waiver slots
ii. In State Fiscal Year 2013, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
iii. In State Fiscal Year 2014,225 waiverslots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes andthe largest
ICFs
iv. In State Fiscal Year 2015,250 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
v. In State Fiscal Year 2016,275 waiver slots, including 25 slots prioritized for individuals under22 years of age residing in nursing homes and the largest
ICFs
vi. In State Fiscal Year 2017, 300 waiver slots
vii. In State Fiscal Year 2018,325 waiver slots
viii. In State Fiscal Year 2019,325 waiver slots
ix. In State Fiscal Year 2020,355 waiver slots
x. In State Fiscal Year 2021, 360 waiver slots
c. The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities), according to the following schedule:
i. In State Fiscal Year 2012,150 waiver slots
ii. In State Fiscal Year 2013, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
iii. In State Fiscal Year 2014, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs

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iv. In State Fiscal Year 2015, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
v. In State Fiscal Year 2016,25 waiver slots, including 15 prioritized for individuals under 22 years of ageresiding in nursing homes andthe largest
ICFs
vi. In State Fiscal Year 2017,25 waiver slots, including 10 prioritized for individuals under 22 years of age residing in nursing homes and the largest
ICFs
vii. In State Fiscal Year 2018, 25 waiver slots, including 10 prioritized for individuals under22 years of ageresiding in nursing homes and the largest
ICFs
viii. In State Fiscal Year 2019,25 waiver slots
ix. In State Fiscal Year 2020, 50 waiver slots
x. In State Fiscal Year 2021,75 waiver slots
d. If the Commonwealth creates more waiver slots than are required in Sections IH.C.l.a, b, or c above for a particular fiscal year, the number of slots created abovethe requirement shall be counted towards the slots required to be created in the subsequent fiscal year in the relevant Section.
2. The Commonwealth shall create an individual and family support program for
individuals with ID/DD whom the Commonwealth determines to be most at risk of
institutionalization, according to the following schedule:
a. In State Fiscal Year 2013, a minimum of 700 individuals supported
b. In State Fiscal Year 2014, a minimum of 1000 individuals supported
c. In State Fiscal Year 2015, a minimum of 1000 individuals supported
d. In State Fiscal Year 2016, a minimum of 1000 individuals supported
e. In State Fiscal Year 2017, a minimum of 1000 individuals supported
f. In State Fiscal Year 2018, a minimum of 1000 individuals supported
g. In State Fiscal Year 2019, a minimum of 1000 individuals supported
h. In State Fiscal Year 2020, a minimum of 1000 individuals supported
i. In State Fiscal Year 2021, a minimum of 1000 individuals supported
3. If the Commonwealth substantially changes or amends its ID or DD waivers, the Parties shall meet within 15 days of final approval from CMS to determine if any

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provisions ofthis Agreement should be amended. The Parties agree that under any
new terms, at least as many individuals in each category in Sections Ill.C.l.a, b, and c
and C.2 above shall receive HCBS waivers and individual and family supports under
the Agreement. If the Parties cannot reach agreement within 90days, the Court shall
resolve the dispute.
4. With the consent of the United States and the Independent Reviewer, the
Commonwealth may re-allocate any unused waiver slotfrom onecategory of
Ill.C.l.a-c to another in any State Fiscal Year covered by this Agreement.
5. Case Management
a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.
b. For the purposes of this agreement, case managementshall mean:
i. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons importantto the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans ("ISP") that are individualized, person-centered, and meet the individual's needs;
ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and
iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.
c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.
d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
6. Crisis Services
a. The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall:

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i. Provide timely and accessible support to individuals with intellectual and developmental disabilities who are experiencing crises, including crises due to
behavioral or psychiatric issues, and to their families;
ii. Provide services focused on crisis prevention and proactive planning to avoid
potential crises; and
iii. Providein-home and community-based crisis servicesthat are directedat resolving crises and preventing the removal of the individual from hisor her current placement whenever practicable.
b. The crisis system shall include the following components:
i. Crisis Point of Entry
A. The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24
hours per day, 7 days per week and staffed with clinical professionals who are able to assess crisesby phone and assist the caller in identifying and connecting with local services. Where necessary, the crisis hotline will dispatch at least one mobile crisis team member who is adequately trained
to address the crisis.
B. By June 30, 2012, the Commonwealth shall train CSB Emergency Servicespersonnel in each Health Planning Region ("Region") on the new crisis response system it is establishing, how to make referrals, and the
resources that are available.
ii. Mobile crisis teams
A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.
B. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual's home or other community setting.
C. Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual
with ID/DD comes into contact with law enforcement.
D. Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.

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E. Mobile crisis teams shall provide local and timely in-home crisis support
for up to 3 days, with the possibility ofan additional period of up to 3 days upon review by the Regional Mobile Crisis TeamCoordinator.
F. ByJune 30, 2012, the Commonwealth shall have at least one mobile crisis team in eachRegion that shall respond to on-site criseswithin three hours.
G. ByJune 30,2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.
H. ByJune 30,2014, the Commonwealth shall have a sufficient number of
mobile crisis teams in each Region to respond on site to crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time.
iii. Crisis stabilization programs
A. Crisis stabilization programs offer a short-term alternative to institutionalizationor hospitalization for individuals who need inpatient
stabilization services.
B. Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement and if that is not possible, has then attempted to locate another communitybased placement that could serve as a short-term placement.
C. If an individual receives crisis stabilization services in a community-based placement instead of a crisis stabilization unit, the individual may be given the option of remaining in the placement if the provider is willing and has capacity to serve the individual and the provider can meet the needs of the individual as determined by the provider and the individual's case
manager.
D. Crisis stabilization programs shall have no more than six beds and lengths of stay shall not exceed 30 days.
E. With the exception of the Pathways Program operated at Southwestern Virginia Training Center ("SWVTC"), crisis stabilization programs shall not be located on the grounds of the Training Centers or hospitals with inpatient psychiatric beds. By July 1, 2015, the Pathways Program at SWVTC will cease providing crisis stabilization services and shall be replaced by off-site crisis stabilization programs with sufficient capacity to meet the needs of the target population in that Region.
F. By June 30, 2012, the Commonwealth shall develop one crisis stabilization program in each Region.
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G. By June 30,2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the
Commonwealth to meet the needs ofthe target population in that Region.
7. Integrated Day Activities and Supported Employment
a. To the greatest extent practicable, the Commonwealth shall provide individuals in thetarget population receiving services under this Agreement with integrated day
opportunities, including supportedemployment.
b. The Commonwealth shall maintain its membership in the State Employment
Leadership Network ("SELN") established by the National Association of State Developmental Disability Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy. The Employment First policy shall, at a minimum, be based on the following principles: (1) individual supported employment in integrated work settings is the first and priority service option for individuals with intellectual or developmental disabilities receiving day program or employment services from or funded by the Commonwealth; (2) the goal of employment services is to support individuals in integrated work settings where they are paid minimum or competitive wages; and (3) employment services and goals must be developed and discussed at least
annually through a person-centered planning process and included in ISPs. The Commonwealth shall have at least one employment service coordinator to monitor implementation of Employment First practices for individuals in the target population.
i. Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities. The plan will be under the direct supervision of a dedicated employment service coordinator for the
Commonwealth and shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
B. Establish, for individuals receiving services through the HCBS waivers:
1. Annual baseline information regarding:
a. The number of individuals who are receiving supported employment;
b. The length of time people maintain employment in integrated work settings;
c. Amount of earnings from supported employment;
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d. The number of individuals in pre-vocational services as definedin
12 VAC 30-120-211 in effect on the effective date ofthis Agreement; and
e. The length of time individuals remain in pre-vocational services.
2. Targets to meaningfully increase:
a. The number of individuals who enroll in supported employment each year; and
b. The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.
c. Regional Quality Councils, described in Section V.D.5 below, shallreview data regarding die extent to which thetargets identified in Section III.C.7.b.i.B.2 above are being met. These data shallbe provided quarterly to the Regional Quality Councils and the Quality Management system by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to
take additional measures to further enhance these services.
d. The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
8. Access and Availability of Services
a. The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth's
HCBS Waivers.
b. The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
9. The Commonwealth has made public its long-standing goal and policy, independent of and adopted prior to this Agreement or the Department of Justice's findings, of transitioning from an institutional model of care to a community-based system that meets the needs of all individuals with ID/DD, including those with the most complex needs, and of using its limited resources to serve effectively the greatest number of individuals with ID/DD. This goal and policy have resulted in a decline in the population of the state training centers from approximately 6000 individuals to approximately 1000 individuals. The Commonwealth has determined that this significant and ongoing decline makes continued operation of residential services fiscally impractical. Consequently, and in accordance with the Commonwealth's policy of transitioning its system of developmental services to a community-based
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system, the Commonwealth will provide tothe General Assembly within one year of
the effective date ofthis Agreement, a plan, developed in consultation with the Chairmen ofVirginia's House of Delegates Appropriations and Senate Finance Committees, to cease residential operations at four ofthe five training centers by the
end of State Fiscal Year 2021.
D. Community Living Options
1. The Commonwealth shall serve individuals in the target population in the most integrated setting consistentwith their informed choice and needs.
2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this
Agreement to live in their own home, leased apartment, or family's home, when such a placement is their informed choice and the most integrated setting appropriate to
their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources, including local, State, or federal affordable housing or rental assistance programs (tenant-based or project-based) and the fund described in
Section III.D.4 below.
3. Within 365 days of this Agreement,the Commonwealth shall develop a plan to increase accessto independent living options such as individuals' own homes or apartments. The Commonwealth undertakes this initiative recognizing that comparatively modest housing supports often can enable individuals to live successfully in the most integrated settings appropriate to their needs.
a. The plan will be developed underthe direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services ("DBHDS") and in coordination with representatives from the Department of Medical Assistance Services ("DMAS"), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations as determined appropriate by DBHDS.
b. The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement:
i. Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and
ii. Recommendations to provide access to these settings during each year of this Agreement.
4. Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental
assistance in accordance with the recommendations described above in Section
III.D.3.b.ii, to as many individuals as possible who receive HCBS waivers under this
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Agreement, express a desire for living intheir own home or apartment, and for whom such a placement is the most integrated setting appropriate to their needs.
5. Individuals in the target population shall not be servedin a sponsored home or any congregate setting, unless such placement is consistent with the individual's choice after receiving options for community placements, services, and supports consistent
with the terms of Section IV.B.9 below.
6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent
with the individual's needs and informed choice and has been reviewed by the
Region's Community Resource Consultant and, under circumstances described in
Section III.E below, by the Regional Support Team.
7. The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer educationabout less restrictive
community options on at least an annual basis to any individuals living outside their own home or family's home (and, if relevant, to their Authorized Representative or
guardian).
E. Community Resource Consultants and Regional Support Teams
1. The Commonwealth shall utilize Community Resource Consultant ("CRC") positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison betweenthe CSB case managers and DBHDS Central Office. The CRCs shall provide on-site, electronic, written, and telephonic technical assistance to CSB case managers and private providers regarding personcentered planning, the Supports Intensity Scale, and requirements of case management and HCBS Waivers. The CRC shall also provide ongoing technical assistance to CSBs and community providers during an individual's placement. The CRCs shall be a member of the Regional Support Team in the appropriate Region.
2. The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team ("PST") and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual's needs, consistent with the individual's informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC.
3. The CRC shall refer cases to the Regional Support Teams for review, assistance in resolving barriers, or recommendations whenever:
a. The PST is having difficulty identifying or locating a particular community placement, services and supports for an individual within 3 months of the individual's receipt of HCBS waiver services.
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b. The PSTrecommends and, upon his/her review, the CRC also recommends that an individual residing in his or her own home, his or her family's home, or a sponsored residence be placed in a congregate setting with five or more
individuals.
c. The PST recommends and, upon his/her review, the CRC also recommends an individual residing in any setting be placed in a nursing home or ICF.
d. There is a pattern of an individual repeatedly being removed from his or her
current placement.
IV. Discharge Planning and Transition from Training Center
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent withthe terms of this Section, excluding other dates agreed upon, and listed separately in this Section.
A. To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.
B. Discharge Planning and Discharge Plans
1. Discharge planning shall begin upon admission.
2. Discharge planning shall drive treatment of individuals in any Training Center and shall adhere to the principles of person-centered planning.
3. Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have Authorized Representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
4. The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual's growth, well being, and independence, based on the individual's strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual's life (including community living, activities, employment, education, recreation, healthcare, and relationships).
5. The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The
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discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior
to discharge) will include:
a. Provision of reliable information to the individual and, where applicable, the
Authorized Representative, regarding community options in accordance with
Section IV.B.9;
b. Identification of the individual's strengths, preferences, needs (clinical and
support), and desired outcomes;
c. Assessment ofthe specific supports and services that build on the individual's strengths and preferences to meetthe individual's needs and achieve desired outcomes, regardless of whether those services and supports are currently
available;
d. Listing of specific providers that can provide the identified supports and services that build on the individual's strengths and preferencesto meet the individual's
needs and achieve desired outcomes;
e. Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.
i. Such barriers shall not include the individual's disability or the severity of the disability.
ii. For individuals with a history of re-admission or crises, the factors that led to
re-admission or crises shall be identified and addressed.
6. Discharge planning will be done by the individual's PST. The PST includes the individual receiving services, the Authorized Representative (if any), CSB case manager, Training Center staff, and persons whom the individual has freely chosen or requested to participate (including but not limited to family members and close friends). Through a person-centered planning process, the PST will assess an individual's treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.
7. Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.
8. For individuals admitted to a Training Center after the date this Agreement is signed by both parties, the Commonwealth shall ensure that a discharge plan is developed as
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described herein within 30 days of admission. For all individuals residing in a Training Center on the date thatthis Agreement is signed by both parties, the Commonwealth shall ensurethat a discharge plan is developed as described herein
within six months of the effective date of this Agreement.
9. In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, theirAuthorized Representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider those options.
a. The individual shall be offered a choice of providers consistent with the individual's identified needs and preferences.
b. PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based servicesfor the individual, to provide individuals, their families, and, where applicable, their Authorized Representative with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family and peer programs to facilitate these opportunities.
c. PSTs and the CSB case managers shall assist the individual and, where applicable, their Authorized Representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual's transition.
10. Nothing in this Agreement shall prevent the Commonwealth from closing its Training Centers or transferring residents from one Training Center to another, provided that, in accordance with Virginia Code 37.2-837(A)(3), for as long as it remains effective, no resident of a Training Center shall be discharged from a Training Center to a setting other than a Training Center if he or his Authorized Representative chooses to continue receiving services in a Training Center. If the General Assembly repeals Virginia Code 37.2-837(A)(3), the Commonwealth shall immediately notify the Court, the United States, and the Intervenors. The Parties agree that repeal or alteration of Virginia Code 37.2-837(A)(3) justifies consideration of relief under Fed. R. Civ. P 60(b)(6).
11. The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about community services and supports to: propose appropriate options
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about how an individual's needs could be met in a more integrated setting; present individuals and their families with specific options for community placements,
services, and supports; and, together with providers, answer individuals' and families'
questions about community living.
a. In collaboration with the CSBs andcommunity providers, the Commonwealth
shall develop and provide training and information for Training Center staffabout the provisions ofthis Agreement, staff obligations underthe Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable
disciplines and all PSTs.
b. Person-centered thinking training will occurduring initial orientation and through annual refresher courses. Competency will be determined through documented observationof PST meetings and throughthe use of person-centered thinking coaches and mentors. Each Training Centerwill have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the person-centered tools and skills. Coaches throughout the state will have regular and structured sessions with person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person-centered thinking practicesthroughout all
levels of the Training Centers.
12. In the event that an individual or, where applicable, Authorized Representative opposes the PST's proposed options for placement in a more integrated setting after being provided the information and opportunities described in Section IV.B.9, the
Commonwealth shall ensure that PSTs:
a. Identify and seek to resolve the concerns of individuals and/or their Authorized Representatives with regard to community placement;
b. Develop and implement individualized strategies to address concerns and objections to community placement; and
c. Document the steps taken to resolve the concerns of individuals and/or their Authorized Representatives and provide information about community placement.
13. All individuals in the Training Center shall be provided opportunities for engaging in community activities to the fullest extent practicable, consistent with their identified needs and preferences, even if the individual does not yet have a discharge plan for transitioning to the community.
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14. The State shall ensure that informationaboutbarriers to discharge from involved
providers, CSB case managers, Regional Support Teams, Community Integration Managers, and individuals' ISPs is collected from the Training Centers and is aggregated and analyzed for ongoing quality improvement, discharge planning, and
development of community-based services.
15. In the event that a PST makes a recommendation to maintain placement at a Training
Center orto place an individual in anursing home orcongregate setting with five or
more individuals, the decision shall be documented, andthe PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address thebarriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 below, and such placements shall only occur as permitted by Section IV.C.6.
C. Transition to Community Setting
1. Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition ofthe individual
from the Training Center to the community placement.
2. Once trial visits are completed, the individual has selected a provider, and the provider agrees to servethe individual, discharge will occurwithin 6 weeks, absent conditions beyond the Commonwealth's control. If discharge does not occurwithin 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST. Where discharge does not occur within 3 months of selecting a provider, the PST shall identify the barriers to discharge and notify the Facility Directorand Community Integration Manager in accordance with
Section IV.D.2 below, and the case shall be referred to the Regional Support Teams
in accordance with Section IV.D.3 below.
3. The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct post-move monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual's movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
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4. The Commonwealth shall ensure that each individual transitioning from a Training
Center shall have a current discharge plan, updated within 30 days prior to the
individual's discharge.
5. The Commonwealth shall ensure that the PST will identify all needed supports,
protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful andoptimal community placement. The Commonwealth shall ensure that essential supports are in place atthe individual's community placement prior to the individual's discharge from the Training Center. This determination will be documented. The absence ofthose services and supports identified as non-essential by the Commonwealth, in
consultation with the PST, shall not be a barrier to transition.
6. No individual shall be transferred from a Training Center to a nursing home or
congregate settingwith five or more individuals unless placement in such a facility is
in accordance with the individual's informed choice after receiving options for
community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistentwith the individual's
informed choice.
7. The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms ofthis Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
D. Community Integration Managers and Regional Support Teams
1. The Commonwealth will create Community Integration Manager ("CIM") positions at each operating Training Center. The CIMs will be DBHDS Central Office staff members who will be physically located at each of the operating Training Centers. The CIMs will facilitate communication and planning with individuals residing in the Training Centers, their families, the PST, and private providers about all aspects of an individual's transition, and will address identified barriers to discharge. The CIMs will have professional experience working in the field of developmental disabilities, and an understanding of best practices for providing community services to individuals with developmental disabilities. The CIMs will have expertise in the areas of working with clinical and programmatic staff, facilitating large, diverse groups of professionals, and providing service coordination across organizational boundaries. The CIMs will serve as the primary connection between the Training Center and DBHDS Central Office. The CIMs will provide oversight, guidance, and technical assistance to the PSTs by identifying strategies for addressing or overcoming barriers to discharge, ensuring that PSTs follow the process described in
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Sections IV.B and C above, and identifying and developing corrective actions,
including the need for any additional training orinvolvement of supervisory staff.
CIMs shall be engaged in addressing barriers to discharge, including in all of the
following circumstances:
a. The PST recommends that an individual be transferred from a Training Center to
a nursing home or congregate setting with five or moreindividuals;
b. The PST is having difficulty identifying or locating a particular type of community placement, services and supports for anindividual within 90 days of development of a discharge plan during the first year of the Agreement; within 60 days of development of a discharge plan during the second year ofthe Agreement; within 45 days of development of a discharge plan in the third year of the Agreement; and within 30 days of development of a discharge plan thereafter.
c. The PST cannot agree on a discharge plan outcomewithin 15 days ofthe annual PST meeting, or within 30 days afterthe admissionto the Training Center.
d. The individual or his or her Authorized Representative opposes discharge after all the requirements described in Section IV.B.9 have been satisfied or refuses to participate in the discharge planning process;
e. The individual is not discharged within three months of selecting a provider, as described in Section IV.C.2 above. The PST shall identify the barriers to discharge and notify both the facility director and the CIM; or
f. The PST recommends that an individual remain in a Training Center. If the individual remains at the Training Center, an assessment by the PST and the CIM will be performed at 90-day intervals from the decision for the individual to remain at the Training Center, to ensure that the individual is in the most integrated setting appropriate to his or her needs.
The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM. The CIM may consult at any time with the Regional Support Teams and will refer cases to the Regional Support
Teams when:
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a. The CIM is unable, within 2 weeksof the PST's referral to the CIM, to document attainable steps thatwill be taken to resolve any barriers to community placement
enumerated in Section IV.D.2 above.
b. A PSTcontinues to recommend placement in a Training Centerat the second quarterly review following the PST's recommendation that anindividual remain in a Training Center (Section IV.D.2.f), and at all subsequent quarterly reviews that maintain the same recommendation. This paragraphshall not take effect until two years after the effective date of this Agreement.
c. The CIM believes external review is needed to identify additional steps that can be taken to remove barriers to discharge.
4. The CIM shall provide monthly reports to DBHDS Central Office regarding thetypes of placements to which individuals have been placed, including recommendations that
individuals remain at a Training Center.
V. Quality and Risk Management System
A. To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals' needs, and help individuals achievepositive outcomes, including avoidance of harms, stable community living,and increasedintegration, independence, and self-determination in all life domains (e.g., community living, employment, education, recreation, healthcare, and relationships), and to ensurethat appropriate services are available and accessible for individuals in the target population, the Commonwealth shall develop and implement a quality and risk management system
that is consistent with the terms ofthis Section.
B. The Commonwealth's Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals' needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.
C. Risk Management
1. The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm. Harm includes any physical injury, whether caused by abuse, neglect, or accidental causes.
2. The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol. The protocol shall require that any staff of a Training Center, CSB, or community provider aware of any suspected or alleged incident of abuse or neglect as defined by Virginia Code § 37.2-100 in effect on the effective date of this Agreement, serious injury as defined by 12 VAC 35-115-30 in effect on the effective date of this Agreement, or deaths directly report such
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information to the DBHDS Assistant Commissioner for Quality Improvement or his or her designee.
3. The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, ordeaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed inthe Virginia DBHDS Licensing Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effectonthe effective date ofthis Agreement) and theVirginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DBHDS Human Rights Regulations" (12 VAC 35-115-50(D)(3)) in effectonthe effective date ofthis Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations.
4. The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
5. The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The Commissioner shall establishthe monthly mortality review team, to include the DBHDS Medical Director, the Assistant Commissioner for Quality Improvement, and others as determined by the Department who possess appropriate experience, knowledge, and skills. The team shall have at least one member with the clinical experience to conduct mortality reviews who is otherwise independent of the State. Within ninety days of a death, the monthly mortality review team shall: (a) review, or document the unavailability of: (i) medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual's death; (ii) the most recent individualized program plan and physical examination records; (iii) the death certificate and autopsy report; and (iv) any evidence of maltreatment related to the death; (b) interview, as warranted, any persons having information regardingthe individual's care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems at the individual service-delivery and systemic levels and develop and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable.
6. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations (12 VAC 35-115240), the DBHDS Licensing Regulations (12 VAC 35-105-170), Virginia Code § 37.2-419 in effect on the effective date ofthis Agreement, and other requirements in this Agreement.
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D. Data to Assess and Improve Quality
1. The Commonwealth's HCBS waivers shall operate in accordance with the
Commonwealth's CMS-approved waiver quality improvement plan to ensure the
needs of individuals enrolled in a waiver are met, that individuals have choice in all
aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers; identification, response and prevention of occurrences of abuse, neglect and exploitation; administrative oversight of all waiver functions including contracting; and financial accountability. Reviewof data shall occur atthe local and
statelevels by the CSBs and DBHDS/DMAS, respectively.
2. The Commonwealth shall collect andanalyze consistent, reliable data to improvethe availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall use data to:
a. identify trends, patterns, strengths, and problems at the individual, servicedelivery, and systemic levels, including, but not limited to, quality of services, service gaps, accessibility of services, serving individuals with complex needs,
and the discharge and transition planning process;
b. develop preventative, corrective, and improvement measures to address identified
problems;
c. track the efficacy of preventative, corrective, and improvement measures; and
d. enhance outreach, education, and training.
3. The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areasby June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area:
a. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion or restraints, deaths, effectiveness of corrective actions, licensing violations);
b. Physical, mental, and behavioral health and well being (e.g., access to medical care (including preventative care), timeliness and adequacy of interventions (particularly in response to changes in status));
c. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or hospitals, admissions to Training Centers or other congregate settings, contact with criminal justice system);
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d. Stability (e.g., maintenance of chosen living arrangement, change in providers,
work/other day program stability);
e. Choice and self-determination (e.g., service plans developed through person-
centered planning process, choice of services and providers, individualized goals,
self-direction of services);
f. Community inclusion (e.g., community activities, integrated work opportunities, integrated living options, educational opportunities, relationships with non-paid
individuals);
g. Access to services (e.g., waitlists, outreach efforts, identified barriers, service gaps and delays, adaptive equipment, transportation, availability of services geographically, cultural and linguistic competency); and
h. Provider capacity (e.g., caseloads, training, staffturnover, provider competency).
4. The Commonwealth shall collect and analyze data from available sources, including, the risk management system described in Section V.C. above, those sources described in Sections V.E-G and I below (e.g., providers, case managers, Quality Service Reviews, and licensing), Quality Management Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.
5. The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.
a. The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may
include other relevant stakeholders.
b. Each council shall meet on a quarterly basis to shareregional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
6. At least annually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in this Agreement) and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.
E. Providers
1. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement ("QI") program, including root cause analyses, that is sufficient to identify and address significant service issues and is consistent with the requirements of the
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DBHDS Licensing Regulations at 12 VAC 35-105-620 in effectonthe effective date
of this Agreement and the provisions of this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident
reporting requirements orthrough their QI program. Reported key indicators shall capture information regarding both positive and negative outcomes for bothhealth and safety and community integration, and will be selected from the relevant domains
listed in Section V.D.3. above. The measures will be monitored and reviewed by the
DBHDS quality improvement committee, withinput from Regional Quality Councils,
described in Section V.D.5 above. The DBHDS quality improvement committee will assess the validity of each measure at least annually and update measures
accordingly.
3. The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers' quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategiesthe Commonwealth determines to be inadequate.
F. Case Management
1. For individuals receiving case management services pursuant to this Agreement, the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conduct regularvisits to the individual's residence, as dictated by the
individual's needs.
2. At these face-to-face meetings, the case manager shall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual's support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual's support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual's strengths and preferences, then the case manager shall report and document the issue, convene the individual's service planning team to address it, and document its resolution.
3. Within 12 months of the effective date of this Agreement, the individual's case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual's place of residence, for any individuals who:
a. Receive services from providers having conditional or provisional licenses;
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b. Have more intensive behavioral or medical needs as defined by the Supports
Intensity Scale ("SIS") category representing the highest level of risk to
individuals;
c. Have an interruption of service greater than 30 days;
d. Encounter the crisis system for a serious crisis or for multiple less serious crises
within a three-month period;
e. Have transitioned from a Training Centerwithin the previous 12 months; or
f. Reside in congregate settings of 5 or more individuals.
4. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
5. Within 24 months from the date of this Agreement, key indicators from the case manager's face to face visits with the individual, andthe case manager's observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both healthand safety and community integration,
and will be selected from the relevant domains listed in Section V.D.3 above.
6. The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date ofthis Agreement. This training shall be built on the principles of self-determination and person-centeredness.
G. Licensing
1. The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
2. Within 12 months ofthe effective date ofthis Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including:
a. Providers who have a conditional or provisional license;
b. Providers who serve individuals with intensive medical and behavioral needs as
defined by the SIS category representing the highest level of risk to individuals;
c. Providers who serve individuals who have an interruption of service greaterthan
30 days;
d. Providers who serve individuals who encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;
e. Providers who serve individuals who have transitioned from a
Training Center within the previous 12 months; and
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f. Providers who serve individuals in congregate settings of 5 or more individuals.
3. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports
and services provided to persons receiving services under this Agreement in each of
the domains listed in Section V.D.3 above and that these data and assessments are
reported to DBHDS.
H. Training
1. The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training
shall include person-centered practices, community integration and self-determination
awareness, and required elements of service training.
2. The Commonwealth shall ensure that the statewide training program includes
adequate coaching and supervision of stafftrainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and
supervising.
I. Quality Service Reviews
1. The Commonwealth shall use Quality Service Reviews ("QSRs") to evaluate the qualityof services at an individual, provider, and system-wide level and the extentto which services are provided in the most integrated setting appropriate to individuals' needs and choice. QSRs shall collect information through:
a. Face-to-face interviews of the individual, relevant professional staff, and other people involved in the individual's life; and
b. Assessment, informed by face-to-face interviews, of treatment records, incident/injury data, key-indicatorperformance data, compliance with the service requirements of this Agreement, and the contractual compliance of community services boards and/or community providers.
2. QSRs shall evaluate whether individuals' needs are being identified and met through person-centered planning and thinking (including building on individuals' strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals' needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals). Information from the QSRs shall be used to improve practice and the quality of services on the provider, CSB, and system wide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.
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4. The Commonwealth shall conduct QSRs annually of a statistically significantsample of individuals receiving services under this Agreement.
VI. Independent Reviewer
A. The Parties have jointly selected Donald J. Fletcher as the Independent Reviewer forthis Settlement Agreement. In the event thatthe Independent Reviewer resigns or the Parties agree to replace theIndependent Reviewer, the Parties will select a replacement. If the Parties are unable to agree on a replacement within 30 days from the date the Parties receive a notice of resignation from the Independent Reviewer, or from the datethe Parties agree to replace the Independent Reviewer, they shall each submit the names of up to three candidates to the Court, and the Court shall select the replacement from the
names submitted.
B. The Independent Reviewer shall conduct the factual investigation and verification of data and documentation necessaryto determine whether the Commonwealth is in compliance with this Settlement Agreement, on a six-month cyclecontinuing during the pendency of the Agreement. The Independent Reviewer is not an agent of the Court, nor does the Independent Reviewer have any authority to act on behalfof the Court. The Independent Reviewer may hire staff and consultants, in consultation with and subject to reasonable objections by the Parties,to assist in his compliance investigations. The Independent Reviewerand any hired staff or consultants are neither agents nor business associates of
the Commonwealth or DOJ.
C. The Independent Reviewer shall file with the Court a written report on the Commonwealth's compliance with the terms of this Agreement within 60 days of the close of each review cycle. The first report shall be filed nine months from the effective date of this Agreement. With the consent of the Court, the Court will hold a status conference after the filing of each written report. The Independent Reviewer shall provide the Parties a draft of his/her report at least 21 days before issuing the report. The Parties shall have 14 days to review and comment on the proposed report before it is filed with the Court. The Parties may agree to allow the Independent Reviewer an additional 20 days to finalize a report after he/she receives comments from the Parties, and such an agreement does not require Court approval. In preparing the report, the Independent Reviewer shall use appendixes or other methods to protect confidential information so that the report itself may be filed with the Court as a public document. Either Party may file a written report with the Court noting its objections to the portions of the Independent Reviewer's report with which it disagrees. The Commonwealth shall publish and maintain these reports on the DBHDS website.
D. Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with copies to the Parties. The Parties shall seek a protective order permitting these reports to be shared with Intervenors' counsel and upon entry of such order, shall promptly send copies of the reports to Intervenors' counsel.
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E. The Independent Reviewer, and any hired staff or consultants, may:
1. Have ex parte communications with the Court uponthe Court's request or with the
consent of the Parties.
2. Have ex parte communications with the Parties at any time.
3. Request meetings with the Parties and the Court.
4. Speak with stakeholders with such stakeholders' consent, on a confidential basis or
otherwise, at the Independent Reviewer's discretion.
5. Testify in this case regarding anymatter relating to the implementation orterms of this Agreement, including the Independent Reviewer's observations and findings.
6. Offer to provide the Commonwealth with technical assistance and, with the Commonwealth's consent, provide such technical assistance, relatingto any aspect of this Agreement or its stated purposes.
7. Conduct regular meetings with both Parties. The purpose of these meetings shall include, among other things, to prioritize areas for the Independent Reviewer to review, schedule visits, discuss areas of concern, and discuss areas in which technical
assistance may be appropriate.
F. The Independent Reviewer and any hired staff or consultants shall not be liable for any claim, lawsuit, or demand arising out of their duties under this Agreement. This paragraph does not apply to any proceeding before this Court for enforcement of payment of contracts or subcontracts for reviewing compliance with this Agreement.
G. The Independent Reviewer and any hired staff or consultants shall not be subject to formal discovery, including, but not limited to, deposition(s), request(s) for documents, request(s) for admissions, interrogatories, or other disclosures. The Parties are not entitled to access the Independent Reviewer's records or communications, or those of his/her staff and consultants, although the Independent Reviewer may provide copies of records or communications at the Independent Reviewer's discretion. The Court may review all records ofthe Independent Reviewer at the Court's discretion.
H. In order to determine compliance with this Agreement, the Independent Reviewer and any hired staff or consultants shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, including individuals' medical and other records, in unredacted form, and materials that are necessary to assess the Commonwealth's compliance with this Agreement, to the extent they are within the State's custody or control. This shall include, but not be limited to, access to the data and records maintained by the Commonwealth pursuant to Section V above. The provision of any information to the Independent Reviewer pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties. The Independent Reviewer and any hired staff or consultants may also interview individuals receiving services under this Agreement with the consent of the individual or his/her Authorized Representative. Access to CSBs and private
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providers and entities shall beat the sole discretion of the CSB or private provider or entity; however, the Commonwealth shall encourage CSBs and private providers and other entities to provide such access and shall assist the Independent Reviewer in identifying and contacting them. The Independent Reviewer shall exercise his/her access to Commonwealth employees and individuals receiving services under this Agreement in
a mannerthat is reasonable and not unduly burdensome to the operation of Commonwealth agencies and that has minimal impact on programs or services being
provided to individuals receiving services under this Agreement. Such access shall continue untilthe Agreement is terminated. The Parties agree that, in cases of an emergency situation that present an immediate threat to life, health, or safety of individuals, the Independent Reviewer will notbe required to provide the Commonwealth notice of suchvisit or inspection. Any individually identifying health information that the Independent Reviewer and any hired stafforconsultants receive or maintain shall be
kept confidential.
I. Budget of the Independent Reviewer
1. Within 45 days of appointment, the Independent Reviewer shall submit to the Court for the Court's approval a proposed budget for State Fiscal Year 2013. Using the proposed budget for State Fiscal Year 2013, the Independent Reviewer shall also propose an equivalent amount prorated through the remainder of State Fiscal Year
2012 as the budget for State Fiscal Year 2012.
2. The Independent Reviewer shall providethe Parties a draft of the proposed budget at least 30 days in advance of submission to the Court. The Parties shall raise with the Independent Reviewer any objections they may have to the draft of the proposed budget within 10 business days of its receipt. If the objection is not resolved before the Independent Reviewer's submission of a proposed budget to the Court, a Party may file the objection with the Courtwithin 10 business days of the submission of the proposed budget to the Court. The Court shall consider such objections and make any adjustments it deems appropriate priorto approving the budget.
3. Thereafter, the Independent Reviewer shall submit annually a proposed budget to the Court for its approval by April 1 in accordance with the process set forth above.
4. At any time, the Independent Reviewer may submit to the Parties for approval a proposed revision to the budget, along with any explanation of the reason for the proposed revision. Should the Parties and Independent Reviewer not be able to agree on the proposed revision, the Court will be notified as set forth in Section V.H.2
above.
5. The approved budget ofthe Independent Reviewer shall not exceed $300,000 in any State Fiscal Year during the pendency of this Agreement, inclusive of any costs and expenses of hired staff and consultants, without the approval of the Commonwealth or the Court pursuant to Sections V.H.2. or H.4. above.
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J. Reimbursement and Payment Provisions
1. The cost of the Independent Reviewer, including the cost of any consultants and staff to the Reviewer, shall be borne by the Commonwealth in this action up to the amount of the approved budget for each State Fiscal Year. All reasonable expenses incurred by the Independent Reviewer in the course of the performance of his/her duties as set forth in this Agreement shall be reimbursed by the Commonwealth. In no eventwill the Commonwealth reimburse the Independent Reviewer for any expense that exceeds the approved fiscal year budget or the amount approved under Sections
V.H.4 or H.5 above. The Court retains the authority to resolve any dispute that may arise regardingthe reasonableness of fees and costs charged by the Reviewer. The United States shall bear its own expenses in this matter. If a dispute arises regarding reasonableness of fees or costs, the Independent Reviewer shall provide an accounting justifying the fees or costs.
2. The IndependentReviewer shall submit monthly statementsto DBHDS, with copies to the United States and the Court, detailing all expenses the Independent Reviewer incurred during the prior month. DBHDS shall issue payment in accordance with the monthly statement as long as such payment is within the approved State Fiscal Year budget. Such payment shall be made by DBHDS within 10 business days of receipt of the monthly statement. Monthly statements shall be provided to: Assistant Commissioner for Developmental Services, DBHDS, P.O. Box 1797, Richmond,
Virginia 23238-1797.
3. In the event that, upon a request by the United States or the Independent Reviewer, the Court determines that the Commonwealth is unreasonably withholding or delaying payment, or if the Parties agree to use the following payment procedure, the following payment procedure will be used:
a. The Commonwealth shall deposit $100,000.00 into the Registry of the Court as interim payment of costs incurred by the Independent Reviewer. This deposit and all other deposits pursuant to this Order shall be held in the Court Registry Investment System and shall be subject to the standard registry fee imposed on depositors.
b. The Court shall order the clerk to make payments to the Independent Reviewer. The clerk shall make those payments within 10 days of the entry ofthe Order directing payment. Within 45 days of the entry of each Order directing payment, the Commonwealth shall replenish the fund with the full amount paid by the clerk in order to restore the fund's total to $100,000.00.
K. The Independent Reviewer, including any hired staff or consultants, shall not enter into any contract with the Commonwealth while serving as the Independent Reviewer. If the Independent Reviewer resigns from his/her position as Independent Reviewer, he/she may not enter into any contract with the Commonwealth on a matter related to this Agreement during the pendency of this Agreement without the written consent ofthe
United States.
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L. Other than the semi-annual compliancereport pursuant to Section VI.C above or proceedings beforethe Court, the Independent Reviewer, and any hired staff or consultants, shall refrain from any public oral or written statements to the media, including statements "on background," regarding this Agreement, its implementation, or the Commonwealth's compliance. In addition, the Independent Reviewer shall not establish or maintain a website regarding this Agreement, its implementation, or the
Commonwealth's compliance.
VII. Construction and Termination
A. The Partiesagreejointly to file this Agreement with the United States District Court for
the Eastern District of Virginia, Richmond Division.
B. The Parties anticipate that the Commonwealth will have complied with all provisions of the Agreement by the end of State Fiscal Year2021. Compliance is achieved where any violations of the Agreement are minor or incidental and are not systemic. The Court shall retainjurisdiction of this action for all purposes until the end of State Fiscal Year 2021
unless:
1. The Partiesjointly ask the Court to terminate the Agreement before the end of State Fiscal Year 2021, provided the Commonwealth has complied with this Agreement
and maintained compliance for one year; or
2. The United States disputes that the Commonwealth is in compliance with the Agreement at the end of State Fiscal Year2021. The United States shall inform the Court and the Commonwealth by January 1, 2021, that it disputes compliance, and the Court may schedule further proceedingsas appropriate. The Party that disagrees with the Independent Reviewer's assessment of compliance shall bear the burden of proof.
C. The burden shall be on the Commonwealth to demonstrate compliance to the United States pursuant to Section VII.B.l above. If the Commonwealth believes it has achieved compliance with a portion of this Agreementand has maintained compliance for one year, it shall notify the United States and the Independent Reviewer. If the United States agrees, the Commonwealth shall be relieved of that portion of the Settlement Agreement and notice of such relief shall be filed with the Court. The Parties may instead agree to a more limited review of the relevant portion of the Agreement.
D. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals receiving services under this Agreement, if the United States believes that the Commonwealth has failed to fulfill any obligation under this Agreement, the United States shall, prior to initiating any court proceeding to remedy such failure, give written notice to the Commonwealth which, with specificity, sets forth the details of the alleged noncompliance.
1. With the exception of conditions or practices that pose an immediate and serious threat to the life, health, or safety of individuals covered by this Agreement, the Commonwealth shall have forty-five (45) days from the date of such written notice to respond to the United States in writing by denying that noncompliance has occurred,
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or by accepting (without necessarily admitting) the allegation of noncompliance and proposing steps that the Commonwealth will take, and by when, to cure the alleged
noncompliance.
2. If the Commonwealth fails to respond within45 days or denies thatnoncompliance has occurred, the United States may seek an appropriate judicial remedy.
3. If the Commonwealth timely responds by proposing curative action by a specified deadline, the United States may accept the Commonwealth's proposal or offer a counterproposal for a different curative action ordeadline, butin no event shall the United States seek an appropriate judicial remedy for the alleged noncompliance until after the time provided for the Commonwealth to respond under Section VII.D.2 above. If the Parties fail to reach agreement on a plan for curative action, the United States may seek an appropriate judicial remedy.
4. Notwithstanding the provisions of this Section, with the exceptionof conditions that pose an immediate and serious threat to the life, health, or safety of individuals receiving services under this Agreement, the United States shall neither issue a noncompliance notice nor seekjudicial remedy for the nine months afterthe effective
date of mis Agreement.
E. If the United States believes that conditions or practices within the control of the Commonwealth pose an immediate and serious threat to the life, health, or safety of individuals in the Training Centers or individualsreceiving services pursuantto this Agreement, the United States may, without further notice, initiate a court proceeding to remedy those conditions or practices.
F. This Agreement shall constitute the entire integrated Agreement of the Parties.
G. Any modification of this Agreement shall be executed in writing by the Parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it.
H. The Agreement shall be applicable to, and binding upon, all Parties, their employees, assigns, agents, and contractors charged with implementation of any portion ofthis Agreement, and their successors in office. If the Commonwealth contracts with an outside provider for any of the services provided in this Agreement, the Agreement shall be binding on any contracted parties, including agents and assigns. The Commonwealth shall ensure that all appropriate Commonwealth agencies take any actions necessary for the Commonwealth to comply with provisions ofthis Agreement.
I. The Commonwealth, while empowered to enter into and implement this Agreement, does not speak for the Virginia General Assembly, which has the authority under the Virginia Constitution and laws to appropriate funds for, and amend laws pertaining to, the Commonwealth's system of services for individuals with developmental disabilities. The Commonwealth shall take all appropriate measures to seek and secure funding necessary to implement the terms of this Agreement. If the Commonwealth fails to attain necessary appropriations to comply with this Agreement, the United States retains all rights to enforce the terms of this Agreement, to enter into enforcement proceedings, or to
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withdraw its consent to this Agreement and revive any claims otherwise barred by operation of this Agreement.
J. The United States and the Commonwealth shall bear the cost of their fees and expenses
incurred in connection with this case.
VIII. General Provisions
A. The Commonwealth agreesthat it shallnot retaliate against any person becausethat person has filed or may file a complaint, provided assistance or information, or participated in any other manner in the United States' investigation or the Independent Reviewer's duties related to this Agreement. The Commonwealth agrees that it shall timely and thoroughly investigate any allegations of retaliation in violation of this Agreement and take any necessary corrective actions identified through such
investigations.
B. If an unforeseen circumstance occurs that causes a failure to timely fulfill any
requirement of this Agreement, the Commonwealth shall notify the United States and the Independent Reviewer in writing within 20 calendardays after the Commonwealth
becomes aware of the unforeseen circumstance and its impact on the Commonwealth's
abilityto performunder the Agreement. The notice shall describethe cause of the failure to perform and the measures taken to prevent or minimize the failure. The
Commonwealth shall take reasonable measures to avoid or minimize any such failure.
C. Failure by any Party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provisionherein shall not be construed as a waiver, including of its right to enforce other deadlines and provisions of this Agreement.
D. The Parties shall promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof, and shall defend against any challenge to the
Agreement.
E. Except as provided in this Agreement, during the pendencyof the Agreement, the United States shall not file suit under the ADA or CRIPA for any claim or allegation set forth in
the complaint.
F. The Parties represent and acknowledge this Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of any and all claims arising out of the allegations set forth in the Complaint and pleadings in this Action, and for the express purpose of precluding any further or additional claims arising out of the allegations set forth in the Complaint and pleadings in this Action. Each Party
to this Agreement represents and warrants that the person who has signed this Agreement on behalf of his or her entity is duly authorized to enter into this Agreement and to bind that Party to the terms and conditions of this Agreement.
G. Nothing in this Agreement shall be construed as an acknowledgement, an admission, or evidence of liability of the Commonwealth under federal or state law, and this Agreement
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shall not be used as evidence of liability in this or any other civil or criminal proceeding.
H. This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall togetherconstitute one and the same agreement, notwithstandingthat each Party is not a signatory to the original or the same counterpart.
I. "Notice" under this Agreement shall be provided to the following or their successors:
For the United States:
Chief of the Special Litigation Section United States Department of Justice Civil Rights Division
601 D Street, N.W. Washington, D.C. 20004
For the Commonwealth:
Attorney General of Virginia
900 E. Main Street
Richmond, VA 23219
Counsel to the Governor
Patrick Henry Building, 3rd Floor
1111 E. Broad Street
Richmond, VA 23219
For the Independent Reviewer:
Donald J. Fletcher P.O. Box 54 16CornwellRoad
Shutesbury, MA 01072-0054
IX. Implementation of the Agreement
A. The implementation of this Agreement shall begin immediately upon the Effective Date, which shall be the date on which this Agreement is approved and entered as an order of
the Court.
B. Within one month from the Effective Date of this Agreement, the Commonwealth shall appoint an Agreement Coordinator to oversee compliance with this Agreement and to serve as a point of contact for the Independent Reviewer.
C. The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented and shall make such records available to the Independent Reviewer for inspection and copying upon request and on a
reasonable basis.
D. The Commonwealth shall notify the Independent Reviewer and the United States
36

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 50 of 53 PageID# 4688
promptly upon the unexplained or unexpected death or serious physical injury resulting in on-going medical care of any individual covered by this Agreement. The
Commonwealth shall, via email, forward to the United States and the Independent Reviewer electronic copies of all completed incident reports and final reports of investigations related to such incidents, as well as any autopsies and death summaries in the State's possession. The provision of anyinformation to the Independent Reviewer andthe United States pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties. The United States shall have full access to persons, employees, residences, facilities, buildings, programs, services, documents, records, and materials that are within the control and custody of the Commonwealth and are necessary to assess the Commonwealth's compliance with this Agreementand/or implementation efforts. 1. Such access shall include departmental and/or individual medical and other records in
unredacted form.
2. The United States shall provide notice at least one week in advance of any visit or
inspection.
3. The Parties agree that, in cases of an emergency situation that presents an immediate threat to life, health, or safety of individuals, the United States wijl be required to provide the Commonwealth with sufficient notice of such visit or inspection as to permit a Commonwealth representative to join the visit.
4. Such access shall continue until this case is dismissed.
5. The Commonwealth shall provide to the United States, as requested, in unredacted form, any documents, records, databases, and information relating to the implementation of this Agreement as soon as practicable, but no later than within thirty (30) business days of the request, or within a time frame negotiated by the Parties if the volume of requested material is too great to reasonably produce within thirty days.
6. The provision of any information to the United States pursuant to this Agreement shall not constitute a waiver of any privilege that would otherwise protect the information from disclosure to third parties.
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Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 51 of 53 PageID# 4689

FOR THE UNITED STATES:

Respectfully submitted,

NEIL H. MacBRIDE
United States Attorney Eastern District ofVirginia

THOMAS E. PEREZ
Assistant Attorney General Civil Rights Division

EVE HILL
Senior Counselor to the Assistant Attorney General Civil Rights Division

ROBERT McINTOSH
Virginia Bar Number 66113 Attorney for the United States of America United States Attorney's Office 600 East Main St., Suite 1800 Richmond, VA 23219 Telephone: (804) 819-5400 Facsimile: (804) 819-7417 Email: Robert.McIntoshffiusdoi.gov

ALISON N.BARKOFF
Special Counsel for Olmstead Enforcement Civil Rights Division
JONATHAN SMITH Chief
Special Litigation Section

BE!
Deputy pnief
AARON B. ZISSER
JACQUELINE K. CUNCANNAN
VINCENT HERMAN
Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 (202) 305-3355 Fax: (202)514-4883
Aaron.Zisser@usdoi .gov

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Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 52 of 53 PageID# 4690

FOR THE COMMONWEALTH:

-?*rv
WILLIAM A. HAZEL, JR., M.D. Secretary of Health and Human Resources
on Behalf of Governor Robert F. McDonnell

"//Z.

KENNETH T. CUCCINELLI, II as Attorney General of Virginia pursuant to Virginia Code § 2.2-514

£ ( ujpu^vQl/v
ALLYSON^C. TYSINGER
Senior Assistant Attorney General
900 East Main Street
Richmond, Virginia 23219 (804) 786-1927 Fax: (804)371-8718 ATysinger@oag.state.va.us Virginia State Bar No. 41982

=UliI12,

39

Case 3:12-cv-00059-JAG Document 112 Filed 08/23/12 Page 53 of 53 PageID# 4691

&yX . ENTERED THIS /£_ day of

2012.

UNITED STATES DISTRICT JtfJDGE

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 </s> Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 1 of 66 PageID# 4716
REPORT OF THE INDEPENDENT REVIEWER
ON COMPLIANCE WITH THE
SETTLEMENT AGREEMENT
UNITED STATES V. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia
Civil Action No. 3:12 CV 059
March 6, 2012 – October 6, 2012
Respectfully Submitted By:
Donald J. Fletcher Independent Reviewer
December 6, 2012

Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 2 of 66 PageID# 4717

TABLE OF CONTENTS

I. Executive Summary

iii

II. Introduction

1

III. Activities of the Commonwealth of Virginia

2

• Early Initiatives

• Project Teams

• Stakeholder Involvement

IV. Independent Reviewer

4

• Duties, responsibilities

• Methods

• Activities

V. Findings

7

• Case Management

• Crisis Services and Prevention

• Integrated Day Activities and Supported Employment

• Discharge Planning and Transition

• Safety in the community

• Individual and Family Supports

• Family-to-Family and Peer Programs

VI. Additional Information and Financial Considerations

21

VII. Conclusion

25

VIII. Recommendations

25

IX. Appendices

26

A. Discharge Planning-Individual Review Selected Tables 27

B. Crisis Service Requirements

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I. EXECUTIVE SUMMARY
This is the first report to the Court in the Settlement Agreement (the Agreement) between the United States and the Commonwealth of Virginia (the Parties), Civil Action No. 3:12cv059, which appointed the Independent Reviewer (the Reviewer). This report covers the period March 6, 2012-October 6, 2012, although information is included that was gathered through November 30, 2012.
The Agreement states the Commonwealth of Virginia’s (the Commonwealth) intention to provide services in the most integrated setting appropriate to the individual needs of those with intellectual and developmental disabilities (ID/DD) who receive services in accordance with their informed choice. The Agreement includes a commitment to reform the Commonwealth’s service system for individuals with ID/DD with the explicit aim to achieve the goals of community integration, self-determination, and quality services. These goals have paramount importance for Virginians with ID/DD. When the Agreement is fully implemented, and compliance is achieved, at least an additional 4170 individuals will be supported with integrated residential and day services in the community. This includes at least 805 individuals who currently reside in the five Training Centers, and 180 children who reside in nursing facilities and large community Intermediate Care Facilities (ICF). Also, 1000 individuals who live independently, or with their families, will receive support services.
Successful implementation of the Agreement’s requirements will also provide: enhanced individualized service planning, coordination, monitoring, and safety. It will ensure increased information about and choices from a broad array of more integrated services; including community living, integrated day, and supported employment options. The Commonwealth will give timely and accessible support for all individuals with ID/DD who experience crises to stabilize without inpatient services. The quality of services in a reformed service system will be supported by increased and statewide performance standards in several important areas including staff training, oversight and guidance, program monitoring, risk management, and quality assurance processes.
These increased community-based services and systems reforms are critical to the lives of thousands of individuals and families and to the inclusiveness, vitality and diversity of communities throughout the Commonwealth. Families of individuals, and the self-advocates; those who receive services, those waiting, and those with significant needs but not eligible; describe the responses they have experienced from the service system as inadequate and often overwhelming. These families are often already overwhelmed by the challenges of raising family members with complex needs. Some of the families of Training Center residents are concerned for the well being of their loved ones who will move to new homes. Some of the families waiting for services share the worry that the promises in the Agreement will not be realized.
Today, there are many Virginians with ID/DD who have benefited from services that have helped them create opportunities, build relationships and improve their lives. These include residential services that have supported their personal skill development to become more self-sufficient and to live with greater independence. Employment programs have promoted skill development and opportunities to discover the capacity and satisfaction of meaningful work, earned income, and becoming a taxpayer. Individuals with the most complex needs can be, and are, supported in integrated settings that help people discover opportunities for meaningful participation in their communities. While these service options and positive outcomes exist for some individuals, they are not yet readily available on a sufficient scale, or with the timeliness, that allows for a full realization of their benefits. That is the essential challenge faced by the Commonwealth.
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There are many people who are now working together to make needed changes. The Commonwealth’s Governor, General Assembly, Offices of the Secretary of Health and Human Resources and the Attorney General, The Commissioner of the Department of Behavioral Health and Developmental Services (DBHDS) and his Senior Staff, Community Service Boards (CSB), private providers, parents groups, and other Commonwealth agencies, stakeholders, advocates and community partners have all made vital contributions to the early efforts to implement the Agreement. Stakeholder involvement is fundamental for successful implementation and sustainability of reforms.
The Reviewer is pleased to report that the Commonwealth has demonstrated a good faith effort to comply with the Agreement’s requirements that have been monitored. Considerable progress has been made. Most accomplishments to date have occurred with programs prioritized for early planning, funding and implementation. The Governor requested, and the General Assembly appropriated, $30 million to the DBHDS Trust Fund in FY11, and after reaching the Agreement increased that to $60 million. DBHDS used some of these funds to organize and implement statewide initiatives that are service system cornerstones upon which the success of the other Agreement initiatives depend. Planning has begun on eighteen projects, each with a leader and team, several of which include stakeholder members.
The Reviewer has prioritized six areas of primary importance and with due dates for the first review period, March 6, 2012 - October 6, 2012. They are: Waivers, Case Management, Crisis Services, Integrated Day Activities and Employment First, Discharge Planning and Transition from Training Centers, and the safety of those living in the community. The Reviewer also monitored the planning and initial development activities for other provisions that are vital to individuals and families and to achieving the goals of the agreement. More extensive monitoring will occur during the second reporting period, October 7, 2012 - April 6, 2013, as these programs are developed further and as more and complete data are available. These provisions include Waiver slot placements from the wait lists, Individual and Family Support Program, Access and Availability of services, Community Living Options, Community Resource Consultants and Regional Support Teams, and Quality and Risk Management.
Waivers: The Commonwealth met the requirement for FY12 and FY13 to establish Home and Community Based Services (HCBS) Waivers for 895 individuals with ID/DD to allow residents of the Training Centers, and nursing facilities and large community ICFs, to move to community settings and to prevent the unnecessary institutionalization of individuals living in the community. In FY 13 this provision targets forty waiver slots for individuals under twenty-two years of age to transition to the community from nursing homes and the largest ICFs. Twenty-five slots are for individuals with ID and fifteen for with DD, other than ID. DBHDS is working with the Department of Medical Assistance Services (DMAS) and the Centers for Independent Living to determine the individuals who would choose to transition during the latter part of FY13. Although the Commonwealth established the number of required waiver slots, it is the Reviewer’s preliminary opinion that the ID wavier rates and structure create incentives that promote congregation and are inadequate to serve those with the most complex needs.
A Case Management core competency-based training curriculum has been developed and completed by 2,750 staff. This has been a significant investment and step forward in establishing a statewide standard of care for case management services. Statewide performance standards are required by the Agreement. Currently, the case management services provided by 40 different CSBs, and by non-CSB case managers, are characterized, in part, by their different operating procedures, forms and training. Case managers will fill an expanded and more vital coordination and
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accountability role in the future. Significant improvements are necessary to accomplish both the Agreement’s required performance standards for case management, and the long-term goals of the Agreement. These performance standards apply to both ID and DD case management. The Reviewer has not yet had time to analyze the quality of the core competency-based training or the extent to which DD case managers have been trained.
Crisis Services have been initiated utilizing a statewide, tested and reliable service model. Due to the early start, the crisis services implementation plan did not include the Agreement’s requirements to serve adults with DD or children with either ID or DD. The Commissioner clarified that crisis services must be available to adults with DD. Questions remain about their access to case management and, therefore, other services. Development of the crisis services has been delayed for typical reasons (i.e. slow hiring of staff and preparation of buildings) and to accommodate less than expected funding. Progress toward full compliance requires adequate resources to implement a plan to provide crisis services for children. In addition, it requires that adults with DD have full access to crisis services. Finally, the Commonwealth must ensure that the crisis services program operations in all five regions and existing emergency services work together to meet the Agreement’s statewide performance standards.
Integrated Day Activities and Employment First will be the priority service options to create opportunities for individuals served to become valued participants in their communities. The Commonwealth was a leader in this field twenty years ago, but fell far behind due to the way day services have been funded. To implement the Agreement, an employment coordinator was hired, trainings provided, and an Employment First policy and a Strategic Plan were developed. The policy includes the elements required by the Agreement. However, it is the Reviewer’s assessment that although the Strategic Plan requires significant further development and specificity to comply with the required implementation plan. The Strategic Plan did include the collection of some data, but did not establish the required meaningful targets for improvement. Although the data collected is limited, it is the Reviewer’s assessment that they are adequate to establish initial, yet meaningful, targets to increase integrated day activities and supported employment. DBHDS expects to establish the targets by March 31, 2013. Involvement of the SELN in developing the specifics of the implementation plan and the targets is important for an effective plan and to comply with its required consultation role.
Discharge Planning and Transition from Training Centers has made impressive progress. New discharge and post-move monitoring processes were implemented on time at all the Training Centers from which 117 individuals have moved to community homes. An Individual Review study of those who moved in FY12, before new processes were required, established baselines for needed progress. Strengths of the former process were noted, as were areas of concern. Several Improvements have since been implemented. The individuals who transitioned during FY 12 and their Authorized Representatives were willing to consider moving to the community, and there was capacity to support them. Although they have substantial needs, as a group they did not represent those with the most complex needs living in the Training Centers. The Reviewer has not had time to thoroughly study the reasons that the individuals with the most complex needs did not move in FY12. However, from preliminary analysis, it is the Reviewer’s initial opinion that three factors may have contributed. These include the lack of information provided to individuals and families about available community-based service options, especially by families of individuals with similar needs who were already receiving such services. A second issue is the lack of the Regional Support Teams to assist in resolving identified barriers to moving to the most integrated setting. A third factor is the inadequacy of the existing waiver funding rates and rate structure. This inadequacy has resulted in limited provider capacity to serve those with the most complex needs. Initial steps have been taken and the Commonwealth expects to begin the family-to-family mentoring program in December 2012 and the Regional Support Teams in
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January 2013. DBHDS reports that discussions are underway to determine the best method for learning how to restructure the waivers and rates to achieve the desired results.
The safety of the individuals in the community was monitored in three ways: an Individual Review study was completed; reports of Serious Injury and Deaths (there have been no deaths) were reviewed; and the tracking process established by DBHDS for serious injuries and deaths was studied. The Reviewer and expert consultants met face-to-face with fifty-two of the fifty-nine individuals who moved from the Training Centers to the community in FY12. The Discharge Planning - Individual Review study was completed for thirty-two individuals randomly selected to provide a sufficient degree of confidence that findings can be generalized to the fifty-nine individuals. For all the individuals who moved, the reports of serious injuries were reviewed. The Reviewer completed reviews of four individuals who have experienced events that resulted in injuries that required on-going medical care. These events included falls, aspirations, and self-injurious behaviors. In each situation the DBHDS licensing specialists followed established procedures of investigating the injuries, completing unannounced visits, interviewing relevant staff, reviewing records, and if needed, developing Corrective Action Plans. Reports of these reviews were filed under seal to the Court with copies to the Parties and Intervener counsel. Then they monitored implementation of recommendations. DBHDS has established a project team to address new licensure, human rights, risk management, and data analysis requirements.
Other monitoring activities included the Reviewer, and expert consultants, meeting with individuals served, family members, staff and government officials. They also gathered information from a broad array of sources, including visits to more than sixty sites to observe, interview, review documents, and study records. He has had regular, formal and informal communication and meetings with the Parties and with stakeholders. All have graciously responded to requests for information and to share their perspectives. The Reviewer will report to the Court twice yearly for the pendency of the Agreement.
The Reviewer has also monitored, though with less and varying levels of intensity, the initial planning and development activities of other major topics of the Agreement. These topics include individual and family supports, integrated housing, placements off the wait lists discharge from training centers other than SVTC and CVTC, “barrier-busting” mechanisms, and family-to-family and peer programs.
Included in this report are: brief descriptions of the activities of the Commonwealth and the Reviewer, findings for major initial initiatives, next steps required for progress toward compliance, additional information and financial considerations, conclusion and recommendations.
During the second review period, October 7, 2012 - April 6, 2013, the Reviewer’s more intense monitoring will focus on the general areas of placements from the wait lists, individuals with DD under 22 years of age living in nursing homes and larger ICFs, integration, safety, and services to avoid unnecessary institutionalization. The specific provisions include completion of the Integrated Day Activities and Employment First implementation plan. They also include implementation of the Integrated Day Activities and Employment First policy. In addition, the specific provisions include the development of Community Living Options to provide independent housing; full implementation of the Community Resource Consultant, Community Integration Manager, and Regional Support Team initiatives; Quality and Risk Management; development of the Individual and Family Support program; and meeting the performance standards for Crisis Services.
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II. INTRODUCTION
This is the first report to the Court in the Settlement Agreement (the Agreement) between the United States and the Commonwealth of Virginia Civil Action No. 3:12cv059, which appointed the Reviewer.
In the Agreement, the Parties committed to improve the lives of people with ID/DD by preventing their unnecessary institutionalization and by providing opportunities to live in the most integrated settings appropriate to the individuals’ needs consistent with their informed choice, and by reforming the service system. It is the explicit aim of the Agreement to achieve the goals of community integration, self-determination, and quality services.
These goals have paramount importance for Virginians with ID/DD. Fulfilling them will allow these individuals to live and participate as valued members of their communities, families and networks of friends. When fully implemented and compliance is achieved, the Agreement will result in the addition of at least 4,170 individuals in the target population being served in the community. There are 805 waiver slots targeted for individuals currently residing in Training Centers, and twenty-five ID and fifteen DD waiver slots in fiscal years (FY) 2013, 2014, 2015, and 2016 targeted for individuals under twenty-two years of age to transition from nursing facilities or community based Intermediate Care Facilities (ICF) to more integrated settings. For those most at risk of institutionalization and not receiving waiver-funded services, 700 in FY13, and 1,000 individuals annually thereafter, will receive individual and family support services.
Successful implementation of the Agreement’s requirements will also provide: • enhanced individualized service planning, coordination, monitoring, and safety; • increased information about, and choice of, an array of more integrated services including community living, integrated day, and supported employment options; and • timely and accessible support for those who experience crises to stabilize without inpatient services.
The quality of services in a reformed service system will be supported by increased and statewide performance standards in several important areas including staff training, oversight and guidance, program monitoring, risk management, and quality assurance processes. In brief, effective implementation of the Agreement’s provisions is envisioned by the parties as providing opportunities for improved lives for these Virginians and a reformed service system that continues to provide positive outcomes for the sustainable future.
These positive outcomes are more than aspirations for individuals and families. They are critical to their lives. As of November 2012, there are more than 6,200 individuals on the ID wait lists and 1,167 on the DD wait list in the Commonwealth. Families of individuals who receive services, those waiting, and those deemed ineligible, describe the response they have experienced as inadequate and often overwhelming. They are often already overwhelmed by the challenges of raising family members with complex needs. They characterize the inadequacies as existing in every sphere:
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• the very high level of need to be eligible for any waiver funded services; • the complicated and overwhelming bifurcated service system with multiple waivers; • the lack of clear and responsible points of access to available services; • the challenges of two agencies responsible for the ID and DD services, especially for
families with children who are DD and uncertain about an ID diagnosis; • the lack of available services and low payment rates to support individuals, especially for
those with the most complex needs; • the lack of timely, accessible and knowledgeable assistance in crises and the threat of
institutionalization when involved with local police or hospitals unfamiliar with the service system; • the limited array of service options that offer truly integrated services; and • the disparate quality and availability of services in different locations and among providers.
To reform the service system and address some of the shortcomings that stakeholders have experienced, the Commonwealth has taken impressive steps before and throughout the first reporting period. Still progress is very slow from the perspectives of most advocates. Continuing to effectively implement a coordinated and comprehensive plan that includes the provisions of the Agreement is essential for success, for compliance, and for addressing the challenges that are critical to the lives of individuals with ID/DD and their families.
III. ACTIVITIES OF THE COMMONWEALTH
The Commonwealth initiated a concerted effort to plan, fund, and initiate the early priority program initiatives before the Parties finalized or signed the Agreement. These priorities – waiver slots, case management, crisis services, integrated day activities and employment support, discharge planning and transition from Training Centers, and safety – are cornerstone elements of an effective statewide service system and have due dates during the first review period. The early efforts of the Commonwealth were critical to the considerable progress that has been made. These efforts included planning, funding and providing leadership.
Since the Parties signed the Agreement on January 26, 2012, the Commonwealth has demonstrated good faith in complying with its requirements for the first reporting period that the Reviewer has monitored. They have also begun the important planning activities to meet future Agreement obligations. The Governor has provided important leadership. The General Assembly has appropriated needed funding. Senior staff of the Virginia Office of the Secretary of Health and Human Resources (VSHHR), and from many other Virginia state agencies, have participated in implementation workgroups. The DBHDS Commissioner and Senior Staff have planned, organized resources, and provided leadership to a broad range of initiatives. Experienced new DBHDS staff has been hired to take on some of the most critical additional work needed to reform and build an enhanced service system. Stakeholders have been actively involved to ensure that their valuable perspectives, knowledge and expertise are considered in the deliberations of the many workgroups. The workgroups are designed to guide and provide oversight for implementation of the new initiatives. The Virginia Office of the Attorney General (VOAG) has maintained open communication and a problem solving approach with the
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Department of Justice. This has facilitated shared understanding and progress on implementation of the requirements of the Agreement.
The Commonwealth had completed many important and necessary early steps when Judge John A. Gibney Jr. signed a temporary order entering the Agreement on March 6, 2012. These early actions reflect the level of commitment present among the leaders, General Assembly members, and other stakeholders whose support is essential to achieving compliance. The Governor had requested and the General Assembly had appropriated $60 million to begin implementation through the DBHDS Trust Fund. An interagency team was formed to oversee, support and coordinate its implementation. The DBHDS had begun a concerted effort to execute the Agreement’s important initial provisions. The new FY12 HCBS Waiver slots had been created. DBHDS had committed to implement Crisis Services by implementing Systemic Therapeutic Assessment Respite and Treatment (START) to provide crisis services to individuals with ID/DD statewide. Case Management Core Competency Based Training Curriculum was being implemented, all Training Centers had begun using a new discharge planning processes, and the FY13 budget included $3 million to develop individual and family support services, and a onetime $800,000 fund for integrated community living options.
The DBHDS Commissioner and Senior Staff are leading an organized and concerted planning and implementation effort, as evidenced by the development of the Settlement Agreement Implementation Structure. Eighteen projects have been identified related to implementation. Each has a project team leader and is responsible for one or more specific Agreement requirement(s). Many have stakeholder committee members. A statewide overarching Stakeholder Group has been formed to promote communication, information sharing, and advice about implementation. After Judge Gibney signed and entered the final order on August 23, 2012, DBHDS developed a new system for gathering and notifying the Reviewer of serious injuries to former Training Center residents. DBHDS provided a DOJ Implementation Update July 23, 2012; a second update was published November 30, 2012. There has been considerable progress on the initiatives that were planned, funded and begun before the Parties signed and filed the Agreement on January 26, 2012.
The activities of the Commonwealth involve many stakeholders who are deeply committed to the target population and who are motivated to participate in implementation to ensure positive outcomes in their lives. The Commonwealth’s involvement of stakeholders is important to the reform envisioned by the Parties and vital to long-term sustainability. Meaningful integration into community life for people with disabilities is supported by the collaboration and inclusion of valued members of the community. During the first reporting period, the interests of those with an investment in the work of the DBHDS have been highly visible and clearly expressed by their participation in and oversight of the reform efforts. With the implementation of the Agreement’s provisions there will be more stakeholders with greater understanding. Individuals served will have opportunities to get to know their new neighborhoods and neighbors. New community partnerships will be formed, for example between the new crisis service teams and local hospitals, police departments, and others. An expanded number of business leaders and typical workers will become successfully engaged with individuals through supported employment. The collaboration with stakeholders, and the increased participation of the individuals in the fabric of community life, are the best hope for long-term sustainability of the provisions of the Agreement.
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IV. INDEPENDENT REVIEWER
A. Duties and Responsibilities
The Agreement describes the Reviewer’s duties and responsibilities in determining whether the Commonwealth is in compliance. He will conduct the factual investigation and verification of data and documentation. He will file a written report on the Commonwealth’s compliance with the terms of the Agreement. The Reviewer’s reports are due twice annually, on a six-month cycle, during the pendency of the Agreement. Additional reports of serious injuries and deaths of former Training Center residents are reviewed and submitted under seal to the Court with copies to the Parties and Intervenor’s counsel. To complete these responsibilities the Reviewer, and the expert consultants retained, have full access to the Parties and stakeholders, as well as access to persons, employees, residences, facilities, programs, services, and all records, necessary to assess the Commonwealth’s compliance. The Reviewer’s first report to the court is due December 6, 2012, nine months from March 6, 2012, the effective date of the Agreement. The reporting period monitored in this report is between March 6, 2012, and October 6, 2012. The report is based on information received by November 30, 2012. The second reporting period extends from October 7, 2012, to April 6, 2013, with the second report to the Court due by June 6, 2013.
B. Methods and sources for gathering facts:
The Reviewer’s facts and findings presented in this report come from a broad array of sources and methods. These include:
• observations during site visits; • reviews of documents (e.g. policies, plans, training materials, records, forms,
investigations); • interviews (e.g. with officials, providers, staff, individuals, families); • input from stakeholders (e.g. self-advocates, family groups, providers, CSBs, academics,
researchers); • self reporting (e.g. DBHDS summaries on progress, data, external consultant reports,
reports on compliance); and • individual reviews (e.g. expert consultant and clinician interviews with individuals, staff,
site visit and review of discharge plans, individual support plans, monitoring reports, medical records).
Since Judge John A. Gibney signed an order temporarily entering the Agreement on March 6, 2012, until the writing of this report, the Reviewer has completed site visits and interviews with staff and individuals served in each of Virginia’s five Training Centers, forty-six provider operated sites including day and residential programs, eight Community Service Boards (CSB), two regional crisis service programs, and two Centers for Independent Living. Site visits included observations of physical facilities, programs, and interviews with direct support professionals, program managers, senior staff, social workers, case managers, nurses, family members, individuals served, and others who are waiting for needed support.
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The Reviewer prioritized for this first reporting period, the most intensive monitoring for: Waivers, Case Management, Crisis Services, Integrated Day Activities and Employment First, Discharge Planning and Transition from Training Centers, and safety of those served in the community. The Reviewer has also monitored, though with less and varying levels of intensity, the initial planning and development activities of other major topics of the Agreement. These topics include individual and family supports, integrated housing, “barrier-busting” mechanisms (CIMs, CRCs and RSTs), and family-to-family and peer-to-peer programs.
How the Reviewer monitored each of these program provisions is described below.
For Crisis Services an independent expert was hired to complete a review of Crisis Services. The independent expert’s “Crisis Service Requirements” report (Appendix B) focused on the aspects of the program development that were to be in place by June 30, 2012: Statewide Crisis System, Crisis Point of Entry, Mobile Crisis Teams, and Crisis Stabilization Programs. The review process consisted of extensive document review and interviews with key DBHDS and START Services staff. The reviewer has also made on-site visits, interviewed staff at two regional crisis services programs, and interviewed and read the quarterly report of the external consultant who is guiding this effort.
For Discharge Planning and Transition from Training Centers and Case Management, a Discharge Planning - Individual Review study (Individual Reviews) was designed that focused on fifty-nine individuals from a placement list provided by DBHDS. These are the individuals who moved from Southside Virginia Training Center (SVTC) and Central Virginia Training Center (CVTC) between November 2011 and June 15, 2012. A sample of thirty-two individuals was randomly selected from the community placement list using Random Sampler add-on software for Excel. The sample size was selected to provide a 90% confidence level and a 10% confidence interval, and therefore offers a sufficient degree of confidence that findings can be generalized to the fifty-nine individuals. A monitoring tool, a questionnaire was developed based on the requirements of the Agreement and DBHDS policies and procedures. The Individual Reviews were completed by a two-person team of experts, one of whom was a Registered Nurse with extensive experience working with individuals with ID/DD. The reviewers visited with and interviewed each individual and the staff present, and observed the quality and adequacy of the home environment. They also reviewed documents such as the discharge plan, post-move monitoring reports, individual support plans, and medical records. In addition, of the twenty-seven individuals who moved but were not selected in the random sample, the Reviewer and expert consultants visited twenty in their homes and/or day programs, bringing the total visited to fifty-two (88%) of the fifty-nine individuals.
It is important to note that the individuals in the Discharge Planning - Individual Review study transitioned from the Training Centers before the Agreement was final, and before the Discharge Planning and Transition provisions were required on July 1, 2012. This study, therefore, establishes a baseline from which to measure progress as system reforms and provisions of the Agreement are fully implemented and refined over time.
For the safety of the individuals who live in the community monitoring occurred in three ways: an Individual Review study was completed, reports of Serious Injury and Deaths
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were reviewed, and the tracking process established by DBHDS for serious injuries and deaths was studied. Between July and September 2012 the Reviewer and expert consultants met face-toface with fifty-two of the fifty-nine individuals who moved from the Training Centers to the community between November 2011 and mid-June 2012. The Discharge Planning - Individual Review study provides a sufficient degree of confidence that findings can be generalized to the fifty-nine individuals. The adequacy, quality, and safety of their homes were observed. Staff was interviewed and the individuals’ discharge and support plans and medical records were carefully reviewed. For all the individuals who moved, the reports of serious injuries were reviewed. The Reviewer completed reviews of four individuals who have experienced injuries that required ongoing medical care. The events that led to these injuries included falls, aspirations, and selfinjurious behaviors. In each situation the DBHDS licensing specialists followed established procedures to investigate the injuries, completed unannounced visits, interviewed relevant staff, reviewed records, and if needed, developed Corrective Action Plans. Then they monitored implementation of recommendations. The Reviewer’s findings have been reported to the Court under seal. Copies are shared with the Parties and the Intervenor’s counsel. In addition to these monitoring activities, DBHDS has established a project team to address new licensure, human rights, risk management, and data analysis requirements.
The Reviewer’s monitoring activities also included studying many plans, reports, policies, meeting agendas and minutes, tracking reports, incident reports, investigations, announcements, regulations, numerous records of individuals served, and consultant reports. In addition, the Reviewer interviewed officials, providers, consultants, staff, and individuals. He received input from key stakeholders, including CSBs, providers family groups, self advocates, etc. Finally, the Reviewer had regular and frequent, formal and informal, contact with the senior staff at the DBHDS and SHHR. These monitoring activities informed the Reviewer of the status of the topics monitored that are not described in detail above.
The Reviewer will monitor during the second review period, October 7, 2012 - April 6, 2013, compliance with the provisions of the Agreement. There will be more intense monitoring of the general areas of placements from the wait lists; transitions of individuals with DD under 22 years of age living in nursing homes and larger ICFs; integration; safety; and services to avoid unnecessary institutionalization. The specific provisions include completion of the Integrated Day Activities and Employment First implementation plan. They also include implementation of the Integrated Day Activities and Employment First policy. In addition, the specific provisions include the development of Community Living Options to provide independent housing; full implementation of the “barrier busting” provisions (Community Resource Consultants, Community Integration Managers; and Regional Support Teams); Quality and Risk Management; development of the Individual and Family Support program; and meeting the performance standards for Crisis Services.
The Reviewer will report twice annually during the pendency of this Agreement. Those reports will be public. The Commonwealth will publish and maintain these reports on the DBHDS website.
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V. FINDINGS
For the Findings section of this report, the DBHDS was asked to provide data and documentation of its progress in meeting the requirements of the Agreement. Progress toward compliance was discussed in regular work sessions and meetings of the Parties during the first review period; progress was noted through observations during site visits; reviews of a wide array of documents; interviews with officials; input from stakeholders; reports from work groups and consultants, DBHDS reports on progress, and from Individual Reviews.
The Discharge Planning - Individual Review reports of the individuals in the sample have been distributed to the Parties. DBHDS is studying the review reports to determine appropriate actions. As Individual Reviews were completed, two issues of immediate concern were discussed with DBHDS staff who took corrective actions. As a result DBHDS also made adjustments to procedures and documentation requirements. During the term of the Agreement, it will be important to continue to focus on continuous improvement. Developing policies, procedures, staff training and monitoring practices that produce consistent quality results will require an evolutionary process. This process identifies shortcomings and ways of improving, and subsequently incorporates needed refinements.
Below are the Reviewer’s findings regarding the status of the Commonwealth’s initiatives and the next steps that must be taken to make progress toward compliance.
Waivers “..shall create 60 waiver slots in FY12 to enable individuals in the target population in the Training Centers to transition to the community. (ii. 160 in FY13) Section III.C.1.a.i-ii.
“...create a minimum of 275 waiver slots in FY12...to prevent the unnecessary institutionalization of individuals with ID in the target population...or to transition to the community individuals with ID under 22 years of age from institutions other than the Training Centers (ICF’s and nursing facilities)..(ii. 225 in FY13 of which 25 prioritized for those under 22 years of age in nursing facilities and the largest ICF’s) Section III.C.1.b.i-ii.
“...create a minimum of 150 waiver slots in FY12 to prevent the unnecessary institutionalization of individuals with DD in the target population...or to transition to the community…under 22 years of age from institutions other than the Training Centers. (ii. 25 in FY13 including 15 for individuals under 22) Section III.C.1.c.i-ii.
The Commonwealth has complied with the requirements for establishing and distributing waiver slots the first reporting period. Sixty ID waiver slots were established and sixty-one individuals moved from SVTC and CVTC during FY12. One hundred and sixty waiver slots were established for FY13 to provide opportunities for current Training Center residents; forty-one of whom have moved to the community between July 1, 2012 and October 30, 2012. Not all the waiver slots were used as Money Follows the Person funds were used for individuals who moved to homes with four or fewer residents, and others moved to a community ICF or already had an assigned waiver. A determination will be made regarding “how unexpended balances associated
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with the unused slots will be used to move forward with implementation of the Settlement Agreement.”
To prevent the institutionalization of individuals with ID/DD, the Commonwealth met the requirement of providing 275 ID waiver slots during FY12 and established 300 for FY13, 75 more than was required by the Agreement. Of the waiver slots established in FY13, twenty-five are prioritized for individuals under 22 years of age. DBHDS distributed waiver slots to Community Service Boards (CSBs), which used them for individuals with ID on their urgent wait lists. The Commonwealth also met the requirement of providing 150 DD waiver slots during FY12 and twenty-five for FY13, which were distributed by DMAS to individuals on the DD waiver wait list. DBHDS and DMAS are working with the Centers for Independent Living and the Virginia Board for People with Disabilities to determine how to identify individuals in nursing facilities or community ICFs who would fill the FY13 waiver slots.
The individuals prioritized to move from SVTC and CVTC were those who expressed interest in moving to the community and for whom the provider capacity (i.e. appropriate homes, adequate staff resources and competencies, and well developed health and wellness management systems) existed to meet their needs. Though the sample of thirty-two individuals had substantial needs (thirteen (40.6%) were non-ambulatory and twenty-six (81.2%) were non-verbal), these individuals were not as a group representative of those with the most complex needs. Providers, many of whom have available vacancies and are seeking referrals, explain that they are not able to provide needed services to the individuals with the most complex needs with current funding rates and rate structure, except in larger congregate settings. Some providers rejected referrals of individuals with more complex needs.
Steps that must be taken to make progress toward compliance:
• identify individuals with DD residing in nursing facilities or community ICF’s to transition to integrated settings during FY13; and
• take the steps necessary to ensure that those with the most complex needs are provided opportunities to live in the most integrated setting appropriate to their needs and consistent with their informed choice.
Case Management “…ensure that individuals receiving HCBS waiver services…receive case management services, defined as:
Assembling professionals and non professionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served…develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs;
Assisting the individual to gain access to needed...services identified in the ISP; and
Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans...; Sections III.C.5.a.-b.
“…the case manager shall meet with the individual…as dictated by the individual’s needs; and
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…assess whether the individual’s support plan is being implemented appropriately…and supports are being implemented…and…if inadequately…convene the individual’s service planning team to address it… ” Sections V.F.1-6.
Before the Agreement was finalized, the Commonwealth developed and implemented a statewide core competency-based training curriculum for case managers built on selfdetermination and person centered principles. As of September 30, 2012, a total of 2,750 DBHDS and CSB staff, case managers and private providers had completed all six of the modules that have been developed. Statewide performance standards are required by the Agreement. Currently, the case management services provided by 40 different CSBs, and by non-CSB case managers, are characterized, in part, by their different operating procedures, forms, case loads, and training. Case managers will fill an expanded and more vital coordination and accountability role in the future. Significant improvements are necessary to accomplish both the Agreement’s required performance standards for case management, and the long-term goals of the Agreement. These performance standards apply to both ID and DD case management. The Reviewer has not yet had time to analyze the quality of the core competency-based training or the extent to which DD case managers have been trained.
Highlights from the Discharge Planning-Individual Reviews illustrate positive outcomes and areas of concern (see Appendix A: Individual Review-Discharge Planning Selected Tables for more data).
Of the sample of 32 individuals reviewed:
Positive outcomes related to the development and implementation of Individual Support Plans were:
• 32 (100%) were receiving case management services; • 32 (100%) ISPs were current; • 31 (90.6%) ISPs listed all their essential supports; • 32 (100%) were receiving the medical supports identified in the ISP; and • 31 (96.9%) were receiving the recreation services identified in the ISP.
Areas of concern related to the development and implementation of Individual Support Plans were:
• 10 (31.3%) were not receiving all the services identified in their ISP; • 5 (27.8%) of the 18 individuals with identified concerns since moving have not had
those concerns resolved; • 10 (31.3%) were not receiving dental services; • 3 (60%) of the 5 individuals with identified need were not receiving
communication/assistive technology; • 6 (19.4%) of 31 individuals were not receiving day services (could not determine for one);
and • 12 (37.5%) did not have evidence of personal décor in their room and other personal
space.
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Positive outcomes related to the individuals’ homes were: • 23 (95.8%) of the 24 individuals with identified need had been provided all needed supports for adapted environments and equipment; • 31 (96.9%) of their homes were free of any safety issues; • 32 (100%) of their homes were clean and had adequate food and supplies; and • 30 (92.3%) of their homes were located near community resources.
The reviewers noted two other concerns that need further review. One is whether the objectives in some ISPs were measurable and sufficiently promoted the individual’s growth and skill development. The other was whether staff in some homes provided the individuals sufficient habilitation, i.e. teaching skills and competencies to promote growth.
Steps that must be taken to make progress toward compliance:
• monitor implementation of the ISP to ensure timely additional referrals for medical professionals (e.g. dental examination, nutritional assessment), day services, and communication; to ensure that all individuals were receiving the supports identified in the ISP; and to ensure that staff are aware of and monitor the major side effects of psychotropic medications, including for tardive dyskinesia;
• ensure that all ISPs include objectives that are measurable and focused on the development of skills for increased independence; and
• ensure that all providers and staff provide sufficient habilitation to teach individuals skills and competencies that increase self-sufficiency and independence.
Crisis Services The Independent Reviewer retained an expert consultant to review compliance with the crisis service requirements of the Agreement. That report “Crisis Service Requirements” (See Appendix B) is quoted in this section of the Reviewer’s report. It describes the status of compliance efforts that were to be in place as of June 30, 2012, and areas of potential noncompliance with the Agreement, Statewide Crisis System, Crisis Point of Entry, Mobile Crisis Teams, and Crisis Stabilization Programs. The consultant’s review process consisted of extensive document review and interviews with key DBHDS and START Services staff. The Reviewer monitored with on-site visits and interviewing staff at two regional crisis services programs, and by interviewing and reviewing the quarterly report, June 30, 2012 - September 30, 2012, of the external consultant guiding program implementation.
Crisis Services Section III.C.6. Statewide Crisis System: Sections 6.a.i. ii. & iii; Crisis Point of Entry: Section 6.b.i.B; Mobile Crisis Teams: Section 6.b.ii.F.; and Crisis Stabilization Programs: Section 6.b.iii.F.
The Commonwealth is commended for their efforts to implement crisis services and stabilization programs statewide, and for beginning their work before the Agreement was signed. DBHDS is also commended for deciding to use a “reliable, well-tested and comprehensive service delivery model, Systemic Therapeutic Assessment Respite and Treatment (START)” which provides a
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“roadmap to meet the requirements of the Agreement and develop a statewide system to prevent, intervene and stabilize crisis situations...” DBHDS has initiated a “planning process and is providing leadership to enhance the state’s ability to respond to the crisis needs of individuals who have ID/DD and a co-occurring mental health diagnosis or a behavioral challenge that places them at risk of institutionalization.” Although “delays in program implementation have created a situation of only partial compliance the planning, organizational support, funding and well-conceived program design poise the state to implement successful crisis response in each region.”
Full compliance with Sections 6.a.i, 6.a.ii, and 6.a.iii will be determined by how well staff in both the ID and Emergency Services divisions of the CSBs, providers and the START programs are prepared to address the needs of individuals with ID/DD who are at risk of or are experiencing a crisis. The Crisis Services Requirements report describes the training in crisis response and deescalation required of staff who work directly with individuals who exhibit behavioral challenges including provider and CSB Emergency Services staff. Past analyses of the two models used, the Therapeutic Options of Virginia and Mandt System, have established their efficacy. Additional Positive Behavioral Support training is provided to behavioral consultants, teachers and case managers. START Services offers comprehensive training; and there are requirements for START staff to attend. START Coordinators must participate in all required training to become certified within one year of being hired. All these training approaches include the components that met the criteria established in the State Health Authority Yardstick (SHAY) to determine high quality training. The START training also includes quality elements of ongoing consultation and technical support.
The sufficiency and sustainability of funding for START Services is another measure of the Commonwealth’s ability to meet the crisis system requirements of the Agreement. Funding of $7.8 million, rather than the $10 million initially planned for by DBHDS, and additional unused funds from the prior year have been made available for implementation of the START program. All regions are currently funded to implement crisis services and stabilization programs based on both normal delays in starting a program (i.e. hiring staff and preparing buildings) and some planned delay to fit available funding.
Although not part of the plan developed before the Agreement was settled, the DBHDS Commissioner issued a communication in June 2012 clarifying and directing that START services are available for adults with DD. However, to receive in-home supports or use the respite home one must have case coordination, i.e. a CSB case manager, DD case manager or other clinical home as called for in the START model. This requirement to have a case manager may exclude individuals from accessing START crisis intervention and stabilization support or to have funding to access other community supports to prevent crises in the future.
The existing CSB emergency services vary in several ways: resources available, competencies working with individuals with ID/DD, and whether they respond to crises in the home or on-site where the crisis occurs. These variations by location raise questions and challenges related to roles and responsibilities in their collaborations with the statewide START services and whether these services will meet the statewide requirements of the Agreement.
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Crisis Point of Entry: Section III.C.6.b.i.
Each region has five to ten CSBs that currently provide 24/7 emergency responses. Each has a hotline to accept emergency calls and emergency staff to respond. “The type of response varies across the CSBs and regions as does the expertise to respond to the needs of individuals with ID/DD and behavioral challenges.” The Inspector General for BHDS in 2010 reported that there was a serious gap in crisis stabilization for persons with ID.
All CSBs have a mobile crisis team that conducts face-to-face assessments; the majority only does so at the hospital emergency department. The CSBs are not required to go to an individual’s home although this is the first level of response and the preference of the START Program, if the situation is deemed safe. The variance in CSB response on-site in people’s homes has the potential to impact the capacity of the START Mobile Crises Teams to respond.
B. By June 30, 2012…shall train CSB emergency personnel in each Health Planning Region on the crisis response system it is establishing, how to make referrals, and the resources that are available.
As of June 30, 2012, orientation sessions were provided using a standard power point orientation presentation and handout to describe the START program, the general referral process and a description of the resources. Thirty-seven of forty CSBs attended a regional open information session. START Directors in each region have oriented CSB emergency, ID and case management staff. As of October 30, 2012, DBHDS reports that 10-20% of START staff have been trained in regions one, two, and four; 30-50% have been trained in regions three and five.
Mobile Crisis Teams: Section 6.b.ii. F. By June 30, 2012…shall have at least one mobile crisis team in each Region that shall respond to on-site crises within three hours.
DBHDS report that they are behind schedule, the Mobile Crisis Teams in regions three, four and five are in place and responding to crises. The Teams in regions one and two plan to begin operations in December 2012. As of October 2012, a reporting system is being implemented to track response time and other operational variables at the regional level. Data on response time are not yet available.
Crisis Stabilization Programs: Section III.C.6.b.iii. F. By June 30, 2012…shall develop one crisis stabilization program in each Region.
DBHDS reports that the START crisis respite homes are under renovation or construction in all regions, and are behind schedule. The regions plan to begin operations as of November 2012 in region three (Southwest Virginia), December 2012 in regions one (Central Virginia) and two (Northern Virginia), in March in region four (Greater Richmond/Petersburg) and by June 30, 2013, in region five (Hampton Roads). Regions have partnership agreements with each other, so that programs coming online earlier can admit individuals from other regions, when beds are available.
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Steps that must be taken to make progress toward compliance:
• develop a plan and provide sufficient resources to provide crisis services for children with either ID or DD and adults with DD that is not ID;
• ensure that adults with DD have case management to facilitate full access to crisis services and stabilization programs and access to community supports necessary to prevent future crises;
• ensure that crisis services meet the statewide requirements of the Agreement regardless of the variation between CSB emergency services capacity to respond (i.e. resources available, competencies working with individuals with ID/DD and whether they respond to crises in the home or on-site where the crisis occurs); and
• provide adequate funds for crisis service operations in FY14, including for mobile crisis teams in each region to respond to on-site crises within two hours by June 30, 2012.
Integrated Day Activities and Supported Employment To the greatest extent practicable, the Commonwealth shall provide individuals in the target population… with integrated day opportunities, including supported employment. Section III.C.7.a.-b.
“…shall maintain it membership in the State Employment Leadership Network (“SELN”)” “...shall establish a state policy on Employment First ..; “...shall have...one employment service coordinator to monitor implementation of the Employment First practices..” “Within 180 days of this Agreement...shall develop…an implementation plan to increase integrated day
opportunities…including supported employment, community volunteer…recreational opportunities, and other integrated activities.” “Provide regional training on Employment First policy and strategies...”
The Commonwealth has accomplished some of the Agreement’s requirements in this section, although DBHDS has experienced difficulties and consequent delays in meeting other requirements. DBHDS has maintained its membership in SELN. It has also developed, and its Board has approved, an Employment First Policy that includes the elements required by the Agreement. The Employment First Implementation Plan was due on September 6, 2012. A Strategic Plan for Employment First was published on November 8, 2012. The Reviewer will review and analyze the plan more extensively during the second review period. The Reviewer’s initial analysis is that the Strategic Plan includes important and helpful elements, such as longrange goals, perceived barriers and short-term objectives. However, compliance with the Agreement’s provision for an implementation plan requires additional specifics. These elements are typically included in an implementation plan to ensure an efficient and effective implementation, such as agreed upon service definitions, identification of the party responsible for accomplishing each objective, the resources and support needed, and interim and measurable milestones. The Agreement also requires DBHDS to collect baseline data in a number of areas. This process has begun. Limited data has been collected on the number of people currently receiving supported employment services (not necessarily working), the length of time receiving supported employment, and the amount of earnings. The published plan did not establish targets to meaningfully increase the number of individuals enrolled in supported employment. In the assessment of the Reviewer, the limited data collected was adequate to set initial targets as part of
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the plan, and that doing so, especially for the individuals receiving the newly established waivers, would encourage all stakeholders to increase these opportunities. DBHDS expects to establish such targets by March 31, 2013.
The DBHDS Strategic Plan for Employment First identifies current barriers to increasing supported employment. Identified barriers include that the Commonwealth’s “rate setting and...policies and procedures…are not in line with federal guidance on supporting integrated employment.” A desired result of implementation efforts is listed as establishing a “rate structure in line with CMS guidance which emphasized and incentivized delivery of employment services over other services.” Commonwealth service providers report that it is much more difficult to provide supported employment under the waiver than it is under DARS. The Reviewer’s opinion is that the current waiver structure inhibits the Commonwealth from readily expanding supported employment opportunities for people receiving services under the waiver and for those who want supported employment services and are waiting for new waiver slots to be distributed. (see Section VI of this report for Additional Information and Financial Considerations.)
Of the sample of 32 individuals reviewed:
Areas of concern related to the development and implementation of Individual Support Plans were:
• 11 (34.4%) were not receiving day services outside of their homes; • 18 (85.7%) of the 21 individuals who were receiving out-of-home day services were in
large congregated day centers, some of which were clustered on the same, or adjacent, property with group homes. Most provided little or no meaningful opportunities for participation in integrated day opportunities; • two individuals for whom supported employment was recommended, the residential provider disagreed and has not pursued this option; and • one individual who had a meaningful job when living at the Training Center lost the job when he moved to the community.
Steps that must be taken to make progress toward compliance:
• complete the Employment First Implementation Plan with the information required in the Agreement and the elements needed for a plan to be efficiently implemented;
• ensure that PST and case managers provide reliable information to individuals and Authorized Representatives regarding community options for integrated day services, consistent with Section IV.B.9., including the opportunity to discuss and meaningfully consider these options with peers, and their families, who are already living and involved in integrated day services in the community, before being asked to make a choice from among segregated only days service options;
• ensure that PST and case managers considering recommending options in a congregate day centers, consult with the CIMs, and Regional Support Teams if needed, to identify barriers to placement in a more integrated setting, to determine steps to take to address those barriers, and to request and receive assistance to propose appropriate options about how an individual’s needs can be met in a more integrated day service setting; and
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• ensure that the pre-move monitoring process plans for and the post-monitoring move process evaluates and verifies, and if needed recommends strategies so that, the individual is offered meaningful opportunities to discover interests and participates in integrated day activities.
Discharge Planning and Transition from Training Center By July 2012…will have implemented Discharge and Transition Planning processes at all Training Centers… Section IV.A-D.
DBHDS has done extensive work in developing a standardized discharge planning process at all five Training Centers and in making progress toward compliance. Although the Agreement requirement is to have the discharge planning process in place as of July 2012 all Training Centers were utilizing new discharge planning processes as of March 2012. Note that the Discharge Planning-Individual Reviews referred to in this section were of individuals who transitioned before the due date of the Agreement requirements. The findings are based on onsite observations, interviews, and the review of documents provided.
“...ensure that discharge plans are developed for all individuals in TC’s through a documented person-centered planning and implementation process...” Section: IV.B.5.
DBHDS reports that all individuals residing at the Training Centers have a discharge plan. The Individual Reviews found that 32 (100%) had discharge plans, and that for 29 (90.6%) there was evidence of person-centered planning.
“…develop and implement discharge and planning and transition processes…” Section: IV.A. “...individuals shall participate in ..discharge planning...” Section: IV.B.3. “...final discharge plan developed within 30 days prior to discharge…” Section: IV.B.5 “...discharge planning will be done by the individual’s Personal Support Team ...” Section: IV.B.6.
As the due date for the new discharge planning processes approached, the Individual Reviews indicated improvements in processes and documentation for those who transitioned in the final quarter of FY12. The processes utilized throughout FY12 demonstrated the strengths illustrated by the following data:
Of the sample of 32 individuals reviewed:
Highlights of positive outcomes related to discharge planning and transitions to the community were:
• 31 (96.9%) the individual and Authorized Representative participated in discharge planning;
• 31 (96.9%) updated their discharge plans within 30 days prior to the transition; • 30 (93.8%) provider staff were trained in the ISP protocols transferred to the
community; • 28 (87.5%) all essential supports were in place before the move; and for • 31 (96.9%) the necessary PST members attended the pre-move ISP meeting...”
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Areas of concern related to the discharge planning were:
• 30 (93.8%) the discharge memo did not list all the key contacts in the community, including the licensing specialist, Human Rights Advocate, Community Resource Consultant and CSB support coordinator (Note: this was corrected in May 2012); and
• 7 (21.9%) did not identify all medical practitioners before the individual moved, including primary care physician, dentist and, as needed, psychiatrist, neurologist and other specialists.
“...individuals are served in the most integrated setting appropriate to their needs…” Section: IV.A. “...propose appropriate options…how an individual’s needs could be met in a more integrated setting.” Section IV.11 “...In the event that a PST recommends...a congregate setting of 5 or more individuals…describe the barrier...the planned steps taken to address the barriers...refer to the Community Integration Manager (CIM)...” Section: IV.15
The Commonwealth assisted 117 individuals to move from Training Centers to the community between November 2011 and October 30, 2012. The Commonwealth has much to accomplish before it is serving individuals in the target population in the most integrated setting appropriate to their needs in accordance with their informed choice or ensuring that programs adequately promote community participation. In the assessment and experience of the Reviewer, providing integrated programs that promote community participation and inclusion is the Commonwealth’s greatest challenge (see Section VI of this report).
Of the sample of thirty-two individuals reviewed:
Areas of concern related to the receiving services in the most integrated setting appropriate to their needs in accordance with their informed choice were:
• 11 (34.4%) moved to homes with five or more individuals; • 11 (68.%) of the 16 individuals recommended to move to a residence of five or more, the
barriers to placement in a more integrated setting were not identified; steps to address the barriers were not documented, nor was it documented that the matter was referred to the CIM; • 4 (12.5%) of those who live with four or fewer, reside in homes licensed to serve five or more; • 5 (15.6%) live in a cluster of group homes on the same or adjacent property; • 10* (31.3%) were not provided adequate information regarding appropriate community options about how an individual’s needs could be met in a more integrated setting; • 30 (93.8%) were not provided opportunities to speak with individuals currently living in the community and their families; • 16 (51.6%) of 31 individuals had not met their neighbors (could not be determined for one);
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• 23 (82.1%) of 28 individuals go out primarily with their housemates as a group (could not be determined for four); and
• 30 (93.8%) did not belong to any community clubs or organizations.
*DBHDS has indicated that this occurred for more individuals, but documentation did not occur or was not provided.
Healthcare services are critical to the members of the target population, especially to those with complex needs. The Individual Reviews found many positive outcome areas of healthcare and some areas of concern. (See Appendix A Discharge Planning-Individual Reviews Selected Tables)
Of the sample of 32 individuals reviewed:
Highlights of positive outcomes related to the provision of healthcare were: • 32 (100%) appointments were appropriately scheduled for medical practitioners and occurred within 30 days of discharge; • 16 (100%) ordered by the physician, had a current psychological assessment; • 8 (88.9%) of the 9 with clinical therapy recommendations were implemented or staff are actively engaged in scheduling appointments; • 32 (100%) had a physical examination within the last 12 months; • 30 (93.8%) had physician’s recommendations implemented within the recommended time frame; • 29 (93.5%) of 31 had medical specialist recommendations implemented within the time line recommended; • 32 (100%) had lab work completed as ordered by the physician; • 32 (100%) had diagnostic consults completed within the recommended time frame; • 15 (100%) recommended by the physician were monitored by the provider for fluid intake; • 14 (100%) recommended by the physician were monitored by the provider for food intake; • 20 (100%) recommended by the physician were monitored by the provider for bowel movements; and • 12 (92.3%) of 13 did not have evidence of excessive psychotropic medications.
Areas of concern related to the provision of healthcare were: • 7 (21.9%) needed assessments that were not recommended; • 11 (34.4%) did not have dentists’ recommendations implemented within the time frame recommended; • 7 (50%) of the records of the 14 individuals taking psychotropic medications did not include documentation of the intended effects and side effects of the medication; • 12 (85.7%) of the records of the 13 individuals taking psychotropic medications did not include documentation of the legal guardian’s informed consent;
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• 10 (71.4%) of the 13 individuals were not monitored by a nurse or psychiatrist as indicated for the potential side effects of psychotropic medications, using a standardized tool at baseline and at least every 6 months; and
• 5 (35.7%) of 13 were not monitored for digestive disorders that are often side effects of psychotropic medication(s), e.g., constipation, GERD, hydration issues, etc.).
These areas of concern data illustrate that the health and wellness management systems of some service providers need to be strengthened. The Individual Reviews found positive outcomes that providers received extensive training from Training Center staff; however, those competencies were not always shared with all staff.
Steps that must be taken to make progress toward compliance:
• ensure that PST and case managers provide reliable information to individuals and Authorized Representatives regarding community options consistent with Section IV.B.9., including the opportunity to discuss and meaningfully consider these options with peers, and their families, who are already living in the community before being asked to make a choice regarding options;
• ensure that PST and case managers considering recommending options in a congregate residential setting of five or more, consult with the CIMs, and Regional Support Teams if needed, to identify barriers to placement in a more integrated setting, to determine steps to take to address those barriers, and to request and receive assistance to propose appropriate options about how an individual’s needs can be met in a more integrated setting;
• ensure that the post-monitoring move process evaluates, and if needed recommends strategies so that, the individual is offered meaningful opportunities to discover interests and participate in community life;
• ensure that all of an individual’s medical practitioners are identified before the individual moves, including primary care physician, dentist and, as needed, psychiatrist, neurologist and other specialists;
• ensure that all needed health assessments are recommended (e.g. annual dental exam, speech and language assessments for dysphasia, psychological assessments for selfinjurious behaviors, and nutrition for significant weight fluctuations) and timely implementation of recommendations; and
• ensure that for individuals taking psychotropic medications support team members know the intended effects of the medications and that the potential side effects are monitored, including for digestive disorders and tardive dyskinesia, and that standardized tools are used at baseline and at least every six months.
Individual and Family Support Program “…shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be most at risk of institutionalization”. Section III.C.2.
The Commonwealth took important steps to create an Individual and Family Supports Program before and since the Agreement was settled. This included the first annual appropriation of $3 million in FY13. During the first review period a workgroup was established with a team leader
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and stakeholder members. Regulations and an application have been drafted and are being reviewed for approval. To determine those most at risk of unnecessary institutionalization, the Commonwealth has established the criterion that an individual must be on the wait list to receive individual and family supports. After completing these essential preliminary steps, DBHDS expects to distribute funds to at least 700 individuals with ID/DD during FY13 as required. The Reviewer has not had the time, or the resources to engage an expert consultant, to thoroughly review the draft regulations. Based on the Reviewer’s experience individual and family support programs that provide flexible and individualized funding is critical for individuals with ID/DD to sustain living independently or with their families, especially in the absence of other services, and to avoid unnecessary institutionalization.
During the second review period the Reviewer will monitor whether individuals with ID/DD, who are not on the wait lists are experience crises and are at risk of institutionalization, including medical, behavioral health, and correctional facilities.
Community Living Options “…shall facilitate individuals receiving …waivers…to live in their own home, leased apartment…”; “…shall provide information and make appropriate referrals…”; “Within 365 days….shall develop a plan to increase access to independently living options…”; “Within 365 days….shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance…”
The Commonwealth appropriated and established a one-time $800,000 fund to provide rental assistance in accordance with the recommendations described in the Housing Plan, which DBHDS expects to complete by March 6, 2013. A full-time housing coordinator has been hired. He is the project leader for a work group that involves representatives from multiple state agencies and other stakeholders. National expert consultants have been retained to assist in developing this independently living program. An initial draft of a Housing Plan has been developed. The Commonwealth expects to complete the Housing plan by March 6, 2013, and to begin distributing funds during FY13.
In the Reviewer’s experience programs that promote the use of truly integrated and independent (the lease(s) is in the name of the individual served and apartment mates) is very helpful at creating increased service options in the most integrated settings. It is the Reviewer’s assessment that the Commonwealth has few service options between in-home services and congregate living. The development of supported apartments and shared living service options, typically for one to three individuals, could help fill that service gap. The revised HUD 811 program, for which the Commonwealth will receive extra points (due to the Agreement) in the competition with other states for these funds, offers a helpful potential resource. The Reviewer has not had time, or the resources to retain an expert consultant, to study the status of the current planning efforts. However, it is the Reviewer’s experience that new statewide initiatives involving multiple agencies and local government entities are more challenging to implement than initiatives within a single agency. To be successful, such initiatives require a major commitment, a coordinated effort, and strong leadership to overcome conflicting interests. These frequently include different organizational goals, priorities, and incentives; different funding streams; and different definitions of services.
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Family-to-Family and Peer Programs “…shall coordinate with the specific type of community providers identified in the discharge plan…to provide individuals, their families…with opportunities to speak with…and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice…” “…shall develop family-to-family and peer programs to facilitate these opportunities.” Section IV.9.b.
The Commonwealth has created a Family Resource Consultant (FRC) who is in the process of developing a Family Mentor Network. This program will facilitate family members of Training Center residents to receive coaching on and support with the process of making the transition to the community from other volunteer family members who have successfully made the transition or people familiar with the ID/DD service system. DBHDS reports that a manual for training and providing resources to potential mentors, based on an existing model, has been drafted by the FRC. It is currently being reviewed for administrative approval. The first potential mentors and families interested in learning more about transitions to the community have been identified. One meeting was held with a community family group leader to discuss collaborative efforts. DBHDS expects to begin to match family mentors with reluctant family members and to seek further stakeholder input in December 2012. The Reviewer has not had time to review the draft manual. Based on the Reviewer’s experience families and peers that have successfully made transitions can be very helpful to those who have not. There is a natural fear of losing a service that is known to pursue one that is not familiar. Having family members who once shared this natural hesitation provide information and anecdotes about the actual successes and challenges they experienced will help reluctant families make informed choices. The data from the individual reviews illustrate that the family-to-family and peer program was not in place during FY12.
Of the sample of 32 individuals reviewed:
! 30 (93.8%) individuals and their families were not provided the opportunity to speak with individuals currently living in the community and their families (could not determine for one).
VI. ADDITIONAL INFORMATION AND FINANCIAL CONSIDERATIONS
Today, there are many Virginians with ID/DD who have benefited from services that have helped them create opportunities, build relationships and improve their lives. Residential services have supported their personal skill development to become more self-sufficient and to live with greater independence. Employment programs have promoted skill development and opportunities to discover the capacity and satisfaction of meaningful work, earned income, and becoming a taxpayer. Advocates for an enhanced community-based service system highlight that those with the most complex needs can be, and are, supported in integrated settings that help people discover opportunities for meaningful participation in their communities. The essential challenge faced by the Commonwealth is that these options and outcomes are not yet readily available on a sufficient scale, or with the timeliness, that allows for a full realization of their benefits. This challenge is greater because of the Commonwealth’s predominant funding mechanisms, rates and structure for the ID Waiver, Day Support Waiver, and DD Waiver.
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In the early 1990s, prior to the use of HCBS Waivers, Virginia was becoming known nationally for expanding services that helped individuals move from congregate facilities to individualized and integrated service options in supported employment, supported apartments, and sponsor homes.
Since the early 1990s, the HCBS Waivers have created financial incentives over time to provide more residential and day services in larger congregate community-based facilities. As a result, a physical and human resource infrastructure has developed that contributes to individuals living less integrated lives than is appropriate for their needs. Once served in congregate facilities, the system gives no financial incentive to help individuals to develop their personal skills so they need fewer hours of services, or to move to more individualized and integrated community living arrangements.
Residential Services The consequences of current HCBS waiver financial incentives are illustrated by the data in Table 1 about those living in group homes and community ICFs. A 2011 review of the Support Intensity Scale level of need of these individuals documented that more than 70% had average or below average needs. In addition, these data document that 72.3% of individuals living in congregate residential programs reside in group-residences of five or more, and that 12.5% live in congregate facilities of twelve or more. Also, some group homes are clustered on single or adjacent properties.

TABLE 1

CONGREGATE RESIDENCES BY # OF OCCUPANTS

Beds

# of Locations Total Bed Counts

4-or less bed counts

457

1613

5-8

573

3477

9-12

33

365

13+

17

360

For residential providers the HCBS waiver rates have remained comparatively flat since being established in the early 1990s while the cumulative impact of inflation has increased costs. As inflation reduced the purchasing power of flat payment rates, service providers consolidated group homes. They closed some and increased the number of residents in others. Providers explain that “the way to make ends meet is to serve more people in each group home” and to “place group homes close together”. Spreading fixed costs over a larger number of individuals served in one residence allows providers to more effectively manage cost pressures through years of flat funding rates. Today, providers report that they are actively seeking referrals to their group homes, many of which are licensed to serve more than the current number of occupants. Of the thirty-two individuals reviewed, twelve (37.5%) moved to group homes that are licensed to serve more residents than currently live there.

Providers of congregate residential services have a financial interest in continuing to serve the individual’s currently living in their homes and to maintain or increase the number of hours of

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services that are paid. If an individual becomes more self-sufficient and needs fewer hours of services, or choses to move to a community living option that offers greater independence, then the current residential provider loses revenue. Expenses may not be able to be lowered sufficiently to make up for the loss.
The financial structure encourages providers to serve people with average or below average needs, and to provide those services in larger group settings and to cluster multiple group homes together. The Commonwealth has admirably committed to person-centered policies and practices and has made a significant long-term investment in training and new processes. These efforts will more consistently lead to the desired outcomes for individuals when the situation for service providers includes financial incentives to move in that direction. Overall, the purpose of many programs is to help individuals become more self-sufficient and to live more selfdetermined and independent lives. When individuals can do more for themselves, they need fewer services and live more fulfilling lives. It also costs less to support them. This result is hampered because financial incentives do not align with these important goals for individuals.
Day Services In the area of supported employment, until the early 1990s, the Commonwealth was viewed as a national leader in system development and capacity building. One of the original supported employment research and demonstration projects, Project Employability, was conducted in Richmond in the late 1970s. Replications of Project Employability took place in Virginia Beach and Norfolk in the early 1980s. Project Employability reportedly led to the first vendorship arrangement for a State Vocational Rehabilitation Agency. It enabled them to purchase supported employment services when the Virginia Department for Rehabilitative Services (VDRS, now called the Virginia Department for Aging and Rehabilitative Services) completed a vendor agreement with Virginia Commonwealth University, in approximately 1984. Vendor agreements were then initiated in the Virginia Beach, Norfolk, and Roanoke areas. In 1985, the Commonwealth won a competition for one of ten initial five-year supported employment system change grants awarded by the Federal Rehabilitation Services Administration. This grant funded an interagency partnership effort with the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (now the Department of Behavioral Health and Developmental Services) to develop a statewide capacity to provide employment services supported by a coordinated system of training and technical assistance. In 1986, the Rehabilitation Act was amended to add Title VI.C, the State Supported Employment Services Grants, which provided funds to be used exclusively for the purchase of supported employment services. The VDRS vendor system then expanded substantially to approximately thirty-five vendors of supported employment services.
In the early 1990s the Commonwealth’s funding system for persons with significant ID redirected the use of state and local dollars to match HCBS Waiver funds for Day Services. Advocates for individuals with ID/DD lament that, as a result, the use of state and local dollars for supported employment services became very limited. The Commonwealth’s HCBS Waiver rate for supported employment services was a statewide fixed rate of approximately $16 per hour. The VDRS paid providers of supported employment services based on a negotiated rate that was much higher than the Waiver Rate. Employment Service providers would not accept the waiver rate. In 2008 the Department of Medical Assistance Services (DMAS) amended its waiver
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funding for supported employment services to match the VDRS rate. However, providers report that it remains more difficult to provide services under the waiver. The State Employment Leadership Network reported in 2009 that “despite funding changing for Supported Employment through the Waiver, the service definitions don’t match with DRS and some services billable under DRS are not billable under Waiver.” Over the period from the early 1990s to the present, the overall supported employment effort fell far behind the need for this service among people with ID/DD as the Commonwealth moved to a predominant congregate services system. This is illustrated by the DMAS report of payment data in 2011.

TABLE 2

DAY SERVICES PAYMENTS BY PROGRAM MODEL 2011

Waiver

Supported

Pre-

Day Support Total

Employment Vocational

ID

$ 311,679

$ 646,833

$ 2,858,105

$ 3,816,617

Day Support $9,282,288

$9,294,124

$75,016,706

$93,593,121

Total

$9,593,967

$9,959,960

$77,864,811

$97,409,703

% of total

9.8%

10.2%

80%

Other aspects of the way services have been developed and the way funding is structured have created obstacles to delivering individualized services in the most integrated setting. One aspect is paying for day services in four-hour blocks of time. Another is requiring that an individual is served in either day supports or employment supports without the flexibility to move between the two programs.

The Bifurcated ID/DD Systems: The current bifurcated ID/DD system contributes to confusion for families and inefficiencies for service providers. One state agency has paramount responsibility for individuals with intellectual disabilities and another for those with developmental disabilities. This is unhelpful for a family with a child with a developmental disability, but an unclear degree of intellectual impairment. They can be harmed by the advice of a well-intentioned professional who encourages the child to begin in the available DD services for which eligibility is clear. But when a diagnosis of an intellectual disability is established that the cognitive delay is more profound than hoped, the child loses DD eligibility. Although then eligible for ID services, the child would no longer be able to attend the program currently providing services. This is an example of how the system overwhelms a family. There are also many service providers struggling to provide efficient services for people with similar needs operating with two different sets of rules, regulations and monitoring systems.

Services in the most integrated setting: There are examples of individuals with complex needs receiving supported employment and supported apartments in the Commonwealth, as there are across the United States. Staff and providers developed and maintain these programs within the current circumstances in Virginia. They are a valuable resource. Although they report feeling that they are “shoveling against the tide”, they have delivered the positive outcomes that the Parties envision will result from the provisions in the Agreement. As the Agreement is implemented, the lessons they have learned can help others to develop the capacity and competencies to increase the scale and geographic
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availability of supported employment and integrated community living options for individuals with a wider range of needs than is currently receiving these services and their benefits.
Service providers have explained that the financial pressures described above have led to the current community service system being comprised of mostly large group homes and day support centers. Developing this physical infrastructure has led to most staff being trained and oriented to work in congregate settings. It is important to mention that it is the Reviewer’s impression that most service providers and staff throughout the Commonwealth work diligently to deliver quality and individualized services; though this occurs within the infrastructure that has been created.
The Reviewer’s assessment and experience is that individuals with the most complex needs can be well served in integrated settings. Doing so depends on the adequate and flexible funding, the physical infrastructure needed (i.e. fully accessible homes, track systems for safety, lift equipped vehicles, emergency generators, etc.), the certified competencies of staff and the service providers’ habilitation and health and wellness management systems. Successes occur more frequently when the financial incentives of the service system’s funding structure are aligned with the desired outcomes for the individuals. As service systems change, initial successes will provide the confidence to develop more options that create opportunities, build relationships and improve lives.
VII. CONCLUSION:
In the Agreement the Parties committed to improve the lives of people with ID/DD by preventing unnecessary institutionalization and by providing them opportunities to live in the most integrated setting appropriate to their needs consistent with their informed choice. In the Reviewer’s experience and assessment, this commitment will help them live as participants and valued contributors to their communities. The Parties also committed to reforming the service system so it is able to consistently promote these positive outcomes. The Reviewer has prioritized six aspects of the Agreement to monitor during the first review period:
1. Waivers 2. Case Management 3. Crisis Services 4. Integrated Day Activities and Employment First 5. Discharge Planning and Transition from Training Centers 6. Safety in the community
There has been much progress, though some delays, in achieving the requirements of the Agreement.
The Reviewer looks forward to the next phase of the Agreement during which the Commonwealth and stakeholders will develop and implement several additional provisions. Doing so effectively will take another important step toward compliance and achieving the goals of the Agreement.
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VIII. RECOMMENDATIONS
Based on the findings in this report, the Reviewer recommends that the Commonwealth consider the following:
1. Review the current individual support planning process to ensure that sufficient measurable objectives are developed to increase individual skills, self-sufficiency and independence.
2. Strengthen service provider staff training and monitoring systems to support the health and wellness of individuals with the most complex needs. Doing so will increase the number of service providers and the range of service options with the capacity to support individuals at significant risk of aspirations, falls, constipation, and the major side effects of psychotropic medications, including tardive dyskinesia.
3. Add to the existing monitoring process periodic requirements that staff demonstrate the competencies needed to fulfill their role in maintaining the health of the specific individuals they support.
4. Add to the annual ISP process a review of the legal consent for psychotropic medications. This will ensure that the case manager, residential manager, and an individual’s support team members are aware of the purpose of all psychotropic medications and needed monitoring for potential major side effects.
5. Add to the annual ISP review a discussion of strategies for creating more opportunities for exploring integration activities appropriate for each individual’s interests and needs.
6. Recognize and support the staff and the providers who have successfully provided services that promote meaningful integration and participation in community life.
7. Review how other states’ HCBS waivers are structured, and then amend and/or permanently modify the Commonwealth’s waivers so the payment structure and rates encourage the service outcomes desired for individuals (i.e. living in the most integrated settings appropriate to their needs, and developing skills for increased self-sufficiency and independence).
Respectfully Submitted By:
Donald J. Fletcher Independent Reviewer
December 6, 2012
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APPENDICES A. DISCHARGE PLANNING – INDIVIDUAL REVIEWS
SELECTED TABLES B. CRISIS SERVICES REQUIREMENTS
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APPENDIX A. DISCHARGE PLANNING – INDIVIDUAL REVIEWS
SELECTED TABLES
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DISCHARGE PLANNING – INDIVIDUAL REVIEWS Fiscal Year 2012

DEMOGRAPHIC INFORMATION of the sample of 32 individuals reviewed
Sex Male 21 (65.6%) Female 11 (34.4%)
Age ranges
21 to 30 31 to 40 41 to 50 51 to 60 61 to 70 71 to 80 81 to 90

n

%

1

3.1%

3

9.4%

9

28.1%

12 37.5%

6

18.8%

1

3.1%

1

3.1%

Levels of Mobility*

n

Ambulatory without support

12

Ambulatory with support

7

Uses wheelchair

12

Confined to bed

1

*totals more than 48 because some noted two levels of mobility

% 37.5% 21.9% 37.5% 3.1%

Highest Level of Communication*

n

%

Spoken language, fully articulates without assistance

3

9.4%

Limited spoken language, needs some staff support

3

9.4%

Communication device

4

12.5%

Gestures- grabs

17 53.1%

Vocalizations

4

12.5%

Facial Expressions

1

3.1%

Other

3

9.4%

*totals more than 48 because some noted two levels of communication

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TABLE 3 INDIVIDUAL SUPPORT PLAN
Item Is the individual’s support plan current? Is there evidence of person-centered (i.e. individualized) planning? Are essential supports listed? Do the individual’s goals and outcomes relate to his/her strengths, preferences and needs as identified in the assessments and his/her individual support plan? Is the individual receiving supports identified in his/her individual support plan?
• Medical • Recreation • Mental Health • Transportation Have any identified concerns been resolved? (CND 5.6%) Is there documented evidence of case management review, e.g. meeting with the individual face-to-face at least every 30 days, with at least one such visit every two months being in the individual’s place of residence?

n

Y

N

31 100.0% 0.0%

32 90.6% 9.4%

32 90.6% 9.4%

32 84.4% 15.6%

32 68.8% 31.3%
32 100.0% 0.0% 32 96.9% 3.1% 13 92.3% 7.7% 32 100.0% 0.0% 18 66.7% 27.8% 32 46.9% 53.1%

TABLE 4 RESIDENTIAL ENVIRONMENT If the individual requires an adapted environment or adaptive equipment • Has all the adaptation been provided? • Is the equipment available? Is the individual’s residence clean? Are food and supplies adequate? Is your home located near community resources (i.e. shopping, recreational sites, churches, etc.?) Is the residence free of any safety issues? Do you have privacy in your home if you want it? Is there evidence of personal décor in the individual’s room and other personal space? Does the individual appear well kempt?
!

24 95.8% 4.2% 23 87.0% 13.0% 32 100.0% 0.0% 32 100.0% 0.0% 32 93.8% 6.3%
32 96.9% 3.1% 32 87.5% 12.5% 32 62.5% 37.5%
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TABLE 5 RESIDENTIAL STAFF Item Is residential staff able to describe the individual’s likes and dislikes? Is residential staff able to describe the individual’s strengths, preferences and weaknesses? Is residential staff able to describe the individual’s health related needs and their role in ensuring that the needs are met?

n Y

N

32 100.0% 0.0%

32 96.9% 3.1%

32 96.9% 3.1%

TABLE 6

DISCHARGE PLANNING

Item

n Y

N CND

Did the individual and, if applicable, his/her Authorized

32 96.9% 3.1% 0.0%

Representative participate in discharge planning?

Was the discharge plan updated within 30 days prior to the

32 96.9% 3.1% 0.0%

individual’s transition?

Was provider staff trained in the individual support plan

32 93.8% 6.3% 0.0%

protocols that were transferred to the community?

Were all essential supports in place before the individual

32 87.5% 12.5% 0.0%

moved?

Did the necessary Personal Support Team (PST) members

32 96.9% 3.1% 0.0%

attend the Pre-move Individual Support Plan meeting?

• Individual

32 93.8% 0.0% 6.3%

• Case manager

31 96.8% 3.2% 0.0%

• Advocate

4 75.0% 0.0% 25.0%

• Staff who know the individual best

31 71.0% 0.0% 29.0%

• Authorized Representative

31 58.1% 41.9% 0.0%

• Post-Move Monitor or Discharge Coordinator

32 100.0% 0.0% 0.0%

Were all medical practitioners identified before the individual 32 78.1% 21.9% 0.0%

moved, including primary care physician, dentist and, as

needed, psychiatrist, neurologist and other specialists?

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TABLE 7

COMMUNITY INTEGRATION

Item

n

If a move to a residence serving five or more individuals was

16

recommended, did the Personal Support Team (PST) and, when

necessary, the Regional Support Team (RST) identify barriers to

placement in a more integrated setting?

Was it documented that the individual, and, if applicable, his/her 32

Authorized Representative, were provided with information

regarding community options?

Was it documented that the individual and, as applicable, his/her 32

Authorized Representative, were provided with opportunities to

speak with individuals currently living in the community and

their families?

Have you met your neighbors?

31

Do you go out primarily with your housemates as a group?

28

Do you belong to any community clubs or organizations?

32

Y

N CND

31.3% 68.8% 0.0%

62.5% 31.3% 6.3% 3.1% 93.8% 3.1%

48.4% 51.6% 0.0% 82.1% 17.9% 0.0% 6.3% 93.8% 0.0%

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TABLE 8

HEALTH CARE – POSITIVE OUTCOMES

Item

n Y

Did the individual have a physical examination within the last 12 32 100.%

months or is there a variance approved by the physician?

Were appointments with medical practitioners for essential

31 100.%

supports scheduled for and, did they occur within 30 days of

discharge?

If ordered by a physician, was there a current physical therapy

2 100.%

assessment?

If ordered by a physician, was there a current occupational

2 100.%

therapy assessment?

If ordered by a physician, was there a current psychological

16 100.%

assessment?

If ordered by a physician, was there a current speech and

5 80.0%

language assessment?

If ordered by a physician, was there a current nutritional

12 83.3%

assessment?

Were any other relevant medical/clinical evaluations or

27 66.7%

assessments recommended?

Are clinical therapy recommendations (OT, PT, S/L, psychology, 9 88.9%

nutrition) implemented or is staff actively engaged in scheduling

appointments?

a. OT

2 100.%

b. PT

3 100.%

c. Speech/Language

5 100.%

f. Other

1 100.%

Did the individual have a physical examination within the last 12 32 100.%

months or is there a variance approved by the physician?

Did the individual have a dental examination within the last 12 32 93.8%

months or is there a variance approved by the dentist?

Were the Primary Care Physician’s (PCP’s) recommendations

32 93.8%

addressed/implemented within the time frame recommended by

the PCP?

!

!

!

!

!

!

!

!

!

N 0.0% 0.0%
0.0% 0.0% 0.0% 20.0% 16.7% 33.3% 11.1%
0.0% 0.0% 0.0% 0.0% 0.0% 6.3% 6.3%

CND 0.0% 0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%

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TABLE 8

HEALTH CARE – POSITIVE OUTCOMES -continued

Item

n Y

N CND

Were the medical specialist’s recommendations

31 93.5% 6.5% 0.0%

addressed/implemented within the time frame recommended by the

medical specialist?

Is lab work completed as ordered by the physician?

32 100.% 0.0% 0.0%

Are physician ordered diagnostic consults completed as ordered

30 100.% 0.0% 0.0%

within the time frame recommended by the physician?

Does the provider monitor fluid intake, if applicable per the

15 100.% 0.0% 0.0%

physician’s orders?

Does the provider monitor food intake, if applicable per the

4 100.% 0.0% 0.0%

physician’s orders?

Does the provider monitor tube feedings, if applicable per the

4 100.% 0.0% 0.0%

physician’s orders?

Does the provider monitor seizures, if applicable per the physician’s 8 100.% 0.0% 0.0%

orders?

Does the provider monitor weight fluctuations, if applicable per the 13 100.% 0.0% 0.0%

physician’s orders?

Does the provider monitor positioning protocols, if applicable per the 9 100.% 0.0% 0.0%

physician’s orders?

Does the provider monitor bowel movements, if applicable per the 20 100.% 0.0% 0.0%

physician’s orders?

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of fluid intake?

10 100.% 0.0% 0.0%

b. Made necessary changes, as appropriate?

6 100.% 0.0% 0.0%

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of food intake?

14 92.9% 7.1% 0.0%

b. Made necessary changes, as appropriate?

10 80.0% 20.0% 0.0%

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of tube feeding?

4 100.% 0.0% 0.0%

b. Made necessary changes, as appropriate?

2 100.% 0.0% 0.0%

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of seizures?

5 100.% 0.0% 0.0%

b. Made necessary changes, as appropriate?

1 100.% 0.0% 0.0%

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of weight fluctuations?

13 84.6% 15.4% 0.0%

b. Made necessary changes, as appropriate?

9 77.8% 22.2% 0.0%

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of bowel movements?

21 100.% 0.0% 0.0%

b. Made necessary changes, as appropriate?

16 100.% 0.0% 0.0%

Is there evidence of a nourishing and healthy diet?

30 96.7% 0.0% 3.3%

If applicable, is the dining plan followed?

11 90.9% 0.0% 9.1%

If applicable, is the positioning plan followed?

6 100.% 0.0% 0.0%

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TABLE 9

Healthcare Items – areas of concern

Item

n

Are there needed assessments that were not recommended?

32

Were the dentist’s recommendations implemented within the time 30

frame recommended by the dentist?

If applicable, is there documentation that caregivers/clinicians:

a. Did a review of weight fluctuations?

13

b. Made necessary changes, as appropriate?

9

If the individual requires psychotropic medication, is there

14

documentation of the intended effects and side effects of the

medication?

If yes, is there documentation that the individual and/or a legal

13

guardian has given informed consent for the use of psychotropic

medication(s)?

Does the individual’s nurse or psychiatrist conduct monitoring as

12

indicated for the potential development of tardive dyskinesia, or

other side effects of psychotropic medications, using a standardized

tool (e.g. AIMS) at baseline and at least every 6 months thereafter)?

Do the individual’s clinical professionals conduct monitoring for

13

digestive disorders that are often side effects of psychotropic

medication(s), e.g., constipation, GERD, hydration issues, etc.?

Y 21.9% 63.3%
84.6% 77.8% 50.0%
15.4%
33.3%
69.2%

N 78.1% 36.7%
15.4% 22.2% 50.0%
76.9%
66.7%
30.8%

34! !
!

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APPENDIX B CRISIS SERVICE REQUIREMENTS
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Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 42 of 66 PageID# 4757
REPORT TO THE INDEPENDENT REVIEWER UNITED STATES vs. COMMONWEALTH OF VIRGINIA
CRISIS SERVICE REQUIREMENTS
REVIEW PERIOD: JUNE 13, 2012- JUNE 30, 2012
Prepared by Kathryn du Pree, MPS Vice President
Center for Aging and Disability Policy The Lewin Group
ou

Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 43 of 66 PageID# 4758
Table!of!Contents!
INTRODUCTION)AND)METHODOLOGY).................................................................................................................)3! VIRGINIA’S)COMPLIANCE)WITH)THE)COMPONENTS)OF)THE)SETTLEMENT)AGREEMENT)........................................)4!
PLANNING!FOR!THE!DEVELOPMENT!OF!THE!CRISIS!SERVICES!SYSTEM!........................................................................................!4! THE!RFP!AND!REGIONAL!RESPONSES!.................................................................................................................................!4! THE!START!SERVICES!MODEL!..........................................................................................................................................!5! TRAINING!.....................................................................................................................................................................!6! THE!SUFFICIENCY!AND!SUSTAINABILITY!OF!FUNDING!FOR!START!SERVICES!...............................................................................!9! AREAS!OF!POTENTIAL!NON;COMPLIANCE!WITH!THE!SETTLEMENT!AGREEMENT:!.......................................................................!11!
Serving(Children(with(Intellectual(and(Developmental(Disabilities:(....................................................................(11! Serving(Adults(with(Developmental(Disabilities:(.................................................................................................(12! COMPLIANCE!WITH!SECTION!B.!I.!CRISIS!POINT!OF!ENTRY!....................................................................................................!14! SECTION!6.B.II.!MOBILE!CRISIS!TEAMS:!............................................................................................................................!16! SECTION!6.B.III.!CRISIS!STABILIZATION!PROGRAMS:!............................................................................................................!17! CONCLUSION).....................................................................................................................................................)18!
ATTACHMENT)A:)THE)LEWIN)GROUP’S)PROPOSAL)TO)EVALUATE)THE)CRISIS)SERVICE)REQUIREMENTS)OF)THE)US) V)VIRGINIA)SETTLEMENT)AGREEMENT)...............................................................................................................)19!
ATTACHMENT)B:)SUMMARY)OF)REGIONAL)PROPOSALS)FOR)START)CRISIS)PREVENTION)AND)INTERVENTION) SERVICES)...........................................................................................................................................................)26!
ATTACHMENT)C:)COMMONWEALTH)OF)VIRGINIA’S)REQUEST)FOR)ACCESS)TO)START)SERVICES)FOR)INDIVIDUALS) WITH)DEVELOPMENTAL)DISABILITIES).................................................................................................................)34! ATTACHMENT)D:)AFFILIATION)AGREEMENT)VA)START).......................................................................................)35!
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Introduction%and%Methodology%
Donald!Fletcher,!Independent!Reviewer!for!the!US!v!Commonwealth!of!Virginia’s! Settlement!Agreement,!requested!a!review!of!the!crisis!system!requirements!of!the! Settlement!Agreement.!To!accomplish!this!I!proposed!measures!and!evaluation!methods!to! determine!the!state’s!compliance!in!this!area.!Many!of!the!requirements!will!be!met!during! the!next!2!years!as!the!statewide!crisis!system!is!implemented!and!the!aspects!of! implementation!will!be!evaluated!semiQannually.!! Currently!Virginia!is!in!the!planning!and!early!implementation!stages!of!developing!its! crisis!response!system!for!individuals!with!intellectual!disabilities!(ID)!and!developmental! disabilities!(DD).!This!report!focuses!on!those!aspects!of!crisis!system!development!that! were!to!be!in!place!by!June!30,!2012.!It!is!a!review!of:!
! Statewide!Crisis!System:!Sections!6.a.i.!ii.!&!iii;!! ! Crisis!Point!of!Entry:!Section!6.b.i.B;!! ! Mobile!Crisis!Teams:!Section!6.b.ii.F.!and!! ! Crisis!Stabilization!Programs:!Section!6.b.iii.F!!
A!review!process!was!developed!that!described!the!measurements!and!methods!that!would! be!used!to!determine!the!state’s!compliance!with!each!requirement.!The!review!process! consisted!of!document!review!and!interviews!with!key!DBHDS!and!START!personnel.!The! documents!reviewed!include:!the!RFP!issued!by!the!Virginia!Department!of!Behavioral! Health!and!Developmental!Services!(DBHDS)!for!regional!START!Crisis!Prevention!and! Intervention!Services,!the!regional!proposals!in!response!to!the!RFP,!budget!documents,! descriptions!of!the!START!program,!and!training!materials!and!documentation.!The! measures!and!methodology!are!contained!in!the!“The!Lewin!Group’s!Proposal!to!Evaluate! the!Crisis!Service!Requirements!of!the!US!v!Virginia!Settlement!Agreement”:!Attachment!A.!! Interviews!were!conducted!with:!
Heidi%Dix,%Assistant%Commissioner%for%Developmental%Services,%DBHDS%
Bob%Villa,%State%START%Liaison,%Office%of%Developmental%Services,%DBHDS%
Gail%Paysour,%HPR%I%ID%Crisis%Services%Project%Manager%
Lyanne%Trumbull,%HPR%II%Crisis%Services%Project%Manager%
Lucy%McClandish,%Region%III%Senior%Director%Intellectual%and%Disability%Services%
Denise%Hall,%Region%III%START%Director%
Ron%Lucas,%Region%IV,%START%Director%
Dona%SterlingHPerdue,%Region%V%START%Director%
Natalie%Ward,%Region%V%Senior%Director%Intellectual%and%Disability%Services%%
Jarret%Stone,%Easter%Seals%of%NC%and%VA,%Liaison%for%START%Services%Regions%I%and%II%
Joan%Beasley,%Director,%Center%for%START%Services% This!review!was!conducted!within!a!3!week!timeframe!and!could!not!have!been! accomplished!without!the!assistance!of!Bob!Villa.!He!has!been!extremely!gracious!in!terms!

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of!his!responsiveness!and!help!to!insure!that!I!had!the!opportunity!to!speak!to!all!of!the!key! players!in!the!regions!who!are!responsible!to!implement!START!Services.!Mr.!Villa!was! always!available!to!answer!questions!or!to!make!pertinent!documents!available.!He!is!very! knowledgeable!of!the!START!program!and!the!state’s!approach!to!implementing!a!wellQ! coordinated!crisis!response!system!that!will!bring!a!consistent!and!proven!approach!to! crisis!prevention,!intervention!and!stabilization!to!the!service!delivery!system!in!Virginia! for!persons!with!intellectual!disabilities.!I!also!want!to!thank!everyone!who!participated!in! the!interview!process.!Their!information!and!insight!have!been!helpful!in!completing!this! review.!
Virginia’s%Compliance%with%the%Components%of%the%Settlement%Agreement%
Section((6.(a.(The(Commonwealth(shall(develop(a(statewide(crisis(system(for( individuals(with(intellectual(and(developmental(disabilities( i. Provide(timely(and(accessible(supports(to(individuals(with(intellectual(and(
developmental(disabilities(
ii. Provide(services(focused(on(crisis(prevention(and(proactive(planning(to(avoid( potential(crisis(
iii. Provide(in=home(and(community=based(crisis(services(that(are(directed(at( resolving(crises(and(preventing(the(removal(of(the(individual(from(his(or(her( current(setting(whenever(practicable(
Planning for the Development of the Crisis Services System
The!Virginia!DBHDS!began!planning!for!the!development!of!a!Crisis!Intervention!and! Prevention!statewide!system!in!the!summer!of!2011!before!the!Settlement!Agreement!was! completed!or!signed.!To!review!the!Commonwealth’s!compliance!with!this!section!I! reviewed!the!state’s!requirements!(as!specified!in!the!RFP!issued!for!Regional!START!Crisis! Prevention!and!Intervention!Services),!the!state’s!funding!to!sustain!these!services,!the! provider’s!ability!to!proactively!plan!and!provide!crisis!services!(as!detailed!in!the!regional! proposals!and!in!the!START!Services!materials),!and!the!training!for!staff!who!will!be! involved!in!this!endeavor.!!
The RFP and Regional Responses
The!DBHDS!contracted!with!the!Center!for!START!Services,!University!of!New!Hampshire,! Institute!on!Disability,!and!issued!a!Request!for!Proposal!(RFP).!Each!of!the!5!regions!was! asked!to!respond!by!September!1,!2011!and!awards!were!made!by!September!30,!2011.! StartQup!was!to!begin!no!later!than!January!16,!2012.!DBHDS’!contract!with!the!Center!for! START!Services!included!consultation!with!its!Director,!Dr.!Joan!Beasley.!DBHDS!made!her! available!to!all!the!regions!for!the!development!of!their!proposals.! The!RFP!included!all!elements!to!provide!timely!and!accessible!supports!for!persons!with! intellectual!disabilities!who!have!a!coQoccurring!behavioral!health!need!and!are! experiencing!a!crisis!or!at!risk!for!institutional!placement!due!to!challenging!behavior,! providing!inQhome!and!communityQbased!supports!to!help!resolve!crises!and!allow!the! person!to!stay!in!their!current!home!or!placement.!It!included!the!expectation!that!a!

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regionQwide!system!would!be!in!place!with!faceQtoQface!assessment!within!1!hour!to! individuals!in!need!and!access!to!crisis!stabilization!beds!within!1!hour!(urban)Q2!hours! (rural)!by!June!30,!2014.!Regions!were!also!to!plan!to!provide!inQhome!crisis!supports!for! up!to!72!hours.!The!DBHDS!required!each!region!to!implement!the!national!START!model.!! All!5!regions!provided!proposals!in!response!to!the!RFP!and!were!granted!awards.!Regions! III,!IV!and!V!are!operating!START!programs!through!one!of!their!Community!Services! Board!(CSB),!respectively!New!River!Valley!Community!Services,!Richmond!Behavioral! Health!Authority,!and!HamptonQ!Newport!News.!!Regions!I!and!II!decided!to!contract!for! the!provision!of!START!services!with!Easter!Seals!of!North!Carolina!and!Virginia!that!has! experience!operating!START!programs!in!North!Carolina.!In!these!regions!one!CSB! functions!as!the!fiscal!agent:!Region!10!CSB!in!Region!I!and!Fairfax/Falls!Church!CSB!in! Region!II.! Each!Region’s!proposal!was!reviewed!for!this!report.!Regions!responded!regarding!each!of! the!specific!components!of!the!START!model!including!the!3!primary!service!components:! mobile!crisis!response,!inQhome!crisis!supports!and!the!development!of!the!respite!home.! Also!described!is!how!each!region!will!undertake!community!education!and!family! education,!partner!with!existing!community!services!and!providers,!and!build!effective! community!linkages!to!expand!the!capacity!of!the!region’s!ability!to!prevent!and!respond!to! crisis!for!people!with!intellectual!disabilities.!Every!region!provided!its!plan!to!meet!the! expectations!as!articulated!in!the!DBHDS!RFP.!!A!summary!of!the!responses!is!provided!in! Attachment!B:!“Virginia!DBHDS!Region’s!Response!to!the!START!Crisis!Prevention!and! Intervention!Services”.!It!includes!a!determination!as!to!what!degree!the!responses!met!the! requirements.!Each!region!has!proposed!a!comprehensive!approach!to!addressing!the! needs!of!individuals!with!ID!who!have!a!mental!health!diagnosis!or!behavioral!challenges! and!who!experience!a!crisis!that!can!respond!to!the!requirements!of!the!Settlement! Agreement.!!
The START Services Model
The!START!Services!Model!provides!Virginia!with!the!roadmap!to!meet!the!requirements! of!the!Settlement!Agreement!and!develop!a!statewide!system!to!prevent,!intervene!and! stabilize!crisis!situations!for!persons!with!developmental!disabilities.!It!is!a!nationally! recognized!crisis!intervention!and!prevention!approach!that!has!been!in!place!since!1988! where!it!was!first!implemented!in!Massachusetts.!It!has!since!been!implemented!in!New! Hampshire,!Connecticut,!Ohio,!Arkansas!and!North!Carolina!and!is!being!considered!by! other!states.!It!promotes!serving!people!with!coQoccurring!conditions!in!the!least! restrictive!setting,!providing!24/7!response!to!people!experiencing!a!crisis!with!immediate! telephonic!access!and!inQperson!assessment!within!2!hours!of!the!call!to!the!mobile!crisis! team,!and!clinical!treatment,!assessment!and!stabilization!services!both!planned!and! emergency!through!shortQterm!respite.!It!is!a!model!that!does!not!try!to!supplant!what! exists!within!a!service!delivery!system!but!rather!builds!upon!the!existing!crisis!response! system!and!strengthens!it.!!The!success!of!the!model!is!based!upon!linkages!and! agreements!with!existing!providers,!cross!system!crisis!prevention!and!intervention! planning!(CSCP),!support!and!technical!assistance!to!all!of!its!community!partners! including!individuals!and!their!families!and!comprehensive!systemic!and!clinical!training! with!followQup!consultation.!CSCP!is!an!essential!element!of!START!that!will!enhance!

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Virginia’s!ability!to!respond!to!the!Settlement!Agreement!requirements!articulated!in! Section!6.a.ii!and!6.a.iii.!The!CSCP!is!an!individualized!plan!that!specifies!interventions!to! prevent!crises!and!deQescalate!and!protect!a!person!who!experiences!a!crisis.!It!places!a! priority!on!crisis!prevention!planning!through!a!collaborative!process!that!builds!the!skills! and!confidence!of!caregivers!and!family!members,!while!clarifying!the!role!of!professionals! who!are!team!members!and!increasing!the!team’s!ability!to!access!timely!emergency! services.!! START!Services!includes!requirements!for!data!collection!that!is!standardized!and!outcome! oriented.!This!information!is!shared!quarterly!with!an!Advisory!Council!that!has!the! responsibility!to!review!and!analyze!the!data!and!provide!input!to!shape!continuous! quality!improvement!efforts.!Each!region!has!established!an!Advisory!Council!that!includes! advocates,!selfQadvocates,!providers,!regional!staff,!CSB!staff!and!providers.!These!Councils! are!a!key!component!to!expand!the!expertise!of!the!region!to!respond!to!crises,!create! system!linkages!and!provide!a!review!of!the!data!that!will!lead!to!systems!improvement.! The!data!collection!requirements!of!START!will!provide!much!of!the!information!that!will! be!needed!by!the!Independent!Reviewer!to!complete!future!reviews!of!the! Commonwealth’s!ability!to!meet!the!requirements!of!the!Settlement!Agreement!related!to! crisis!service!development!and!implementation.!!
Training
The!ability!of!the!Commonwealth!and!DBHDS!to!fully!comply!with!the!requirements!of! Sections!6.a.i,!6.a.ii,!and!6.a.iii!will!be!determined!by!how!well!staff!in!both!the!ID!and! Emergency!Services!divisions!of!the!CSBs,!providers!and!the!START!programs!are!prepared! to!address!the!needs!of!individuals!with!ID/DD!who!are!at!risk!of!or!experiencing!a!crisis.! The!Independent!Reviewer!and!I!agreed!that!an!initial!review!of!available!training!would! be!included!in!this!June,!2012!review.!In!order!to!review!these!training!opportunities!in!a! consistent!fashion,!I!used!criteria!established!in!the!State!Health!Authority!Yardstick! (SHAY).!In!order!for!high!quality!training!to!be!provided!the!following!components!must!be! in!place:!
1. Credible!and!expert!trainers!
2. Active!learning!strategies!(e.g.!role!play,!group!work,!feedback)!
3. Good!quality!manual!
4. Comprehensively!addresses!all!elements!of!the!training!topic!
5. Modeling!of!practice!for!trainees,!or!opportunities!to!shadow/observe!high!fidelity! clinical!work!delivered!
6. High!quality!teaching!aides/materials!including!workbooks,!slides,!videos,!and! handouts!
DBHDS!requires!through!licensing!that!training!in!crisis!response!and!deQescalation!be! provided!for!all!staff!who!work!directly!with!individuals!who!exhibit!behavioral!challenges! which!includes!provider!and!CSB!Emergency!Services!staff.!While!this!is!not!a!requirement! for!case!managers!they!are!given!the!opportunity!to!participate.!The!majority!of!entities! required!to!provide!this!to!their!staff!use!either!the!Therapeutic!Options!of!Virginia!(TOVA)!

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or!the!Mandt!System.!Therapeutic!Options!is!the!official!crisis!intervention!and!emergency! support!curriculum!for!the!mental!health!systems!of!New!Jersey,!Oklahoma!and!Virginia,! and!for!the!developmental!disability!service!systems!for!South!Carolina,!Vermont,!Virginia! and!Washington.!In!Virginia!the!program!is!known!as!TOVA.!Organizations!send!their!staff! to!a!4!dayQ!course!to!become!certified!instructors.!Instructors!in!Virginia!are!required!to!be! reQcertified!annually.!The!training!is!provided!over!2!days!emphasizing!a!team!approach!to! crisis!response!and!mitigation.!Participants!are!provided!a!workbook!and!course!outline! and!videos!are!used.!Testing!of!knowledge!and!skills!acquired!occurs!and!supervision!of! staff!carrying!out!the!interventions!is!conducted.!Two!reports,!one!in!2004!from!the!Office! of!the!Inspector!General!of!Virginia,!and!a!2003!evaluation!published!in!the!Archives!of! Psychiatric!Nursing,!note!its!efficacy!including!data!on!the!reduction!of!injuries!to! consumers!and!staff!in!the!2003!report.!More!information!about!the!program!is!available!at! the!organization’s!website:!http://therops.com.!!The!TOVA!program!includes!all!of!the! quality!training!components!listed!in!the!SHAY!evaluation!tool.! The!Mandt!System!has!been!in!operation!since!1975!providing!training!to!prevent! workplace!and!relational!violence.!Staff!are!trained!on!crisis!prevention!through!building! healthy!relationships,!communication!strategies!and!conflict!resolution!strategies,!how!to! intervene!in!a!crisis!and!how!to!stabilize!a!crisis!situation.!It!is!for!practitioners,!leaders,! service!users!including!family!members,!and!direct!support!professionals.!Technical! instructors!are!certified!and!the!program!offers!training!to!be!an!Advanced!Technical! Instructor.!The!training!for!participants!is!5!days!and!includes!lecture,!demonstration,! handsQon!participation,!role!playing,!small!group!work!and!selfQstudy.!Written!materials! and!videos!are!used!and!updated!every!2!years.!Resources!are!available!online!and!through! CDs!and!DVDs.!Competency!are!required!and!demonstrated!through!a!test!in!which! trainees!demonstrate!their!skills.!Participants!must!be!reQcertified!every!2!years.!More! information!about!the!Mandt!System!is!available!at!the!organization’s!website:! http://www.mandtsystem.com/.!The!Mandt!system!includes!all!of!the!quality!training! components!listed!in!the!SHAY!evaluation!tool.! Additionally!DBHDS!has!provided!a!grant!to!The!Partnership!for!People!with!Disabilities!at! Virginia!Commonwealth!University!to!train!persons!who!support!individuals!with! disabilities!in!Positive!Behavior!Support!Facilitation.!This!is!intended!for!people!providing! behavioral!consultation,!including!clinicians,!teachers!and!case!managers.!Trainees!must! have!a!Bachelor’s!degree!and!3Q5!years!of!experience!working!with!people!who!have! disabilities!and!exhibit!challenging!behaviors.!!Classroom!training!is!offered!over!8!days! and!there!is!monthly!group!mentoring!for!trainees.!Trainees!must!develop!a!portfolio!that! demonstrates!their!competence!in!Positive!Behavioral!Support!Facilitation!which!is! reviewed,!along!with!an!interview,!as!part!of!the!endorsement!process.!!!Endorsement! occurs!within!12Q15!months!of!initiating!the!training.!The!training!topics!include!personQ centered!thinking,!principles!of!behavioral!analysis,!developing!supportive!environments,! team!facilitation,!functional!behavioral!assessment,!data!collection!and!analysis,!crisis! response,!use!of!positive!interventions!and!evaluation!of!their!impact,!and!community! system!support.!Using!the!SHAY!Training!Evaluation!criteria!referenced!above!this!training! program!meets!all!of!the!components.!! START!Services!provides!comprehensive!training!through!its!Center!for!START!Services!at! UNH/IOD.!DBHDS!has!included!access!to!this!training!thought!its!contract!with!the!Center.! There!are!requirements!for!START!staff!to!attend!the!training!and!START!Coordinators!

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must!participate!in!all!required!training!to!become!certified!within!1!year!of!being!hired,! which!is!a!condition!of!continued!employment.!Additionally,!the!National!Online!Training! Series!offers!training!modules!to!partners!throughout!the!crisis!services!system!including! CSB!staff!including!emergency!services!and!case!management,!provider!and!families.!!! The!certification!process!for!START!Coordinators!includes!56!hours!of!training!through! courses!and!lectures,!50!hours!of!clinical!supervision!from!the!regional!START!Clinical! Director!and!consultation!from!Dr.!Beasley.!Trainers!affiliated!with!the!Center!for!START! Services!are!national!experts!in!services!and!supports!for!people!with!coQoccurring! conditions.!Training!is!provided!onQsite!and!online.!As!part!of!the!comprehensive!training! there!are!8!online!sessions!offered!annually!which!are!open!to!all!START!staff!and!all! partners.!Additionally!all!START!team!members!have!the!opportunity!to!participate!in!2! national!meetings!each!year!that!is!attended!by!all!START!programs!throughout!the! country!providing!an!opportunity!for!peer!learning.! The!START!Training!series!has!already!begun!in!Virginia!in!addition!to!consultation!and! onsite!meetings!with!Dr.!Beasley.!A!2!day!training!launch!was!offered!February!15thQ!16th! and!was!repeated!on!May!23Q24th.!Various!online!trainings!have!been!offered!between! March!and!June!by!Dr.!Ann!Hurley,!Dr.!Dan!Baker!and!Dr.!Joan!Beasley!who!are!all! recognized!experts!in!the!field!of!coQoccurring!conditions!and!treatment.!Topics!included:! Diagnoses!of!Psychiatric!Disorders!in!Persons!with!Disabilities;!Schizophrenia!and! Psychiatric!Disorders!and!Intellectual!Disabilities;!Mood!Disorders:!Depression!and!BiQ Polar!Disorders,!Anxiety!Disorders,!Positive!Behavioral!Supports,!Mental!Health!Aspects!of! I/DD!and!the!Clinical!Education!Team,!and!Psychiatric!Diagnostic!Interview;!Cross!Systems! Prevention!and!Intervention!!and!the!Role!of!the!START!Coordinator.!Online!training!will! continue!to!be!available!during!the!next!fiscal!year.!The!Center!for!START!Services! maintains!attendance!information!on!attendees.!Additionally!there!are!quarterly!meetings! convened!by!Dr.!Beasley!with!each!region!and!a!monthly!statewide!call!with!all!regional! START!Directors!to!provide!consultation,!technical!assistance!and!peer!review!to!improve! crisis!planning.!The!training!offered!by!the!National!Center!for!START!Services!not!only! includes!all!the!elements!of!quality!training!in!the!SHAY!evaluation!but!also!those!that! comprise!the!quality!elements!of!ongoing!consultation!and!technical!support.!This!is!to! measure!whether!there!is!ongoing!training,!supervision!and!consultation!for!program! leaders!and!clinical!staff!to!support!implementation!and!the!development!of!clinical!skills.! These!elements!include:!
1. Initial!didactic!training!to!clinicians!
2. Initial!agency!consultation!re:!implementation!strategies,!policies!and!procedures! including!meetings!with!leadership!
3. Ongoing!training!for!practitioners!to!reinforce!the!application!and!address!emergent! practice!difficulties!until!they!are!competent!in!the!practice!
4. On!site!supervision!for!practitioners,!including!observation!and!feedback!
5. Ongoing!administrative!consultation!for!program!administrators!until!the!practice! is!incorporated!into!the!routine!workflow,!policies!and!procedures!of!the!agency!
In!addition!to!training,!clinical!consultation!will!be!provided!to!the!START!Virginia!Teams! continuously.!START!Coordinators!receive!ongoing!supervision!to!improve!their!skills!in!

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systemic!approaches,!use!of!functional!analysis!techniques,!and!fostering!the!active! communication!and!collaboration!of!all!team!members.!A!unique!component!of!START!is! the!Clinical!Education!Team!Meetings!(CET).!This!provides!a!monthly!forum!to!improve!the! capacity!of!the!local!community!to!provide!supports!to!individuals!with!ID/DD!who!have! behavioral!health!needs!through!clinical!teaching.!All!partners!are!included!in!this!case! review!approach!that!uses!actual!crisis!situations,!while!protecting!the!confidentiality!and! privacy!of!the!person,!to!further!learning!in!assessment,!diagnosis,!treatment!and!systems! development.!!
The Sufficiency and Sustainability of Funding for START Services
Another!measure!that!is!important!to!the!Commonwealth’s!ability!to!meet!the!crisis!system! expectations!of!the!Settlement!Agreement!is!the!sufficiency!and!sustainability!of!funding! for!this!new!crisis!service!system.!The!majority!of!the!funding!is!being!provided!by!the! Commonwealth!through!an!appropriation!to!the!DBHDS.!Each!regional!START!Program!is! expected!to!seek!Medicaid!and!HCBS!Waiver!reimbursement!as!appropriate!for!services! delivered!that!are!covered!by!these!funding!sources.!The!original!appropriation!of! approximately!$10!million!for!FY13!was!reduced!to!$7.8!million!which!was!confirmed!in! Commissioner!Stewart’s!6/21/12!memo!to!Executive!Directors!and!ID!Directors!of!the! CSBs,!and!to!the!START!Regional!Directors.!However!regions!were!also!allowed!to! carryover!unspent!FY12!funding!for!the!START!project.!!Total!funding!includes!carryover! funds!unspent!in!FY12!($2.16m),!the!FY13!appropriation!($7.8m)!and!anticipated!revenue! from!Medicaid!($2.56m).!!Table(1!summarizes!the!original!request!for!START!funding!from! each!region!and!the!final!allocations:!
TABLE!I:!START!Services!Funding!
Summary%

Region% I! II! III! IV! V!

Proposed%Budget% $1.85!M! $2.79!M! $2.90!M! $2.28!M! $2.20!M!

Actual%Budget% $2.31!M! $2.79!M! $2.60!M! $2.24!M! $2.53!M!

The!proposed!budget!amounts!are!what!were!included!in!the!original!proposal!submitted! in!response!to!the!RFP!last!fall.!When!the!budget!was!reduced!for!FY13!all!regions!were! asked!to!resubmit!what!they!would!need!in!addition!to!their!carryover!funds!to!operate.! The!amounts!varied!because!regions!are!at!different!points!of!development!and!will!be! starting!components!of!START!services!at!different!times!during!FY13!which!will!result!in! different!costs!for!this!year.!All!are!currently!funded!for!the!amount!they!requested!which! was!based!on!some!level!of!delay.!

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!Assistant!Commissioner!Dix!reports!that!the!department!is!committed!to!requesting!the! full!annualized!amount!of!funding!needed!for!full!operation!of!the!START!Programs!for! FY14.!All!regions!are!projecting!adding!an!additional!respite!home!and!many!propose!to! add!to!the!mobile!crisis!teams!and!inQhome!support!services!depending!on!the!level!of!need! in!the!region.!These!proposed!expansions!may!be!necessary!to!meet!the!Settlement! Agreement!requirements!for!timely!response!to!individuals!with!ID/DD!and!challenging! behaviors!experiencing!a!crisis.!Future!reviews!shall!include!an!analysis!of!the!utilization! data!to!determine!the!volume!of!crisis!referrals!to!START!and!the!regional!programs’! capacity!to!respond!in!a!timely!fashion!to!provide!assessment!and!appropriate!community! supports.!This!will!assist!in!determining!the!level!of!expansion!that!will!be!required!in! subsequent!years.!! The!FY13!budget!reductions!are!in!part!due!to!normal!delays!in!starting!a!new!program.!It! has!not!been!possible!for!regions!to!establish!and!open!the!respite!homes!as!projected,! which!is!discussed!under!Section!6.b.iii.F!in!this!report.!However!the!budget!reductions! have!also!resulted!in!regions!planfully!delaying!the!hiring!of!staff!and!the!implementation! of!the!mobile!crisis!24/7!response!and!the!inQhome!supports,!which!is!discussed!in!Section! 6.b.ii.F.!!Table(2!summarizes!each!region’s!status!hiring!START!staff.!
Table!2:!Regional!START!Staff!Hiring!
Summary!

Region% Core%Staff%

I!

START!Director:!6/25!

Medical!Director:!identified!

Clinical!Director:!9/12!

Respite!Director:!9/12!

Clinical!Team!Leader:!8/12!

START!Coordinators:!7Q9/12!

II!

START!Director:!6/18!

Medical!Director*!

Clinical!Director*!

Respite!Director:!interviewing!

Clinical!Team!Leader!&!

START!Coordinators:!interviews! begin!6/25/12!

III!

Director*!

Medical!Director*!

Asst.!Medical!Director*!

Clinical!Director*!

Respite!Director*!

InJHome%Staff% % Hire!by!9/12!
% Hire!by!9/12!
% InQhome!(2)*! InQhome!(3):! interviewing!

Respite%Home%Staff% % Hire!by!9/12!
% Hire!by!9/12!
% Respite!staff!(8FTE)*! Respite!staff!(7FTE):! delay!hiring!until!the! home!opens!and!is!at! full!capacity!

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Region% Core%Staff%

Asst.!Respite!Director*!

Clinical!Team!Leader*!

Coordinators!(6)*!

Coordinators!(2):!interviewing!

IV!

Director*!

Medical!Director*!

Clinical!Director*!

Respite!Director*!

Team!Leader*!

Coordinators!(4)*!

V!

Director*!

Medical!Director*!

Clinical!Director*!

Respite!Director*!

Team!Leader:!8/12!

Coordinators!(3)*!

Coordinators!(2):7/12!

Coordinator!(1):!not!initiated!

Psychologist!(PT):!8/12!

*notes%already%hired%at%time%of%review%

InJHome%Staff%
Hire!by!midQ November!
! Hiring!process!to! begin!8/12!

Respite%Home%Staff%
Hire!by!midQ November!
! Hire!10/12Q 11/12including! Assistant!Director!

The!impact!of!the!staff!hiring!process!on!the!region’s!ability!to!implement!the!3!major! components!of!the!crisis!response!system!will!be!detailed!in!subsequent!sections.!
Areas of Potential Non-compliance with the Settlement Agreement:

It!is!evident!that!the!Virginia!DBHDS!has!undertaken!a!comprehensive!planning!process! and!the!department!is!to!be!commended!for!adopting!a!nationally!recognized!model!of! crisis!prevention!and!intervention.!However!there!are!two!problematic!areas.!
Serving)Children)with)Intellectual)and)Developmental)Disabilities:)

The!Settlement!Agreement!requires!the!Commonwealth!of!Virginia!to!provide!a!crisis! response!system!that!can!respond!to!individuals!of!all!ages!with!ID!or!DD.!Currently!there! is!no!plan!or!funding!to!provide!crisis!planning!and!response!for!children!with!either!an! intellectual!or!developmental!disability.!!The!START!Program!is!designed!for!adults!18! years!of!age!or!older!who!have!ID!or!DD!and!a!coQoccurring!mental!health!diagnosis!of! behavioral!challenge.!Heidi!Dix,!Assistant!Commissioner!for!Developmental!Services,! DBHDS!discussed!the!issue!of!serving!children!with!ID!and!DD!with!me!during!an!interview! conducted!on!June!26,!2012.!She!confirmed!that!there!is!currently!no!funding!committed!to! provide!crisis!system’s!response!to!children!under!the!age!of!18!with!either!ID!or!DD.! Children!currently!have!access!to!EPSDT,!Medicaid!and!those!with!serious!emotional!issues! have!access!to!wraparound!services!through!the!mental!health!division!of!DBHDS.!These!

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existing!funding!streams!provide!a!base!upon!which!DBHDS!believes!comprehensive!crisis! prevention,!intervention!and!stabilization!could!be!added.!The!department!plans!to! develop!a!proposal!this!summer!and!submit!a!budget!option!for!the!Governor!to!include!in! his!budget!proposal!to!the!Legislature!for!FY14!which!is!presented!in!December!2012.!The! Legislative!budget!is!finalized!in!March,!2013!and!if!funding!for!children’s’!crisis!services!is! included!it!will!be!available!in!July,!2013.!The!DBHDS!will!need!to!decide!if!the!START! program!can!be!adapted!to!serve!children!since!its!mission!is!to!support!adults!with!ID!or! DD!or!if!an!alternative!model!will!need!to!be!developed.!
Serving)Adults)with)Developmental)Disabilities:)
The!Settlement!Agreement!requires!the!Commonwealth!to!provide!crisis!system!support!to! individuals!with!developmental!disabilities!as!well!as!intellectual!disabilities.!Currently!the! Commonwealth!is!not!in!full!compliance!with!this!requirement.!The!DBHDS!is!the!agency! responsible!to!serve!people!with!intellectual!disabilities!but!not!those!who!have!a! developmental!disability.!A!recent!communication!was!issued!on!June!21,!2012!by!DBHDS! Commissioner!James!W.!Stewart,!III!to!clarify!access!to!START!Services!for!Individuals!with! Developmental!Disabilities!(Attachment!C).!He!directs!that!individuals!with!DD!are!to!be! offered!START!Services!and!clarifies!that!this!population!was!not!addressed!in!the!original! RFP!as!the!department!was!not!aware!of!the!full!requirements!of!the!Settlement!Agreement! at!the!time!the!RFP!was!issued.! The!criteria!for!persons!with!DD!to!access!START!indicate!that!all!can!be!referred!to!START,! have!a!face!to!face!assessment!and!be!referred!to!other!resources.!However,!to!receive!inQ home!supports!or!use!the!respite!home!you!must!have!a!CSB!case!manager,!DD!case! manager!or!other!clinical!home!(case!coordination)!as!called!for!in!the!START!model.!This! requirement!to!have!a!case!manager!may!exclude!individuals!with!DD!from!accessing! START!crisis!intervention!and!stabilization!support!or!have!funding!to!access!other! community!supports!to!prevent!crises!in!the!future.! Individuals!with!ID!are!eligible!for!HCBS!waivers!and!are!provided!case!management!as!a! Medicaid!State!Plan!service.!Individuals!with!ID!are!provided!case!management!through! the!CSBs!and!will!have!full!access!to!START!Services.!If!a!person!with!ID!who!was!not! previously!known!to!the!system!and!does!not!have!a!case!manager!requests!support!during! a!crisis,!Bob!Villa!has!reported!that!the!CSB!will!assign!a!case!manager!within!3!days!to! coordinate!with!START!services!and!community!support!linkages.!! Adults!with!developmental!disabilities!are!not!currently!served!by!DBHDS!although!both! Deputy!Commissioner!Dix!and!Bob!Villa,!DBHDS!START!Services!Liaison,!confirm!that!it!is! the!long!range!plan!of!Virginia!to!include!this!population!under!the!DBHDS!authority.! Currently,!a!limited!number!of!individuals!with!DD!(1,000)!are!on!a!waiver!operated!by!the! Department!of!Medical!Assistance!Services!(DMAS),!the!state!Medicaid!agency,!and!have!a! DD!Waiver!Case!Manager.!Others!who!have!a!mental!health!diagnosis!and!are!in!crisis!are! connected!to!Behavioral!Health!Case!Management!through!DBHDS.!Individuals!with!DD!are! not!eligible!for!case!management!through!the!state!plan!so!they!only!have!a!case!manager!if! they!are!a!waiver!participant!or!part!of!the!mental!health!system.!The!administration!of! DBHDS!is!clarifying!whether!DMAS!plans!to!activate!case!management!for!an!individual! with!DD!who!is!in!crisis!and!referred!for!crisis!system!support!who!has!no!case!manager! assigned.!If!not!they!will!not!be!able!to!access!START!services!under!the!current!criteria.!

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Individuals!need!not!only!access!to!case!management!to!be!served!by!START!but!need! access!to!community!supports!upon!which!the!START!program!components!build!to!help! stabilize!the!individual!and!allow!them!to!remain!in!the!community.!START!is!well!qualified! to!serve!individuals!with!DD!and!makes!no!distinction!between!individuals!with!ID!and!DD! in!terms!of!the!responsiveness!of!the!model.!Data!on!the!number!of!people!experiencing! crises!and!referred!to!START!will!need!to!be!reported!that!includes!these!individuals!access! to!case!management,!community!services!and!adequate!funding!to!continue!to!support! them!in!their!communities!and!avoid!unnecessary!hospitalizations!as!the!Settlement! Agreement!is!implemented.!!

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Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 55 of 66 PageID# 4770
(
Compliance with Section b.i. Crisis Point of Entry
A. The(Commonwealth(shall(utilize(existing(Community(Services(Boards((CSB),( including(existing(CSB(hotlines,(for(individuals(to(access(information(and( referrals(to(local(resources.(Such(hotlines(shall(be(operated(24(hours(per(day,( 7(days(per(week(and(staffed(with(clinical(professionals(who(are(able(to( assess(crises(by(telephone(and(assist(the(caller(in(identifying(and(connecting( with(local(services.(Where(necessary,(the(crisis(hotline(will(dispatch(at(least(1( mobile(crisis(team(member(who(is(adequately(trained(to(address(the(crisis.(
Each!region!has!between!5Q10!Community!Services!Boards!(CSB)!that!are!currently! responsible!to!provide!24/7!emergency!response!to!crises!for!individuals!within!their! catchment!area!including!people!who!have!intellectual!disabilities.!Each!CSB!has!a!hotline! which!accepts!emergency!calls!and!emergency!services!staff!who!respond.!The!type!of! response!varies!across!the!CSBs!and!regions!as!does!the!expertise!to!respond!to!the!needs! of!individuals!with!ID!or!DD!and!behavioral!challenges.!One!of!the!regions!highlighted!a! 2010!report!from!the!Commonwealth!of!Virginia’s!Office!of!the!Inspector!General!for! Behavioral!Health!and!Developmental!Services!in!its!explanation!of!the!need!for!the!START! Program.!The!Inspector!General!noted!in!a!report!entitled:!“Review!of!Residential!Crisis! Stabilization!Units!Operated!or!Contracted!by!CSBs”!that!there!is!a!serious!gap!in!crisis! stabilization!for!persons!with!intellectual!disabilities.!!All!regions!operate!crisis! stabilization!units!for!persons!with!mental!health!diagnoses!who!are!in!need!of!short!term! placement!for!treatment!and!stabilization.!Some!of!these!units!are!able!to!respond!to!the! needs!of!individuals!with!ID.!Region!II!has!a!unique!program!to!support!people!in!crisis! including!people!with!ID.!They!offer!a!Clinical!Support!Team!staffed!with!a!psychiatrist,! social!worker!and!funding!for!behavioral!supports.!They!provide!consultation!for!people! living!at!home,!comprehensive!assessments,!crisis!behavioral!plans!and!consultation!to! other!providers.! Regions!reported!that!while!all!CSBs!have!a!mobile!crisis!team!that!conducts!face!to!face! assessments,!the!majority!of!CSBs!will!only!do!so!at!the!hospital!emergency!department.! Less!than!50%!will!respond!onQsite!to!a!crisis!in!another!community!location!including! group!homes!or!an!individual’s!personal!residence!as!is!summarized!in!Table(3.!
! ! ! !

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Table!3:!CSB!Mobile!Crisis!Team! Response!by!Location!!

Region%
I! II! III! IV! V!

Onsite%response%to%a% hospital%
8! 5! 10! 8! 9!

Onsite%response%to% person’s%home%or% community%location%
4! 3! 0! 4! 6!

The!premise!of!the!START!Program!is!that!it!will!have!a!24/7!response!capacity!and!will! accept!referrals!from!the!CSB!Emergency!Services!(ES)!Mobile!Crisis!Teams.!!START!is! modeled!on!a!cooperative!response!that!involves!the!CSB!Emergency!Services!staff.!The! determination!of!whether!someone!in!crisis!needs!hospitalization!is!the!responsibility!of! the!ES!Mobile!Crisis!Team,!not!the!START!team.!For!those!people!experiencing!a!crisis!who! are!not!in!need!of!hospitalization!or!for!whom!that!may!depend!on!the!availability!of!other! supports,!the!CSB!ES!Mobile!Crisis!Team!is!expected!to!contact!the!regional!START! program!and!coordinate!the!response!to!the!crisis.!However,!the!CSBs!are!not!required!to! go!to!an!individual’s!home!although!that!is!the!first!level!of!response!and!the!preference!of! the!START!Program!if!the!situation!is!deemed!to!be!safe.!The!funding!levels!vary!for!the! CSBs!as!one!of!the!funders!is!the!local!jurisdiction!which!may!provide!more!funding!but!is! only!obligated!to!fund!10%!of!the!CSBs!operating!costs.!This!disparity!in!funding! contributes!in!part!to!the!varying!capacity!to!respond.!From!an!interview!with!Bob!Villa!I! learned!that!each!CSB!has!a!MOU!with!the!region!acknowledging!that!the!CSB!has!a!role!to! collaborate!with!the!regional!START!Program!to!respond!to!crises!for!people!with!ID.!! Since!each!CSB!responds!differently!to!crisis!referrals!the!region!is!expected!to!also!develop! an!affiliation!agreement!with!each!CSB!in!its!area.!A!template!for!this!agreement!has!been! developed!by!DBHDS!(Attachment!D).!!This!outlines!the!responsibilities!of!both!emergency! response!teams!to!work!collaboratively!to!provide!quality!crisis!intervention!and!divert! people!with!ID!from!hospitalization!when!clinically!appropriate!to!do!so.!Nine! responsibilities!of!the!START!Program!are!specified!in!the!template.!!The!ES/CSB!agrees!to! provide!24/7!response,!contact!the!regional!START!Program,!work!to!develop!the!Cross! System!Crisis!Plan,!participate!in!team!meetings!and!relevant!training,!and!arrange!for!an! inpatient!psychiatric!setting!when!clinically!and!systemically!appropriate.!It!should!be! noted!that!this!agreement!only!speaks!to!serving!adults!with!ID.! What!will!be!unique!in!each!affiliation!Agreement!is!what!the!individual!CSB!commits!to!as! its!particular!response!to!these!crises!including!locations!where!they!agree!to!respond.!The! requirement!that!each!CSB!have!an!Affiliation!Agreement!with!the!regional!START!Program! is!positive!in!that!roles!will!be!delineated!and!clarified.!However,!the!variance!in!CSB!

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response!has!the!potential!to!impact!the!organization!of!the!START!Mobile!Crisis!Teams! and!each!team’s!capacity!to!respond.!Will!START!Coordinators!respond!onsite!in!people’s! homes!without!being!accompanied!by!the!CSB!ES!staff?!Will!this!have!an!impact!on!START! resources!and!ability!to!respond!within!the!timeframes!expected!if!Coordinators!must! accompany!one!another!rather!than!work!independently!accompanied!by!a!CSB!ES! clinician?!Will!START!Coordinators!only!respond!at!sites!to!which!the!CSB!ES!staff!will!go?! Will!this!have!an!impact!on!the!person!in!crisis!or!his!family!if!they!may!have!to!go!to!a! hospital!setting!unnecessarily!to!have!a!face!to!face!assessment!of!their!need!for!crisis! intervention?! It!was!not!possible!during!the!course!of!this!initial!review!to!determine!if!all!CSB!staff!are! adequately!trained!to!respond!to!the!crisis!intervention!needs!of!individuals!experiencing!a! crisis.!Throughout!the!implementation!of!this!agreement!START!training!should!be! continuously!offered!and!required!of!ES!personnel!to!enhance!their!understanding!and! expertise!in!addressing!the!needs!of!individuals!in!crisis!who!have!coQoccurring!conditions! to!build!an!effective!systemic!response!and!successful!collaboration!between!the!CSB!and! START!mobile!crisis!teams!as!they!respond!to!referrals!for!crisis!intervention!and! stabilization.!! !
B. By(June(30,(2012(the(Commonwealth(shall(train(CSB(emergency(personnel(in( each(Health(Planning(Region(on(the(new(crisis(response(system(it(is( establishing,(how(to(make(referrals,(and(the(resources(that(are(available.(
DBHDS!made!a!commitment!early!in!the!planning!process!to!provide!training!to!CSB! emergency!personnel!in!each!region!about!the!aspects!of!the!START!Program.!Bob!Villa! made!2!presentations!to!the!Virginia!Association!of!Community!Service!Boards!(VACSB)!in! January!and!May!of!2012.!A!standard!power!point!presentation!and!handout!were!used! that!describe!the!START!Program,!the!general!referral!process!and!a!description!of! resources.!Additionally!each!region!scheduled!an!open!information!session!for!all!of!its! CSBs!between!January!and!May!of!this!year.!Documentation!was!provided!by!DBHDS!and! 37!of!the!40!CSBs!attended!one!of!these!regional!sessions.!!Region!III!invited!other! emergency!personnel!including!law!enforcement!to!the!overview!session.!!Regional!START! Directors!have!also!met!individually!with!CSB!emergency,!ID!and!case!management!staff!to! provide!an!overview!to!START!Services.!Ongoing!communication!and!training!between!the! START!staff!and!all!of!their!partners!including!the!CSBs!is!a!priority!of!DBHDS!central! administration!and!regional!START!staff.!!!
Section 6.b.ii. Mobile Crisis Teams:
F.((By(June(30,(2012(the(Commonwealth(shall(have(at(least(1(mobile(crisis( team(in(each(Region(that(shall(respond(to(on=site(crises(within(3(hours:(
None!of!the!regions!have!been!able!to!fully!comply!with!this!requirement!due!to!delays!in! hiring!and!budget!reductions.!Regions!III,!IV!and!V!have!started!to!provide!some!level!of! consultation!and!mobile!crisis!response!mostly!for!individuals!at!risk!of!behavioral!crises! but!not!currently!experiencing!a!crisis.!!Table(4!below!provides!a!summary!of!each!region’s! plan!for!its!mobile!crisis!team!to!be!fully!operational!and!what!level!of!support!has!been! available!as!of!June!30,!2012.!Also!included!in!this!Table!is!the!status!of!offering!inQhome!

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supports!for!up!to!72!hours!for!a!person!experiencing!a!crisis!that!can!remain!in!her! existing!residence.! It!should!be!noted!that!every!region!expects!to!respond!within!3!hours!to!provide!a!face!to! face!assessment!and!some!regions!plan!to!respond!within!2!hours!once!the!mobile!crisis! team!is!fully!operational.!However!all!regions!reported!the!challenges!of!accomplishing!this! as!a!result!of!the!dispersed!geographic!nature!of!their!region!or!the!congestion!and!traffic.! Some!regions!are!hiring!staff!that!live!in!different!parts!of!the!region!to!be!in!greater! proximity!to!more!individuals,!other!regions!are!dispersing!their!staff’s!worksites!to! shorten!their!response!time.!Region!III!is!exploring!technology!and!videoQconferencing!as!a! potential!aide!to!providing!timely!consultation!and!followQ!up.!
Section 6.b.iii. Crisis Stabilization Programs:
F.((By(June(30,(2012(the(Commonwealth(shall(develop(one(crisis(stabilization( program(in(each(region.((
Currently!no!Respite!Home!has!been!opened!by!a!regional!START!Program!in!compliance! with!the!requirement!to!have!a!crisis!stabilization!unit!program!in!each!region!by!June!30,! 2012.!Three!of!the!regions!have!purchased!or!already!owned!homes!that!are!suitable!for! use!as!a!respite!home.!!Region!IV!is!purchasing!a!home!and!is!scheduled!to!close!on!July!12,! 2012.!Region!V!owns!property!and!is!building!a!home!that!will!meet!the!criteria!for!the! environmental!considerations!of!the!START!model.!Summaries!of!the!regions’!status!to! develop!a!crisis!stabilization!program!are!contained!in!Table(4.!
Table!4:!Summary!of!Regional!START!
Program!Implementation!

REGION% I!

Mobile%Crisis%Response%
8/12! Will!respond!within!3!hours!

II!

Awaiting!licensing!

Will!!respond!within!3!hours!

III!

Provides!mobile!crisis!response!

7:30AMQ6PM!7!days!

Will!be!24/7!by!9/15/12!

Will!respond!within!2!hours!

IV!

Currently!accepting!nonQcrisis!

referrals!(25!to!date)!and!can!

respond!to!crisis!during!the!day!

By!7/15/12!extend!to!7PM!

InJhome%Support%
9/12Q10/12!
9/12Q10/12!
Provides!inQhome!non!crisis! response!7:30AMQ6PM!! !7!days! Will!be!24/7!by!9/15/12! ! 1/1/13!delayed!start!due!to! budget!reduction!

Respite%Home%
10/12!opening!for!3! 1/13!expand!to!6! Home!owned,!renovations!
needed!
10/12!opening!for!4! 1/13!expand!to!6!if!funded! Home!purchased,!needs! renovations!
9/15/12!opening!for!4! 1/13!expand!to!6! Home!purchased,! renovations!scheduled!to! be!completed!by!9/1/12!
1/13!opening!for!6! Accepting!referrals!for! planned!respite!10/12!for! January!

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REGION% V!

Mobile%Crisis%Response%
Will!be!24/7!by!8/15/12! Will!respond!within!2!hours! Providing!consultation!for!nonQ crisis!referrals!(10!to!date)! By!7/15/12!will!accept!crisis! referral,!extend!hours!to!!7PM! Will!be!24/7!by!9/1/12! Will!respond!within!2Q3!hours!

InJhome%Support%
10/1/12!will!start!supports! with!partial!staffing!in!place!

Respite%Home%
Closing!on!home!7/12/12,! needs!renovations!
1/13!opening!for!5Q6! Home!to!be!built,!property! purchased,!!architectural!
plans!complete!

!)

Conclusion%
The!Commonwealth!of!Virginia’s!DBHDS!has!initiated!a!planning!process!and!is!providing! leadership!to!enhance!the!state’s!ability!to!respond!to!the!crisis!needs!of!individuals!who! have!ID!and!DD!and!a!coQoccurring!mental!health!diagnosis!or!a!behavioral!challenge!that! places!them!at!risk!of!institutionalization.!They!are!to!be!recognized!for!starting!this! process!several!months!before!the!completion!of!the!Settlement!Agreement!and!for! deciding!to!use!a!reliable,!wellQtested!and!comprehensive!service!delivery!model,!START! Services.!This!offers!the!potential!to!build!communities’!capacity,!expertise!and!ability!to! respond!in!a!timely!and!positive!manner!to!individuals!in!crisis!and!support!them!to! remain!in!their!home!communities.!The!leadership!of!DBHDS,!Office!of!Developmental! Services!including!the!START!Directors!is!very!committed!to!creating!a!successful!service! delivery!model!based!upon!the!tenets!of!the!START!Model.!Although!delays!in!program! implementation!have!created!a!situation!of!nonQcompliance!the!planning,!organizational! support,!funding!and!wellQconceived!program!design!poise!the!state!to!implement! successful!crisis!response!in!each!region!within!the!next!6!months.!! Future!reviews!of!this!requirement!of!the!Settlement!Agreement!will!need!to!include!an! analysis!of!the!existing!community!service!delivery!partners’!ability!to!enhance!and!expand! their!ability!to!coordinate!and!provide!ongoing!community!support!to!individuals!at!risk!of! crisis!and!those!who!experience!crisis!and!need!emergency!support.!The!START!program! will!need!these!formal!partnerships!in!order!for!the!system!to!be!able!to!maintain!people! with!coQoccurring!conditions!at!home!and!within!their!communities!so!that!they!do!not! experience!unnecessary!institutionalization.!

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Attachment%A:%The%Lewin%Group’s%Proposal%to%Evaluate%the%Crisis%Service% Requirements%of%the%US%v%Virginia%Settlement%Agreement%
Kathryn!du!Pree,!Vice!President!of!The!Center!for!Aging!and!Disability!Policy!has!been! asked!by!Donald!Fletcher,!Independent!Reviewer!for!the!US!v!Commonwealth!of!Virginia’s! Settlement!Agreement,!to!propose!an!approach!to!evaluate!the!crisis!system!requirements! of!the!Settlement!Agreement.!The!following!outlines!the!expectations!of!the!Settlement! Agreement!related!to!the!development!of!a!statewide!crisis!system!for!individuals!with! intellectual!disabilities!(ID)!and!developmental!disabilities!(DD)!which!are!contained!in! section!6.!Following!each!subsection!are!recommended!measures!and!a!suggested!method! to!determine!the!states’!compliance.!!!! Settlement(Agreement(Requirements:( 6.(a.(The(Commonwealth(shall(develop(a(statewide(crisis(system(for(individuals(with(ID( and(DD.(The(crisis(system(shall:(
i.( Provide(timely(and(accessible(support(to(individuals(with(I/DD(who(are( experiencing(crises,(including(crises(due(to(behavioral(or(psychiatric(issues,(and( to(their(families;(
ii.(( Provide(services(focused(on(crisis(prevention(and(proactive(planning(to(avoid( potential(crises;(and((
iii.((Provide(in=home(and(community=based(crisis(services(that(are(directed(at( resolving(crises(and(preventing(the(removal(of(the(individual(from(his(her( current(placement(whenever(practicable.(
Initial!review!of!these!requirements!will!include:! ! The!state’s!contractual!requirements!for!the!timely!response!to!calls!to!the!crisis!24! hour!line!
! The!state’s!contractual!requirements!for!the!timely!response!!of!the!crisis! intervention!team!to!assess!the!individual’s!needs!and!initiate!services!and!supports!
! The!state’s!plan!to!assure!proactive!planning!to!avoid!crises:!requirements!to!assess! consumers!for!potential!behavioral!or!psychiatric!crises,!requirements!to!address! prevention!in!the!individual!planning!process,!training!for!case!managers!and!other! team!members!in!prevention!approaches!!
! The!provider’s!ability!to!provide!the!crisis!services!within!the!timeframe!established! by!the!Settlement!Agreement!
! The!sufficiency!and!sustainability!of!the!state’s!funding!for!the!establishment!and! ongoing!operation!of!the!components!of!the!crisis!system!!
! The!sufficiency!of!the!provider’s!!plans!to!develop!crisis!response!including!time! requirements,!staffing!availability!and!expertise,!assessment!protocols,!intervention! strategies!for!the!individual!and!family,!and!approaches!designed!to!keep!the!person! in!their!current!setting!!
Method:%The!expert!will!review!written!documents!including!the!RFP!issued!by!the! Commonwealth,!the!responses!of!the!chosen!providers,!and!the!allocated!funding!for!the!

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crisis!system;!and!training!requirements!for!case!managers!in!crisis!prevention! approaches.!! The!reviewer!will!interview!the!Program!Director!for!each!Region’s!START!Program!to! assess!status!of!development,!the!adequacy!of!the!provider’s!plan!to!provide!all!required! aspects!of!crisis!services,!and!the!ability!to!meet!the!timelines!of!the!Settlement!Agreement.!! Measurements%to%assess%the%provision%of%crises%services%during%the%course%of%the% settlement%agreement:%
! Individual!plans!include!identification!of!behavioral!needs!and!include!prevention! strategies!
! Crisis!response!is!timely!when!requested!and!includes!an!assessment!and! intervention!plan!
! InQhome!services!are!started!when!required!and!continue!until!the!person!is! stabilized!
! Training!of!family!caregivers!occurs!
! Transition!planning!occurs!when!the!person!must!leave!his!or!her!current!setting! for!crisis!stabilization!
! Transition!planning!occurs!when!the!person!has!a!short!term!hospitalization!to! facilitate!the!return!home!
! Crisis!intervention!services!are!communicated!to!and!coordinated!with!other! service!providers!involved!in!supporting!the!individual!
Method:%The!expert!will!review!aggregate!data!for!each!measure!and!will!select!a!random! sample!of!10%!(minimum!of!10!per!region)!of!the!individuals!referred!to!each!region’s! crisis!intervention!program!to!review!the!data!related!to!each!measure!and!will!conduct!a! phone!or!inQperson!interview!with!2!families,!2!case!managers!and!2!providers!in!each! region.!! Settlement(Agreement(Requirement:( 6.(b.(The(crisis(system(shall(include(the(following(components:(
i.( (Crisis(Point(of(Entry( A.(The(Commonwealth(shall(utilize(existing(CSB(Emergency(Services,(including( existing(CSB(hotlines,(for(individuals(to(access(information(about(and(referrals(to( local(resources.(Such(hotlines(shall(be(operated(24(hours(per(day,(7(days(per(week( and(staffed(with(clinical(professionals(who(are(able(to(assess(crises(by(phone(and( assist(the(caller(in(identifying(and(connecting(with(local(services.(Where(necessary,( the(crisis(hotline(will(dispatch(at(least(1(mobile(crisis(team(member(who(is( adequately(trained(to(address(the(crisis.(( Measures:( ! The!number!and!location!of!CBS!Emergency!Services!and!hotlines!
! The!availability!of!this!resource!to!individuals!with!I/DD!and!their!families!as! evidenced!by!a!summary!of!individuals!using!the!service!and!hotline!by!diagnostic! category!and!data!as!to!any!denials!of!request!for!service!
! A!plan!and!protocols!exist!for!referral!to!the!new!crisis!response!system!(START! mobile!crisis!teams)!

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Method:!The!expert!will!review!data!provided!by!the!state!or!each!CBS!Emergency!Service! B.(By(June(30,(2012(the(Commonwealth(shall(train(CSB(Emergency(personnel(in( each(Health(Planning(Region(on(the(new(crisis(response(system(it(is(establishing,( how(to(make(referrals,(and(the(resources(that(are(available.((
Measures:( ! A!!curriculum!to!explain!the!system,!address!referrals!and!available!resources! ! All!identified!CSB!emergency!personnel!in!each!region!have!been!trained!
Method:%The!state!will!provide!the!curriculum!used!and!documentation!of!the!dates!of! training!and!the!attendees!by!profession!which!will!be!reviewed!by!the!expert.! Settlement(Agreement(Requirement:( (ii.(Mobile(crisis(teams(
A. Mobile(crisis(team(members(adequately(trained(to(address(the(crisis(shall( respond(to(individuals(at(their(homes(and(in(other(community(settings(and(offer( timely(assessment,(services,(support,(and(treatment(to(de=escalate(crises( without(removing(individuals(from(their(current(placement(whenever(possible.(
Measures:( ! A!training!curriculum!for!all!crisis!team!members!is!available!and!addresses!crisis! assessment,!treatment!approaches,!and!inQhome!and!family!support!techniques! ! Training!has!been!provided!to!all!team!members! ! Staff!competency!in!the!training!materials!has!been!assessed!
Method:%The!expert!will!review!the!training!curriculum!and!documentation!submitted!by! each!region!confirming!that!training!has!occurred.!
B. Mobile(crisis(teams(shall(assist(with(crisis(planning(and(identifying(strategies( for(preventing(future(crises(and(may(also(provide(enhanced(short=term(capacity( within(an(individual’s(home(or(other(community(setting.(
Measures:(% ! The!number!of!individuals!calling!or!referred!to!the!mobile!crisis!team! ! The!number!of!crisis!plans!developed! ! The!elements!of!the!crisis!plan!and!the!number!that!include!shortQterm!inQhome! services! ! The!number!of!individuals!using!the!mobile!crisis!team!that!were!maintained!in! their!current!setting! ! The!number!of!individuals!using!the!mobile!crisis!team!who!were!transitioned!to! another!appropriate!community!setting! ! The!number!of!individuals!using!the!mobile!crisis!team!who!required!ER!services! ! The!number!of!individuals!using!the!mobile!crisis!team!who!required!an!inpatient! hospitalization!

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Method:%The!expert!will!review!data!provided!by!the!region!including!a!random!selection! of!10%!(minimum!of!10!per!region)!of!the!individual!crisis!plans.! Settlement(Agreement(Requirement:%
C. Mobile(crisis(team(members(adequately(trained(to(address(the(crisis(also(shall( work(with(law(enforcement(personnel(to(respond(if(an(individual(with(ID/DD( comes(in(contact(with(law(enforcement(
Measures:( ! There!are!outreach!efforts!by!the!mobile!crisis!team!to!local!law!enforcement!to! provide!information!regarding!treating!individuals!with!ID!or!DD!!!
! The!number!of!individuals!with!ID!or!DD!experiencing!a!crisis!who!are!!arrested!or! sent!to!an!ER!by!a!law!enforcement!officer!
! The!number!of!individuals!referred!to!the!mobile!crisis!team!by!a!law!enforcement! officer!
! The!number!of!individuals!served!by!the!mobile!crisis!team!who!were!in!contact! with!law!enforcement!who!remained!in!a!community!!
Method:%The!expert!will!review!encounter!data!submitted!by!the!region!and! documentation!of!any!outreach!efforts.! Settlement(Decree(Requirements:%
D. Mobile(Crisis(teams(shall(be(available(24(hours,(7(days(per(week(and(to(respond( on=site(to(crises.(
E. Mobile(crisis(teams(shall(provide(local(and(timely(in=home(crisis(support(of(an( additional(period(of(up(to(3(days,(with(the(possibility(of(an(additional(period(of( up(to(3(days(upon(review(of(the(Regional(Mobile(Crisis(Team(Coordinator(
Measures:(( ! The!number!of!calls!received!by!the!mobile!crisis!team,!the!time!of!day!the!call!is! received!and!the!time!in!which!the!call!is!answered!
! The!number!of!calls!that!result!in!an!onQsite!response!and!the!ability!of!the!crisis! team!to!respond!in!a!timely!manner!
! The!determination!through!the!assessment!process!of!the!duration!and!type!of!inQ home!support!needed!
! The!length!of!time!inQhome!support!was!provided!
! Consumer!and!family!satisfaction!with!the!telephonic!and!onQsite!response!to!a!call! to!the!mobile!crisis!team!
Methods:%The!expert!will!review!data!provided!by!the!regions,!and!will!develop!and! administer!a!short!telephone!survey!to!a!random!selection!of!10%!(minimum!of!10!per! region)!of!the!individuals!and!families!served!by!the!mobile!crisis!team!to!determine!their! satisfaction.! ( (

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Settlement(Decree(Requirements:( F. By(June(30,(2012(the(Commonwealth(shall(have(at(least(one(mobile(crisis(team( in(each(Region(that(shall(respond(to(on=site(crises(within(three(hours.( G. By(June(30,(2013(the(Commonwealth(shall(have(at(least(two(mobile(crisis(teams( in(each(region(to(respond(to(on=site(crises(within(two(hours.( H. By(June(30,(2014(the(Commonwealth(shall(have(a(sufficient(number(of(mobile( crisis(teams(in(each(Region(to(respond(on(site(to(crises(as(follows:(in(urban( areas,(within(one(hour,(and(in(rural(areas,(within(two(hours,(as(measured(by(the( average(annual(response(time.((
Measures:( ! In!each!year!the!Commonwealth!has!issued!timely!RFPs!and!selected!a!sufficient! number!of!mobile!crisis!teams!in!each!region!to!respond!in!the!time!period!required!
! The!Mobile!Crisis!Team!has!developed!its!program!and!has!sufficient!staff!capacity! to!respond!in!the!time!period!required!
! The!Mobile!crisis!team!receives!crisis!calls!24!hours!a!day!7!days!a!week!and!based! upon!need!for!inQhome!assessment!or!intervention!deploys!staff!in!the!time!period! required!
Methods:%The!Expert!will!review!the!issuance!of!RFPs!and!the!selection!process!to! ascertain!timeliness!and!will!review!the!selected!providers’!plans!and!implementation! timeframes!for!the!first!review!period!(6/12).!Data!will!be!provided!by!each!Region! regarding!the!time!in!which!the!team!responded!to!each!request!for!inQhome!assistance!for! each!calendar!year!starting!with!the!second!review!period!(1/13).! Settlement(Decree(Requirements:(
(iii.(Crisis(stabilization(programs( A. Crisis(stabilization(programs(offer(a(short=term(alternative(to(
institutionalization(or(hospitalization(for(individuals(who(need(inpatient( stabilization(services.(
B. Crisis(stabilization(programs(shall(be(used(as(a(last(resort.(The(state(shall( ensure(that,(prior(to(transferring(an(individual(to(a(crisis(stabilization( program,(the(mobile(crisis(team,(in(collaboration(with(the(provider,(has(first( attempted(to(resolve(the(crisis(to(avoid(an(out=of=home(placement,(and(if(that( is(not(possible,(has(then(attempted(to(locate(another(community=based( placement(that(could(serve(as(a(short=term(placement.((
C. If(an(individual(receives(crisis(stabilization(services(in(a(community=based( placement(instead(of(a(crisis(stabilization(unit,(the(individual(may(be(given( the(option(of(remaining(in(placement(if(the(provider(is(willing(to(serve(the( individual(and(the(provider(can(meet(the(needs(of(the(individual(as( determined(by(the(provider(and(the(individual’s(case(manager.(
( ( (

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Measures:( ! The!mobile!crisis!team!has!provided!assessment,!inQhome!support!when! appropriate!and!links!to!community!resources!before!considering!crisis! stabilization!programs!
! The!mobile!crisis!team!has!affiliations!with!community!providers!and!has! collaborated!with!them!as!appropriate!to!stabilize!the!individual’s!crisis!situation!
! A!shortQterm!community!based!placement!is!offered!when!appropriate!to!meet!the! individual’s!needs!
! The!case!manager,!family,!individual,!mobile!crisis!team,!and!provider!collaborate!to! determine!if!an!extended!stay!is!necessary!
! The!length!of!stay!in!a!shortQterm!community!–based!placement!is!extended!when! needed!by!the!individual!and!is!suitable!to!meet!the!person’s!needs!
Methods:%The!expert!will!review!data!provided!by!the!region!for!all!individuals!served!by! the!mobile!crisis!team!who!are!referred!for!crisis!stabilization:!assessment!determinations;! use!of!community!alternatives!to!the!crisis!stabilization!programs;!extensions!of!shortQterm! out!of!home!crisis!stabilization!stays,!and!documentation!of!provider!affiliations.! Settlement(Agreement(Requirements:%
D. Crisis(stabilization(programs(shall(have(no(more(than(6(beds(and(lengths(of( stay(shall(not(exceed(30(days.(
E. With(the(exception(of(the(Pathways(Program(operated(by(the(Southwestern( Training(Center((SWVTC),(crisis(stabilization(programs(shall(not(be(located( on(the(grounds(of(the(Training(Centers(or(hospitals(with(inpatient( psychiatric(beds.(By(July(1,(2015,(the(Pathways(Program(at(SWVTC(will(cease( providing(crisis(stabilization(services(and(shall(be(replaced(by(off=site(crisis( stabilization(programs(with(sufficient(capacity(to(meet(the(needs(of(the( target(population(in(that(Region.(
F. By(June(30,(2012(the(Commonwealth(shall(develop(one(crisis(stabilization( program(in(each(Region.(
G. By(June(30,(2013,(the(Commonwealth(shall(develop(an(additional(crisis( stabilization(program(in(each(Region(as(determined(necessary(by(the( Commonwealth(to(meet(the(needs(of(the(target(population(in(that(Region.(
( Measures:((
! The!capacity!of!each!crisis!stabilization!program!does!not!exceed!6!
! The!length!of!stay!does!not!exceed!30!days!for!any!one!individual!
! Transitions!are!planned!to!return!the!person!to!his!home!or!another!community! setting!within!30!days!to!avoid!hospitalization!
! Each!crisis!stabilization!program!is!located!in!a!community!setting!

!

!

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Case 3:12-cv-00059-JAG Document 120 Filed 12/07/12 Page 66 of 66 PageID# 4781

! Each!region!has!at!least!1!crisis!stabilization!program!by!6/30/12!!
! The!Commonwealth!has!a!methodology!to!determine!the!number!of!crisis! stabilization!programs!that!are!needed!to!meet!the!needs!of!individuals!with!ID!or! DD!who!requires!out!of!home!crisis!stabilization!
! Each!region!has!developed!the!number!of!crisis!stabilization!programs!determined! to!be!needed!by!6/30/13!
! Each!region!has!sufficient!capacity!to!avoid!unnecessary!ER!utilization!or!inpatient! hospitalization!

Methods:%The!expert!will!review!the!facility!size!and!locations,!data!on!the!LOS!for!the! reporting!period,!the!Commonwealth’s!methodology!for!determining!capacity!and!the! number!of!facilities!developed!within!the!timeframes!established!by!the!Settlement! Agreement,!and!the!ER!and!hospitalization!utilization!for!all!individuals!referred!to!the! mobile!crisis!teams.!

Proposed%Evaluation%Activities%
Currently!Virginia!is!in!the!planning!stage!of!developing!its!crisis!response!system!for! individuals!with!ID!and!DD.!An!initial!review!is!proposed!to!be!completed!by!July!1,!2012! which!will!include!the!following:!
! A!review!of!Sections!6.a.!i.,!ii.!and!iii.!requirements!as!outlined!under!the!initial! review!above!
! A!review!of!Sections!6.b.i.A!and!6.b.i.B!using!the!measures!and!methods!outlined! above!
! A!review!of!Sections!6.b.ii.F!and!6.b.iii.F!using!the!measures!and!methods!outlined! above!

The!work!effort!anticipated!to!accomplish!this!initial!review!is:!

ACTIVITY%

ESTIMATED%HOURS%

COST%

Document!review!

18!hours!

$3,200!

Interviews!with!Program! Directors!and!State! Administrators!

20!hours!

$5,500!

Report!Writing!

12!hours!

$3,300!

!

!

Total%cost:!$12,000!

%% The!report!will!include!findings,!a!summary!of!barriers!to!timely!development!of!the!crisis! system!and!recommendations!to!address!any!barriers!to!the!implementation!of!the! settlement!agreement!requirements!for!crisis!services.! The!Independent!Reviewer!and!Expert!will!discuss!the!timing!of!subsequent!reviews!and!a! cost!proposal!will!be!provided.!

!

!

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 </s> Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 1 of 147 PageID# 4821
!
!

! !
! !

! !
 REPORT!OF!THE!INDEPENDENT!REVIEWER!
 !

ON!COMPLIANCE!
 !

WITH!THE!
 !

SETTLEMENT!AGREEMENT!
 !

UNITED!STATES!V.!COMMONWEALTH!OF!VIRGINIA!
 !

United!States!District!Court!for!
 Eastern!District!of!Virginia!
 !
 Civil!Action!No.!3:12!CV!059!
 !

October!7,!2012!O!April!6,!2013!!

!
 ! ! ! ! ! ! !

!

1!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 2 of 147 PageID# 4822

TABLE&OF&CONTENTS!

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

!

!

I.! Summary!

3!

!

II.! Introduction!

5!!

!!

III.! Activities!of!the!Commonwealth!of!Virginia!

!!7!

!

IV.! Activities!of!the!Independent!Reviewer!

!!8!

!

V.! Findings:!

!!11!

! A.!!!!Serving!individuals!in!the!Most!Integrated!Setting!!

11!

B.!!!!Serving!individuals!with!complex!medical!needs!

14!


C.!!!!Discharge!Planning!and!Transition!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!19! !


D.!!!!Resolving!Barriers!

22
!

E.!!!!Safety!in!the!community!

24
!

F.!!!!Waivers!

25!


! G.!!!!Youth!Residing!in!Nursing!Homes!and!the!Largest!ICFs! 26!


H.!!!!Individual!and!Family!Supports!

27
!

I.!!!!!!Case!Management!

28!


J.!!!!!!Crisis!Services!and!Prevention!

32!


K.!!!!!Integrated!Day!Activities!and!Supported!Employment! 40!


L.!!!!!Access!and!Availability!of!Services!

47!


M.!!!!Community!Living!Options!

50
!

N.!!!!FamilyOtoOFamily!and!Peer!Programs!

53!


O.!!!!Quality!and!Risk!Management!

54!


!!!


VI.! Additional!Information!and!Considerations!

57!


!


VII.! Conclusion!

61!


!


VIII.! Recommendations!

61!


!


IX.!! Appendices!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!64!


! !


! !


!

2!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 3 of 147 PageID# 4823

I.&&SUMMARY&
&
This!report!is!submitted!to!the!Court!at!the!end!of!the!second!review!period!covering!
 October!7,!2012!through!April!6,!2013.!Some!facts!were!included!through!May!8,!2013.!
 !
 There!have!been!two!major!approaches!by!the!Independent!Reviewer!to!monitoring!
 implementation!of!the!provisions!of!the!Settlement!Agreement!during!the!second!review!
 period.!First,!the!planning!and!implementation!of!the!new!programs!and!systems!required!
 by!the!Agreement!have!been!monitored!and,!second,!the!outcomes!for!a!selected!sample!of!
 individuals!who!received!new!services!have!been!studied.!
 !
 There!were!many!provisions!of!the!Agreement!scheduled!to!be!accomplished!during!the!
 second!review!period.!The!Reviewer!monitored!the!development!of!the!plans,!and!the!
 initial!implementation!of!these!provisions.!An!expert!consultant!was!retained!to!evaluate!
 and!report!on!the!status!of!compliance!with!two!initiatives:!the!development!of!crisis!
 services!and!the!planning!related!to!Integrated!Day!Activities!and!Supported!Employment.!
 !
 The!Reviewer!gathered!information!related!to!the!planning!and!implementation!of!
 provisions!with!a!broad!array!of!methods!and!sources.!These!included!gathering!
 information!from!officials!and!internal!reports,!holding!regular!meetings!with!those!leading!
 the!efforts,!and!convening!focus!groups!with!stakeholders!to!hear!their!perspectives!
 directly.!The!expert!consultant!evaluated!the!planning!and!implementation!efforts!using!a!
 nationally!recognized!tool!to!review!the !Commonwealth’s!ability!to!plan,!develop,!monitor,!
 and!evaluate!evidencedObased!practices!regarding!systems!development!and!program!
 implementation.!This!review!included!studying!related!documents!and!data,!interviewing!
 the!officials!leading!the!efforts,!and!interviewing!a!sample!of!those!involved.!
 !
 The!Reviewer!and!expert!consultants!utilized!a!monitoring!questionnaire!to!gather!
 information!to!review!the!status!of!services!to!individuals!who!are!receiving!new!ID!waiver!
 services.!The!individuals!selected!for!review!were!those!with!the!most!complex!medical!
 needs.!TwoOperson!teams!reviewed!the!services!of!a!statistically!significant!random!sample!
 of!individuals;!one!member!of!each!team!was!a!registered!nurse!with!extensive!experience!
 serving!individuals!with!complex!medical!needs.!Each!review!included!studying!service!
 planning!and!case!management!records,!visiting!and!observing!the!individuals!usually!in!
 their!homes,!and!interviewing!those!providing!services.!
 !
 The!results!of!this!monitoring!are!described!in!the!Findings!section!of!this!report.!Also,!
 included!in!the!Findings!Section!are!progress!reports!on!targeted!recommendations!made!
 by!the!Reviewer!in!the!First!Report!to!the!Court.!Any!new!recommendations!are!included!
 either!in!the!appropriate!Findings!Section!or!in!the!Recommendations!Section!at!the!end!of!
 the!report.!
 !
 Overall,!it!is!the!opinion!of!the!Reviewer!that!the!Commonwealth!has!made!a!good!faith,!
 concerted,!and!coordinated!effort!to!comply!with!the!requirements!of!the!Agreement.!!
 !


!

3!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 4 of 147 PageID# 4824

Reports!of!the!Commonwealth’s!efforts!and!accomplishments!are!described!in!the!Findings!
 Section!of!this!report.!!It!is!important!to!note!that!more!than!900!individuals!are!now!
 receiving!new!ID!and!DD!Waivers!under!the!Agreement.!Hundreds!more!are!receiving!
 crisis!services!and!individual!supports.!
 !
 There!have!been!many!challenges,!and!some!delays.!It!is!important!that!the!challenges!and!
 delays!be!addressed!as!soon!as!possible.!
 !
 Recommendations!and!associated!concerns!in!the!Findings!Sections!are!related!to!the!
 Commonwealth’s!ability!to!achieve!compliance!with!the!respective!provisions!of!the!
 Agreement.!The!Reviewer’s!recommendations!at!the!end!of!the!report!are!for!the!
 Commonwealth’s!consideration.!They!are!steps,!if!implemented,!that!the!Reviewer!believes!
 will!help!achieve!the!goals!of!the!Agreement.!!!!!!!
 !
 The!next!Report!to!the!Court!will!be!submitted!on!December!6,!2013.!It!will!report!on!the!
 third!review!period,!covering!April!7,!2013!through!October!6,!2013.!!
 !

!
!
!
! !

!
!
!
!
!
!
Respectfully!Submitted;!
!
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

!

!

!

!

!

!
Donald!J.!Fletcher! Independent!Reviewer!
June!6,!2013!

!

4!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 5 of 147 PageID# 4825

II.&& INTRODUCTION&!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

!
 This!is!the!second!report!of!the!Independent!Reviewer!(Reviewer)!to!Judge!John!A.!Gibney,!
 District!Judge!in!the!United!States!District!Court!for!the!Eastern!District!Court!of!Virginia!
 (the!Court)!in!the!Settlement!Agreement!(the!Agreement)!between!the!United!States!(DOJ)!
 and!the!Commonwealth!of!Virginia!(the!Commonwealth),!Civil!Action!No.!3:12cv059.!It!
 covers!the!period!from!October!7,!2012,!to!April!6,!2013,!with!some!information!gathered!
 through!May!13,!2013.!The!Reviewer’s!first!Report!to!the!Court!reported!on!the!period!
 March!6,!2012,!through!October!6,!2012.!That!report!is!posted!in!the!“Settlement”!section!
 of!the!Department!of!Behavioral!Health!and!Developmental!Services!(DBHDS)!website,!as!
 will!this!and!future!semi!annual!reports.!!
 !
 It!is!the!reviewer’s!opinion!that!the!Commonwealth!made!a!good!faith,!coordinated,!and!
 concerted!effort!to!meet!the!requirements!of!the!agreement!during!this!second!review!
 period.!!Overall,!that!effort!has!resulted!in!important!and!considerable!progress!in!many!
 areas.!However,!there!are!some!areas!where!progress!has!not!kept!pace!with!the!schedule!
 of!implementation!in!the!agreement!and!where!improvement!is!needed.!The!reviewer!
 recognizes!that!implementation!of!the!agreement!involves!many!complex!initiatives!that!
 are!being!implemented!simultaneously.!!This!report!includes!highlights!of!
 accomplishments,!areas!of!concern,!and!recommendations.!It!also!provides!progress!
 reports!on!targeted!recommendations!included!in!the!Reviewer’s!first!Report!to!the!Court.!!!
 !
 The!second!reporting!period!includes!more!scheduled!plans!and!actions!than!in!any!other!
 period.!The!Agreement!was!designed!to!initiate!and!accomplish!significant!change!–!to!
 enhance!services!and!to!strengthen!safeguards!–!during!the!first!two!years.!Much!progress!
 has!been!made!since!the!agreement!began.!!More!individuals!with!intellectual!and!
 developmental!disabilities!(ID/DD)!are!receiving!a!wider!array!of!services,!and!the!quality!
 of!those!services!is!supported!by!new!and!enhanced!safeguards.!!More!than!900!individuals!
 have!received!new!communityObased!waiver!services.!More!than!400!individuals!and!
 families!on!the!ID!and!DD!waitlists!have!received!individual!and!family!supports,!and!at!
 least!a!total!of!700!will!by!June!30,!2013.!The!following!new!safeguards!have!been!
 implemented!or!enhanced:!!

! ! discharge!planning!and!preO!and!postOmonitoring!for!individuals!who!moved!
 from!Training!Centers,!!
 ! licensing!oversight!and!monitoring,!!!
 ! crisis!services!and!crisis!stabilization!programs,!!
 ! case!management,!and!
 ! initial!components!of!a!quality!and!risk!management!system.!!

! These!safeguards,!and!other!provisions!of!the!Agreement,!serve!as!foundation!cornerstones!
 of!a!service!system!that!is!able!to!sustain!quality!services.!!!
 !
 The!number!and!interrelated!nature!of!the!new!programs!and!safeguards!in!the!Agreement!
 reflect!the!magnitude!and!the!complexity!of!the!change!process!that!is!now!underway.!!The!


!

5!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 6 of 147 PageID# 4826

Reviewer!has!found!broad!support!and!shared!commitment!to!achieve!its!longOrange!goals!
 –!a!broad!array!of!quality!services!that!promote!selfOsufficiency,!opportunities!for!
 integration,!and!safety.!All!stakeholders!want!a!community!based!service!system!that!has!
 the!resources,!competencies!and!capacity!to!support!individuals!with!complex!needs.!The!
 daily!work!of!this!system!reform!process!has!been,!and!will!continue!to!be,!challenging.!It!
 involves!changing!established!patterns!and!working!relationships!among!stakeholders!
 with!different!perspectives,!priorities!and!financial!interests.!!!
 !
 Many!of!the!new!programs!and!enhanced!services!created!as!a!result!of!the!Agreement!are!
 complex!undertakings!in!their!early!stages.!Many!“growing!pains”!are!apparent!and!
 expected!when!changing!complex!systems.!Early!problems,!closely!monitored!and!carefully!
 evaluated,!will!help!identify!the!development,!organization,!communication,!and!
 coordination!issues!that!need!to!be!improved.!Unplanned!and!unintended!consequences!
 will!require!the!development!and!refinement!of!policies,!procedures,!staff!training!and!
 monitoring!practices.!Active!involvement!of!all!stakeholders!will!be!vitally!important!in!
 what!will!continue!to!be!an!evolutionary!process.!!
 !
 Only!with!organized!systems!that!promote!continuous!improvement!will!the!
 Commonwealth!achieve!consistent!quality!services!and!the!outcomes!desired!by!and!for!
 the!individuals!covered!by!the!Agreement.!The!development!of!the!Quality!and!Risk!
 Management!System!will!provide!information!about!where!performance!does!not!meet!
 expectations!and!needs!improvement!at!the!individual,!program,!and!state!level.!
 !
 Officials!of!multiple!state!agencies!and!local!governments!worked!together!during!the!
 second!review!period.!They!worked!with!representatives!of!stakeholder!groups!on!
 eighteen!project!teams!and!several!advisory!groups.!These!workgroups!developed!and!
 began!implementing!plans!to!accomplish!many!provisions!of!the!Agreement.!Some!teams!
 have!made!substantial!progress;!some!steady,!but!slow!progress;!others,!too!little.!There!
 have!been,!and!will!continue!to!be,!obstacles!to!developing!plans!with!sufficient!detail!to!
 support!effective!implementation.!!
 !
 Although!considerable!progress!has!been!made,!little!has!changed!for!families!and!their!
 family!members!with!ID/DD!living!in!the!community!who!have!not!received!new!services!
 or!been!supported!by!the!new!safeguards.!They!report!having!difficulty!finding!and!
 arranging!for!services.!Once!arranged,!there!is!an!onOgoing!challenge!to!recruit!and!retain!
 qualified!staff.!!
 !
 For!many!individuals!living!in!Training!Centers!and!their!families!much!has!changed.!
 Enhanced!discharge!planning!and!monitoring!procedures!have!supported!more!than!180!
 individuals!to!move!to!homes!in!the!community.!The!families!and!guardians!of!more!than!
 200!additional!individuals!have!expressed!an!interest!in!moving!to!the!community.!Many!
 other!families!and!guardians,!however,!are!worried!that!community!programs!will!not!be!
 developed!to!adequately!meet!the!needs!of!their!loved!ones!before!their!Training!Center!is!
 slated!to!close.!!
 !


!

6!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 7 of 147 PageID# 4827

The!Commonwealth!has!taken!steps!to!increase!communityObased!services!for!individuals!
 with!complex!needs.!In!addition!to!safeguards!described!above,!these!efforts!include!a!
 study!of!the!Home!and!Community!Based!(HCBS)!waivers!which!will!be!completed!during!
 FY!2014,!the!General!Assembly’s!approval!of!a!higher!reimbursement!rate!for!individuals!
 with!complex!needs,!approval!of!reimbursement!for!additional!individual!supported!
 employment!activities,!and!meetings!with!existing!and!new!service!providers!to!encourage!
 community!program!development.!
 !
 These!actions!by!the!Commonwealth!are!intended!to!address!the!concerns!frequently!
 expressed!by!the!families!of!both!individuals!with!ID/DD!living!in!the!community!and!those!
 living!in!the!Training!Centers.!These!concerns!are:!!

! ! the!limited!community!resources!for!individuals!with!complex!needs,!!
 ! the!inadequate!waiver!structure!and!rates,!!
 ! the!lack!of!consistent!quality!services!among!private!and!public!providers,!and!
 ! that!the!adequacy!and!access!to!certain!resources!and!services!depend!on!where!

one!lives.!
!
For!this!reporting!period,!the!Reviewer!prioritized!the!following!areas!for!the!most!inO
depth!monitoring:!!
!
• Serving!individuals!in!the!most!integrated!setting! • Serving!individuals!with!complex!medical!needs!in!the!community! • Discharge!Planning!and!Transition! • Resolving!Barriers! • Safety!in!the!Community!
 ! Waivers!!!
 ! Youth!living!in!nursing!facilities!and!large!ICFs!
 ! Individual!and!Family!Support!
 ! Enhanced!Case!Management!
 ! Crisis!Services!!
 ! Integrated!Day!Activities!and!Supported!Employment!!
 ! Access!and!Availability!of!Services!
 ! Family!to!Family!and!Peer!Programs!
 ! Community!Living!Options/Housing!Plan!!
 ! Quality!and!Risk!Management!!

!
During!the!third!review!period,!the!Reviewer!will!continue!to!monitor!areas!studied!during!
the!second!review!period.!The!Reviewer!will!prioritize!monitoring:!!
! ! Discharge!Planning!and!Transition!from!Southside!and!Northern!Virginia!Training! Centers!
 ! Case!Management!!
 ! Crisis!Services!
 ! Quality!and!Risk!Management!


!

7!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 8 of 147 PageID# 4828

!


The!effective!implementation!of!the!Agreement!will!depend!on!the!continued!contributions!


from!individuals!with!ID/DD,!their!families,!advocates,!service!providers,!Community!


Service!Boards,!many!Commonwealth!and!local!agencies,!the!General!Assembly,!and!the!


leadership!of!the!Governor.!!


!


The!Reviewer!has!been!welcomed!and!graciously!supported!statewide!by!families!and!


stakeholders.!He!extends!a!personal!thanks!to!each!one!of!the!individuals!with!ID/DD!and!


their!families!who!shared!their!stories!and!perspectives.!Some!have!welcomed!the!


Reviewer,!and!the!Reviewer’s!expert!consultants,!into!their!homes,!and!into!their!lives.!He!


is!also!deeply!appreciative!to!all!others!who!helped.!!These!include!service!providers,!local!


government!and!state!agencies,!as!well!as!volunteers,!advocates,!experts!and!consultants.!!


The!Reviewer!believes!strongly!that!involvement!of!all!these!stakeholders!is!critical!to!


success.!!It!is!their!onOgoing!and!vigorous!advocacy,!and!their!willingness!to!engage!and!


problem!solve,!that!will!help!achieve!the!goals!of!the!Agreement.!The!active!involvement!of!


stakeholders!will!also!help!sustain!success!when!the!Agreement!is!no!longer!in!effect.!


!


!

!


II. ACTIVITIES&OF&THE&COMMONWEALTH&&


&


The!Commonwealth!continued!a!concerted!and!coordinated!effort!to!plan,!fund,!and!


implement!the!provisions!of!the!Agreement.!The!Commonwealth!continued!to!organize!and!


oversee!eighteen!project!teams!and!several!advisory!groups!to!plan!and!implement!the!


provisions!of!the!Agreement.!An!overarching!Stakeholder!Group!has!also!met!to!receive!


progress!reports!and!to!offer!advice.!


!


Having!sufficient!resources!to!implement!the!provisions!of!the!Agreement!is!essential.!The!


General!Assembly!met!during!the!second!review!period!and!approved!funding!that!is!


necessary!to!implement!provisions!of!the!Agreement.!The!new!FY!2014!appropriations!


include:!


! ! $1.25!million!toward!the!development!of!crisis!services!for!children,!
 ! $3.8!million!for!a!total!appropriation!of!$11.6!million!for!crisis!services,!
 ! $3.7!million!for!a!higher!reimbursement!rate!for!serving!individuals!with!complex!


needs,!and!! ! funding!for!an!additional!350!ID!AND!105!DD!waiver!slots!(both!are!beyond!the!

requirements!of!the!Agreement).!

&

State!Agencies!have!added!leadership!and!other!staff!to!oversee!and!support!effective!

implementation!of!the!Settlement!Agreement.!DBHDS!reports!that!thirty!staff!positions!

have!been!established!to!build!needed!capacity!to!effectively!implement!the!Agreement.!Six!

other!positions!were!established!prior!to!the!Agreement!being!signed.!Twenty!of!these!

positions!are!devoted!to!increasing!the!frequency!and!intensity!of!monitoring!and!

oversight!by!licensing!and!human!rights!staff,!and!to!build!a!statewide!system!to!assure!

quality!services.!Leadership!positions!have!been!established!for!major!program!initiatives.!

!

8!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 9 of 147 PageID# 4829

These!include!individual!and!family!support,!crisis!services,!integrated!day!activities!O!
 employment!support,!housing,!case!management,!and!discharge!planning.!!DMAS!has!
 created!a!new!Deputy!Director!for!Complex!Care!to!coordinate!matters!related!to!the!
 Agreement.!The!Deputy!Director!has!begun!attending!regularly!scheduled!meetings!with!
 the!Reviewer.!!
 !
 The!Commonwealth!has!continued!to!provide!regular!monthly!and!quarterly!reports!and!
 other!information,!as!requested!by!the!Reviewer!and!the!DOJ.!The!Commonwealth!attended!
 and!was!well!prepared!for!meetings!and!informal!discussions!with!the!Reviewer.!The!
 Commonwealth!also!organized!and!facilitated!additional!“drill!down”!sessions!for!the!
 Reviewer!and!the!DOJ.!These!sessions!were!to!thoroughly!discuss!the!plans!and!status!of!
 Quality!and!Risk!Management!and!Crisis!Services!and!to!ensure!full!communication!and!
 shared!understanding.!!
 !
 The!DBHDS!also!worked!with!the!Reviewer!to!arrange!three!kickOoff!meetings!with!key!
 leadership!and!project!staff!and!the!Reviewer’s!expert!consultants.!DBHDS!staff,!CSBs,!and!
 private!providers!helped!arrange!for!the!provision!of!extensive!documentation,!interviews!
 and!onOsite!visits!to!facilitate!inOdepth!monitoring!related!to!three!studies!–!Crisis!Services!
 Requirements,!Employment!Service!Requirements,!and!Reviews!of!Services!for!Individuals!
 with!Complex!Medical!Needs.!

! !

III.&& INDEPENDENT&REVIEWER&
&
The!Reviewer’s!facts!and!findings!presented!in!this!report!come!from!a!broad!array!of!
sources!and!methods.!These!include:!!
! • observations!during!site!visits,! • reviews!of!documents!(e.g.!policies,!plans,!training!materials,!records,!forms,! investigations),! • interviews!(e.g.!with!officials,!providers,!staff,!expert!consultants,!individuals,! families),! • input!from!stakeholders!(e.g.!selfOadvocates,!family!groups,!providers,!CSBs,!
 academics,!researchers),!
 • internal!reporting!(e.g.!DBHDS!and!DMAS!summaries!on!progress,!data,!external! consultant!reports,!reports!on!compliance),!and! • individual!reviews!(e.g.!expert!consultant!and!clinician!interviews!with!individuals,! staff,!site!visits!and!review!of!discharge!plans,!individual!support!plans,!case!
management!records,!monitoring!reports,!and!medical!records)!
!
During!the!second!review!period!(October!7,!2012!–!April!6,!2013),!the!Reviewer!utilized!
internal!reports!and!interviews!with!officials,!comments!provided!by!the!DOJ,!and!his!own!
experience!and!expertise!to!monitor!some!areas.!These!included!the!Waiver!slots!and!
restructure,!youth!living!in!nursing!facilities!and!large!ICFs,!Individual!and!Family!Support,!
Access!and!Availability,!Community!Living!Options/Housing!Plan,!and!Quality!and!Risk!

!

9!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 10 of 147 PageID# 4830

Management.!The!Reviewer!prioritized!monitoring!the!areas!described!below!for!gathering!
 information!from!other!sources!and!with!other!methods.!!
 !
 To&hear&input&directly&from&individuals&and&families,!the!Reviewer:!!

! ! convened!focus!groups!with!guardians!and!families!of!individuals,!who!have!newly!
 received!waiver!services;!!
 ! met!with!parents!at!Southside,!Central,!and!Southwest!Virginia!Training!Centers;!and!!
 ! visited!the!homes!and!reviewed!the!new!services!of!individuals!with!complex!

medical!needs.!
!
To&review&services&to&individuals&with&ID,!the!Reviewer!and!expert!consultants!designed!
a!study!of!fifty!individuals!with!complex!medical!needs.!A!monitoring!tool!questionnaire!
was!completed!by:!
! ! reviewing!each!individual’s!service!documentation! ! visiting!individuals,!usually!at!their!homes,!and! ! interviewing!family!members!and!staff.!
!
To&monitor&enhanced&case&management&services,!the!Reviewer:!!
! ! studied!the!guidelines!for!enhanced!case!management,!! ! completed!a!review!of!the!new!services!for!twentyOnine!individuals!with!complex!
medical!needs!(to!establish!a!base!line!prior!to!the!implementation!of!the!
guidelines),!! ! convened!focus!group!meetings!in!three!regions!with!ID!and!DD!case!mangers,!and!! ! met!with!Executive!Directors!and!ID!Directors!of!Community!Service!Boards!in!three!
regions.!
!
To&monitor&Integrated&Day&Activities&and&Supported&Employment,!the!Reviewer:!
! ! interviewed!the!Project!Team!Leader,! ! reviewed!quarterly!reports,!! ! completed!an!Individual!Review!study!with!questions!related!to!offering!integrated!
day!activities!and!supported!employment!opportunities,!and! ! retained!an!expert!consultant!to!review!the!Employment!Services!Requirements!
(Appendix!C)!and!the!Commonwealth’s!compliance.!
!
To&monitor&Independent&Housing&Options,&the!Reviewer:!
! ! interviewed!the!Project!Team!Leader,!!! ! interviewed!external!experts,!and! ! reviewed!documents!O!quarterly!progress!reports,!“Virginia’s!Plan!to!Increase!
Independent!Living!Options”,!DOJ’s!Comments!on!the!Commonwealth’s!Plan,!and!
Housing!PlanO!Next!Steps.!
!

!

10!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 11 of 147 PageID# 4831

To&monitor&crisis&services,!the!Reviewer:!
! ! met!with!three!of!the!five!Crisis!Service!Teams,! ! visited!two!of!the!crisis!stabilization!homes,! ! convened!separate!focus!groups!with!private!providers,!case!managers!and!families!
who!have!engaged!with!the!crisis!services,!and! ! retained!an!expert!consultant!to!complete!a!followOup!review!of!the!Crisis!Services!
Requirements!(Appendix!B)!and!the!Commonwealth’s!compliance.! &
 To&monitor&the&safety&of&the&individuals&who&live&in&the&community,&the!Reviewer:&&

! completed!a!study!of!services!for!individuals!with!complex!medical!needs;!!
 ! reviewed!serious!injuries!and!deaths;!!!
 ! monitored!the!investigation!process!related!to!serious!injuries!and!deaths;!and!!
 ! monitored!the!work!of!the!Mortality!Review!Committee.&
!
The&Reviewer’s&monitoring&activities&also&included!studying!many!plans,!project!team!
progress!reports,!policies,!incident!reports,!investigations,!Corrective!Action!Plans,!
announcements,!regulations,!and!guidelines.!In!addition,!the!Reviewer!interviewed!family!
members,!individuals!served,!officials,!consultants,!staff,!and!stakeholders.!Finally,!the!
Reviewer!had!regular!contact!with!senior!staff!at!the!DBHDS,!Secretary’s!Office!for!Health!
and!Human!Resources!(SHHR),!Office!of!the!Attorney!General!(OAG),!Department!of!
Medical!Assistance!Services!(DMAS),!and!U.S.!Department!of!Justice!(DOJ).!!
!
!
IV.&& FINDINGS&&
!
Below!are!the!Reviewer’s!findings!regarding!the!status!of!the!Commonwealth’s!initiatives.!!
!
A.&&&&&&&&Serving&Individuals&with&DD&In&the&Most&Integrated&Setting&
!
 “The!Commonwealth!shall!develop!and!provide!the!community!services!described!in!this!
 section…to!prevent!the!unnecessary!institutionalization!of!individuals!with!ID/DD!and!to!
 provide!them!opportunities!to!live!in!the!most!integrated!setting!appropriate!to!their!needs!
 consistent!with!their!informed!choice…(Section!III.A.”!
 !
 Note:!This!Section!of!the!reviewer’s!report!focuses!only!on!individuals!with!ID.!This!is!
 because!the!DD!waiver!does!not!provide!funds!for!residential!services,!and!data!about!the!
 degree!of!congregation!for!day!services!are!not!available.!
 !
 The!individuals!prioritized!to!move!from!Training!Centers!have!generally!been!those!who!
 expressed!interest!in!moving!to!the!community!and!for!whom!the!provider!capacity!and!
 competencies!existed!to!meet!their!needs.!Many!residential!service!providers!have!
 available!vacancies!and!are!seeking!referrals,!but!are!frequently!not!able!to!provide!the!
 needed!level!of!services!for!individuals!with!more!complex!medical!and!behavioral!needs.!


!

11!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 12 of 147 PageID# 4832

There!is!broad!agreement!that!the!current!funding!rates!and!rate!structure!are!not!
 adequate!to!support!individuals!with!the!most!complex!needs!in!the!community.!!The!
 Reviewer!previously!reported!that!the!ID!waiver!structure!and!rates!have!created!
 incentives!to!provide!community!programs!in!larger!congregate!facilities.!!
 !
 The!profile!of!living!arrangements!for!individuals!who!moved!from!Training!Centers!is!very!
 different!from!the!living!arrangements!for!individuals!who!were!previously!on!the!urgent!
 wait!list.!Of!the!113!individuals!who!have!moved!from!the!Training!Centers!during!FY!
 2013,!as!of!May!8,!2013,!fiftyOseven!(50.4%)!moved!to!congregate!settings*!with!five!or!
 more!residents,!some!with!more!than!one!program!clustered!on!a!single!site.!Whereas,!
 DBHDS!reports!that!347!(75.1%)!of!462!individuals!with!new!ID!waiver!slots!are!living!
 with!their!parents!or!family!members!and!receiving!inOhome!services.!!
 !
 *Note:!A!more!specific!breakdown!of!the!sizes!of!the!larger!congregate!facilities!is!not!
 available!and!therefore!is!not!presented.!!
 !
 The!Agreement!requires!that!the!Commonwealth!facilitate!individuals!receiving!services!in!
 their!family’s!home!when!such!a!placement!is!their!informed!choice.!That&is!happening,!
 especially!when!the!individual!is!a!child!or!young!adult.!It!is!a!positive!quality!of!the!current!
 service!system!to!be!able!to!provide!inOhome!services!and!to!pay!family!members,!usually!
 members!of!the!extended!family,!to!provide!care.!Family!members!usually!have!desirable!
 qualities!that!other!new!staff!does!not!typically!possess.!They!have!an!onOgoing!
 relationship!with!the!individual,!are!usually!familiar!with!the!individuals’!care!needs,!are!
 committed!to!provide!onOgoing!services,!and!are!trusted!by!the!individual’s!parents.!The!
 challenges!to!providing!and!sustaining!these!services!will!be!described!in!the!next!section.!
 !
 The!Agreement!does!not!prohibit!individuals!from!moving!into!homes!of!five!or!more.!It!
 does,!however,!establish!provisions!to!ensure!that!individuals!and!their!families!or!
 Authorized!Representatives!are!provided!information!about,!and!are!offered,!smaller!more!
 integrated!settings.!If!recommendations!to!individuals!and!families!are!for!residential!
 settings!for!five!or!more!individuals,!barriers!to!providing!services!in!more!integrated!
 settings!must!first!be!identified.!Then,!steps!must!be!taken!to!resolve!these!barriers.!Some!
 of!these!provisions,!including!familyOtoOfamily!and!peer!programs,!and!the!Regional!
 Support!Teams,!were!not!yet!in!place!during!most!of!the!second!review!period.!In!the!
 absence!of!these!safeguards!to!provide!information!and!to!identify!and!resolve!barriers!for!
 most!individuals!moving!out!of!Training!Centers,!the!historical!pattern!of!providing!
 residential!services!in!settings!for!five!or!more!individuals!has!continued.!At!least!two!
 additional!factors!appear!to!contribute!to!this!result!–!the!time!and!resources!required!to!
 develop!new!residential!infrastructure!and!the!available!vacancies!exist!in!residential!
 programs!serving!five!or!more!individuals.!The!development!and!funding!of!some!new!
 residential!programs!began!before!the!Agreement!was!signed.!!
 !
 Living!at!home!with!sufficient!supports!is!usually!the!arrangement!of!choice!for!children!
 and!young!adults.!However,!four!(40%)!of!the!families!of!the!adults!who!have!chosen!to!live!
 at!home!have!done!so,!in!part,!because!they!have!not!yet!determined!if!there!is!a!viable!and!
 desirable!alternative.!!They!report!that!they!need!more!support!to!learn!about!the!options!


!

12
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 13 of 147 PageID# 4833

available,!to!contact!potential!providers,!to!visit!and!evaluate!the!choices,!and!to!make!an! informed!choice.!Many!families!have!reported!to!the!Reviewer!that!there!is!a!lack!of! available!small!group!homes!and!employment!support!programs,!and!that!the!existing! larger!group!homes!do!not!provide!the!services!needed!to!support!their!family!members! with!complex!needs.!It!is!reported!that!lack!of!availability!of!these!services!is!more!acute!in! rural!areas.!In!northern!Virginia,!however,!families!and!CSB!officials!report!that!there!are! few!available!residential!vacancies,!and!rarely!can!the!programs!with!those!vacancies!meet! the!needs!of!individuals!with!complex!needs.!! ! The!DBHDS!requirement!to!offer!integrated!day!services!during!individual!service!planning! begins!on!July!1,!2013.!The!Table!below!shows!baseline!data!prior!to!implementation!of! that!requirement.!More!than!60%!of!the!adults!in!the!Individual!Review!study!were!not! offered!integrated!day!opportunities,!nor!did!their!typical!days!involve!integrated!activities.!!! ! !
TABLE 1

Individual&Support&Plan&–&Integrated&Day&O&Items

Item

n

Y

Were!integrated!day!opportunities!offered?

11" 27.3%"

Does!typical!day!include!regular!integrated!

11 27.3%

activities?

N 63.6%" 63.6%

CND 9.1%" 9.1%

! ! Recommendations&from&the&Reviewer’s&first&Report!to&the&Court! !
The!Commonwealth!should!review!how!other!States’!HCBS!waivers!are!structured,!and! then!amend!and/or!permanently!modify!the!waivers!so!the!payment!structure!and! rates!encourage!service!outcomes!desired!for!individuals!(i.e.!living!in!the!most! integrated!setting!appropriate!to!their!needs,!and!developing!skills!for!increased!selfO sufficiency!and!independence).! ! The!Commonwealth!should!take!the!steps!necessary!to!ensure!that!those!with!the!most! complex!needs!are!provided!opportunities!to!live!in!the!most!integrated!setting! appropriate!to!their!needs!and!consistent!with!their!informed!choice.!! ! Progress&Report!! ! 1.!!DBHDS!and!DMAS!are!seeking!a!comprehensive!review!of!the!current!ID!and!DD! waiver!programs.!The!goal!is!for!this!review!to!help!lay!out!a!roadmap!to!ensure!that! communityObased!programs!are!able!to!assist!those!with!the!greatest!needs.!A!Request! For!Proposals!(RFP)!was!issued!in!January!2013!seeking!national!experts!to!complete!a! waiver!study.!Six!proposals!are!currently!under!review.!A!CONTRACT!award!for!a! yearlong!study!during!FY!2014!is!anticipated!in!June!2013.! !

!

13
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 14 of 147 PageID# 4834

2.!!A!2014!General!Assembly!biennial!budget!appropriation!of!$3.7!million!($7.4!M!total! including!a!50%!match!from!Medicaid)!was!requested!and!approved.!This!authorizes! DMAS!to!establish!a!25%!higher!reimbursement!rate!for!congregate!residential!services! for!individuals!with!complex!medical!and!behavioral!needs.!A!work!plan!has!been! developed!to!establish!the!higher!rates.!The!program!will!begin!after!required! regulations!are!approved,!likely!during!the!first!six!months!of!2014.! ! 3.!DBHDS!has!met!with!existing!and!new!residential!service!providers!to!encourage! new!residential!program!development.! ! 4.!DBHDS!is!exploring!alternatives!for!creating!and!developing!residential!services!for! individuals!with!complex!needs.!One!approach!being!considered!is!developing!new! fourOperson!group!homes!for!individuals!who!may!know!one!another!and!choose!to!live! together.! ! It!is!the!Reviewer’s!opinion!the!Commonwealth!has!taken!significant!and!positive!steps!to! increase!opportunities!to!offer!services!in!most!integrated!settings.!These!actions,!however,! are!primarily!directed!toward!longerOrange!solutions.!!The!ID!and!DD!waiver!and!rates!will! be!restructured!for!FY!2015.!The!higher!reimbursement!rates!for!serving!individuals!with! complex!needs!will!likely!not!be!available!until!the!spring!of!2014.!The!most!promising! options!may!be!new!approaches!that!make!it!easier!for!service!providers!to!develop!news! programs!in!the!short!term.!! !
 Residential!providers!who!are!encouraged!to!develop!new!programs!in!northern!Virginia!
 face!unique!challenges.!The!high!cost!of!housing!or!suitable!land!for!new!construction!
 without!financial!assistance!is!prohibitively!expensive.!!
 !
 Based!on!the!Reviewer’s!experience,!developing!new!programs!for!individuals!with!
 complex!needs!who!know!each!other,!and!whose!families!may!know!each!other,!may!lead!
 to!new!program!development!sooner.!It!encourages!providers!to!be!selected!to!develop!
 such!residential!programs!and!to!know!the!individuals!who!will!be!served.!If!all!or!most!of!
 the!future!housemates!qualify!for!the!higher!reimbursement!rate,!then!providers!can!
 budget!for!sufficient!resources!to!provide!increased!staff!competencies!and!to!develop!
 more!robust!training!and!monitoring!systems!that!are!required!twentyOfour!hours!a!day.!!
 ! !

B.&&&&&&&&Serving&individuals&with&complex&medical&needs&in&the&community&
& The!review!of!services!for!individuals!with!complex!medical!needs!involved!fifty! individuals.!All!received!new!communityObased!services!in!FY!2013!in!either!Region!2! (northern)!or!Region!3!(southwest).!Region!2!has!the!highest!population!density!and!the! most!resources;!Region!3!has!the!lowest!population!density!and!the!fewest!resources.!The! fifty!individuals!were!selected!from!the!160!who!receive!new!communityObased!ID!waiver! funded!residential!services!in!these!two!regions,!as!of!December!2012.!!Of!these! individuals,!140!had!previously!been!on!the!urgent!ID!wait!list;!twenty!had!moved!from!

!

14!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 15 of 147 PageID# 4835

Virginia’s!Training!Centers.!None!of!the!individuals!had!DD,!nonOID,!because!the!DD!waiver!
 does!not!provide!funds!for!residential!services.!!
 !
 The!fifty!individuals!selected!had!the!most!medical!needs!based!on!their!individual!Support!
 Intensity!Scale!evaluations.!!From!these!fifty!names,!twentyOnine!individuals!were!
 randomly!selected.!The!sample!size!provides!a!90%!confidence!level!and!a!10%!confidence!
 interval!and,!therefore,!offers!a!sufficient!degree!of!confidence!that
!findings!can!be!
 generalized!to!the!fifty!individuals.!Three!(10.3%)!of!the!twentyOnine!individuals!had! moved!from!Virginia’s!Training!Centers.!The!other!twentyOsix!had!lived!in!the!community;! twentyOfour!(93%)!of!whom!lived!with!their!families.!Thirteen!(45%)!of!them!were!youth! less!than!twentyOone!years!of!age.!!! ! The!Individual!Review!study!questionnaire!asked!the!same!questions!that!were!asked! during!the!first!review!period’s!study!(that!first!study!was!of!the!services!for!individuals! who!had!moved!from!the!Southside!and!Central!Virginia!Training!Centers).!The!questions! are!based!primarily!on!the!requirements!of!the!Agreement!and!DBHDS!policies!and!
procedures.!For!the!second!review!period,!a!few!new!questions!were!added.!They!were!
included!and!provided!in!this!report!to!establish!a!baseline!of!the!extent!to!which!the!
requirements!are!being!met!before!they!are!required.!!A!twoOperson!team!of!experts!
completed!each!Individual!Review.!One!member!was!a!registered!nurse!with!extensive! experience!working!with!individuals!with!ID/DD.!! ! Prior!to!visiting!these!twentyOnine!individuals,!the!reviewers!studied!documents!relating!to! each!person’s!needs,!circumstances,!and!services.!!These!included!assessments,!individual! support!and!behavior!support!plans,!and!case!manager!notes.!For!the!three!individuals! who!had!moved!from!Training!Centers,!discharge!plans!and!PreO!and!PostOMove! Monitoring!documents!were!also!reviewed.! ! Adjustments!to!the!planned!Individual!Review!study!were!made!to!accommodate!the! individuals!living!with!their!families.!To!be!respectful!of!the!parentOchild!relationship!and! their!privacy,!the!individual!interview!questions!were!asked!primarily!of!the!parents.! Because!they!lacked!information!in!some!cases,!the!answers!to!more!questions!could!not!be! determined!(CND).!Private!areas!of!the!families’!homes!were!not!reviewed!and! documentation!of!medical!services!was!not!requested.!The!parents’!word!was!accepted! unless!there!was!other!information!that!conflicted.!It!was!also!difficult!to!arrange!visits!due! to!family!work!schedules.!As!a!result,!the!reviewers!visited!the!homes!of!twentyOsix!(90%)! of!the!twentyOnine!individuals.!Reviewers!met!the!other!three!individuals!at!their!day! programs.!One!individual’s!single!parent!was!not!available!to!be!interviewed!and!did!not! return!phone!calls.!! ! The!individuals!selected!had!urgent!needs!and!received!ID!waiver!funding!for!residential! services.!The!reviewers!found!that!twentyOthree!(95.8%)!of!the!twentyOfour!individuals! continued!to!live!with!their!families!and!receive!inOhome!services.!Four!(40%)!of!the!ten! adults!and!their!families!initially!receiving!inOhome!services!want!to!learn!more!about!and! pursue!other!residential!alternatives.!! !

!

15!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 16 of 147 PageID# 4836

Themes&& ! After!completing!the!reviews,!the!five!reviewers!met!to!discuss!the!themes!identified!in!the!
 lives!and!circumstances!of!these!twentyOnine!individuals.!The!random!sample!offers!a!
 sufficient!degree!of!confidence!that!these!findings!can!be!generalized!to!the!fifty!
 individuals.!
 !
 Although!there!were!exceptions,!we!met!and!received!excellent!support!and!information!
 from!case!managers!and!other!staff.!The!reviewers!visited!some!excellent!programs.!These!
 included!a!personalized!and!comfortable!group!home!for!adults!who!were!actively!involved!
 in!their!community!and!programs!that!provided!daily!work!and!integration!opportunities.!
 !
 !&&&&Strong&and&patient&families& The!Reviewers!were!impressed!by!the!strength!and!patience!of!the!families!we!met.!!They!
 were!thrilled!that!their!loved!one!was!selected!to!receive!a!waiver.!Then!many!families!
 discovered!that!the!process!of!searching!for!service!providers!was!very!difficult.!!Although!
 the!process!was!difficult,!once!arranged!the!new!services!were!a!positive!for!the!individuals!
 and!their!families.!A!high!percentage!of!new!residential!services!for!their!family!member!
 were!arranged!in!the!homes!of!their!families.!These!families!frequently!have!challenging,!
 yet!essential,!daily!physical!care!and!behavior!management!responsibilities!for!their!
 children,!in!addition!to!their!jobs.!Most!have!devoted!their!lives,!and!most!hours!of!every!
 day,!to!their!child!with!ID/DD!since!he/she!was!born.!!
 !
 !&&&&Families&need&extensive&support&during&transitions!
Families!of!the!adults!needed!more!help!than!they!received!to!consider!the!options,!to!
contact!possible!providers,!to!arrange!visits,!to!evaluate!residential!providers,!and!to!make!
an!informed!choice.!!The!transition!to!receiving!waiverOfunded!services!is!a!complicated,!
timeOconsuming,!and!unfamiliar!process!for!families.!One!mother!described!being!handed!a!
list!of!providers!and!being!told!to!“go!to!it.”!!Four!families!found!that!the!easiest!answer!
was!to!accept!inOhome!services.!However,!families!with!consumerOdirected!services!then!
become!the!Employer!of!Record!with!additional!responsibilities.!!Most!families!had!
difficulty!recruiting!and!retaining!staff,!especially!with!the!skills!to!support!their!children!
with!complex!medical!and!behavioral!challenges.!A!few!families!pointed!out!that!their!inO
home!workers!had!not!been!paid!in!a!timely!manner.!The!reviewers!learned!of!three!
situations!that!resulted!in!delays!of!eight!weeks!for!workers!to!be!paid.!The!reasons!were!
because!of!forms!not!being!completed!properly,!communication!problems,!and!
complications!transitioning!from!one!waiver!to!another.!Several!families!were!very!
satisfied!that!an!extended!family!member !could!be!paid!to!provide!support.!These!
arrangements!appeared!to!be!best!for!the!individual!and!the!most!stable.!
! !&&&&More&coordination&of&transitions&with&school&systems&would&help& Several!individuals!and!families!would!have!benefitted!from!more!robust!transition!
 planning!between!school!and!adult!services.!A!transition!from!school!that!establishes!the!
 expectation!and!provides!the!opportunity!for!supported!employment!would!have!been!
 especially!helpful.!
 !


!

16!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 17 of 147 PageID# 4837

!&&&&Families&needed&more&help&thinking&through&and&planning&for&the&future& These!include!the!future!need!for!environmental!adaptations!and!future!choices!about! what!service!options!will!be!available!and!how!to!prepare!to!make!informed!choices!

& !&&&&Difficulties&acquiring&needed&environmental&adaptations&or&adaptive&equipment.& Many!families!and!case!managers!gave!examples!of!applications!being!returned!repeatedly!
 for!minor!word!changes.!They!reported!that!after!applications!were!repeatedly!“pended,”!
 there!were!examples!when!they!were!finally!approved!with!too!little!time!to!complete!the!
 work!during!the!year.!In!the!southwest,!there!were!only!a!few!contractors!large!enough!to!
 have!the!required!worker’s!compensation!insurance;!this!led!to!additional!delays.&&&
 &
 Individual&Reviews&–&Selected&Tables&
 Additional!findings!for!the!Individual!Review!study!are!found!in!the!tables!below.!The!
 tables!are!separated!to!show!highlights!of!positive!outcomes!and!areas!of!concern.!!
 !
 Highlight&of&Positive&Outcomes:&&The!reviews!found!many!positive!health!care!outcomes.!
 Note:!Because!of!difficulties!interviewing!some!families!there!were!more!cannot!determine!
 (CND)!answers.!These!CND!answers!have!not!been!included!in!the!Table!2,!so!that!the!
 percent!of!‘yes’!and!‘no’!answers!reflect!only!those!families!that!were!able!to!answer!the!
 questions.&
 &

TABLE 2

Health&Care&Items

Item

n

Y

N

Are!clinical!therapy!recommendations!(OT,!PT,!

S/L,!psychology,!nutrition)!implemented!or!is!staff!

actively!engaged!in!scheduling!appointments?

!!!!!!!!!!!b.!Physical!Therapy!

10" 90.0%" 10.0%"

!!!!!!!!!!!c.!Speech/Language!!

11" 100.0%" 0.0%"

Does!the!provider!monitor!fluid!intake,!if!

12 100.0% 0.0%

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!food!intake,!if!

22" 95.5%" 4.5%"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!tube!feedings,!if!

5" 100.0%" 0.0%"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!seizures,!if!applicable!

17" 100.0%" 0.0%"

per!the!physician’s!orders?!

Does!the!provider!monitor!weight!fluctuations,!if!

15" 86.7%" 13.3%"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!positioning!protocols,!if! 4" 100.0%" 0.0%"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!bowel!movements,!if!

22" 100.0%" 0.0%"

applicable!per!the!physician’s?!

Is!there!evidence!of!a!nourishing!and!healthy!diet? &


26 96.2%

3.8%

!

17
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 18 of 147 PageID# 4838

Areas&of&concern:&The!reviews!found!that!it!was!more!difficult!to!locate!and!arrange!for! certain!healthcare!related!services.!These!included!occupational!therapists,!behavioral! psychologists,!and!nutritionists.!Case!managers!reported!to!the!reviewer!that!they!had! greater!challenges!in!these!same!areas.! &
TABLE 3

Healthcare&Items

Item

n

Y

N

CND

Are!clinical!therapy!recommendations!(OT,!PT,! S/L,!psychology,!nutrition)!implemented!or!is! staff!actively!engaged!in!scheduling! appointments?
a.!!OT d.!!Psychology e.!!Nutrition

12" 83.3%" 8" 75.0%" 11" 81.8%"

16.7%" 25.0%" 18.2%"

0.0%" 0.0%" 0.0%"

& & Highlights&of&positive&outcomes:&&& &

TABLE 4

Individual&Support&Plan&Items

Item

n

Y

N

CND

Is!the!individual!receiving!supports!identified!in!

his/her!individual!support!plan?& Residential

29" 100.0%" 0.0%" 0.0%"

Medical

28" 100.0%" 0.0%" 0.0%"

Dental

28" 89.3%" 10.7%" 0.0%"

Health

28" 96.4%" 3.6%" 0.0%"

Recreation

27" 89.3%" 10.7%" 0.0%"

Transportation

28" 96.4%" 3.6%" 0.0%"

&


&


Areas&of&concern:!The!reviews!found!that!it!was!more!difficult!to!locate!and!arrange!some!


ISP!services.!These!included!day/employment,!mental!health,!and!communication/assistive!


technology.!


& TABLE 5

Individual&Support&Plan&Items

Item

n

Y

N

CND

Is!the!individual!receiving!supports!identified!in! his/her!individual!support!plan?&
Day/Employment Mental!Health
Communication/assistive!technology

28" 81.5%" 18.5%" 0.0%" 15" 66.7%" 33.3%" 0.0%" 13 69.2% 30.8% 0.0%

!

18
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 19 of 147 PageID# 4839

& & Highlights&of&positive&outcomes&& &

TABLE 6

Environmental&–&Hygiene&&Items

Item

n

Y

Is!the!individual’s!residence!clean?!!!!

26 92.3%

Does!the!individual!appear!well!kempt?!!!!

28" 93.9%"

N 0.0% 3.6%"

CND 7.7% 3.6%"

&

&

C.&&&&&&&&Discharge&Planning&and&Transition&from&Training&Center&

&
“The!Commonwealth!shall:!

&
By!July!2012…!have!implemented!Discharge!and!Transition!Planning!processes!at!all!Training!
 Centers…!
 !
 ensure!that!discharge!plans!are!developed!for!all!individuals!in!TC’s!through!a!documented!
 personLcentered!planning!and!implementation!process!!
 !
 develop!and!implement!discharge!and!planning!and!transition!processe!
 !
 !final!discharge!plan!developed!within!30!days!prior!to!discharge!
 !
 !.discharge!planning!will!be!done!by!the!individual’s!Personal!Support!Team!
 !(Section:!IV.ALD).”!
 ! DBHDS!did!extensive!work!in!developing!a!standardized!discharge!planning!process!at!all!
 five!Training!Centers!by!July!2012,!as!described!in!the!Reviewer’s!first!Report!to!the!Court.!
 DBHDS!has!since!reported!several!improvements.!!!
 !
 Note:!The!Individual!Review!study!involved!three!individuals!who!had!moved!from!a!
 Training!Center.!This!sample!size!is!too!small!to!provide!a!sufficient!degree!of!confidence!
 that!findings!can!be!generalized!to!a!larger!group.!!

!
!
!
!
!
! !

! !


!

19
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 20 of 147 PageID# 4840

! Highlights&of&positive&outcomes!! !

TABLE 7

Discharge&Planning&Items

Item

n

Was!it!documented!that!the!individual,!and,!if!

3"

applicable,!his/her!Authorized!Representative,!

were!provided!with!information!regarding!

community!options?!!

Did!the!individual!and,!if!applicable,!his/her!

3"

Authorized!Representative!participate!in!discharge!

planning?!

Was!the!discharge!plan!updated!within!30!days!

3"

prior!to!the!individual’s!transition?!

Did!personOcentered!planning!occur?!

3"

Were!essential!supports!described!in!the!discharge! 3"

plan?!

Was!provider!staff!trained!in!the!individual!support! 3"

plan!protocols!that!were!transferred!to!the!

community?!

Were!all!essential!supports!in!place!before!the!

3"

individual!moved?

Were!all!medical!practitioners!identified!before!the! 3"

individual!moved,!including!primary!care!physician,!

dentist!and,!as!needed,!psychiatrist,!neurologist!and!

other!specialists?

Did!the!PostOMove!Monitor,!Licensing!Specialist,!

3

and!Human!Rights!Officer!conduct!postOmove!

monitoring!visits!as!required?

Were!appointments!with!medical!practitioners!for! 3!

essential!services!scheduled!for!and!did!they!occur!

within!30!days!of!discharge?!

Y 100.0%"
100.0%"
100.0%" 100.0%" 100.0%" 100.0%"
100.0%" 100.0%"
100.0%
100.0%

N 0.0%"
0.0%"
0.0%" 0.0%" 0.0%" 0.0%"
0.0%" 0.0%"
0.0%
0.0%

CND 0.0%"
0.0%"
0.0%" 0.0%" 0.0%" 0.0%"
0.0%" 0.0%"
0.0%
0.0%

! !

The!Commonwealth!assisted!189!individuals!in!moving!from!Training!Centers!to!the! community!between!November!2011!and!May!8,!2013.!The!Agreement!required!the! Commonwealth!to!create!a!minimum!of!160!waiver!slots!in!FY!2013!to!enable!individuals! in!the!Training!Centers!to!transition!to!the!community.!During!FY!2013,!the!pace!of!moves! increased!with!113!individuals!(71%!of!160)!moving!as!of!May!8,!2013!(85%!of!the!fiscal! year).!This!number!of!individuals!who!move!in!a!particular!month!depends!on!many! factors!and!therefore!fluctuates.!That!said,!if!the!pace!of!moves!during!the!first!ten!months! of!this!fiscal!year!continues,!the!target!of!160!individuals!moving!will!not!be!achieved.! DBHDS!reports!that!some!planned!moves!have!been!slowed!to!ensure!that!plans!are!in! place!to!meet!the!essential!needs!of!each!individual.!

!

20!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 21 of 147 PageID# 4841

!
 The!“Plan!to!Transform!the!System!of!Care!for!Individuals!with!Intellectual!Disability!in!the!
 Commonwealth!of!Virginia”!submitted!February!13,!2012,!projects!ending!residential!
 operations!at!the!Southside!Virginia!Training!Center!(SVTC)!by!June!30,!2014.!FiftyOtwo!
 individuals!have!moved!from!SVTC!during!the!first!ten!months!of!FY!2013,!while!144!
 individuals!continue!to!reside!there.!For!all!individuals!to!move!by!June!30,!2014,!will!
 require!nearly!doubling!the!pace!of!moves!–!from!an!average!of!about!five!per!month!in!FY!
 2013!to!an!average!of!about!ten!per!month!in!FY!2014.!!
 !
 The!Authorized!Representatives!of!many!individuals!residing!at!the!Training!Centers!are!
 concerned!that!they!will!be!forced!to!choose!between!a!community!program,!that!is!
 inadequate,!and!a!Training!Center,!that!is!far!away.!There!are!three!factors!that!raise!
 legitimate!concerns.!There!is!a!limited!availability!of!existing!community!services!for!
 individuals!with!complex!needs.!The!ID!waiver!structure!and!rates!need!to!be!restructured!
 to!provide!sufficient!funds!for!such!programs.!During!FY!2014!the!pace!of!moves!from!
 SVTC!to!the!community!needs!to!increase!to!meet!the!scheduled!closing!date.!That!date!is!!
 before!the!ID!waiver!will!be!restructured.!The!Commonwealth!reports!that!it!has!taken!
 steps!to!address!these!concerns!and!will!take!more.!
 !
 The!Commonwealth!has!assured!the!Reviewer!that!it!has!taken!several!steps!to!address!
 these!concerns.!The!Commonwealth’s!plan!to!cease!residential!operations!at!a!Training!
 Center!will!involve!a!forced!choice!for!individuals!and!their!families/Authorized!
 Representatives!(ARs).!This!occurs!in!every!state!that!decides!to!close!large!residential!
 facilities.!Since!the!Agreement!was!signed,!DBHDS!has!met!with!families,!providers,!and!
 CSBs!across!the!Commonwealth.!Emphasis!has!been!on!its!commitment!that!an!individual!
 will!not!be!moved!from!a!Training!Center!unless!all!essential!supports!are!in!place.!DBHDS!
 has!assured!ARs!that!they!will!have!choices!of!community!programs!that!are!equal!to,!or!
 better!than,!current!services.!Safeguards!are!also!built!into!the!process.!The!
 Commonwealth’s!enhanced!discharge!planning!and!preOmove!monitoring!processes!are!
 designed!to!ensure!that!services!are!in!place!to!meet!an!individual’s!essential!needs!before!
 a!move!is!approved.!These!processes!include!several!opportunities!for!families!and!
 authorized!representatives!to!document!their!concerns!or!disagreements!regarding!the!
 transition!process!and!to!identify!any!barriers!to!moving.!!The!DBHDS!reports!that!they!
 have!no!documentation!of!a!family!or!Authorized!Representative!who!has!agreed!to!a!move!
 believing!that!services!are!or!were!inadequate!or!that!they!were!forced!to!choose!a!
 community!option.!The!Reviewer!is!also!not!aware!of!any!such!documented!concerns.&
 !
 The!Commonwealth!has!reported!that!it!is!currently!exploring!new!approaches!to!create!
 and!develop!communityObased!services!for!individuals!with!complex!needs.!One!approach!
 under!consideration!is!developing!new!fourOperson!group!homes!for!individuals!who!may!
 know!one!another!and!choose!to!live!together.!It!is!the!reviewer’s!experience!that!families!
 of!individual’s!who!are!considering!moving!out!of!congregate!state!facilities!have!embraced!
 such!an!approach.!!

!
! !


!

21
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 22 of 147 PageID# 4842

D.&&&&&&&&Resolving&Barriers&&–&Community&Resource&Consultants&(CRCs),&Community& Integration&Managers&(CIMs),&and&Regional&Support&Teams&(RSTs)&
& “Upon!referral!to!it!(by!the!CRC),!the!Regional!Support!Team!(RST)!shall!work!with!the! Personal!Support!Teams!(PST!and!the!Community!Resource!Consultants!(CRC)...to!resolve! identified!barriers,!to!ensure!placement!is!the!most!integrated!appropriate!to!the!individual’s! needs,!consistent!with!the!individuals!informed!choice.!(Section!III.E.2.)!
The!CRC!shall!refer!cases!to!the!RST!for...assistance!in!resolving!barriers...whenever:!
the!PST!recommends...an!individual!residing!in!his!or!her!own!home,!his!or!her!family’s! home,!or!a!sponsored!residence!be!placed!in!a!congregate!setting!with!five!or!more! individuals...in!a!nursing!home!or!ICF...there!is!a!pattern!of!an!individual!repeatedly! being!removed!from!his!or!her!residence...!
PSTs!and!CSB!case!manager!shall!coordinate!with!the!specific!type!of!community! providers...shall!facilitate!conversations!and!meetings!with!individuals!currently!living! in!the!community!and!their!families,!before!being!asked!to!make!a!choice!regarding! options.!The!Commonwealth!shall!develop!familyLtoLfamily!and!peer!programs!to! facilitate!these!opportunities!(Section!IV.B.9.b.).!!
CIMs!shall!be!engaged!in!addressing!barriers!to!discharge,!including!in!the!following! circumstances:!
The!PST!and!the!CSB!case!manager!shall!assist!the!individual!in!choosing!a!provider! after!providing!the!opportunities!described!(Section!IV.B.9.c.).!
The!State!shall!ensure!that!information!about!barriers!to!discharge...is!collected...aggregated! and!analyzed...for!development!of!communityLLLbased!services!(Section!IV.B.14).!
In!the!event!of...a!recommendation...to!place!an!individual!in!nursing!home!or!a!congregate! setting!with!five!or!more!individuals...the!PST!shall!identify!the!barriers!to!a!placement!in!a! more!integrated!setting...and!describe!in!the!discharge!plan!the!steps!the!team!will!take!to! address!the!barriers!(Section!IV.B.15).”!
The!provisions!quoted!above!were!included!in!the!Agreement!to!ensure!that!individuals,! and!their!Authorized!Representatives,!have!options!available!and!information!provided!to! make!informed!choices.!These!options!should!include!residential!and!day!services!that!are! in!integrated!settings!appropriate!to!the!individuals’!needs.!
The!Commonwealth!has!taken!many!steps!to!implement!these!provisions.!These!steps! include!establishing!CRC!and!CIM!positions,!and!establishing!the!Regional!Support!Teams! (RST).!The!RSTs!were!implemented!in!February!and!March!2013.!
During!the!first!two!months!of!operating!the!RSTs!a!few!referrals!have!occurred!from!!the! Training!Centers!and!individuals!living!in!the!community!with!waiver!services.!Several! have!occurred!from!the!Southside!Virginia!Training!Center.!!The!RSTs!have!met,!reviewed!

!

22!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 23 of 147 PageID# 4843

the!referrals,!identified!barriers!to!needed!services,!and!made!recommendations.!The!RSTs! recommendations!focused!on!confirming!that!choices!were!offered!and!that!informed! choices!were!made.!The!RST!recommendations!included!seeking!assistance!to!locate! options,!for!example,!by!directing!the!CIM!or!CRC!to!consult !with!the!Family!Resource! Coordinator!or!to!solicit!support!from!Central!Office!to!help!identify!viable!options.!The! RST!resolutions!were!to!proceed!with!several!placements!into!congregate!settings!of!five!or! more!individuals,!including!nursing!facilities!if!choices!were!offered!and!an!informed! choice!was!made.!The!barriers!that!were!identified!that!prevented!individuals!from!moving! to!more!integrated!settings!included:!!
!&&&&capacity!issues!at!this!time,!!
!&&&&community!providers!need!to!improve!in!the!area!of!nursing,!!
!&&&&because!other!options!could!not!meet!medical!needs,!and!!
!&&&&no!other!provider!with!needed!equipment!in!this!region.!
DBHDS!reports!that!the!Regional!Support!Teams!will!provide!barrier!assessments!to!the! Regional!Quality!Councils,!which!will!forward!assessments!to!the!Quality!Improvement! Committees.!
The!barriers!identified!in!the!referrals!to!the!RSTs!are!consistent!with!the!information! provided!to!Reviewer!by!case!managers!and!CSB!officials.!There!is!difficult!locating! placement!options!that!offer!integrated!settings,!especially!for!individuals!with!complex! needs.!This!includes!the!lack!of!available!options!to!meet!the!needs!of!individual!residents! of!Training!Centers!who!are!from!their!area.!In!many!rural!areas,!including!southwest! Virginia,!there!are!few!available!program!options!in!integrated!settings.!The!limited! program!options!are!individual!or!group!supported!employment,!small!group!homes,!and! supported!apartments.!
One!mother!who!was!very!well!informed!about!the!service!system!and!available!options!
 chose!a!congregate!residential!program!with!all!residents!“in!their!fifties”!for!her!young!
 adult!son!who!had!been!on!the!ID!urgent!wait!list.!In!frustration,!she!explained!that!there!
 were!no!good!options,!and!that!she!“had!to!have!something”.!She!hopes!that!there!will!be!
 more!integrated!options!with!age!appropriate!housemates!available!it!the!future.!

Under!the!Agreement,!more!that!900!additional!individuals!are!receiving!new!communityO based!wavier!services.!The!development!of!programs!to!meet!their!needs!in!the!most! integrated!settings!has!not!kept!pace.!This!has!deprived!those!individuals!and!families!from! being!provided!choice!from!the!full!range!of!options!described!in!the!Agreement.!!
It!is!the!Reviewer’s!opinion!that!the!Commonwealth!has!not!yet!developed!a!sufficient! quantity!of!community!services!that!offer!integrated!settings.!This!includes!programs!with! sufficient!resources!and!supports!needed!to!serve!individuals!with!complex!needs.!It!is! recognized!that!the!programs!created!to!resolve!barriers!are!quite!new.!During!the!second! review!period,!however,!the!programs!to!resolve!barriers!were!not!available!or!did!not:!

!

23!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 24 of 147 PageID# 4844

!&&&&resolve!the!significant!identified!barriers,!!
!&&&&ensure!options!are!available!that!include!integrated!residential!and!day!settings,!or!!
!&&&&lead!to!the&development!of!communityObased!services!to!fill!existing!service!gaps.!!!
The!Commonwealth!has!reported!to!the!Reviewer!that!it!is!developing!the!capacity!and! plans!to!identify!existing!service!gaps!for!each!Health!Planning!Region.!The!Commonwealth! plans!to!map!the!existing!service!providers!by!service!types.!&
Recommendation&
The!Commonwealth!should!develop!the!capacity!and!report!to!the!Reviewer!by!October!20,!
 2013!the!names!of!individuals!in!the!target!population!who!have!been!admitted!to!a!
 nursing!home!or!ICF!since!the!Agreement!began.!This!report!should!include!plans!for!
 involving!CRC’s!and!RST’s!to!identify!and!resolve!barriers!to!providing!services!to!these!
 individuals!in!more!integrated!settings.!!!
 !
 Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&

&
E.& Safety&in&the&Community&& & The!Reviewer&monitored!reports!of!serious!injuries!and!deaths!(SIRs)!during!this!period.! The!SIRs!for!all!individuals!on!the!ID!waiver!are!promptly!shared!with!the!Reviewer.!All! such!reports!for!individuals!who!moved!from!the!Training!Centers!to!the!community!are! read.!Those!that!involve!deaths!or!serious!injuries!that!require!ongoing!medical!care!are! reviewed.!These!reviews!involve!studying!the!Office!of!Licensure!Services!unannounced! inspections,!investigations,!and,!if!applicable,!Corrective!Action!Plans.!A!sampling!of!all! other!SIRs!is!reviewed.!!The!Reviewer!also!monitored!the!work!and!products!of!the! Mortality!Review!Committee.& ! For!all!189!individuals!who!moved!from!the!Training!Centers!between!October!2011!and! May!8,!2013,!the!reports!of!serious!injuries!and!deaths!were!reviewed.!During!the!second! review!period,!the!Reviewer!monitored!deaths!or!serious!injuries!that!resulted!in!ongoing! medical!care!for!six!individuals.!Three!former!Training!Center!residents!died!during!this! period.!One!person!died!as!a!result!of!choking.!Two!died!of!natural!causes,!one!of!whom! had!recently!moved!to!a!skilled!nursing!facility!due!to!his!fragile!medical!condition.!During! this!same!period!155!individuals!receiving!ID!waiver!services!in!the!community!passed! away.!TwentyOfive!residents!of!TCs!died!during!the!first!ten!months!of!FY!2013.!!It!is!the! Reviewer’s!opinion!that!the!number!of!incidents!that!have!been!reviewed!is!too!small!a! sample!to!provide!confidence!that!findings!can!be!generalized!to!a!larger!group!or!to!other! settings.!Reviews!of!serious!injuries!and!deaths,!however,!can!provide!insights!into!actions! that!may!help!reduce!risks!in!the!future.!Two!of!the!SIRs!Reports!completed!to!date!have! included!such!recommendations.!! !

!

24
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 25 of 147 PageID# 4845

The!Reviewer!has!completed!two!SIR!reviews!during!this!period;!the!remaining!will!be!
 completed!when!the!investigations!are!closed.!The!Reviewer’s!findings,!conclusions,!and!
 recommendations!have!been!reported!to!the!Court!under!seal.!Copies!have!been!shared!
 with!the!Parties.!!

&
DBHDS!shared!the!Reviewer’s!SIRs!findings,!conclusions!and!recommendations!with!the!
Training!Centers!from!which!the!individual!had!moved.!The!facility!staff!assessed!
documentation!and!reviewed!quality!assurance!procedures!and!documentation!prior!to!
individuals’!transition!to!the!community.!The!Reviewer’s!report!of!a!critical!incident!was!
also!referred!to!the!DBHDS!Quality!Improvement!Committee.!Following!its!review!several!
actions!were!taken.!A!Safety!Alert!was!issued!on!March!1,!2013!regarding!choking!and!
aspirations.!This!Alert!was!also!posted!on!the!DBHDS!website.!A!workgroup!was!formed!
and!has!begun!meeting!to!examine!food!consistencies!and!issues!with!related!training!and!
guidance.!Programs!in!other!states!were!reviewed.!The!subgroup!identified!key!decisions!
that!are!needed!and!the!primary!content!and!methods!of!training.!The!major!
implementation!tasks!were!identified,!as!were!projected!timelines!for!completion.!The!
Report!of!the!subgroup!was!submitted!to!the!DBHDS!Quality!Improvement!Committee.!
!
&
 F.&&&&&&&&Waivers&
 &

“To!enable!individuals!in!the!target!population!in!the!Training!Centers!to!transition!to!the!
 community...the!Commonwealth!shall!create…160!waiver!slots!in!FY13,!160!in!FY14!(Section!
 III.C.1.a.iiLiii.)!
 !
 To!prevent!the!unnecessary!institutionalization!of!individuals!with!ID!in!the!target!
 population...or!to!transition!to!the!community!individuals!with!ID!under!22!years!of!age!from!
 institutions!other!than!the!Training!Centers!(ICF’s!and!nursing!facilities)...shall!create…a!
 minimum!of!275!waiver!slots!in!FY13!(of!which!25!prioritized!for!those!under!22!years!of!age!
 in!nursing!facilities!and!the!largest!ICF’s),!iii.!225!in!FY14!(of!which!25!prioritized!for!those!
 under!22!years!of!age!in!nursing!facilities!and!the!largest!ICF’s).(Section!III.C.1.b.iiLiii.).!
 !
 To!prevent!the!unnecessary!institutionalization!of!individuals!with!DD!in!the!target!
 population...or!to!transition!to!the!community…under!22!years!of!age!from!institutions!other!
 than!the!Training!Centers…shall!create!a!minimum!of!25!waiver!slots!in!FY13!including!15!for!
 individuals!under!22,!ii.!25!in!FY14!including!15!for!individuals!under!22.!!
 (Section!III.C.1.c.iiLiii).”!

& The!Commonwealth!has!fully!complied!with!the!requirements!of!the!Agreement!for!
 establishing!and!distributing!waiver!slots!for!FY!2013.!!
 !
 ID!waiver!slots!were!established,!60!in!FY!2012!and!160!in!FY!2013,!to!enable!220!
 individuals!residing!in!Training!Centers!to!move!to!the!community.!Between!October!2011!
 and!May!8,!2013,!189!individuals!moved!from!the!Training!Centers;!113!have!moved!since!


!

25
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 26 of 147 PageID# 4846

July!1,!2012.!The!individuals!who!moved!from!Training!Centers!did!not!all!use!waiver!slots.!

Typically,!individuals!who!move!to!homes!with!four!or!fewer!residents!utilize!Money!

Follows!the!Person!(MFP)!funds!(MFP!funds!convert!to!waiver!slots!after!the!first!year).!

Others!do!not!need!waiver!slots!if!they!move!to!a!community!ICF,!a!Nursing!Home,!or!are!

already!assigned!waivers.!All!waiver!slots!will!be!used.!Section!III.C.4!of!the!Agreement!

permits!the!Commonwealth!to!reOallocate!unused!waiver!slots!from!one!category!to!

another!in!any!state!fiscal!year!with!the!approval!of!the!Reviewer!and!DOJ.!!

!

The!Commonwealth!provided!300!Community!ID!waiver!slots!and!160!ID!waiver!slots!for!

individuals!who!will!move!from!Training!Centers!during!FY!2013.!During!FY!13,!50!DD!

waiver!slots!were!provided!and!used,!25!more!than!the!minimum!required!by!the!

Agreement.!For!FY!2014,!735!ID!waiver!slots!have!been!approved,!350!more!than!the! minimum!required!by!the!Agreement,!and!130!DD!waiver!slots!(105!more!than!required!by!

the!Agreement).!Of!the!ID!waiver!slots!established!in!FY!2013,!twentyOfive!are!prioritized!

for!individuals!less!than!twentyOtwo!years!of!age!to!move!from!institutions!other!than!

Training!Centers!(i.e.!ICFs!and!nursing!facilities.!For!FY!2013,!DBHDS!distributed!waiver!

slots!to!Community!Service!Boards!(CSBs),!which!used!them!for!individuals!with!ID!on!

their!urgent!waitlists.!The!Commonwealth!also!provided!fifty!DD!waiver!slots!during!FY!

2013.!The!waiver!slots!for!individuals!with!DD!were!distributed!by!DMAS!to!individuals!on!

the!DD!waiver!wait!list.!Fifteen!of!the!twentyOfive!were!prioritized!for!individuals!residing!

in!nursing!facilities!and!the!largest!ICFs.!They!are!being!held!in!reserve!until!the!fifteen!

individuals!are!identified.!!

!

!

G.&&&&&&&&Youth&Residing&in&Nursing&Homes&and&the&Largest&ICFs&&

!

DBHDS!and!DMAS!are!working!with!the!Centers!for!Independent!Living!and!the!Virginia!

Board!for!People!with!Disabilities!to!determine!how!to!identify!the!children!residing!in!

nursing!facilities!or!the!largest!community!ICFs!who!would!fill!the!FY!2013!waiver!slots.!!!

!

Recommendation&from&the&Reviewer’s&first&Report&to&the&Court&

!

!

The!Commonwealth!should!identify!individuals!with!a!developmental!disability!

residing!in!nursing!facilities!or!community!ICFs!to!transition!to!integrated!settings!

during!FY!2013.!
!
Progress&Report!! !

The!Commonwealth’s!assigned!project!team!met!and!developed!an!initial!plan.!

Representatives!from!three!large!institutions!and!two!nursing!facilities!attended!the!

most!recent!project!team!meeting.!Plans!were!developed!for!DBHDS!staff!to!attend!

family!meetings!at!each!institution!to!present!information!about!the!waiver!services! and!how!loved!ones!can!be!supported!in!the!community.!DBHDS!also!has!drafted!a!

letter!to!families!who!have!children!in!large!ICFs!or!nursing!facilities.!The!letter!informs!

them!about!the!availability!of!slots!and!how!to!get!more!information.!DBHDS!expects!to!

distribute!the!initial!forty!waiver!slots!by!June!30,!2013.!

!

26!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 27 of 147 PageID# 4847

H.&&&&&&&&Individual&and&Family&Support&Program&
&
“The!Commonwealth&shall!create!an!individual!and!family!support!program!for!individuals!
 with!ID/DD!whom!the!Commonwealth!determines!to!be!most!at!risk!of!
 institutionalization”…In!FY13,!a!minimum!of!700!individuals!supported!(Section!III.C.2.a.).!
 !
 Individual!and!family!supports!are!defined!as!a!comprehensive!and!coordinated!set!of!
 strategies!that!are!designed!to!ensure!that!families!who!are!assisting!family!members!with!
 intellectual!or!developmental!disabilities!(ID/DD)!or!individuals!with!ID/DD!who!live!
 independently!have!access!to!personLcentered!and!familyLcentered!resources,!supports,!
 services!and!other!assistance.!Individual!and!family!supports!are!targeted!to!individuals!not!
 already!receiving!services!under!HCBS!waivers!(Section!II.D.).”&

! The!Commonwealth!has!made!substantial!progress!implementing!the!Individual!and!
 Family!Supports!Program.!With!an!annual!fund!of!three!million!dollars,!the!program!was!
 launched!on!March!11,!2013.!Every!individual!on!the!ID!and!DD!waitlists!was!mailed!
 notification!of!the!program.!DBHDS!reports!that!as!of!April!12,!2013,!more!than!1200!
 applications!for!support!were!received!and!were!being!reviewed;!235!applications!were!
 approved!and!$460,515!had!been!awarded.!It!has!been!a!challenge!to!review!applications!
 that!were!received!all!at!the!same!time.!For!FY!2014,!the!program!will!begin!on!July!1,!
 2013.!
 !
 The!DBHDS!determined!that!those!on!the!wait!lists!are!“most!at!risk!of!institutionalization”!
 Due!to!the!delay!in!implementing!crisis!services,!there!is!inadequate!data!to!determine!
 whether!individuals!with!ID/DD!who!are!not!on!the!wait!lists!are!experiencing!crises!and!
 are!at!risk!of!institutionalization.!!
 !
 This!program!is!in!its!first!months!of!operation.!As!the!program!is!rolled!out!during!FY!
 2014,!the!DBHDS!should!review!whether!it!meets!the!definition!of!individual!and!family!
 supports!as!a!“comprehensive!and!coordinated!set!of!strategies”.!!
 !
 It!is!the!experience!of!the!Reviewer!that!referrals!to!crisis!services!and/or!admissions!of!
 individuals!with!ID/DD!to!behavioral!health,!nursing,!and!correctional!facilities!are!key!
 indicators!of!who!is!most!at!risk!of!institutionalization.!
 !

Recommendation:&&
!
The!Commonwealth!should!evaluate!if!being!on!the!wait!lists!is!the!most!appropriate!and!
sole!criterion!for!determining!those!“most!at!risk!of!institutionalization.”!Report!to!the!
Reviewer!by!October!20,!2013.!
&
&
&
&
&

!

27
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 28 of 147 PageID# 4848

I.&&&&&&&Case&Management&
&
“The!Commonwealth!shall!ensure!that!individuals!receiving!HCBS!waiver!services…receive! case!management!services!(Section!III.C.5.).”!
!
The!Individual!Review!study!established!that!all!individuals!whose!services!were! reviewed!were!receiving!case!management!services.!These!individuals!all!met!the!criteria!
for!having!urgent!needs!and!in!recent!months!have!been!prioritized!to!receive!an!ID! waiver.!As!a!result,!their!ID!waiver!funded!services!were!relatively!new.!Some!were!still!
being!established.!Although!the!Individuals!Review!study!involved!a!period!of!significant!
change,!it!was!also!positive!that!89.9%!had!Individual!Support!Plans!that!were!current.! Individuals!with!DD,!nonOID,!who!receive!services!through!the!DD!Waiver!were!not!
included!in!the!Individual!Review!study.! ! “The!Commonwealth!shall!include!a!provision!in!the!Community!Services!Board!Performance! Contract! that! requires! CSB! case! managers! to! give! individuals! a! choice! of! service! providers…and!to!present!practicable!options!of!service!providers!based!on!the!preferences!of! the!individual!(Section!III.C.5.c.).”! ! A!provision!has!been!established!in!the!FY!2013!and!FY!2014!Performance!Contract!(e.!1.O
21.)!related!to!case!management.!The!new!Performance!Contract!provisions!address!the!
items!required!by!the!Agreement.!! !
“The!Commonwealth!shall!develop!a!core!competencyLbased!training!curriculum…based!on! the!principles!of!selfLdetermination!(Section!V.F.6.).”! !!
The!Commonwealth!developed!and!implemented!a!statewide!core!competencyObased! training!curriculum!for!case!managers!built!on!selfOdetermination!and!person!centered!
principles!prior!to!the!Agreement!being!signed.!As!of!April!2013,!a!total!of!3,642!DBHDS! and!CSB!staff,!case!managers!and!private!providers!had!completed!all!six!of!the!modules.!
During!the!second!review!period,!a!sixth!training,!the!“Accountability”!module,!has!been!
developed.!A!total!of!1,856!staff!has!completed!that!module.!The!available!data,!merged! from!different!DBHDS!and!DMAS!sources,!indicate!that!very!few!DD!case!managers!have!
completed!the!core!competency!training!modules.!DBHDS,!however,!reports!that!these!data!
may!be!unreliable.!DBHDS!is!working!with!the!DMAS!Deputy!Director!for!Complex!Care!to! improve!outreach!to!DD!case!managers!regarding!the!requirements!of!the!Agreement!
! Recommendation:!DBHDS!and!DMAS!should!create!the!capability!to!reliably!report!the!
number!of!DD!case!managers!who!complete!the!core!competency!training!modules!and!
report!this!quarterly.! !
The!findings!from!the!Individual!Review!study!related!to!case!management!are!in!separate!
tables!that!illustrate!positive!outcomes!and!areas!of!concern.!
&
&

!

28
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 29 of 147 PageID# 4849

Positive&outcomes&

& TABLE 8

Individual&Support&Plan&Items

Item

n

Y

If!this!individual!is!not!competent!to!make!medical! 26 96.2%

decisions,!is!there!a!guardian!or!Authorized!

Representative?!

Is!there!evidence!of!personOcentered!!

29" 93.1%"

(i.e!individualized)!planning?!!!

Do!the!individual’s!desired!outcomes!relate!to!

29 89.7%

his/her!talents,!preferences!and!needs!as!

identified!in!the!assessments!and!his/her!

individual!support!plan?!

Are!essential!supports!listed?!

29" 86.2%"

Is!the!individual’s!support!plan!current?!!

26" 88.3%"

&

& Positive&outcomes&

& TABLE 9

Individual&Support&Plan&Items&O&staffing

Item

n

Y

Does!the!individual’s!support!plan!reflect!specific! 29 51.7%

staffing!levels!for!support!of!this!individual?

If!yes,!were!those!staffing!levels!in!place!during!

15" 93.3%"

the!review?

Is!the!staff!working!with!the!individual!as!

26" 96.2%"

detailed!(consider!the!individual’s!Behavior!

Support!Plan!or!ISP!regarding!the!level!of!support!

needed)?

Is!there!evidence!the!staff!has!been!trained!on!the! 29" 93.1%"

desired!outcome!and!support!activities!of!the!

individual’s!support!plan?!!

Is!residential!staff!able!to!describe!the!

28" 96.4%"

individual’s!likes!and!dislikes?!!!

Is!residential!staff!able!to!describe!the!

28" 96.4%"

individual’s!talents/contributions,!preferences!

and!weaknesses?!

Is!residential!staff!able!to!describe!the!

28 96.4%

individual’s!health!related!needs!and!their!role!in!

ensuring!that!the!needs!are!met?

&

& &

N 3.8% 6.9%" 10.3%
13.8%" 10.7%"
N 48.3% 0.0%" 3.8%"
3.4%" 0.0%" 0.0%" 0.0%

CND 0.0% 0.0%" 0.0%
0.0%" 0.0%"
CND 0.0% 6.7%" 0.0%"
3.4%" 3.6%" 3.6%" 3.6%

!

29!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 30 of 147 PageID# 4850

Areas&of&concern:&&

& TABLE 10

Individual&Support&Plan&–&Adaptive&Environment/Equipment&O&Items&

Item

n

Y

N

CND

Does!the!individual!require!an!adapted!

29 86.2% 13.8% 0.0%

environment!or!adaptive!equipment?

If!yes,!has!all!the!adaptation!been!provided?

14" 50.0%" 50.0%" 0.0%"

If!yes,!is!the!equipment!available?

25" 48.0%" 52.0%" 0.0%"

&


&


Baseline&data:&the!first!three!items!in!the!below!table!were!not!required!by!the!


Agreement!or!DBHDS!to!have!occurred!during!the!individual!support!planning!


process!for!the!second!review!period.&They!will!be!as!of!July!1,!2013.!!!!Note!that!these!


same!questions!were!not!applicable!for!school!age!children.!


!


TABLE 11

Individual&Support&Plan&Items

Item

n

Y

Has!the!individual!been!provided!with!

14" 14.3%"

opportunities!for!an!informed!choice!regarding!

supported!employment,!including!goals!and!

services!that!will!lead!to!supported!

employment?

Have!any!barriers!to!employment!been!

13 7.7%

identified?

Was!placement,!with!supports,!in!affordable!

12 0.0%

housing,!including!rental!or!housing!assistance,!

offered?

Has!the!individual’s!support!plan!been!modified! 13 46.2%

as!necessary!in!response!to!a!major!event!for!

the!person,!if!one!has!occurred?!

!

N 85.7%"
92.3% 100.0% 53.8%

CND 0.0%"
0.0% 0.0% 0.0%

&

Recommendations&from&the&first&Report&to&the&Court& !
! monitor!implementation!of!the!ISP!to!ensure!timely!additional!referrals!for!medical! professionals!(e.g.!dental!examination,!nutritional!assessment),!day!services,!and! communication;!to!ensure!that!all!individuals!are!receiving!the!supports!identified! in!the!ISP!and!that!staff!are!aware!of !and!monitor!the!major!side!effects!of! psychotropic!medications,!including!tardive!dyskinesia;!!
! ensure!that!all!ISPs!include!objectives!that!are!measurable!and!focused!on!the! development!of!skills!for!increased!independence;!and!!

!

30
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 31 of 147 PageID# 4851

! ensure!that!all!providers!and!staff!provide!sufficient!habilitation!in!order!to!teach! skills!and!competencies!that!increase!an!individual’s!selfOsufficiency!and! independence.!
! Progress&Report!!

! A!case!management!training!module!on!Accountability!was!issued!on!February!15,!
 2013.!

! The!DBHDS!Case!Management!Coordinator!will!work!with!Licensure!to!assess!the! level!of!execution!statewide!and!work!with!Project!Team!#9!and!the!Regional! Quality!Councils!to!make!improvements!based!on!recommendations!in!this!report.!
! For!the!Training!Center!discharges,!the!PostOMonitoring!Move!tool!has!been!updated! to!include!more!specifics!related!to!these!recommendations.!The!Training!Centers! are!developing!training!for!providers!regarding!psychotropic!medications!and!their! major!side!effects.!
! The!DBHDS!Quality!Improvement!Committee!will!address!this!recommendation.! ! The!Office!of!Licensing!will!monitor!the!administration!of!psychotropic!medications!
as!part!of!the!new!licensing!standards!as!of!March!2013.! ! ! “For!the!purposes!of!this!agreement,!case!management!shall!mean:!!assisting!the!individual!to! gain!access!to!needed!medical,!social,!educational,!transportation,!housing,!nutritional,! therapeutic,!behavioral,!psychiatric,!nursing,!personal!care,!respite,!and!other!services! identified!in!the!ISP!(Section!III.C.5.ii.).”! ! During!the!Individual!Review!process,!the!reviewers!observed!a!contrast!between!how! different!case!managers!provide!assistance.!Some!were!clearly!in!tune!with!and!very! supportive!of!the!family.!Some!who!visited!the!individual’s!home!when!the!review!occurred! knew!the!family!well!and!took!careful!notes!when !the!expert!consultants!described!needed! assessments!or!ways!services!might!be!improved.!The!contrast!was!with!other!case! managers!who!seemed!on!the!periphery.!These!case!managers!gave!families!lists!of! potential!providers,!or!manuals!on!how!to!apply!for!a!benefit,!and!told!them!to!call!back! after!they!had!made!a!decision.! ! It!continues!to!be!the!Reviewer’s!opinion!that!significant!improvements!are!necessary!to! accomplish!both!the!Agreement’s!required!performance!standards!for!case!management! and!the!longOterm!goals!of!the!Agreement.!Needed!improvements!include,!but!are!not! limited!to,!developing!and!discussing!employment!goals!and!supports!and!offering! supported!employment,!offering!integrated!day!opportunities,!providing!assistance!to! access!services,!convening!the!individual!service!planning!team!to!address!changes!in! status,!and!monitoring!the!ISP!to!make!referrals,!service!changes,!and!amendments!as! needed.!Note:!see!pages!56!and!57!for!more!information!about!case!management.! ! Progress!in!complying!with!these!requirements!and!the!case!management!provisions!in! Section!V!of!the!Agreement!will!be!prioritized!for!monitoring!during!the!third!review! period.! !

!

31!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 32 of 147 PageID# 4852

!
J.&&&&&&&Crisis&Services&and&Prevention&
& “The!Commonwealth!shall:!!
 !
 develop!a!statewide!crisis!system!for!individuals!with!intellectual!and!developmental!
 disabilities!(Section!III.C.6.a.).!
 !
 provide!timely!and!accessible!supports!to!individuals!with!intellectual!and!
 developmental!disabilities!who!are!experiencing!crisis!
 !
 provide!services!focused!on!crisis!prevention!and!proactive!planning!to!avoid!potential!
 crisis!
 !
 provide!inLhome!and!communityLbased!crisis!services!that!are!directed!at!resolving!
 crises!and!at!preventing!the!removal!of!the!individual!from!his!or!her!current!setting!
 whenever!practicable!(Sections!III.C.6.a.iLiii.).”!
 !
 The!Independent!Reviewer!retained!an!expert!consultant!to!review!compliance!with!the!
 crisis!service!requirements!of!the!Agreement.!The!Reviewer!and!consultant!agreed!upon!
 the!measures!and!evaluation!methods!to!determine!the!Commonwealth’s!compliance!in!
 this!area.!This!evaluation!did!not!include!a!review!of!the!quality!of!services!provided,!given!
 that!program!components!are!either!in!their!early!stages!of!operations!or!not!yet!
 operational.!The!consultant’s!report!“Crisis!Service!Requirements”!(Appendix!B)!is!
 paraphrased!and!quoted!in!this!section!of!the!Reviewer’s!report.!!
 !
 The!expert!consultant’s!report!describes!the!status!of!compliance!efforts!as!of!April!6,!2013.!
 It!also!describes!accomplishments!and!areas!of!potential!nonOcompliance!with!the!
 Agreement.!It!also!includes!the!status!of!planning!for!the!requirements!that!are!to!be!met!
 by!June!30,!2013.!The!Reviewer’s!findings!were!also!informed!by:!

! ! onOsite!visits!and!interviews!with!staff!at!three!regional!crisis!services!programs,! ! focus!groups!with!service!providers,!case!managers,!and!family!members!who!have!!
been!engaged!with!crisis!services,!! ! quarterly!reports!by!the!external!consultant!guiding!program!implementation,!and! ! quarterly!reports!by!the!DBHDSOassigned!project!team.!
!
The!Reviewer!previously!commended!the!Commonwealth!for!the!decision!to!implement!
crisis!services!and!stabilization!programs!statewide!using!a!“reliable,!wellOtested!and!
comprehensive!service!delivery!model,!Systemic!Therapeutic!Assessment!Respite!and!
Treatment!(START).”!!The!success!of!the!model!is!that!it!is!based!upon:!
! ! linkages!and!agreements!with!existing!providers,!! ! crossOsystem!crisis!intervention!planning!(CSCP),!!

!

32
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 33 of 147 PageID# 4853

! support!and!technical!assistance!to!all!its!community!partners!including!individuals! and!their!families,!and!!
! comprehensive!systemic!and!clinical!training!with!followOup!consultation.”! ! Currently,!Virginia!is!in!the!first!full!year!of!implementation!of!its!statewide!crisis!response! system!for!individuals!with!ID!and!DD.!When!undertaking!such!a!broad,!complex!initiative,! there!are!typical!causes!of!delays.!These!include!the!hiring!of!staff!and!the!purchase!and! renovation!of!buildings.!New!programs!that!are!based!on!a!cooperative!model!of!service! delivery!also!experience!challenges!establishing!structure!and!operating!norms!within!an! existing!system.!! ! ! The&Sufficiency&and&Sustainability&of&Funding&for&START&services& &
Recommendations&from&the&Reviewer’s&first&Report& Provide!adequate!funds!for!crisis!service!operations!in!FY!2014,!including!for!mobile! crisis!teams!in!each!region!to!respond!to!onOsite!crises!within!two!hours!by!June!30,! 2013.! !
Progress&Report:&&& An!additional!$3.8!million!has!been!approved!to!expand!funding!for!mobile!crisis!teams! from!$7.8!to!$11.6!million,!as!of!July!1,!2013.!This!will!help!mobile!crisis!teams!to! respond!to!a!crisis!calls.!!The!regions’!ability!to!have!full!funding!to!address!their!costs! and!function!as!planned!is!dependent!upon!Medicaid!billing,!since!the!total!projected! budget!is!$12.5!million!for!FY!2014.!DBHDS!will!need!utilization!and!waiting!list! information!to!make!targeted!budget!requests!to!properly!fund!the!regional!START! programs.!
! ! Serving&Adults&with&Developmental&Disabilities& & The!data!collected!by!the!START!teams!reflect!an!increase!in!the!number!of!individuals!
 with!DD!being!seen.!The!number!remains!small,!though!it!is!expected!to!increase.!DBHDS!
 has!started!doing!outreach!and!education!about!START!Services!with!case!managers!who!
 coordinate!services!for!individuals!with!DD.!!
 !
 Access!to!START!is!the!same!for!both!populations!and!is!available!to!all!individuals!with!
 ID/DD!not!only!those!eligible!for!HCBS!waiver!services.!The!DBHDS!Commissioner!clarified!
 in!June!2012!that!individuals!with!DD!are!eligible!for!START!services.!!

&
Recommendation&from&the&Reviewer’s&first&Report&to&the&Court& Ensure!that!adults!with!DD!have!case!management!to!facilitate!full!access!to!crisis! services!and!stabilization!programs,!and!that!they!have!access!to!community!supports! necessary!to!prevent!future!crises.!
! !

!

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!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 34 of 147 PageID# 4854

Progress&Report& DMAS!announced!in!January!2013!that!targeted!case!management!services!are! available!for!individuals!with!DD!who!are!not!on!the!DD!waiver,!if!they!are!on!the!wait! list,!in!crisis,!and!served!by!START!during!the!return!to!the!community.!!Without! waiverOfunded!services,!however,!these!individuals!will!not!have!access!to!services!that! are!integral!to!the!way!in!which!the!START!programs!provide!onOgoing!support.! Without!access!to!inOhome!and!other!supports,!individuals!with!DD!will!not!have!access! to!the!onOgoing!support!to!prevent!future!crises.!Similarly,!individuals!with!DD!who!are! in!crisis!and!served!by!START,!but!not!on!the!DD!wait!list,!are!also!excluded!from!the! support!needed!to!avoid!unnecessary!institutionalization.!!
! Recommendations& DBHDS!and!DMAS!should!determine!if!individuals!who!have!DD!and!have!used!START! should!be!considered!a!priority!for!case!management!whether!or!not!they!are!on!the!wait! list.!! ! Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&
! Serving&Children&with&Intellectual&and&Developmental&Disabilities& & Recommendation&from&the&Reviewer’s&first&Report&to&the&Court&
Develop!a!plan!and!approve!sufficient!resources!to!provide!crisis!services!for!children! with!either!ID!or!DD.!
! Progress&Report&
At!the!time!the!Reviewer!completed!his!first!Report!to!the!Court,!there!was!no!plan!or! funding!for!providing!crisis!services!for!children!with!ID!and!DD.!Recently,!$1.25!million! was!approved!as!part!of!the!FY!2014!budget!to!develop!crisis!prevention!and! intervention!for!children.!This!funding!level!was!not!based!on!a!plan!and!is!only!eleven! percent!of!the!funding!provided!for!adult!crisis!services.!Crisis!Services!for!children! were!required!by!the!Agreement!as!of!July!1,!2012.!The!General!Assembly’s!approval!of! funding!for!crisis!services!for!children!is!a!positive!step!forward.!DBHDS!has!informed! the!reviewer!that!it!will!develop!a!plan!that!provides!crisis!services!to!all!children,! regardless!of!age,!in!the!target!population.!DBHDS!plans!to!bring!stakeholders!together! to!consider!the!program!model,!costs,!funding!sources,!and!the!other!factors!included!in! the!Reviewer’s!recommendation!below.! ! DBHDS!has!convened!initial!discussions!to!plan!crisis!services!for!children!with!ID!and!DD.! DBHDS!faces!challenges!in!developing!these!services.!Currently,!children’s!crisis!services!in! three!of!its!five!regions!serve!a!broader!population!than!ID!and!DD.!These!programs!may! not!be!prepared!to!address!the!needs!of!this!group!without!changes!to!the!program! structure!and!additional!training.!There!is!also!no!utilization!data!about!children!with!ID! and!DD!needing!or!accessing!crisis!services.! !

!

34
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 35 of 147 PageID# 4855

Crisis!Services!staff!has!advised!the!Reviewer!that!an!evidenceObased!model,!like!START,! should!be!selected!and!that!a!careful!roll!out!should!be!planned.!The!plan!that!is!developed! should!include!an!operating!program!model!and!philosophies!for!the!children’s!crisis! services!that!fits!seamlessly!with!the!START!crisis!services!that!have!been!developed!for! adults.!!! ! The!Commonwealth!is!not!in!compliance!with!the!Agreement’s!requirements!to!provide! crisis!services!for!children.!! !
Recommendation&& A!written!implementation!plan!with!timelines!for!addressing!the!needs!of!all!children!with! ID!or!DD!should!be!provided!to!the!Reviewer!by!October!20,!2013.!This!plan!should! include:!!
! the!program!model,!! ! projected!costs!and!funding!sources,!! ! education!of!families,!! ! marketing!with!school!systems,!! ! case!management,!! ! coordination!with!the!state!agency!responsible!for!children!with!DD,!and!! ! the!availability!of!ongoing!supports!and!services!for!children!who!have!experienced!
crises!and!are!stabilized,!including!access!to!waiver!services.! ! ! START&Services&and&Staffing&
& The!START!regional!programs!have!had!difficulty!filling!and!maintaining!staff!in!crisis! services!positions.!Gaps!have!existed!in!several!program!and!clinical!leadership!positions.! The!Clinical!Director!position!has!been!vacant!in!three!regions!due!to!difficulty!finding!the! right!person!or!the!terminations!of!individuals!who!were!hired.!As!a!result,!Cross!System! Crisis!Plans!were!not!developed!or!were!significantly!delayed.!Family!members!have! reported!these!delays!to!the!Reviewer,!often!with!anecdotes!involving!unfulfilled!promises! of!when!the!CSCP!would!be!completed.!! ! Having!consistent!program!and!clinical!leadership!is!critical!to!the!ability!of!START!teams! to!respond!in!the!time!frames!expected!by!the!Agreement.!The!external!consultant!guiding! the!implementation!of!the!START!model!reports!similar!staffing!difficulties!in!other!states! during!the!initial!phase!of!development.!There!are!additional!challenges!when! implementing!a!unique!service!that!requires!staff!to!function!in!a!new!and!different!role.!It! takes!time!and!is!critical!to!the!program’s!success!to!find!and!retain!leaders!with!the! program!and!clinical!expertise,!philosophies,!and!values!that!fit!the!program!model.!!
& Recommendation:& DBHDS!should!report!quarterly!to!the!Independent!Reviewer!on!the!staffing!of!the!START! programs.!If!recruitment!and!retention!remain!a!problem,!then!DBHDS!should!report!to!the! Reviewer!its!analysis!of!the!problem!and!plans!to!address!the!problem!by!October!20,! 2013.!

!

35!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 36 of 147 PageID# 4856

Training& ! Full!compliance!with!Sections!6.a.i,!6.a.ii,!and!6.a.iii!“will!be!determined!by!how!well!staff!in! both!the!ID!and!Emergency!Services!divisions!of!the!CSBs,!providers!and!the!START! programs!are!prepared!to!address!the!needs!of!individuals!with!ID/DD!who!are!at!risk!of!or! are!experiencing!a!crisis.”!! ! The!“Crisis!Services!Requirements”!report!describes!the!training!in!crisis!response!and!deO escalation!required!of!staff!who!work!directly!with!individuals!who!exhibit!behavioral! challenges.!!Because!of!the!difficulty!of!filling!positions,!training!must!continue!to!assure! that!all!staff!complete!the!necessary!requirements!to!achieve!certification.!It!is!essential!to! the!ongoing!quality!of!the!program.! ! ! Crisis!Point!of!Entry:!! ! “The!Commonwealth!shall!utilize!existing!CSB!Emergency!Services,!for!individuals!to! access!information!about!and!referrals!to!local!resources.!Such!hotlines!shall!be! operated!24!hours!per!day,!7!days!per!week!and!staffed!with!clinical!professionals!who! are!able!to!assess!crises!by!phone!and!assist!the!caller!in!identifying!and!connecting! with!local!services.!Where!necessary,!the!crisis!hotline!will!dispatch!at!least!one!mobile! crisis!team!member!who!is!adequately!trained!to!address!the!crisis!(Section!III.C.6.b.i.)”!
! The!Reviewer!has!recently!learned!that!DBHDS!previously!determined!that!the!mobile! crisis!team!member!who!responds!to!address!the!crisis!will!be!a!member!of!the!START! program’s!mobile!crisis!team.!This!was!not!the!Reviewer’s!understanding!when!his!first! Report!to!the!Court!stated!“The!variance!in!CSB!response!onOsite!in!people’s!homes!has!the! potential!to!impact!the!capacity!of!the!START!Mobile!Crisis!Teams!to!respond”.!The!expert! consultant’s!evaluation!during!the!first!review!period!raised!concerns!about!the!variance!in! CSB!Emergency!Service!mobile!crisis!teams’!responses!to!crises!onOsite.!The!Reviewer! again!retained!the!expert!consultant!to!complete!followOup!study!during!the!second!review! period.!This!study!focused!on!areas!of!concern!identified!in!the!first!study,!including! whether!CSB!ERs!were!responding!onOsite.!The!questions!to!be!asked!of!those!interviewed! were!shared!with!DBHDS!prior!to!beginning!the!study.!!One!question!asked!whether!“CSBs! are!now!willing!to!respond!to!a!crisis!in!a!person’s!home”.!!The!expert!consultant’s!followO up!study!was!completed!with!that!focus.! ! The!Reviewer!has!learned!that!the!Community!Services!Performance!Contract!with!DBHDS! for!FY!2013!and!FY!2014!assigned!the!responsibility!to!respond!onOsite!as!follows:!“These! requirements!shall!be!met!through!the!regional!START!program!that!is!staffed!24!hours!per! day!and!seven!days!per!week!by!qualified!individuals!able!to!assess!and!assist!individuals! and!their!families!during!crisis!situations!and!has!a!mobile!crisis!team!to!address!crisis! situations!and!offer!services!and!supports!onOsite!to!individuals!and!their!families!within!3! hours”.!!The!Reviewer!has,!therefore,!not!gathered!sufficient!data!to!determine!if!this! provision!of!the!Agreement!is!being!met.!In!the!Reviewer’s!focus!group!meeting!with! families!who!have!engaged!crisis!services,!one!family!with!an!adult!family!member!in!crisis!

!

36!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 37 of 147 PageID# 4857

provided!a!log!of!interactions!with!the!START!mobile!crisis!staff.!One!response!to!a!crisis!
 call!was!“we!just!meet!you!at!the!hospital.”!This!one!example!is!not!sufficient!to!determine!
 statewide!compliance!with!this!requirement.!!
 !
 The!Reviewer!will!prioritize!monitoring!whether!mobile!crisis!teams!are!responding!onO
 site!to!crises!during!the!third!review!period.!!
 &
 Recommendation&

The!DBHDS!should!report!to!the!Reviewer!by!October!20,!2013!the!status!of!its!compliance!
with!the!requirement!of!the!Agreement!to!“respond!to!individuals!at!their!homes…to!deO
escalate!their!crisis.”!!
!
! “By!June!30,!2012,!the!Commonwealth!shall!train!CSB!Emergency!Services!personnel!in!
 each!Health!Planning!Region!(“Region”)!on!the!new!crisis!response!system!it!is!
 establishing,!how!to!make!referrals,!and!the!resources!that!are!available.!(Section!
 III.c.6.b.i.B).”!
 !
 Training!continues!to!be!offered!to!CSB!ES!staff.!A!recent!training!was!provided!to!CSB!staff!
 in!Region!5.!The!Commonwealth!plans!to!replicate!this!model!in!other!regions.!As!of!March!
 31,!2013,!seventeen!CSBs!(41%)!have!trained!100%!of!their!ES!staff!in!the!START!model,!
 and!twentyOone!CSBs!(51%)!have!fewer!than!75%!of!their!ES!staff!trained.!
 !
 The!DBHDS!Crisis!Services!Coordinator!for!the!START!programs!and!its!Crisis!Intervention!
 Support!Specialist!who!works!with!the!CSB!ES!teams!are!working!collaboratively!to!expand!
 training!to!the!CSB!ES!staff.!They!are!currently!reaching!out!to!and!offering!training!for!the!
 staff!of!the!ten!existing!crisis!stabilization!units!that!support!individuals!primarily!with!
 mental!health!and!substance!abuse!needs.!This!is!a!positive!development!that!will!likely!
 build!a!more!effective!working!relationship!between!the!ES!and!START!teams!and!their!
 respective!crisis!stabilization!units.!!
 !
 Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&

! Work&with&Law&Enforcement&
 &

The!Agreement!expects!that!the!Commonwealth!will!have!a!planned!approach!to!reaching!
out!to!and!working!with!law!enforcement!personnel.!The!goal!is!to!improve!interactions!
with!individuals!with!ID/DD!who!experience!crises!and!come!into!contact!with!law!
enforcement.!!
&
DBHDS!offers!a!training!curriculum,!the!Crisis!Intervention!Training!(CIT),!throughout!the!
state.!The!curriculum!includes!information!on!individuals!with!ID.!The!regions!vary!in!their!
contacts!with!police!and!the!trainings!that!have!been!offered.!!
&
!

!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 38 of 147 PageID# 4858

Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&
! “Mobile!Crisis!Teams:!! F.!By!June!30,!2012…shall!have!at!least!one!mobile!crisis!team!in!each!Region!that!shall! respond!to!onLsite!crises!within!three!hours!(Section!6.b.ii.).”! !
 None!of!the!regions!had!their!full!teams!in!place!by!June!2012!due!to!delays!in!hiring!and!
 being!funded!less!than!planned!for!by!DBHDS.!Regions!3,!4!and!5!were!reported!to!be!fully!
 operating!their!mobile!crisis!teams!by!October!2012,!the!end!of!the!previous!reporting!
 period.!Regions!1!and!2!did!not!have!their!teams!in!place!until!December!2012!because!of!
 delays!in!becoming!licensed.!There!was!a!sevenOmonth!range!of!start!dates!(September!
 2012OApril!2013),!in!the!Regions’!provision!of!inOhome!respite!component!of!START!
 services.!!
 !
 The!most!recent!START!quarterly!report!provides!a!wealth!of!information!about!the!
 demographics,!needs,!and!supports!that!have!been!provided.!Highlights!include:!!

! ! 350!individuals!have!been!referred!to!START!statewide!with!117!of!those!
individuals!being!served!in!the!most!recent!quarter,! ! 35%!of!the!individuals!referred!lived!at!home!at!the!time!of!referral,! ! 52%!of!the!referrals!of!people!in!crisis!were!at!risk!of!losing!their!placements,!but!
through!the!provision!of!START!services,!placements!were!maintained.! ! Case!Managers!are!the!primary!source!of!referrals,!followed!by!families!and!
residential!service!providers.!Only!11%!(13)!of!the!referrals!this!quarter!were!made!
by!the!ES!mobile!crisis!teams!
! The!Agreement!requires!a!response!time!to!crisis!referrals!of!no!more!than!three!hours!
 during!the!first!year!of!implementation;!this!is!reduced!to!two!hours!by!June!30,!2013.!The!
 START!report!for!the!quarter!that!ended!March!31,!2013!indicated!that!only!31!(39.2%)!of!
 responses!occurred!in!less!than!the!required!two!hours.!Data!was!not!available,!however,!
 for!twentyOsix!(32.9%)!of!the!seventyOnine!responses!because!START!teams!have!not!
 consistently!reported!this!information.!It!is!critical!that!data!on!all!responses!be!tracked!
 and!reported.!Missing!data!in!future!reports!will!undermine!the!Commonwealth’s!ability!to!
 provide!information!that!demonstrates!compliance.!The!mobile!crisis!teams!are!not!yet!
 meeting!the!twoOhour!response!time!that!is!required!as!of!June!30,!2013.!The!goal!of!
 responding!within!two!hours!for!all!crisis!referrals!will!depend!on!having!a!sufficient!
 number!of!Transition!Coordinators!hired!and!available,!especially!in!rural!areas.!!
 !
 Meeting!the!twoOhour!response!time!standard!by!June!30,!2013,!does!not!ensure!either!that!
 future!response!times!will!continue!to!meet!this!standard!or!the!quality!of!services!or!
 planning!once!onOsite.!One!contributing!factor!will!be!that!referrals!to!START!programs!will!
 likely!increase!as!further!outreach!occurs!and!as!all!respite!programs!become!fully!
 operational.!
 !


!

38
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 39 of 147 PageID# 4859

The!DBHDS!is!to!have!a!second!mobile!crisis!team!in!each!region!by!June!30,!2013!that!shall!
 respond!to!onOsite!crises!within!two!hours.!The!DBHDS!reports!that!each!region!is!deciding!
 what!it!needs!in!terms!of!resources.!The!regions!are!planning!to!deploy!the!existing!and!
 additional!Transition!Coordinators!differently.!These!plans!are!not!yet!final.!The!next!
 START!Quarterly!Report!will!be!used!to!determine!if!the!staffing!is!adequate!to!meet!the!
 requirements!of!the!Agreement!as!of!June!30,!2013.!
 !
 Recommendation:!The!DBHDS!should!report!to!the!Reviewer!by!October!20,!2013,!the!
 steps!it!took!to!expand!the!mobile!crisis!teams’!capacity!to!respond!to!onOsite!crises!and!the!
 actual!response!times!during!the!first!quarter!of!FY!2014.!!
 ! !
 “By!June!30,!2012…shall!develop!one!crisis!stabilization!program!in!each!Region! (Section!III.6.b.iii.).”! ! The!Commonwealth!is!not!in!compliance!with!this!provision.!As!of!the!end!of!the!second! review!period,!April!6,!2013,!two!regions!still!do!not!have!crisis!stabilization!programs.!! ! There!were!typical!delays!caused!by!home!location,!acquisition,!renovation,!licensing,!and! staff!recruitment!and!training.!Two!units!opened!in!December!2012!and!a!third!opened!in! March!2013.!Both!Regions!4!and!5!remain!without!a!facility!in!which!to!operate!the! stabilization!programs.!Region!5!has!a!facility!that!is!projected!to!be!available!by!October! 2013.!The!Reviewer!agreed!to!an!exception!for!Region!5,!until!October!2013,!to!the! requirement!that!crisis!stabilization!programs!not!be!located!on!the!grounds!of!Training! Centers.!!Use!of!the!site!on!the!grounds!of!the!Training!Center!is!not!in!compliance!with!the! Agreement.!It!will,!however,!provide!a!temporary!location!where!planned!and!emergency! services!can!be!provided!until!October!2013.!Region!4!had!a!site!in!Richmond!that!was!not! approved!by!zoning.!They!are!looking!for!an!alternative!site,!but!have!no!projected!start! date.! ! The!Commonwealth!is!to!decide!by!July!2013!how!many!crisis!stabilization!units!will!be! needed.!In!light!of!the!significant!delays!in!opening!these!units!and!given!that!two!are!not! yet!available,!it!is!unrealistic!for!the!DBHDS!to!make!assessments!in!all!Regions!by!July.!It! does!appear!that!there!is!sufficient!data!to!make!a!preliminary!assessment!in!Region!3.!It! will!be!important,!however,!to!make!a!determination!of!the!level!of!need!by!the!time!the! Department!submits!its!FY!2015!budget!requests!to!the!Governor.!If!additional!units!are! not!included!in!the!FY!2015!appropriation,!the!level!of!crisis!stabilization!will!remain!at! fewer!than!thirty!beds!statewide!for!at!least!two!more!years.!The!Reviewer!expects!that!the! DBHDS!will!develop!a!projection!of!need!based!on!utilization!of!the!three!existing!units! through!the!next!review!period!(October!6,!2013).!This!projection!should!factor!in!the! needs!of!adults!with!DD,!which!will!likely!increase,!and!for!children!with!ID!or!DD.!!! ! The!Reviewer!has!received!reports!of!gaps!in!whom!the!crisis!stabilization!programs!will! support.!The!individuals!who!could!not!be!supported!include!people!who!run!away/elope! and!those!who!are!assaultive.!DBHDS!has!confirmed!to!the!Reviewer!that!everyone!with!an! ID!or!DD!diagnosis!should!be!referred!to!START;!and!that!there!are!no!automatic!

!

39!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 40 of 147 PageID# 4860
exclusionary!criteria,!other!than!an!individual!who!is!a!danger!to!self!or!others!and!needs!
 hospitalization.!They!also!report!that!individuals!who!historically!elope!from!settings!can!
 be!served,!if!they!are!willing!and!can!be!maintained!by!the!physical!environment!(a!fenced!
 yard)!and!the!supervision!and!direction!of!staff.!
 !
 In!addition!to!the!issues!already!raised!in!this!section,!other!systemic!issues!have!been!
 identified.!Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!
 recommendations.!&

&
K.&&&&&&&&Integrated&Day&Activities&and&Supported&Employment&
& The!Reviewer!retained!an!expert!consultant!to!review!compliance!with!the!Integrated!Day!
 Activities!and!Supported!Employment!requirements!of!the!Agreement.!The!Reviewer!and!
 consultant!agreed!upon!the!measures!and!evaluation!methods!to!determine!the!
 Commonwealth’s!compliance!in!this!area.!That!report!“Employment!Service!Requirements”!
 (See!Appendix!C)!is!quoted!in!this!section!of!the!Reviewer’s!report.!!
 !
 The!Reviewer!agrees!with!the!conclusion!in!the!expert!consultant’s!report,!as!follows:!
 !
“The!Commonwealth!is!commended!for!its!progress!to!date!establishing!its!
 Employment!First!Policy!and!initiative!and!its!efforts!to!comply!with!the!requirements!
 of!the!Settlement!Agreement!as!it!directs!change!to!employment!services.!The!support!
 of!the!Governor!and!General!Assembly!provide!a!strong!message!of!leadership!as!to!the!
 importance!of!this!undertaking.!There!is!significant!involvement!of!various!state!
 agencies!and!an!identification!of!the!barriers!they!must!address!to!fully!support!the!
 desire!for!people!with!disabilities!to!have!a!meaningful!employment!and!participation!
 in!community!life.”!
 !

& “The!Commonwealth!shall…to!the!greatest!extent!practicable…provide!individuals!in!the!target!
 population!receiving!services!under!this!agreement!with!integrated!day!opportunities,!including!
 supported!employment!(Section!III.C.7.a.).”!
 !
 Sections!of!the!status!report!are!paraphrased!and!quoted!from!“Employment!Service!
 Requirement”!(Appendix!C).!
 !
 DBHDS!reports!the!following!information!related!to!the!number!of!people!who!have!been!
 provided!with!supported!employment.!

&
&
&

!

40
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 41 of 147 PageID# 4861

Table&12&

Individuals&Enrolled&in&Employment&Services&

!

First!period!

Second!period!

10/12O12/12!

1/13O3/13!

Newly!enrolled!in!ISE!

43!

71!

Newly!enrolled!in!GSE!

36!

79!

Total!enrolled!in!SE!

79!

150!

Newly!enrolled!in!PreO

59!

124!

Vocation!

!
 The!first!reporting!period!(10/12O12/12)!includes!individuals!on!both!the!ID!and!DD!
 waivers.!The!total!receiving!supported!employment!was!79.!During!the!second!reporting!
 period,!this!increased!to!a!total!of!150!people.!Table!12!also!includes!preOvocational!
 enrollment.!This!enrollment!may!decline,!as!it!becomes!a!standard!practice!to!offer!
 supported!employment!as!the!first!option!for!new!enrollees.!!


There!is!a!difference!in!the!data!sources!for!the!two!reporting!periods.!The!first!period!
 includes!enrollments!in!the!ID!and!DD!Waivers.!The!second!period!includes!data!from!only&
 the!ID!waivers.!There!is!a!positive!increase!in!the!number!enrolled!in!supported!
 employment!during!the!second!quarter!even!though!the!information!is!only!from!the!ID!
 waivers.!The!DD!waiver!data!is!only!available!on!an!annual!basis!at!the!end!of!a!year.!Also,!
 DBHDS!reports!that!because!the!Department!of!Aging!and!Rehabilitative!Services!(DARS)!
 funding!was!closed!during!the!second!period,!people!could!access!the!ID!waiver!for!
 employment!directly!since!the!primary!funder!was!unable!to!provide!employment!
 supports.!This!may!have!increased!the!numbers!enrolled!in!the!ID!waivers.!This!may!be!
 positive!for!these!individuals.!It!may!increase!the!continuity!of!services!and!cause!less!
 confusion!to!families!than!dealing!with!the!two!different!Departments.!


Unfortunately,!the!Commonwealth!is!unable!to!report!the!number!of!people!who!receive!
 other!integrated!day!services.!The!data!collection!system!does!not!distinguish!between!
 communityObased!and!facilityObased!day!services.!


The!data!indicate!that!there!may!have!been!an!increase!in!the!number!of!people!receiving!
 supported!employment.!However,!there!has!been!no!change!to!the!waiver!rates!and!
 structure!that!currently!encourages!day!support!services!in!congregate!setting.!Effective!
 July!1,!2013,!job!development!and!job!placement!activities!will!be!reimbursable!through!
 the!ID,!DD!and!Day!Support!Waivers,!when!the!individual!is!not!present.!This!is!a!positive!
 change!and!should!help!make!the!provision!of!individual!and!group!supported!employment!
 more!financially!viable!for!providers.!During!the!second!review!period!CSB!officials!
 informed!the!Reviewer!that!staff!assigned!to!implement!supported!employment!had!been!


!

41
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 42 of 147 PageID# 4862

redeployed!to!other!functions!because,!“The!current!funding!for!the!program!is!not! adequate.!We!have!to!make!decisions!based!on!the!bottom!line.”!!
It!is!the!Reviewer’s!opinion!that!the!Commonwealth!has!achieved!several!accomplishments! that!will!provide!more!integrated!day!opportunities!in!the!future.!These!accomplishments,! described!elsewhere!in!this!report,!include!a!comprehensive!plan!for!employment,!a!strong! employment!first!policy,!related!training,!and!progress!with!respect!to!comparable!pay!for! supported!employment!services!provided!through!the!waivers!or!DARS.!These! accomplishments!and!the!restructure!of!the!waiver!and!rates!will!be!essential!because! there!is!a!long!way!to!go!before!individuals!in!the!target!population!are!provided…”to!the! greatest!extent!practicable…with!integrated!day!opportunities,!including!supported! employment”.!!
Recommendation:!DBHDS!and!DMAS!should!create!the!capacity!to!report!the!number!of! individuals!with!ID!and!DD!who!are!receiving!integrated!day!activities!and!supported! employment!and!report!this!to!the!Reviewer!on!a!quarterly!basis.! ! ! “The!Commonwealth!shall:!
Establish!a!state!policy!on!Employment!First!for!the!target!population!and!include!a! term!in!the!CSB!Performance!Contract!requiring!application!of!this!policy.!! ! !The!employment!first!policy!shall…be!based!on!the!following!principles:!
individual!supported!employment!in!integrated!setting!is!the!first!and!priority! service!option!for!individuals!with!ID!or!DD!receiving!day!program!or!employment! services!from!of!funded!by!the!commonwealth;! ! the!goal!of!employment!services!is!to!support!individuals!in!integrated!work! settings!where!they!are!paid!minimum!or!competitive!wages;!and!! ! employment!services!and!goals!must!be!developed!and!discussed!at!least!annually! through!a!personLcentered!planning!process!and!included!in!ISPs.!
Employ!at!least!one!employment!services!coordinator!to!monitor!the!implementation! of!Employment!First!practice.! ! Maintain!its!membership!in!the!State!Employment!Leadership!Network!(SELN)! established!by!NASDDDS!(Section!III.C.7.b.).”!
! The!Commonwealth!established!and!issued!a!state!policy!on!Employment!First!in! December!2012.!It!is!a!strong!policy!statement!that!stresses!the!benefits!of!employment!for! persons!with!disabilities.!Integrated!communityObased!employment!is!appropriately! defined!to!mean!regular!or!customized!employment,!with!minimum!or!competitive!wages! and!benefits,!for!a!person!who!is!on!the!employer’s!payroll!and!has!interaction!and! integration!with!the!business!workforce.!!The!Employment!First!Policy!also!directs!DBHDS:!!

!

42!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 43 of 147 PageID# 4863

! ! to!provide!training!and!consultation!to!providers,!! ! to!create!teams!to!use!evidenceObased!supported!employment!models,!! ! to!build!these!options!into!the!waivers!for!both!ID!and!DD,!! ! to!maintain!the!SELN!Advisory!Group!as!a!resource!for!systems!development,!and!! ! to!develop!an!implementation!plan!to!increase!integrated!day!opportunities.!!

!

The!CSBs!Performance!Contract!with!DBHDS!requires!demonstration!of!compliance!with!

the!Employment!First!Policy!starting!in!July!2013.!!A!planning!form!has!been!restructured!!

so!that!employment!will!be!the!first!topic!discussed!with!the!individual.!The!case!managers!

will!submit!a!report!indicating!that!employment!was!explained,!discussed,!and!offered!to!

the!individual.!CSB!representatives!on!the!SELN!Advisory!Group!have!reported!that!there!

has!been!no!further!guidance!provided,!and!the!expectation!has!not!yet!been!set!for!case!

managers.!! !

The!Agreement’s!integrated!day!and!supported!employment!provisions!apply!to!

individuals!with!either!ID!or!DD.!DBHDS,!however,!does!not!have!a!direct!relationship!with!

case!managers!who!support!individuals!with!DD!who!are!accessing!the!DD!waiver.!DBHDS!

has!shared!the!Employment!First!Policy!with!DMAS,!and!asked!DMAS!to!share!it!with!the!

DD!case!managers!and!to!strongly!encourage!them!to!discuss!employment!as!the!first! option.!!However,!there!appears!to!be!no!requirement!being!set!forth!to!insure!this!occurs.!! !

The!Commonwealth!has!met!the!requirements!of!this!section!of!the!agreement!by:!!

! ! maintaining!its!membership!in!the!SELN!and!creating!a!statewide!SELN!committee,! ! developing!and!issuing!the!Employment!First!Policy,!! ! issuing!the!performance!contract!requirement!of!the!CSBs,!and!! ! hiring!an!Employment!Services!Specialist!who!oversees!and!coordinates!the!

employment!first!initiative.!

!

Recommendation:!DMAS!should!make!the!Employment!First!policy!a!requirement!for!

individual!support!planning!for!people!with!DD!who!are!receiving!waiver!services!and!to!

have!a!mechanism!to!make!sure!it!is!being!implemented.!

!

!


!


“Within!180!days!the!Commonwealth!shall!develop!an!employment!implementation!


plan!to!increase!integrated!day!opportunities!for!individuals!in!the!target!population,!


including!supported!employment…The!plan!shall:!


!


Provide!regional!training!on!the!Employment!First!policy!and!strategies!

throughout!the!Commonwealth;!and!!

!

Establish,!for!individuals!receiving!services!through!the!HCBS!waivers:!

Annual!baseline!information…!and;!Targets!to!meaningfully!increase!

(Section!III.C.7.b.i).”!

!

!

43
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 44 of 147 PageID# 4864

The!Strategic!Plan!for!Employment!First!was!submitted!on!November!7,!2012.!It!was! subsequently!updated!with!additional!information.!The!targets!to!increase!supported! employment!were!added!in!March!2013.!!The!expert!consultant!utilized!the!State!Health! Authority!Yardstick!(SHAY)!rating!scale!to!evaluate!and!determine!the!adequacy!of!the! plan.!It!is!a!nationally!recognized!tool!developed!at!Dartmouth!University!to!review!state’s! ability!to!plan,!develop,!monitor,!and!evaluate!evidenceObased!practices!regarding!systems! development!and!program!implementation.!! ! The!Commonwealth!has!substantially!complied!with!the!requirement!of!developing!a!plan! that!to!accomplish!the!systems!change!that!is!necessary!to!fully!realize!the!Employment! First!Policy.!There!are!recommendations!below,!however,!to!strengthen!the!plan.! ! During!the!second!review!period,!the!primary!focus!of!DBHDS’!activity!has!been!centered! on!developing!the!Employment!First!initiative.!The!goal!of!the!Employment!First!plan,! however,!is!to!serve!only!20%!of!individuals!with!waiver!services!in!supported! employment.!More!than!80%!of!individuals!on!the!ID!waiver!are!receiving!day!supports! that!are!typically!in!large!congregate!segregated!facilities.!!DBHDS!reports!having!sought! advice!on!develop ing!communityObased!nonOwork!integrated!day!activities!from!the!SELN! national!team.!!This!is!a!new,!and!much!needed,!area!of!program!development!for!many! states!including!Virginia.!To!date,!the!Commonwealth!has!not!been!engaged!with!any! formal!planning!to!develop!an!implementation!plan!to!create!a!robust!service!delivery! system!that!meets!the!Agreement’s!requirements!for!integrated!day!activities!including! community!volunteer!opportunities!and!integrated!recreation!activities.!! !
Recommendation:& DBHDS!and!DMAS!work!together!to!develop!and!submit!a!plan!that!identifies!strategies,! goals,!action!plans,!resources,!responsibilities!and!timelines!to!address!Integrated!Day! Activities!for!individuals!with!ID!and!DD.!The!Plan!should!be!shared!with!the!Independent! Reviewer!by!October!20,!2013.!!! ! ! Training& There!is!an!understanding!that!an!initiative!such!as!this!can!only!be!acco mplished!through! significant!education!to!increase!stakeholders’!awareness!of!Virginia’s!Employment!First! initiative,!national!trends!and!federal!expectations.!The!Employment!plan!includes!the! following!training!initiatives:!!! !
! an!annual!state!employment!summit!with!key!leadership,!! ! quarterly!regional!summits,!! ! the!development!of!a!dedicated!website,!! ! the!development!of!a!comprehensive!training!plan!in!employment!practices,!! ! training!for!case!managers!and!service!providers,!! ! training!on!innovative!employment!support!models!for!direct!service!staff,!! ! outreach!to!families!and!individuals,!and!! ! outreach!to!the!business!communities.!!!
 !


!

44!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 45 of 147 PageID# 4865

Two!of!the!initiatives!have!been!implemented.!The!first!two!employment!summits!have!
occurred!and!the!outreach!packet!for!families!and!individuals!has!been!developed.!The!
remaining!components!are!projected!to!be!available!in!September!2013.! !
 The!DBHDS!Employment!Coordinator!has!arranged!and!directly!provided!a!significant!
 amount!of!outreach,!education!and!training!to!a!wide!range!of!stakeholder!groups.!!
 It!is!the!Reviewer’s!opinion!that!the!Commonwealth!is!meeting!its!obligation!under!the!
 Settlement!Agreement!to!provide!training!on!the!Employment!First!policy!and!strategies!
 throughout!the!Commonwealth.!!The!plan!to!develop!more!specific!training!for!
 employment!providers!and!other!stakeholders!will!be!important!to!the!success!of!this!

initiative.!!!!
!
Engaging&stakeholders&
The!Commonwealth’s!Supported!Employment!Leadership!Network!(SELN)!has!an!
important!role!in!the!planning!and!implementation!of!provisions!of!the!Agreement.!That!
role!includes:!
! ! serving!on!the!DBHDS!DOJ!Employment!First!Project!Team,!! ! setting!the!targets,!! ! providing!ongoing!guidance!and!assistance!to!implement!the!plan!and!the!Policy,!and!! ! monitoring!the!baseline!data!and!the!targets”!(DBHDS!transmittal!letter).!!

! The!Commonwealth’s!SELN!members!represent!stakeholders!including!selfOadvocates,!
 families,!advocacy!organizations,!CSBs,!state!agencies,!universities,!and!employment!
 providers.!The!Commonwealth’s!SELN,!established!in!2008,!completed!a!selfO!assessment!
 with!assistance!from!the!national!SELN.!That!assessment!helped!the!Commonwealth’s!
 SELN!develop!a!work!plan.!That!work!plan!was!used!in!the!creation!of!the!“Strategic!Plan!
 for!Employment!First:!Expanding!Employment!Opportunities”!that!was!published!

November!8,!2012.! !
 The!expert!consultant!interviewed!nine!members!of!the!Commonwealth’s!SELN!as!part!of!
 the!research!to!determine!the!compliance!with!the!employment!services!requirements!of!
 the!Agreement.!Those!interviewed!included!CSB,!state!agency,!provider,!family,!and!
 advocacy!representatives.!All!were!very!committed!to!advancing!the!employment!first!
 policy.!Questions!addressed!the!involvement!of!Commonwealth’s!SELN!in!creating!the!
 strategic!plan;!the!adequacy!of!the!plan;!the!effectiveness!of!the!interagency!coordination;!
 outreach!that!has!been!done;!the!barriers!facing!the!Commonwealth!as!it!seeks!to!
 implement!its!employment!strategies;!and!the!adequacy!of!the!employment!targets!that!

have!been!set.!! !

The!Commonwealth’s!SELN!members!shared!the!concern!that!they!did!not!have!the!
 opportunity!to!have!meaningful!input!into!the!design!of!the!strategic!plan!or!to!provide!
 feedback!before!it!was!submitted!to!the!Independent!Reviewer.!A!subgroup!of!the!
 Commonwealth!SELN!members!were!involved!in!setting!the!targets!for!the!plan.!
 !


!

45!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 46 of 147 PageID# 4866

The!Commonwealth’s!SELN!members!agreed!that!the!plan!includes!the!essential!elements!
needed!to!be!successful,!but!question!whether!it!goes!far!enough.!The!DBHDS!Strategic!Plan!
for!Employment!First!comprehensively!identifies!current!barriers!to!increasing!supported!
employment.!The!barriers!include!that!the!Commonwealth’s!rate!setting!and!supported!
employment!policies!and!procedures!are!not!in!line!with!federal!guidance!on!supporting!
integrated!employment,!and!do!not!incentivize!delivery!of!employment!services!over!other!
services.!The!Commonwealth’s!SELN!members!also!expressed!concerns!that!these!barriers!
have!long!been!recognized!and!that!the!plan!lacks!specificity!about!the!strategies!to!
implement!the!plan!and!to!monitor!progress.!Since!the!plan!was!completed,!there!have!
been!no!meetings!of!the!Commonwealth’s!SELN!that!focused!on!implementing!the!plan!to!
accomplish!the!many!objectives!due!in!September!2013.!The!Commonwealth’s!SELN!
Advisory!Group!wants!to!build!on!the!momentum!of!a!recent!legislative!committee!study!
and!to!identify!the!collaborations!more!specifically!to!accomplish!the!plan.!One!important!
step!is!to!collect!and!analyze!data!to!make!sure!the!baseline!in!the!plan!is!correct!and!that!
progress!can!be!accurately!assessed.!!
!
DBHDS!and!DMAS!have!made!recent!progress.!Effective!July!1,!2013,!job!development!and!
job!placement!activities!will!be!reimbursable!through!the!ID,!DD!and!Day!Support!Waivers,!
when!the!individual!being!served!is!not!present.!This!is!a!positive!change!and!should!help!
make!providing!individual!and!group!supported!employment!more!financially!viable.!
DBHDS!has!also!issued!an!RFP!to!study!and!restructure!the!waivers!that!will!specifically!
include!employment.!
!
!
Targets&for&increasing&employment& !
 The!Commonwealth’s!SELN!members!initially!discussed!the!targets,!and!a!subgroup!
 assisted!DBHDS!to!develop!them.!Most!of!the!Commonwealth’s!SELN!members!interviewed!
 for!this!report!believe!that!the!targets!are!too!modest;!though!they!acknowledge!that!
 systemic!barriers!that!interfere!with!progress!have!not!yet!been!addressed.!There!are!also!
 concerns!that!individuals!served!in!both!individual!and!group!supported!employment!may!
 have!been!double!counted,!and!that!some!people!in!congregate!settings!primarily!with!
 people!with!disabilities!were!included!in!the!count,!if!some!people!without!disabilities!are!
 also!employed!there.!!
 !
 Nationally!twenty!percent!of!individuals!served!in!day!services!are!receiving!supported!
 employment.!The!target!set!for!the!Commonwealth!is!to!increase!the!number!of!new!
 enrollees!by!twentyOseven!individuals,!a!twenty!percent!increase!over!the!135!people!who!
 were!enrolled!in!the!previous!year.!The!other!goal!of!having!138!individuals!maintain!
 employment!in!an!integrated!work!setting!is!an!increase!of!five!individuals!from!the!
 previous!year.!!
 !
 In!setting!these!targets!DBHDS!did!not!seem!to!adequately!consider!important!factors.!The!
 Commonwealth!is!currently!serving!very!few!of!its!waiver!participants!in!supported!
 employment.!Of!the!9027!individuals!enrolled!in!the!ID,!DD,!and!Day!Support!Waivers!in!FY!
 2011,!only!two!percent!were!in!individual!supported!employment!and!six!percent!were!in!


!

46
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 47 of 147 PageID# 4867

group!supported!employment.!Waiver!enrollment!will!increase!by!at!least!4170!individuals! over!the!term!of!the!Agreement.!By!the!end!of!FY!15!the!number!of!individuals!on!waivers! will!increase!to!more!than!10,700.!To!reach!an!overall!enrollment!in!supported! employment!of!twenty!percent,!DBHDS!would!need!a!multiOyear!plan!to!increase!to!2,140! people!receiving!supported!employment.!Whether!such!an!increase!is!realistic!and!over! what!period!of!time!should!be!the!focus!of!SELN!discussions!and!planning.!Such!discussions! will!assist!the!Commonwealth!in!implementing!the!Employment!First!Policy!and!set!more! ambitious!targets!to!support!the!implementation!of!its!Employment!First!Policy.! ! In!DBHDS’s!transmittal!letter!to!the!Reviewer!of!March!29,!2013,!the!target!to!increase! supported!employment!is!set!at!162!in!each!year.!The!Commonwealth’s!SELN!has!discussed! increasing!the!target!by!an!additional!twenty!percent!the!second!year!and!by!fifty!percent! the!third!year.!Accomplishing!these!more!ambitious!targets!would!result!in!the! Commonwealth!providing!supported!employment!to!twelve!percent!of!the!individuals!in! day!services,!compared!with!a!national !average!of!twenty!percent!During!the!recent!two! quarters!114!individuals!have!enrolled!in!supported!employment.!It!is!likely!that!the!goal! of!162!individuals!in!supported!employment!will!easily!be!achieved!because!only!38!more! individuals!will!need!to!be!enrolled!during!the!next!two!quarters.!DBHDS!is!planning!for! the!Regional!Quality!Council’s,!in!consultation!with!the!Commonwealth’s!SELN!and! providers,!to!periodically!review!the!targets.!This!review!will!include!the!extent!to!which! the!targets!are!being!met,!the!need!to!take!additional!measures!to!further!enhance!these! services,!and!determining!whether!the!targets!should!be!adjusted!upward.!! ! It!is!the!Reviewer’s!opinion!that!the!targets!that!have!been!set!are!too!modest.!It!is!also!the! Reviewer’s!experience!that!improved!performance!results!from!setting!realistic!and! achievable!goals!that!involves!stretching!to!achieve!them.!!Generally,!targets!should! increase!as!barriers!to!improvement!are!removed!and!success!is!demonstrated.!A! standardized!assessment!tool,!such!as!the!Support!Intensity!Scale,!should!be!used!to! determine!people’s!interests!and!abilities!to!work.!Creative!approaches!should!be! considered.!These!might!include!determining!strategies!to!increase!the!capacity!of! Employment!Services!Organizations!or!targeting!a!set!number!of!school!graduates!who!are! on!the!wait!lists!and!interested!in!individual!supported!employment.! ! !
L.&&&&&&&Access&and&Availability&of&Services&

&
 The!Commonwealth!shall!provide!transportation!to!individuals!receiving!HCBS!waiver! services!in!the!target!population!(Section!III.C.8.a.).”! ! Information!was!gathered!related!to!this!provision!as!part!of!the!Individual!Review!studies! completed!during!the!first!and!second!review!period.!There!was!a!distinct!pattern!to! answers!about!transportation.!Of!the!individuals!who!received!transportation!from!their! family,!or!service!provider,!very!few!problems!were!reported!with!transportation.! Alternatively,!nearly!all!those!who!received!transportation!from!a!Commonwealth! contractor!or!subcontractor,!reported!problems.!These!problems!ranged!from!excessive!

!

47!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 48 of 147 PageID# 4868

delays!in!arranging!transportation,!poor!communication,!not!being!picked!up!as!scheduled,!
 transportation!only!covering!medical!needs,!being!dropped!off!at!medical!appointments!
 but!not!picked!up,!and!inadequate!support!to!individuals!provided!by!drivers!and!aides!in!
 the!vehicle.!
 !
 DMAS!has!reported!making!several!significant!changes!in!the!past!six!months!to!strengthen!
 and!improve!the!delivery!of!transportation!services!through!DMAS’!contracted!vendor.!
 DMAS:!!

! ! restructured!and!strengthened!oversight,!
 ! expanded!and!strengthened!field!monitoring,!!
 ! created!a!task!force!to!ensure!issues!are!addressed!and!resolved!in!a!timely!manner,!
 ! improved!monthly!executive!level!communication,!problem!solving,!and!reporting,!

and! ! assigned!liquidated!damages!for!contractual!nonOcompliance.!
!
Transportation!vendor:!!
! ! filled!key!vacant!positions,! ! centralized!operations!for!improved!consistency!in!policy!and!procedures!statewide,!! ! formed!an!internal!quality!assurance!committee,!! ! created!regional!Quality!Council!Meetings!for!regionally!specific!problem!solving!
with!community!stakeholders,!! ! improved!monthly!reporting!to,!and!subsequent!communication!with,!DMAS,!and! ! implemented!requirements!that!all!new!providers!who!furnish!handOtoOhand!
service!complete!PASS!training.!
!
DMAS!has!also!reported!planned!actions!for!the!next!year.!These!include:!
! ! to!continue!to!expand!and!enhance!monitoring!efforts,!! ! to!revise!further!staff!roles!and!responsibilities,!! ! to!identify!network!deficiencies!by!region,!! ! to!implement!new!complaint!protocol!review!and!modify!the!contract!for!improved!
quality!and!performance,!and! ! to!develop!a!quarterly!review!and!update!process.!
!
Recommendation:!!!DMAS!should!create!the!capacity!to!report!on!the!quality!and!
performance!of!the!Commonwealth’s!vendor!to!provide!transportation!to!individuals!with!
ID/DD!and!to!report!this!to!the!Reviewer!quarterly.!
!
! !“The!Commonwealth!shall…publish!guidelines!for!families!seeking!intellectual!and! developmental!disability!services!on!how!and!where!to!apply!for!and!obtain!services.! The!guidelines!will!be!updated!annually!and!will!be!provided!to!appropriate!agencies! for!use!in!directing!individuals!in!the!target!population!to!the!correct!point!of!entry!to! access!services!(Section!III.C.8.b.).”!

!

48
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 49 of 147 PageID# 4869

!

Progress&Report&
The!Commonwealth!reported!creating!an!interagency!workgroup!comprised!of!staff!
from!Health!and!Human!resources!(HHR),!the!Department!of!Medical!Assistance!
Services!(DMAS),!the!Department!of!Aging!and!Rehabilitative!Services!(DARS),!and!the!
Department!of!Behavioral!Health!and!Developmental!Services!(DBHDS).!The!
workgroup!agreed!to!use!Easy!Access!as!the!main!portal!for!access!to!apply!for!and!find!
services.!DBHDS!reported!that!the!final!revisions,!additions,!and!simplified!information!
for!ID!and!DD!services!were!made!to!Easy!Access.!A!new!userOfriendly!website!was!
outlined.!DBHDS!plans!to!incorporate!guidelines!into!the!new!website.! ! Families!have!consistently!reported!complaints!that!underline!the!need!for!this!
 requirement!of!the!Agreement.!!Families!describe!the!lack!of!a!clear!and!understandable!
 path!to!receiving!services!and!supports.!Examples!include!making!inquiries!and!repeatedly!
 being!referred!elsewhere!for!answers.!In!one!case,!for!instance,!a!family!made!a!complete!
 circle!after!several!referrals!backs!to!the!original!person!who!could!not!help!and!had!
 started!the!process.!!
 !
 One!theme!identified!during!the!reviews!of!services!for!individuals!with!complex!medical!
 needs!was!the!difficulty!in!acquiring!needed!environmental!adaptations!and/or!adaptive!
 equipment.!The!table!below!depicts!the!result.!Half!of!those!reviewed!had!not!been!
 provided!the!environmental!adaptation!needed.!More!than!half!had!not!been!provided!all!
 the!adaptive!equipment!needed.!!
 !


Areas&of&concern:&

& TABLE 13

Individual&Support&Plan&–&Adaptive&Equipment/Environmental&Modifications&O&Items&

Item

n

Y

N

CND

Does!the!individual!require!an!adapted!

29 86.2% 13.8% 0.0%

environment!or!adaptive!equipment?

If!yes,!has!all!the!environmental!adaptation!been! 14" 50.0%" 50.0%" 0.0%"

provided?

If!yes,!is!the!equipment!available?

25" 48%" 52%" 0.0%"

!


These!numbers!do!not!adequately!reflect!the!frustration!of!families.!In!some!cases!the!


adaptations!or!equipment!had!not!been!ordered.!In!another,!a!family,!already!overwhelmed!


with!challenges!associated!with!providing!needed!support!to!their!loved!one,!was!directed!


by!the!case!manager!to!research!the!options!and!decide!the!equipment!to!purchase.!


Families!in!southwest!Virginia!reported!that!they!could!not!find!contractors!with!the!


required!worker’s!compensation!insurance.!Once!adaptations!or!equipment!were!

requested,!delays!were!common.!Requests!were!frequently!“pended”!for!additional!

information!or!changes!in!wording.!Examples!include:!

!

!

!

49!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 50 of 147 PageID# 4870

!! rejection!of!a!canopy!to!keep!away!inclement!weather!over!an!exposed!wheel!chair!
ramp!because!the!contractor!described!it!as!a!roof,!rather!than!a!covering;! ! rejection!of!a!building!supply!list!that!included!items!named!“deck!2X4s,”!to!be!used!
in!the!construction!of!a!wheelchair!ramp,!because!“decks”!are!not!allowed;!and! ! repeated!delays!followed!by!approval!of!outdoor!construction!in!midODecember!
with!too!little!time!to!complete!construction,!as!required,!within!the!calendar!year.!!
! A!common!thread!to!concerns!was!the!lack!of!DMAS!guidelines!describing!the!path,!the!
 criteria,!or!the!expected!time!for!each!step!in!the!approval!process.!Some!families!reported!
 that!the!same!request!was!approved!when!resubmitted!because!a!different!staff!processed!
 it.!Case!managers!described!a!lack!of!consistency!and!uniformity!in!DMAS!decisionOmaking!
 related!to!adaptive!equipment!and!environmental!modifications.!
 !
 Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&

!

M.&&&&&&&&Community&Living&Options&

&
 “The!Commonwealth!shall:!
& facilitate!individuals!receiving!waiver!services!under!this!agreement!to!live!in!their!own!
 home,!leased!apartment,!or!family’s!home!
 !
 provide!information!and!make!appropriate!referrals!for!individuals!to!apply!for!rental!
 or!housing!assistance!and!bridge!funding!
 !
 Within!365!days!develop!a!plan!to!increase!access!to!independent!living!options!
 !
 Within!365!days…establish!and!begin!distributing,!from!a!oneLtime!fund!of!$800,000!to!
 provide!and!administer!rental!assistance!
 !
 The!plan!will!be!developed!under!the!direct!supervision!of!a!dedicated!housing!service!
 coordinator!for!DBHDS!and!in!cooperation!with…”!other!Virginia!agencies!including!the!
 Virginia!Board!for!People!with!Disabilities!(Section!III.D.).”!

& The!Commonwealth!completed!and!submitted!“Virginia’s!Plan!to!Increase!Independent!
 Living!Options”!(Housing!Plan)!on!March!6,!2013,!to!comply!with!the!Agreement’s!
 provision!requiring!a!Housing!Plan!within!365!days.!The!purpose!of!the!Housing!Plan!is!to!
 “facilitate!individuals!receiving!HCBS!waivers…to!live!in!their!own!home!or!leased!
 apartment…”.!
 !
 DBHDS!reported!that!its!Housing!Specialist,!working!with!the!Interagency!Housing!
 Committee,!developed!the!Housing!Plan.!The!Plan!sets!forth!five!major!goals!with!nine!
 strategies!and!actions!to!achieve!the!objectives!established!in!the!Agreement.!The!Housing!
 Plan!also!provides!a!demographic!profile!of!the!intended!population!of!individuals!with!
 ID/DD,!and!other!baseline!information!regarding!the!number!of!individuals!who!are!


!

50
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 51 of 147 PageID# 4871

projected!to!choose!these!options.!The!Plan!estimates!that!2,530!individuals!with!ID/DD!
might!choose!independent!living!in!FY!2014!and!FY!2015.!!
!
DBHDS!reported,!“the!Housing!Plan!seeks!to!make!available!more!independent!living!
options”!as!a!result!of:!!
! ! increased!development!of!affordable!and!accessible!rental!units,!! ! improvements!in!federal!and!state!funding!and!eligibility!policies,!! ! the!design!and!assessment!of!a!new!approach!to!rental!assistance,!and!! ! increased!understanding!and!promotion!of!independent!living...”!
!!
The!implementation!of!the!Housing!Plan!goals!and!strategies!will!be!administered!by!
DBHDS,!and!coordinated!and!advised!by!the!Interagency!Housing!Committee.!The!Housing!
Plan!states,!“to!ensure!success,!these!agency!representatives!are!committed!to!coordinating!
their!resources,!engaging!local!and!state!partners!to!advance!the!implementation!of!the!
plan,!and!tracking!and!analyzing!results!for!increased!efficiency!and!impact.”! !
 It!is!the!Reviewer’s!opinion!that!the!Commonwealth!has!substantially!complied!with!the!
 requirement!of!the!Agreement!to!complete!a!plan!to!increase!access!to!independent!living!
 options.!Although!the!Reviewer!has!recommendations!to!strengthen!implementation!of!the!
 Plan,!it!provides!a!foundation!to!increase!independent!living!options.!Part!of!that!
 foundation!is!the!recognition,!“individuals!with!developmental!disabilities!can!live!fuller!
 lives!in!integrated!community!settings”!and!“affordable!housing!and!communityObased!
 support!services!are!keys!to!independence.”!!
 !
 The!Reviewer!has!evaluated!the!Housing!Plan!using!elements!of!the!State!Health!Authority!
 Yardstick!(SHAY).!It!is!a!rating!tool!developed!by!researchers!at!Dartmouth!University!to!
 review!states’!or!public!authorities’!ability!to!plan,!develop,!monitor,!and!evaluate!
 evidenceObased!practices!regarding!systems!development!and!program!implementation.!
 The!Housing!Plan,!and!its!development,!includes!several!characteristics!that!will!increase!
 the!likelihood!of!successful!implementation.!The!plan!was!developed!with!interagency!
 collaboration!that!involved!the!agencies’!leadership.!It!identifies!the!partners!and!specific!
 strategies!to!include!local,!state,!and!federal!agencies.!Communication,!training!and!a!
 coordinated!outreach!effort!are!included.!It!identifies!training!resources!among!the!
 agencies!that!developed!the!Plan.!The!Housing!Plan!was!developed!with!stakeholder!
 involvement!and!recognizes!the!important!role!of!Medicaid,!as!well!as!the!Commonwealth’s!
 housing!agencies.!!
 !
 The!Commonwealth’s!interagency!objective!to!apply!for!HUD’s!811!program!funding!is!a!
 positive!sign.!The!Commonwealth!will!receive!extra!points!(due!to!the!Agreement)!in!the!
 competition!with!other!states!for!these!funds.!The!811!program!requires!an!ongoing!
 collaborative!effort!and!offers!a!helpful!potential!resource!to!increase!rental!assistance!
 options!for!individuals!with!DD.!!

!
!
!

!

51!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 52 of 147 PageID# 4872

The!Housing!Plan!does!not!yet!include!two!elements!that!are!required!by!the!Agreement.!!
! 1. These!are!the!“recommendations!to!provide!access!to!these!settings!during!each!
year!of!the!Agreement.”!DBHDS!reports!that!it!will!estimate!the!number!of! individuals!who!have!access!“to!these!settings”!by!September!2013.!
2. Distributions!from!the!$800,000!rental!assistance!fund!did!not!begin!within!365!
days!of!the!Agreement.!A!recommended!action!item!in!the!Housing!Plan!is!to! explore!using!the!established!$800,000!rental!assistance!fund!as!part!of!“a!pilot!
rental!assistance!project!to!identify!and!assess!the!most!effective!way!to!provide!
affordable,!accessible,!and!high!quality!rentals!for!individuals!with!developmental! disabilities.”!
& It!is!the!Reviewer’s!opinion!that!the!Housing!Plan!lacks!elements!that!will!be!important!to!
effective!implementation:!These!missing!elements!include:!
! • an!agreed!upon!implementation!action!plan.!The!actions!items!in!the!Plan!are! referred!to!as!“recommended!actions”.!!!
! • identified!resources!to!complete!individual!action!items.!Each!item!currently!lists! “existing!resources.”!!It!would!be!helpful!for!the!resources!to!be!defined!and!
quantified.!! !
• interim!and!measurable!milestones!and!dates!for!most!action!items.!!This!is! indicated!by!the!lack!of!end!dates!for!approximately!half!of!all!action!items.!!!!
! • targets!and!measurable!outcomes!that!represent!a!meaningful!increase.!As! explained!below,!two!of!the!indicators!of!success!can!be!achieved!without!a!
significant!increase!in!access!to!independent!housing.!! ! The!Housing!Plan!was!developed!pursuant!to!a!“cost!neutral”!charge,!“using!existing!
 resources!or!savings!generated!through!implementation!of!the!Plan.”!It!is!not!clear!to!the!
 Reviewer!whether!the!“housing”!savings!related!to!downsizing!and!ending!residential!
 operations!of!Training!Centers!will!be!included!in!the!calculation!for!a!cost!neutral!
 approach.!
 !
 The!two!“indicators!of!success”!benchmarks!listed!below!may!be!achievable!without!
 achieving!a!significant!increase!in!the!number!of!people!who!access!independent!living.!!

! 1.!“A!five!percent!increase!each!year!in!the!number!of!individuals!who!are!new!to!the!
 waiver!requesting!inOhome!rather!than!congregate!services.”!!
 !
 2.!“A!ten!percent!increase!each!year!in!the!use!of!Medicaid!for!independent!living,!as!
 measured!by!the!increase!in!the!number!of!individuals!receiving!Medicaid!ID!or!DD!
 Waiver!services.”!

!

!

52!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 53 of 147 PageID# 4873

The!challenge!to!understanding!the!potential!impact!of!these!two!“indicators!of!success”!is!
 that!there!are!no!baseline!numbers!available.!Most!stakeholders!believe!that!a!very!small!
 number!of!individuals!with!ID!or!DD!Waiver!services!live!in!independent!housing!because!
 there!are!so!few!options!available.!The!Plan!explains!well!why!there!are!so!few.!The!
 problem!with!both!of!these!goals!is!that!a!five!or!ten!percent!increase!in!a!small!number!
 remains!a!small!number.!For!example,!if!twenty!(5.0%)!of!the!400!individuals!who!received!
 new!FY!2013!ID!Waiver!services!in!independent!housing!in!FY!2013,!then!a!5%!increase!
 would!result!in!an!increase!of!one!person!(20!X!1.05=21)!in!FY!2014.!There!are!eight!years!
 remaining!in!the!term!of!the!Agreement,!with!a!successful!5%!increase!annually!by!FY!2021!
 only!twentyOnine!out!400!individuals!would!receive!this!option.!The!ten!percent!increase!
 over!the!same!eightOyear!period!will!result!in!less!of!an!increase!to!the!percentage!of!
 individuals!living!independently.!That!result!occurs!because!the!number!of!individuals!with!
 waivers!will!increase.!!
 !
 There!are!two!other!problems!with!the!goal!to!increase!the!number!of!individuals!
 requesting!inLhome!services.!The!first!problem!is!that!an!increase!in!“requests”!that!are!not!
 fulfilled!does!not!indicate!that!a!desired!outcome!has!been!achieved.!The!second!is!that!
 DBHDS!reports!that!seventyOfive!percent!of!individuals!with!ID!Waivers!in!FY!2013!chose!
 to!receive!“inOhome”!services.!The!second!problem!is!that!an!increase!in!the!number!of!
 individuals!who!receive!inOhome!services!actually!indicates!other!factors.!It!primarily!
 indicates!that!a!large!percentage!of!children!received!ID!Waivers.!Living!at!home!is!the!
 option!of!choice!for!children!and!there!are!few!alternatives.!Based!on!feedback!to!the!
 Reviewer!from!older!families!living!with!an!adult!child!who!has!received!an!ID!waiver,!the!
 ‘choice’!to!receive!inOhome!services!frequently!indicates!either!a!lack!of!desirable!and!
 available!alternative!or!their!inability!to!figure!out!what!to!do.!An!increase!in!requests!for!
 inOhome!service!will!likely!be!a!misleading!indicator.!!
 !

Recommendation&
Complete!the!plan!to!use!and!begin!to!distribute!the!$800,000!rental!assistance,!and!report!
to!the!Reviewer!on!its!distribution!by!October!20,!2013.!
!
Refer!to!the!Section!VIII!on!page!62!and!63!for!the!additional!related!recommendations.!&
!
N.&&&&&&&FamilyOtoOFamily&and&Peer&Programs&
 &

“The!Commonwealth!shall!…coordinate!with!the!specific!type!of!community!providers! identified!in!the!discharge!plan…to!provide!individuals,!their!families…with! opportunities!to!speak!with…and!facilitate!conversations!and!meetings!with! individuals!currently!living!in!the!community!and!their!families,!before!being!asked!to! make!a!choice.! ! …develop!familyLtoLfamily!and!peer!programs!to!facilitate!these!opportunities!(Section! IV.9.b.).”!
&

!

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& The!Commonwealth!has!created!a!Family!Resource!Consultant!(FRC)!who!has!developed!a!
 Family!Mentor!Network.!This!program!is!intended!to!facilitate!family!members!of!Training!
 Center!residents!to!receive!coaching!on!and!support!with!the!process!of!making!the!
 transition!to!the!community.!The!coaching!and!support!will!be!provided!by!volunteer!
 family!members!who!have!successfully!made!the!transition!or!from!people!familiar!with!
 the!ID/DD!service!system.!The!program!is!not!currently!available!for!families!of!individuals!
 on!the!waitlists.!
 !
 DBHDS!reports!that!a!manual!for!training!and!providing!resources!to!mentors,!based!on!an!
 existing!model,!has!been!completed.!A!template!of!information!has!also!been!developed!
 and,!once!it!is!approved,!will!be!distributed!to!families!for!use!at!the!initial!PreOMove!
 Meeting.!A!referral!to!the!Family!Resource!Coordinator!will!be!made!as!recommended!by!
 the!individual’s!Personal!Support!Team!(PST)!or!the!family!may!self!refer.!
 !
 As!of!March!31,!2013,!the!Family!Mentor!Network!has!been!developed!and!trained!a!total!
 of!twelve!mentors!at!three!of!the!Training!Centers.!Five!families!have!accepted!family!
 mentor!services.!Two!families!who!have!been!referred!to!the!Family!Mentor!Network!have!
 refused!and!one!family!has!terminated!mentor!services.!At!the!Southside!Virginia!Training!
 Center!(SVTC),!the!Training!Center!slated!to!close!first,!two!mentors!have!been!trained!and!
 no!families!have!chosen!to!receive!coaching!on!and!support!with!the!process!of!making!the!
 transition!to!the!community.!DBHDS!reports!that!families!of!individuals!in!the!process!of!
 transitioning!from!the!training!centers!are!now!being!offered!services!by!the!Family!
 Mentor!Network.!
 !
 The!Commonwealth,!in!collaboration!with!a!statewide!advocacy!organization,!has!prepared!
 and!submitted!a!grant!application!to!receive!funding!to!establish!a!peerOtoOpeer!program.!!
 !
 The!Reviewer’s!opinion!continues!to!be!that!families!and!peers!who!have!successfully!made!
 the!transition!from!a!training!center!to!the!community!can!provide!helpful!information!and!
 insights!to!those!who!have!not.!The!Family!Mentor!Network!program!is!in!its!first!few!
 months!of!operations.!It!is!important!for!individuals!who!reside!at!the!training!centers!and!
 their!families!to!have!this!resource!available!to!them,!especially!at!the!SVTC!where!the!
 most!Authorized!Representatives!have!expressed!interest!in!considering!a!move!to!the!
 community!for!their!loved!one.!This!program!will!also!be!helpful!to!families!of!individuals!
 who!are!currently!on!the!wait!lists,!especially!when!individuals!receive!new!waiver!slots.!
 This!program!is!one!of!several!that!the!Parties!envisioned!to!help!resolve!barriers!to!
 moving!to!integrated!settings!in!the!community.!More!progress!is!needed!to!develop!a!
 robust!program!that!is!able!to!reach!more!families!and!individuals!during!the!next!review!
 period.!


!

!

! !


!

! !


!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 55 of 147 PageID# 4875

!
O.&&&&&&&Quality&and&Risk&Management&System&
&
“To!ensure!that!all!services!for!individuals!receiving!services!under!this!Agreement!are!of!good!
 quality,!meet!individuals’!needs,!and!help!individuals!achieve!positive!outcomes,!including!
 avoidance!of!harm,!stable!community!living,!and!increased!integration,!independence,!and!
 selfLdetermination!in!all!life!domains…and!to!ensure!that!appropriate!services!are!available!
 and!accessible!for!individuals!in!the!target!population,!the!Commonwealth!shall!develop!and!
 implement!a!quality!and!risk!management!system!(Section!V).”!
 !
 Several!provisions!of!the!Agreement!were!due!to!be!implemented!during!the!second!review!
 period.!The!Reviewer!monitored!the!workflow!of!the!project!teams!that!are!planning!and!
 implementing!new!programs!and!systems!to!meet!the!Agreement’s!Quality!and!Risk!
 Management!requirements.!He!held!inOdepth!meetings!with!the!DBHDS!Directors!of!Quality!
 Improvement!and!Licensure.!DBHDS!organized!a!drillOdown!session!with!the!project!team!
 leaders!to!present!the!status!of!their!work!and!to!allow!the!Reviewer!and!DOJ!to!ask!
 probing!and!followOup!questions.!!
 !
 Below!is!a!brief!update!on!each!Quality!and!Risk!Management!provision!that!was!due!as!of!
 March!6,!2013.!The!DBHDS!project!teams!are!also!developing!and!implementing!plans!
 related!to!provisions!of!the!Agreement!that!do!not!have!specific!due!dates!during!this!
 period.!The!Reviewer!has!monitored!that!work!as!well.!During!the!third!review!period!the!
 Reviewer!plans!to!retain!an!expert!consultant!to!evaluate!the!Commonwealth’s!work!and!
 progress!implementing!the!Quality!and!Risk!Management!System.!
 !
 “The!Commonwealth!shall…within!12!months!of!this!Agreement…have!and!implement!a! process!to!investigate!reports!of!suspected!or!alleged!abuse,!neglect,!critical!incidents,!or! deaths!and!identify!remediation!steps!(Section!V.C.3.).”!
!
DBHDS!has!established!a!reporting!and!investigation!process.!Information!about!
serious!injuries!and!critical!incidents!are!reported!and!promptly!shared!with!the!
Reviewer,!as!are!the!completed!investigations!and,!if!applicable,!Corrective!Action!
Plans.!! !
 “The!Commonwealth!shall!develop!measures!that!the!CSBs!and!other!community!provider!are!
 required!to!report!to!DBHDS!on!a!regular!basis,!either!through!their!risk!
 management/critical!incident!reporting!requirements!or!through!their!QI!program…The!
 Measures!will!be!monitored!and!reviewed!by!the!DBHDS!quality!improvement!committee,!
 with!input!from!the!Regional!Quality!Councils!(Section!V.E.2.).”!
 !

Providers!began!using!the!Computerized!Human!Rights!Information!System!(CHRIS)!in!
March!2013.!The!first!of!three!phases!began!on!March!27,!2013.!Phase!2!and!3!are!in!
development.!CHRIS!provides!critical!incident!data.!DBHDS!is!also!collecting!data!from!case!
managers!on!the!number,!type!and!frequency!of!visits!to!individuals.!DBHDS!Quality!

!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 56 of 147 PageID# 4876

Improvement!Committee!was!established!in!March!2013.!DBHDS!is!currently!recruiting!
and!hiring!staff!for!the!Regional!Quality!Councils.! !
 “…the!individual’s!case!manager!shall!meet!with!the!individual!faceLtoLface!at!least!every!
 thirty!days…for!individuals!who”!(meet!the!criteria!listed!in!the!Agreement)!
 !
 The!Commonwealth!shall!establish!a!mechanism!to!collect!reliable!data!from!the!case!
 managers!on!the!number,!type,!and!frequency!of!case!manager!contacts!with!the!individual!
 (Sections!V.F.1L6.).”!
 !
 Case!Management!guidelines!were!issued!to!CSB!ID!case!managers!and!to!DD!case!
 managers!in!December!2012.!The!guidelines!included!standards!for!implementing!
 enhanced!case!management!consistent!with!the!criteria!specified!in!the!Agreement!for!
 individuals!receiving!waiver!services!in!the!target!population!who!meet!specific!criteria.!
 !
 Although!there!are!new!requirements!for!gathering!and!recording!information,!the!biggest!
 challenge!has!been!complying!with!the!requirement!for!a!faceOtoOface!visit!every!thirty!
 days.!Some!of!the!CSBs!decided!that!it!was!easier!to!provide!enhanced!case!management!
 for!all!individuals!on!the!ID!waiver.!Others!decided!to!meet!the!standard!for!individuals!
 who!meet!one!or!more!of!the!criteria!in!the!Agreement.!!DBHDS!hired!a!Case!Manager!
 Coordinator!in!February!2013!to!assist!with!implementation!of!the!criteria!and!for!quality!
 assurance.!!
 !
 The!Assistant!Commissioner!for!Quality!Improvement!and!the!Case!Management!
 Coordinator!are!evaluating!implementation!statewide!to!determine!problems!that!need!to!
 be!addressed.!In!March!and!April!2013!they!visited!twentyOone!CSBs!to!obtain!feedback!
 about!the!impact!of!the!new!guidelines.!Visits!to!the!other!regions!are!planned!for!May!
 2013.!DBHDS!reported!to!the!Reviewer!what!they!have!learned!during!these!visits.!!CSBs!
 are!taking!different!approaches!to!meet!the!requirements.!These!approaches!include!hiring!
 new!staff,!reassigning!staff!to!case!management,!and!reducing!caseloads.!Some!case!
 managers!requested!that!a!guide!be!developed!to!help!them!when!conductin g!visits.!Some!
 case!managers!have!had!their!case!loads!rearranged!so!they!cover!a!smaller!geographic!
 area!to!reduce!travel!time.!
 !
 The!CSBs!have!made!changes!in!their!electronic!systems!to!collect!information!and!to!
 accommodate!the!new!requirements.!The!data!were!due!to!DBHDS!by!the!end!of!April.!
 Reports!will!be!evaluated!by!DBHDS!in!late!May!to!determine!progress!in!meeting!new!
 service!and!reporting!requirements.!
 !
 The!Reviewer!convened!three!focus!groups!to!hear!directly!from!case!managers!and!their!
 supervisors!about!this!effort.!Implementing!the!enhanced!case!management!standards!has!
 been!challenging!and!stressful!for!case!managers.!Several!changes!are!occurring!
 simultaneously.!These!include:!

!
! !


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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 57 of 147 PageID# 4877

! additional!faceOtoOface!visits,!! ! more!visits!happening!in!the!home!of!the!individual,!!! ! a!change!in!role!from!a!supporter!of!families!to!one!with!increased!monitoring,!! ! implementing!new!electronic!systems,!and!! ! increased!recordOkeeping!and!new!standards!for!case!management!notes.!! ! Case!managers!report!that!it!has!been!very!difficult!to!meet!the!new!standards!within!a! reasonable!workweek.!There!is!increased!work!required!for!each!person!on!their!case! loads.!!They!report!that!the!changes!have!caused!a!very!high!level!of!stress!and!some! unintended!and!undesirable!consequences.!!Some!families!object!to!the!increased!number! of!visits!and!monitoring!as!overly!intrusive.!Case!managers!report!that!it!is!difficult!to! spend!quality!time!with!the!individuals!on!their!case!loads!who!need!extra!support!because! they!must!visit!each!individual!each!month!including!those!whose!circumstances!are!stable! and!who!have!lived!for!many!years!with!families!or!service!providers!with!histories!of! providing!quality!services.!Others!described!the!dilemma!of!having!to!complete!paper!work! for!visits!to!individuals!who!are!in!good!situations,!rather!than!on!providing!needed! supports!to!those!who!are!not.!! ! CSBs!officials!informed!the!Reviewer!that!the!number!of!case!manager!positions!has!been! increased!to!reduce!caseloads!to!between!twentyOfive!and!thirty.!This!reduction!will!allow! more!time!to!fulfill!the!increased!requirements.!During!a!March!focus!group!with!ID!and! DD,!case!managers!reported!to!the!Reviewer!having!caseloads!of!between!thirty!and!forty! individuals.!The!case!loads!were!reported!to!remain!high,!in!part,!due!to!vacancies!that! needed!to!be!filled.!!! ! Based!on!input!from!case!managers!in!three!focus!group!meetings!with!the!Reviewer,!case! managers!hope!that:! ! ! there!will!be!flexibility!with!the!fiveOday!grace!period!for!faceOtoOface!visits,!! ! a!clear!and!reasonable!time!limit!will!be!set!for!how!long!a!family!can!choose!to!keep!
the!same!case!manager!when!their!family!moves!to!another!part!of!the!state,!and!! ! caseload!standards!will!be!established!so!there!is!sufficient!time!to!fulfill!new!
responsibilities!and!to!comply!with!the!enhanced!case!management!guidelines.! ! In!the!experience!of!the!Reviewer!the!case!manager’s!role!is!different!from!all!other! services.!It!is!the!core!service,!the!hub!of!the!system,!for!individuals!and!their!families.!Case! managers!help!them!to!understand!how!the!system!works!and!to!navigate!the!system.!Case! managers!assist!them!to!access!the!services!needed!to!achieve!successful!outcomes.!Then! case!managers!monitor!the!performance!of!the!services!provided,!ensure!periodic! reassessments,!and!reconvene!the!individual’s!support!team!to!modify!the!support!plan,!as! needed.!! ! DBHDS!plans!to!continue!the!evaluation!it!began!in!April!to!learn!how!successful!CSBs!and! case!managers!have!been!meeting!new!service!and!reporting!requirements.!!Additional! visits!to!three!regions!are!planned.!Reports!from!data!collected!will!be!available!in!May.!

!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 58 of 147 PageID# 4878
The!information!gathered!will!be!compiled!and!analyzed!to!determine!where!problems!
 exist.!!
 !
 It!is!the!Reviewer’s!opinion!that!the!DBHDS!evaluation!is!important!in!making!future!
 improvements.!Hearing!from!the!CSBs!and!the!ID!and!DD!case!managers!directly!and!
 reviewing!related!data!will!help!identify!the!core!challenges!of!complying!with!the!new!
 requirements.!As!problems!are!identified,!strategies!and!an!action!plan!may!be!needed!to!
 improve!the!ability!of!case!managers!to!provide!reliable!services!consistent!with!the!terms!
 of!the!Agreement.!

! !
 !“The!Commonwealth!shall!have!and!implement!a!process!to!conduct!more!frequent!licensure! inspections!of!community!providers!serving!individuals!under!this!Agreement,!including!(six! criteria!are!listed!in!Section!V.G.2.a.Lf.).”! !
 The!Office!of!Licensure!implemented!protocols!for!conducting!more!frequent!licensure!
 visits!as!of!March!6,!2013.!Draft!guidelines!have!been!developed!and!shared!with!the!
 Reviewer.!The!guidelines!are!under!review!and!will!be!published.!

! !

VI.&& ADDITIONAL&INFORMATION&AND&CONSIDERATIONS! &

!
 The!DBHDS!Office!of!Licensure!fills!a!vital!role!in!the!Commonwealth’s!service!system.!Its!
 job!is!to!monitor!and!oversee!the!adequacy!and!quality!of!service!providers.!Service!
 systems!that!provide!quality!services!have!effective!mechanisms!to!monitor!performance.!
 They!also!have!effective!tools!to!recognize!providers!who!consistently!exceed!regulatory!
 standards!and!tools!to!hold!underperforming!providers!accountable.!
 !
 It!is!important!to!note!that!the!Reviewer!and!his!expert!consultants!have!met!and!observed!
 many!excellent!service!providers!and!dedicated!qualified!staff.!!These!organizations!and!
 individuals!have!often!devoted!their!lives!to!the!wellObeing!and!growth!of!individuals!with!
 ID/DD.!They!have!found!creative!ways!to!enhance!skills!and!to!ensure!meaningful!
 participation!in!the!community.!
 !
 During!the!past!year,!representatives!of!all!stakeholder!groups!have!expressed!concerns,!
 however,!about!“marginal”!service!providers.!These!concerns!have!been!heard!from!
 individuals!served,!family!members,!case!managers,!and!service!providers!(“when!their!
 mistakes!are!reported!in!newspapers,!they!make!us!all!look!bad”).!Marginal!service!
 providers!are!those!who!lack!the!core!competencies!and!internal!systems!to!consistently!
 deliver!services!that!meet!standards.!Stakeholders!and!officials!have!shared!that,!
 historically,!the!requirements!to!become!a!licensed!provider!have!been!relatively!easy!to!
 meet.!Consultants!have!also!been!available!to!fill!out!the!required!paperwork!for!applicants!
 who!lack!knowledge!and!experience.!!
 !


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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 59 of 147 PageID# 4879

When!the!Reviewer!has!shared!this!perception!in!various!stakeholder!group!meetings,!
 most!nod!in!agreement.!Rarely!is!the!point!argued.!The!only!argument!has!been,!“many!
 years!without!rate!increases!to!offset!the!impact!of!inflation!have!eroded!the!capacity!of!
 service!providers.”!That!concern!is!valid.!One!major!impact!of!longOterm!flat!funding!is!on!
 human!service!workers.!When!wage!levels!remain!flat!for!many!years,!qualified!and!
 experienced!employees!look!for!alternative!employment!that!allows!them!to!more!
 effectively!support!their!families.!Although!there!are!many!factors,!stagnant!wage!levels!
 contribute!to!high!staff!turnover!and!reduced!ability!to!recruit!qualified!staff.!This!is!
 especially!true!in!areas!where!there!is!a!high!cost!of!living,!where!there!is!low!
 unemployment,!and!in!rural!areas!where!workers!must!drive!long!distances!with!high!
 transportation!costs!to!earn!low!wages.!!

!
Based!on!the!Reviewer’s!experiences,!flat!funding!does!erode!the!capacity!of!programs!and!
the!service!system!to!provide!quality!supports!over!time.!There!are!other!significant!
factors,!however,!that!that!have!been!reported!to!the!Reviewer!by!stakeholders!and!
officials!that!contribute!to!the!presence!of!marginal!providers.!Two!factors!are:!
!
1.!!!it!has!been!too!easy!to!become!a!service!provider;!and!
2.!!!the!DBHDS!Office!of!Licensure!does!not!have!effective!tools!to!hold!accountable!the!
providers!who!are!not!able!to!consistently!meet!program!standards.!
!
For!providers!who!do!not!meet!regulatory!standards,!the!Office!of!Licensure!has!authority!
to!deliver!three!types!of!consequences.!They!are:!
!
1.!!!to!require!Corrective!Action!Plans,!
2.!!! to!reduce!the!provider’s!licensure!status,!or!
3.!!! to!revoke!a!provider’s!license.!
! In!addition,!under!circumstances!identified!and!pursuant!to!the!Virginia!code,!the!
 Commissioner!of!DBHDS!is!authorized!to!revoke,!suspend,!or!deny!a!license!for!any!
 violation!of!the!Licensing!Regulations.!The!Commissioner!may!also!issue!an!order!of!
 summary!suspension!of!a!residential!facility!or!issue!a!special!order!for!a!violation!of!any!
 provision!of!the!Licensing!Regulations!or!the!Human!Rights!Regulations.!The!special!order!
 may!impose!sanctions.!
 !
 It!has!also!been!very!rare!for!the!Office!of!Licensure!to!either!reduce!the!status!of!a!
 provider’s!license!to!provisional!status!or!to!revoke!a!license.!The!Office!of!Licensure!has!
 the!authority!to!fine!providers,!for!example,!for!not!fulfilling!responsibilities!agreed!to!in!a!
 Corrective!Action!Plan.!The!Office!of!Licensure!reports!that!such!authority!has!been!used,!
 but!not!within!the!ID!service!system.!The!Commonwealth!reported!that!there!has!not!been!
 either!a!summary!suspension!or!a!special!order!issued!during!the!second!review!period.!
 !
 The!Office!of!Licensure!reports!that!it!uses!communication!to!hold!providers!accountable.!
 The!Office!of!Licensure!posts!its!completed!investigations!on!the!DBHDS!website!which!are!
 then!available!to!the!public.!Most!importantly,!they!are!available!to!families!of!loved!ones!
 who!are!currently!served!by!the!provider!or!who!are!considering!using!the!provider.!When!


!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 60 of 147 PageID# 4880

investigations!raise!serious!concerns,!the!Office!of!Licensure!reports!that!it!notifies!case!
 managers!of!the!issues!raised!and!encourages!them!to!share!this!information!with!the!
 families!and!guardians!of!the!individuals!served.!DBHDS!reports!that!such!communication!
 with!families!leads!to!many!transferring!their!loved!ones!to!another!service!provider.!As!a!
 result,!the!provider!frequently!loses!revenue!when!guardians!decide!to!move!their!loved!
 ones!to!other!programs.!Making!information!about!provider!investigations!public!is!
 positive,!as!is!sharing!such!information!with!families.!However,!such!communication!
 should!not!be!used!because!other!accountability!mechanisms!are!not!workable.!Licensure!
 tools!that!are!used!effectively!can!prevent!substandard!performance!and!keep!individuals!
 and!families!from!being!placed!in!difficult!positions.!
 !
 The!Office!of!Licensure!has!tools!to!recognize!providers!that!consistently!exceed!
 performance!standards.!Among!these!tools!is!the!authority!to!increase!the!status!of!a!
 provider’s!license,!and!as!a!result!to!reduce!program!monitoring!visits.!
 !
 Providers!are!recognized!for!demonstrating!ongoing!compliance!with!Licensing!
 Regulations!when!they!are!granted!a!twoOyear,!or!the!highest!level,!a!threeOyear!(triennial)!
 license.!!A!full!multipleOyear!license!is!determined!and!granted!at!the!sole!discretion!of!the!
 Commissioner.!!Providers!welcome!such!recognition!because!it!enhances!their!reputation!
 for!providing!reliable!and!dependable!services.!It!may!also!provide!increased!confidence!
 for!families!when!they!are!choosing!a!provider!to!support!their!loved!ones.!As!a!result!of!
 demonstrating!a!record!of!providing!ongoing!quality!services!and!being!awarded!a!full!
 multipleOyear!license,!the!level!of!oversight!and!monitoring!can!be!and!is!reduced.!
 !
 DBHDS!reports!that!there!are!586!providers!of!services!for!individuals!with!ID!in!Virginia,!
 and!that!since!the!Agreement!was!signed:!!

! ! !four!providers!of!services!to!individuals!with!ID!have!had!their!group!home!licenses!!!

reduced!to!provisional!status!(one!out!of!every!146!providers).!! ! !no!licenses!have!been!revoked,!and!! ! !no!fines!have!been!issued.!!
!
It!is!the!Reviewer’s!opinion!that!the!continued!presence!of!marginal!providers!is!not!
because!of!the!number!of!Licensing!Specialists,!the!number!of!unannounced!visits,!the!
promptness!of!responses!to!concerns,!or!the!quality!of!investigations.!!The!number!of!
licensing!specialists!has!more!than!doubled!in!the!past!four!years,!and!has!increased!by!
50%!since!the!Agreement!began.!The!number!of!supervisors!and!back!room!staff!
supporters!has!also!increased.!As!a!result,!the!number!of!onOsite!and!unannounced!visits!to!
programs!has!increased!significantly.!More!frequent!and!intense!monitoring!has!occurred.!
DBHDS!reports!that!Corrective!Action!Plans!are!also!being!issued!more!frequently!and!
implementation!is!being!monitored!more!closely.!The!Reviewer!has!found!that!when!there!
has!been!a!critical!incident,!an!unannounced!visit!typically!happens!within!twentyOfour!to!
fortyOeight!hours.!The!subsequent!investigations!have!generally!been!completed!in!a!
thorough,!thoughtful,!and!timely!manner.!!
!

!

60
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 61 of 147 PageID# 4881

Based!on!information!reported,!it!is!the!opinion!of!the!Reviewer!that!the!continued!
 presence!of!marginal!providers!is!because!regulations!historically!set!a!low!standard!to!
 qualify,!and!because!the!Office!of!Licensure!rarely!uses!three!accountability!consequences!
 for!substandard!performance.!
 !
 If!the!Office!of!Licensure!recommends!a!consequence!for!substandard!performance!that!
 interferes!with!a!provider’s!ability!to!do!business,!then!the!Virginia!Administrative!Process!
 Act!must!be!followed.!Doing!so!involves!an!arduous,!lengthy!and!timeOconsuming!process.!
 During!that!process,!the!Office!of!Licensure!must!base!its!evidence!of!substandard!
 performance!on!the!failure!of!the!provider!to!comply!with!regulations!or!to!effectively!
 implement!Corrective!Action!Plans.!However,!regulations!are!reported!to!set!low!
 standards,!to!be!broadly!written,!to!be!too!vague!to!be!effectively!enforced,!and!to!have!not!
 kept!up!with!changes!in!the!field!of!practice.!!
 !
 DBHDS!reports!that!there!are!approximately!one!hundred!current!applicants!to!become!
 licensed!providers!in!the!Commonwealth.!To!better!understand!the!existing!process,!the!
 Reviewer!interviewed!a!national!service!provider!who!has!recently!completed!the!process!
 to!become!a!licensed!provider!in!Virginia.!The!process!involved!many!steps!and!took!nearly!
 a!year!to!complete.!The!applicant,!an!experienced!national!provider,!found!that!the!process!
 helped!them!refine!some!written!policies.!This!is!evidence!that!DBHDS!has!made!the!
 application!review!and!screening!process!more!stringent!and!demanding.!This!will!help!
 ensure!that!new!providers!in!Virginia!are!fully!qualified.!However,!the!foundation!of!this!
 more!stringent!process!continues!to!be!the!existing!regulations.!They!are!not!as!helpful!as!
 they!should!be!in!setting!wellOdefined!and!clear!standards.!!
 !

!
VII.& CONCLUSION:&
&
During!the!second!review!period!many!action!plans!were!developed!and!programs!
implemented.!Many!new!programs!and!systems!are!being!designed,!planned,!and!
implemented!simultaneously.!The!Agreement!was!designed!to!accomplish!a!great!deal!
during!the!first!two!years.!
!
The!Reviewer!prioritized!monitoring!progress!toward!overarching!goals!of!the!Agreement,!
progress!of!initiatives!that!were!planned!or!implemented!during!the!first!review!period,!
and!the!provisions!that!had!due!dates!during!this!period.!!
!
The!Commonwealth!has!made!significant!progress.!This!has!been!challenging,!however,!
and!there!have!been!significant!delays!and!“growing!pains”!in!some!areas.!!
!
The!Reviewer!looks!forward!to!the!next!phase!of!the!Agreement!during!which!
implementation!of!several!new!programs!and!systems!will!occur!and!the!status!of!others!
will!be!evaluated!and!refined.!These!efforts!will!take!another!important!step!toward!
compliance!with!and!achieving!the!goals!of!the!Agreement.!
&
&

!

61
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 62 of 147 PageID# 4882

& VIII.& RECOMMENDATIONS& & Based!on!the!findings!in!this!report,!the!Reviewer!recommends!that!the!Commonwealth! consider!the!following:! ! Resolving!Barriers! & 1. In!each!region,!the!Commonwealth!should!determine!the!service!gaps!between!the!
services!that!are!currently!available!and!the!estimate!of!the!current!and!future!needs!of! the!target!population.!The!gaps!identified!should!include!congregate!residential!and! supported!apartment!programs!for!fewer!than!five!individuals,!integrated!day!options! including!individual!and!group!supported!apartments,!clinical!services!including! behavioral!support!and!skilled!nursing,!and!agency!directed!inOhome!services.!!For!each! region!where!gaps!are!identified,!the!Commonwealth!should!develop!a!strategy!and!a! action!plan!to!expand!the!array!of!needed!programs.! !!! Crisis!Services!and!Prevention! ! 2.!!!The!training!of!CSB!Emergency!Services!staff!to!familiarize!them!with!the!START! program!and!to!train!them!on!clinical!assessment!of!individuals!with!ID!should!be! scheduled!as!soon!as!possible!in!each!region.!Attendance!should!be!required!of!all!CSB! ES!staff!within!a!year.!! ! 3. All!regions’!CIT!training!should!have!standardized!information!about!START!and! working!with!individuals!with!ID/DD!in!crisis.!!That!information!should!include!content! about!working!with!individuals!with!Autism!Spectrum!Disorders.! & 4.!!!!DBHDS’s!outreach!to!law!enforcement!should!include!discussion!of!how!best!to!link! people!with!ID/DD!with!START!before!incarceration!occurs.!Arrangements!should!be! made!for!START!to!provide!consultation!for!individuals,!who!have!a!mental!health! diagnosis,!to!better!assure!appropriate!medical!and!clinical!care!while!in!jail!and!to! assist!with!discharge!planning.& ! 5.!!!!All!DD!case!managers!should!receive!basic!training!to!ensure!awareness!of!START! services!and!how!to!make!referrals.! ! 6.!!!!DBHD!should!consider!forming!a!workgroup!to!determine!when!training!should!be! required!of!residential!and!day!providers.!Training!may!be!needed!to!assure!that! providers!can!be!effective!partners!in!the!coordination!of!the!followOup!services!the! individual!will!need!to!maintain!their!home!and!other!services.! ! 7.!!!!DBHDS!and!DMAS!should!review!and!determine!if!bridge!funding!can!be!provided!to! make!sure!that!a!person’s!residence!is!available!to!them!when!they!have!been!stabilized! out!of!the!home!and!are!ready!for!discharge.! !

!

62!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 63 of 147 PageID# 4883

8.!!!!DBHDS!should!review!and!determine!whether!written!policies!and!procedures!are!
 needed!to!establish!clear!protocols!to!guide!the!implementation!of!START!services!
 given!the!decentralized!nature!of!the!services!system.!The!policies!should!include:!
 !
 • the!expectations!of!START!teams!to!collaborate!and!consult!in!planning!for!eligible! people!in!the!State!Hospitals!and!those!moving!from!the!Training!Centers,! • guidelines!for!medical!screenings!prior!to!admission!to!the!START!crisis!
 stabilization!units,!
 • the!need!to!quickly!assign!case!mangers!to!individuals!eligible!for!ID!or!DD!waiver! services!when!they!experience!a!crisis!and!are!referred!to!START,!and! • the!relationship!between!the!ES!Teams!and!START!Services!regarding!the!training! expectations!for!ES!personnel.! !
Access!and!Availability!of!Services! ! 9. New!guidelines!for!ID!and!DD!waiver!and!other!services!should!be!broadly!
disseminated!to!agencies.!These!should!include!schools,!pediatric!and!family!medical! practices,!and!other!agencies!that!support!children!and!youth.! ! 10.!DBHDS!and!DMAS!should!solicit!input!on!needed!modifications!to!the!guidelines!from! users!(eg.!individuals,!families!and!ID!and!DD!case!managers),!especially!those!who! used!the!guidelines!during!the!prior!year.! ! Community!Living!Options! ! 11.!To!effectively!implement!the!Housing!Plan,!the!Commonwealth!should!develop!the! capacity!and!determine:!! ! ! the!baseline!data!of!the!number!of!individuals!with!the!ID!waiver!who!lived!in!
Independent!housing!during!FY!2013.!! ! ! the!total!number!of!individuals,!and!the!number!of!new!individuals,!on!the!ID!and!
DD!Waivers,!who!access!rental!subsidies!annually! ! ! the!number!of!individuals!who!live!in!their!families’!or!relatives’!homes!and!receive!
“inOhome”!residential!services!should!be!tracked!separately!from!those!who!live!in! their!own!home!or!leased!apartment.!! ! Quality!and!Risk!Management! ! 12.&The!Commonwealth!should!consider!developing!more!efficient,!timely,!and!effective! mechanisms!to!recognize!providers!for!exceeding!performance!standards,!as!well!as,!to! hold!providers!accountable!for!failure!to!meet!standards!or!for!not!effectively! implementing!Corrective!Action!Plans.!! !

!

63!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 64 of 147 PageID# 4884

!
Respectfully!Submitted;! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

! ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!Donald!J.!Fletcher!
!!Independent!Reviewer! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!June!6,!2013!
! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !
!
!
&
&
&
&
&
&

!

64
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 65 of 147 PageID# 4885

&
! ! ! ! ! !
! ! ! ! ! ! ! !

& & & & & & & & & & & IX.&APPENDICES&
& A. INDIVIDUAL&REVIEWS&O&SELECTED&TABLES&
& B. CRISIS&SERVICES&REQUIREMENTS&&
& C.&EMPLOYMENT&SERVICES&REQUIREMENTS&

!

!

!

65
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 66 of 147 PageID# 4886

&
 &
 &
 &
 &
 &
 &
 &
 &
 &
 &
 &
 &
 APPENDIX&A.&
 &
 INDIVIDUAL&REVIEWS&O&SELECTED&TABLES&


Fiscal!Year!2013!

!

!

!

!

66
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 67 of 147 PageID# 4887

APPENDIX&A.&
 &

INDIVIDUAL&REVIEWS&O&SELECTED&TABLES&


Fiscal!Year!2013!

!

Demographic&information&
!

Sex&& Male!22!(75.9%)! Female!7!(24.1%)!! ! Regions& 2!–!15!(51.7%)!
 3–!14!(48.3%!
!
 Age&ranges! less!than!21!years!old! 21!to!30! 31!to!40! 41!to!50! 51!to!60! 61!to!70!

n&

%&

13"

44.8%"

10"

34.5%"

1"

3.4%"

2"

6.9%"

2"

6.9%"

1"

3.4%"

! ! Levels&of&Mobility! Ambulatory!without!support! Ambulatory!with!support! Uses!wheelchair! Total!assistance! Confined!to!bed!

n&

%&

13"

44.8%"

6"

20.7%"

8"

27.6%"

1"

3.4%"

1"

3.4%"

! ! Highest&Level&of&Communication!
Spoken!language,!fully!articulates!without!assistance!
Limited spoken language, needs some staff support! Communication device! Gestures! Vocalizations!
Facial Expressions
Other! !
&

n&

%&

9"

31.0%"

3"

10.3%"

2"

6.9%"

5"

17.2%"

3"

10.3%"

7"

24.1%"

0"

0.0%"

!

67!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 68 of 147 PageID# 4888

&
 &

TABLE A

Discharge&Planning&Items

Item

n

Did!discharge!occur!within!six!weeks!after!completion!of! 3

trial!visits?&

Was!provider!staff!trained!in!the!individual!support!plan! 3"

protocols!that!were!transferred!to!the!community?!

Did!the!individual!and,!if!applicable,!his/her!Authorized! 3"

Representative!participate!in!discharge!planning?!

Was!the!discharge!plan!updated!within!30!days!prior!to! 3"

the!individual’s!transition?!

Was!it!documented!that!the!individual,!and,!if!applicable,! 3"

his/her!Authorized!Representative,!were!provided!with!

information!regarding!community!options?!!

Did!personOcentered!planning!occur?!

3"

Were!essential!supports!described!in!the!discharge!

3"

plan?!

Did!discharge!occur!within!six!weeks!after!completion!of! 3"

trial!visits?&!

!

"

Did!the!PostOMove!Monitor,!Licensing!Specialist,!and!

3

Human!Rights!Officer!conduct!postOmove!monitoring!

visits!as!required?

Were!all!essential!supports!in!place!before!the!

3"

individual!moved?

Were!all!medical!practitioners!identified!before!the!

3"

individual!moved,!including!primary!care!physician,!

dentist!and,!as!needed,!psychiatrist,!neurologist!and!

other!specialists?

Was!provider!staff!trained!in!the!individual!support!plan! 3

protocols!that!were!transferred!to!the!community?

Have!any!identified!concerns!been!resolved?!!

3"

Y 100.0% 100.0%" 100.0%" 100.0%" 100.0%"
100.0%" 100.0%" 100.0%"
" 100.0%
100.0%" 100.0%"
100.0% 66.7%"

& & &
TABLE B

Individual&Support&Plan&Items&–&adults

Item

n

Y

Has!the!individual!been!provided!with!opportunities!

14" 14.3%"

for!an!informed!choice!regarding!supported!

employment,!including!goals!and!services!that!will!lead!

to!supported!employment?

Have!any!barriers!to!employment!been!identified?

13 7.7%

Was!placement,!with!supports,!in!affordable!housing,!

12 0.0%

including!rental!or!housing!assistance,!offered?

& &

N 0.0% 0.0%" 0.0%" 0.0%" 0.0%"
0.0%" 0.0%" 0.0%"
" 0.0%
0.0%" 0.0%"
0.0% 33.3%"
N 85.7%"
92.3% 100.0%

CND 0.0% 0.0%" 0.0%" 0.0%" 0.0%"
0.0%" 0.0%" 0.0%"
" 0.0%
0.0%" 0.0%"
0.0% 0.0%"
CND 0.0%"
0.0% 0.0%

!

68!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 69 of 147 PageID# 4889

TABLE C

Individual&Support&Plan&Items

Item

n

If!this!individual!is!not!competent!to!make!medical!

26

decisions,!is!there!a!guardian!or!Authorized!

Representative?!

Is!there!evidence!of!personOcentered!!

29"

(i.e!individualized)!planning?!!!

Do!the!individual’s!desired!outcomes!relate!to!his/her!

29

talents,!preferences!and!needs!as!identified!in!the!

assessments!and!his/her!individual!support!plan?!

Are!essential!supports!listed?!

29"

Is!the!individual’s!support!plan!current?!

29

Does!the!individual’s!support!plan!address!barriers! 29"

that!may!limit!the!achievement!of!the!individual’s!

desired!outcomes?!!

Has!the!individual’s!support!plan!been!modified!as!

12"

necessary!in!response!to!a!major!event!for!the!person,!if!

one!has!occurred?!!

&
&
TABLE D

Y 96.2%
93.1%" 89.7%
86.2%" 89.7%
72.4%"
50.0%"

N 3.8%
6.9%" 10.3%
13.8%" 10.3%
27.6%"
50.0%"

CND 0.0%
0.0%" 0.0%
0.0%" 0.0%
0.0%"
0.0%"

Individual&Support&Plan&Items&–&Employment/Integrated&Day&O&adults

Item

n

Y

N

If!applicable,!were!employment!goals!and!supports!

15 13.3% 86.7%

developed!and!discussed?!

If!yes,!were!they!included?

2" 50.0%" 50.0%"

If!not!discussed!or!not!included,!were!integrated!day!

14" 28.6%" 64.3%"

opportunities!offered?

Does!typical!day!include!regular!integrated!activities?

13 23.0% 69.2%

& &
TABLE E

CND 0.0%
0.0%" 7.1%"
7.7%

Individual&Support&Plan&–&Adaptive&Environment/Equipment&O&Items&

Item

n

Y

N

CND

Does!the!individual!require!an!adapted!

29 86.2% 13.8% 0.0%

environment!or!adaptive!equipment?

If!yes,!has!all!the!adaptation!been!provided?

14" 50.0%" 50.0%" 0.0%"

If!yes,!is!the!equipment!available?

25" 48.0%" 52.0%" 0.0%"

Is!the!equipment!in!good!repair!and!functioning! 22" 95.5%" 4.5%" 0.0%"

appropriately?!!

Has!the!equipment!been!in!need!of!repair!more!

1" 100%" 0.0%" 0.0%"

than!30!days?

Has!anyone!acted!upon!the!need!for!repair?

1" 0.0%" 100.0%" 0.0%"

Is!staff!knowledgeable!and!able!to!assist!the!

21" 100.0%" 0.0%" 0.0%"

individual!to!use!the!equipment?!!

Is!staff!assisting!the!individual!to!use!the!

21 100.0% 0.0% 0.0%

equipment!as!prescribed?!!!!!!!!!!!!!!!

!

69
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 70 of 147 PageID# 4890

&
 &
 &

TABLE F

Individual&Support&Plan&Items

Item

n

Y

Is!the!individual!receiving!supports!identified!in! his/her!individual!support!plan?&
Residential Medical Dental Health
Day/Employment Recreation
Mental!Health Transportation Communication/assistive!technology

29" 100.0%" 28" 100.0%" 28" 89.3%" 28" 96.4%" 28" 81.5%" 27" 89.3%" 15" 66.7%" 28" 96.4%" 13 69.2%

&

&

& &

& TABLE G

Individual&Support&Plan&Items

Item

n

Does!the!individual’s!support!plan!reflect!specific!

29

staffing!levels!for!support!of!this!individual?

If!yes,!were!those!staffing!levels!in!place!during!the! 15"

review?

Is!the!staff!working!with!the!individual!as!detailed! 26"

(consider!the!individual’s!Behavior!Support!Plan!or!

ISP!regarding!the!level!of!support!needed)?

Is!there!evidence!the!staff!has!been!trained!on!the! 29"

desired!outcome!and!support!activities!of!the!

individual’s!support!plan?!!

Is!residential!staff!able!to!describe!the!individual’s! 28"

likes!and!dislikes?!!!

Is!residential!staff!able!to!describe!the!individual’s! 28"

talents/contributions,!preferences!and!

weaknesses?!

Is!residential!staff!able!to!describe!the!individual’s! 28

health!related!needs!and!their!role!in!ensuring!that!

the!needs!are!met?

Y 51.7% 93.3%" 96.2%"
93.1%"
96.4%" 96.4%"
96.4%

&

N
0.0%" 0.0%" 10.7%" 3.6%" 18.5%" 10.7%" 33.3%" 3.6%" 30.8%
N 48.3% 0.0%" 3.8%"
3.4%"
0.0%" 0.0%"
0.0%

CND
0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%
CND 0.0% 6.7%" 0.0%"
3.4%"
3.6%" 3.6%"
3.6%

!

70!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 71 of 147 PageID# 4891

&

& TABLE H

Environmental&O&Hygiene&Items

Item

n

Is!the!individual’s!residence!clean?!!!!

26

Does!the!individual!appear!well!kempt?!!!!

28"

&


&


&


TABLE I

Y 92.3% 93.9%"

Item

Healthcare&Items n

If!ordered!by!a!physician,!was!there!a!current!

13"

physical!therapy!assessment?!!

If!ordered!by!a!physician,!was!there!a!current!

14

occupational!therapy!assessment?

If!ordered!by!a!physician,!was!there!a!current!

11"

psychological!assessment?

If!ordered!by!a!physician,!was!there!a!current!

11"

speech!and!language!assessment?

If!ordered!by!a!physician,!was!there!a!current!

9"

nutritional!assessment?

Were!any!other!relevant!medical/clinical!

29"

evaluations!or!assessments!recommended?

Are!there!needed!assessments!that!were!not!

29

recommended? &
 &
 &


TABLE J

Y 76.9%" 85.7% 81.8%" 90.9%" 66.7%" 44.8%" 34.5%

Healthcare&Items

Item

n

Y

Are!clinical!therapy!recommendations!(OT,!PT,! S/L,!psychology,!nutrition)!implemented!or!is!staff! actively!engaged!in!scheduling!appointments?
a.!!OT! b.!!PT! c.!!Speech/Language! d.!!Psychology! e.!!Nutrition Are!clinical!therapy!recommendations!(OT,!PT,! S/L,!psychology,!nutrition)!implemented!or!is!staff! actively!engaged!in!scheduling!appointments?

12" 83.3%" 10" 90.0%" 11" 100.0%" 8" 75.0%" 11" 81.8%" 17 82.4%

N 0.0% 3.6%"
N 23.1%" 14.3% 18.2%" 9.1%" 33.3%" 48.3%" 58.6%
N
16.7%" 10.0%" 0.0%" 25.0%" 18.2%" 17.6%

CND 7.7% 3.6%"
CND 0.0%" 0.0% 0.0%" 0.0%" 0.0%" 6.9%" 6.9%
CND
0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%

!

71
!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 72 of 147 PageID# 4892

&

& TABLE K

Item

Healthcare&Items n

Did!the!individual!have!a!physical!examination!

29

within!the!last!12!months!or!is!there!a!variance!

approved!by!the!physician?

Did!the!individual!have!a!dental!examination!

29"

within!the!last!12!months!or!is!there!a!variance!

approved!by!the!dentist?!!

Were!the!dentist’s!recommendations!implemented! 24"

within!the!time!frame!recommended!by!the!

dentist?

Were!the!Primary!Care!Physician’s!(PCP’s)!

29"

recommendations!addressed/implemented!within!

the!time!frame!recommended!by!the!PCP?

Were!the!medical!specialist’s!recommendations!

23"

addressed/implemented!within!the!time!frame!

recommended!by!the!medical!specialist?

&

&
& TABLE L

Item

Healthcare&Items n

Does!the!provider!monitor!fluid!intake,!if!

12

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!food!intake,!if!

22"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!tube!feedings,!if!

5"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!seizures,!if!applicable! 17"

per!the!physician’s!orders?!

Does!the!provider!monitor!weight!fluctuations,!if! 15"

applicable!per!the!physician’s!orders?

Does!the!provider!monitor!positioning!protocols,!

4"

if!applicable!per!the!physician’s!orders?

Does!the!provider!monitor!bowel!movements,!if!

22"

applicable!per!the!physician’s?!

Is!there!evidence!of!a!nourishing!and!healthy!diet? 26

&

&

&

Y 100.0% 82.8%" 95.8%" 93.1%" 91.3%"
Y 100.0% 95.5%" 100.0%" 100.0%" 86.7%" 100.0%" 100.0%" 96.2%

N 0.0% 17.2%" 0.0%" 0.0%" 4.3%"
N 0.0% 4.5%" 0.0%" 0.0%" 13.3%" 0.0%" 0.0%" 3.8%

CND 0.0% 0.0%" 4.2%" 6.9%" 4.3%"
CND 0.0% 0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%" 0.0%

!

72!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 73 of 147 PageID# 4893

& & & & & ! ! ! ! ! ! ! ! ! ! ! ! ! !
APPENDIX!B! !
CRISIS!SERVICES!REQUIREMENTS! ! ! ! ! ! ! ! ! ! ! ! ! !
 ! !


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! !
 !


Report to the Independent Reviewer

UNITED STATES vs. COMMONWEALTH OF VIRGINIA
CRISIS SERVICE REQUIREMENTS REVIEW PERIOD: Through April 6, 2013

Prepared by Kathryn du Pree, MPS

Vice President Center for Aging and Disability Policy The Lewin Group

!

74
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 75 of 147 PageID# 4895
Report&to&the&Independent&Reviewer! ! CRISIS!SERVICE!REQUIREMENTS! Table!of!Contents!
Table&of&Contents&
I.! INTRODUCTION&AND&METHODOLOGY&...........................................................................................................&1!
 II.! VIRGINIA’S&COMPLIANCE&WITH&THE&COMPONENTS&OF&THE&SETTLEMENT&AGREEMENT&................................&2!

THE"DEVELOPMENT"OF"THE"CRISIS"SERVICES"SYSTEM"............................................................................................................"2!
 THE"SUFFICIENCY"AND"SUSTAINABILITY"OF"FUNDING"FOR"START"SERVICES"..............................................................................."3
! SERVING"ADULTS"WITH"DEVELOPMENTAL"DISABILITIES".........................................................................................................."4
! SERVING"CHILDREN"WITH"INTELLECTUAL"AND"DEVELOPMENTAL"DISABILITIES"............................................................................."5
! START"SERVICES"AND"STAFFING"......................................................................................................................................."6
! TRAINING"....................................................................................................................................................................."7
! CRISIS"POINT"OF"ENTRY"(SECTION"B.I.)"..............................................................................................................................."8!
 WORK"WITH"LAW"ENFORCEMENT"..................................................................................................................................."12!
 MOBILE"CRISIS"TEAMS"(SECTION"6.B.II.):"........................................................................................................................."12!
 CRISIS"STABILIZATION"PROGRAMS"(SECTION"6.B.III.):".........................................................................................................."14!
 SYSTEMS"ISSUES"TO"ADDRESS"........................................................................................................................................."15!
 III.! CONCLUSION&.............................................................................................................................................&16!
 IV.! ATTACHMENT&A&........................................................................................................................................&18!
 CRISIS"SERVICES"..........................................................................................................................................................."18!

&Tables&
Table 1: START Services Funding Summary ............................................................................... 3!
 Table 2: Regional START Staff Hiring Summary.......................................................................... 6!
 Table 3: CSB Mobile Crisis Team Response by Location ............................................................ 9!
 Table 4: Staff Trained by CSB .................................................................................................... 11!
 Table 5: Status of START Services Program Components ........................................................ 14!


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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 76 of 147 PageID# 4896

Report&to&the&Independent&ReviewerIntroduction!and!Methodology!

CRISIS!SERVICE!REQUIREMENTS!

!

I. Introduction&and&Methodology&
Donald!Fletcher,!Independent!Reviewer!for!the!US!v!Commonwealth!of!Virginia’s! Settlement!Agreement,!requested!a!review!of!the!crisis!system!requirements!of!the! Settlement!Agreement.!!This!is!the!second!review!that!will!be!completed!of!the!Crisis! Services!requirements!of!the!Settlement!Agreement.!The!first!review!was!conducted!in! June!2012!and!was!primarily!a!review!of!the!planning!DBHDS!had!engaged!in!to!develop! comprehensive!crisis!prevention!and!intervention!services.!!To!accomplish!this!second! review!I!proposed!measures!and!evaluation!methods!to!determine!the!state’s!compliance! in!this!area!and!to!what!extent!the!system!has!been!developed !through!this!reporting! period.!DBHDS!has!undertaken!the!responsibility!of!creating!a!comprehensive!system!that! requires!policy!and!procedural!development,!resource!allocation,!program!design!and! implementation,!effective!community!linkages!and!training.!It!should!be!noted!that!the! system!will!continue!to!evolve!and!be!further!refined!during!the!course!of!the!Settlement! Agreement.!There!will!be!a!need!to!continue!to!monitor!progress!and!evaluate!the!crisis! system’s!effectiveness!on!a!semiOannual!basis.! Currently!Virginia!is!in!the!first!year!of!implementation!of!its!crisis!response!system!for! individuals!with!intellectual!disabilities!(ID)!and!developmental!disabilities!(DD).!This! report!focuses!on!those!aspects!of!crisis!system!development!that!were!to!be!in!place!by! April!6,!2013!and!the!status!of!planning!for!the!requirements!that!are!to!be!met!by!June!30,! 2013.!It!is!a!review!of:! ► Statewide Crisis System: Sections 6.a.i. ii. & iii; ► Crisis Point of Entry: Section 6.b.i.A; ► Mobile Crisis Teams: Section 6.b.ii. and ► Crisis Stabilization Programs: Section 6.b.iii. A!review!process!was!developed!that!described!the!measurements!and!methods!that!would! be!used!to!determine!the!state’s!compliance!with!each!requirement.!The!review!process! consisted!of!document!review!and!interviews!with!key!DBHDS!and!START!personnel.!The! documents!reviewed!include:!!budget!updates,!training!documentation,!staffing!updates,! the!Virginia!START!Quarterly!updates!(10/12O12/12!and!1/13O3/13),!and!the!DOJ!Project! Crisis!Intervention!and!Prevention!Plan!Report!1/25/13.!The!measures!and!methodology! are!contained!in!the!“The!Lewin!Group’s!Proposal!to!Evaluate!the!Implementation!of!the! Virginia!Settlement!Agreement!Requirements!for!Employment!Services!and!Crisis!Services! through!4/6/13”:!Attachment!A.!This!approach!was!discussed!with!the!Administration!of! DBHDS!before!the!review!was!initiated.! Interviews!were!conducted!with:!
Heidi!Dix,!Assistant!Commissioner!for!Developmental!Services,!DBHDS! Bob!Villa,!State!START!Liaison,!Office!of!Developmental!Services,!DBHDS! Mary!Bagor,!Crisis!Intervention!Community!Support!Specialist,!DBHDS! Joan!Beasley,!Director,!Center!for!START!Services!
This!review!was!conducted!within!a!3!week!timeframe!and!could!not!have!been! accomplished!without!the!assistance!of!Bob!Villa.!All!necessary!updates!and!documents! were!provided!in!a!timely!fashion!and!he!was!very!flexible!in!scheduling!time!to!discuss!the!

The!Development!of!the!Crisis!Services!SystemPage!|!1&

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 77 of 147 PageID# 4897

Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

progress!of!the!START!Services.!!Mr.!Villa!was!always!available!to!answer!questions!or!to!

make!pertinent!documents!available.!He!is!very!knowledgeable!of!the!START!program!and!

the!state’s!approach!to!implementing!a!wellO!coordinated!crisis!response!system!that!will!

bring!a!consistent!and!proven!approach!to!crisis!prevention,!intervention!and!stabilization!

to!the!service!delivery!system!in!Virginia!for!persons!with!intellectual!and!developmental!

disabilities.!I!also!want!to!thank!Dr.!Beasley.!Her!vast!experience!developing!START!in!

other!states!provides!a!realistic!perspective!as!to!the!time!it!takes!to!develop!a!truly!

comprehensive!crisis!support!system!and!what!are!the!critical!elements!for!it!to!be!

successful!and!sustainable.!

II. Virginia’s&Compliance&with&the&Components&of&the&Settlement& Agreement&
1. Section!!6.!a.!The!Commonwealth!shall!develop!a!statewide!crisis!system!for!
 individuals!with!intellectual!and!developmental!disabilities!

i. Provide!timely!and!accessible!supports!to!individuals!with!intellectual!and! developmental!disabilities!
ii. Provide!services!focused!on!crisis!prevention!and!proactive!planning!to!avoid! potential!crisis!
iii. Provide!inOhome!and!communityObased!crisis!services!that!are!directed!at! resolving!crises!and!preventing!the!removal!of!the!individual!from!his!or!her! current!setting!whenever!practicable!
The Development of the Crisis Services System
The!Virginia!DBHDS!began!planning!for!the!development!of!a!Crisis!Intervention!and! Prevention!statewide!system!in!the!summer!of!2011!before!the!Settlement!Agreement!was! completed!or!signed.!To!review!the!Commonwealth’s!compliance!with!this!section!at!this! point!in!time!I!focused!on!the!adequacy!of!the!budgetary!allocation,!the!ability!of!people! with!development!disabilities!to!utilize!the!crisis!service!offered!though!START!and! whether!funding!and!access!for!children!with!intellectual!and!developmental!disabilities! (ID!and!DD)!has!been!addressed!since!the!first!review!completed!June!30,!2013.!!The!status! of!the!mobile!crisis!teams’!responses!to!persons!in!crisis!will!be!addressed!in!subsequent! sections.! !START!promotes!serving!people!with!coOoccurring!conditions!in!the!least!restrictive! setting,!providing!24/7!response!to!people!experiencing!a!crisis!with!immediate!telephonic! access!and!inOperson!assessment!within!2!hours!of!the!call!to!the!mobile!crisis!team,!and! clinical!treatment,!assessment!and!stabilization!services!both!planned!and!emergency! through!shortOterm!respite.!It!is!a!model!that!does!not!try!to!supplant!what!exists!within!a! service!delivery!system!but!rather!builds!upon!the!existing!crisis!response!system!and! strengthens!it.!!The!success!of!the!model!is!based!upon!linkages!and!agreements!with! existing!providers!cross!system!crisis!prevention!and!intervention!planning!(CSCP),! support!and!technical!assistance!to!all!of!its!community!partners!including!individuals!and!

The!Development!of!the!Crisis!Services!SystemPage!|!2&


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 78 of 147 PageID# 4898

Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

their!families!and!comprehensive!systemic!and!clinical!training!with!followOup!

consultation.!

The Sufficiency and Sustainability of Funding for START Services

A!measure!that!is!important!to!the!Commonwealth’s!ability!to!meet!the!crisis!system! expectations!of!the!Settlement!Agreement!is!the!sufficiency!and!sustainability!of!funding! for!this!new!crisis!service!system.!The!majority!of!the!funding!is!being!provided!by!the! Commonwealth!through!an!appropriation!to!the!DBHDS.!Each!regional!START!Program!is! expected!to!seek!Medicaid!reimbursement!as!appropriate!for!services!delivered!that!are! covered!by!this!funding!source.!The!original!appropriation!of!approximately!$10!million!for! FY13!was!reduced!to!$7.8!million!which!was!confirmed!in!Commissioner!Stewart’s! 6/21/12!memo!to!Executive!Directors!and!ID!Directors!of!the!CSBs,!and!to!the!START! Regional!Directors.!However!regions!were!also!allowed!to!carryover!unspent!FY12!funding! for!the!START!project.!!Total!funding!includes!carryover!funds!unspent!in!FY12!($2.16m),! the!FY13!appropriation!($7.8m)!and!anticipated!revenue!from!Medicaid!($2.56m).!!Table&1& summarizes!the!original!request!for!START!funding!from!each!region!and!the!final! allocations.!

Table 1: START Services Funding Summary

Region

Proposed Budget

Actual Budget FY 13

I

$1.85 M

$2.31 M

II

$2.79 M

$2.79 M

III

$2.90 M

$2.60 M

IV

$2.28 M

$2.24 M

V

$2.20 M

$2.53 M

Assistant Commissioner Dix had reported last June that the department was committed to requesting the full annualized amount of funding needed for full operation of the START Programs for FY14. All regions were projecting adding an additional respite home and many propose to add to the mobile crisis teams and in-home support services depending on the level of need in the region. These proposed expansions may be necessary to meet the Settlement Agreement requirements for timely response to individuals with ID/DD and challenging behaviors experiencing a crisis. Utilization data will need to be regularly analyzed to determine the volume of crisis referrals to START and the regional programs’ capacity to respond in a timely fashion to provide assessment and appropriate community supports. This will assist in determining the level of expansion that will be required in subsequent years.
Bob!Villa!reports!that!the!DBHDS!received!an!annualized!allocation!of!$11.6M!in!its!FY14!
appropriation!for!START!Services.!I!was!unable!to!determine!how!much!was!actually!
requested!by!DBHDS.!The!department!has!not!determined!how!the!funds!will!be!allocated!
among!the!regions!as!of!the!date!of!this!report.!However,!each!region!will!receive!at!least!
$2!million!for!FY14.!The!remaining!$1.6!million!will!be!distributed!based!upon!need,!

The!Sufficiency!and!Sustainability!of!Funding!for!START!Services!

Page!|!3&

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Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

current!utilization!patterns!and!the!level!of!operation!of!the!crisis!stabilization!units!in!

each!region.!The!regions’!ability!to!have!full!funding!to!address!their!costs!is!dependent!

upon!Medicaid!billing!since!the!total!budgetary!need!is!$12.5!million.!Regions!will!be!able!

to!bill!under!the!HCBS!waivers!for!crisis!stabilization!and!supervision!and!under!the!Mental!

Health!State!Plan!Option!(SPO)!for!crisis!stabilization!and!intervention!for!persons!served!

who!are!not!on!one!of!the!waivers.!!Billing!has!just!started!for!the!crisis!intervention!

services!and!Region!III!is!the!first!region!to!seek!Medicaid!reimbursement.!!

DBHDS!will!need!to!monitor!the!billing!and!reimbursement!levels!to!insure!that!adequate!

funding!is!in!place.!It!is!also!projected!that!referrals!and!utilization!of!START!will!increase!

as!there!is!greater!knowledge!about!the!service,!staffing!is!consistently!available!and!all!

crisis!stabilization!units!are!operational.!Each!year!DBHDS!will!need!to!use!utilization!and!

waiting!list!information!to!make!targeted!budget!requests!to!properly!fund!the!regional!

START!programs.!

Serving Adults with Developmental Disabilities

The!latest!quarterly!report!of!Joan!Beasley,!Ph.D.!indicates!that!21!people!have!been!served!
who!have!normal!or!borderline!intelligence.!This!is!an!increase!from!the!previous!quarter!
during!which!7!individuals!that!did!not!have!ID!were!referred.!!While!this!remains!a!small!
percentage!of!the!overall!number!of!individuals!referred!the!increase!is!promising.!Also!of!
note!is!that!during!the!quarter!ending!3/31/13,!45!people!with!autism!accessed!START!
Services.!
DBHDS!has!started!to!do!outreach!and!education!about!START!Services!with!case!managers!
who!coordinate!supports!for!individuals!with!DD.!These!case!managers!work!for!private!
entities!or!are!independent.!They!are!not!linked!to!the!CSBs!as!are!the!case!managers!for!
individuals!with!ID.!Bob!Villa!attended!a!DMAS!conference!and!spoke!to!DD!case!managers.!
A!WebEx!is!now!available!for!these!staff!to!access.!!He!also!presented!to!an!arc&conference!
regarding!START!services!availability!to!individuals!with!DD.!Bob!Villa!and!the!START!
Regional!Directors!have!also!met!locally!with!DD!Case!Managers.!!The!availability!of!this!
training!for!DD!case!managers!is!positive.!I!recommend!that!all!DD!case!managers!be!
required!to!attend!or!view!the!WebEx!in!order!to!insure!they!are!aware!of!START!services! and!how!to!make!referrals.!
 Access!to!START!is!the!same!for!both!populations!either!through!the!CSB!Emergency!
 Services!(ES)!or!by!directly!calling!START.!DBHDS!has!informed!all!CSBs!that!individuals!
 with!DD!are!eligible!to!use!START!Services!when!they!experience!a!crisis.!The!person!
 should!be!referred!to!START!whether!they!are!currently!on!the!DD!Waiver!or!not.!START!
 will!work!with!them!and!try!to!connect!them!to!services!and!resources!in!the!community.!
 However,!while!this!was!initially!communicated!to!the!CSBs!by!the!DBHDS!Commissioner!
 in!June,!2012,!the!CSB’s!responsibility!to!respond!to!crisis!requests!from!individuals!with!
 DD!is!not!part!of!the!affiliation!agreement!or!stipulated!in!the!FY2013!and!FY2014!
 Performance!Contracts!with!CSBs.!There!has!been!no!other!written!communication!
 regarding!this!as!reported!by!Bob!Villa.!I!recommend!that!this!be!added!to!the!affiliation!
 agreements!between!START!regional!programs!and!each!CSB!or!that!a!protocol!be!issued!
 by!DBHDS!to!the!CSBs.!


Serving!Adults!with!Developmental!DisabilitiesPage!|!4&

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Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

!Recently!a!decision!has!been!made!to!provide!active!case!management!to!a!person!with!DD!

who!is!in!crisis!and!served!by!START!and!not!yet!on!the!DD!Waiver.!While!this!is!a!positive!

step!there!are!800!individuals!on!the!DD!waiver!waiting!list.!A!case!manager!will!have!

limited!ability!to!refer!the!person!for!supports!or!resources!if!s/he!does!not!have!waiver!

funding!and!access!to!waiver!services.!The!premise!of!START!is!that!it!is!an!interim!

intervention!and!prevention!support!service!that!will!coordinate!with!case!managers!to!

create!linkages!to!the!appropriate!ongoing!supports!once!the!person!is!stabilized.!!The!

DMAS!should!determine!if!individuals!who!have!DD!and!have!used!START!should!be!

considered!as!a!priority!for!waiver!services!especially!in!light!of!the!current!number!of!

people!on!the!waiting!list!for!the!DD!waiver.!!

Serving Children with Intellectual and Developmental Disabilities

At!the!time!of!the!first!review!of!crisis!services!there!was!no!decision!made!as!to!how!crisis! services!would!be!made!available!to!children!with!either!ID!or!DD.!Recently!$1.25!million! was!approved!as!part!of!the!FY14!budget!to!develop!crisis!prevention!and!intervention!for! children.!It!should!be!noted!that!this!is!only!11%!of!the!current!allocation!for!crisis!services! for!adults.!This!funding!has!been!made!available!to!DBHDS!to!plan!prevention!and!crisis! intervention!for!children!but!will!be!operated!by!a!different!division!within!DBHDS!that! already!operates!a!children’s!crisis!program!in!Regions!1,!3!and!4.!Only!in!Region!4!is!the! program!operated!under!the!same!authority!as!START.!The!existing!children’s!programs! serve!a!broader!population!than!ID!and!DD!and!may!not!be!prepared!to!address!the!need!of! this!target!group!without!changes!to!the!program!structure!and!additional!training.!! Currently!Regions!2!and!5!do!not!offer!any!support!services!to!children!in!crisis!but!DBHDS! expects!programs!will!be!developed!in!these!areas.!DBHDS!is!considering!whether!the!new! allocation!should!only!go!to!the!2!regions!without!existing!supports!for!children.! !Dr.!Beasley!has!indicated!that!she!is!willing!to!assist!regions!to!develop!the!START!services! for!children!and!can!provide!assistance!based!on!existing!models!available!in!other!parts!of! the!country.!Since!START!appears!to!be!an!effective!model!for!adults,!there!is!developed! training,!assessment,!inOhome!and!out!of!home!stabilization!components!as!well!as!existing! linkages!and!partnerships!developing!with!CSBs!and!other!community!stakeholders!I! recommend!that!this!be!the!first!approach!considered!for!children.!It!is!an!evidenced!based! practice!and!has!been!effectively!used!to!support!children!in!other!states,!albeit!on!a!more! limited!basis!than!adults.!! The!DBHDS!is!considering!at!what!age!this!intervention!would!start!and!are!considering! serving!children!14O18!or!16O18.!It!will!be!important!that!the!crisis!stabilization!units!be! distinct!and!separate!from!the!one!for!adults!in!each!region.!If!DBHDS!uses!this!new! allocation!for!this!adolescent!age!group!it!will!need!to!determine!how!crisis!intervention! will!be!provided!to!younger!children!to!support!them!in!their!homes!and!communities.! !There!is!no!utilization!data!about!children!needing!or!accessing!crisis!services.!Not!all!CSBs! provide!case!management!for!children.!DBHDS!should!decide!how!each!region!will!serve! children!and!adolescents!either!through!expansion!of!existing!programs!or!the!creation!of! new!ones.!A!written!plan!with!timelines!for!addressing!the!needs!of!all!children!with!ID!or! DD!should!be!required!of!DBHDS!within!the!next!3!months.!The!plan!should!include:! ► The program model ► Projected costs and funding sources

Serving!Children!with!Intellectual!and!Developmental!Disabilities!

Page!|!5&

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Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

► Education of families

► Marketing with school systems

► Case management

► Coordination with the state agency responsible for children with DD

► The availability of ongoing supports and services for children who have experienced a crisis 


and are stabilized including access to waiver services


START Services and Staffing

Both!Bob!Villa!and!Joan!Beasley!have!reported!on!the!difficulty!filling!all!positions!and! maintaining!staff!in!these!positions.!A!few!core!staff!were!terminated!during!the!reporting! period!and!regions!have!struggled!to!have!all!Transition!Coordinators!positions!filled! especially!in!the!more!rural!parts!of!the!state.!Region!I!experienced!gaps!in!its!leadership! positions!and!the!Clinical!Director!position!remains!unfilled!which!impacts!the!team’s! ability!to!provide!robust!clinical!consultation.!Cross!System!Crisis!Plans!(CSCP)!were!not!all! developed!in!a!timely!fashion!because!all!of!the!Transition!Coordinator!positions!were!not! consistently!filled!resulting!in!higher!caseloads!for!those!on!the!team.!Region!IV!had!similar! staffing!shortages!and!the!same!delay!in!completing!CSCPs.!!Region!III!has!experienced! significant!staff!turnover!and!has!recently!replaced!the!Clinical!Director.!Region!V! terminated!its!Clinical!Director!and!refilled!the!key!position!in!March,!2013.! Having!this!capacity!consistently!available!is!critical!to!assuring!that!START!teams!can! respond!in!the!time!periods!expected!by!the!Settlement!Agreement.!Dr.!Beasley!has!helped! numerous!states!to!implement!the!START!model!and!is!not!surprised!to!have!these!staffing! challenges!during!the!initial!phase!of!development.!It!is!a!unique!service!and!requires!staff! to!assume!a!different!role!than!they!may!have!done!before.!Leadership!is!important!and! making!sure!there!is!a!fit!of!philosophy!and!values!as!well!as!having!the!clinical!and! program!expertise!is!critical!to!the!program’s!success.!It!may!take!time!to!create!the!most! effective!team.!I!do!recommend!that!the!Independent!Reviewer!continue!to!monitor!the! staffing!of!the!START!programs.!If!recruitment!and!retention!remain!a!problem!in!the! second!year!of!operation!the!DBHDS!may!need!to!determine!if!remuneration!is!an!issue!and! if!there!need!to!be!specific!workforce!development!strategies!used!particularly!in!the!rural! areas!of!Virginia!to!assure!adequate!numbers!of!Transition!Coordinators!to!respond!in!a! timely!fashion!to!crisis!and!develop!the!Crisis!Intervention!Plans.! Table&2!summarizes!each!region’s!status!hiring!START!staff!through!4/13.!

Region
I!

Table 2: Regional START Staff Hiring Summary

Core Staff

In-Home Staff

Respite Home Staff

START!Director! Medical!Director! Clinical!Director:!vacant,! interviewing,!hire!by!6/13! Respite!Director! Clinical!Team!Leader! START!Coordinators:!6!hired,!

InOhome!Respite!

Counselors:!!

Respite!Counselors:!!

2!FTE!hired!and! 13!FTE!hired!

3.15!FTE!in!

3!FTE!in!process!to!

process!to!be!filled! be!filled!by!7/13!

by!7/13!

START!Services!and!Staffing!

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Region

Core Staff

In-Home Staff

Respite Home Staff

interviewing!1,!hire!by!5/13!

START!Director!

Medical!Director!

Respite!Counselors:!!

Clinical!Director!

InOhome!Respite!

14.5!FTE!hired!

II!

Respite!Director!

Counselors:!16!

1!FTE!to!be!filled!

Clinical!Team!Leader!

hired!

5/13!

START!Coordinators:!5!hired,!

interviewing!1,!hire!by!5/7/13!

Director!

Medical!Director!

Asst.!Medical!Director!
Clinical!Director! Respite!Director! III! Asst.!Respite!Director! Clinical!Team!Leader!
START!Coordinators!6!hired,!

InOhome!Respite! Counselors:! 5!filled! 1!in!process!

Respite!staff! (13FTE)! Continue!to! interview!and!are! creating!a!relief!pool!

interviewing!1!!

Coordinators!(2):!interviewing!

Director!

Respite!staff:!(1.5!

Medical!Director!

FTE)!

Clinical!Director! IV!
Respite!Director!

In!–home!Respite! Recruiting!for!11!FT! Counselors!(3)! and!9PT!

Team!Leader!

Recruiting!for!a!

START!Coordinators!(5)!

nurse!

Director!

Medical!Director:!PT!Consulting!

16!FT!and!10!PT!

Psychiatrist!hired!in!3/13!to!fill!

to!be!shared!

this!function:!25!hours/month!

between!in!–home!

Clinical!Director:!original!director!

and!therapeutic!

V!

left!1/13.!The!PT!Psychologist!was!!

!

respite!unit!when!

hired!FT!in!3/13!

it!opens!

Respite!Director!

Currently!only!1!

Team!Leader!

position!is!filled!

START!Coordinators:!7!filled,!1!in!

process!

Training

The!ability!of!the!Commonwealth!and!DBHDS!to!fully!comply!with!the!requirements!of! Sections!6.a.i,!ii,!and!iii!will!be!determined!by!how!well!staff!in!both!the!ID!and!Emergency!

Training!

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Services!divisions!of!the!CSBs,!providers!and!the!START!programs!are!prepared!to!address!

the!needs!of!individuals!with!ID/DD!who!are!at!risk!of!or!experiencing!a!crisis.!!!

START!training!from!the!National!Center!is!ongoing!and!is!offered!throughout!the!state!and!

through!online!learning!opportunities.!Dr.!Beasley’s!Third!Quarter!Progress!Report!lists!

these!trainings!and!indicates!that!the!number!of!sites!offering!the!training!has!expanded.!

Clinical!consultation!is!also!offered!on!a!monthly!basis!to!different!teams!and!offers!an!

important!learning!opportunity!for!team!members.!There!is!an!extensive!certification!

process!for!START!Coordinators!and!Respite!Directors.!!

The!certification!process!for!START!Coordinators!includes!56!hours!of!training!through!

courses!and!lectures,!50!hours!of!clinical!supervision!from!the!regional!START!Clinical!

Director!and!consultation!from!Dr.!Beasley.!Trainers!affiliated!with!the!Center!for!START!

Services!are!national!experts!in!services!and!supports!for!people!with!coOoccurring!

conditions.!Training!is!provided!onOsite!and!online.!Unfortunately!because!of!the!difficulty!

of!filling!positions!not!all!Coordinators!will!be!certified!by!the!end!of!the!first!year!of!

operation!as!was!anticipated.!Efforts!should!continue!to!have!these!staff!complete!the!

necessary!requirements!to!achieve!certification!which!is!essential!to!the!ongoing!quality!of!

the!program.!

The!training!issues!related!to!CSB!ES!staff!are!in!the!next!section.!

Crisis Point of Entry (Section b.i.)

A. The!Commonwealth!shall!utilize!existing!Community!Services!Boards!(CSB),! including!existing!CSB!hotlines,!for!individuals!to!access!information!and! referrals!to!local!resources.!Such!hotlines!shall!be!operated!24!hours!per!day,!7! days!per!week!and!staffed!with!clinical!professionals!who!are!able!to!assess! crises!by!telephone!and!assist!the!caller!in!identifying!and!connecting!with!local! services.!Where!necessary,!the!crisis!hotline!will!dispatch!at!least!1!mobile!crisis! team!member!who!is!adequately!trained!to!address!the!crisis.!

Each!region!has!between!5O10!Community!Services!Boards!(CSB)!that!are!currently! responsible!to!provide!24/7!emergency!response!to!crises!for!individuals!within!their! catchment!area!including!people!who!have!intellectual!and!developmental!disabilities.!Each! CSB!has!a!hotline!which!accepts!emergency!calls!and!emergency!services!staff!who! respond.!The!type!of!response!varies!across!the!CSBs!and!regions!as!does!the!expertise!to! respond!to!the!needs!of!individuals!with!ID!or!DD!and!behavioral!challenges.!!They!provide! consultation!for!people!living!at!home,!comprehensive!assessments,!crisis!behavioral!plans! and!consultation!to!other!providers.! Regions!reported!that!while!all!CSBs!have!a!mobile!crisis!team!that!conducts!face!to!face! assessments,!the!majority!of!CSBs!will!only!do!so!at!the!hospital!emergency!department.! Less!than!50%!will!respond!onOsite!to!a!crisis!in!another!community!location!including! group!homes!or!an!individual’s!personal!residence.!In!fact!the!number!that!will!respond!in! someone’s!home!has!decreased!in!2!of!the!regions!since!the!first!report!(!Region!I!and! Region!V!),and!remains!the!same!!in!the!other!3!regions!with!no!CSBs!in!Region!III! responding!in!!a!person’s!home.!This!information!is!summarized!in!Table&3.!

Crisis!Point!of!Entry!(Section!b.i.)!

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Table 3: CSB Mobile Crisis Team Response by Location

Region!
I II III IV

Onsite!response!to!a! hospital!
8 5 10 8

Onsite!response!to! person’s!home!or! community!location!
6/12!
4
3
0
4

Onsite!response!in! person’s!home!or!
community! location!4/13!
1
3
0
4

V

9

6

2

! The!premise!of!the!START!Program!is!that!it!will!have!a!24/7!response!capacity!and!will! accept!referrals!from!the!CSB!Emergency!Services!(ES)!Mobile!Crisis!Teams.!!START!is! modeled!on!a!cooperative!response!that!involves!the!CSB!Emergency!Services!staff.!The! determination!of!whether!someone!in!crisis!needs!hospitalization!is!the!responsibility!of! the!ES!Mobile!Crisis!Team,!not!the!START!team.!For!those!people!experiencing!a!crisis!who! are!not!in!need!of!hospitalization!of!for!whom!that!may!depend!on!the!availability!of!other! supports,!the!CSB!ES!Mobile!Crisis!Team!is!expected!to!contact!the!regional!START! program!and!coordinate!the!response!to!the!crisis.!! The!expectation!of!the!Settlement!Agreement!is!that!the!CSB!ES!staff!will!accompany! START!staff!to!do!the!crisis!assessment.!Since!the!first!review!the!number!of!CSB!ES’!that! will!actually!do!this!has!reduced!in!Regions!I!and!V!and!has!not!increased!in!the!other! regions.!This!lack!of!willingness!to!respond!to!an!individual’s!home!is!actually!supported!by! the!FY!2013!and!FY!2014!Community!Services!Performance!Contract!stipulated!below! which!is!the!contract!between!the!DBHDS!and!the!CSBs.! !e.)!Department!of!Justice!Settlement!Agreement!Requirements! 8.)!CSB!emergency!services!shall!be!available!24!hours!per!day!and!seven!days!per!week,! staffed!with!clinical!professionals!who!shall!be!able!to!assess!crises!by!phone!and!assist! callers!in!identifying!and!connecting!with!local!services,!and,!where!necessary,!the!services! shall!dispatch!at!least!one!mobile!crisis!team!member!adequately!trained!to!address!the! crisis![section!III.!C.!6.b.i.A].!!These&requirements&shall&be&met&through&the&regional& START&program&that&is&staffed&24&hours&per&day&and&seven&days&per&week&by&qualified& individuals&able&to&assess&and&assist&individuals&and&their&families&during&crisis& situations&and&has&a&mobile&crisis&team&to&address&crisis&situations&and&offer&services& and&supports&on&site&to&individuals&and&their&families&within&3&hours.&&(Italics!added).! Heidi!Dix!indicated!that!this!was!always!the!intention!of!DBHDS.! When!I!asked!Dr.!Beasley!about!this!provision!in!the!Community!Services!Performance! Contract!between!DBHDS!and!the!CSBs!she!said!she!was!unaware!that!the!CSB!ES!staff!was! no!longer!expected!to!accompany!START!Services!staff!as!needed!to!individual’s!homes!for! assessment.!She!indicates!this!will!be!problematic!when!individuals!need!to!be!assessed!for! safety!considerations!and!to!determine!if!they!need!hospitalization,!neither!of!which!are! the!responsibility!of!START.!Many!people!with!ID!and!DD,!especially!individuals!with! autism!do!not!do!well!with!the!unstructured!and!somewhat!traumatic!nature!of!emergency! rooms.!It!is!less!distressing!for!these!individuals!to!be!assessed!at!home!when!they!are!in!a! crisis.!!

Crisis!Point!of!Entry!(Section!b.i.)!

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Additionally!START!teams!are!having!difficulty!keeping!all!of!the!Coordinator!positions!

filled!especially!in!rural!areas.!Until!the!teams!are!consistently!operating!at!full!staff!and!

able!to!meet!the!requirement!for!response!time,!the!CSB!ES!staff!may!be!needed!to!respond!

in!community!settings!including!group!homes!and!people’s!own!homes!This!provision!of!

the!CSB!Performance!Contract!needs!to!be!discussed!between!the!Parties!and!the!

Independent!Reviewer!to!determine!if!it!meets!the!requirements!of!the!Settlement!

Agreement!and!if!it!proves!to!be!effective.!!If!it!remains!as!the!standard!practice!it!will!be!

useful!to!develop!a!protocol!detailing!when!it!is!appropriate!for!START!to!request!the!

presence!of!an!ES!staff!in!the!home!setting!to!assist!with!assessment.!!

Since!each!CSB!responds!differently!to!crisis!referrals!the!region!is!expected!to!also!develop!

an!affiliation!agreement!with!each!CSB!in!its!area.!A!template!for!this!agreement!was!

developed!by!DBHDS!at!the!time!of!last!year’s!report.!!This!outlines!the!responsibilities!of!

both!emergency!response!teams!to!work!collaboratively!to!provide!quality!crisis!

intervention!and!divert!people!with!ID!from!hospitalization!when!clinically!appropriate!to!

do!so.!Nine!responsibilities!of!the!START!Program!are!specified!in!the!template.!!The!

ES/CSB!agrees!to!provide!24/7!response,!contact!the!regional!START!Program,!work!to!

develop!the!Crisis!System!Crisis!Plan,!participate!in!team!meetings!and!relevant!training,!

and!arrange!for!an!inpatient!psychiatric!setting!when!clinically!and!systemically!

appropriate.!It!should!be!noted!that!this!agreement!only!speaks!to!serving!adults!with!ID.!!

The!VA!START!third!quarter!progress!report!notes!that!affiliation!agreements!have!been!

signed!as!follows:! ► Region I has agreements with 4 of its 8 CSBs ► Region II has agreements with all 5 of its CSB ES ► Region III has agreements with all 10 of its CSBs ► Region IV has agreements with 5 of its 8 and has 3 other requested submitted ► Region V has none officially signed but all are in process to be formalized by June 30, 2013

I!reviewed!4!of!these!affiliation!agreements!as!examples.!These!were!all!with!Region!II.!!The! CSB!ES!Teams!differ!in!where!they!will!conduct!a!face!to!face!assessment.!The!Alexandria! and!Arlington!CSB!ES’!will!go!to!a!person’s!home!if!accompanied!by!the!police.!The!Loudon! CSB!ES!will!only!respond!in!the!emergency!room!and!the!Prince!Williams!CSB!ES!will!go!to! any!setting!where!there!is!other!professional!staff!but!not!to!a!private!residence.!!It!appears! from!this!small!sample!that!CSBs!do!differ!in!their!response!and!assistance!to!assessing! emergencies!with!START!staff.!It!should!also!be!noted!that!none!of!the!affiliation! agreements!specify!assessing!individuals!with!DD.!
2. By!June!30,!2012!the!Commonwealth!shall!train!CSB!emergency!personnel!in!each!

Health!Planning!Region!on!the!new!crisis!response!system!it!is!establishing,!how!to!

make!referrals,!and!the!resources!that!are!available.!

Training!continues!to!be!offered!to!CSB!ES!staff.!Bob!Villa!and!the!START!Regional! Managers!continue!to!reach!out!to!new!ES!staff!to!famil iarize!them!with!the!START! program.!Dr.!Beasley!recently!provided!training!on!clinical!assessment!of!individuals!with! ID!to!CSB!staff!in!Region!5!which!was!very!successful.!The!state!plans!to!have!this! replicated!in!Region!3!by!the!end!of!April.!This!training!should!be!scheduled!as!soon!as! possible!in!all!regions!and!it!should!be!required!of!all!CSB!ES!staff!within!a!year.!UNH!has! the!capability!to!track!the!training!attendance!of!the!ES!staff.!

Crisis!Point!of!Entry!(Section!b.i.)!

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Table&4!summarizes!the!percentage!of!ES!staff!that!has!been!trained!since!January!2012!


about!serving!people!with!ID/DD!and!accessing!START!services:!


Region"I" Region"II" Region"III" Region"IV" Region"V"

Table 4: Staff Trained by CSB

1-25% of staff trained at CSB

26-50% of staff trained
at CSB

51-75% of staff trained
at CSB

3"

0"

2"

0"

0"

2"

0"

0"

0"

0"

4"

2"

2"

4"

2"

76-100% of staff trained
at CSB 3"(all"at"100%)"
3"(all"at"100%)"
10"(9"at"100%)"
2"(1"at"100%)"
1"(100%)"

! Just!over!50%!of!the!CSBs!have!less!than!75%!of!their!staff!trained!in!the!START!model.!! Throughout!the!implementation!of!this!agreement!START!training!should!be!continuously! offered!and!required!of!ES!personnel!to!enhance!their!understanding!and!expertise!in! addressing!the!needs!of!individuals!in!crisis!who!have!coOoccurring!conditions!to!build!an! effective!systemic!response!and!successful!collaboration!between!the!CSB!and!START! mobile!crisis!teams!as!they!respond!to!referrals!for!crisis!intervention!and!stabilization.! Mary!Bagor!is!the!Crisis!Intervention!Support!Specialist!in!DBHDS.!Her!role!is!to!provide! Technical!Assistance!for!emergency!services!to!the!40!CSBs!in!Virginia.!She!also!consults! with!the!10!existing!crisis!stabilization!units!operated!by!CSBs.!The!target!population!for! these!units!is!primarily!individuals!with!mental!health!or!substance!abuse!needs!but!she! estimates!that!out!of!2,000!people!served!approximately!100!individuals!with!ID/DD!have! been!served.!The!units!are!not!currently!equipped!to!support!individuals!with!severe! cognitive!disabilities!but!can!serve!those!who!can!participate!in!the!activities!and!benefit! from!the!structure!of!the!units.! !Mary!Bagor!and!Bob!Villa!work!cooperatively!to!reach!out!to!these!programs!and!teams!to! educate!them!to!the!availability!of!START!Services!and!to!determine!if!there!are! opportunities!to!cooperatively!serve!individuals!with!ID.!!They!are!discussing!whether! individuals!could!be!served!in!these!settings!with!support!from!START!staff.!She!hopes!the! crisis!stabilization!units!can!supplement!the!START!therapeutic!respite!homes!over!time!as! staff!are!trained!and!linkages!to!START!are!formalized.!! !Ms.!Bagor!meets!twice!a!year!with!the!directors!of!the!stabilization!units.!She!asked!Jarret! Stone,!Regional!START!Director!in!Region!I!to!present!to!this!group!in!March,!2013!to! increase!their!awareness!of!the!needs!of!individuals!ID/DD!in!crisis.!The!group!responded! favorably!and!requested!more!training.!She!spoke!very!positively!about!the!recent!training! Dr.!Beasley!offered!in!Region!V!to!CSB!ES!staff!that!will!be!replicated!in!Region!III!in!late! April.!Forty!(40)!ES!staff!are!registered!for!this!training!event.!!During!this!training!Joan! discusses!the!role!of!ES!staff!in!advocating!for!people!with!ID/DD!in!ERs!and!explained!the! underpinning!of!medical!issues!that!must!be!explored!in!determining!the!root!causes!of!the! person’s!behavior.!Ms.!Bagor!suggests!training!be!directed!at!the!CSB!staff!and!focus!on! assessment!and!program!management!and!they!be!trained!separately!from!!START!staff!! since!they!have!the!need!for!more!introductory!material!on!serving!individuals!with!ID/DD.!!

Crisis!Point!of!Entry!(Section!b.i.)!

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ES!staff!are!used!to!completing!assessments!quickly!and!making!determinations!about!

hospitalization.!The!training!helps!them!to!understand!the!more!comprehensive!

assessment!protocol!that!START!uses!to!successfully!address!the!crisis!for!the!person!with!

ID/DD.!

Bob!and!Mary!will!together!continue!to!reach!out!to!the!Association!of!CSBs!(ACSB)!

through!the!Emergency!Services!Council!that!meets!3!times!a!year!to!continue!the!dialogue!

about!crisis!services!for!this!population!and!determine!ongoing!opportunities!for!

education,!training!and!partnerships.!CSB!ES!staff!are!also!encouraged!to!attend!the!

monthly!clinical!consultation!meetings!offered!by!the!regional!START!programs.!!Ms.!

Bagor’s!credibility!with!the!ES!teams!and!her!willingness!to!collaborate!with!Bob!Villa!and!

the!Regional!START!Directors!is!very!positive!and!should!help!to!build!more!effective!

working!relationships!between!START!Services!and!the!CSB!Emergency!Services.!

Work with Law Enforcement

The!Settlement!expects!that!the!Commonwealth!will!have!a!planned!approach!to!reaching! out!to!law!enforcement!to!help!them!better!interact!with!individuals!with!ID/DD!who! experience!a!crisis!that!brings!then!into!contact!with!police!and!related!public!services.!As! described!in!some!detail!in!the!first!report,!DBHDS!does!offer!a!training!curriculum!for!law! enforcement!which!is!Crisis!Intervention!Team!(CIT)!training!which!is!offered!throughout! the!state!and!includes!information!on!the!needs!of!individuals!with!ID.!The!Regions!vary!in! the!contacts!they!have!been!able!to!make!with!law!enforcement!and!the!training!that!has! been!offered.!Region!I!has!not!offered!anything!specific!as!yet!and!not!all!of!its!CSBs!have! established!CIT!training!for!law!enforcement!personnel.!Region!II!has!added!information! about!START!Services!to!its!CIT!curriculum!including!information!about!interacting!with! individuals!who!have!autism!as!well!as!those!with!ID!and!piloted!it!in!Louden!County.! Region!III!plans!to!include!a!module!about!START!Services!as!part!of!its!CIT!officer!training.! Region!IV!presented!a!segment!about!START!Services!to!the!Richmond!Police!and!has! added!a!component!on!ID/DD!and!assessing!individuals!when!in!a!crisis.!In!this!Region! there!was!an!example!of!a!coordinated!response!involving!law!enforcement!to!respond!to!a! particular!crisis.!This!relationship!is!providing!further!inroads!to!this!police!department.! Region!5’s!CIT!training!includes!a!module!on!ID!and!the!region!plans!to!include!a!section!on! START!Services.!All!regions!should!be!expected!to!have!information!about!START!and! working!with!individuals!with!ID/DD!in!crisis!in!the!CIT!training!that!is!standardized!and!in! all!regions!includes!information!about!DD!including!autism.!
Mobile Crisis Teams (Section 6.b.ii.):

3. F.!!By!June!30,!2012!the!Commonwealth!shall!have!at!least!1!mobile!crisis!team!in!
each!Region!that!shall!respond!to!onOsite!crises!within!3!hours:!
None!of!the!regions!had!their!full!teams!in!place!by!June,!2012!due!to!delays!in!hiring!and!
 budget!reductions.!Regions!III,!IV!and!V!had!started!to!provide!some!level!of!consultation!
 and!mobile!crisis!response!mostly!for!individuals!at!risk!of!behavioral!crises!but!not!
 currently!experiencing!a!crisis!by!last!June!and!had!fully!functional!teams!by!the!Fall!of!
 2013.!Regions!I!and!II!did!not!have!their!teams!in!place!until!December,!2012!because!of!


Work!with!Law!Enforcement!

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Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!


delays!in!becoming!licensed.!Regions!abilities!to!offer!inOhome!respite!as!part!of!START!


Services!ranged!started!between!9/12O!4/13.!!Region!V!is!just!starting!to!offer!inOhome!


respite!and!has!to!use!its!Transition!Coordinators!part!time!to!do!so!because!of!its!staff!


vacancies.!

To!date!350!individuals!have!been!referred!for!START!Services!with!117!of!those!

individuals!being!served!in!the!most!recent!quarter.!However,!data!is!missing!on!1/3!of!the!

clients.!This!data!is!important!to!project!resource!needs!in!the!future!and!a!focus!should!be!

put!on!timely!and!accurate!data!entry!in!all!regions.!Currently!Region!III!is!consistently!

reporting!its!data.!Dr.!Beasley!projects!that!700O1,000!individuals!will!be!supported!

annually!once!the!program!is!fully!operational.!

Dr.!Beasley’s!report!has!a!wealth!of!information!about!the!demographics,!needs!and!

supports!provided.!This!report!has!been!shared!with!DBHDS!and!with!the!Independent!

Reviewer.!Some!important!highlights!to!note!in!light!of!the!requirements!of!the!Settlement!

Agreement!are:! ► 35% of the individuals lived at home at the time of referral ► Case managers are the primary source of referrals followed by families and residential service 

providers
 ► Only 11% (13) of the referrals were made by the ES Mobile crisis teams ► 52 % (41) of the referrals of people in a crisis were at risk of losing their placements. Through 

the provision of START Services placements were maintained
 ► Only 6 people were admitted to psychiatric facilities ► Over 60% of the crisis assessment was conducted in the individuals’ homes and 16% (19) were
assessed in emergency rooms. With the exception of 7 assessments all were conducted in-
person rather than over the telephone

There!was!concern!expressed!by!the!Independent!Reviewer!from!information!he!was!

receiving!from!stakeholders!that!not!all!individuals!with!ID/DD!who!were!in!crisis!could!be!

served!by!START.!Both!Joan!Beasley!and!Bob!Villa!confirm!that!everyone!should!be!

referred!and!the!START!definition!of!who!is!eligible!is!very!broad.!The!therapeutic!respite!

units!can!serve!a!range!of!individuals!and!there!are!no!automatic!exclusionary!criteria!

unless!a!person!is!a!danger!to!himself!or!others!and!requires!hospitalization.!Individuals!

who!historically!elope!from!settings!can!be!served!if!they!are!willing!and!can!be!maintained!

by!the!physical!environment!(a!fenced!yard)!and!the!supervision!and!direction!of!staff.!

The!Settlement!Agreement!required!that!the!response!time!to!crisis!referrals!be!no!more!

than!3!hours!during!the!first!year!of!implementation!and!reduced!to!2!hours!by!June!30,!

2013.!For!the!79!people!referred!who!were!in!crisis,!the!response!time!was!less!than!2!

hours!in!31!cases,!and!2!hours!or!more!in!22!cases!with!an!average!response!time!of!1!hour!

and!45!minutes.!Unfortunately!there!is!no!data!from!the!regions!for!26!of!the!events!so!a!

determination!cannot!be!made!if!in!all!cases!the!response!was!within!3!hours.!!The!goal!of!2!

hours!to!be!met!by!this!summer!will!be!dependent!on!having!a!sufficient!number!of! Transition!Coordinators!hired!and!available!especially!in!more!rural!locations.!
 The!DBHDS!was!to!have!a!second!mobile!crisis!team!in!each!region!by!June!30,!2013.!Bob!
 Villa!reports!that!each!region!is!deciding!what!it!needs!in!terms!of!resources!since!the!
 DBHDS!believes!the!teams!are!already!generally!meeting!the!response!time!requirement.!
 Some!regions!will!look!to!split!existing!coordinators!into!2!teams!under!the!leadership!of!
 1Team!Leader!and!others!may!add!a!Team!Leader.!All!regions!will!have!at!least!2!START!


Mobile!Crisis!Teams!(Section!6.b.ii.):!

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Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!


Coordinators!available!at!all!times!to!respond!to!crisis!referrals.!Plans!are!not!finalized!as!


yet.!An!accurate!assessment!of!response!time!cannot!be!made!since!there!is!outstanding!


data!missing.!The!next!VA!START!Quarterly!Report!shou ld!be!used!to!determine!if!the!


staffing!is!adequate!to!meet!the!requirements!of!the!Settlement!Agreement.!The!DBHDS!


should!report!to!the!Independent!Reviewer!by!6/15/13!as!to!its!plans!to!expand!the!


availability!of!mobile!crisis!teams.!


Crisis Stabilization Programs (Section 6.b.iii.):

4. F.!!By!June!30,!2012!the!Commonwealth!shall!develop!one!crisis!stabilization!
program!in!each!region.!
None!of!the!regions!opened!the!Therapeutic!Respite!Units!(crisis!stabilization!programs)!
 by!June!30,!2012.!There!were!the!normal!delays!caused!by!home!location,!acquisition,!
 renovation!and!licensing!and!staff!recruitment!and!training.!The!first!units!to!open!were!in!
 Regions!I!and!III!which!both!opened!in!December,!2012.!Region!2!opened!its!Respite!home!
 in!March,!2013.!Both!Regions!IV!and!V!remain!without!a!facility!in!which!to!operate!the!
 stabilization!programs.!Region!V!just!received!approval!by!the!Independent!Reviewer!to!
 use!a!cottage!at!the!Training!Center!temporarily!until!the!house!the!region!has!located!is!

ready!for!occupancy!which!is!anticipated!for!October!2014.!Region!IV!had!a!site!in! Richmond!which!was!not!approved!by!zoning!and!continues!to!look!for!a!site!that!may!be!
 outside!of!the!city!of!Richmond.!They!do!not!have!a!projected!date!to!open!the!crisis!
 stabilization!unit!and!are!using!the!other!region’s!sites!when!necessary!if!a!bed!is!available,!
 although!to!date!this!has!been!infrequent.!They!are!also!using!their!staff!to!provide!inOhome!
 respite.!
 Table&5!below!provides!a!summary!of!when!each!region!had!its!mobile!crisis!team!
 operational,!inOhome!respite!available!and!the!existence!or!plan!for!the!therapeutic!respite!
 site!(crisis!stabilization!unit).!


Region I II III IV
V

Table 5: Status of START Services Program Components

Mobile Crisis Response

In-home Support

Respite Home

Licensed 12/12 Licensed 12/12 Available fall of 2012
Available fall of 2012

Available 1/13 Available 1/13 Available 9/12
Available 3/13

Opened 12/12 Opened 3/13 Opened 12/12 Not opened and no site identified

Available fall of 2012

Available 4/13

Will open a temporary site 7/13 Will open permanent site 10/13

The!Commonwealth!is!to!decide!by!July,!2013!how!many!additional!crisis!stabilization! units!will!be!needed.!In!light!of!the!significant!delays!in!opening!these!units!and!the!fact! that!2!remain!undeveloped!it!is!unrealistic!for!the!DBHDS!to!make!this!assessment!by!July.!

Crisis!Stabilization!Programs!(Section!6.b.iii.):Page!|!14&

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Report&to&the&Independent&ReviewerVirginia’s!Compliance!with!the!Components!of!the!

Settlement!Agreement!

CRISIS!SERVICE!REQUIREMENTS!

!

However,!it!will!be!important!to!have!a!sense!of!the!level!of!need!by!the!time!the!

department!is!expected!to!make!its!budget!requests!to!the!Governor!for!the!FY!15!budget.!If!

some!additional!units!are!not!included!in!the!FY15!appropriation!the!level!of!crisis!

stabilization!will!remain!at!a!total!of!30!beds!statewide!for!at!least!2!more!years.!The!

department!should!be!expected!to!develop!a!projection!of!need!based!on!utilization!of!the!3!

existing!units!through!10/13!factoring!in!the!needs!of!adults!with!DD!and!for!children!with!

either!ID!or!DD.!This!information!should!be!used!to!make!its!budget!request!for!FY15.!!

Although!some!referrals!for!crisis!intervention!services!have!been!made!for!people!with!DD!

it!is!a!very!small!number!to!date.!In!all!likelihood!these!referrals!will!increase!as!the!

availability!of!START!Services!is!better!known!and!there!is!greater!coordination!between!

DBHDS!and!DMAS!for!the!use!of!these!services!for!people!with!DD!using!the!DD!waiver!and!

those!on!the!waiting!list.!

Systems Issues to Address

In!addition!to!the!issues!of!full!coordination!of!services!for!adults!with!developmental! disabilities,!funding!and!service!development!for!children!with!ID!and!DD,!financial! sustainability,!and!consistent!involvement!of!the!CSB!ES!teams!that!I!have!raised!in!this! report,!a!number!of!systemic!concerns!were!raised!in!both!the!VA!START!second!and!third! quarterly!progress!reports!that!should!be!addressed.! Supports&for&individuals&with&coHoccurring&conditions&while&in&jail:!8!individuals!were! in!jail!during!the!preceding!12!months!prior!to!their!referrals!to!START.!In!at!least!2!cases! individuals!did!not!continue!to!receive!their!prescribed!medications!and!these!were! abruptly!discontinued!resulting!in!one!person!suffering!seizures.!!DBHDS’!outreach!to!law! enforcement!personnel!should!include!discussion!of!how!best!to!link!people!with!START! before!incarceration!occurs!and!how!consultation!might!be!provided!by!START!for! individuals!who!have!a!mental!health!diagnosis!once!jailed!to!better!assure!appropriate! medical!and!clinical!care!while!in!jail!and!assist!with!discharge!planning!.! Support&for&the&residential&and&day&service&providers:!Two!issues!have!been!identified! in!Dr.!Beasley’s!report!regarding!the!provider!community.!The!first!is!that!training!and! follow!up!are!critical!components!to!assure!that!providers!can!be!effective!partners!who! coordinate!support!for!the!individual!who!is!in!crisis!and!uses!the!START!services.!DBHDS! has!made!training!available!to!providers!but!decisions!need!to!be!made!as!to!when!training! should!be!required!and!for!which!providers!and!how!START!and!the!providers!will! effectively!partner!to!coordinate!the!follow!up!services!the!individual!will!need!to!maintain! their!home!and!employment!or!other!day!services.!DR.!Beasley’s!recommendation!of! forming!a!task!force!should!be!considered!by!the!department!and!a!decision!made.! A!second!concern!focuses!on!continuity!of!funding!for!an!individual!who!may!leave!their!
residence!for!emergency!respite!or!a!short!term!hospitalization.!DBHDS!does!not!currently! have!the!ability!either!directly!or!through!the!CSBs!to!provide!funding!to!the!residential!
provider!to!make!sure!the!person’s!residence!is!available!to!them!when!they!are!ready!for! discharge.!The!BDHDS!should!be!asked!to!review!this!suggestion,!determine!if!and!how! bridge!funding!can!be!made!available!and!report!back!to!the!Independent!Reviewer.!

Systems!Issues!to!Address!

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Report&to&the&Independent&Reviewer! Conclusion!

CRISIS!SERVICE!REQUIREMENTS!

!

Policies&and&procedures:!There!appears!to!be!a!need!for!clearly!articulated!written!
protocols!to!guide!the!implementation!of!START!Services!especially!given!the!decentralized!
nature!of!the!service!delivery!system!and!the!number!of!partners!who!are!needed!to!make!
this!a!successful!endeavor.!Dr.!Beasley!has!recommended!policies!and!procedures!to!
address:! ► The expectations of the START teams to collaborate and consult in planning for eligible people
in the state hospitals and those leaving the Training Centers who have co-occurring conditions ► Guidelines for medical screenings to be performed prior to admission to the START 

therapeutic respite sites
 ► The need to more quickly assign case managers to individuals eligible for ID or DD waiver 

services when they experience a crisis and are referred to START
 ► The relationship between the ES Teams and START Services regarding the training 

expectations for ES personnel

I!support!these!recommendations!and!suggest!the!DBHDS!be!required!to!review!them!and!
provide!a!written!response!as!to!which!will!be!acted!upon!and!in!what!timeframe.!

III. Conclusion&
The!Commonwealth!of!Virginia’s!DBHDS!has!initiated!a!planning!process!and!is!providing! leadership!to!enhance!the!state’s!ability!to!respond!to!the!crisis!needs!of!individuals!who! have!ID!and!DD!and!a!coOoccurring!mental!health!diagnosis!or!a!behavioral!challenge!that! places!them!at!risk!of!institutionalization.!The!commitment!to!build!a!comprehensive! service!delivery!model,!START!Services,!is!encouraging!and!holds!promise!for!individuals! with!ID!and!DD!and!their!families.!This!offers!the!potential!to!build!communities’!capacity,! expertise!and!ability!to!respond!in!a!timely!and!positive!manner!to!individuals!in!crisis!and! support!them!to!remain!in!their!home!communities.!The!leadership!of!DBHDS,!Office!of! Developmental!Services!including!the!START!Directors!is!very!committed!to!creating!a! successful!service!delivery!model!based!upon!the!tenets!of!the!START!Model.! Delays!in!program!implementation!have!created!a!situation!of!nonOcompliance!in!the! timely!development!of!the!crisis!stabilization!units!and!staffing!shortages!have!resulted!in! slower!starts!in!some!regions!for!the!crisis!intervention!and!prevention!aspects!of!START.! However,!the!DBHDS!continues!to!make!progress!in!its!implementation!of!START!Services! and!in!creating!the!necessary!community!linkages!to!develop!a!comprehensive!approach!to! serving!these!individuals!with!coOoccurring!conditions.!Success!has!been!seen!for!the!over! 300!people!who!have!used!START!Services!with!few!people!requiring!hospitalization!and! individuals!being!able!to!maintain!their!residence.! Summary!of!recommendations:!I!have!made!a!number!of!recommendations!to!assist! Virginia!to!be!in!compliance!with!the!Settlement!Agreement!requirements!for!Crisis! Services,!build!a!sustainable!crisis!intervention!and!prevention!system!and!build!the! community!infrastructure!that!START!is!modeled!on.!These!recommendations!include:! ► Funding: use utilization, waiting list and response time data to make the budget request for the
crisis stabilization units for FY15 and to determine the needed capacity of the mobile crisis teams. Monitor the Medicaid reimbursement to make sure it is adequate. ► Serving individuals with developmental disabilities: DBHDS should issue a directive to the CSBs and include this in the affiliation agreements between START and the CSBs; all DD case managers should be required to be trained about START Services and the Settlement

Systems!Issues!to!Address!

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Report&to&the&Independent&Reviewer! Conclusion!

CRISIS!SERVICE!REQUIREMENTS!

!

Agreement; DMAS should determine if individuals with DD on the waiver waiting list who are served by START should receive priority for waiver services ► Serving children with ID and DD: DBHDS should develop a work plan within 3 months ► Staffing START Services: DBHDS should develop a workforce development plan if retention and recruitment problems remain in 6 months ► Involvement of CSB emergency Services: the performance contract provision should be reviewed by the Court to determine if it meets the provisions of the Settlement Agreement and a written protocol should be issued to describe under what circumstances ES staff will directly support START staff during crisis assessments. All Emergency Services staff should attend Joan Beasley’s training within 6 months ► Law Enforcement: the CIT training should be standardized to include a module on serving 
 people with ID/DD and autism and accessing the START services
 ► Mobile Crisis Teams: BDHDS should report to the Independent Reviewer by 6/15/13 as to 
 each regions plan to have 2 mobile crisis teams operating by 6/30/13

Future!reviews!of!this!requirement!of!the!Settlement!Agreement!will!need!to!inclu de!an!
analysis!of!the!existing!community!service!delivery!partners’!ability!to!enhance!and!expand!
their!ability!to!coordinate!and!provide!ongoing!community!support!to!individuals!at!risk!of!
crisis!and!those!who!experience!crisis!and!need!emergency!support.!This!will!include!
continued!review!of!the!engagement!with!the!CSBs,!the!coordination!with!day!and!
residential!providers!for!both!ID!and!DD,!and!the!interface!with!the!DD!system!of!case!
management.!The!START!program!will!need!these!formal!partnerships!in!order!for!the!
system!to!be!able!to!maintain!people!with!coOoccurring!conditions!at!home!and!within!their!
communities!so!that!they!do!not!experience!unnecessary!institutionalizat ion.!
The!next!review!should!include!a!review!of!consumer!and!family!satisfaction!with!START!
Services.

Systems!Issues!to!Address!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 93 of 147 PageID# 4913 !

IV. Attachment&A&
Proposal(to(Evaluate(the!Implementation+
 of#the#VA#Settlement#Agreement# Requirements!for$Crisis$Services$through$

4/6/13!
Prepared&by&Kathryn&du&Pree,&Vice&President,&Center&for&Aging&and&Disability&Policy,& The&Lewin&Group:&March&26,&2013!
Crisis Services
The!Settlement!Agreement!contains!a!number!of!requirements!regarding!the! implementation!of!comprehensive!crisis!services!by!the!Commonwealth!of!Virginia.! Following!is!a!description!of!these!requirements!and!the!approach!the!expert!consultant! will!use!to!confirm!the!implementation!of!these!systems!elements!through!April!6,!2013.! The!review!will!build!upon!the!previous!review!conducted!for!the!Independent!Reviewer!in! 2012.!
6.&a.&The&Commonwealth&shall&develop&a&statewide&crisis&system&to&individuals&with&ID&and&DD.&The& crisis&system&shall:&
i.&Provide&timely&and&accessible&to&individuals&who&are&experiencing&crises,&including&crises&due& to&psychiatric&issues,&and&to&their&families;&
ii.&Provide&services&focused&on&crisis&prevention&and&proactive&planning&to&avoid&potential& crises:&and&
iii.&Provide&inHhome&and&communityHbased&services&that&are&directed&at&resolving&crises&and& preventing&the&removal&of&the&individual&from&his&or&her&current&placement&whenever& practicable.&
► The specific data on the mobile crisis team responses will be addressed in subsequent sections. As a follow up to the crisis services evaluation completed in June, 2012, the expert consultant will focus on the Commonwealth’s ability to develop a statewide crisis response system for all individuals with intellectual or developmental disabilities by determining if the budgetary requests for the regional programs have been funded through legislative appropriation; if individuals with developmental disabilities have also been able to utilize the crisis service system; and whether funding and access had been provided for children with ID or DD to make use of these prevention and intervention services.
Data&Sources&

Crisis!Services!

Page!|!18&


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 94 of 147 PageID# 4914
!
The!expert!consultant!will!address!these!systemic!issues!through!interviews!with!Bob!Villa! and!Lee!Price.!Any!data!sources!that!they!are!able!to!identify!will!be!reviewed!regarding! the!budget!and!utilization!by!adults!with!DD!and!children!with!ID!or!DD.!
6.b.&&The&crisis&system&shall&include&the&following&components:&
i.&Crisis&Point&of&Entry&
A. The commonwealth shall utilize existing CSB Emergency Services including the existing CSB hotlines, for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours a day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. Where necessary the crisis hotline will dispatch at least 1 mobile crisis team member who is adequately trained to address the crisis.
► The expert consultant will report on the involvement of the CSB’s in responding to emergency calls, making referrals to the regional mobile crisis team, and assisting them with the crisis response as needed.
Data&sources:& The!Virginia!START!Quarterly!Consult!Summary!provides!referral!source!information.!The! DBHDS!will!need!to!provide!additional!data!regarding!the!CSB!Emergency!Service! involvement!accompanying!the!mobile!crisis!team!staff!when!responding!to!a!referral!for! crisis!intervention.!The!expert!consultant!will!address!this!in!her!interviews!with!Bob!Villa,! Lee!Price!and!Joan!Beasley.!
ii.&Mobile&crisis&teams&
A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals in their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.
B. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also enhance short-term capacity within an individual’s home or other community setting.
C. Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.
D. Mobile crisis teams shall be available 24 hours, 7 days per week and to respond onsite to crises.
E. Mobile crisis teams shall provide local and timely in-home crisis support of an additional period of up to 3 days, with the possibility of an additional period of up to 3 days upon review of the Regional Mobile Crisis Team Coordinator.
F. By June 30, 2012 the Commonwealth shall have at least one mobile crisis team in each Region that shall respond to on-site crises within 3 hours.

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G. By June 30, 2013 the Commonwealth shall have at least two mobile crisis teams in each Region to respond to on-site crises within two hours.
► The Expert consultant will report on the number of mobile crisis team members trained and in what topic areas; the type of START services requested and provided to determine the START programs’ engagement with crisis planning and diverting future crises by providing assessment, plan development, consultation, and respite; the availability of crisis team response and the response time; how many individuals received in-home crisis support and for how long; the outcome of the provision of crisis intervention in terms of the ability to maintain the person in his home or the community; and the status of the Commonwealth’s development of an additional mobile crisis team in each region by 6/30/13.
Data&Sources& The!DOJ!Project!4!Crisis!Intervention!and!Prevention!Plan!Report!1/25/13;!!Virginia!START! Quarterly!Consult!Summary:!10/12O12/12;!updates!of!both!of!these!status!reports!through! 3/31/12;written!updates!from!the!regional!directors!on!the!hiring!of!mobile!crisis!team! members;!interview!with!Bob!Villa!and!Lee!Price;!interview!with!Joan!Beasley,!Ph.D..! Topics!to!be!addressed!with!Dr.!Beasley!include!team!training,!response!time,!and!follow! up!to!data!elements!in!the!quarterly!report.!The!interview!with!Bob!Villa!and!Lee!Price!will! focus!on!the!development!of!the!2nd!mobile!crisis!team!in!each!region,!engagement!by!the! mobile!crisis!teams!with!law!enforcement,!and!follow!up!on!the!Crisis!Intervention!and! Prevention!Plan!data!elements.!!
ii.&Crisis&stabilization&programs&
A. Crisis stabilization programs offer a short term alternative to institutionalization or hospitalization for individuals who need inpatient stabilization services.
B. Crisis stabilization programs shall be used as a last resort. The state shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement and if that is not possible, has then attempted to locate another community-based placement that could serve as a short–term placement.
C. If an individual receives crisis stabilization services in a community–based placement instead of a crisis stabilization unit, the individual may be given the option of remaining in placement if the provider is willing to serve the individual and the provider can meet the needs of the individual as determined by the provider and the individual’s case manager.
D. Crisis stabilization programs shall have no more than 6 beds and lengths of stay shall not exceed 30 days.
E. With the exception of the Pathways Program operated by the Southwestern Training Center crisis stabilization programs shall not be located on the grounds of Training Centers or hospitals with inpatient psychiatric beds.

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F. By June 30, 2012 the Commonwealth shall develop one crisis stabilization program in each Region.
G. By June 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.
► The expert consultant will report on the development, availability and utilization of the crisis 
 stabilization programs in the 5 regions to make sure they comply with the requirements of the 
 Settlement Agreement; and the options used before consideration was given to use of the 
 stabilization program and the status of the Commonwealth’s planning for additional crisis 
 stabilization programs based upon need.

Data&Sources& The!DOJ!Project!4!Crisis!Intervention!and!Prevention!Plan!Report!1/25/13,!and!the! updated!report!through!3/31/13.!Dr.!Beasley’s!Quarterly!Report!for!1/13O3/13!will!be! used!if!it!has!these!data!elements!as!the!programs!were!not!operational!for!her!to!report!on! utilization!during!the!first!quarter!reporting!period.!The!expert!consultant!will!interview! Bob!Villa!and!Lee!Price!focusing!on!the!data!being!used!by!the!Commonwealth!to! determine!the!need!for!additional!crisis!stabilization!programs!and!to!follow!up!on!data! elements!in!the!Crisis!Intervention!Plan!Report.!! The!expert!consultant!will!produce!a!report!for!the!Independent!Reviewer!that!summarizes! her!findings!and!recommendations.!In!order!to!prepare!this!report!she!will!need!access!to! the!documents!listed!and!will!interview!The!DBHDS!administrative!representatives!and! Joan!Beasley,!Ph.D.!START!consultant,!using!the!interview!guide!that!follows.!

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INTERVIEW QUESTIONS FOR CRISIS SERVICES
The!following!questions!will!be!asked!of!Bob!Villa.! 1. What!is!the!level!of!funding!requested!and!allocated!for!the!crisis!mobile!teams!and! the!crisis!stabilization!units!in!FY14?!Were!there!any!changes!in!the!funding! allocations!for!these!components!in!FY13?! 2. What!is!the!utilization!of!the!START!program!by!adults!with!developmental! disabilities?!How!were!people!in!this!target!group!informed!of!the!availability!of!the! program?!How!do!they!access!crisis!services?! 3. What!is!the!funding!for!children!with!ID!or!DD!for!crisis!services?!How!have!their! families!been!notified!of!the!availability!of!crisis!services?!How!do!they!access!the! services?!What!is!their!utilization!of!the!services?!If!the!START!program!is!not! available!to!children!what!crisis!services!are!in!place!for!them?! 4. What!is!the!DBHDS!definition!of!a!crisis!making!an!individual!eligible!to!access!the! mobile!crisis!team?!! 5. Which!CSBs!are!now!willing!to!respond!to!a!crisis!in!a!person’s!own!home?!! 6. What!training!has!been!provided!to!CSB!emergency!staff?!What!topics?!How!many! have!been!trained?!! 7. What!is!the!status!of!the!development!of!the!2nd!mobile!crisis!team!in!each!region! and!what!data!has!been!used!to!determine!the!capacity!each!region!needs?! 8. What!is!the!Commonwealth’s!plan!to!develop!additional!crisis!stabilization!units?!
The!following!questions!will!be!asked!of!Joan!Beasley.! 1. What!training!has!been!provided!by!START!to!CSB!emergency!staff?!What!topics?! How!many!staff!have!been!trained!in!each!subject?! 2. What!is!the!definition!of!a!crisis!that!is!used!by!the!START!Program!to!determine!if! someone!is!an!appropriate!referral?! 3. What!is!the!average!response!time!to!a!crisis!call!by!each!regional!START!team?! How!many!responses!have!exceeded!the!expected!response!of!3!hours?! 4. What!has!been!the!involvement!of!the!CSBs!in!partnering!with!START!staff!to! directly!respond!to!a!crisis!referral?!How!many!times!have!a!CSB!sent!emergency! personnel!to!accompany!START?!Which!CSBs!do!so?! 5. What!has!the!involvement!of!the!START!program!been!with!individuals!who!have! committed!a!crime!or!whose!emergency!situation!has!involved!law!enforcement?!! 6. !Has!START!provided!crisis!services!to!any!adults!with!DD!or!to!any!children!with! either!ID!or!DD?!
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APPENDIX!C!
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EMPLOYMENT!SERVICES!REQUIREMENTS!


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Report to the Independent Reviewer
UNITED STATES vs. COMMONWEALTH OF VIRGINIA
EMPLOYMENT SERVICE REQUIREMENTS REVIEW PERIOD: Through April 6, 2013
Prepared by Kathryn du Pree, MPS Vice President Center for Aging and Disability Policy The Lewin Group

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 100 of 147 PageID# 4920
Report&to&the&Independent&Reviewer! !
 EMPLOYMENT!SERVICE!REQUIREMENTSTable!of!Contents!


Table&of&Contents&

I.!

INTRODUCTION&AND&METHODOLOGY& 1!


II.! INTEGRATED&DAY&ACTIVITIES&AND&SUPPORTED&EMPLOYMENT&

1!


III.! THE&EMPLOYMENT&FIRST&POLICY&AND&DBHDS&SUPPORT& 3!


IV.! THE&DBHDS&STRATEGIC&PLAN&FOR&EMPLOYMENT&FIRST& 4!


V.! TRAINING&

5!


VI.! THE&ENGAGEMENT&OF&STAKEHOLDERS& 7!


VII.! BASELINE&INFORMATION&AND&NEW&TARGETS&FOR&SUPPORTED&EMPLOYMENT&9!
 VIII.! CONCLUSIONS& 12!


IX.! ATTACHMENT&1—&PROPOSAL&TO&EVALUATE&THE&IMPLEMENTATION& 13!


X.! ATTACHMENT&2—SHAY&RATING&SCALE& 18!


XI.! ATTACHMENT&3—SUMMARY&OF&EMPLOYMENT&PRESENTATIONS& 44!


&Tables&
Table 1: Individuals Enrolled in Employment Services ................................................................. 1!

Table 2: Baseline Employment Information .................................................................................. 9!

Table 3: Targets to Meaningfully Increase Employment............................................................. 10!


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V. Introduction&and&Methodology&
Donald!Fletcher,!Independent!Reviewer!for!the!US!v!Commonwealth!of!Virginia’s! Settlement!Agreement,!requested!a!review!of!the!employment!services!requirements!of!the! Settlement!Agreement.!!This!is!the!first!review!that!will!be!completed!for!these! requirements.!!To!accomplish!this!review!I!proposed!measures!and!evaluation!methods!to! determine!the!state’s!compliance!in!this!area.!This!includes!a!review!of!documents!and! interviews!with!DBHDS!staff!and!SELN!Advisory!Group!members.!!DBHDS!has!undertaken! the!responsibility!of!developing!an!employment!first!policy!and!a!strategic!plan!to!assist! the!Commonwealth!to!achieve!employment!for!individuals!with !intellectual!and! developmental!disabilities.!!This!requires!policy,!regulatory!and!procedural!development,! waiver!amendments,!resource!allocation,!program!design!and!implementation,!effective! interagency!collaboration,!engagement!of!stakeholders!and!training.!It!should!be!noted!that! the!system!will!continue!to!evolve!and !be!further!refined!during!the!course!of!the! Settlement!Agreement.!There!will!be!a!need!to!continue!to!monitor!progress!and!evaluate! the!system’s!effectiveness!on!a!semiOannual!basis!at!achieving!greater!employment! outcomes!for!the!target!population.!Before!reporting!on!my!findings!I!want!to!extend!my! thanks!to!the!many!SELN!AG!members!who!agreed!to!participate!in!an!interview.!!Nine! people!spoke!with!me!and!the!information!and!perspectives!they!shared!has!added!to!the! depth!of!this!report.!I!also!want!to!thank!Adam!Sass!for!making!himself!available! throughout!this!process!to!answer!questions,!share!the!initiatives!of!the!DBHDS!and! provide!needed!documents.!He!is!extremely!committed!to!Employment!First!and!I! appreciated!his!insight!and!extensive!knowledge!of!the!system!of!employment!service! delivery.! The!Settlement!Agreement!requires!the!Commonwealth!to!accomplish!the!following:!
VI. Integrated&Day&Activities&and&Supported&Employment&
7.a.!To!the!greatest!extent!practicable!the!Commonwealth!shall!provide!individuals!in!the! target!population!receiving!services!under!this!agreement!with!integrated!day!opportunities,! including!supported!employment.!
Adam!Sass!reports!the!following!information!related!to!the!number!of!people!who!have! been!provided!with!supported!employment:!

Table 6: Individuals Enrolled in Employment Services

10/12-12/12

1/13-3/13

Newly enrolled in ISE

43

71

Newly enrolled in GSE

36

79

Newly enrolled in Pre-Vocation

59

124

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The first reporting period includes individuals on both the ID and DD waivers. The total receiving supported employment was 79 and 54% of these individuals received individual supported employment (ISE) as compared to group supported employment (GSE) for 46%of those newly enrolled. During the second reporting period this increased to a total of 150 people of which 47% received ISE and 53% received GSE. Although this is not to be expected to be a measure of pre-vocational enrollment I have included this data as well. Forty two (42) % of new waiver participants enrolled in pre-vocational employment the first quarter and 45% during the second quarter. It will be of interest to note in subsequent reviews if this enrollment declines as it because a standard practice to offer supported employment as the first option for new enrollees.
There!is!a!difference!in!the!data!sources!for!the!2!reporting!periods.!The!period!10/12O 12/12!includes!enrollments!in!the!ID!and!DD!waivers.!The!period!1/13O3/13!includes!data! from!only&the!ID!waivers.!There!is!a!positive!increase!in!the!number!enrolled!in!supported! employment!during!the!second!quarter!even!though!the!Commonwealth!can!only!include! information!from!the!ID!waivers.! Adam!Sass!reports!that!this!is!because!data!from!DMAS!for!the!DD!waiver!was!only! available!on!an!annual!basis!at!the!end!of!a!year.!The!departments!have!signed!an! agreement!that!data!will!be!available!on!a!quarterly!basis!going!forward!and!are! coordinating!the!data!sharing!process.!In!all!likelihood!the!number!of!people!reported!in! the!first!quarter!of!2013!underOrepresents!the!number!of!people!offered!employment!since! it!excludes!the!DD!waiver!participants.!DBHDS!reports!that!because!DARS!funding!was! closed!during!1/13O3/13!people!could!access!the!waiver!for!employment!directly!since!the! primary!funder!was!unable!to!provide!employment!supports!which!may!have!increased!the! numbers!enrolled!in!the!ID!waivers.!This!may!actually!be!positive!for!these!individuals!in! terms!of!the!continuity!of!services!it!offers!them!to!start!their!employment!supports!with! DBHDS!and!may!cause!less!confusion!to!families!than!dealing!with!the!processes!and! requirements!of!2!distinct!departments.! The!DBHDS!is!unable!to!report!the!number!of!people!who!receive!other!integrated!day! services!because!the!data!collection!system!does!not!currently!distinguish!between! community!based!and!facility!based!day!services.!It!is!recommended!that!the!departments! be!asked!to!create!the!capability!to!report!this!on!a!quarterly!basis!to!be!in!compliance!with! the!Settlement!Agreement.! b.!The!Commonwealth!shall;!
► Maintain its membership in the State Employment Leadership Network (SELN) established by NASDDDS.
► Establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy.
► The principles of the EF Policy include offering employment as the first and priority service 
 option; providing integrated work settings that pay individuals minimum wage; discussing 
 employment options with individuals through the person-centered planning process at least 
 annually.

► Employ at least one employment services coordinator to monitor the implementation of
 employment first practices

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VII. The&Employment&First&Policy&and&DBHDS&Support&
The!Commonwealth!has!established!a!state!policy!on!Employment!First!that!was!approved! and!issued!in!December,!2012!by!the!State!Board!of!Behavioral!Health!and!Developmental! Services![Policy!1044!(SYS)!12O1!Employment!First].!It!is!a!strong!policy!statement!that! stresses!the!benefits!of!employment!for!persons!with!disabilities.!Integrated!communityO based!employment!is!appropriately!defined!to!mean!regular!or!customized!employment,! with!minimum!or!competitive!wages!and!benefits,!for!a!person!who!is!on!the!employer’s! payroll!and!has!interaction!and!integration!with!the!businesses!workforce.!It!also!honors! selfOemployment!for!people!with!disabilities.!It!is!supported!by!Senate!Joint!Resolution!127! which!addresses!individuals!with!intellectual,!developmental!and!other!disabilities.!The! policy!is!guided!by!the!principles!of!working!and!earning!wages,!developing!a!plan!for! employment!using!a!personOcentered!planning!process,!contributing!to!one’s!own!support! and!supporting!individuals!with!severe!disabilities!to!choose!integrated!employment,!and! recognizes!the!value!of!both!full!and!part!time!employment.!! It!goes!further!to!direct!the!DBHDS!to!provide!training!and!consultation!to!providers;! create!teams!including!DARS,!CSBs!and!ESOs!to!use!evidenceObased!supported!employment! models;!build!these!options!into!the!waivers!for!both!ID!and!DD!in!partnership!with!DMAS,! maintain!the!!SELN!AG!!as!a!resource!for!systems!development;!!and!develop!an! implementation!plan!to!increase!integrated!day!opportunities!including!supported! employment,!community!volunteer!activities,!community!recreation!opportunities!and! other!integrated!day!activities.! The!DBHDS!is!expected!to!work!with!the!CSBs!to!establish!outcomes!for!increasing! employment,!address!barriers,!set!performance!contract!goals!to!include!employment!and! expand!evidenceObased!practices!and!monitor!progress!and!results.!It!is!also!expected!to! work!with!the!provider!community!to!establish!and!sustain!real!work!for!people!with! disabilities!and!collaborate!with!the!State!Department!of!Education!and!local!schools!on! transition!planning!and!supporting!employment.!! The!DBHDS!has!included!a!provision!in!its!FY13!and!FY14!Community!services! Performance!Contract!that!states:! e.!Department!of!Justice!Settlement!Agreement!Requirements! 9.)!Comply!with!State!Board!Policy!1044!(SYS)!12O1!Employment!First![section!III.C.7.b].! This!policy!supports!identifying!communityObased!individual!supports!employment!in! integrated!work!settings!as!the!first!priority!service!option!offered!by!case!managers!and! support!coordinators!to!individuals!receiving!day!support!or!employment!services.! The!CSBs!are!to!demonstrate!their!compliance!starting!in!July,!2013.!Workgroup!8:!the! compliance!and!data!committee!has!been!charged!to!verify!that!case!managers!have!offered! this!to!all!individuals!who!are!seeking!day!or!employment!services!by!discussing!it!as!part! of!the!individual!planning!process.!The!DBHDS!planning!form!has!been!reformatted!so!that! employment!is!now!the!first!topic!discussed!with!the!consumer.!The!case!managers!will! submit!a!report!that!includes!information!that!employment!was!explained,!discussed!and! offered!to!the!individual.!In!my!interviews!with!CSB!representatives!on!the!SELN!AG!it!was! reported!that!there!has!been!no!further!guidance!and!the!CSBs!have!not!yet!set!the! expectation!for!the!case!managers!specifically.!One!CSB!has!formed!a!workgroup!to!develop! its!own!protocol.!!Further!guidance!regarding!this!requirement!should!be!issued!from! DBHDS!to!the!CSBs!that!also!clarifies!how!this!will!be!monitored.!
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The!DBHDS!does!not!contract!or!have!a!relationship!with!case!managers!who!support!

individuals!with!DD!who!are!accessing!the!DD!waiver.!DBHDS!has!shared!the!Employment!

First!Policy!with!DMAS!and!asked!them!to!communicate!this!to!the!DD!case!managers!and!

strongly!encourage!them!to!discuss!employment!as!the!first!option.!!However!there!

appears!to!be!no!requirement!being!set!forth!to!insure!that!this!is!being!discussed!with!

individuals!with!DD.!Although!the!Settlement!Agreement!does!not!specifically!address!

contractual!requirements!for!the!DD!wavier!and!the!population!it!serves,!the!intention!of!

this!agreement!is!to!benefit!both!individuals!with!ID!and!with!DD.!!I!recommend!that!DMAS!

be!directed!to!make!this!a!requirement!for!individual!planning!for!people!with!DD!who!are!

receiving!waiver!services!and!to!have!a!mechanism!to!make!sure!it!is!being!implemented.!!

The!DBHDS!has!met!the!requirements!of!this!section!of!the!agreement!by!maintain!its!

membership!in!the!SELN!and!creating!a!statewide!SELN!committee;!developing!and!issuing!

the!Employment!First!Policy;!issuing!the!performance!contract!requirement!of!the!CSBs;!

and!hiring!Adam!Sassler!as!the!Employment!Services!Specialist!who!is!devoted!full!time!to!

oversee!and!coordinate!the!employment!first!initiative.!The!involvement!of!the!state!SELN!

AG!as!the!broad!based!stakeholder!group!to!assist!the!state!in!implementing!the!policy!and!

strategic!plan!will!be!addressed!in!the!next!section.!

i.

Within!180!days!the!Commonwealth!shall!develop!an!employment!implementation!

plan!to!increase!integrated!day!opportunities!for!individuals!in!the!target!

population,!including!supported!employment,!community!volunteer!and!

recreational!activities,!and!other!integrated!day!activities.!The!plan!shall:!

A. Provide!regional!training!on!the!Employment!First!policy!and!strategies!

throughout!the!Commonwealth;!and!!

B. Establish,!for!individuals!receiving!services!through!the!HCBS!waivers:!

1. Annual!!baseline!information!regarding:!!

a. The!number!of!individuals!receiving!supported!employment;!

b. The!length!of!time!people!maintain!employment!in!integrated!work!

settings;!

c. Amount!of!earnings!from!supported!employment;!

d. The!number!of!individuals!in!preLvocational!services!as!defined!in!12!

VAC!30L120L211!in!effect!on!the!effective!date!of!this!Agreement:!and!

e. The!lengths!of!time!individuals!remain!in!preLvocational!services.!

2. Targets!to!meaningfully!increase:!

a. The!number!of!individuals!who!enroll!in!supported!employment!each!

year;!and!

b. The!number!of!individuals!who!remain!employed!in!integrated!work!

settings!at!least!12!months!after!the!start!of!supported!employment.!

VIII.The&DBHDS&Strategic&Plan&for&Employment&First&
Heidi!Dix,!Assistant!Commissioner,!Developmental!Services,!DBHDS!!submitted!its!strategic! plan!for!Employment!First!on!November!7,!2012!to!Donald!Fletcher,!Independent!Reviewer! for!the!Settlement!Agreement.!Additional!details!and!updates!were!added!to!the!plan!in!

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January!and!April!of!2013.As!agreed!I!used!the!State!Health!Authority!Yardstick!(SHAY)! rating!scale!to!determine!the!adequacy!of!the!plan!since!it!is!a!nationally!recognized!tool!to! review!state’s!or!public!authorities’!ability!to!plan,!develop,!monitor!and!evaluate!evidence! based!practices!regarding!systems!development!and!program!implementation.!There!are! 15!sections!to!the!SHAY!that!cover:!plan!development,!financing,!training,!leadership,!policy! and!regulations,!quality!improvement,!and!stakeholder!involvement.! I!did!not!rate!the!system!on!the!4!areas!related!to!training!or!the!2!areas!related!to!quality.! The!training!rating!scale!is!based!on!determinations!of!the!merits!of!the!didactic!training! materials!used,!supervision!of!trainers,!the!use!of!evidence!based!training!practices,!and! the!use!of!active!training!strategies.!This!is!not!the!type!of!training!that!is!being!offered!as! part!of!this!initiative!nor!is!it!a!requirement!of!the!settlement!a greement.!I!will!review!the! training!that!has!been!offered!later!in!this!section!without!using!the!SHAY!rating!scale.!I!did! not!use!the!2!sections!related!to!quality!improvement:!fidelity!assessment!or!client! outcomes!because!it!is!too!early!in!the!planning!and!implementation!process!to!evaluate! the!system!regarding!these!components.!! Using!the!SHAY!rating!scale!in!the!other!areas,!the!plan!and!planning!process!have!an! overall!rating!of!3.3!out!of!5.!Each!section!is!rated!and!an!explanation!of!the!rating!is! provided!in!Attachment!A.!It!also!includes!recommendations!for!improvement.!While!there! are!recommendations!for!areas!that!may!be!strengthened!in!terms!of!implementing!the! plan,!the!Commonwealth!had!met!the!requirement!of!developing!a!comprehensive!plan! that!can!serve!as!the!foundation!to!accomplish!the!systemic!change!that!is!necessary!to! fully!realize!the!Employment!First!Policy!now!in!effect!in!Virginia.! However,!there!has!not!been!any!formal!planning!to!develop!a!robust!service!delivery! system!that!includes!integrated!day!activities!including!community!volunteer!opportunities! and!integrated!recreation!activities.!It!is!notable!that!the!Commonwealth!is!focused!on! advancing!employment!and!has!a!desire!to!establish!itself!as!a!leader!in!employment!for! people!with!disabilities.!Nationally!states!are!striving!to!achieve!employment!for!all! individuals!with!disabilities!as!recognized!through!the!Alliance!for!Full!Participation,!the! active!engagement!of!a!majority!of!states!in!the!SELN!and!the!issuance!of!many! Employment!First!Policies.!Employment!is!the!age!appropriate!endeavor!for!adults!and! working!brings!individuals!a!wealth!of!tangible!and!intangible!benefits.!These!include:!! moving!people!out!of!poverty,!helping!them!to!be!respected!members!of!their!communities! recognized!for!their!skills!and!abilities,!and!providing!opportunities!for!them!to!make! contributions!to!these!communities.! However,!the!DOJ!and!Commonwealth!have!agreed!though!this!settlement!that!integrated! day!services!will!be!part!of!the!response!to!improve!the!system!of!supports!for!persons! with!ID!and!DD.!It!is!recommended!that!DBHDS!and!DMAS!work!together!to!submit!a!plan! that!includes!strategies!and!resources!to!address!this!requirement!and!share!it!with!the! Independent!Reviewer!within!6!months.!
IX. Training&
Section!II!of!the!Strategic!Plan!addresses!training!and!technical!assistance.!There!is!an! understanding!that!an!initiative!such!as!this!can!only!be!acco mplished!through!significant! education!to!increase!stakeholder’s!awareness!of!Virginia’s!Employment!First!initiative,! national!trends!and!federal!expectations.!The!plan!includes!many!initiatives!including:!!an!
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annual!state!employment!summit!with!key!leadership;!quarterly!regional!summits;!the! development!of!a!dedicated!website;!development!of!a!comprehensive!training!plan!in! employment!practices;!training!for!case!managers!and!service!providers!in!work!incentives! and!benefits!counseling;!training!on!innovative!employment!support!models!for!direct! service!staff;!outreach!to!families!and!individuals,!and!outreach!to!the!business! communities.!!With!the!exception!of!the!summits!which!have!occurred!and!the!outreach! packet!for!families!and!individuals!that!has!been!developed,!the!remaining!components!are! to!be!available!in!September!2013.! DBHDS!and!particularly!Adam!Sass!are!to!be!complimented!on!the!amount!of!outreach,! education!and!training!he!has!arranged!and!directly!provided.!His!focus!is!on!education!and! outreach!and!he!conducts!4O5!sessions!each!month!with!stakeholder!groups!and!often! coordinated!with!local!CSBs.!He!has!presented!to!the!E mployment!Service!Organizations! (ESO)!which!are!the!providers!of!preOvocational!and!employment!services.!Many!of!these! offer!sheltered!workshops!and!Adam!talks!to!them!about!changing!their!business!model.! He!attends!Career!Supports!meetings!that!CSBs!hold!with!ESOs!to!continue!the!dialogue! about!how!to!change!the!course!of!their!services!to!supported!employment.!He!has!also! presented!to!case!managers!their!supervisors!and!the!managers!of!CSBs.!He!has!presented! to!parent!and!advocacy!groups!and!schools!about!employment!and!its!benefits.!He!is! creating!linkages!with!the!VA!Interagency!Community!Transition!Councils!in!each!county! which!is!coordinated!by!DARS!and!DOE!to!provide!information!to!local!schools!about! resources!for!transition!planning!for!college!and!employment.! The!DBHDS!reports!that!over!54!presentations!were!offered!between!5/2011!and!12/2012! and!Mr.!Sass!has!continued!to!educate!groups!in!the!first!quarter!of!2013.!Over!1800! people!attended!these!trainings!which!include!the!First!and!Second!Annual!Employment! First!Summits!which!had!attendance!of!almost!300!stakeholders!in!2011!and!175!attendees! in!2012.!Other!training!opportunities!have!been!provided!across!Virginia!and!have! included!state!agency!staff,!CSB!case!managers!and!employment!staff,!ESOs,!residential! providers,!training!center!staff,!advocates,!selfOadvocates,!and!community!colleges.!These! presentations!are!summarized!in!Attachment!C.! The!Commonwealth!is!meeting!its!obligation!under!the!Settlement!Agreement!to!provide! training!and!its!plan!to!develop!more!specific!training!for!ESO!providers!is!critical!to!the! success!of!this!initiative.!!!Providers!who!have!historically!operated!sheltered!workshops!or! other!segregated!settings!for!day!services!will!need!both!training!and!technical!assistance! to!shift!the!business!model!to!one!of!providing!supported!employment.!!The!plan!also! includes!training!for!families!and!individuals!about!benefits.!People!are!often!very!confused! about!the!impact!of!earing!wages!on!the!benefits!they!receive!by!virtue!of!their!disabilities.! Much!has!changed!over!the!past!decade!in!recognition!of!the!loss!of!benefits!as!a!barrier!for! individuals!and!families!to!pursue!competitive!employment!with!commensurate!wages.!! Adam!Sass!does!include!the!topic!of!benefit!retention!in!his!presentations.!VAOaccess!has!a! grant!to!provide!free!training!on!this!topic.!DARS!offers!benefit!training!and!has!one!work! incentive!specialist!to!help!people!plan!for!benefit!retention.!DBHDS!and!DARS!are!working! to!create!a!new!work!incentive!manual!to!provide!another!resource!to!individuals!and!their! families.!Information!is!also!on!the!DBHDS!website!entitled!Work!World!and!Virginia! Commonwealth!University!(VCU)!is!developing!work!incentive!training.!The!availability!of! this!information!and!an!understanding!by!individuals,!their!families!and!case!managers!as!
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to!how!to!access!it!will!be!very!important!in!helping!people!to!make!informed!decision! about!employment.!
X. The&Engagement&of&Stakeholders&
The!VA!SELN!AG!was!established!to!assist!the!DBHDS!in!creating!the!strategic!plan,!setting! the!targets!and!providing!ongoing!guidance!and!assistance!to!implement!the!plan!and!the! Employment!First!Policy.!The!SELN!AG!represents!stakeholders!including!selfOadvocates,! families,!advocacy!organizations,!CSBs,!state!agencies,!universities!and!employment! providers.!The!SELN!AG!has!been!in!existence!since!2008!and!undertook!a!selfO!assessment! with!the!consultants!from!the!national!SELN!from!which!the!group!developed!a!work!plan.! That!work!plan!was!used!in!the!creation!of!the!Strategic!Plan!for!Employment!First:! Expanding!Employment!Opportunities!written!in!October!2012.! As!part!of!the!research!for!this!review!of!the!Commonwealth’s!compliance!with!the! employment!services!requirements!of!the!Settlement!Agreement,!I!interviewed!9!members! of!the!SELN!AG.!This!included!CSB,!state!agency,!provider,!family!and!advocacy! representatives.!I!asked!the!members!questions!about!the!involvement!of!the!SELN!in! creating!the!strategic!plan;!the!adequacy!of!the!plan;!the!effectiveness!of!the!interagency! coordination;!outreach!that!has!been!done;!the!barriers!facing!Virginia!as!it!seeks!to! implement!its!employment!strategies;!and!the!adequacy!of!the!employment!targets!that! have!been!set.!!Members!are!very!committed!to!the!work!of!the!SELN!and!in!advancing! employment!first!as!the!policy!of!Virginia.!
7. SELN&AG&members&input&into&the&plan&and&its&adequacy&to&advance& employment&for&people&with&ID&and&DD:!There!is!general!concern!that!the!SELN! AG!did!not!have!the!opportunity!to!have!meaningful!input!into!the!design!of!the! strategic!plan!or!to!provide!feedback!before!it!was!submitted!to!the!Independent! Reviewer.!SELN!AG!members!want!the!opportunity!to!review!any!documents! prepared!and!have!enough!advance!time!to!insure!a!thorough!review!and! meaningful!input.!Members!would!like!to!return!to!regularly!scheduled!meetings.! The!DBHDS!may!want!to!consider!conducting!these!as!webinars!to!get!more! consistent!participation!from!members!who!now!travel!far!distances!to!attend.!! Members!think!that!the!meetings!can!be!better!organized!to!help!the!group!achieve! its!goals!and!use!the!time!most!productively!to!focus!on!strategic!planning!and! implementation.!Changes!in!membership!make!it!difficult!to!build!and!maintain! momentum.!It!is!recommended!by!a!member!that!byOlaws!be!developed!that!include! a!term!limit!and!appointment!process.!
SELN!AG!members!who!were!interviewed!agreed!the!plan!included!the!essential! elements!that!needed!to!be!addressed!but!question!if!the!plan!goes!far!enough.!The! barriers!that!the!plan!seeks!to!address!are!comprehensively!identified.!One!member! believes!there!should!be!more!focus!on!the!transition!of!students!to!adult!services.!This! perspective!is!supported!by!another!comment!that!the!plan!is!currently!too!focused!on! the!waiver!participants!rather!than!the!broader!group!of!people!with!ID!and!DD.! Concern!is!expressed!that!these!barriers!have!been!known!to!the!Commonwealth!for!
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years!and!the!plan!lacks!specificity!about!the!strategies!that!will!be!taken!to!implement! the!activities!and!monitor!progress.!Since!the!strategic!plan!has!been!completed!there! have!been!no!subsequent!discussions!with!the!SELN!AG!about!the!i mplementation!of! the!various!recommendations!many!of!which!are!expected!to!be!completed!by! September!2013!according!to!the!document’s!timetable.! 8. Interagency&Cooperation:!The!state!agencies!that!participate!are!committed!to!the!
philosophy!and!direction!of!the!employment!initiative!and!are!active!members!of! the!SELN!AG.!A!recent!study!on!autism!by!the!Joint!Legislative!Audit!and!Review! Committee!which!addressed!employment!issues!and!the!inclusion!of!employment!in! the!Settlement!Agreement!have!helped!to!create!a!common!vision!and!bring! stakeholders!together.!The!general!consensus!is!that!DBHDS!needs!to!empower!the! SELN!AG!to!build!on!this!momentum!and!identify!the!collaborations!more! specifically!that!must!occur!to!accomplish!the!plan.!One!example!is!that!the!agencies! all!agreed!to!the!questions!to!be!used!to!review!policies!and!regulations!and!make! sure!they!are!aligned!with!the!Employment!First!Policy!but!there!has!been!no!use!of! them!or!follow!up.!A!commitment!to!data!collection!and!using!it!to!make!sure!the! baseline!is!correct!and!that!the!progress!towards!meeting!the!targets!can!be! assessed!accurately!is!critical.!! 9. Outreach:!As!has!been!noted!earlier!the!DBHDS!has!made!a!significant!commitment! to!outreach.!All!SELN!AG!members!interviewed!stressed!the!importance!of!this! endeavor!and!suggested!the!SELN!AG!be!involved!in!this!to!support!the!department! as!it!seeks!to!inform!families!and!individuals!of!this!initiative!and!it!works!with! schools,!CSBs!and!ESO!providers.! 10. Barriers&to&achieving&Employment&First:!There!is!a!variety!of!opinion!of!the!most! significant!barrier!but!those!interviewed!identified!and!focused!on!the!following:!
• The need to address the rate structure for employment services in the waivers, the service definitions, and incentives existing ESOs will need to transform their business model
• The mindset of case managers and providers • The availability of funding for individuals with ID and DD for supported employment DBHDS!and!DMAS!have!made!progress!on!the!rates!and!have!started!to!address!the! need!to!pay!for!comparable!services!under!the!HCBS!waivers!as!the!Commonwealth! does!through!DARS!for!supported!employment.!The!DBHDS!has!also!issued!an!RFP! for!consulting!support!to!assist!DMAS!and!DBHDS!to!rewrite!the!waivers!to!include! employment!modifications.! This!years’!budget!added!funding!to!DARS!to!start!to!address!the!VR!Order!of! Selection!(waiting!list)!by!providing!funding!for!1/3!of!the!2,280!people!with! disabilities!who!are!waiting!for!DARS!vocational!support.!It!also!restored!some! funding!for!the!longOterm!employment!support!services!(LTESS)!which!assists! people!with!more!significant!disabilities!to!stay!employed.!As!has!been!noted!before! the!Commonwealth!is!significantly!increasing!the!funding!for!the!HCBS!waivers!in! its!response!to!the!DOJ!and!the!numbers!of!waiver!participants!will!increase!over! the!course!of!the!agreement.!This!will!help!many!people!to!transition!to!the!
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community!and!come!off!the!waiting!lists.!During!the!course!of!the!implementation! of!this!agreement!it!will!be!important!to!determine!how!many!of!the!new!slots! benefit!people!seeking!employment.! 11. Targets&for&Increasing&Employment:!The!review!of!the!DBHDS!targets!follows!this! section.!This!is!a!summary!of!the!SELN!AG!members’!feedback!on!the!adequacy!of! these!targets.!The!SELN!AG!members!discussed!the!targets!initially!and!a!subO committee!of!the!SELN!assisted!DBHDS!to!develop!them.!The!majority!of!members! who!I!interviewed!did!not!think!that!the!targets!were!set!high!enough.!However,! members!do!acknowledge!that!the!numbers!set!for!the!first!year!needed!to!factor!in! the!systemic!barriers!that!are!in!the!process!of!being!addressed!but!are!not!yet! resolved.!There!is!also!some!concern!about!the!accuracy!of!the!baseline!data!and! whether!it!is!duplicative!especially!related!to!individuals!who!may!move!between! GSE!and!ISE.!There!is!agreement!among!the!members!that!the!Commonwealth!will! be!able!to!meet!these!targets.!!
XI. Baseline&Information&and&New&Targets&For&Supported&Employment&
The!DBHDS!set!its!employment!targets!for!the!time!period!March!6,!2013!–!February!28,! 2014.!This!was!shared!along!with!the!baseline!information!required!by!the!Settlement! Agreement!with!the!Independent!Reviewer!in!correspondence!from!Olivia!Garland,!Deputy! Commissioner!on!March!29,!2013.!!The!baseline!information!is!summarized!in!Table&2.!

Table 7: Baseline Employment Information

Baseline Categories

Number Served

The number of individuals receiving ISE in the past year

176 (135 new enrollees)

The number of individuals receiving GSE in the past year

634

The total number receiving supported employment in the past year (ISE and GSE)

810

The number who remained in ISE for 12 or more months

133

The number in pre-vocational services as of the date of this agreement

819

The number who remained in pre-vocational services for 12 or more months

675

Of!the!total!number!of!people!in!Supported!Employment,!the!majority!are!in!GSE!(78%)! and!22%!receive!individual!support!through!ISE.GSE!does!include!individuals!who!may!be! in!congregate!facilities!if!people!without!disabilities!are!employed!there!as!well.!The!parties! may!want!to!review!the!Commonwealth’s!definition!of!GSE!and!determine!if!these! individuals!should!continue!to!be!included!and!counted!under!GSE!for!the!purposes!of!

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determining!compliance!with!the!Settlement!Agreement.!Of!those!in!ISE,!76%!maintained! employment!in!integrated!work!settings!for!at!least!1!year.! During!the!baseline!period!the!average!earning!for!individuals!in!supported!employment! was!$1,171.08!per!quarter.! DBHDS!worked!with!the!SELN!AG!to!develop!the!targets!for!the!coming!year!ending! 2/28/14.!!The!full!advisory!committee!reviewed!the!baseline!data!and!discussed!the! parameters!for!consideration!in!setting!the!targets.!The!specific!methodology!used!resulted! from!more!inOdepth!conversations!with!the!SELN!AG!data!subOcommittee.!Table!3!provides! a!summary!of!the!targets!set!in!response!to!the!requirements!of!the!Settlement!Agreement.! ! !

Table 8: Targets to Meaningfully Increase Employment

Target Category

Numerical Target

The number of individuals who enroll in supported employment each year

162 new enrollees

The number of individuals who remain in integrated work settings for 12 or more months

138 individuals (85% of new enrollees)

These targets set a modest increase from the accomplishments of the previous year. The DBHDS hopes to increase the number of new enrollees by 27 individuals which represents a 20% increase over the number enrolled in the previous year. The goal of having 138 individuals maintain their employment in an integrated work setting increases that by 5 individuals from the previous year. This increases the retention to 85% of those employed versus 76% previously.
The!SELN!AG!Data!Subgroup!was!charged!to!assist!DBHDS!to!develop!the!targets.!Adam! Sass!reports!that!the!committee!discussed!the!following!factors!in!determining!the!target! goals.!They!reviewed!the!baseline!information;!considered!national!data!that!indicates!that! 20%!of!people!served!in!day!services!are!receiving!employment!support;!accounted!for!the! number!of!providers!who!currently!offer!supported!employment;!and!reflected!the! systemic!barriers!that!needed!to!be!addressed!and!the!status!of!progress!to!correct!or! eliminate!them.! !While!there!is!no!intention!to!exclude!individuals!who!are!coming!into!the!system!new!to! any!type!of!day!or!employment!support,!the!subgroup!and!DBHDS!decided!to!focus!the! goals!on!people!already!receiving!either!preOvocational!services!or!participating!in!GSE.!! This!decision!was!influenced!by!the!department’s!and!SELN’s!analysis!that!these!are! important!groups!to!prioritize!because!the!success!in!moving!these!individuals!would! benefit!the!system!in!two!ways.!First!and!foremost!more!individuals!will!have!real! employment!which!is!the!overall!goal.!Second,!if!ESOs!that!currently!are!primarily!invested! in!the!operation!of!sheltered!workshops!are!part!of!successful!transitions!for!individuals! they!serve,!they!will!hopefully!embrace!the!state’s!employment!first!direction.!It!is!to!the! department’s!credit!that!they!want!to!use!the!target!setting!in!a!strategic!way!that!will!

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contribute!to!the!infrastructure!changes!that!are!necessary!to!achieve!meaningful! employment!for!individuals!with!intellectual!and!developmental!disabilities.!It!is!also!a! strong!statement!in!support!of!the!Employment!First!Policy!that!the!state!seeks!to!increase! ISE!rather!than!GSE.! However!the!department!did!not!seem!to!take!into!account!the!following:! ► Virginia has very few participants of its waivers who receive supported employment out of the
total number of people served through the HCBS waivers. The DBHDS reports a total of 9027 individuals are enrolled in the 3 HCBS waivers serving people with ID or DD in FY11. As of that fiscal year only 2% were in ISE and were 6% in GSE. Another 8% were in pre-vocational programs. ► Waiver enrollment is expected to increase by an additional 4170 individuals over the course of the Settlement Agreement. Between FY12- FY 15 this increase will be as follows:
• 470 people from the Training Centers • 975 people from the waiting list for ID waivers of whom 75 are children under the age of
22 • 225 people form the waiting list for the DD waiver of whom 45 are children under the age
of 22 This!adds!1,670!individuals!to!the!waivers!for!a!total!of!almost!10,700!waiver! participants!by!the!end!of!FY15.!!To!reach!an!overall!number!enrolled!in!supported! employment!percentage!to!20%!the!DBHDS!would!need!to!have!a!multiO!year!plan!to! increase!to!2,140!people!receiving!supported!employment.!!Whether!or!not!this!is! achievable!and!in!what!timeframe!it!is!realistic!to!accomplish!such!a!goal!should!be! an!ongoing!discussion!between!the!DBHDS,!DMAS!and!the!SELN!AG.!This!will!assist! the!Commonwealth!to!implement!the!Employment!First!Policy!and!set!more! ambitious!targets!to!support!those!waiver!participants!interested!in!employment.! The!letter!from!Deputy!Commissioner!Garland!states!the!target!is!162!individuals!in! each!year.!Adam!Sass!reported!that!the!SELN!AG!is!interested!in!increasing!that! target!by!20%!more!in!the!following!reporting!period!and!then!50%!in!the!3rd!year.! This!would!indicate!future!targets!of!194!for!Year!2!and!233!for!Year!3!adding!a! total!of!589!individuals!to!ISE.!This!will!demonstrate!progress!if!the!DBHDS!accepts! the!recommendations!of!the!SELN!AG!but!will!only!result!in!a!total!of!12%!in!ISE!and! GSE,!if!GSE!holds!constant!at!634!people!and!ISE!expands!to!765!of!which!85%! retain!their!employment!for!12!or!more!months.!The!total!percentage!of!ISE!and!GSE! is!8%.! The!parties!should!discuss!after!reviewing!the!achievements!of!this!first!year!of! targeting!setting!whether!future!year!targets!should!be!increased.!The!fact!that!114! individuals!have!been!enrolled!in!ISE!in!the!last!2!quarters!indicates!the!DBHDS! should!exceed!its!target!of!162!even!if!the!number!for!1/13O3/13!is!somewhat! higher!because!of!the!Order!of!Selection!being!implemented!at!DARS.!That!higher! number!does!not!include!anyone!who!may!have!enrolled!in!the!DD!waiver!because! of!the!previously!mentioned!data!reporting!problem.! ► DBHDS did not consider new people from the waiting lists enrolling in the waivers when it set the targets for this first year. As a strategy it is appropriate to plan to move people from prevocational and GSE to ISE as they are already participating in some type of work or job training and the goal for them should be individual supported employment and eventually competitive employment if appropriate as they have the interest and skill base to work.
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 112 of 147 PageID# 4932
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
However, the Commonwealth has issued its Employment First Policy which stresses that employment should be the first option offered to people newly entering the service delivery system as well as those who are on waivers but not employed. In recognition of the number of people who will receive waiver services for the first time as a result of the Settlement Agreement the DBHDS and DMAS should project that a percentage will want to pursue employment and need support to do so. ► The targets do not reflect the number of people leaving the Training Centers who will transition to waiver services. These individuals are also to be offered employment as the first option and a percentage of them will also be interested and will need to have supports offered to them. These are recommendations that DBHDS might want to consider in projecting future targets: ► Set separate targets for DBHDS and for DMAS and track individually ► Assess individuals on the waiting list and those who reside at the Training Centers using a 
 standardized assessment tool such as the SIS to determine people’s interest and abilities to 
 work. This data should be reviewed by the DBHDS, DMAS and the SELN AG and used to 
 project future targets
 ► Determine the existing capacity of the ESOs to respond to growing demand for ISE and
 determine if it is necessary to implement actions to increase this capacity
 ► Determine if it is possible to target any waiver funding to a set number of school graduates 
 each year who are on the waiting list and who want employment support as another approach 
 to increasing the number of people with ISE.

I also recommend that DBHDS utilize the expertise of the national SELN to assist them to set 
 employment targets for future years.

XII. Conclusions&
The!Commonwealth!is!to!be!commended!for!its!progress!to!date!establishing!its! Employment!First!Policy!and!initiative!and!its!efforts!to!comply!with!the!requirements!of! the!Settlement!Agreement!as!it! directs!changes!to!employment!services.!The!support!of!the! Governor!and!Legislature!provide!a!strong!message!of!leadership!as!to!the!importance!of! this!undertaking.!There!is!significant!involvement!of!the!various!state!agencies!and!an! identification!of!the!barriers!they!must!address!to!fully!support!the!desire!for!people!with! disabilities!to!have!meaningful!employment!and!participation!in!community!life.! This!effort!is!in!its!initial!stage!and!as!with!all!comprehensive!initiatives!to!achieve! systemic!change!is!fraught!with!challenges.!To!insure!the!success!of!this!endeavor!it!will!be! important!to!maintain!and!stren gthen!the!involvement!of!stakeholders!especially!through! the!established!SELN!AG!utilizing!the!expertise!and!commitment!of!this!group!to! implement!the!strategic!plan;!!pursue!the!necessary!changes!to!the!HCBS!waivers;!continue! to!provide!adequate!funding!for!employment!supports;!fund!the!needed!training!of!CSB! case!managers!and!employment!specialists,!ESO!staff,!families!and!consumers;!provide! support!to!providers!who!want!to!change!their!business!model;!and!focus!on!providing! employment!support!to!the!number!of!people!with!ID!and!DD!who!wish!to!work.! Throughout!this!report!and!the!attached!SHAY!rating!scale!recommendations!are!made!in! an!effort!to!assist!the!Commonwealth!to!further!it!employment!services!and!integrated!day! services!goals.!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 113 of 147 PageID# 4933
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
XIII.Attachment&1—&Proposal&to&Evaluate&the&Implementation&&
Proposal(to(Evaluate(the(Implementation(
 of#the#VA#Settlement#Agreement# Requirements+for+Employment+Services+
 and$Crisis$Services$through$4/6/13!
Prepared&by&Kathryn&du&Pree,&Vice&President,&The&Lewin&Group:&March&12,&2013&
Employment Services The!Settlement!Agreement!requires!the!Commonwealth!to!accomplish!the!following:! 7.!Integrated!Day!Activities!and!Supported!Employment!!
a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment.
► The expert consultant will report on the day service opportunities offered to individuals placed on the waiver during FY12 and FY13 (to date) who are part of the target population.
Data&source:& DBHDS!will!provide!a!written!summary!of!the!day!service!options!provided!to!these! individuals!and!evidence!of!the!discussions!about!these!options!during!the!personOcentered! planning!process.!
b. The Commonwealth shall;
► Maintain its membership in the State Employment Leadership Network (SELN) established by NASDDDS.
► Establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy.
► The principles of the EF Policy include offering employment as the first and priority service option; providing integrated work settings that pay individuals minimum wage; discussing employment options with individuals through the person-centered planning process at least annually.
► Employ at least one employment services coordinator to monitor the implementation of employment first practices
► The expert consultant review the activities of this group related to furthering the Commonwealth’s ability to meet the employment service requirements of the Settlement Agreement including their involvement in creating the strategic plan and participating in planning and implementation activities.
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 114 of 147 PageID# 4934
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
Data&sources:& The!DBHDS!Strategic!Plan!for!Employment!First;!minutes!of!the!SELN!Advisory!Group’s! quarterly!meetings!and!interviews!with!SELN!members! ► The expert consultant will review the Employment First Policy to determine if it is inclusive of
the principles set forth in the Settlement Agreement and affirm that it includes a contractual requirement of the CSBs and that this contract revision has been executed
Data&Sources:& The!DBHDS!Employment!First!Policy;!the!contract!template!for!the!CSBs;!documentation!of! contract!execution! ► The Reviewer will determine if the DBHDS has issued its expectations to case managers and
providers that employment is to be discussed at the person-centered planning meetings for the target population.
Data&Sources:& The!DBHDS!will!be!asked!to!provide!any!policies,!protocols,!and!guidance!that!have!been! issued!to!case!managers,!providers,!families!and!individuals.!
i.& Within&180&days&the&Commonwealth&shall&develop&an&employment&implementation&plan& to&increase&integrated&day&opportunities&for&individuals&in&the&target&population,&including& supported&employment,&community&volunteer&and&recreational&activities,&and&other&integrated& day&activities.&The&plan&shall:&
H. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
I. Establish, for individuals receiving services through the HCBS waivers:
1. Annual!!baseline!information!regarding:!! a. The!number!of!individuals!receiving!supported!employment;! b. The!length!of!time!people!maintain!employment!in!integrated!work! settings;! c. Amount!of!earnings!from!supported!employment;! d. The!number!of!individuals!in!preOvocational!services!as!defined!in!12! VAC!30O120O211!in!effect!on!the!effective!date!of!this!Agreement:!and! e. The!length!of!time!individuals!remain!in!preOvocational!services.!
2. Targets!to!meaningfully!increase:! a. The!number!of!individuals!who!enroll!in!supported!employment!each! year;!and! b. The!number!of!individuals!who!remain!employed!in!integrated!work! settings!at!least!12!months!after!the!start!of!supported!employment.!
The!expert!consultant!will!review!the!strategic!plan!to!determine!if!it!is!comprehensive!and! supports!fully!the!implementation!of!the!Settlement!Agreement!requirements!for!the! Commonwealth!to!create!a!system!that!fully!supports!individuals!with!intellectual!or! developmental!disabilities!to!be!fully!employed!or!participate!in!integrated!day!activities!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 115 of 147 PageID# 4935
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
through!its!infrastructure,!policies,!regulations,!and!funding!mechanisms.!The! Commonwealth’s!progress!toward!serving!people!in!supported!employment,!helping!them! maintain!their!jobs!and!be!paid!competitive!wages!will!be!reviewed!against!the!targets!set! by!DBHDS.! The!expert!consultant!will!use!the!State!Health!Authority!Yardstick!(SHAY)!plan!review! criteria;!leadership!criteria;!policy!and!regulations,!and!program!standards!criteria!to! determine!the!adequacy!of!the!plan!considering!the!requirements!of!the!Settlement! Agreement.!The!criteria!include!the!following!elements:! Plan&Review&Criteria:!The!plan!has!a!defined!scope!for!initial!and!future!implementation! efforts;!there!is!a!strategy!for!outreach!and!consensus!building!among!providers!and!other! stakeholders;!the!plan!identifies!partners!and!community!champions;!identifies!funding! sources;!includes!training!resources;!identifies!policy!and!regulatory!levers!to!support!the! plan;!defines!the!role!of!other!state!agencies!in!supporting!and!implementing!the!plan;! defines!how!the!initiative!interfaces!with!other!priorities!and!supports!the!mission;!has!an! evaluation!approach!for!implementation!and!outcome!achievement;!has!evidence!that!the! plan!is!written!and!endorsed!by!the!lead!state!agency.! Leadership&Criteria:!The!leadership!of!the!department!is!perceived!as!effective!to!lead!the! employment!initiative!and!sets!it!as!a!top!priority;!the!employment!plan!is!incorporated!in! the!state!plan!or!other!agency!documents;!at!least!one!staff!is!allocated!to!the!initiative!and! has!the!necessary!authority!to!lead!it;!there!is!allocation!of!nonOpersonnel!resources;!the! leadership!uses!internal!and!external!meetings!including!meetings!with!stakeholders!to! move!the!employment!initiative!forward;!can!cite!successful!examples!of!removing!policy! barriers!or!establishing!new!policy!supports!for!the!employment!initiative;!the! employment!leader!has!adequate!time!for!implementation;!there!is!evidence!that!the! employment!leader!has!the!necessary!authority!to!implement!the!initiative;!the!leader!is! viewed!as!effective.! Policy&and&Regulations:!DBHDS!has!developed!effective!interagency!relationships!(state,! CSBs,!legislature)!to!support!and!promote!the!e mployment!initiative;!identifies!and! removes!or!mitigates!barriers!to!employment!implementation;!has!introduced!new! regulations!or!policies!as!necessary!to!support!employment;!DBHDS!has!reviewed!its!own! regulations,!policies!and!procedures!to!identify!and!remove!or!mitigate!any!barriers!to! employment.! Program&Standards:!DBHDS!has!developed!and!implemented!program!standards! consistent!with!the!employment!model!that!explicitly!sets!expectations!consonant!with! employment!principles!and!fidelity!components!for!service!delivery;!has!incorporated!the! standards!into!contracts!and!criteria!for!grant!awards,!licensing!and!certification;!monitors! whether!the!standards!are!met;!defines!the!consequences!if!the!standards!are!not!met.! Data&Sources:& The!Strategic!Plan!for!Employment!First;!updates!from!DBHDS!on!activities!and!
 accomplishments!of!any!short!term!objectives!to!be!accomplished!by!4/6/13!or!that!will!
 have!an!interim!status!report!by!this!time.!This!includes!Activity!I.1.,!II.1,!2!3,4,5,6,7;!
 V.1,2,3,4;training!documentation;!DOJ!Project!Employment!First!1/27/13!and!4/13!
 updates;!interview!with!the!Employment!Services!Coordinator.!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 116 of 147 PageID# 4936
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
A. Regional!Quality!Councils!shall!review!the!data!on!a!quarterly!basis!and!shall! consult!with!providers!and!the!SELN!regarding!the!need!to!take!additional!measures! to!further!enhance!these!services.!
B. The!regional!Councils!will!annually!review!the!targets!set!pursuant!to!Section!III!C.! &.!B.i.B.2!and!will!work!with!providers!and!the!SELN!to!determine!if!the!targets! should!be!adjusted!upward.!
The!activities!of!the!Regional!Quality!Councils!will!be!reviewed!during!a!subsequent! review.! The!expert!consultant!will!produce!a!report!for!the!Independent!Reviewer!that!summarizes! her!findings!and!recommendations.!
Interview&Questions&for&Employment&Services&
The!following!questions!will!be!asked!of!the!Employment!Services!Coordinator.!SELN! members!will!be!asked!about!their!involvement!in!creating!the!employment!first!policy,!the! employment!strategic!plan!and!the!targets!for!increasing!employment!options,!and!their! sense!of!the!progress!to!date!of!the!initiative.!
1. Who!are!the!identified!partners!in!VA!working!with!DBHDS!to!advance!the! employment!strategic!plan!and!do!their!missions,!goals!and!policies!align!with! DBHDS!in!the!area!of!employment?!
2. How!has!the!new!Employment!First!Policy!been!communicated!and!with!which! stakeholders?!
3. Is!the!state’s!commitment!to!Employment!First!translated!into!regulation!or!policy?! 4. How!did!DBHDS!arrive!at!its!targets?!!What!data!and!input!was!used!to!create!them?!
How!are!the!targets!communicated!and!how!is!success!being!tracked!and! documented?! 5. How!is!employment!as!a!service!priority!communicated!to!families!and!individuals?! How!is!it!captured!in!the!individual!planning!process!and!the!plan?!! 6. Who!is!involved!in!this!initiative!at!the!leadership!level!within!DBHDS?!Other!state! agencies?!Family!and!advocacy!groups!including!selfOadvocates?!Providers?! 7. How!are!these!leaders!in!the!strategic!planning!process?! 8. Are!the!rates!for!employment!services!set!and!competitive?!Are!there!incentives! built!in!for!providers!who!offer!supported!employment?!Is!there!reimbursement!for! providers!for!nonOdirect!service,!employment!related!activities?!Do!individuals!have! their!own!budgets!and!portability!of!funding!to!shift!among!providers!to!find!the! right!fit?! 9. Do!the!waiver!definitions!include!employment!services?!! 10. What!is!the!status!of!sheltered!work!in!VA?! 11. What!are!the!contractual!expectations!regarding!employment!outcomes!for!CSBs! and!providers!and!how!are!they!monitored?!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 117 of 147 PageID# 4937 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! 12. What!training!has!been!provided!to!CSB!case!managers!and!employment!staff! regarding!the!employment!first!policy!and!benefit!retention!for!individuals!who!are! employed?!
Page!17!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 118 of 147 PageID# 4938 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
XIV. Attachment&2—Shay&Rating&Scale&
State!Health!Authority!Yardstick!
The&SHAY&Rating&Scale&Version&of&3O12O07&

1)!

EBP!PLAN!

20!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 20!

2)!

FINANCING:!ADEQUACY! 23!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 23!

3)!

FINANCING:!START<UP!&!CONVERSION!COSTS!

25!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 25!

4)!

TRAINING:!ONGOING!CONSULTATION!AND!TECHNICAL!SUPPORT!

26!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 26!

5)!

TRAINING:!QUALITY!

27!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 27!

6)!

TRAINING:!INFRASTRUCTURE!/!SUSTAINABILITY! 28!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 28!

7)!

TRAINING:!PENETRATION! 29!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 30!

8)!

DBHDS!LEADERSHIP:!COMMISSIONER!LEVEL!31!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 31!

9)!

DBHDS!LEADERSHIP:!CENTRAL!OFFICE!EBP!LEADER! 33!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 33!

10)! POLICY!AND!REGULATIONS:!NON!DBHDS!STATE!AGENCIES! 35!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 35!

11)! POLICIES!AND!REGULATIONS:!DBHDS!

37!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 37!

12)! POLICIES!AND!REGULATIONS:!DBHDS!EBP!PROGRAM!STANDARDS! 39!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 39!

13)! QUALITY!IMPROVEMENT:!FIDELITY!ASSESSMENT! 40!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 40!

14)! QUALITY!IMPROVEMENT:!CLIENT!OUTCOMES!

41!

EVIDENCE!USED!TO!JUSTIFY!RATING:! 41!

15)! STAKEHOLDERS! 42!

EVIDENCE!TO!JUSTIFY!RATINGS:!

42!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 119 of 147 PageID# 4939 Report&to&the&Independent&Reviewer! !
 EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!

16)! SUMMARY!OF!SCORES! 43!

!

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 120 of 147 PageID# 4940
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
1) EBP PLAN
The!DBHDS!has!an!EBP!plan!to!address!the!following:!(Use!boxes!to!identify!which! components!are!included!in!the!plan)!!
Note:!The!plan!does!not!have!to!be!a!written!document,!or!if!written,! does!not!have!to!be!distinct!document,!but!could!be!part!of!the!state’s! overall!strategic!plan.!However!if!not!written!the!plan!must!be! common!knowledge!among!state!employees,!e.g.!if!several!different! staff!are!asked,!they!are!able!to!communicate!the!plan!clearly!and! consistently.!
13. A!defined!scope!for!initial!and!future!implementation!efforts,! 14. Strategy!for!outreach,!education,!and!consensus!building!among!providers!and!other!
stakeholders,! 15. Identification!of!partners!and!community!champions,! 16. Sources!of!funding,! 17. Training!resources,! 18. Identification!of!policy!and!regulatory!levers!to!support!EBP,! 19. Role!of!other!state!agencies!in!supporting!and/or!implementing!the!EBP,! 20. Defines!how!EBP!interfaces!with!other!DBHDS!priorities!and!supports!DBHDS!
mission! 21. Evaluation!for!implementation!and!outcomes!of!the!EBP! 22. The!plan!is!a!written!document,!endorsed!by!the!DBHDS!
Score:&4H&fully&meets&components&1,&2,&3,&6,&7,&8,&9,and&10&
Score! !
1.#No#planning#activities# 2.#1#–#3#components#of#planning## 3.#4#–#6#components#of#planning## 4.#7#–#9#components## 5.#10#components##
Evidence Used to Justify Rating: DBHDS!has!created!a!very!comprehensive!Strategic!Pan!for!Employment!First.!It!is!a!broad! plan!that!targets!not!only!people!with!intellectual!and!developmental!disabilities!but!also! those!with!serious!mental!illness!and!substance!abuse.!It!builds!upon!the!SELN!Strategic! Plan!Assessment!(2009)!developed!by!the!SELN!Advisory!Group.!This!advisory!group!has!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 121 of 147 PageID# 4941
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
broad!representation!of!self!–advocates,!family!members,!the!educational!community,!CSB!
directors,!state!agencies,!and!providers.!The!plan!includes:! ► Interagency collaboration and an expectation that other state agencies will commit to 

Employment First and change regulations and policies to assure full alignment including the 
 DBHDS plan to revise the waiver day support regulations to emphasize integrated 
 employment and address reimbursement barriers that currently limit providers’ interest in 
 providing individualized employment support over pre-vocational activities (sheltered 
 work);standardize allowable services funded by both DARS and DBHDS to encourage 
 providers of HCBS waiver services for ID to offer individualized supported employment
 ► Interagency collaboration that involves the agencies’ leadership ► An expectation that roles and responsibilities of state agencies will be defined to support 
 streamlined coordination of resources
 ► Comprehensive identification of partners and specific strategies to include them in the SELN, Summits and other stakeholder engagements ► Training and technical assistance through Statewide and Regional Employment First Summits; plan to develop training for employment staff, work incentives and benefits trainings in place and widely available; training for families; and outreach to business communities ► Clear understanding of the important role the state Medicaid agency (DMAS), the state vocational agency (DARS) and the state educational agency (DOE) have in achieving the goals of this project. ► While the employment strategic plan supports the mission of DBHDS and the requirements and intent of the Settlement Agreement, the relationship to other DBHDS initiatives appears to require further exploration. There are person-centered planning resources within the department that could assist with training for the case managers to strengthen their understanding of effectively using this individualized process to encourage employment. There also needs to be a focus on how the department will use its resources to also further integrated day service options that provide opportunities for community inclusion for individuals who do not make an informed choice to seek employment opportunities. ► Identification of funding sources and plans to: braid funding sources of DARS and DBHDS to make supported employment more seamless and coordinated for individuals and develop funding policies and rates that encourage employment providers to expand or newly establish individualized supported employment ► More fully utilize the Ticket to Work program through outreach and education to increase 
 access and use of this among individuals with ID/DD
 ► The plan includes an understanding of the importance of setting goals and using data to 
 determine if the outcomes are being achieved. And sets an objective to establish MOAs with 
 other state agencies to commit the agencies to data sharing for employment and develop the 
 data gathering methodology. 
 ► Targets have been established specifying the increase in supported employment the DBHDS plans to achieve and there is an expectation that the SELN and the Regional Advisory Councils will have a role in monitoring and evaluating the outcomes.
The!plan!recognizes!the!importance!of!training!and!there!has!been!significant!outreach!by!
the!DBHDS!Employment!Specialist!to!a!variety!of!groups!which!will!be!discussed!in!the!
training!section!of!the!full!report.!However,!there!is!no!indication!of!a!funding!source!for!
ongoing!and!comprehensive!training!that!will!be!needed!for!case!managers!and!
Page!21!of!147!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 122 of 147 PageID# 4942 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! employment!providers.!Funding!is!not!clearly!identified!in!the!HCBS!waivers!to!make!sure! all!individuals!who!are!capable!of!employment!and!choose!work!will!have!the!opportunity! to!do!so.!!
Page!22!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 123 of 147 PageID# 4943
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
2) FINANCING: ADEQUACY
Is!the!funding!model!for!the!EBP!adequate!to!cover!costs,!including!direct!service,! supervision,!and!reasonable!overhead?!Are!all!EBP!sites!funded!at!the!same!level?!Do!sites! have!adequate!funding!so!that!practice!pays!for!itself?!!
Note:!Consider!all!sources!of!funding!for!the!EBP!that!apply!(Medicaid! feeLforLservice,!Medicaid!waiver,!insurance,!special!grant!funds,! vocational!rehabilitation!funds,!department!of!education!funds,!etc.)! Adequate!funding!(score!of!4!or!5)!would!mean!that!the!practice!pays! for!itself;!all!components!of!the!practice!financed!adequately,!or! funding!of!covered!components!is!sufficient!to!compensate!for!nonL covered!components!(e.g.!Medicaid!reimbursement!for!covered! supported!employment!services!compensates!for!nonLcovered!on! inadequately!covered!services,!e.g.!job!development!in!absence!of! consumer).!Sources:!state!operations!and!budget,!site!program! managers.!If!financing!is!variable!among!sites,!estimate!average.!!
Score:&3&

1.#No#components#of#services#are#reimbursable##
 2.#Some#costs#are#covered##
 3.#Most#costs#are#covered##
 4.#Services#pays#for#itself#(e.g.#all#costs#covered#adequately,#or#finding#of#covered#

components#compensates#for#nonFcovered#components)## 5.#Service#pays#for#itself#and#reimbursement#rates#attractive#relative#to#competing#
nonFEBP#services.##
Evidence Used to Justify Rating: Individuals!with!ID/DD!receive!funding!through!DARS!for!employment!services!if!they! qualify!for!this!agency’s!employment!support!or!may!receive!employment!support!through! the!HCBS!waivers!for!both!ID!and!DD.!Through!its!commitments!under!the!Settlement! Agreement!the!Commonwealth!has!committed!to!increase!funding!through!its!expansion!of! waiver!slots!for!people!leaving!the!training!centers!and!people!on!the!waiting!lists.! However,!the!DBHDS!and!CSBs!use!the!urgency!criteria!to!determine!who!from!the!waiting! list!is!served.!Many!people!interviewed!reported!that!during!this!first!phase!many!children! and!adolescents!have!been!placed!on!the!waivers.!Others!in!the!urgent!category!of!need! include!individuals!with!significant!behavioral!issues!or!those!with!medical!complexity! who!may!not!engage!in!employment!immediately.!There!has!been!no!targeting!of!any! waiver!funding!for!individuals!who!are!on!the!waiting!lists!who!want!to!work.!The!DD!
Page!23!of!147!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 124 of 147 PageID# 4944 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! waiver!has!a!different!methodology!for!its!waiting!list.!Those!on!for!the!longest!time!period! are!the!first!to!be!placed!on!the!waiver!as!funding/slots!become!available.!This!may! provide!more!opportunity!for!people!with!DD!seeking!employment!to!receive!waiver! funding.!School!graduates!are!not!a!priority!group!to!receive!waiver!funding!as!they!are!in! some!other!states.!This!is!often!a!group!ready!and!interested!in!working!for!competitive! wages.!CSBs!provide!county!funding!for!this!group!but!the!amount!of!funding!varies!by! county.!! There!are!issues!that!must!be!addressed!in!order!for!all!components!of!supported! employment!to!be!funded!at!a!level!that!attracts!providers!to!offering!individual!supported! employment!to!all!who!request!it.!Funding!within!the!DMAS!waivers!was!not!fully!aligned! with!the!rates!of!reimbursement!paid!for!similar!services!by!DARS.!The!Commonwealth!has! begun!to!address!this!through!legislative!changes!that!matched!the!hourly!rate!for!ISE! between!the!2!agencies!and!addressed!the!issue!of!funding!transportation!while!staff! accompanies!the!consumer.!The!time!involved!in!transportation!to!pick!up!the!consumer! and!the!return!time!after!he!is!returned!to!his!residence!is!not!a!reimbursable!cost.! Providers!report!that!this!is!a!major!deterrent!to!providing!ISE!in!rural!areas.!It!is!still! necessary!to!address!indirect!activities!that!are!part!of!job!development!and!to!determine! how!to!reimburse!providers!for!the!documentation!that!is!required!for!ISE.!The! departments!need!to!continue!to!determine!how!to!address!these!outstanding!issues!of! reimbursement!and!will!hopefully!use!its!redesign!of!the!HCBS!waivers!to!do!so.!DARS!has! had!2!years!of!no!new!funding!during!which!time!it!enacted!its!order!of!selection!process! which!constitutes!a!waiting!list!for!new!applicants.!This!year!limited!funding!has!been! made!available!which!is!directed!to!individuals!with!the!severest!level!of!need.!There!is!also! no!current!process!for!people!who!receive!DARS!support!to!automatically!transition!to!one! of!the!HCBS!waivers!when!DARS’!short!term!employment!support!ends.!This!is!another! aspect!of!the!systems!coordination!and!funding!of!employment!support!that!should!be! addressed!through!the!waiver!amendment!process.!
Page!24!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 125 of 147 PageID# 4945 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
3) FINANCING: START-UP & CONVERSION COSTS
Are!costs!of!startO!up!and!or!conversion!covered,!including:!1)!Lost!productivity!for!staff! training,!2)!hiring!staff!before!clients!enrolled!(e.g.!ACT),!3)!any!costs!associated!with! agency!planning!and!meetings,!4)!changing!medical!records!if!necessary,!5)!computer! hardware!and/or!software!if!necessary,!etc.!!
Note:!If!overall!fiscal!model!is!adequate!to!cover!startLup!costs!then! can!rate!5.!If!financing!is!variable!among!sites,!estimate!average.! Important!to!verify!with!community!EBP!program!leaders/!site! program!managers.!
Score:&2&

Score:##
 1.#No#costs#of#startFup#are#covered##
 2.#Few#costs#are#covered##
 3.#Some#costs#are#covered##
 4.Majority#of#costs#are#covered##
 5.#Programs#are#fully#compensated#for#costs#of#conversion##

Evidence Used to Justify Rating: This!aspect!of!planning!for!the!conversion!of!a!system!does!not!appear!to!have!been! addressed!in!the!strategic!plan.!!State!agencies!are!participating!in!the!SELN,!Summits!and! other!planning!initiative!and!agreements!to!share!data!are!being!pursued.!As!the!DBHDS! moves!further!along!with!data!collection!it!will!be!important!to!determine!if!there!is!the! need!to!develop!a!common!platform!for!interagency!data!sharing!and!to!determine!what! resources!are!needed!to!support!this.!The!majority!of!providers!in!the!DBHDS!system! provide!segregated!day!services!including!sheltered!workshops.!Members!of!the!SELN!who! were!interviewed!believe!that!these!providers!will!need!technical!assistance,!training!and! funding!to!convert!their!existing!model!to!a!new!business!approach!that!builds!supported! employment.!As!new!funding!has!not!been!available!from!DARS,!and!DBHDS!is!developing! its!supported!employment!initiative!some!providers!have!not!been!able!to!retain!their!job! coaches!without!these!new!referrals.!The!job!coaching!capacity!in!Virginia!will!be! important!to!be!able!to!respond!to!individuals!wanting!supported!employment!once!it! becomes!a!priority!to!discuss!at!individual!planning!meetings!starting!in!July,!2013.!!
Page!25!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 126 of 147 PageID# 4946 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
4) TRAINING: ONGOING CONSULTATION AND TECHNICAL SUPPORT
Is!there!ongoing!training,!supervision!and!consultation!for!the!program!leader!and!clinical! staff!to!support!implementation!of!the!EBP!and!clinical!skills:! (Use!boxes!to!indicate!criteria!met.)!
Note:!If!there!is!variability!among!sites,!then!calculate/estimate!the! average!visits!per!site.
23. Initial!didactic!training!in!the!EBP!provided!to!clinicians!(e.g.!1L5!days!intensive! training)!
24. Initial!agency!consultation!re.!implementation!strategies,!policies!and!procedures,! etc.!(e.g.!1!–!3!meetings!with!leadership!prior!to!implementation!or!during!initial! training)!
25. Ongoing!training!for!practitioners!to!reinforce!application!of!EBP!and!address! emergent!practice!difficulties!until!they!are!competent!in!the!practice!(minimum!of!3! months,!e.g.!monthly!x!12!months)!
26. On!site!supervision!for!practitioners,!including!observation!of!trainees!clinical!work! and!routines!in!their!work!setting,!and!feedback!on!practice.!Videoconferencing!that! includes!clients!can!substitute!for!onsite!work!(minimum!of!3!supervision!meetings! or!sessions!for!each!trainee,!e.g.!monthly!x!12!months).!
27. Ongoing!administrative!consultation!for!program!administrators!until!the!practice! is!incorporated!into!routine!work!flow,!policies!and!procedures!at!the!agency! (minimum!of!3!months,!e.g.!monthly!X!12!months)!
Not&Rated&
Score:# 1.#2#components## 2.#3#components## 3.#4#components## 4.#5#components##
Evidence Used to Justify Rating:
Page!26!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 127 of 147 PageID# 4947 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
5) TRAINING: QUALITY
Is!a!high!quality!training!delivered!to!each!site?!High!quality!training!should!include!the!
 following:!
 (Use!boxes!to!indicate!which!components!are!in!place.!

Note:!If!there!is!variation!among!sites!calculate/estimate!the!average! number!of!components!of!training!across!sites.)!
28. credible!and!expert!trainer,! 29. active!learning!strategies!(e.g.!role!play,!group!work,!feedback,! 30. good!quality!manual,!e.g.!SAMHSA!Toolkit,! 31. comprehensively!addresses!all!elements!of!the!EBP,! 32. modeling!of!practice!for!trainees,!or!opportunities!to!shadow/observe!high!fidelity!
clinical!work!delivered,! 33. high!quality!teaching!aides/materials!including!workbooks/work!sheets,!slides,!
videos,!handouts,!etc,!e.g.!SAMHSA!Toolkit/!West!Institute.!
Not&Rated&
Score:##
 1.#0#components##
 2.#1#F2#components##
 3.#3#F4#components##
 4.#5#components##
 5.#all#6#components#of#a#high#quality#training##

Evidence Used to Justify Rating:
Page!27!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 128 of 147 PageID# 4948 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
6) TRAINING: INFRASTRUCTURE / SUSTAINABILITY
Has!the!state!established!a!mechanism!to!allow!for!continuation!and!expansion!of!training! activities!related!to!this!EBP,!for!example!relationship!with!a!university!training!and! research!center,!establishing!a!center!for!excellence,!establishing!a!learning!network!or! learning!collaborative.!T his!mechanism!should!include!the!following!components:! (Use!boxes!to!indicate!which!components!are!in!place)!
34. offers!skills!training!in!the!EBP,! 35. offers!ongoing!supervision!and!consultation!to!clinicians!to!support!implementation!
in!new!sites,! 36. offer!ongoing!consultation!and!training!for!program!EBP!leaders!to!support!their!
role!as!clinical!supervisors!and!leaders!of!the!EBP,! 37. build!site!capacity!to!train!and!supervise!their!own!staff!in!the!EBP,! 38. offers!technical!assistance!and!booster!trainings!in!existing!EBP!sites!as!needed,! 39. expansion!plan!beyond!currently!identified!EBP!sites,! 40. one!or!more!identified!model!programs!with!documented!high!fidelity!that!offer!
shadowing!opportunities!for!new!programs,! 41. SMHA!commitment!to!sustain!mechanism!(e.g.!center!of!excellence,!university!

contracts)!for!!
 foreseeable!future,!and!a!method!for!funding!has!been!identified.!

Not&Rated&
Score:# 1.#No#mechanism## 2.#1#F2#components## 3.#3#F4#components## 4.#5#F6#components## 5.#7#F8#components##
Evidence Used to Justify Rating:
Page!28!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 129 of 147 PageID# 4949
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
7) TRAINING: PENETRATION
What!percent!of!sites!have!been!provided!high!quality!training!(score!of!3!or!better!on! question!#5,!see!note!below),!and!ongoing!training!(score!of!3!or!better!on!question!#4,!see! note!below).!
Note:!If!both!criteria!are!not!met,!does!not!count!for!penetration.! Refers!to!designated!EBP!sites!only.!High!quality!training!should! include!3!or!more!of!the!following!components:!!
42. credible!and!expert!trainer,! 43. active!learning!strategies!(e.g.!role!play,!group!work,!feedback),! 44. good!quality!manual!(e.g.!SAMHSA!toolkit),! 45. comprehensively!addresses!all!elements!of!the!EBP,! 46. modeling!of!practice!for!trainees,!or!opportunities!to!shadow/observe!high!fidelity!
clinical!work!delivered,! 47. high!quality!teaching!aids/!materials!including!workbooks/!work!sheets,!slides,!
videos,!handouts,!etc.!e.g.!SAMHSA!toolkit/!West!Institute.!!
Ongoing&training!should!include!3!or!more!of!the!following!components:!! 48. Initial!didactic!training!in!the!EBP!provided!to!clinicians!(e.g.!1L5!days!intensive! training)!! 49. Initial!agency!consultation!re.!implementation!strategies,!policies!and!procedures,! etc.!(e.g.!1!L3!meetings!with!leadership!prior!to!implementation!or!during!initial! training)!! 50. Ongoing!training!for!practitioners!to!reinforce!application!of!EBP!and!address! emergent!practice!difficulties!until!they!are!competent!in!the!practice!(minimum!of!3! months,!e.g.!monthly!x!12!months)!! 51. On!site!supervision!for!practitioners,!including!observation!of!trainees!clinical!work! and!routines!in!their!work!setting,!and!feedback!on!practice.!Videoconferencing!that! includes!clients!can!substitute!for!onsite!work!(minimum!of!3!supervision!meetings! or!sessions!for!each!trainee,!e.g.!monthly!x!12!months).!! 52. Ongoing!administrative!consultation!for!program!administrators!until!the!practice! is!incorporated!into!routine!work!flow,!policies!and!procedures!at!the!agency! (minimum!of!3!months,!e.g.!monthly!X!12!months)!
Page!29!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 130 of 147 PageID# 4950 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
Not&Rated&
Score:## 1.#0F20%## 2.#20F40%## 3.#40F60%## 4.#60F80%## 5.#80F100%##
Evidence Used to Justify Rating:
Page!30!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 131 of 147 PageID# 4951
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
8) DBHDS LEADERSHIP: COMMISSIONER LEVEL
Commissioner!is!perceived!as!an!effective!leader!(influence,!authority,!persistence,!knows! how!to!get!things!done)!concerning!EBP!Implementation!who!has!established!EBPs!among! the!top!priorities!of!the!DBHDS!as!manifested!by:! (Use!boxes!to!indicate!components!in!place.)!
Note:!Rate!existing!Commissioner,!even!if!new!to!post.!
53. EBP!initiative!is!incorporated!in!the!state!plan,!and!or!other!state!documents!that! establish!DBHDS!priorities,!
54. Allocating!one!or!more!staff!to!EBP,!including!identifying!and!delegating!necessary! authority!to!an!EBP!leader!for!the!DBHDS,!
55. Allocation!of!nonOpersonnel!resources!to!EBP!(e.g.!money,!IT!resources,!etc.),! 56. Uses!internal!and!external!meetings,!including!meetings!with!stakeholders,!to!
express!support!for,!focus!attention!on,!and!move!EBP!agenda,! 57. Can!cite!successful!examples!of!removing!policy!barriers!or!establishing!new!policy!
supports!for!EBP.!
Score:&3H&fully&meets&components&1,&2,&and&5&&
Score:## 1.#0#F1#component## 2.#2#components## 3.#3#components## 4.#4#components## 5.#all#5#components##
Evidence Used to Justify Rating: The!DBHDS!has!put!an!emphasis!on!employment!for!its!consumers!in!the!past!2!years.!It! has!been!able!to!get!the!support!of!both!the!Governor!and!the!Legislature!resulting!in! Executive!Order!55!and!the!General!Assembly!Joint!Resolution!No.!127!2012!supporting! the!Employment!First!Policy!by!creating!an!expectation!for!both!the!Secretary!of!Health! and!Human!Resources!and!the!Superintendent!of!Public!Instruction!to!encourage!adoption! and!disseminate!this!resolution.!Employment!First!Summits!have!been!held!in!the!past!2! years!involving!the!Commissioner!and!other!state!leaders!to!share!a!consistent!message!of! the!importance!of!Employment!First.!The!Employment!First!Policy!has!been!issued!and!the! strategic!plan!has!been!developed!to!guide!its!implementation.!The!department!has! designated!a!full!time!Employment!Specialist!to!lead!this!initiative!who!brings!great! commitment!and!knowledge!to!the!role.!This!new!policy!is!an!incredibly!strong!statement! of!support!for!Virginia’s!efforts!to!support!more!people!with!disabilities!to!work!and!be! paid!fairly!in!integrated!employment!settings.!While!all!barriers!have!not!yet!been! addressed,!the!DBHDS!has!started!by!working!with!DMAS!to!address!waiver!rate!and!
Page!31!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 132 of 147 PageID# 4952 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! definitional!issues.!It!has!identified!other!barriers!in!the!strategic!plan!that!need!to!be! addressed.! The!next!step!in!beginning!to!roll!out!the!activities!of!the!strategic!plan!will!be!to!determine! what!other!resources!are!needed!to!assure!its!successful!implementation!including!training! ,!IT!and!staffing!support!if!the!initiative!proves!to!be!more!labor!intensive!than!can!be! handled!by!the!statewide!employment!specialist!(Component!3).! The!DBHDS!is!to!be!commended!on!establishing!the!SELN!and!providing!staff!support!to! coordinate!its!efforts.!However!the!department!must!do!more!to!demonstrate!its! administrative!support!for!the!work!of!the!SELN!and!to!make!sure!that!the!appropriate! decision!makers!are!part!of!the!SELN!or!the!Employment!Specialist!is!empowered!to! assume!a!decision!making!role!as!the!representative!of!the!DBHDS.!SELN!members!express! concern!that!the!strategic!plan!is!not!moving!forward!and!!that!there!needs!to!be!more! focus!on!providing!leadership!to!make!sure!the!policies,!program!standards!and!service! definitions!are!consistent!across!the!state!agencies!that!are!responsible!to!support!people! with!!ID!and!DD!as!the!work!relates!to!vocational!preparation,!transition!and!employment.!
Page!32!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 133 of 147 PageID# 4953
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
9) DBHDS LEADERSHIP: CENTRAL OFFICE EBP LEADER
There!is!an!identified!EBP!leader!(or!coordinating!team)!that!is!characterized!by!the!
 following:!
 (Use!boxes!to!indicate!which!components!in!place.)!

Note:!Rate!current!EBP!leader,!even!if!new!to!post.!
58. EBP!leader!has!adequate!dedicated!time!for!EBP!implementation!(min!10%),!and! time!is!protected!from!distractions,!conflicting!priorities,!and!crises,!
59. There!is!evidence!that!the!EBP!leader!has!necessary!authority!to!run!the!
 implementation,!

60. There!is!evidence!that!EBP!leader!has!good!relationships!with!community!
 programs,!

61. Is!viewed!as!an!effective!leader!(influence,!authority,!persistence,!knows!how!to!get! things!done)!for!the!EBP,!and!can!site!examples!of!overcoming!implementation! barriers!or!establishing!new!EBP!supports.!
Score:&3H&fully&meets&components&1&and&3&&
Score:## 1.#No#EBP#leader## 2.#1#component## 3.#2#components## 4.#3#components## 5.#All#4#components##
Evidence Used to Justify Rating: Adam!Sassler!is!the!State!Employment!Specialist!for!DBHDS!and!is!devoted!full!time!to!the! employment!initiative.!He!has!excellent!relationships!with!community!programs,!and!is! positively!engaged!with!stakeholders!including!other!state!agencies,!CSBs,!advocates,! parents,!and!providers.!He!demonstrates!an!understanding!of!supported!employment!and! grasps!the!various!elements!of!systems!change!that!need!to!occur!for!this!initiative!to!be! successful.!He!is!passionate!about!employment!for!people!with!ID!and!provides!needed! leadership.!He!has!single!handedly!accomplished!a!great!deal!in!terms!of!the! communication!and!initial!training!needed!to!launch!this!initiative.! What!is!less!clear!is!to!what!extent!the!DBHDS!is!empowerin g!him!to!play!a!decision! making!role!as!he!works!with!the!SELN!to!develop!the!strategic!approach!and!begin!to! implement!the!strategic!plan.!SELN!members!do!not!consistently!report!that!he!is!able!to! make!decisions!on!behalf!of!the!DBHDS!and!they!are!frustrated!that!this!delays!the!work!of! the!SELN!and!may!slow!the!implementation!of!the!plan!elements.!Some!are!concerned!that! other!members!of!the!DBHDS!leadership!team!either!do!not!attend!the!SELN!meetings! regularly!and!when!they!do!may!not!take!an!active!role.!Mr.!Sassler!does!have!influence!and!
Page!33!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 134 of 147 PageID# 4954 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! is!seen!as!a!persistent!advocate!and!good!spokesperson!for!this!initiative.!The!DBHDS! should!determine!how!it!will!best!support!his!efforts!and!as!the!plan!is!implemented! ensure!that!necessary!policy,!funding!and!strategic!decisions!are!made!in!a!timely!way!for! this!initiative!to!be!successful.!!
Page!34!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 135 of 147 PageID# 4955
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
10) POLICY AND REGULATIONS: NON DBHDS STATE AGENCIES
The!BDHDS!has!developed!effective!interagency!relations!(other!state!agencies,!counties,! governor’s!office,!state!legislature)!to!support!and!promote!the!EBP!as! necessary/appropriate,!identifying!and!removing!or!mitigating!any!barriers!to!EBP! implementation,!and!has!introduced!new!key!facilitating!regulations!as!necessary!to! support!the!EBP.!!
Ask!BDHDS!staff!and!site!leadership:!What!regulations!or!policies! support!the!EBP!implementation?!What!regulations!or!policies!get!in! the!way?!Note:!give!most!weight!to!policies!that!impact!funding.! Examples!of!supporting!policies:!!
► Medicaid agency provides reimbursement for the EBP ► The state’s vocational rehabilitation agency pays for supported employment programs
Examples of policies that create barriers: 62. Medicaid!agency!excludes!EBP,!or!critical!component,!e.g.!disallows!any!services! delivered!in!the!community!!! 63. State!vocational!rehabilitation!agency!does!not!allow!all!clients!looking!for!work! access!to!services,!or!prohibits!delivery!of!other!aspects!of!the!supported! employment!model!!
!!
Score:&4&
Score:##
 1.#Virtually#all#policies#and#regulations#impacting#the#EBP#act#as#barriers##
 2.#On#balance,#policies#that#create#barriers#outweigh#policies#that#support/promote#

the#EBP## 3.#Policies#that#are#support/promote#the#EBP#are#approximately#equally#balanced#by#
policies#that#create#barriers## 4.#On#balance,#policies#that#support/promote#the#EBP#outweigh#policies#that#create#
barriers## 5.#Virtually#all#policies#and#regulations#impacting#the#EBP#support/promote#the#EBP##
Evidence Used to Justify Rating: The!policies!of!DOE!and!DARS!are!generally!supportive!of!Supported!Employment!for! people!with!ID!and!DD.!DOE!maintains!data!as!a!result!of!its!federal!regulations!that!is! probably!the!most!comprehensive!in!terms!of!tracking!the!numbers!of!youth!by!disability! category!and!having!outcome!data!related!to!their!IEP!outcomes!and!graduation.!They!have! a!number!of!initiatives!to!support!transition,!engage!youth!in!postO!secondary!education! and!educate!students!and!families!to!become!leaders.!DARS!policies!do!not!restrict!access!
Page!35!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 136 of 147 PageID# 4956 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! to!individuals!with!disabilities!although!preOvocational!programs!including!sheltered!work! remains!as!service!options.!!The!primary!barrier!in!policy!and!regulation!outside!of!DBHDS! is!evidenced!within!the!state!Medicaid!agency!(DMAS)!which!administers!the!HCBS! waivers.!Not!all!service!definitions!match!those!of!DARS!for!supported!employment!and!the! rates!were!unequal!historically.!However,!DMAS!adjusted!the!rates!a!few!years!ago!and! recent!legislation!is!addressing!some!of!the!differences!in!allowable!services!i.e.!job! development.!What!remains!to!be!addressed!is!the!reimbursement!for!the!indirect!costs! associated!with!providing!supported!employment.!The!recent!creation!of!the!Employment! First!Policy!should!provide!the!foundation!for!agencies!to!address!any!inconsistencies!in! policies!and!regulations.!DBHDS!has!led!an!interagency!effort!through!the!SELN!AG!to! develop!a!list!of!questions!for!each!agency!to!use!to!determine!the!policies!and!regulations! are!aligned!and!to!then!take!steps!to!address!any!that!cause!barriers!to!full!implementation! of!Employment!First.!This!needs!to!be!used!to!start!the!alignment!process.!
Page!36!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 137 of 147 PageID# 4957
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
11) POLICIES AND REGULATIONS: DBHDS
The!DBHDS!has!reviewed!its!own!regulations,!policies!and!procedures!to!identify!and! remove!or!mitigate!any!barriers!to!EBP!implementation,!and!has!introduced!new!key! regulations!as!necessary!to!support!and!promote!the!EBP.!!
Ask!BDHDS!staff!and!site!leadership:!What!regulations!or!policies! support!the!EBP!implementation?!What!regulations!or!policies!get!in! the!way?!Examples!of!supporting!policies:!!
► DBHDS ties EBP delivery to contracts ► DBHDS ties EBP to licensing/ certification/ regulation ► DBHDS develops EBP standards consistent with the EBP model
Examples of policies that create barriers: 64. DBHDS!develops!a!fiscal!model!or!clinical!guidelines!that!directly!conflict!with!EBP! model,!e.g.!ACT!staffing!model!with!1:20!ratio!! 65. DBHDS!licensing/!certification/!regulations!directly!interfere!with!programs!ability! to!implement!EBP!!
Score:##
 1.#Virtually#all#policies#and#regulations#impacting#the#EBP#act#as#barriers##
 2.#On#balance,#policies#that#create#barriers#outweigh#policies#that#support/promote#

the#EBP## 3.#Policies#that#are#support/promote#the#EBP#are#approximately#equally#balanced#by#
policies#that#create#barriers## 4.#On#balance,#policies#that#support/promote#the#EBP#outweigh#policies#that#create#
barriers## 5.#Virtually#all#policies#and#regulations#impacting#the#EBP#support/promote#the#EBP##
Score:&3&
Evidence Used to Justify Rating: Generally!the!policies!and!regulations!impacting!DBHDS!are!those!of!DMAS!for!the!HCBS! waivers.!DBHDS!does!have!contractual!relationships!with!the!CSBs!that!receive!waiver! funding!and!provide!resources!for!people!on!the!waiting!list!to!receive!waiver!support.! DBHDS!has!added!a!contractual!requirement!that!each!CSB!is!responsible!to!address! employment!as!the!first!option!for!individuals!with!ID!who!are!receiving!waiver!services! including!day!and!employment!support.!The!policy!of!DBHDS!that!creates!a!barrier!to! employment!is!the!criteria!to!determine!who!is!a!priority!for!waiver!services!who!is!on!the! waiting!list.!DBHDS!has!determined!that!people’s!emergency!status!and!urgency!for!need!of! waiver!services!is!the!determining!factor!which!is!understandable!when!allocating!limited! resources!that!do!not!meet!the!level!of!demand!as!expressed!by!the!magnitude!of!the! waiting!list.!However,!with!no!funding!set!aside!for!individuals!to!receive!employment!
Page!37!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 138 of 147 PageID# 4958 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables! support!who!may!not!be!in!urgent!situations!it!may!leave!many!people!with!ID!without!
 access!to!gainful!employment.!The!department’s!lack!of!policy!to!address!the!needs!of!
 youth!graduating!from!school!who!seek!employment!is!also!a!barrier!to!the!employment!
 first!policy!being!fully!realized.!

Page!38!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 139 of 147 PageID# 4959
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
12) POLICIES AND REGULATIONS: DBHDS EBP PROGRAM STANDARDS
The!DBHDS!has!developed!and!implemented!EBP!standards!consistent!with!the!EBP!model!
 with!the!following!components:!
 (Use!boxes!to!identify!which!criteria!have!been!met)!

66. Explicit!EBP!program!standards!and!expectations,!consonant!with!all!EBP!principles! and!fidelity!components,!for!delivery!of!EBP!services.!(Note:!fidelity!scale!may!be! considered!EBP!program!standards,!e.g.!contract!requires!fidelity!assessment!with! performance!expectation)!
67. DBHDS!has!incorporated!EBP!standards!into!contracts,!criteria!for!grant!awards,! licensing,!certification,!accreditation!processes!and/or!other!mechanisms!
68. Monitors!whether!EBP!standards!have!been!met,! 69. Defines!explicit!consequences!if!EBP!standards!not!met!(e.g.!contracts!require!
delivery!of!model!supported!employment!services,!and!contract!penalties!or!nonL renewal!if!standards!not!met;!or!licensing/accreditation!standards!if!not!met!result!in! consequences!for!program!license).!
Score:&4H&components&1,&2&and&3&are&fully&met&
!
Score:##
 1 . # N o # c o m p o n e n t s # ( e . g . # n o # s t a n d a r d s # a n d # n o t # u s i n g # a v a i l a b l e # m e c h a n i s m s # a t # t h i s # t i m e ) # #
 2.#1#component##
 3.#2#components##
 4.#3#components##
 5.#4#components##

Evidence Used to Justify Rating: DBHDS!has!defined!supported!employment!for!both!individual!and!group!employment.! Providers!are!required!to!be!CARF!accredited!and!DARS!certified.!The!employment!first! policy!is!clear!that!employment!is!in!integrated!settings,!provides!minimum!wages!or! better!and!benefits,!and!that!the!individual!works!for!the!business!employer.!!DBHDS! required!in!the!FY14!performance!contract!with!the!CSBs!that!employment!be!discussed!as! the!first!option!with!individuals!requesting!day!or!employment!supports!through!the!HCBS! waivers.!The!department!plans!to!monitor!compliance!with!this!requirement!but!needs!to! develop!its!monitoring!protocol.!To!date!the!explicit!consequences!are!not!defined.!!
Page!39!of!147!


Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 140 of 147 PageID# 4960 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
13) QUALITY IMPROVEMENT: FIDELITY ASSESSMENT
There!is!a!system!in!place!for!conducting!ongoing!fidelity!reviews!by!trained!reviewers!
 characterized!by!the!following!components:!
 (Use!boxes!to!indicate!criteria!met.)!

Note:!If!fidelity!is!measured!in!some!but!not!all!sites,!answer!for!the! typical!site.!
70. EBP!fidelity!(or!functional!equivalent!designed!to!assess!adherence!to!all!critical! components!of!the!EBP!model)!is!measured!at!defined!intervals!
71. GOI!fidelity!(or!functional!equivalent!designed!to!assess!adherence!to!all!critical! components!required!to!implement!and!sustain!delivery!of!EBP)!is!measured!at! defined!intervals.!
72. Fidelity!assessment!is!measured!independent!!(e.g.,!not!assessed!by!program!itself,! but!by!SMHA!or!contracted!agency)!
73. Fidelity!is!measured!a!minimum!of!annually! 74. Fidelity!performance!data!is!given!to!programs!and!used!for!purposes!of!quality!
improvement! 75. Fidelity!performance!data!is!reviewed!by!the!BDHDS!! 76. The!BDHDS!routinely!uses!fidelity!performance!data!for!purposes!of!quality!
improvement,!to!identify!and!response!to!high!and!low!performers!(e.g.!recognition! of!high!performers,!or!for!low!performers!develop!corrective!action!plan,!training!&! consultation,!or!financial!consequences,!etc.).! 77. The!fidelity!performance!data!is!made!public!(e.g.!website,!published!in!newspaper,! etc.)!
Not&Rated&
Score:# 1.#0#–#1#components## 2.#2#–3#components## 3.#4#–#5#components## 4.#6#–#7#components## 5.#All#8#components##
Evidence Used to Justify Rating:
Page!40!of!147!

Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 141 of 147 PageID# 4961
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
14) QUALITY IMPROVEMENT: CLIENT OUTCOMES
A!mechanism!is!in!place!for!collecting!and!using!client!outcome!data!characterized!by!the!
 following:!
 (Use!boxes!to!indicate!criteria!met.)!

Note:!Client!outcomes!must!be!appropriate!for!the!EBP,!e.g.!Supported! employment!outcome!is!persons!in!competitive!employment,!and! excludes!prevoc!work,!transitional!employment,!and!shelter! workshops.!If!outcome!measurement!is!variable!among!sites,!consider! typical!site.!
78. Outcome!measures,!or!indicators!are!standardized!statewide,!AND!the!outcome! measures!have!documented!reliability/validity,!or!indicators!are!nationally! developed/recognized!
79. Client!outcomes!are!measured!every!6!months!at!a!minimum! 80. Client!outcome!data!is!used!routinely!to!develop!reports!on!agency!performance! 81. Client!specific!outcome!data!are!given!to!programs!and!practitioners!to!support!
clinical!decision!making!and!treatment!planning! 82. Agency!performance!data!are!given!to!programs!and!used!for!purposes!of!quality!
improvement! 83. Agency!performance!data!are!reviewed!by!the!SMHA!+/O!local!MHA! 84. The!SMHA!routinely!uses!agency!performance!data!for!purposes!of!quality!
improvement;!performance!data!trigger!state!action.!Client!outcome!data!is!used!as! a!mechanism!for!identification!and!response!to!high!and!low!performers!(e.g.! recognition!of!high!performers,!or!for!low!performers!develop!corrective!action!plan,! training!&!consultation,!or!financial!consequences,!etc.).! 85. The!agency!performance!data!is!made!public!(e.g.!website,!published!in!newspaper,! etc.)!
Not&rated&
Scores:## 1.#0#components## 2.#1#–#2#components## 3.#3#–#5#components## 4.#6#–#7#components## 5.#All#8#components##
Evidence Used to Justify Rating:
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 142 of 147 PageID# 4962
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
15) STAKEHOLDERS
The!degree!to!which!consumers,!families,!and!providers!are!opposed!or!supportive!of!EBP! implementation.!!
Note:!Ask!LDid!stakeholders!initially!have!concerns!about!or!oppose! EBPs?!Why?!What!steps!were!taken!to!reassure/engage/partner!with! stakeholders.!Were!these!efforts!successful?!To!what!extent!are! stakeholders!currently!supportive!this!EBP?!Opposed?!In!what!ways! are!stakeholders!currently!supporting/!advocating!against!this!EBP?! Rate!only!current!opposition/support.!!
Scores:&&
86. Active,!ongoing!opposition!to!the!EBP!! 87. Opposition!outweighs!support,!or!opinion!is!evenly!split,!but!no!active!campaigning!
against!EBP!! 88. Stakeholder!is!generally!indifferent!! 89. Generally!supportive,!but!no!partnerships,!or!active!proponents.!! 90. Stakeholder!advocacy!organization!leadership/opinion!leaders!currently!offer!
active,!ongoing!support!for!the!EBP.!Evidence!of!partnering!on!initiative.!!
15.&Summary&Stakeholder&Score:&(Average&of&3&scores&below):&4&&
15.a&Consumers&Stakeholders&Score:&5&&
15.b&Family&Stakeholders&Score:&5&&
15.c&Providers&Stakeholders&Score&:&2&
Evidence to Justify Ratings: I!have!arrived!at!this!rating!based!upon!my!interviews!with!Adam!Sassler!and!9!members! of!the!SELN!AG.!DBHDS!has!done!a!wonderful!job!of!reaching!out!to!stakeholders!through! its!statewide!Employment!Summits,!regional!summits,!interagency!work!with!DOE,!the! many!and!varied!trainings!provided!and!the!creation!of!the!SELN.!The!SELN!AG!has!active! participation!from!all!groups!of!stakeholders.!Families!and!consumers!generally!are!very! supportive!of!the!initiative!but!can!use!more!education!and!information!about!the! transition!from!school!to!work,!how!to!access!employment,!what!impact!employment!will! have!on!benefits,!and!the!different!options!between!DARS!and!DBHDS/HCBS!waivers.!The! providers!I!spoke!to!individually!who!are!on!the!SELN!AG!are!supportive!of!employment! first.!Most!of!the!individuals!interviewed!indicated!the!barrier!of!the!attitudes!of!some!of! the!larger,!well!established!providers!of!sheltered!workshops!and!segregated!day!services! who!continue!to!resist!this!change!and!new!direction.!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 143 of 147 PageID# 4963 Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!
16) SUMMARY OF SCORES
91. EBP!Plan!O4! 92. Financing:!AdequacyO3!! 93. Financing:!StartOup!and!Conversion!CostsO2!! 94. Training:!Ongoing!Consultation!&!Technical!Support!ONR! 95. Training:!Quality!ONR! 96. Training:!Infrastructure!/!SustainabilityONR!! 97. Training:!PenetrationONR!! 98. SMHA!Leadership:!Commissioner!LevelO3!! 99. SMHA!Leadership:!EBP!Leader!O3! 100. Policy!and!Regulations:!NonOSMHAO4!! 101. Policy!and!Regulations:!SMHA!O3! 102. Policy!and!Regulations:!SMHA!EBP!Program!StandardsO4!! 103. Quality!Improvement:!Fidelity!AssessmentONR! 104. Quality!Improvement:!Client!OutcomeONR! 105. Stakeholders:!Aver.!Score!(Consumer,!Family,!Provider)O!4!
OVERALL&SHAY&SCORE&=&&(30)&SUM&TOTAL&÷&9&=&3.3&
!
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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 144 of 147 PageID# 4964
Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!

XV. Attachment&3—Summary&of&Employment&Presentations&

! List!of!Employment!First!Presentations!to!date!


DATE

SITE

Location

# attending

5/2/2011

Hermitage Enterprises

Glen Allen

5

5/13/2011 WorkSource Charlottesville

5

6/17/2011 TACIDD

Richmond

7/29/2011 Region 10

Charlottesville

20

Arc 8/12/2011 Convention

Virginia Beach

35

ARC of the 8/31/2011 Southside

Danville

8

9/7/2011 FutureWorks Charlottesville

1

10/2/2011

Collaborations Conference

Virginia Beach

30

Affiliation CSB ESO, DRS, vaACCSES
ESO, CSB, advocates ESO, CSB, Advocates, residential
ESO ESO DRS, CSB, ESO, advocates

Employment 10/4/2011 First Summit

Virginia Beach

285

CSB,DRS,ESO,advocates,DOE,DA RS,VACSB,DMAS, DDHH

Greater

10/14/201 1

Roanoke Valley Autism Conference

Vinton

Alliance for

11/18/201 Full

Arlington

40

1

Participation

Employment 12/7/2012 First Alliance

Richmond

15

12/9/2011 TACIDD

Richmond

45

1/18/2012 VACSB

Richmond

40

2/14/2012 SVTC

Petersburg

17

Southside 2/24/2012 CSB

South Boston

20

3/7/2012

Hampton NN CSB

Hampton

25

Person

3/8/2012 Centered

Fishersville

20

Training

Virginia

3/13/2012 Transition

Roanoke

20

Forum

3/16/2012 DBHDS

Fishersville

15

advocates, ESO, DRS,
APSE, AFP,DRS,ESO advocates, DBHDS, DMAS, CSB CSB TC staff CSB CSB
CSB, providers
CSB, DOE, DRS,advocates CRCs

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 145 of 147 PageID# 4965

Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!

DATE 3/15/2012 3/21/2012 3/29/2012 4/16/2012 4/17/2012 5/3/2012 5/3/2012 5/17/2012
6/25/2012
7/22/2012
8/1/2012
8/6/2012 8/10/2012
8/15/2012
8/17/2012 8/21/2012 8/23/2012
8/24/2012
8/28/2012 8/30/2012 9/6/2012
9/11/2012

SITE
Crossroads CSB
VBPD
District 19
Colonial CSB
SEVTC
VACSB
PRS
Rapahannock CSB Regional Summit SEVTC Regional Summit
NAMI Housing Summit
Career Development Initiative Reinventing Quality Arc Convention Piedmont CSB Regional Summit DARS New Vendors Meeting
MPNN CSB
Danville Pittsylvania CSB Fredricksburg BH Collaboration Region 10 CSB
kenmore Club
EDI/DEN Executive Cmty Fredricksburg BH Clients Conference

Location Farmville Richmond Petersburg Williamsburg Chesapeake Williamsburg Arlington Fredricksburg
Chesapeake
Richmond
Richmond
Baltimore Virginia Beach
Martinsville
Richmond Kilmonarch Danville
Fredricksburg
Charlottesville Fredricksburg Richmond
Fredricksburg

# attending

Affiliation

20

CSB

8

advocates, DDHH, VACSB

8

ESO, CSB, DRS

15

CSB

5

TC, ESO,DRS

25

CSB, DRS, ESO, advocates

5

ESO

70

CSB, ESO, DRS,advocates

17

TC, CSB, ,ESO

20

CSB, advocates, providers

30

DOE, providers

50

different states

22

advocates,DRS,ESO

CSB, ESO,DRS,advocates,

65

providers

20

DARS, potential ESOs

15

ESO

35

CSB, ESO

MH providers, advocates, CSB,

80

ESO,DRS

20

CSB, ESO, advocates

17

CSB, DRS, ESO, advocates

15

DARS, ESO, DOE, VEC

45

CSB, ESO, DRS, advocates

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 146 of 147 PageID# 4966

Report&to&the&Independent&Reviewer! ! EMPLOYMENT!SERVICE!REQUIREMENTS! Tables!

DATE 10/1/2012
10/2/2012
10/10/201 2 10/12/201 2 10/2/2012
10/2-3/12

SITE
Collaborations Conference 2nd Annual Employment Simmit Fredricksburg Council on Transition
Hanover CSB
Collaborations Conference
2nd Annual Employment First Summit

Location Virginia Beach Virginia Beach
Fredricksburg Ashland Virginia Beach Virginia Beach

# attending

Affiliation

25

CSB, ESO, DRS, advocates

185

CSB, ESO, DRS, advocates

23

CSB

30

DARS, CSBs, ESOs

Self Advocates, advocacy

175

organizations, CSBs, DARS, ESOs,

DOE

10/12/201 Hanover CSB Hanover

33

2

DOJ

10/22/201 Settemment

Richmond

40

2

Committee

10/31/201 Arc of Agusta Waynesboro

3

2

Fredericksburg

Area Council

11/10/201 on Transition Fredericksburg

25

2

“Pathways to

the Future”

Disability

11/29/201 2

Employment Initiative/progr

Richmond

20

am Navigator

12/12/201 Piedmont CSB Martinsville

17

2

case managers, employment staff, day program staff
committee members, public leadership of Arc
students, parents, teachers
DARS staff, Virginia community college (WIA) staff, VEC staff
ED, directors, employment staff, case managers

Employment staff, DARS, Case

Beyond 1/31/2013 Barriers

Martinsville

52

Managers, Employers, Advocates, Day program agencies, city

government

2/8/2013

Arc of the Piedmont

Danville

DBHDS staff, employment, special

6

education and residential staff

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Case 3:12-cv-00059-JAG Document 130 Filed 06/11/13 Page 147 of 147 PageID# 4967

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DATE

SITE

Location

# attending

Affiliation

2/12/2013

Mount Rogers CSB

Wythville

Program Director, Integration staff,

12

BH staff ID staff, employment staff,

day programming staf

Piedmont

2/15/2013 Workshop

Roanoke

8

Group

2/21/2013 STAND UP

Lynchburg

10

2/25/2013 VALIDD

Richmond

20

South West

Regional

Summit 3/12/2013 Alleghany

Clifton Forge

50

Highlands

CSB

12 Annual

3/14/2013 Autism

Richmond

35

conference

!
&

Goodwill staff, MARC director, PARC director, Danville-Pitts CSB staff Private ESO staff providers and CSBs
CSB staff, ESO staff, Case managers, employers, DARS stadd DSS staff, residential staff, day program staff, advocates/family
Advocates, Autism staff, educators, case managers, families, DARS staff

Page!47!of!147!


 </s> VIRGINIA ADA SETTLEMENT FACT SHEET
The Agreement resolves the Civil Rights Division’s finding that the Commonwealth of Virginia failed to serve individuals with intellectual and developmental disabilities in the most integrated setting appropriate to those individuals’ needs, in violation of the Americans with Disabilities Act (ADA) and Olmstead v. L.C.
 OVERVIEW
o The Agreement requires the Commonwealth to provide community-based services through Medicaid waivers and family supports for more than 5,000 individuals with intellectual and developmental disabilities who are unnecessarily institutionalized in Virginia’s five Stateoperated Training Centers or in state-funded private facilities and individuals who are at risk of unnecessary institutionalization because of a lack of adequate community supports and services.
o The Agreement will provide relief to thousands more people with intellectual and developmental disabilities by expanding crisis and employment services, enhancing access to services in the community, and providing comprehensive oversight of the quality of community services.
o The Agreement will transform Virginia’s developmental disabilities system from one heavily reliant on large, expensive institutions to one focused on safe, individualized, and costeffective community-based services that promote integration and independence and enable individuals to live, work, and participate fully in community life.
o The Agreement will help the Commonwealth use its resources to serve thousands of additional individuals with intellectual and developmental disabilities.
 RELIEF IN SETTLEMENT AGREEMENT
o Medicaid Home and Community Based Waivers  A total of approximately 4,200 home and community based waivers to help individuals with intellectual and developmental disabilities leave institutional settings, including Training Centers, and to prevent the unnecessary institutionalization of individuals who are currently on long waitlists for services in the community.  800 waivers to transition individuals from the Training Centers to the community  Almost 3,000 waivers for individuals with intellectual disabilities on the “urgent” waitlist and youth with intellectual disabilities in private institutions  450 waivers for individuals with other developmental disabilities on the waitlist and youth with other developmental disabilities in private institutions
o Family Supports  Family supports to 1,000 individuals on the waitlist to help provide care in their family home or own home and prevent their unnecessary institutionalization.
o Crisis System  Will provide services that help divert individuals from unnecessary institutionalization and keep them in their communities and homes

Virginia ADA Settlement Fact Sheet
 Full range of crisis services:  Statewide 24/7 crisis hotline  Mobile crisis teams (capacity to respond to any crisis within 1 hour in urban areas and 2 hours in rural areas) available 24/7 to provide in-home assistance, crisis planning, and crisis prevention  Alternative crisis community placements  Short-term crisis stabilization beds in small settings in each Region
o Integrated Housing  An $800,000 State fund for new housing assistance to facilitate placement of individuals in their own homes or apartments, and a study of the need for such housing options.  Presumption that people with disabilities can live in their own homes, family homes, or small (4 or fewer beds) integrated placements in the community.
o Case management  Case management services for all individuals covered by the Agreement  Enhanced case management for individuals with more complex needs, who have experienced crises, are in congregate settings, or are receiving services from providers with conditional licenses.
o Integrated Employment  Development and implementation of an Employment First Policy that prioritizes integrated, competitive-wage supported employment for individuals receiving statefunded services  Expanded opportunities for integrated employment and other integrated day activities
o Special populations  Requirement that individuals with complex needs have the option to be served in integrated settings  Waivers targeting children and adolescents in private institutional settings
o Comprehensive oversight of safety and quality of community-based services  Statewide quality and risk management system with qualitative and quantitative measures  Sustained follow-up for individuals who transition from the institutions to the community
o Additional provisions  Discharge planning that begins upon admission and starts with the presumption that, with sufficient supports and services, all individuals can live in an integrated setting  Discharge planning process that includes family and community providers and is person-centered and strengths-based  Monitor with capacity to hire staff to assist in the implementation and to conduct reviews

Virginia ADA Settlement Fact Sheet
o Court-enforceable should the Commonwealth fail to comply

 </s> REPORT OF THE INDEPENDENT REVIEWER
ON COMPLIANCE
 WITH THE

SETTLEMENT AGREEMENT

UNITED STATES V. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia

Civil Action No. 3:12 CV 059

April 7, 2013 – October 6, 2013

Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
December 6, 2013
TABLE OF CONTENTS


I. Executive Summary

i

II. Introduction

1

III. Findings

3

A. Discharge Planning and Transition from SVTC and NVTC 3

B. Resolving Barriers – PST, CIM, RST

9

C. Safety in the Community

12

D. Youth Residing in Nursing Homes and the Largest ICFs 17

E. Individual and Family Supports

19

F. Case Management

20

G. Crisis Services and Prevention

27

H. Integrated Day Activities and Supported Employment

39

I. Community Living Options

42

J. Family-to-Family and Peer Programs

43

K. Quality and Risk Management

45

IV. Conclusion

57

V. Suggestions

58

IV. Appendices

1

A. Individual Reviews – Demographic Information

2

B. Case Management Requirements

4

C. Review of Crisis Services

15

D. Report on Quality and Risk Management

40

ii	
  

I. EXECUTIVE SUMMARY
This is the third Report to the Court in the Settlement Agreement (the Agreement) between the United States and the Commonwealth of Virginia (the Parties), Civil Action No. 3:12cv059. The Agreement was entered provisionally, March 6, 2012. This report of the Independent Reviewer (the Reviewer) is for the review period, covering April 7, 2013 through October 6, 2013.
There are approximately 8.19 million residents of Virginia. In October 2013, the Commonwealth’s Developmental Disability System was serving 19,189 (.2%) of these Virginians, as follows:
 10,622 (55%) were being served in the community with Intellectual and Developmental Disabilities (ID/DD) waiver funded services;
 741 (4%) were residents of Virginia’s five Training Centers; and  7,826 (41%) were on waitlists for waiver services.
An additional 272 children with ID/DD were living in large congregate nursing homes and Intermediate Care Facilities.
In the Agreement, the Commonwealth committed to improve the lives of people with ID/DD. It agreed to provide opportunities for them to live in integrated settings, to prevent unnecessary institutionalization, and to reform the service system. In making these commitments, the Commonwealth acknowledged the need to increase and reform its community capacity to support individuals consistent with the terms of the Agreement. The provisions of the Agreement were designed to improve lives by achieving the goals of community integration, self-determination, and quality services for individuals with ID/DD.
Since the Agreement was provisionally entered on March 6, 2012, through October 6, 2013, the end of the third review period, the Commonwealth has undertaken a broad array of initiatives to comply with the requirements of the Agreement. During these nineteen months, the Commonwealth had provided funding for new waivers, in greater numbers than required by the Agreement and for a new Individual and Family Support program. It also provided funds for other new and enhanced services, for increased oversight and monitoring, and for staff to lead and support the planning and development of new initiatives and system reforms. The Department of Behavioral Health and Developmental Services (DBHDS) had created eighteen Project Teams, each with dedicated leaders, which were planning and implementing initiatives to begin to achieve compliance with specific provisions of the Agreement. The Commonwealth transferred responsibility for the Developmental Disabilities (DD) waiver, and the staff who support its operation, from the Department of Medical Assistance Services (DMAS) to DBHDS on November 13, 2013. The purpose of the reorganization is to facilitate a more coordinated and easier to negotiate service delivery system and future system reforms following the restructuring of the Home and Community Based Services (HCBS) waivers and rates. A nationally recognized vendor has been selected and has nearly completed the first phase of a comprehensive study of the Commonwealth’s HCBS waivers to address concerns, including those related to providing services in integrated settings. The Commonwealth also has made significant efforts to gather and provide requested documents to the U.S. Department of Justice and the Reviewer.
i	
  

The Reviewer prioritized six areas of review for the third review period. They include: Discharge and Transition from Training Centers; Resolving Barriers; Safety in the Community; Case Management; Crisis Services; and Quality and Risk Management. Information about each of these substantive areas was gathered and evaluated through four studies. An Individual Review study of the services for forty-eight individuals who moved from Southside and Northern Virginia Training Centers was completed, as were three evaluations by expert consultants. These evaluations included a third review of the Crisis Services system’s performance and initial baseline studies of Case Management and Quality and Risk Management.
After careful consideration of the facts and findings from these reviews, evaluations and information from other sources, the Reviewer determined that during this third review period the Commonwealth had continued in good faith to fund, to plan, and to organize efforts to implement the initiatives and reforms required by the Agreement. While significant progress has been made and some provisions of the Agreement have been achieved, there are also many areas where the outcomes through the third review period have been mixed. The Commonwealth is monitoring its implementation efforts. It is aware that additional work is needed, and is working toward fully meeting the requirements of the agreement.
The Agreement’s provisions are in different stages of implementation and monitoring. As discussed in the following Report, the Reviewer determined that the Commonwealth has achieved compliance in some areas and not in others. In other respects, it is too early to determine if the current planning and developments will comply with the Agreement. The Reviewer has determined, however, that other initiatives, if implemented as currently planned, will not achieve compliance. Details of the Reviewer’s findings, as well as the Reviewer’s conclusions and recommendations, are provided in the Findings section of this report.
The Commonwealth has created and implemented a detailed Discharge Planning and Transition process for individuals who live at its five Training Centers. In doing so, it has complied with many provisions of the Agreement, but not all of them. Of the approximately 1050 individuals who resided at the Training Centers, at the time the Agreement was signed, more than 300 individuals and their Authorized Representatives have chosen to move to homes in the community. These choices have occurred as a result of individuals and families becoming more comfortable choosing a community option. The choices have been made after engaging in the Commonwealth’s process to learn about community alternatives and service providers, about how the individual’s specific essential needs would be met, and about how services would be effectively provided in more integrated settings. For those who live in a Training Center that is slated for closure, a choice of another place to live will ultimately be necessary. They will choose either to move to a community setting or to another Training Center.
ii	
  

The Report’s sections on Discharge Planning and Transition, Resolving Barriers, and Safety in the Community provide detailed information obtained from the Individual Review study of the services provided to individuals who moved from the Training Centers during this period. Although there were individual exceptions, the themes of positive outcomes identified for the transition process included:
 The discharge planning and transition schedule was modified, as appropriate, based on the needs of the individuals and their Authorized Representatives.
 Individuals lived in homes that were attractive, in appealing neighborhoods, and close to resources.
 Individuals had improved behavioral and health outcomes.
 After decades of institutionalization, individuals had adjusted very well to their new homes.
 Authorized Representatives, who were initially reluctant to move their loved ones from a Training Center to a community residence, had visited frequently and were satisfied.
Regrettably, although the Commonwealth had facilitated the transitions of individuals from Training Centers to live in community programs, the range of options available to them, and to the thousands of individuals already living in the community, had not yet significantly changed. The Commonwealth is taking significant steps to build such capacity in the future. These steps include approving exceptional rates and bridge funding and initiating the process to restructure its HCBS waivers and rates.
The themes of “areas of concern” from the Individual Review study during the third review period are similar to findings from previous periods.
 Program options that offered “most integrated settings” were not available to many individuals.
 The individuals’ support plans (ISPs) and daily routines did not actively support skill development to increase independence or participation in the community.
It is the Reviewer’s professional judgment that the greatest obstacle to the Commonwealth achieving the goals of the Agreement is providing a sufficient number and variety of integrated programs that promote skill development and community participation. The greatest barrier to the Commonwealth’s development of an effective Quality and Risk Management system is that its current regulations and contract relationships with service providers limit its ability to collect information about the risk of harm. The Commonwealth acknowledges that the current language of its regulations is a problem and that it will need to revise them. As it develops its quality system, the Commonwealth should closely examine its regulations and contractual relationships to determine how they can be improved to ensure that all providers consistently meet standards of expected performance.
iii	
  

During the next (and fourth) review period, therefore, the Reviewer has prioritized the following areas for examination and evaluation:
 New services for individuals with behavioral challenges residing in Region IV or V;  Integrated Day Activities and Supported Employment;  Crisis Services;  Licensing, and  Mortality Review. The next Report to the Court will be submitted on June 6, 2014. It will focus on the period covering October 7, 2013 through April 6, 2014. In the end, it is clear that the effective implementation of the Agreement will depend on the continued contributions from individuals with ID/DD, their families, advocates, service providers, Community Service Boards, the staff of many Commonwealth and local agencies, the General Assembly, and the leadership of the Governor. Therefore, the Reviewer is deeply appreciative of the support and efforts of all those involved in his assessment of the Commonwealth’s compliance with the terms of the Settlement Agreement. The Reviewer extends a sincere thank you to each one of the individuals with ID/DD and their families who shared their stories and perspectives. He also deeply appreciates all others who helped: service providers, local government and state agencies, the Department of Justice attorneys, volunteers, advocates, experts and consultants. The Reviewer believes strongly that involvement of all these stakeholders is critical to success. It is their on-going and vigorous advocacy, and their willingness to engage and problem solve, that will help achieve the goals of the Agreement. The active involvement of stakeholders will also help sustain success when the Agreement is no longer in effect.
iv	
  

II. INTRODUCTION
This is the third report of the Independent Reviewer (Reviewer) to Judge John A. Gibney, District Judge in the United States District Court for the Eastern District Court of Virginia (the Court) in the Settlement Agreement (the Agreement) between the United States (DOJ) and the Commonwealth of Virginia (the Commonwealth), Civil Action No. 3:12cv059. It covers the period from April 7, 2013, through October 6, 2013, with some information gathered through November 15, 2013.
The Reviewer’s previous reports to the Court provide important background information about the Agreement. They also describe the activities of the Commonwealth to fund, plan, and implement the Agreement’s provisions; as well as the Reviewer’s activities and methods of gathering and verifying information to determine whether the Commonwealth is in compliance. This background information helps to understand the contents of this report. The Reviewer’s Reports can be found by clicking on “Independent Reviewer’s Report” at http://www.dbhds.virginia.gov/Settlement.htm#Review.
The third reporting period, like the second, included the development of new plans and the actions to implement many others. The Agreement was designed to initiate and accomplish significant change – to enhance services and to strengthen safeguards – during the first two years.
This report includes the findings, conclusions, and recommendations of the Reviewer for the areas monitored during this period. The Reviewer prioritized six major areas for the most in-depth monitoring:
• Discharge Planning and Transitions from SVTC and NVTC • Resolving Barriers • Safety in the Community • Case Management • Crisis Services • Quality and Risk Management
Information related to each of these priority areas was gathered and evaluated through four studies. An Individual Review study of the services for forty-eight individuals who moved from Training Centers was completed and independent consultants with specialized expertise did three evaluations. The evaluation of the Crisis Services system, the third such review, studied the actions taken to follow-up on the Reviewer’s previous recommendations. The evaluations of Case Management and Quality and Risk Management were both initial baseline studies of compliance.
Individual Review study: The Reviewer and expert consultants again utilized a monitoring questionnaire to gather information to review the status of services for individuals who moved from the SVTC and the NVTC to community-based homes and services. The individuals selected for review were forty-eight individuals who moved during the third and fourth quarters of Fiscal Year 2013. Two-person teams reviewed the services of a statistically significant random sample of twentyeight individuals; one member of each team was a registered nurse with extensive experience serving individuals with ID/DD. Twenty-two of the individuals had moved from SVTC and six had moved from NVTC. Each review included studying service planning and case management records, visiting and observing the individuals (usually in their homes), and interviewing those providing
Page 1 of 59

services. The sample size provides a 90% confidence level and a 10% confidence interval and, therefore, offers a sufficient degree of confidence that findings can be generalized to the forty-eight individuals.
For this report, the findings from the Individual Review study are separated into categories of “positive outcomes” and “areas of concern” for the individuals in the selected sample. The Reviewer has determined that, for the cohort as a whole, the ratings above eighty-five percent compliance represent “positive outcomes” whereas below that level represents “areas of concern”. The Individual Review reports have been provided to the Commonwealth so that the issues identified for each individual will be reviewed. The Commonwealth has been asked to share the reports with the individual’s residential provider and CSB and to provide updates by March 31, 2014, on actions taken in relationship to the issues identified.
Many of the same questions in the Individual Review study of individuals who moved from the Training Centers were asked in a similar study of individuals who moved from Training Centers that was completed in 2012, a year earlier. Where a change of 10% or more has occurred, a comparison table in this report shows the extent of the change for specific questions.
The findings of the Individual Review study are provided in three subsections under III. Findings. They are: A. Discharge and Transitions, B. Resolving Barriers, and C. Safety in the Community.
The Review of Crisis Services was to determine the Commonwealth’s follow-through on the Reviewer’s recommendations, outlined in his report of June 6, 2013. The findings related to each issue for follow-up are listed, and the conclusions and recommendations are included in the Findings section of this report. The expert’s full report lists, in detail, the primary issues reviewed. It also details the process used to determine the focus of the review, the documents reviewed, and the individuals interviewed. The full report is attached as Appendix C.
The Case Management Requirements and the Report on Quality and Risk Management evaluations were baseline assessments. Both involved studying systems that were currently operating and system reforms that were in the early stages of planning and implementation to meet the required provisions of the Agreement. As baseline studies, many important aspects of these systems were not part of these studies. Why certain aspects were or were not included in these evaluations is explained in the full reports that are attached as Appendix B and D. Each report describes the focus of the review, the methodology used, the documents reviewed, and the names of the individuals interviewed. The results of the evaluations are included in the findings, conclusions, recommendations, and suggestions for the provisions studied.
For areas prioritized for evaluation, the Reviewer and the expert consultants utilized the relevant sections of the State Health Authority Yardstick (SHAY) rating scale to evaluate and determine the adequacy of the plan and implementation efforts. The SHAY is a nationally recognized tool developed at Dartmouth University to review a state’s ability to plan, develop, monitor, and evaluate evidence-based practices regarding system development and program implementation.
Reports of the Commonwealth’s efforts, accomplishments, positive outcomes and areas of concern are described in the related Findings section of this report. The Reviewer’s suggestions at the end of
Page 2 of 59

the report are for the Commonwealth’s consideration. They are steps that the Reviewer believes, if implemented, will help achieve the goals of the Agreement.
The Reviewer’s determination of compliance with a provision of the Agreement is an overall judgment made at the conclusion of the review period in consideration of information gathered from all sources. Future determinations of compliance by the Commonwealth will depend on its making ongoing good faith efforts and concrete progress in the areas of concern and in addressing the recommendations.

III. FINDINGS
Below are the Reviewer’s findings regarding the status of the Commonwealth’s initiatives. In each section the relevant provisions of the Agreement are followed by findings, conclusions, and recommendations, if any.
A. Discharge Planning and Transition from Training Center

By July 2012…will have implemented Discharge and Transition Planning processes at all Training 
 Centers…


To ensure that individuals are served in the most integrated setting appropriate to their needs, the
 Commonwealth shall develop and implement discharge planning and transition processes. Section: IV.A.


The Commonwealth must ensure that


...discharge plans are developed for all individuals in TC’s through a documented person-centered planning 
 and implementation process... Section: IV.B.5.


...individuals shall participate in ..discharge planning...to the maximum extent possible. Section: IV.B.3.


...final discharge plan are developed within 30 days prior to discharge…Section: IV.B.5.


...discharge planning will be done by the individual’s Personal Support Team ...Section: IV.B.6.


...individuals are served in the most integrated setting appropriate to their needs…Section: IV.A.


...the PSTs have sufficient knowledge about community services and supports to: propose appropriate options


about how an individual’s needs could be met in a more integrated setting.

Section: IV.B.11.


The final discharge plan will include…Assessment of the specific supports and services… to meet an
 individual’s needs and achieve desired outcomes, regardless of whether those services and supports are
 currently available. Section: IV.B.5.c.


In the event that a PST makes a recommendation to place an individual in a congregate setting of 5 or more
 individuals…the PST shall identify the barriers...and describe in the discharge plan the steps the team will
 take to address the barriers. The case shall be referred to the Community Integration Manager (CIM) in
 accordance with Sections IV.D.2.a and f. and IV.D. Section: IV.B.15.


Page 3 of 59

The Reviewer gathered information for this section from reports provided by the Commonwealth, from regular meetings and discussions with the Parties, and from an Individual Review study. The findings from the reports and discussions with the Commonwealth are presented after those from the Individual Review study.
Individual Review study: For the third review period, this study involved the discharge planning and transition of forty-eight individuals who moved from SVTC and NVTC during the third and fourth quarters of Fiscal Year 2013. Transitions from these two Training Centers were studied because they are the first two institutions that Virginia has projected to close. A random sample of twenty-eight individuals was selected from the forty-eight individuals; twenty-two had moved from SVTC and six had moved from NVTC. This sample size provided a 90% confidence level and a 10% confidence interval and, therefore, offered a sufficient degree of confidence that findings can be generalized to the forty-eight individuals.
For the most part, the Individual Review study questionnaire asked the same questions that were asked during the first and second periods. The questions were based primarily on the requirements of the Agreement and relevant DBHDS policies and procedures. In addition, for the third review period, a limited number of new questions were added to establish a baseline of the extent to which certain requirements (for example, use of rental housing, and planning for supported employment) were being met before the required date of implementation.
A two-person team of experts completed each Individual Review. One member was a registered nurse with extensive experience working with individuals with ID/DD. The reviewers studied documents related to the individuals prior to visiting these twenty-eight individuals and conducting on-site observations and interviews with their caregivers. The reviewed documents included assessments, discharge plans, post-move monitoring reports, case manager notes, and individual support plans, and, if applicable, behavior support plans.
The demographic information collected about these individuals is in Appendix A: Individual Reviews – Demographic Information. Overall, the group was older; that is, twenty-two individuals (75%) were between fifty-one and seventy years of age. Nineteen individuals (67.8%) did not speak, but could communicate with gestures and vocalizations. Nearly half of the individuals (46.4%) needed wheelchairs or total assistance for mobility.
Findings: The reviews identified the following themes regarding the transitions and services for the individuals in the selected sample. Each of the themes represents a pattern of findings from the reviews of services for several individuals, although there were individual exceptions. The specific findings from the individual reviews are listed in tables following the description of the themes. Both the themes and the tables have been separated into “positive outcomes” and “areas of concern”.
Page 4 of 59

Themes: Positive Outcomes
The discharge planning and transition schedule was modified based on the needs of the individuals and their Authorized Representatives. The established pace and sequence of steps in the transition process was slowed appropriately, as needed, to ensure that discharge plans would meet the individuals’ essential needs.
Individuals lived in homes that were attractive, in appealing neighborhoods, and close to resources. The home environments had been adapted for accessibility, if needed, and adaptive equipment was available.
Individuals appeared well kempt and wore clean, properly fitted clothing. These examples of desirable outcomes reflected staff attentiveness to and understanding of their role in the individuals’ care.
Individuals had improved behavioral and health outcomes. There were several examples of individuals who had previous undesirable behaviors that were discovered to be symptoms of medical conditions or attempts to communicate. Medical interventions and consistent responses to behavior as communication substantially resolved these issues. An individual’s poor oral hygiene was resolved by adopting a new approach to tooth brushing. Another individual, whose behaviors at the Training Center required that he eat alone, was now able to share meals with his housemates. As self-abusive behaviors diminished in frequency and intensity, and redirection was sufficient to avoid self-harm, the use of elbow restraints has been eliminated for one individual. For others in the sample, increased fluids and exercise had helped them to maintain normal bodily functions.
Individuals had adjusted very well to their new homes. This adjustment to new environments was especially impressive because most of the individuals (75%) in the sample were between the ages of fifty-one and seventy and had lived in Training Centers for multiple decades.
Authorized Representatives, who were initially reluctant to move their loved ones from a Training Center to a community residence, had visited frequently and were satisfied. Several individuals had family members visit frequently. As the family members became more familiar with the staff of the community residence and were able to note positive changes, they expressed greater acceptance of and support for the move from the Training Center to a community-based setting.
Themes: Areas of Concern
Program options that offered ‘most integrated settings’ were not available to many individuals. Although it was documented that the Personal Support Teams (PSTs) had described some community options to individuals and their Authorized Representatives, they did not describe supports and services that met the individual’s needs and offered the most integrated settings; reportedly this was because they were not available. For example, appropriate supports and services in homes with four or fewer beds, subsidized independent housing options, supported employment, and integrated day opportunities were not described or, in most cases, currently available. For some individuals, the PST, Community Integration Manager, and Regional Support Teams had not identified the specific barriers to being able to offer such programs. Whether barriers were
Page 5 of 59

identified, or not, the documentation did not indicate that steps were taken to resolve the barriers. A few individuals who had worked and earned money at the Training Center, and others who now wanted to work and earn money, were not offered supported employment options that allowed them to do so.

The individual support plans (ISPs) and daily routines did not actively support skill development to increase independence or participation in the community. ISPs did not usually include a description of the individual’s current skills or what skills or community involvement were being taught or supported. Progress cannot be reliably determined without a baseline measure of existing abilities or of the skills to be developed. Without such a determination, it was not possible to analyze whether current approaches were succeeding or whether new program plans or teaching approaches should be considered. The lack of adequate attention to habilitation was also evident in the frequently observed inability of staff to describe the talents and contributions of the individuals under their responsibility. In addition, it did not appear that there was a core program expectation to help individuals to learn specific skills and to increase their abilities to participate in their neighborhoods and communities. It was noted that the individuals in the sample typically did leave their homes at least one time per week for a community trip. However, the goal for these trips appeared to be that they occur at a certain frequency, not that the individual learn skills or abilities that would enable increased participation during future community outings.

Discharge Planning – positive outcomes

Item

n

Y

Did the individual and, if applicable, his/her

28 100.0%

Authorized Representative participate in

discharge planning?

Was the discharge plan updated within 30 days

28 100.0%

prior to the individual’s transition?

Did person-centered planning occur?

28 100.0%

Were essential supports described in the discharge 28 100.0%

plan?

Was it documented that the individual, and, if

28 85.7%

applicable, his/her Authorized Representative,

were provided with information regarding

community options?

Was provider staff trained in the individual

27 96.4%

support plan protocols that were transferred to the

community?

Does the discharge plan (including the Discharge

28 96.4%

Plan Memo) list the key contacts in the

community, including the licensing specialist,

Human Rights Officer, Community Resource

Consultant and CSB supports coordinator?

Did the Post-Move Monitor, Licensing Specialist, 27 100.0%

and Human Rights Officer conduct post-move

monitoring visits as required?

N 0.0% 0.0% 0.0% 0.0% 14.3%
0.0% 3.6%
0.0%

CND 0.0% 0.0% 0.0% 0.0% 0.0%
0.0% 0.0%
0.0%

Page 6 of 59

Discharge Planning – positive outcomes

Item

n

Y

Were all medical practitioners identified before

28 92.9%

the individual moved, including primary care

physician, dentist and, as needed, psychiatrist,

neurologist and other specialists?

N 7.1%

CND 0.0%

Discharge Planning Items – areas of concern

Item

n

Y

N

Was it documented that the individual and, as

28 14.3% 85.7%

applicable, his/her Authorized Representative,

were provided with opportunities to speak* with

individuals currently living in the community and

their families?

If a move to a residence serving five or more

10 40.0% 60.0 %

individuals was recommended, did the Personal

Support Team (PST) and, when necessary, the

Regional Support Team (RST) identify barriers to

placement in a more integrated setting?

If barriers to move to a more integrated setting

4

0.0% 100.0%

were identified above, were steps undertaken to

resolve such barriers?

Was placement, with supports, in affordable

28

0.0% 100.0%

housing, including rental or housing assistance,

offered?

Were all essential supports in place before the

28 78.6% 21.4%

individual moved?

CND 0.0%
0.0%
0.0% 0.0% 0.0%

* Note: When touring homes under consideration, individuals and Authorized Representatives interacted with some individuals who were currently living in the residence. These interactions, although potentially helpful to the individuals and Authorized Representatives, were typically coincidental. There was no documentation that such interactions involved discussion about community living.
The Commonwealth has reported the availability of increased resources to assist individuals to move from SVTC and NVTC. The Commonwealth has approved an exceptional rate (awaiting approval from the Centers for Medicare and Medicaid Services) for individuals with complex needs and bridge funding to assist in transferring specific individuals with complex needs. These bridge funds will be used to ensure that community-based programs can be developed for specific residents of SVTC and NVTC who have needs that cannot be currently supported by the ID waiver.

Conclusions: There were many positive outcomes found during the reviews of services. Some of the “areas of concern” also showed improvement in comparison with findings from the Individual Review study the previous year. As noted above, there were areas of concern that continue and will require heightened attention and focused corrective or supplemental actions.
Page 7 of 59

Since the Discharge Planning and Transition process was developed, the Commonwealth has worked on providing ongoing education to staff who implements it.
For specific residents at SVTC, the Commonwealth has identified that the current ID waiver is a barrier to offering available supports and services in community-based homes. It subsequently requested and gained approval to the use of bridge funds to resolve this identified barrier. Plans are being developed to create the needed programs with the supports and services that are needed.
There are more than fifty separate provisions in the Discharge Planning and Transition (Section IV) of the Agreement. The Reviewer prioritized certain provisions for more in-depth monitoring and other provisions for monitoring of documents that are largely reports from the Commonwealth. Some provisions have not been monitored enough to reach conclusions.
Based on the results of the Individual Review study and reports by the Commonwealth, the Reviewer has determined that the Commonwealth is substantially in compliance with the following provisions of Section IV. These include Sections B.3., 4., 5.a.-b., 5.e.i, 7., 8., 9.a, 11.a., and 12.a.-c.; C.1.,2.,3.4.5.6. and 7.; D.1.,2.a.,b., and e., and 3. The Commonwealth is not in compliance with Sections A.; B.4., 5.c, 6., and 9.b.
For the remaining provisions of Section IV, the Reviewer cannot determine, or has deferred a determination of, compliance until more information is gathered and evaluated.
Most of the explanations for the bases of the Reviewer’s determinations of compliance are included in the positive outcome findings listed above. The bases for the determinations of non-compliance are summarized in the two themes that describe and the tables that list areas of concern.
In regards to “most integrated settings,” the Personal Support Teams (PSTs) were not describing the supports and services that met the individual’s needs in community homes with four or fewer beds or day programs that provide typical days with regular integrated activities. The specific barriers to providing such options were not being identified and plans to address the barriers were not developed. Program options that offered “most integrated settings” were not available that met the needs of the individuals reviewed. Therefore, the process is not ensuring that individuals are served in the most integrated setting appropriate to their needs.
In regards to habilitation, for the sample of the individuals studied, the assessments and goals of the discharge planning and the individual support plans (ISPs) were not promoting the individuals’ growth, skill development, and independence based on their strengths. In some cases, the individuals’ preferences to work and earn money had not guided what was offered or provided.
Recommendations: The Commonwealth should ensure that the discharge plans include assessments of the supports and services needed that could meet the individual’s needs in homes of four or fewer beds and in integrated day activities. If such programs are not available, the specific barriers to providing such programs should be identified.
Page 8 of 59

B. Resolving Barriers – Personal Support Teams (PSTs), Community Integration Managers (CIMs), and Regional Support Teams (RSTs)
To prevent the unnecessary institutionalization of individuals with ID/DD and to provide them opportunities to live in the most integrated setting appropriate to their needs consistent with their informed choice, the Commonwealth shall develop and provide the community services described in this section... Section III. Upon referral to it (by the CRC), the Regional Support Team (RST) shall work with the Personal Support Teams (PST and the Community Integration Managers (CIM)...to resolve barriers and ensure that the placement is the most integrated appropriate to the individual’s needs, consistent with the individuals informed choice. Section III.E.2. The CRC shall refer cases to the RST for review, assistance in resolving barriers...whenever:
the PST and CRC recommend an individual residing in his or her own home, his or her family’s home, or a sponsored residence be placed in a congregate setting with five or more individuals...in a nursing home or ICF...or there is a pattern of an individual repeatedly being removed from his or her current placement.”
In developing discharge plans…PSTs and the CSB case manager shall coordinate with the specific type of community providers identified...to provide individuals, their families, and…Authorized Representatives with opportunities…and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-­‐‑to-family and peer programs to facilitate these opportunities. Section IV.B.9.b.
CIMs shall be engaged in addressing barriers to discharge…Section IV.D.2
The PST and the CSB case manager shall assist the individual in choosing a provider after providing the opportunities described...Section IV.B.9.c.
The State shall ensure that information about barriers to discharge is collected from the Training Center and is...aggregated and analyzed...for development of community---­‐‑based services. Section IV.B.14
...in the event of...a recommendation...to place an individual in nursing home or a congregate setting with five or more individuals...the PST shall identify the barriers to a placement in a more integrated setting...and describe in the discharge plan the steps the team will take to address the barriers...Section IV.B.15
When individuals are recommended to move to a congregate setting with five or more individuals, the Agreement calls for additional review procedures to identify and resolve barriers to serving individuals in the most integrated settings.
Findings: The results of the Individual Review study reported that the work of the Personal Support Teams had achieved compliance in several areas.
Page 9 of 59

The community residential and day services offered to the individuals in the sample were limited primarily to congregate options, i.e. group homes and day support centers.

The Individual Review study (see page 4 for description), found that twenty-five (89.3%) of the twenty-eight selected individuals moved to live in a congregate setting.

Type of Residence

n

%

Group home*

24

85.7%

Family home

1

3.6%

Sponsored home

2

7.1%

Nursing home

1

3.6%

* two (8%) of the group homes were clustered with other group home(s) on abutting property.

All twenty-four of the individuals with a day program are served in congregate day support centers.

Type of Day Program

n

%

Day Support (center-based)

24

85.7%

No current day program*

4

14.3%

* DBHDS reported that all four Authorized Representatives requested to wait to consider day

support services to give the individuals time to adjust to their new residential placements.

Twenty-seven (92.9%) of the individuals participated in a community outing at least weekly. They go out primarily with their housemates as a group. Fifteen (53.6%) had the opportunity to attend religious services, whereas, thirteen (46.4%) did not. Twenty-four (85.7%) did not belong to any community clubs or organizations. None of the individuals have daily integrated activities.

Integration items – areas of concern

Item

n

Y

Were employment goals and supports developed

28

0.0%

and discussed?

If no, were integrated job opportunities offered?

28

0.0%

Does typical day include regular integrated

28

0.0%

activities?

Do you go out primarily with your housemates as a 25 92.0%

group?

Have you met your neighbors?

27 29.6%

Do you have the opportunity to attend a church /

28 53.6%

synagogue / mosque or other religious activity of

your choice?

Do you belong to any community clubs or

28 14.3%

organizations?

Do you participate in grocery shopping?

28 32.1%

Do you participate in buying your clothes?

28 32.1%

N 100.0%
100.0% 100.0%
8.0%
70.4% 46.4%
85.7%
67.9% 67.9%

CND 0.0%
0.0% 0.0%
0.0%
0.0% 0.0%
0.0%
0.0% 0.0%

Page 10 of 59

The Individual Review study also found many areas of concern related to the extent that the individuals who moved participated in these integrated activities in their neighborhoods or communities.
The RSTs began operating in the first months of 2013. They have met regularly, been receiving referrals, collecting data, and report having had some successes resolving barriers to serving individuals in more integrated settings. Some of the individuals selected for the Individual Review study moved from the Training Centers before the RST’s first meeting. Others moved during the RST’s orientation period and first few months of operations.
Conclusions: The Individual Review studies of individuals who moved from Training Centers found that 46.9% of the individual’s community-based homes were licensed to serve five or more individuals in Fiscal Year 2012; whereas 53.6% were found in such settings in Fiscal Year 2013. The proportion of individuals who moved to homes where five or more people are currently living remained steady at 33-34%. In both Fiscal Years, there were active plans to increase the number of individuals living in the homes that had licensed capacity to serve more individuals.
The additional review procedures did not had a material impact on the range of program options that were available and that met the needs of the selected twenty-eight individuals.
Program options that offered “most integrated settings” were not available to many of the individuals studied. Although it was documented that the Personal Support Teams (PSTs) had described some community options to individuals and their Authorized Representatives, it was noted that they had not consistently described available and appropriate program options for the most integrated settings that met the individuals’ needs. For example, appropriate residential options with four or fewer beds, subsidized independent housing options, supported employment, and integrated day opportunities were not described or offered, and almost always were not available. The discharge plans did not include an assessment of the supports and services for these more integrated service options, and, therefore, had not identified the specific barriers to offering such programs. When barriers were identified, the documentation did not indicate that steps were taken to resolve the barriers. Some individuals and Authorized Representatives made choices without this information being made available. A few individuals who had worked and earned money at the Training Center, and others who now wanted to work and earn money, were not offered supported employment options that allowed them to do so.
Recommendations: The Commonwealth should create residential and day program options in integrated settings that meet the needs of individuals with ID/DD who are eligible to receive such services.
The Commonwealth should ensure that its monitoring processes (i.e. case management, licensing, etc.) evaluate and, if needed, recommend strategies so that individuals are offered services consistent with the Employment First Policy and other meaningful opportunities to discover interests and participate in community life.
Page 11 of 59

C. Safety in the Community
… individuals receiving HCBS waiver services under this Agreement shall receive case management” which means assisting “the individual to gain access to needed medical … nutritional, therapeutic, behavioral, psychiatric, nursing, personal care …and other services identified in the ISP; …and… monitor the ISP to make timely additional referrals, service changes, and amendments to the plans as needed. Section III.C.5.b.ii-iii.
The Commonwealth shall provide timely and accessible supports for individuals with intellectual and developmental disabilities who are experiencing crises…and…services focused on crisis prevention…to avoid potential crises. Section III.C.6.a.i-ii.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s … well being …Section IV.B.4
The Commonwealth shall development and implement a system ( i.e. the Post-Move Monitoring process)…to follow up with individuals after discharge from Training Centers to identify gaps in care and address proactively any such gaps… Section IV.C.3.
The Commonwealth shall develop a quality and risk management system…to ensure that all services …meet the individuals’ needs, and help individuals achieve positive outcomes, including avoidance of harms…and to ensure that appropriate services are available and accessible…and…identify and address risks of harm…Section V.A.-B.
The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services… and…shall…determine that essential supports are in place at the individual’s at the individual’s community placement prior to the individual’s discharge…Section IV.C.5.
…the individual’s case manager shall meet with the individual face-to-face…as dictated by the individual’s needs.. and in certain circumstances…at least every thirty days, and at least every two months must be in the person’s place of residence. Section V.F.1.-3.
Issues of safety in the community are addressed in several sections of the Agreement. These include, but are not limited to, provisions in Section III.C. Case Management and Crisis Services, Section IV. Discharge Planning and Transitions, and Section V. Quality and Risk Management. During the third review period the Reviewer prioritized monitoring safety in the community in several ways. These included:
• the Individual Review study; • the Case Management Requirements evaluation; • the Report on Quality and Risk Management; and • the monitoring and reviews of serious injuries and deaths.
The Individual Review study gathered information about the healthcare services and outcomes for the selected individuals who moved from Training Center. It also reviewed: the frequency and content of reports from the Post-Move Monitoring process, the frequency and content of face-toface monitoring visits and activities of these individuals’ case managers, events related to individuals’ high risk factors, and critical incidents.
Page 12 of 59

The Individual Review study’s health care outcomes for the selected individuals are presented in the tables below.
The baseline evaluation, Case Management Requirements, reviewed and determined the Commonwealth’s compliance with the Agreement’s provisions related to case management services and practices, face-to-face case management, observation and assessment, and training. The findings and recommendations from this evaluation are reported in the Case Management section (pages 20-27) of this report.
The baseline evaluation, Report on Quality and Risk Management, reviewed the status of the Commonwealth’s plans and initiatives for selected provisions. Findings related to safety are included in the following sections of this report: Risk Triggers and Thresholds, Web-based Incident Reporting, Investigations, and Data to Assess and Improve Quality (pages 45-57).
For all individuals who moved from Training Centers, Serious Injury Reports (SIR) are monitored by the Reviewer. DBHDS requires that SIRs be submitted for many reasons. These include unscheduled visits with medical services, hospitalizations, emergency room visits, contact with law enforcement, emergency medical services, etc. SIRs that involve death or injuries that result in ongoing medical care are reviewed and reports are filed with the Court and the parties under seal. In addition to the SIR reviews during this period, the Reviewer retained an expert consultant to review the death of an individual with ID who had lived in a group home, but had not moved from a Training Center. These reports to the parties include the findings, conclusions, and recommendations, if any, that are related to the individual’s events and circumstances.
Findings: Since his previous report to the court, the Reviewer completed six reviews of serious injuries and deaths (SIR reviews). These involved individuals who had moved from the Training Centers under the agreement. Of these six SIR reviews, two involved injuries that required ongoing medical care and four involved deaths.
Between November 2011 and October 17, 2013, seven of the 313 individuals who had moved from the Training Centers had died. Six of them died during this review period. Four of these six deaths were expected and were due to cancer or other significant medical conditions. Two of these deaths were unexpected and investigations by the Office of Licensing and reviews by the Mortality Review Committee (MRC) are in process as required by the Agreement. The MRC has established a standard that reviews of unexpected deaths will be completed within ninety days of the death. The Independent Reviewer will complete a review of these deaths once the Commonwealth review process is complete.
The Reviewer’s reports of the injuries and expected deaths during this period reached conclusions that were consistent with those of the internal review process. The findings and conclusions of these reports did not indicate overall trends related to the safety of the individuals who have moved from the Training Centers. Through the third review period, each of the few reviews of serious injuries to date has involved a different individual. Similarly, a different residential provider has been involved in all of the serious injury and death reviews. The number of SIR reviews, when compared with the number of individuals who have moved, is not sufficient to provide confidence that findings can be generalized to a larger group. The findings and conclusions from these reports are considered in determining compliance and in making recommendations in the appropriate section of this report.
Page 13 of 59

Healthcare Items - positive outcomes

Item

n

Y

Were appointments with medical practitioners for 28 96.4%

essential supports scheduled for and, did they

occur within 30 days of discharge?

If ordered by a physician, was there a current

10 100.0%

physical therapy assessment?

If ordered by a physician, was there a current

14 100.0%

nutritional assessment?

Did the individual have a physical examination

28 100.0%

within the last 12 months or is there a variance

approved by the physician?

Did the individual have a dental examination

28 89.3%

within the last 12 months or is there a variance

approved by the dentist?

Were the Primary Care Physician’s (PCP’s)

28 100.0%

recommendations addressed/implemented within

the time frame recommended by the PCP?

Were the medical specialist’s recommendations

28 89.3%

addressed/implemented within the time frame

recommended by the medical specialist?

Is lab work completed as ordered by the

28 96.4%

physician?

Are physician ordered diagnostic consults

completed as ordered within the time frame

recommended by the physician?

24 100.0%

If applicable per the physician’s orders,

Does the provider monitor fluid intake?

24 100.0%

Does the provider monitor food intake?

22 100.0%

Does the provider monitor seizures?

10 100.0%

Does the provider monitor positioning

16 100.0%

protocols,?

Does the provider monitor bowel movements?

27 96.3%

Is there documentation that caregivers/clinicians:

Did a review of fluid intake?

21 95.2%

Made necessary changes, as appropriate?

13 92.3%

Did a review of food intake?

18 94.4%

Made necessary changes, as appropriate?

14 92.9%

Did a review of bowel movements?

27 96.3%

Made necessary changes, as appropriate?

24 100.0%

If applicable, is the dining plan followed?

20 100.0%

If applicable, is the positioning plan followed?

14 100.0%

Do the individual’s clinical professionals conduct

9

88.9%

monitoring for digestive disorders that are often

side effects of psychotropic medication(s)?

N 3.6%
0.0% 0.0% 0.0%
10.7%
0.0%
10.7%
3.6%
0.0% 0.0% 0.0% 0.0% 0.0% 3.7% 4.8% 7.7% 5.6% 7.1% 3.7% 0.0% 0.0% 0.0% 11.1%

CND 0.0%
0.0% 0.0% 0.0%
0.0%
0.0%
0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%

Page 14 of 59

Healthcare Items – areas of concern

Item

n

Y

Are there needed assessments that were not

28 21.4%

recommended?

Were the dentist’s recommendations implemented 28 82.1%

within the time frame recommended by the

dentist?

Does the provider monitor weight fluctuations, if

24 83.3%

applicable per the physician’s orders?

If weight fluctuations occurred, were necessary

18 77.8%

changes made, as appropriate?

N 78.6% 17.9%
16.7% 22.2%

CND 0.0% 0.0%
0.0% 0.0%

COMPARISON – 2012 to 2013

The dentist’s recommendations were implemented within the time frame recommended?

1st review period

3rd review period

% change

2012

2013

+, (-)

66.6% (11 of 32)

82.1% (23 of 28)

+15.5%

Healthcare Items –Psychotropic Medications - areas of concern

Item

n

Y

N

If the individual receives psychotropic medication: 12 83.3% 16.7%

is there documentation of the intended effects

and side effects of the medication?

is there documentation that the individual

12 66.7% 33.3%

and/or a legal guardian have given informed

consent for the use of psychotropic

medication(s)?

CND 0.0%
0.0%

COMPARISON – 2012 to 2013

1st review period

3rd review period

% change

2012

2013

+, (-)

If an individual receives psychotropic medication:

is there documentation of the intended effects and side effects of the medication?

66.6% (11 of 32)

82.1% (23 of 28)

+15.5%

is there documentation that the individual and/or a legal guardian have given informed

consent for the use of psychotropic medication(s)?

50.0% (7 of 14)

83.2% (8 of 12)

+33.2%

does the individual’s nurse or psychiatrist conduct monitoring as indicated for the

potential development of tardive dyskinesia, or other side effects of psychotropic

medications, using a standardized tool (e.g. AIMS) at baseline and at least every 6 months

thereafter)?

28.6% (3 of 13)

45.5% (5 of 11)

+16.9%

do the individual’s clinical professionals conduct monitoring for digestive disorders that

are often side effects of psychotropic medication(s),

64.3% (8 of 13)

88.9% (10 of 11)

+24.6%

Page 15 of 59

The Mortality Review Committee (MRC) has established operating procedures and standards, has met monthly, and has begun reviewing serious injury data and unexpected deaths of individuals in the community. As a result of these reviews, the MRC has developed, distributed, and posted four Safety Alerts to share information with service providers. The MRC has established the standard that reviews of unexpected deaths will be completed within ninety days.
For the selected individuals moving from the Training Centers, the Individual Review study found that the Commonwealth had achieved positive outcomes for the Discharge Planning and Transition process. These positive outcomes included identifying the individuals’ essential needs, developing transition plans designed to meet those needs, and identifying and making appointments within the first thirty days with all the medical specialists who will support each individual.
The Individual Review study also found a predominance of positive health care outcomes, with a few areas of concern. It also found improvements in areas of concern that had been identified in the study one year earlier.
The Individual Review study also found that the Post-Move Monitoring (PMM) visits occurred as planned and as scheduled. The PMM visits involved specialists with different areas of expertise. Their visit schedule has been modified to provide more intense monitoring during the first critical weeks after each individual moves.
Conclusion: The community service system has undertaken several initiatives to improve quality and safety. These include:
 increased monitoring by licensing specialists and human rights advocates;  increased case management review that includes face-to-face visits every thirty days;  a web-based incident reporting and management system;  the availability of Community Resource Consultants, Regional Support Teams; and  the newly established five Regional Quality Councils and the statewide Quality Improvement
Committee.
Recommendation: The Commonwealth should ensure that for individuals taking psychotropic medications, there is documentation that the individual and/or a legal guardian have given informed consent for the use of these medication(s), that support team members know the intended effects of the medication(s), and that the potential side effects are monitored and documented.
Page 16 of 59

D. Youth Residing in Nursing Homes and the Largest ICFs
The Commonwealth shall develop and provide the community services described in this section…to prevent the unnecessary institutionalization of individuals with ID/DD and to provide them opportunities to live in the most integrated setting appropriate to their needs consistent with their informed choice…Section III.A.
The Commonwealth shall create… waiver slots to prevent the institutionalization of individuals with intellectual disabilities…including slots prioritized for individuals with…ID/DD…under 22 years of age from institutions other than the Training Centers (i.e. ICFs and nursing facilities).
Findings: The Reviewer reported in his second Report to the Court that DBHDS had established a Children in Nursing Homes work group during Fiscal Year 2013. That work group included stakeholders representing nursing homes and statewide Associations. To gain a better understanding of needs and concerns, visits were made to a nursing home with twenty children, a children’s long-term stay hospital where thirteen families were met with, and an eighty-bed children’s ICF. Interviews also occurred with nursing home staff. Families expressed concerns including the communities’ limited capacity and gaps in the service system, especially around access to in-home nursing.
During Fiscal Year 2013, eleven children with ID, and no children with DD, not ID, moved out of these facilities. None did so as a result of the Commonwealth’s workgroup’s initiatives. The Commonwealth reported that it determined that the work group’s initial plan should be modified to promote greater gains in this area and that a new work plan be developed to achieve compliance.
The DBHDS added new members to the workgroup from DMAS and drafted the work plan entitled: “Children in Nursing Homes and ICFs.” This work plan outlines a process by which representatives of DBHDS, DMAS, independent experts and stakeholders “will develop a long term plan to reduce the number of children with ID/DD living in nursing homes, the largest ICFs/IDD and long-stay hospitals, and to reduce the risk of new admissions to these facilities for individuals with ID/DD of all ages.” The goals of the plan involve assisting children and adults to move out of these facilities and implementing strategies to redirect potential admissions to community-based alternatives.
The names of 272 children with ID/DD who reside in nursing homes were identified. It has not been determined which of these individuals has been admitted since March 6, 2012, when the Agreement was entered.
Conclusions: It was appropriate for the Commonwealth to review its progress and to revise its plan to comply with the provisions of the Agreement. The plan outlines goals and strategies to develop a full implementation plan. The plan includes identifying and implementing strategies to help individuals move to more supportive community-based living and to redirect those referred for admissions to more integrated alternatives that meet their needs. These goals are consistent with the explicit intent of the Agreement (Section I.A.) in which the Commonwealth agrees that services to individuals with ID/DD be provided in the most integrated setting appropriate to meet their needs.
Page 17 of 59

The plan outline the Commonwealth has developed, when fully and successfully implemented, can bring the Commonwealth into compliance with the relevant provisions of the Agreement. Many of the plan’s initial strategies involve evaluating and exploring options and resources and gathering baseline data.
The Reviewer has deferred a decision of the Commonwealth’s compliance status pending completion of an implementation plan.
Recommendation: Complete an implementation plan by March 31, 2014 that includes measurable mid- and long-term goals that reflect the desired outcomes for individuals with ID/DD. The plan should identify implementation milestones to achieve for each goal, the person responsible, the resources needed, and an ongoing evaluation process. The plan should identify how long term success will be measured, and the means and methods by which data will be gathered to evaluate its progress.
E. Individual and Family Support Program
The Commonwealth shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be most at risk of institutionalization”…In FY13, a minimum of 700 individuals supported. Section III.C.2.a Individual and family supports are defined as a comprehensive and coordinated set of strategies that are designed to ensure that families who are assisting family members with intellectual or developmental disabilities (ID/DD) or individuals with ID/DD who live independently have access to person-centered and family-centered resources, supports, services and other assistance. Individual and family supports are targeted to individuals not already receiving services under HCBS waivers… Section II.D.
Findings: The Commonwealth met the requirement to provide funds to 700 individuals and families during Fiscal Year 2013 and 1000 individuals and families during Fiscal Year 2014. The funds were distributed on a first come, first serve basis for requests for individuals on the ID and DD waitlists. Individuals and families interviewed by the Reviewer reported requesting items or services that were needed and helpful. They were especially pleased that their judgment about what was most needed was respected. It was also reported that the process was straightforward, funds were provided promptly, and the DBHDS staff involved was responsive.
During Fiscal Year 2013, the Individual and Family Support Program (IFSP) funds were distributed on a first come, first serve basis. During Fiscal Year 2014, the funds were also distributed to individuals on the waitlist on a first come, first serve basis. Of the approved IFSP awards, 20-30% go to respite for families that may be used throughout the year. No funds were withheld by DBHDS to provide support for individuals who are at risk of unnecessary institutionalization for the remainder of the year.
Page 18 of 59

Case managers, families, and advocates have consistently expressed concerns that the method of distributing the IFS funds measures a family’s degree of preparedness or support rather than the risk of institutionalization.
Conclusions: For those on the waitlists for services who benefitted from the IFSP fund, it has been appreciated and helpful. The method of distributing the IFSP funds – on a first-come, first-serve basis for applications submitted on-line, however, does not appear to be consistent with providing this limited support to those most at risk of institutionalization. Distributing all the funds early in the year also seems inconsistent with the reality that the risk of institutionalization occurs throughout the year. The Agreement designates the Commonwealth to “determine who is most at risk of institutionalization.” Therefore, the Commonwealth made the determination that all those on the ID and DD waitlists were those most at risk of institutionalization. It subsequently decided to distribute the IFSP on a first come, first serve basis and to distribute all the funds during the first quarter of the year. The Reviewer recommended in his previous report that the Commonwealth evaluate its initial determination that individuals on the waitlists were those most likely to be institutionalized. No evaluation has been completed.
Recommendation: The Commonwealth should report to the Reviewer, by March 31, 2014, the number and the percent of individuals/families who receive IFS funds who are on the urgent versus the non- urgent ID waitlist and individuals with DD, not ID, who are on the emergency list.
F. Case Management
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. b. For the purposes of this agreement, case management shall mean:
i. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs; ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed. c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers. d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards. Section III.C.5.a-d.
Page 19 of 59

During the third review period, the Commonwealth was actively involved with the CSBs and private providers in changing the case management system. The Agreement requires implementation of significant changes in case management services and practices. Enhanced case management services (i.e. 30 day face-to-face visits) were required for certain individuals, as of March 6, 2013. Case managers were completing the required seven training modules. The transition raised significant challenges. These included stress for case managers and their supervisors and concerns with rigid timelines and the unintended consequences. DBHDS leadership visited each of the CSBs to share information, to gather input, and to determine needed and warranted adjustments to improve the effectiveness of the guidelines and standards.
During the third review period, the Reviewer prioritized monitoring compliance with the case management provisions of the Agreement with two studies: the Individual Review study (see description on page 4) and Case Management Requirements which is a base line assessment by an independent consultant with expertise in case management. The positive outcomes and areas of concern found by the Individual Review study are presented in the following tables. The results of the baseline assessment of case management are reported below the tables.

Individual Support Plan Items – positive outcomes

Item

n

Y

N

Is the individual’s support plan current? Is there evidence of person-centered (i.e. individualized) planning? Are essential supports listed?

28 100.0% 0.0% 28 100.0% 0.0%
28 89.3% 10.7%

Is the individual receiving supports identified in his/her individual support plan?

Residential Medical Health Recreation Mental Health Transportation

28 100.0% 0.0% 28 96.4% 3.6% 28 100.0% 0.0% 28 92.9% 7.1% 14 85.7% 14.3% 26 96.2% 3.8%

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0%

Individual Support Plan Items – areas of concern

Item

n

Y

N

Do the individual’s desired outcomes relate to

28 67.9% 32.1%

his/her talents, preferences and needs as identified

in the assessments and his/her individual support

plan?

Does the individual’s support plan have specific

28 28.6% 71.4%

outcomes and support activities that lead to skill

development or other meaningful outcomes?

Does the individual’s support plan address barriers 27 11.1% 88.9%

that may limit the achievement of the individual’s

desired outcomes?

CND 0.0%
0.0% 0.0%

Page 20 of 59

Individual Support Plan Items – areas of concern

Item

n

Y

N

If applicable, were employment goals and supports 28

0.0% 100.0%

developed and discussed?

Is the individual receiving supports identified in

his/her individual support plan?

Day/Employment

27 81.5% 18.5%

Dental

28 71.4% 28.6%

Has the individual’s support plan been modified as

6

50.0% 50.0%

necessary in response to a major event for the

person, if one has occurred?

Have any identified concerns been resolved?

20 80.0% 20.0%

Is residential staff able to describe the individual’s

28 60.7% 39.3%

talents/contributions, preferences and weaknesses?

In your professional judgment, does this individual

28 35.7% 64.3%

require further review?

CND 0.0%
0.0% 0.0% 0.0%
0.0% 0.0% 0.0%

COMPARISON – Case Management

1st review period

3rd review period

2012

2013

Concerns identified with the individual’s supports have been resolved.

66.7% (12 of 18)

80.0% (16 of 20)

% change +, (-)
+13.3%

Below are the positive outcomes and areas of concern found in the residential programs where case managers monitor the implementation of a significant portion of the individuals’ support plans.

Residential Staff – positive outcomes Items

Item

n

Y

Is there evidence the staff has been trained on the

28 100.0%

desired outcome and support activities of the

individual’s support plan?

Is the staff working with the individual as detailed

28 89.3%

(consider the individual’s Behavior Support Plan or

ISP regarding the level of support needed)?

Is residential staff able to describe the individual’s

28 92.9%

likes and dislikes?

Is residential staff able to describe the individual’s

28 100.0%

health related needs and their role in ensuring that

the needs are met?

N 0.0%
10.7%
7.1% 0.0%

CND 0.0%
0.0%
0.0% 0.0%

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Residential Environment Items – positive outcomes

Item

n

Y

N

Is your home located near community resources (i.e. 28 89.3% 10.7%

shopping, recreational sites, churches, etc.?)

Is the individual’s residence clean?

28 92.9% 7.1%

Does the individual appear well kempt?

28 92.9% 7.1%

Is the residence free of any safety issues?

27 92.6% 7.4%

CND 0.0%
0.0% 0.0% 0.0%

Residential Environment Items – areas of concern

Item

n

Y

N

Are food and supplies adequate?

27 77.8% 22.2%

Is there evidence of personal décor in the

27 44.4% 55.6%

individual’s room and other personal space?

CND 0.0% 0.0%

Case Management Requirements: The expert’s evaluation of case management was a baseline assessment of compliance. The many important aspects of case management that were not part of this review are described in the full report Case Management Requirements (Appendix C). The expert’s report describes the methodology used, the documents reviewed and the completed interviews. The documents reviewed include the processes that govern case management: the Operational Guidelines, the Choice Protocol, the CSB Provider Search website, and the seven module online case manager training curriculum. During the evaluation, the expert also completed the seven modules of training that are required for all case managers.
The results of the baseline assessment, the facts gathered during the Individual Review study, and the Independent Reviewer’s evaluation of other information reviewed were considered in the findings and recommendations. They include direct statements and paraphrase the expert’s report “Case Management Requirements”.
Findings: The Individual Review study established that all individuals whose services were reviewed were receiving case management services.
The DBHDS “Choice Protocol” is a good example of shifting toward a person-centered system. The distribution of the Choice Protocol, however, is optional and at the discretion of the case manager. The Choice Protocol does not include a formal mechanism for an individual/Authorized Representative to either choose or change among available case managers. This is an emerging best practice nationally. (The Commonwealth’s DD waiver’s provision for choice among private case managers is one approach to this end.)
The DBHDS website “CSB Provider Search” is a positive example of putting consumers/family members/Authorized Representatives in the ‘driver’s seat’ by giving them an electronic marketplace where they may objectively seek out the best-matched provider. Its use, however, is only part of an established practice for Training Center placements.
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Based on the review of one Licensing report from a full Licensing review and a subsequent Corrective Action Plan, DBHDS appeared to follow a well-organized approach to identifying compliance problems with CSB case management performance. Full Licensing reviews reportedly occur only once every three years; however, interim review visits can occur if conditions warrant. Other strategies are under development to comply with the Agreement’s provision that requires a mechanism to monitor compliance with performance standards. At this time, however, there does not appear to be a formal accountability measure built into the process to supplement tri-annual licensing visits.
Conclusions: DBHDS appears to be making substantive efforts to transform the processes which drive case management services. DBHDS and its agents are correctly articulating the aspirational intent of the case management provisions of the Agreement. DBHDS leadership got high marks from the CSB directors interviewed, based on their availability, responsiveness, and ability to effect change.
The case management and Individual Support Plan system produces positive outcomes in:  being person-centered;  plans that are current;  providing the range of services identified in the ISP (with noted exceptions); and  that the individual’s essential needs for care are being met.
The staff that delivered the services that were monitored by the case managers was attentive and knowledgeable about the individual’s likes and dislikes and her/his role in their care.
The case management system and the individuals’ support plans, however, were frequently found not to actively promote either active habilitation or community integration. As described in Section B. of this report, the individual support plans typically did not include outcomes that related to the individual’s talents and preferences or specific outcomes and support activities that lead to skill development and increased independence and self-determination.
Enhanced Case Management
F. Case Management
1. For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.
2. At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and document its resolution.
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3. Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals who:
a. Receive services from providers having conditional or provisional licenses; b. Have more intensive behavioral or medical needs as defined by the Supports Intensity Scale (“SIS”)
category representing the highest level of risk to individuals; c. Have an interruption of service greater than 30 days; d. Encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month
period; e. Have transitioned from a Training Center within the previous 12 months; or f. Reside in congregate settings of 5 or more individuals.
4. By March 6, 2013, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual. Section V.F.1-4.

Findings: The Case Management Operational Guidelines present the steps a case manager should follow in the event there is a problem, deficiency or discrepancy between the ISP and the ongoing provision of supports and services. The hierarchy the case manager should follow is logical and appropriate. Missing from the hierarchy, however, is an early step wherein the case manager would discuss the issue with CSB supervisors/managers. Including this step, which may now be assumed to occur, ensures the CSB is responsible for resolving implementation difficulties that the case manager is unable to resolve.

The Case Management Operational Guidelines currently require an exception report to be made to regional CRCs when thirty days visits are missed two consecutive times. Periodically aggregating these reports will help to identify trends.

As shown in the table below, the Individual Review study found significant improvement over the past year with case management review face-to-face visits now occurring at least every thirty days. The DBHDS Data Dashboard that tracks enhanced case management services (i.e. thirty day faceto-face visits) appears to have viability as an accountability tool. The Commonwealth is aware that the data entry does not allow sorting of regular versus enhanced case management. This current flaw may skew data negatively. Corrections of this flaw are planned for January 2014.

COMPARISON – Case Management

There is evidence of case management review, e.g. meeting with the individual face-to-face at

least every 30 days, with at least one such visit every two months being in the individual’s

place of residence.

1st review period

3rd review period

% change

2012

2013

+, (-)

46.9% (15 of 32)

88.9% (24 of 27)

+42.0%

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Recommendations: Case Management Operational Guidelines should be revised to add an early step in the process wherein the case manager would discuss the problem, deficiency or discrepancy for resolution with a supervisor or other manager at the CSB.
The current exception reports that thirty day visits are missed two consecutive times should be aggregated semi-annually at the CSB, Regional, and State levels and provided to the Reviewer as of the end of the first quarter of 2014, and semi-annually thereafter.
2. At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and document its resolution.
5. Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3 above. Sections V.F.2. and 5.
Findings: The objective to measure the content of the face-to-face visits is scheduled for accomplishment in March of 2014. The Draft ECM (Enhanced Case Management) onsite report appears a good first step to address this requirement. The Draft ECM currently addresses twenty-three items to be assessed in face-to-face visits with the individual. It is “optional” to CSBs at this time.
Case Manager Training
The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness.
Findings: As of September 5, 2013, 4,056 case managers had completed the first six of the required case manager training modules. 3453 had completed the seventh and newest module. DMAS reported a September estimate that fifty-eight out of ninety-seven DD case managers had completed the online course.
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The overall design of the seven modules Online Course for case managers is simple, attractive and easily navigated. The curriculum, which requires up to seven hours to complete, includes the range of topic areas that are central to case management. Statistics are presented as needed and appropriate philosophical emphasis on person-centered practice and self-determination is evident throughout. There is little mention, in the Online Course for case managers, of the importance of working with team members and how to assemble a team related to the responsibilities of the ID/DD case managers.
The DBHDS “Choice Protocol” addresses the choice offering process for all case managers.
The Section on “Focus on a Good Life” is very strong and provides a concrete model for case managers to follow. The Advocacy section is also well done, comprehensive and universal for all populations. The material on self-harm and harm to others is effective for caseloads with individuals who are verbal and have co-occurring behavioral health issues. It does not adequately address the needs of individuals with ID/DD who are non-verbal and where self-injury has a different topography. The motivations listed in the training modules do not apply to much of the ID/DD population. ID/DD case managers must also consider that a) self-injurious behaviors are indicating pain or discomfort, so medical causes must be ruled out and b) self-injurious behavior may be a form of communication. (Note: both a) and b) were found during the Individual Review process. In both cases attentive residential providers discovered the connections between the medical cause and communication intent.)
The teaching logic and the competency tests appear well designed and thoughtfully constructed for the learner. The concept of the team and its central role in life planning, as well as the mechanics of assembling a team, are only lightly covered. For ID/DD case managers, it is a critical skill set. The Individual Review study and other facts gathered by the Reviewer have found that this is an area of importance and, in some cases that have been reported separately to DBHDS, an area of concern.
CSB directors reported that case managers are assigned a caseload after the thirty-day requirement to complete the online course is met.
Recommendations: If this training is not already required and provided, the Online Course should be revised to include discussion of assembling the Team and its composition as determined by the consumer/family member.
Self-harm is the analog to self-injurious behaviors in much of the ID/DD world. Content should be added to the module in future revisions to ensure case managers understand the whole spectrum of self-harm to self-injurious behaviors.
The Case Management Operational Guidelines for enhanced case management should be broadly incorporated at the next revision of the curriculum in order to ensure sustainability for the future.
The Commonwealth should set and enforce a date by which all DD case managers will have completed the online course.
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G. Crisis Services
The Commonwealth shall develop a statewide crisis system for individuals with ID and DD (Section III.C.6.). The crisis system shall: provide timely and accessible support to individuals with I/D who are experiencing crises, including crises due to behavioral or psychiatric issues, and to their families; provide services focused on crisis prevention and proactive planning to avoid potential crises; and provide in-home and community –based crises services that are directed to resolving crises and preventing the removal of the individual from his current placement whenever practicable.
Crisis Point of Entry: The Commonwealth shall utilize existing CSB Emergency Services for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. When necessary the crisis hotline will dispatch at least 1 mobile crisis team member who is adequately trained to address the crisis. Section III.C.6.b.i.A.
By June 30, 2012 the Commonwealth shall train CSB emergency personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available. Section III.C.6.b.i.B
Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible. Section III.C.6.b.ii.A.
Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting. Section III.C.6.b.ii.B
Mobile crisis team members adequately trained to address the crisis shall also work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement Section III.C.6.b.ii.C.
Mobile Crisis teams shall be available 24 hours, 7 days per week and to respond to on-site crises. Section III.C.6.b.ii.D.
Mobile crisis teams shall provide local and timely in-home crisis support for up to 3 days, with the possibility of an additional period of up to 3 days upon review of the Regional Mobile Crisis Team Coordinator. Section III.C.6.b.ii.E.
By June 30, 2013 the Commonwealth shall have at least two mobile crisis teams in each Region to respond to on-site crises within two hours. Section III.C.6.b.ii.G.
By June 30, 2012 the Commonwealth shall develop one crisis stabilization program in each region. Section III.C.6.b.iii.F.
By June 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that region. Section III.C.6.b.iii.G.
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During the first, second, and third review periods, due to their singular importance, the Reviewer has prioritized monitoring the development of the Commonwealth’s crisis services. Effective crisis services are a cornerstone of a community service system that is designed to prevent unnecessary institutionalization. Implementation of crisis services is a complex undertaking that impacts many aspects of the service system. Multiple reviews have been required because components of the crisis services system have been delayed and effective implementation has been uneven.
The goal of this current review of crisis services was to determine the Commonwealth’s follow-through on the Reviewer’s recommendations, outlined in his report of June 6, 2013. The findings, conclusions, and recommendations listed below, for each issue reviewed, are informed by, and significantly paraphrase, the expert consultant’s third report, attached as Appendix C.
The independent consultant’s full report lists, in detail, the primary issues reviewed. It also details the process used to determine the focus of the review, the documents reviewed, and those interviewed. As noted below, each issue for follow-up is listed and then followed by findings, conclusion(s) and the Reviewer’s recommendation(s).
It is important to note that the Commonwealth initiated and completed a review of its crisis service system for individuals with ID/DD during this period. That review resulted in the development of a draft plan, Crisis Response System: My Life, My Community (the CRS Plan). This draft plan was developed to ensure that the Commonwealth meets the needs of adults and children with ID/DD while preventing unnecessary institutionalization. The Reviewer commends the Commonwealth for undertaking this evaluation. Its initiation demonstrates an understanding that implementation of complex systems must be continuously evaluated and, as appropriate; plans adjusted in order to achieve high standards and desired outcomes for individuals and their families.
1. Issue for follow-up: the Commonwealth’s ability to serve adults with DD in crisis by ensuring that individuals have case management services to assure full access to crisis services and stabilization programs, and to access community supports to prevent future crises.
Findings: The START program is serving adults with DD. Reportedly, of the 517 individuals referred to START for Fiscal Year 2013, eighteen (3.5%) individuals had either normal or borderline intelligence. It is not possible, however, to determine if the current utilization of crisis services by individuals with DD, not ID, reflects the number of individuals who need this service.
The Commonwealth agreed to develop a statewide crisis system for individuals with ID/DD, not only for those in the target population. The Agreement only requires that those individuals with ID/DD receiving HCBS waiver services receive case management. Case managers assist individuals to gain access to services that provide needed support to prevent and avoid future crises. The Commonwealth provides case management for all individuals that have ID and DD waivers. During Fiscal Year 2013, the Commonwealth decided to provide case management to an individual with DD who has been referred to, and used, the START program, and who is on the waitlist for the DD waiver. The Commonwealth has decided not to provide case management services to individuals who are not on the waitlist. The Commonwealth reported that it has decided instead to have this policy question studied as part of the review of HCBS waiver services that will be completed by the selected vendor during the summer of 2014.
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Training has been offered to ninety-seven case managers serving the DD waiver participants and is always available on a webinar. The Commonwealth has no requirement that DD case managers take the training and no documentation of which ones and how many have been trained.
There has been limited outreach to the DD system of case managers and providers during this review period. This included outreach by the Regional START teams and representation on the Regional START Advisory Councils. CSBs do not work with people with DD and planning to include this population has been a challenge for them. Responsibility for the DD waiver and oversight of the DD case management system transferred to DBHDS as of November 12, 2013, and will allow for increased coordination. With this transfer DBHDS reports that it will determine what training will be required for DD case managers in the future.
Conclusions: The Commonwealth has reported that it plans to train all DD case managers in the crisis system. It is the reviewer’s opinion that without such training being provided, the Commonwealth is not able to provide timely and accessible crisis support to individuals with DD, not ID.
The Parties and the Reviewer cannot know the implications of the Commonwealth’s decision not to provide case management services to individuals with DD, who are not on the waitlist, since there are no data kept as to how many individuals are impacted by this decision.
Recommendation: The Commonwealth should:
• develop a method to determine which case managers have been trained about START and ensure that all DD case managers are trained by June 30, 2013;
• track the number of individuals who are referred to START who do not have a case
 manager and determine whether this limits access to necessary services; and

• ensure that outreach strategies are implemented, and their effectiveness evaluated, so 
 individuals with DD and their families know about the DD Crisis Response System.

2. Issue for follow-up: the Commonwealth’s ability to provide crisis prevention and intervention services to children with either ID or DD. The review will determine the adequacy of the plan that DBHDS developed
The DBHDS has developed a preliminary plan for Children’s Crisis Supports as part of the CRS Plan. The CRS Plan outlines the mission, target population, services and requirements, a general implementation timeline and budget. It also outlines the focus of the services, the expectations and qualification of staff, staff training, and how support will be provided.
For Children’s Crisis Supports, the draft calls for three staff positions to be added to each of the regional START teams during the next six months. Future staff expansion is recommended after the first six months of operation, but regions would be expected to fund additional staff with revenue from Medicaid and other insurance. The budget is based on the $1.25 M funding that was approved. There is no analysis available that projected the funding that would be needed. The Commonwealth has reported plans to collect data for future funding requests.
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The CRS Plan includes a timeline for obtaining approval, establishing milestones, hiring staff, developing a communication plan, and completing home modifications. There is not an implementation plan, at this time, to initiate the Children’s Crisis Supports, which are projected to be fully operational in six months.
Conclusion: The Commonwealth is not in compliance with Sections 6.a.i-iii of the Agreement because it is not currently providing a statewide crisis system that serves youth with ID and DD. The CRS Plan has a positive mission; additional staff support will enhance the crisis teams’ abilities to address the needs of individuals with ID/DD. If successfully implemented, it can bring the Commonwealth into compliance. The Plan, however, needs greater detail, including the components the Reviewer recommended in his prior report. The new DBHDS Assistant Commissioner for Developmental Services has expertise in START services.
Recommendation: The Commonwealth should submit to the Reviewer, by March 31, 2013, its implementation plan for Children’s Crisis Response Services. It should include elements that address:
 outreach to families and to organizations that provide services to children;  education of ID and DD case managers;  the referral process;  the involvement of the CSBs;  the existing supports that are available after the crisis is stabilized;  a method for tracking children’s need for out of home placement; and  the placement outcome of children who are placed out of home.
3. Issue for follow-up: Recruitment and retention of START staff has been an issue identified in previous reviews and by the Reviewer. The Commonwealth is expected to report on the status of staffing in each of the five regional START Programs; analyze any problems in recruitment and retention; and share plans to address any ongoing staffing shortages.
Staffing information for each region indicated that the open respite crisis stabilization units are well staffed and that very few clinical positions are vacant. Of the forty START Coordinator positions, seven are vacant. This is 17.5 % of the positions statewide; however, only one region currently had three vacant positions. The CRS Plan addresses ongoing recruitment. The proposal contains recruitment strategies and a new position to complement the work of the Coordinators.
Conclusion: There are no issues of compliance related to staffing at this time.
Recommendation: The quarterly reports provided to the Reviewer should include any staff vacancies that occurred, the length of time vacant, and a determination whether any crisis services were not available or delivered timely due to staff vacancies.
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4. Issue for follow-up: the Commonwealth’s response to the training recommendations made by the Reviewer regarding: the training of CSB Emergency Services staff, including standardized information about START Services in Crisis Intervention Training (CIT); and determining the training that should be required of providers to assure coordination of follow-up for individuals who use START services.

Findings: Training of CSB Emergency Services staff (ES): Almost half of the CSBs have the full complement of ES trained; six CSBs have between 0-10% of the ES staff trained; an additional eight are between 30-50%; and nine are between 51-90%. Region III has been able to have almost all of the ES staff in each of its CSBs trained. Region III offered CSB ES staff on-line trainings to address the training needs of ES staff working evenings and on weekends.

Region III has developed a webinar for training. There are plans to share it with other regions for their use.

DBHDS did not offer training during the first quarter of Fiscal Year 2014, had not yet developed plans for additional formal training to CSB ES staff, but has reported to the Reviewer its intention to do so.

REGION
I II III IV V TOTAL

% OF CSB ES STAFF TRAINED
54% 75% 98% 62% 48% 67%

CSBs WITH 100% OF ES STAFF TRAINED
3 of 8 3 of 5 9 of 10 1of 8 1 of 9 17 of 40

Training of law enforcement: While some regional START programs have been involved sporadically in training with law enforcement, there has been no development of a standardized training module about the START program for CIT training statewide. The Commonwealth reported that it decided to concentrate its efforts this period on improving the operation of the START program itself.

Training of Providers: There have been numerous engagements between START and providers to offer informational sessions and training regarding START. This includes outreach and direct consultation by START Clinical Teams and training provided to residential and day providers by START Medical and Clinical Directors.

Conclusions: The Commonwealth is not in compliance with the Agreement’s provision (III.C.6.b.i.B.) requiring that CSB emergency personnel be trained on the new crisis response system. This training was required to be completed by June 30, 2012. The Reviewer recommended, in his June 2013 report, that this be accomplished within a year, since the original target date was not met. The DBHDS has another seven months to meet this recommendation. The Commonwealth has reported to the Reviewer that it plans to train all CSB ES staff.
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The Commonwealth committed to develop a statewide crisis service system. The Agreement expects that the Commonwealth will have a planned approach to reaching out to and working with law enforcement personnel to improve their interactions with individuals with ID/DD. DBHDS planned to include a module about the START program in the Crisis Intervention Training (CIT) offered to law enforcement personnel. This has not occurred, however, and an alternative approach has not yet been developed. Although some regions have offered information about START in some CIT trainings, this is not compliant with the initial plans DBHDS put forward to address III.C.6.b.ii.C.
Tailoring training to providers based on the needs and circumstances of the individuals they support, who use START, is a good use of limited resources. Over time, it will be important to determine if these providers have received sufficient training and consultation to help them to successfully support individuals who experience crises and to ensure them of continuity of care.
Recommendations: DBHDS should ensure training of all CSB Emergency Service workers by June 2014. The Department should decide if it needs to make this training a requirement of the performance contract it has with the CSBs, in order to guarantee that there is full participation.
Training that provides an orientation to the crisis services system for individuals with ID and DD should be developed and included in all regions’ Crisis Intervention Training for law enforcement personnel.
5. Issue for follow-up: the Commonwealth’s plan to reach out to law enforcement and criminal justice personnel to link individuals with ID and DD to crisis intervention services to prevent unnecessary arrests and incarceration.
Findings: Region III works specifically with law enforcement, based on the specific interactions of individuals they support with the police, to coordinate roles, train, and try to engage them in some aspects of future planning for the person. Region III also worked with CSBs and providers to encourage the use of police only in response to emergency situations that cannot otherwise be handled rather than as the first response to an individual who may be non-compliant with his/her plan.
The Virginia START Annual Report for Fiscal Year 2013 indicates referral sources for all individuals referred to START. No referrals were made by law enforcement.
The CRS Plan proposes changes in the START crisis intervention service delivery approach. DBHDS reports that it did not complete the part of the plan that includes strategies and activities to reach out to law enforcement in a planned, comprehensive and consistent way. When completed, DBHDS will develop and submit its plan to do outreach with law enforcement departments and their staff.
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Conclusion: The Agreement requires mobile crisis team members to work with law enforcement personnel to respond, if an individual with ID/DD comes into contact with law enforcement. While there are vignettes from some regions about work with law enforcement, such initiatives are not consistently underway across the State. The DBHDS has not responded as yet to the Reviewer’s recommendation to develop an outreach plan for the regional START/crisis services programs to work effectively with law enforcement. Therefore, the Commonwealth is not in compliance with Section III.C.6.a.ii.C of the Agreement.
Recommendation: Each region should report on its work with law enforcement. These reports should include CIT, and any other types of trainings and consultations held. These reports should be submitted after the second quarter of 2014 and semi- annually thereafter.
6. Issue for follow-up: The Commonwealth’s response to the recommendation to provide bridge funding to residential providers to maintain a person’s residential setting while they are being stabilized as a result of a crisis.
Findings: The Agreement requires the Commonwealth to provide crisis services that are directed at removing crises and preventing the removal of the individual from his or her current placement, whenever practicable. DBHDS reports that it does not have, and does not plan to develop, a mechanism to provide bridge funding for residential providers to assist them in maintaining the individual’s placement during psychiatric hospitalization or an alternative out-of-home crisis stabilization placement.
Of the 517 referrals to START in 2013, 208 (40%) of the individuals referred lived in a group home. Of the total number of people referred and served by START, 159 people had been hospitalized at least once in the previous year. Data maintained do not show the type of residence at the time of referral. It is reasonable, however, to assume that, of the 25% of individuals referred who needed an out of home placement, many had been residents of group homes.
Conclusion: The Commonwealth does not plan to provide bridge funding to residential providers to insure continuity of care for the individual. Doing so is not, in and of itself, a requirement of the Agreement. Preventing the loss of one’s home placement, however, is a central theme of the Agreement’s crisis provisions. DBHDS is not able to provide information to the Reviewer about how frequently an individual who is placed out-of-home for crisis stabilization is then not able to return to his/her original home or residence.
Recommendations: The Commonwealth should report to the Reviewer, as of March 31, 2013, and quarterly thereafter, the number of individuals removed from their homes for an out-of-home placement during a crisis, the duration of out-of-home placements, and the number not able to return to his/her original home or residence.
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7. Issue for follow-up: The Commonwealth’s development of policies, procedures and protocols to guide the development and implementation of START services.
The Reviewer made several recommendations about the need for written guidance for aspects of the START program and the Department’s development of a crisis system that relies on community linkages and partnerships. These include the assignment of case managers for individuals with DD who are not on the waitlist for the DD waiver; the training expectations of CSB Emergency Service personnel; medical screenings prior to an admission to the START Respite Home; the role of the case manager in the service planning and discharge processes to assist the individual to gain access to needed services; coordinating crisis planning for individuals leaving the Training Centers; and implementing procedural changes resulting from a Corrective Action Plan (CAP) statewide.
Findings: No policies, procedures or protocols that address these areas have been developed during this review period.
The Commonwealth reported that it decided to concentrate its efforts this period on reviewing and improving the operation of the START programs. The Commonwealth’s efforts led to the draft CRS Plan. That plan proposes that some successful policies and protocols of Region III will be adopted statewide.
Conclusions: The lack of training for CSB Emergency Services personnel does not meet the Agreement requirements of III.C.6.b.i.B.
The lack of involvement of ID and DD case managers in service planning, in assisting individuals to gain access to needed services, and in the discharge of an individual referred to START is not in compliance with III.C.6.a.i-iii and III.C.5.b.i.iii.
Since the Commonwealth’s system for case management is decentralized through the CSBs and private agencies and is not under the direct authority of DBHDS, it is even more essential that the role of the case manager be specified. The case manager is critically important to effective communication between the person, family, existing providers, and the START program. It will be the case managers’ responsibility to ensure that all follow-ups occur, and that the individual is linked to appropriate community resources after the crisis has been stabilized or other major events have occurred, and to assemble team members, if changes are needed to the individual’s service plan. Guidance for case managers in both the ID and the DD systems should be developed and provided to them.
Recommendations: DBHDS should develop guidance for case managers that details its expectations for their involvement in planning, coordinating, and following up on crisis intervention and prevention services.
The Commonwealth should develop policies, procedures, and protocols that govern the important aspects of crisis services operation.
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8. Issue for follow-up: The Commonwealth’s ability to respond to individuals in their homes to de-escalate a crisis; the steps taken to respond to expand the mobile crisis teams’ capacity to respond to on-site crises and the response time to emergency calls.
The START Teams continue to respond directly to requests for crisis intervention for adults with ID or DD. During the first quarter of Fiscal Year 2014, 515 individuals received support. Many of the referrals were for people who need comprehensive assessment and planning, prevention strategies and community linkages.
The Agreement requires that the mobile teams respond to each crisis within two hours. During the fourth quarter of Fiscal Year 2013, the teams achieved an average response time of 1 hour and 45 minutes. Of those responses, however, 73% occurred within two hours while 27% took more than two hours for a mobile crisis worker to reach the person. Similarly, the report of the first quarter of Fiscal Year 2014 indicates that 78.6% of the responses occurred within two hours; while 21.4% took more than two hours or no response time was reported.
The draft Crisis Response System Plan (CRS), “My Life, My Community,” was developed by DBHDS in response to concerns about the lack of:
 timely crisis interventions, or immediate supports, for individuals not known to CSB Emergency Services (ES) or START;
• crisis interventions for individuals under eighteen with ID/DD; • clear collaboration with Emergency Services, and • information about the program available to law enforcement.
The purpose of the plan is to revise the current system to provide more immediate crisis interventions for people who are experiencing a crises due to behavioral and/or psychiatric issues and to support their families. In-home and community based supports will be designed to resolve the immediate crisis and allow the person to remain at home, if at all possible. The Crisis Support Unit that is the START respite home will continue to be available as a last resort and only for emergency respite. In the CRS plan, the DBHDS will provide prevention crisis services as a secondary approach rather than continuing it as the primary focus envisioned by the current START program’s vision and structure.
The expert’s full report (Appendix C) provides detailed descriptions of the key components of the draft CRS Plan, including emergency services, mobile crisis services, intensive in-home supports, and the crisis support units. The DBHDS reports that it will develop additional components to the Plan once it is discussed with the START directors. The expert’s report indicated that the draft plan does not yet include a detailed budget and funding sources, a communication plan to educate families, an outreach plan to school systems or community providers, a description of how coordination between CSB’s Emergency Services and the START crisis programs will occur, a description of the case managers’ responsibilities, or a plan to work with law enforcement. The draft timetable projects that full implementation will be achieved by August 31, 2014.
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Conclusions: The Commonwealth remains in compliance with Sections 6.b.i.A, 6.b.ii.A, 6.b.ii.B, and 6.b.ii.D. START Coordinators have been providing local and timely in-home crisis support as required under Section 6.b.ii.E.
The draft CRS Plan proposes to focus the START teams on more direct, hands-on, and immediate intervention. It will likely strengthen the teams’ success in addressing crises by adding staff that can provide direct interactions for up to seven days, complementing the support offered by the START Coordinators. The draft CRS Plan proposes improvements that should make the existing system more responsive by adding resources to provide more immediate assistance to stabilize crises. A determination of the adequacy of the draft CRS Plan, however, will be determined after it is fully developed and finalized.
The Commonwealth is not in compliance with Section 6.b.ii.G that requires a response time of two hours and the availability of two mobile crisis teams in each region. The Commonwealth’s decision to add staff and determine the best supervisory configuration in each region, rather than necessarily having two distinct teams, should be acceptable to meet this requirement as long as the response time requirement is met and sustained.
Recommendation: The Commonwealth should submit, by March 31, 2014, a comprehensive implementation plan for the completed CRS and for implementing crisis services for children with ID/DD. The plan should include the outcomes and performance measures the DBHDS plans to use, and the data that will be collected to determine if measures are being met and outcomes are being achieved. These data should include measures of family satisfaction with the timeliness and quality of supports; information on how many people were able to maintain their original home setting; and information on how the changes implemented by the CRS impact out of home placements or admissions to institutions.
9. Issue for follow-up: The availability of START crisis stabilization programs homes in each region and the utilization during the last quarter of FY13 and the first quarter of FY14.
Findings: The Agreement required the Commonwealth to open Crisis Stabilization homes in each region by July 2012. While none of the regions met this timeframe, Regions I (central), II (northern), and III (southwestern), opened their homes prior to or during calendar year 2013 and have provided emergency and planned respite since then. During the two most recent quarters, the utilization of all available bed days for emergency respite has remained near 50%; whereas utilization of the planned respite beds increased from 19% to 33%. Regions IV (greater Capital) and V (Tidewater) still did not have their crisis stabilization homes open during this review period. They both expected the homes to open, however, in November 2013. Both were able to refer individuals to the crisis respite programs in other regions.
The draft CRS Plan recommends that all crisis stabilization beds be used for emergency respite and that planned respite beds be eliminated. Yet in both Fiscal Year 2013 and the first quarter of Fiscal Year 2014, more individuals used the available beds for planned respite, although for fewer days. The CRS Plan did not explain how the elimination of the planned respite component would impact crisis prevention and proactive planning.
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Conclusions: The Commonwealth is not in compliance with Section III.C.6.b.iii.F that requires the establishment of one crisis stabilization program in each region by June 30, 2012. The Commonwealth should achieve compliance with this requirement by the end of this calendar year. To sustain compliance, however, Region IV must take meaningful steps and make substantial progress toward providing a permanent respite home.
Region IV invested funds and over eighteen months to purchase and begin renovations of a community-based respite home. Zoning complications, however, required the development of an alternative. Due to the needs of individuals with ID/DD who reside in the greater Capital district, the Reviewer agreed to the Commonwealth’s request that Region IV open a respite home at a temporary location, while the permanent community based respite home is developed.
The Agreement (III.C.6.b.iii.G) requires the development of an additional crisis stabilization program in each region, if determined necessary to meet the needs of the individuals with ID/DD. Since the utilization rates are substantially less than 100%, and there will soon be additional capacity in Regions IV and V, it is reasonable that the Commonwealth has determined that additional settings are not needed at this time. The utilization of the respite homes, and waitlists, should continue to be monitored.
The Commonwealth’s decision to end planned out-of-home respite jeopardizes the Commonwealth’s compliance with Section III.C.6.b.ii.B. That provision expects that the mobile crisis teams plan and identify strategies to prevent future crises. The availability of planned out-ofhome respite in a familiar setting with familiar and well trained staff is a prevention strategy that the teams have been able to offer. This service is not available through typical residential settings, especially for individuals with co-occurring or behavioral challenges. It is therapeutic in nature and is part of a comprehensive plan to address both the issues that led to the initial crisis as well as to avoid crises in the future, by providing a familiar and consistent therapeutic out-of-home support. As more states move to a family support model of service delivery that relies on the family to maintain their family member at home, therapeutic and familiar respite services in a familiar building and with knowledgeable and familiar staff is an important support to avoid potential crises and to avert the need for out-of-home placement.
It appears that the availability of START services can be more widely shared with both ID and DD consumers and their families. Outreach to individuals and their families has been primarily through CSB ID case managers. It is unclear how the availability has been made known to individuals with DD and their families. If there is more comprehensive outreach and dissemination of information about crisis services directly to individuals and their families, there may be an increase in referrals.
Recommendation: The DBHDS should monitor implementation of the completed CRS Plan. Monitoring should include an evaluation of the impact of program modifications changes that are implemented on the prevention of future crises. It should determine if the elimination of current strategies, such as the planned respite component in the crisis stabilization settings, has reduced the ability to proactively plan and avoid potential crises. The evaluation should include “user” input from families whose members have used the program and case managers whose consumers have used planned respite.
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H. Integrated Day Activities and Supported Employment

The Commonwealth shall…to the greatest extent practicable…provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment Section III.C.7.a.

…establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy. The Employment First policy shall, at a minimum, be based on the following principles:

(1) individual supported employment in integrated work settings is the first and priority service option for individuals with intellectual or developmental disabilities receiving day program or employment services from or funded by the Commonwealth;

(2) the goal of employment services is to support individuals in integrated work settings where they are paid minimum or competitive wages; and

(3) employment services and goals must be developed and discussed at least annually through a personcentered planning process and included in ISPs. The Commonwealth shall have at least one employment service coordinator to monitor implementation of Employment First practices for individuals in the target population.

i. Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities. The plan will be under the direct supervision of a dedicated employment service coordinator for the Commonwealth and shall:

A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and

1. Establish, for individuals receiving services through the HCBS waivers:

2. Annual baseline information regarding:

a.

The number of individuals who are receiving supported employment;

3. Targets to meaningfully increase;

a. The number of individuals who enroll in supported employment each year; and

b. The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.

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Previously, the Independent Reviewer reported that the Commonwealth had complied with a number of the Agreement’s Integrated Day Activities and Supported Employment provisions. The Commonwealth had complied with Section III.C.7b. by the development and approval of a statewide Employment First policy. This policy was included as a specific requirement in its performance contracts with the CSBs. This contract term required CSBs, as of July 1, 2013, to offer supported employment in integrated work settings as the first and priority service option for individuals with intellectual or developmental disabilities, who are receiving day program or employment services from or funded by the Commonwealth.
The Commonwealth had also developed and submitted a Strategic Plan for Employment First. However, that plan, as written, did not comply with Section III.C.7b. It lacked the requisite elements of an implementation plan and did not include a section to increase integrated day activities.
Findings: The Commonwealth took several steps during the third review period. It met with national experts, worked with the Commonwealth’s SELN (Supported Employment Leadership Network Advisory Group) and developed an updated draft plan, “Virginia’s Plan to Increase Employment Opportunities for Individuals with Intellectual Disabilities (the Employment First Plan.”. This plan was scheduled to be reviewed soon for final revisions and approval by the Commonwealth’s SELN.
The draft Employment First Plan includes six goals. These goals involve formalizing an interagency workgroup, providing education, creating new sources of information, increasing awareness, and ensuring that the restructure of the HCBS waivers and rates create incentives to provide employment services.
The percentage of individuals with ID or DD who received supported employment waiver services during this review period has not changed significantly. A precise determination could not be made. DBHDS reported that eighty-one individuals were newly enrolled in individual supported employment. The number of people who have discontinued the service during that period, however, is not yet available, and, therefore, the net increase in the number of individuals currently in these programs could not be determined. The Reviewer previously reported that the Commonwealth had established a goal of newly enrolling in individual supported employment twenty-seven more individuals than in the previous year, 162 compared to 135. For two primary reasons, the Reviewer opined in his previous report that this goal was too modest. The first reason is that the overall number of individuals receiving waiver services had increased significantly, by an additional 653 individuals in a year. Second, the percent of individuals receiving supported employment in the Commonwealth was less than half the national average (8% compared with 20%). By the end of Fiscal Year15, the number of individuals with waiver services will increase to more than 10,700. To reach an overall enrollment in supported employment of 20%, DBHDS would need a multi-year plan to increase from fewer than 900 to 2,140 individuals. The Commonwealth reported that the SELN Advisory Group has discussed increasing the target by an additional 20% the second year and by 50% the third year.
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The Individual Reviews studied the services of individuals who moved from the Training Centers during the third and fourth quarters of 2013. These individuals moved before DBHDS required the application of the Employment First policy. The Individual Review study found a baseline of zero percent compliance with Section III.C.7b. (i.e., the application of the Employment First Policy). Employment goals were not developed or discussed with any of these individuals or their Authorized Representatives. Two of the twenty-eight individuals had worked and earned money while residing in the Training Center. The discharge records of three other individuals indicated an interest in working and earning money. One individual had worked at the Training Center and purchased many personal items with his earnings. (These grooming supplies, movie videos and records were displayed prominently in his bedroom on the day of the site visit. ) Although the discharge record indicated that work and earning money were important to him, the residential provider decided, on her own, that the individual’s real interest was in socializing. Therefore, he was referred to and now attends a congregate day support facility, owned by the residential provider. He was not offered supported employment and his typical day does not involve integrated activities.
The Authorized Representative of one man who worked at the Training Center knew that he had enjoyed his job there. However, the decision was made for him to move because the family had chosen an available group home. They did not want him to lose the residential option, although they were informed that a supported employment placement was not available.
The Employment Services Coordinator provided eight trainings during the review period to a total of more than two hundred representatives of provider and case management agencies, CSBs, state offices and advocacy organizations.
Despite the initiatives described above, the Commonwealth has not developed a plan to increase integrated day activities for members of the target population.
Conclusions: The Commonwealth is in compliance with Section III.C.7.b. by maintaining its membership in the SELN; for establishing a statewide Employment First policy and including it as a requirement in its contract with the CSBs; and for designating an employment service coordinator to monitor implementation of this policy. It is also in compliance with Section III.C.7.b.i.A. because statewide training on the Employment First policy and its related strategies was conducted during this review period.
The Commonwealth is not in compliance with Section III.C.7.b.i. It has not developed an implementation plan to increase integrated day activities for individuals in the target population. The Agreement required this plan more than a year ago. The Reviewer reported, in his second Report to the Court, that “the Commonwealth has not been engaged with any formal planning to develop an implementation plan to create a robust service delivery system that meets the Agreement’s requirement for integrated day activities.” The Commonwealth had reached out to various potential resources during this review period and found little guidance and information about integrated day activity program models. As a result, it did not engage in formal planning during the current review period.
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The strategies of the Employment First Plan, if successfully implemented, will make it easier and more financially viable for providers to increase the number of individuals who receive supported employment in integrated work settings. At this time, however, it is not possible to determine whether the potentially improved conditions will be sufficient to counterbalance the forces that currently provide options which are primarily limited to large congregate non-work day facilities.
Finally, a determination of compliance is deferred for the Agreement’s provisions (III.C.7.b.i.B.2.a. and b.) to establish targets to meaningfully increase the number of individuals who enroll in supported employment and remain employed in integrated work settings for at least twelve months. The Commonwealth has established targets. The small increases may be reasonable for the first year of implementing the Employment First policy. The Commonwealth plans to reset these targets on or before March 31, 2014. A determination of compliance will be made in the Reviewer’s next report to the court based on the reviews of these targets by the Regional Quality Councils, their consultation with those providers and the SELN regarding the need to take additional measures to further enhance these services, and whether a meaningful increase is established.
Recommendation:
The Commonwealth should develop an implementation plan to increase integrated day activities for members of the target population. This plan should be completed by March 31, 2014, and include strategies, goals, action plans, interim milestones, resources required, responsibilities and a timeline for its statewide implementation. .
I. Community Living Options
The Commonwealth shall: facilitate individuals receiving waiver services under this agreement to live in their own home, leased apartment, or family’s home when such a placement is their informed choice and the most integrated setting appropriate to their needs. provide information and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources; within 365 days develop a plan to increase access to independent living options within 365 days…establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance The plan will be developed under the direct supervision of a dedicated housing service coordinator for DBHDS and in coordination with…other Virginia agencies. Section III.D.
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The Commonwealth completed and submitted “Virginia’s Plan to Increase Independent Living Options” (Housing Plan) on March 6, 2013, to comply with the Agreement’s provision requiring that a Housing Plan be submitted within 365 days. The purpose of the Housing Plan was consistent with the provisions of the Agreement. The Reviewer’s opinion was that the plan provided a foundation to increase independent living options, but that it lacked the elements typical of an action plan and important to successful implementation.
Findings: During the third review period, the Commonwealth completed the development of a plan to implement a pilot rental assistance project, “Rental Choice VA.” The Commonwealth envisioned the pilot rental assistance project “to identify and assess the most effective way to provide affordable, accessible, and high quality rentals for individuals with developmental disabilities.”
The Commonwealth also completed several of the important preliminary steps to implementation. Agreements have been reached with two CSBs and performance contract modifications to implement the program have been written. A Commonwealth interagency Memorandum of Understanding was written and executed. The Commonwealth approved the design of the rental choice program. An operations manual has been written; forms and a program application have been completed. No distributions of the $800,000 rental assistance fund had occurred, however, as of November 1, 2013. Once the pilot rental assistance program begins, it is projected to serve18-20 individuals over three years.
The updated Housing Plan projects the development of additional accessible and affordable housing units. These new subsidized units will be available in the general housing market beginning in two years. These new units, if created, will not necessarily be for individuals with ID/DD receiving HCBS.
Conclusions: The rental assistance pilot project has established the basis to begin operations during the next reporting period. The Commonwealth is not currently in compliance with the Agreement, as it did not make distributions from the $800,000 rental assistance fund, as required by March 6, 2013 (Section III.D.4.). It does plan to begin distributing these funds during December 2013.
The Agreement requires that the Commonwealth “facilitate individuals receiving HCBS waivers …to live in their own home or apartment.” The Housing Plan plans for the development of new accessible and affordable units. There does not appear to be a connection between the development of these units and the individuals with ID/DD who are receiving waivers. The Reviewer has deferred a determination of compliance pending information concerning how the Commonwealth will assist individuals receiving new waivers to move into subsidized housing that is decoupled from services, as called for in the Housing Plan.
Recommendations: The Commonwealth should report to the Reviewer the number of individuals who have been placed in apartments in the rent subsidy program and their prior living arrangements (i.e. independent apartment, family home, sponsored home, group home, facility).
The Commonwealth’s report should inform the Reviewer, on a quarterly basis, the number of new waiver recipients who have been moved into living options in which housing and supports are decoupled, as called for in the Commonwealth’s Housing Plan.
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J. Family-to-Family and Peer Programs
The PSTs and the case managers shall coordinate with the specific type of community providers identified in the discharge plan…to provide individuals, their families…with opportunities to speak with…and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options.
The Commonwealth shall develop family-to-family and peer programs to facilitate these opportunities.” Section IV.9.b.
The Commonwealth had previously created a Family Resource Consultant (FRC) who had developed a Family Mentor Network. This program was intended to facilitate family members of Training Center residents to receive coaching on and support with the process of making the transition to the community.
Findings: During the third review period, the Training Center is providing a packet to each individual/Authorized Representative and CSB at each annual meeting and at the initial pre-move meeting. This packet gives links to websites that provide information regarding all residential community options. Additionally, at these meetings, an offer is given to refer the individual/Authorized Representative to the Family Resource Consultant as well as an offer to link the family with 1) a family mentor, 2) a peer mentor, 3) a family who has a loved one, with similar needs, being supported in the community. The offer and response are documented in the DP/DR.
The Commonwealth, in collaboration with a statewide advocacy organization, has received a grant to fund the establishment of a peer-to-peer program. A peer-mentor training curriculum is under development with community partners. The goal is to train fifteen mentors and to match them with two individuals each who will be moving from Training Centers. The project will be completed by December 2014.
The Individual Review study found that only four (14.3%) of twenty-eight families had conversations and meetings with individuals currently living in the community and their families. The individual reviews occurred when the Family-to-Family program was in its first months of operation.
Conclusion: During the third review period, the Commonwealth had offered to link individuals and families with individuals living in the community and their families. The Individual Review study found that fewer than one in six individuals or their family members had such conversations.
The Commonwealth is making a good faith effort to develop programs that provide peer-to-peer and family-to-family programs.
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A peer-to-peer program is not yet in place to facilitate conversations and meetings with individuals living in the community. The families of the individuals studied who moved from the Training Centers had been offered opportunities to have conversations with families whose loved ones lived in the community. For the individuals whose services were studied, however, few such conversations occurred. More efforts are needed to facilitate these conversations and meetings.
K. Quality and Risk Management System
To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals’ needs, and help individuals achieve positive outcomes, including avoidance of harm, stable community living, and increased integration, independence, and self-determination in all life domains…and to ensure that appropriate services are available and accessible for individuals in the target population, the Commonwealth shall develop and implement a quality and risk management system…” (Section V)
The Independent Reviewer retained an independent consultant with expertise in quality systems to complete a baseline evaluation of the Commonwealth’s compliance regarding the Quality and Risk Management provisions of the Agreement. Because many compliance efforts were in the planning and development phases, and after consultation with the Parties, the focus of the review was determined to be:
 areas in which some development had occurred; and  areas which represent the essential building blocks for the infrastructure of a well functioning
Quality and Risk Management system.
These areas include:
 risk triggers and thresholds;  a web-based incident reporting system and reporting protocol(s);  investigation of allegations of critical incidents;  data to assess and improve quality;  providers’ quality improvement programs; and  Quality Service Reviews.
This review included a number of draft documents that still were in the process of being modified. Also, the review did not include providers, individuals and their families. Their input will be sought during future reviews.
The full Report, Quality and Risk Management (Appendix D), includes descriptions of the methodology utilized for the review, the individuals interviewed, the documents reviewed, and how aspects of the Quality and Risk Management System will function. It also includes a list of the aspects of Quality and Risk Management that will require separate review and/or review by expert(s) with clinical knowledge.
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The Commonwealth had made progress with regard to a number of the Agreement requirements for a Quality and Risk Management system. Clearly, there was a strong commitment to and excitement about the numerous initiatives underway to strengthen the Commonwealth’s quality improvement processes for individuals covered by the Agreement. The expert agreed with the reports of those interviewed that more work was needed.
Risk Triggers and Thresholds
The Commonwealth shall require that all Training Centers, CSBs [Community Services Boards], and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risk of harm. Harm includes any physical injury, whether caused by abuse, neglect, or accidental causes. (Section V.C.1.)
The goal of the expert’s evaluation was to review risk triggers and thresholds that had been developed and to provide initial feedback. Objectives of the review were to determine what actions the Commonwealth had taken, or planned to take, to require providers to implement the risk management system and how it planned to make sure providers were implementing the system.
Adequately addressing events that cause harm or indicate the risks of harm is the purpose of defining and using uniform risk triggers and thresholds. A “risk trigger” is one, that when reached, would require the provider to address the risks for each individual involved. A “threshold” is one that, when reached, would require the provider to address the risks for the individuals and to determine whether more systemic actions are needed. For “risk triggers,” the provider would document them, but not report externally the actions taken. For “thresholds,” information about actions taken would be provided to the Regional Quality Councils (RQC) and to the DBHDS Quality Improvement Committee (QIC). For thresholds, the RCQs and the QIC would then take action as appropriate. They would either work with the provider to address issues specific to that provider or take more systemic actions. Such actions could involve issuing Safety Alerts, new protocols or service guidelines, or modifying departmental instructions.
Findings: At the time of the review, the draft version (8/8/13) of risk triggers and thresholds had evolved, an indication that a significant amount of work had occurred.
The draft document included some valuable risk triggers and thresholds. An overarching concern, however, resulted in the lists not being complete. Two categories of triggers and thresholds were included: “required” and “recommended.” Collection and reporting of those “recommended” triggers were to occur only at the discretion of providers and would not be monitored by the Office of Licensing. The “recommended” list includes significant indicators of potential for harm. For example, “Any individual with two (2) or more episodes of aspiration pneumonia within a quarter that require medical attention…” or “Two (2) or more choking events… by one or more individuals in a program or service area, within a quarter, where emergency measures such as the Heimlich maneuver were undertaken, but treatment by a medical professional was not provided.” The Project Team had separated the “recommended” list of risk indicators from the “required” list. The
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Commonwealth reported that this separation allows the system to begin with what is or can be reported under the existing regulations and contract requirements.
The draft risk triggers were not necessarily sensitive enough for individuals with high risk in these areas. For example, one incidence of aspiration pneumonia is significant. It should result in immediate review to prevent the next hospitalization and/or death.
The draft risk triggers and thresholds included some items as a result of mortality or literature reviews (i.e. aspiration pneumonia and constipation/bowel obstruction). However, other important indicators of risk of harm for individuals with ID/DD were not included, such as peer-to-peer aggression, serious injuries other than fractures/dislocations, systemic infections [e.g., sepsis, Methicillin-resistant Staphylococcus aureus (MRSA), etc.], pica behavior, and psychiatric hospitalizations.
The definition of many risk triggers and thresholds was dependent both on harm actually occurring and medical attention being required. Certain precursors that reflect dangerous conditions or circumstances were not included, if the result had only been minor or with no injuries. Examples of precursors that were not included are unauthorized departures that expose an individual without safety awareness to danger (i.e. traffic) or, in an individual with dysphasia, choking, while eating, that requires physical intervention to resolve (i.e. finger sweep or Heimlich Maneuver). The goal of a risk trigger and threshold system must be to identify events that increase the risk of actual harm, so that steps are taken to attempt to prevent that harm. The Agreement requires the system to address “risk of harm” as well as actual harm.
Conclusion: The Commonwealth has made progress in developing risk triggers and thresholds, but significant challenges remain to develop and implement a complete list. Without an adequate list of triggers and thresholds, the potential for harm to individuals with ID/DD will likely not be identified early enough to prevent actual harm. The Commonwealth has reported that it is committed to making the recommended list of indicators mandatory, but that doing so requires significant regulatory change. It is the Reviewer’s understanding that such regulatory change has historically taken multiple years to accomplish. Full implementation of the draft triggers and thresholds, as now written, will not comply with the requirement of the Agreement to address “harms and risks of harm.”
Recommendations: The required list of triggers and thresholds must include all significant harms and risks of harm. The Commonwealth should provide a plan and timeline, by March 31, 2014, to require the reporting of all harms and risks of harm.
The Commonwealth should continue to identify and/or develop relevant sources of data to allow expansion of the list of relevant risk triggers and thresholds; it should identify mechanisms to collect additional data to allow future expansion of the list and report these to the Reviewer by March 31, 2014.
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Web-based Incident Reporting System and Reporting Protocol
The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol. The protocol shall require that any staff of a Training Center, CSB, or community provider aware of any suspected or alleged incident of abuse or neglect as defined by Virginia Code § 37.2-100 in effect on the effective date of this Agreement, serious injury as defined by 12 VAC 35-11530 in effect on the effective date of this Agreement, or deaths directly report such information to the DBHDS Assistant Commissioner for Quality Improvement or his or her designee. Section V.C.2
The goal of the independent consultant’s review was to determine the status of the web-based incident reporting system, whether incident definitions were sufficient, what processes were in place to ensure provider staff reported directly, and whether necessary data were being entered into the system.
The full report (Appendix D) describes the status of the rollout of the web-based incident reporting system, known as CHRIS (Computerized Human Rights Information System); how the system functions; and how the data may be used.
The CHRIS system was rolled out over several months. On June 1, 2013, all Training Centers, CSBs, and licensed ID community providers were required to submit reports of allegations of abuse, neglect, and exploitation, serious injuries, deaths, and complaints of human rights violations. At the time of the review, the CHRIS system had the ability to begin to generate some reports.
The Commonwealth’s on-line training regarding the CHRIS system and its related manual were user-friendly, and users were offered technical assistance. A guidance document was developed and posted to address questions that emerged. For example, these included a list of medication errors to be reported, the types of injuries considered “serious,” and an explanation as to why the names of staff involved in allegations, serious injuries and deaths legally could be included in CHRIS.
The Commonwealth used multiple methods to determine whether full reporting had occurred. These included ongoing training regarding the requirements for reporting, a comparison of electronic reporting results to the prior “faxed” reporting system; a review by Licensing Specialists and Human Rights Advocates to ensure that all known incidents had been reported; and a requirement that all providers who are aware of an incident must report it (some duplication was preferred to unreported incidents). Determining whether full reporting is occurring is an ongoing challenge of any incident management system.
The Commonwealth reported that Training Centers, CSBs, and community providers are required by DBHDS Licensing and Human Rights Regulations to identify incidents or allegations that should have been reported, but were not, and to report them promptly if/when they are identified.
It was reported that mechanisms are not in place to ensure that reports were made for the individuals receiving DD waiver services from community providers other than those licensed by DBHDS.
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The Commonwealth’s project team recognizes that many reports filed regarding allegations and incidents are not complete and do not yet consistently meet quality standards.
Staff who enter data into the CHRIS system are not necessarily those with the most direct knowledge of the incident. The Agreement specifically requires that “staff…directly report” suspected or alleged incidents.
Conclusions: The methods used to determine whether full reporting is occurring, when fully implemented and monitored over time, comprise a reasonable system of checks and balances.
The limitation on what providers are required to report significantly impacts the types of events about which the Commonwealth is made aware and, thus, stymies a more proactive approach to incident management. The Agreement only requires the web-based system to include reports of abuse, neglect, exploitation, and serious injuries, as defined in the Commonwealth’s regulations. Some of the other categories of incidents that it would be reasonable to expect providers to report include: contact with law enforcement or emergency personnel; unexpected hospitalizations; peerto-peer aggression, regardless of the level of injury; unplanned evacuations; infections reportable to the Department of Public Health; missing persons; and theft of individuals’ funds or property.
There is a gap in the reporting system and reporting protocol for suspected or alleged incidents of abuse or neglect for individuals receiving DD Waiver funded services that are not licensed by DBHDS.
Recommendations: All allegations of abuse, neglect, and exploitation, serious injuries, and deaths should be reported, including for individuals in DD Waiver funded services.
The Commonwealth should work with Training Centers, CSBs, and provider agencies to develop mechanisms to ensure that information entered into CHRIS reflects the information that the staff who became aware of allegations of abuse or neglect, serious injuries, or deaths “directly reported.”
Investigation of Allegations and Critical Incidents
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services (“DBHDS Human Rights Regulations” (12 VAC 35-115-50(D)(3)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root analysis, and developing and monitoring corrective actions.
Sections V.C.3-4.
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The goal of the expert’s review related to investigations of allegations and critical incidents was to provide 1) an initial assessment of the draft uniform investigations training and root cause analysis training and 2) to determine expectations as to how compliance with this provision would modify current processes for investigations at the State and the provider levels.
Findings:
Progress had been made in developing standardized training that will be offered to community providers. Drafts have been completed of trainings entitled “DBHDS Investigation Process,” and “Root Cause Analysis: A Brief Overview of the Analysis Process.”
The draft trainings covered a number of important components of investigations, including relevant details of the investigation process. They were well organized and provided electronic links to additional resources for trainees. The Draft Root Cause Analysis training presented the process in an easy-to-understand and thorough manner.
Although the DBHDS Investigation Process training module was not yet completely developed, it was unclear whether it would sufficiently address the need for trainees to practice some of the more complex skills necessary in conducting investigations, such as conducting unbiased interviews, dealing with difficult witnesses, etc. The training was not currently competency-based, but the members of the Project Team indicated their intent to develop a competency-based component.
The trainings were in draft format. The expert report includes several observations and suggestions for improving the draft training.
Regulations require that community providers have “trained investigators,” although no standards for training or the investigation process existed in the community system. It was reported that the training offered and the quality of investigations conducted by the community providers varied from provider to provider. The draft plan was to “offer as an option” the standardized trainings on the investigation process and root cause analysis. The Commonwealth reported that its current regulations do not specifically require that provider investigators or investigations comply with quality standards, that the best it could do was to offer the trainings. The Agreement only requires that these trainings be offered.
There is not a process in place to ensure that community provider who are considering hiring a staff know if that individual has been confirmed to have committed abuse, neglect, and exploitation while working for another community provider. There is a system in the Commonwealth that involves a central registry for people who have abused or neglected a child, but no equivalent system available for vulnerable adults. In fact, staff reported that when Adult Protective Services or DBHDS substantiated abuse, neglect, and exploitation, this information could not be shared with other providers.
Conclusions: Given that conducting thorough investigations requires a specific set of skills, it will be important to build a competency-based component into this basic training for “trained investigators” to demonstrate their competency.
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The Agreement requires the Commonwealth to require all community providers to develop and implement a quality improvement program that is sufficient to identify and address significant service issues and is consistent with the requirement of 12 VAC 35-105-620. Currently, the Commonwealth does not have standards for how it determines if the community providers’ trained investigator, investigation processes, and investigation reports are sufficient.
The lack of a system to inform community providers as to job applicants who have been confirmed to have committed abuse, neglect, and/or exploitation exposes individuals with ID/DD to risks of harm and is not consistent with ensuring that all services under the Agreement include avoidance of harm.
Recommendations: The Commonwealth should develop standards as to how its oversight and monitoring systems will determine what constitutes a trained investigator, a sufficient investigations process, and an acceptable investigation report.
A system should be developed and implemented to ensure that community providers know whether applicants to work with individuals with ID/DD have been confirmed to have committed abuse, neglect, and/or exploitation.
Data to Assess and Improve Quality
1. The Commonwealth’s HCBS [Home and Community-Based Services] waivers shall operate in accordance with the Commonwealth’s CMS [Centers for Medicare and Medicaid Services]-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers; identification, response and prevention of occurrences of abuse, neglect and exploitation; administrative oversight of all waiver functions including contracting; and financial accountability. Review of data shall occur at the local and state levels by the CBSs and DBHDS/DMAS, respectively…
2. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services… and the quality of services offered…
a. identify trends, patterns, strengths, and problems at the individual, service-delivery, and systemic levels, including, but not limited to, quality of services, service gaps,, accessibility of services, serving individuals with complex needs, and the discharge and transition planning process;
3. The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area:
a. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion or restraints, deaths, effectiveness of corrective actions, licensing violations);
b. Physical, mental, and behavioral health and well being (e.g., access to medial care (including
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preventative care), timeliness and adequacy of interventions (particularly in response to changes in status)); c. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or hospitals, admissions to Training Centers or other congregate settings, contact with criminal justice system); d. Stability (e.g., maintenance of chosen living arrangement, change in providers, work/other day program stability); e. Choice and self-determination (e.g., service plans developed through person-centered planning process, choice of services and providers, individualized goals, self-direction of services); f. Community inclusion (e.g., community activities, integrated work opportunities, integrated living options, educational opportunities, relationships with non-paid individuals); g. Access to services (e.g., waitlists, outreach efforts, identified barriers, service gaps and delays, adaptive equipment, transportation, availability of services geographically, cultural and linguistic competency); and h. Provider capacity (e.g., caseloads, training, staff turnover, provider competency)…
5. The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth. a. The Councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders. b. Each Council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
6. At least annually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in this Agreement) and quality of supports and services in the community and gaps in services, and shall make recommendations for improvements. Section V.D.
The goal of the expert’s review was to report on:
 the data that will be collected for the eight domains (Section V.D.3, a. through h.) and to determine the current status to provide a baseline from which to conduct future reviews;
 the connection between these efforts and the Commonwealth’s CMS-approved waiver Quality Improvement Plan (Section V.D.1);
 the status of the Regional Quality Review Councils (Section V.D.5); and  the status of the Commonwealth’s ability to publicly report on the availability of services,
including the number of people served in each type of service (Section V.D.6).
It is important to note that the independent consultant’s review was based on draft documents. The Project Team members agreed that more work was needed. The expert’s full report provides descriptions of the challenges and comments for the Commonwealth’s consideration as it moves to finalize the list of data to assess and improve quality. It also lists examples of what data are included and what important indicators are not included.
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The draft “DBHDS DOJ Settlement Agreement Domains” (7/31/13) listed each of the eight domains, one or more measures of each, and the corresponding sources of data. The list was a good start, but without a definition section it was, therefore, difficult to determine what the Commonwealth intended to measure and whether the items on the list adequately captured what should be measured. Further definition of the measures and expansion of the measures are needed.
The “Data Dashboard” also summarized measures being collected across the DBHDS system. The data definition page provided a helpful presentation of the data. It showed the measure, the definition, the entity responsible for reporting the data, the data source, and the frequency of review. Breakdowns of the data were then provided for each CSB to show their specific scores in comparison with the target.
Project Team members reported that there are significant challenges to developing a data-based system to measure quality across the Commonwealth and that more work is needed to expand current efforts.
Some of the indicators in the draft relied on individuals’ ISPs as the basis for measuring whether or not individuals were receiving required supports. DBHDS staff reported, and the Individual Review study found, that the quality of ISPs varies greatly. The Individual Review study found that most ISPs do not include baselines of existing skills or measurable goals to achieve.
Limited data were available for individuals enrolled in the DMAS DD Waiver; however, some efforts were underway to educate the DD Case Managers about the requirements of the Agreement and the Commonwealth’s efforts to collect needed data.
The five Regional Quality Councils had each met for the first time during this review period. All Councils include providers and CSBs; some include individuals and family members and members with quality improvement experience.
The Mortality Review Committee had analyzed data from neglect allegations and from serious injury reports. As a result, Safety Alerts had been issued to address choking, aspiration, and constipation; psychotropic medication; and when to access medical care. This was an example of good use of data that had resulted in efforts to improve supports provided to individuals.
The Quality Improvement (QI) Committee minutes reflect the discussion of the data, and, in some instances, some actions to address trends were beginning to be identified and implemented.
The Commonwealth is developing data to assess and improve quality independent of the CMS approved Quality Improvement Plan. An overall Quality Improvement Plan is reported to be under development.
The Commonwealth has not reported publicly on an annual basis, as required by the Agreement, on the availability and quality of supports and services, and, therefore, has not made recommendations for improvements. Several steps have been taken, however, to determine the needs of individuals, the types of services available through service providers, and gaps in available services.
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Conclusion The current list of data did not represent a sufficient list of data to assess and improve quality or to reliably comply with the provisions of Section V.D.2.a. The data selected for the eight domains was limited to what was already collected from providers, by Licensing, and by case managers. Other sources of reliable and valid data were not available. For individuals served through the DD waiver, few formal data sources are in place.
When ISPs do not adequately describe individuals’ skills, then a measurement based on whether the ISP outcomes were being met would not produce valid data.
Recommendations: The Commonwealth should continue to identify and/or develop relevant sources of data, and expand the measures to assess and improve quality.
The Commonwealth should report publicly, by March 31, 2014, on the availability and quality of services and supports in the community and any gaps in services; it should make recommendations for improvements.
Quality Improvement Programs
1. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program, including root cause analyses, that is sufficient to identify and address significant service issues and is consistent with the requirements of the DBHDS Licensing Regulations at 12 VAC 35-105-620 in effect on the effective date of this Agreement and the provisions of this Agreement.
2. Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3 above. The measures will be monitored and reviewed by the DBHDS quality improvement committee, with input from the Regional Quality Councils, described in Section V.D.5 above. The DBHDS quality improvement committee will assess the validity of each measure at least annually and update measures accordingly.
(Section V.E.)
The goal of the expert’s review was to obtain the status of efforts to identify measures that CSBs and community providers are to report, including any review of data by the Commonwealth’s Quality Improvement Committee or the Regional Quality Councils. The goal also was to determine the efforts implemented to notify providers of their responsibilities; to determine what actions had been taken by providers to implement these requirements; and to assess the Commonwealth’s plans to determine providers’ compliance with the requirements.
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Findings: The Commonwealth had made some progress, but still was in the process of finalizing the data it plans to collect from the domains listed in Section V.D.3. Some of the data that providers will be responsible to collect had been identified, but the Commonwealth was still in the process of finalizing drafts of the data it intended to collect. Project Team members reported, and the consultant agreed, that additional data would be necessary to address the requirements of the Agreement. The independent consultant’s report (Appendix D, pages 21-30) provides a full discussion of the current draft status of the development of the measures, the challenges the Project Team reported to develop a data-based system to improve quality, the Project Teams efforts to expand data collection, and comments for consideration as the Commonwealth moves forward.
Case managers will be one source of the data for the domains. They are also in the midst of adjusting practices to meet the standards of the DBHDS Operational Guidelines. DBHDS leadership staff have met with each of the forty CSBs and provided an overview of some changes occurring as a result of the implementation of the Agreement, including the role of case managers. From each CSB, information was collected about the specific changes they were making and challenges they were facing. As a result, some changes to the case management requirement were made.
Conclusions: These meetings between DBHDS leadership and each CSB illustrate a proactive effort to share information, identify challenges, and constructively work to overcome concerns.
The Commonwealth was at the beginning stages of developing and implementing a communication plan to convey to providers their roles and responsibilities for maintaining necessary quality improvement processes and to share data with the Commonwealth. Some of the mechanisms for reviewing provider data were just being developed, such as the Regional Quality Councils.
Quality Service Reviews
1. The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice. QSRs shall collect information through: a. Face-to Face interviews of the individual, relevant professional staff, and other people involved in the individual’s life; and b. Assessment, informed by face-to-face interviews, of treatment records, incident/injury data, keyindicator performance data, compliance with the service requirements of this Agreement, and the contractual compliance of community services boards and/or community providers.
2. QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on the individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals).
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Information from the QSRs shall be used to improve practice and the quality of services on the provider, CSB, and system wide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.
4. The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
(Section V.I with focus on V.I.1.a)
The goal of the expert’s review was to review the Commonwealth’s plans for conducting Quality Service Reviews and to report on the status of planning efforts for the overall system. This included reviewing the adequacy of the Commonwealth’s process for selecting a statistically significant sample and the Virginia-specific questions for individuals, families, and providers.
Findings: The Commonwealth has decided to use the National Core Indicators (NCI) Survey Process to conduct the Quality Service Reviews required by the Agreement.
A vendor had been selected to implement the survey process. The Commonwealth executed a contract to conduct NCI surveys of over 1000 individuals in Fiscal Year 2014 to gain insight and knowledge about the Commonwealth’s progress in improving its services for individuals with ID/DD. A sampling methodology had been developed and used to select the sample of individuals for the Individual Survey. A Guardian/Family survey also was being conducted; it is to be mailed to all guardians/families in the Spring of 2014. Two provider surveys that would be completed in the Spring of 2014 were in draft format. It was anticipated that data from these surveys will be used to address some of the domains for the “data to assess and improve quality” that will be reported to Regional Quality Councils and the DBHDS Quality Improvement Committee.
Training of interviewers was planned to begin in October 2013 with face-to-face interviews scheduled between November 2013 and May 2014. Training was also being provided to groups needed to assist in gathering background information, which will be important to allow for more extensive analysis of the data.
The NCI process collected information from face to face interviews with individuals. The process, however, did not include face-to-face interviews with either relevant professional staff or other people involved in the individual’s life, as required by the Agreement. The NCI process assessed individuals’ and their families’ satisfaction with their supports and services. It did not include, however, a broader review to assess the adequacy of the person-centered planning process and the provision of supports and services outlined in the plans. Determinations regarding “most integrated setting” take into consideration the individual’s and guardian’s wishes, but also require input through professional assessments. Often individuals and their guardians/families are not aware of all of the options available and, therefore, review of the individuals’ assessments and ISPs would be necessary to determine whether or not they were provided with information with which to make an informed choice.
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The NCI Adult Consumer Survey for 2013-2014 was identified as a satisfaction survey only to be completed by the individual. It collected important and helpful information. It did not include, however, collecting information as required by this Agreement, e.g., assessment of treatment records and key indicator performance data, compliance with the service requirements of this Agreement, and a comprehensive record review to assess the quality of supports and services provided.
The sample selected for 2013-2014 totaled 1599 individuals and an additional 204 individuals who had been discharged for six months or more from the Training Centers under the Agreement.
Conclusion: Although the NCI process will help the Commonwealth to collect valuable and helpful data, its implementation will not meet the requirements of the Agreement in relation to the Quality Service Reviews. As described above, the NCI process does not the Quality Service Review elements required by the Agreement. For example, it does not include face-to-face interviews with either relevant professional staff or other people involved in the individual’s life. The NCI process also does not include a review, beyond the individuals’ and families’ satisfaction, to assess the adequacy of the person-centered planning process, and the provision of supports and services outlined in the plans.
Recommendation: The Commonwealth should review and develop an implementation plan, by March 31, 2014, to comply with the Agreement’s requirements for the Quality Service Reviews.
IV. CONCLUSION:
It is the Reviewer’s considered opinion that the Commonwealth has continued to make a good faith, coordinated, and concerted effort to meet the requirements of the Agreement during this third review period. As described in the Findings section of this report, overall, the Commonwealth’s effort has had mixed results.
There has been substantial progress in some areas. These include creating waivers in greater numbers that required buy the Agreement, by implementing a successful IFSP program, by facilitating the transfer of more than 300 individuals from Training Centers to the Community, by implementing crisis services in Regions. In other areas, little progress has yet occurred.
The areas where the Commonwealth faces it greatest challenges are in creating program options that provide integrated settings and regular integrated daily activities. The Reviewer’s expert consultants found that the Individual Support Plans (ISPs) and daily routines did not actively support skill development to increase independence or participation in the community. The lack of progress on the provisions that relate to creating opportunities to participate in one’s community – integrated day activities and supported employment, more integrated living arrangements, and onsite prevention-oriented crisis intervention services – are cornerstones of an effective community based service system. The Commonwealth’s ability to make progress on these programs will be the cornerstones for system reforms that fulfill the goals of the Agreement to improve the lives of individuals with intellectual and developmental disabilities (ID/DD by achieving goals of community integration and self-determination.
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V. SUGGESTIONS
The Commonwealth should consider the suggestions below as well as those discussed in further
detail in the full report:
Case Management
 The DBHDS (Drumwright/Keenan) CSB-visit status matrix review might be repeated with CSBs hitting less than 90% on the two Data Dashboard measures in order to ensure that discrepancies are indeed in the CCS3 extract data.
Observation & Assessment:  The Project 9 Team should address, in the rollout of the Enhanced Case Management onsite report, the conversion steps to measures (“key indicators”) that may be reported in the aggregate. It should be clarified that it is required at 30 days visits and pilot tested for efficiency in administration.
Case Manager training:  If such a training does not already exist, then revise the appropriate module in the online case management training curriculum to address choice presentations by case managers, perhaps as an attachment for ID/DD case managers. The “Choice Protocol” provides substantive content for a curriculum modification.
 When describing the development of the ISP or monitoring it for effectiveness and satisfaction, providing a link to the actual document used for this purpose might provide a visual aid for the learner to be able to better connect with what goes in the document. If there are multiple documents based on populations, links might be added for each population.
 The curriculum learning objectives should be written in behavioral terms. Many are written using “understand,” “understanding” or “know,” none of which can be seen or measured. Consider replacing objectives containing these non-behavioral terms with behavioral terms such as identify, list, recognize, etc.
 In discussing the use of alternative modes of communication, consider the use of a “Behavior to English Dictionary” for individuals experiencing severe behavioral challenges. Use of the “Dictionary” captures what the people who know the person best think specific behaviors mean under specific conditions.
 Person First Language might be covered more thoroughly. The curriculum needs explanations of why Person First Language is important. Possible sources include these links: http://www.youtube.com/watch?v=Ob_rWNNGaJs http://www.youtube.com/watch?v=QQ0pKPxoyHs
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Quality and Risk Management
Risk Triggers:  Some terms in the draft list of risk triggers should be defined. For example, given the various types of restraint, it would help to clarify whether or not the term “restraint” encompasses all types of restraint.  It was not clear why hospital-acquired aspiration pneumonia would not be considered a risk trigger. Any aspiration event presents a risk of harm to the individual. Hospital-acquired aspiration pneumonia requires attention to ensure proper staffing was made to the individual while at the hospital and to ensure that the individual’s risk and plans to reduce risk were appropriately communicated to the hospital.  The indicators that referred to changes in percentages in rates of, for example, overall medication errors or fractures should be reviewed. If a provider’s base rates were already too high, these indicators would not capture the fact that a risk of harm already existed and might result in further risk of harm.  Some indicators were based on measures included in Individual Support Plans (ISPs). When ISPs are not adequate, then data from these indicators would be unreliable and difficult to interpret and use.
Root Cause Analysis Training:  This training should include more information related to developing corrective actions. It will help to provide some parameters related to such plans, including measurable action steps, identification of timeframes for completion, and persons responsible, as well as identification of the outcomes or specific changes against which success of the action plan will be measured.
DBHDS Investigations Process Training:  Given the specific skills required to conduct thorough investigations and write reports that include strong bases for the findings, the final training should include specific competencybased components. These should include, but not be limited to, competencies with regard to the development of an investigation plan, securing evidence, conducting interviews, interviewing individuals with intellectual disabilities, reconciliation of evidence, and investigation report writing.
Domains:
 It will be important moving forward to provide definitions of what will be measured and the methodology to collect the data, and to ensure data are collected the same way each time.
 For each of the indicators identified for the Agreement Domains, definitions and methodologies should be developed; in addition to identifying the data source, as appropriate, baselines or benchmarks should be identified. In addition, targets or goals should be set.
 At a minimum and as appropriate to the particular indicator, the methodology section should include the following:
1) how the data will be collected; 2) how often and when; 3) what the schedule is for assessing data reliability and validity, and who will be
responsible for this;
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4) what subpopulation or percentage of the population will be included in the sample); 
 5) the standards that will be applied to judge conformance with the measure; 
 6) who will be responsible for collecting and/or reporting the data; 
 7) clear formulas for calculating the indicator/measure, and 
 8) who will be responsible for analyzing the data.
  Further guidance should be provided to better define the types of serious illnesses the Commonwealth considers to fall under the category of serious injury.  The scope of what is measured for quality improvement efforts should be designed to include a proactive as well as a reactive approach. Currently, all “Safety and Freedom from Harm” and “Avoiding Crises” indicators appear to be negative outcomes or reactive. Consideration should be given to including proactive measures as further development of indicators occurs (e.g., the percentages of individuals for whom behavior supports are effective at reducing the number of target behaviors, increasing the use of replacement behaviors, or the length of time without target behaviors.)
Respectfully Submitted By:
Donald J. Fletcher Independent Reviewer
November15, 2013
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APPENDICES
A. Individual Reviews – Demographic Information B. Case Management Requirements C. Crisis Services Requirements D. Report on Quality and Risk Management

Page # 2
 4
 15
 40


Page 1 of 83

APPENDIX A
 INDIVIDUAL REVIEWS – DEMOGRAPHIC INFORMATION

April 7, 2013 – October 6, 2013

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INDIVIDUAL REVIEWS


Sample Demographic Information


October 2013

Sex

n

%

Male

16

57.1%

Female

12

42.9%

Region I II III IV V

n

%

1

3.6%

5

17.9%

1

3.6%

11

39.3%

10

35.7%

Age Ranges 21 to 30 31 to 40 41 to 50 51 to 60 61 to 70

n

%

1

3.6%

1

3.6%

5

17.9%

17

60.7%

4

14.3%

Levels of Mobility

n

Ambulatory without support

10

Ambulatory with support

5

Uses wheelchair

10

Confined to bed

1

Total assistance

2

% 35.7% 17.9% 35.7% 3.6% 7.1%

Authorized

n

%

Representative

Guardian

10

35.7%

Authorized Representative

18

64.3%

AR Relationship Parent Sibling
Other relative Other (e.g. friend)
Public guardian

n

%

14

50.0%

7

25.0%

2

7.1%

1

3.6%

4

14.3%

Highest Level of

n

Communication

Spoken language, fully articulates

without assistance

3

Limited spoken language, needs

some staff support

6

Gestures

14

Vocalizations

2

Facial Expressions

3

%
10.7%
21.4% 50.0% 7.1% 10.7%

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APPENDIX B
 Case Management Requirements

Page 4 of 83

Report to the Independent Reviewer United States vs. Commonwealth of Virginia
Case Management Requirements
By Ric Zaharia, Ph.D., FAAIDD

Vice-President
 Consortium on Innovative Practices

October 13, 2013
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Introduction
The Independent Reviewer for the US v Commonwealth of Virginia Settlement Agreement requested a review of the case management system requirements of the Agreement. The purpose of this evaluation is to determine a baseline assessment of compliance with those requirements. Most basic case management system components had been in place prior to the Agreement, the enhanced case management provisions of the agreement went into effect March of 2013, and all components are planned for implementation by March of 2014.
Many important aspects of case management are not part of this review. Consumer/family satisfaction with the case management they receive, effectiveness of case management processes during transitions/crises, case manager satisfaction with their initial and ongoing training, and other impacts are planned for evaluation in later cycles.
The author completed the DBHDS required training for all case managers through the Department’s online Knowledge Center during September 2013. This curriculum includes the topic areas Basics of Case Management, Services, Planning, Assessment, Building and Maintaining Relationships, Disabilities Defined, and Accountability. The interviews that were conducted and the materials reviewed that are referenced below were also completed during September.
This report is organized in a way that parallels the five major requirements around case management in the Settlement Agreement: Case Management Practice, Case Management Service, Face-to-face Case Management, Observation & Assessment, and Training. In each section the Methodology used is described, the findings from this evaluation are reported, and recommendations to achieve full compliance are made; suggestions are offered where an area might be improved. Again, this baseline assessment evaluates primarily the processes proposed by DBHDS to achieve compliance; assessment of outcomes and impacts is planned for later cycles.
Kathy Drumwright and Dee Keenan have been most helpful in supplying materials, facilitating access, and making connections to interviewees. Lee Price clarified a number of questions. The members of the Project 10 Training Curriculum Team and the four CSB directors who were interviewed were most gracious and open in our discussions of the case management system.
Based on the documentation reviewed and interviews completed at baseline, DBHDS and its agents express their commitment to case managers coordinating services and supports in a way that ultimately creates a “Focus on a Good Life”. They are correctly articulating the aspirational intent of the case management components of the Agreement.
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1) Case Management Practice
Settlement Requirement: III.C.5.a-d. 5. Case Management a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. b. For the purposes of this agreement, case management shall mean:
i. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs; ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.
Review Methodology: � Evaluated curriculum for ID/DD case manager training to assess completeness of
training; � Interviewed Dee Keenan and other members of Project Team 10 - Case Manager
Training (Shank, Rheinheimer, Norton, Hollowell, Pinero) to determine the status of implementation and changes that are being considered; � Interviewed four CSB directors from among five representing the five planning regions, as identified by Keenan; interview covered ID/DD case manager training, in order to verify congruence between field and Central Office perceptions of training.
Findings: See #5 below.
2) Case Management Service
Settlement Requirement: c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers. d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
Review Methodology: � Reviewed DBHDS Data Dashboard as updated to assess system progress; � Reviewed CCS3 (Community Consumer Submission 3, v.7.1) extract instructions to
ensure dashboard is appropriately measuring case management services and practices; � Interviewed Dee Keenan/Kathy Drumwright re CSB action plans regarding increasing
compliance for CSBs reporting less than 90% compliance to verify expectations are being implemented; � Interviewed four CSB directors from among five representing the five planning regions. � Reviewed DBHDS Choice Protocol: Offering and Resolving Issues Regarding Choice in Virginia’s Intellectual Disability and Day Support Home and Community Based Waivers (1/28/11). � Reviewed sample CSB Licensing review (#190-16-001, 6/28/13); � Reviewed DBHDS website ‘CSB Provider Search’.
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Findings The Data Dashboard appears to have viability as an accountability tool for the tracking of enhanced case management services (30 day visits) and alternating in-home case management visits. However, everyone interviewed acknowledged a critical shortcoming in that data entry does not allow sorting of regular vs. enhanced case management. Consequently, the dashboard does not accurately reflect CSB performance; some percentages displayed in the dashboard for case management may be inaccurate because some CSBs, who actually have 90-100% compliance with the 30 day visit requirement, may have their data skewed negatively because percentages may include those who receive 90 day visits, thereby lowering the percentage compliance. Edits are planned for the CCS3 extract that are expected to correct this problem by January.
The DBHDS “Choice Protocol” is a good example of shifting the system to a person-centered 
 system. However, distribution of the ‘Choice Protocol’ is optional and at the discretion of the
 case manager.

There is apparently no formalized mechanism for a consumer/family member to choose or
 change among available CSB case managers, who are providers of service. The “Choice
 Protocol” does not address choosing or changing a case manager, which is an emerging best
 practice nationally. (The Virginia DD waiver’s provision for choice among private case
 managers is one approach to this end.)

The DBHDS website ‘CSB Provider Search’ is another positive example of putting 
 consumers/family members in the ‘driver’s seat’ by giving them an electronic marketplace
 where they may objectively seek out the best matched provider. However, its use is required 
 only for Training Center placements.

Based on a review of one Licensing report and Corrective Action Plan, DBHDS appears to
 have a well-organized approach to identifying compliance problems with CSB case management
 performance. This CSB was cited for deficiencies in case management performance in the areas
 of: Monitoring individual health, Understanding provider ability to meet individual needs,
 Assessing individual needs for the ISP, Assisting individuals to locate/obtain needed services,
 Assuring coordination of services, Monitoring service delivery, Advocating for individuals
 changing needs, Human rights, Updating ISP, and missing documentation.

Recommendations to achieve full compliance:
 Unless the “Choice Protocol” is determined to be legally enforceable through the CSB contract,
 publish it as Departmental policy.

Towards the theme of choice, DBHDS should revise the “Choice Protocol” to establish a formal mechanism so that consumers/family members can select or can change a CSB case manager.
The “Choice Protocol” needs an enhanced distribution requirement, as well as a more ‘accessible’ format, to ensure that consumers, family members and others function as informed users of the system.
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Refine the website ‘CSB Provider search’ to allow consumers/family members to select directly the best suited provider; market to consumers/family members as a supplemental, optional tool to case manager discussions.

3) Face-to-face Case Management

Settlement Requirement:

V.F.1-6.

F. Case Management

1. For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the

individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s

needs.

2. [See below]

3. Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at

least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals who:

a. Receive services from providers having conditional or provisional licenses;

b. Have more intensive behavioral or medical needs as defined by the Supports Intensity Scale (“SIS”) category representing the highest

level of risk to individuals;

c. Have an interruption of service greater than 30 days;

d. Encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;

e. Have transitioned from a Training Center within the previous 12 months; or

f. Reside in congregate settings of 5 or more individuals.

4. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data

from the case managers on the number, type, and frequency of case

case manager contacts with the individual.

Review Methodology: � Evaluated the CCS3 extract to assure it appropriately measures visitation; � Reviewed ID/DD case manager visitation data dashboard to assess progress; � Reviewed Case Management Operational Guidelines (11/30/12) and accompanying
Frequently Asked Questions (10/30/12); � Interviewed Dee Keenan/Kathy Drumwright re CSB action plans regarding increasing
compliance for CSBs reporting less than 90% compliance to verify expectations are being implemented.

Findings The Case Management Operational Guideline presents the steps a case manager should follow in the event there is a problem, deficiency or discrepancy between the ISP and the ongoing provision of supports and services. The hierarchy the case manager should follow is logical and appropriate. However, missing from the hierarchy is an early step in the process wherein the case manager would discuss the problem, deficiency or discrepancy with CSB supervisors/managers or others in the DBHDS chain of command to achieve resolution. Although this may be assumed to occur, by its inclusion it ensures the CSB/DBHDS is responsible for resolving implementation difficulties.
The Data Dashboard does not reliably reflect CSB performance for the Settlement Agreement requirement of “a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual”; percentages for 30 day visits and alternating home visits as displayed in the dashboard for case management may be deflated. Edits are planned for the CCS3 extract that are expected to correct this problem in January.
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Recommendations to achieve full compliance: The Case Management Operational Guideline should be revised to add an early step in the process wherein the case manager would discuss the problem, deficiency or discrepancy for resolution with a supervisor or other manager at the CSB, as well as seek solutions up the DBHDS chain of command.
The Case Management Operational Guidelines require an exception report to be made to
 regional CRCs when 30 days visits are missed two consecutive times. These exception reports
 should be aggregated periodically at the CSB level and by DBHDS to identify trends. 

DBHDS should request that CSB’s hitting less than 90% on both Data Dashboard measures
 provide manual reports on 30 day visits until the CCS3 extract corrections can be made.

Suggestions for Departmental consideration:
 The Drumwright/Keenan CSB-visit status matrix review might be repeated with CSBs hitting
 less than 90% on the two Data Dashboard measures, in order to ensure that discrepancies are
 indeed in the CCS3 extract data.

4) Observation & Assessment
Settlement Requirement: 2. At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and document its resolution.
5. Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3 above.
Review Methodology: � Interviewed Dee Keenan/Kathy Drumwright regarding planning for Observation &
Assessment database to verify expectations are being implemented; � Reviewed Project Team 9 meeting minutes (3/27/13 to 7/25-13); � Reviewed Draft ECM (Enhanced Case Management onsite report).
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Findings The objective to measure the content of the face-to-face visits (Phase II) is scheduled for accomplishment in March of 2014. The Draft ECM (Enhanced Case Management onsite report) appears a good first step addressing this requirement. The Draft ECM currently addresses 23 items to be assessed in face-to-face visits with the consumer. It is “optional” to CSBs at this time.
DBHDS leadership gets high marks from the CSB directors who were interviewed. This evaluation is based on responsiveness, ability to effect change, and availability.
Suggestions for Departmental consideration: The Project 9 Team needs to address in the rollout of the ECM the conversion steps to measures (“key indicators”) that may be reported in the aggregate, clarify that it is required at 30 days visits, and pilot test for efficiency in administration.
5) Training
Settlement Requirement: 6. The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness.
Methodology: � Evaluated online curriculum for ID/DD case manager training to assess completeness
of training; � Evaluated competency tests and pass/fail statistics for ID/DD case manager training to
assure expectations are being implemented; � Interviewed Dee Keenan and other members of Project Team 10 - Case Manager
Training (Shank, Rheinheimer, Norton, Hollowell, Pinero) to determine the status of implementation and changes that are being considered; � Interviewed four CSB directors from among five representing the five planning regions, as identified by Keenan; interviews covered ID/DD case manager training to verify congruence between field and Central Office perceptions of training.
Findings The overall design of the seven modules Online Course for case managers is simple, attractive and easily navigated. The curriculum includes the topic areas Basics of Case Management, Services, Planning, Assessment, Building and Maintaining Relationships, Disabilities Defined, and Accountability and requires up to 7 hours to complete. Statistics are presented when needed and in both a verbal and visual format. Philosophical emphasis on Person-Centered Practice and Self-Determination is evident throughout the Modules. However, a training component that addresses assisting consumers/family members in making unbiased choices among providers is absent. The most common explanation for this was that ‘it is covered in other ID/DD trainings’ not linked to this curriculum.
The case manager online training modules do not adequately address conflict free choice presentation by case managers to consumers/family members. However, those interviewed at the CSB level are unanimous in reporting aggressive training locally and from the state on this
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item. The DBHDS “Choice Protocol” addresses the choice offering process for all case
 managers.

The Section on “Focus on a Good Life” is very strong and provides a concrete model for case
 managers to follow. The Advocacy section is also well done, comprehensive and universal for
 all populations. The material on self-harm and harm to others is effective for caseloads with
 individuals who are verbal and have co-occurring behavioral health issues. It does not
 adequately address the needs of the ID/DD caseload which may be predominantly non-verbal 
 and where self-injury has a total different topography. The motivations listed in the training
 modules do not apply to much of the ID/DD population. ID/DD case managers must also
 consider that a) self-injurious behaviors are indicating pain or discomfort, so medical causes
 must be ruled out and b) self-injurious behavior may be a form of communication.

The teaching logic and the competency tests appear well designed and thoughtfully constructed 
 for the learner. The concept of the team and its central role in life planning, as well as the
 mechanics of assembling a team, are only lightly covered. For ID/DD case managers it is a
 critical skill set.

CSB directors who were interviewed were adamant that no case manager is assigned a case load 
 until the 30 day requirement to take the online course is completed. DMAS reported a
 September estimate of 58 (out of 97) DD case managers had completed the online course.

Recommendations to achieve full compliance:
 Revise the appropriate module in the online case management training curriculum to address
 choice presentations by case managers, perhaps as an attachment for ID/DD case managers.
 The “Choice Protocol” provides substantive content for a curriculum modification.

Knowing who has completed the case manager training is a monitoring activity of CSB performance. There should be central tracking by DBHDS of individuals who have completed the online training (a certificate is issued upon completion and data was provided that showed the number of individuals who had started the online course).
There is little mention of Team members and how to assemble the team related to the ID/DD case managers. Future revisions should consider additional discussion of assembling the Team and its composition as determined by the consumer/family member.
Self-harm is the analog to self-injurious behaviors in much of the ID/DD world. Content should be added to the module in future revisions to ensure case managers understand the whole spectrum of self-harm to self-injurious behaviors.
The Case Management Operational Guidelines for enhanced case management should be broadly incorporated at the next revision of the curriculum, in order to ensure sustainability for the future.
DMAS should set and enforce a date by which all DD case managers will have completed the online course.
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Suggestions for Departmental consideration:
 When describing the development of the ISP or monitoring it for effectiveness and satisfaction,
 providing a link to the actual document used for this purpose might provide a visual aid for the
 learner to be able to better connect with what goes in the document. If there are multiple
 documents based on populations, links might be added for each population.

The curriculum learning objectives should be written in behavioral terms. Many are written using “understand”, “understanding” or “know”, none of which can be seen or measured. Consider replacing objectives containing these non-behavioral terms with behavioral terms such as identify, list, recognize, etc.
In discussing the use of alternative modes of communication, consider the use of a “Behavior to English Dictionary” for individuals experiencing severe behavioral challenges. Use of the “Dictionary” captures what the people who know the person best think specific behaviors mean under specific conditions.
Person First Language might be covered more thoroughly. The curriculum needs explanations of why Person First Language is important. Possible sources include these links: http://www.youtube.com/watch?v=Ob_rWNNGaJs and http://www.youtube.com/watch?v=QQ0pKPxoyHs
Conclusions In summary, DBHDS appears to be making substantive efforts to transform the processes which drive case management services. The processes governing case management include the Operational Guidelines, the ‘Choice Protocol’, the CSB Provider Search website, and the seven module online case manager training curriculum. Good processes usually lead to good outcomes, which should be assessed in subsequent rounds.
DBHDS ability to hold CSBs accountable for their performance (i.e. results) in the case management area should receive additional evaluation. The CCS3 Extract informs the Data Dashboard, which has potential as one measurement tool. In future review cycles the Independent Reviewer should directly probe these performance results by evaluating outcomes for specific individuals and their families.
Next Steps In subsequent assessment cycles the strategies suggested below should be considered, above and beyond the strategies for baseline assessment of status. Future assessment strategies may need to be modified over time as goals are achieved and gaps in performance become clear.
1) Case Management Practice: Interview consumers, family members, and other stakeholders regarding effectiveness of case management.
2) Case Management Service: Evaluate Regional Quality Council Process when finalized; select recent changes in residence/work or day program for a telephone interview with a consumer, guardian and/or family member about choices offered at transition (billing or client data reflecting changes in residential or work providers); randomly select at least one ID/DD case manager per CSB to interview re conflict free choice presentations; review a sample of DMAS Form 460, Choice of Providers; review complaints filed per the “Choice Protocol” that a choice has not been adequately offered; assess the rate at which CSB providers are selected from among available
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choices; review additional Licensing reviews of case management performance, including completion of CSB Corrective Action Plans. 3) Face-to-face Case Management: Randomly select at least one ID/DD case manager from each CSB to interview and to provide their visit calendar from the preceding quarter; review CRC reports that have been received on the number of missed 30 day visits. 4) Observation & Assessment: Review minutes of Project 9 Team meetings; interview Project 9 Team members; evaluate observation and assessment data collection tool when available; review guidelines, instructions, and/or procedures issued to implement this tool; sample negative outcome reports from ID/DD case managers and telephone interview appropriate consumer/case manager/guardian/family member regarding outcomes. 5) Training: telephone interview at least 10 ID/DD randomly selected case managers who have been trained within preceding 3 months; interview randomly selected stakeholders regarding perceptions of ID/DD case manager competencies and performance; review NCI utilization with regards to identification of case management problems.
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APPENDIX C
 Crisis Services Requirements

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REPORT TO THE INDEPENDENT REVIEWER FOR THE US v VIRGINIA SETTLEMENT AGREEMENT FOR THE OCTOBER 2013 REVIEW OF CRISIS SERVICES AND THE SETTLEMENT AGREEMENT REQUIREMENTS
INTRODUCTION
Donald Fletcher is contracting with Kathryn du Pree as the Expert Consultant to review the status of implementation of crisis services in Virginia to comply with the requirements of the Settlement Agreement in regard to the Commonwealth’s responsibility to develop a statewide crisis system for individuals with intellectual and developmental disabilities; provide timely and accessible supports to individuals who are experiencing a crisis; provide services focused on crisis prevention and proactive planning to avoid potential crises; and provide in-home and community-based crisis services that are directed at resolving crises and at preventing the removal of the individual from his or her current setting whenever practicable. This is the third review of crisis services and prevention and will focus on the follow through on the recommendations made by the Independent Reviewer in his report of June 6, 2013. This review will cover the time period from 4/7/13-10/6/13.
AREAS OF REVIEW
The primary issues to be reviewed include: • The Commonwealth’s ability to serve adults with developmental disabilities in terms of crisis prevention and intervention services ensuring this target population has case management services to facilitate full access to crisis services and stabilization programs, and access to community supports to prevent future crises. To assure compliance with the requirement to serve adults with developmental disabilities the Independent Reviewer has made two related recommendations. One is that all DD case managers receive basic training regarding START services and the START referral process. The second is that DBHDS and DMAS determine whether individuals with DD who use START Services are provided with case management whether or not they are on the waiting list. • The Commonwealth’s ability to provide crisis prevention and intervention services to children with either intellectual or developmental disabilities. The Commonwealth committed to submit a plan to the Independent Reviewer due October 20, 2013 that includes information about the program model; projected costs and funding sources; family education; marketing to school systems; case management; state agency coordination; and the availability of ongoing supports and services for children who have experienced a crisis and are stabilized, including access to waiver services. • Recruitment and retention of START staff. The Commonwealth is expected to report on the status of staffing in each of the 5 regional START Programs, analyze any problems in recruitment and retention, and share the plans to address any ongoing staffing shortages. • The Commonwealth’s response to the training recommendations made by the Independent Reviewer in his report of June 6, 2013. These include recommendations to: o Train all CSB emergency response staff within 1 year about the START Program and conducting clinical assessments of individuals with ID/DD experiencing a crisis.
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o Include standardized information about the START program in each region’s CIT training.
o Determine the training that should be required of providers of day and residential services to assure the coordination of follow-up for someone referred to and served by START.
• The Commonwealth’s plan to outreach to law enforcement and criminal justice to both link individuals with ID or DD to crisis intervention services prior to incarceration and to arrange for consultations as necessary for individuals with ID or DD who have a mental health diagnosis and are incarcerated.
• The Commonwealth’s response to providing bridge funding to residential providers to maintain a person’s residential setting while they are being stabilized as the result of a crisis.
• The Commonwealth’s response to the recommendation to develop policies and procedures for protocols to guide the development and implementation of START services including: collaboration with teams transitioning individuals from the Training Centers or who are in State Hospitals who are eligible for START; assignment of case managers to individuals in crisis who are referred to START but not yet on a DD or ID waiver; the training expectations for ES personnel; and the provision of medical screening prior to admission to the START crisis stabilization unit.
• The Commonwealth’s response to recommendations, specific to the START Program, made in the Expert Consultant’s Review of an individual’s Death (7/13). While this was a review limited to one person, issues were raised that are similar to those raised in previous reports by the Independent Reviewer and the Expert Consultant regarding communication, coordination and training. These included a recommendation to address the communication between the case manager and the START program and the expected involvement of the case manager in the crisis planning process; and statewide implementation of the corrective actions taken in response to this death by the specific regional START program.
• The Commonwealth’s ability to respond to individuals in their homes to de-escalate a crisis; the steps taken to expand the mobile crisis teams’ capacity to respond to on-site crises; and the response times to emergency calls during the period of this review. The review will determine the Commonwealth’s compliance with this requirement.
• The availability of START crisis stabilization programs/homes in each region and the utilization during the last quarter of FY13 and the first quarter of FY14.
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REVIEW PROTOCOL

Initial Procedural Review Meeting: Donald Fletcher and Kathryn du Pree held a meeting with the designated program administrators and the Settlement Agreement Coordinator on October 10, 2013 to discuss the areas under review. At that time the required documents were discussed and plans refined and confirmed for interviewing key personnel.
Document Review: The Expert Consultant reviewed the DBHDS report prepared for the Independent Reviewer, due 10/20/13, The Virginia START annual report through July 31, 2013 and the Virginia START Report for the first quarter in FY14 both prepared by Dr. Joan Beasley. I also reviewed regional START program reports, data reports developed by the START State Director for the year ending July 31, 2013 and for the first quarter of FY14, and the DBHDS’ Developmental Disabilities Crisis Response System entitled: My Life, My Community.
Interviews: I interviewed Joan Beasley, Ph.D., two members of START Regional Advisory Councils, and the following DBHDS staff: Heidi Dix, Bob Villa, Kathryn Drumwright, Andrea Coleman, Denise Hall, Lucy McCandish, and Pam Nichols. The interviews focused on follow up questions from the reports authored by Dr. Beasley and DBHDS and to review the proposed changes to the crisis services system including the plan to serve children with ID and DD.
ORGANIZATION OF THE REPORT
The following is a summary of the Expert Consultants’ review of the issues to be addressed as outlined above. Each of the recommendations made previously by the Independent Reviewer and established as the focus for this review period will be detailed by a summary of findings, conclusions and issues for further consideration. The review of the follow up and response by DBHDS for each of the Independent Reviewer’s recommendations will be framed in terms of their compliance with the relevant requirements of the Settlement Agreement as they pertain to Crisis Services.
The requirements that guide this review are: 1. The Commonwealth shall develop a statewide crisis system for individuals with ID and DD. The crisis system shall: provide timely and accessible support to individuals with I/D who are experiencing crises, including crises due to behavioral or psychiatric issues, and to their families; provide services focused on crisis prevention and proactive planning to avoid potential crises; and provide in-home and community –based crises services that are directed to resolving crises and preventing the removal of the individual from his current placement whenever practicable. (6.a.i, ii, iii.)
2. Crisis Point of Entry: The Commonwealth shall utilize existing CSB Services for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. When necessary the crisis hotline will dispatch at least 1 mobile crisis team member who is adequately trained to address the crisis. (6.b.i.A.)
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3. By June 30, 2012 the Commonwealth shall train CSB emergency personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available. (6.b.i.B)
4. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible. (6.b.ii.A.)
5. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting. (6.b.ii.B)
6. Mobile crisis team members adequately trained to address the crisis shall also work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement (6.b.ii.C.)
7. Mobile Crisis teams shall be available 24 hours, 7 days per week and to respond to on-site crises. (6.b.ii.D.)
8. Mobile crisis teams shall provide local and timely in-home crisis support of an additional period of up to 3 days, with the possibility of an additional period of up to 3 days upon review of the Regional Mobile Crisis Team Coordinator. (6.b.ii.E.)
9. By June 30, 2013 the Commonwealth shall have at least two mobile crisis teams in each Region to respond to on-site crises within two hours. (6.b.ii.G.)
10. By June 30, 2012 the Commonwealth shall develop one crisis stabilization program in each region. (6.b.iii.F.)
11. By June 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that region. (6.b.iii.G.)
REVIEW OF ISSUES FOR FOLLOW UP
The Commonwealth’s ability to serve adults with developmental disabilities in terms of crisis intervention services ensuring this population has case management services to assure full access to crisis services and stabilization programs, and to access community supports to prevent future crises.
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FINDINGS
The START program is serving adults with developmental disabilities. Of the 517 individuals referred to START for the time period ending 7/30/13 (as reported by Joan Beasley) 18 individuals had either normal or borderline intelligence which is 3.5% of the population served during the 7/127/13 operational period. She notes this is a slight decrease from the previous reporting period. Note that neither Dr. Beasley’s nor the DBHDS annual report breaks out the last quarter of that fiscal year. Dr. Beasley reports that START is appropriately serving individuals with DD and is able to respond to the sub-population of those individuals who have autism.
During FY13 the Commonwealth made the decision to provide case management to anyone with DD who has referred to and used the START program that is on the waiting list for the DD waiver. The Independent Reviewer asked that case management be provided to anyone with DD regardless of his or her waiting list status. The Commonwealth does not plan to provide case management to this population at this time. They are including this policy question in the review of case management services that is being conducted by Human Services Research Institute (HSRI). That study will not be completed until August 2014 with implementation of the recommendations anticipated for July 2015.
Bob Villa reports that few if any individuals have received START services that do not have a case manager. There are 2 concerns if individuals who experience crises and access START do not have a case manager. One is that they are unable to access the START crisis stabilization units that offer emergency and planned respite. The other concern is that these individuals do not have someone to help them arrange for community supports that will help maintain their stability once they are discharged from START and can help prevent future crises.
Training has been offered to case managers serving the DD waiver participants. DBHDS has also recorded the training on a webinar that can be accessed by DD case managers at any time. Region II reported in its Quarterly ES Staff Training Report for the first quarter of FY14 that all of the DD case managers at 2 providers were trained (the Arc of NOVA and PWC). However statewide there is no requirement that DD case managers take the training and no documentation of which ones and how many have been trained. No other regions reported on the status of training of DD case managers.
I interviewed Bradford Hulcher, Executive Director of the Autism Society who is a member of the START Advisory Council in Region IV. She reports that Region IV is unsure how to reach out to the DD system of case managers and providers. DBHDS does not have a list of DD case managers to know who and how many need to be trained in the START referral process and approach to crisis prevention and intervention. To her knowledge the START Program has not been well publicized to individuals with DD and their families or to DD case managers, at least in Region IV. The START staff has shared with the Advisory Council that they are unsure as to how to reach out to the DD system and those who access it. A DD case manager was recently included as a member of the Advisory Council which will provide the group with greater insight as to how best to reach out to the case managers and providers within the DD service delivery system. Also Sam Niesman who has coordinated the DD waiver for DMAS will be transferring to DBHDS in the near future, as operation of the DD waiver becomes the responsibility of DBHDS in November 2013. He will become a member of the Region IV Advisory Council according to Ms. Hulcher.
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Ms. Hulcher expressed other concerns about this initiative’s lack of outreach to and inclusion of the DD population that it is required to provide crisis services. CSB ES staff is not trained to support individuals who may require crisis stabilization and need to be assessed for hospitalization. She reports that families have complained that when they seek assessment for their family member with Asperger’s Syndrome who are experiencing a crisis due to their mental health diagnosis and needs that they are told by the CSB ES team that they cannot assess or support someone with Asperger’s Syndrome. Region IV is planning an innovative project with the John Randolph Hospital to provide specialized inpatient services for individuals with ID. However, there is no plan at this time for the hospital to include individuals with DD who may have a co-occurring mental health need. She also reports that there are many individuals with DD who may have a co-occurring condition who are not on the DD waiver or on the waiting list.
I also interviewed Larry Barnett, Emergency Services Manager at Chesterfield CSB who is a member of the START Regional Advisory Council in Region IV. He discussed that the implementation started out with a focus on adults with ID. The later discussions of serving adults with DD and then children with ID and DD seemed to be an added expectation to the Advisory Council. CSBs do not work with people with DD and he reflects that planning for the additional populations seems daunting to the Advisory Councils. This supports earlier reviews during which I found that the department’s efforts were primarily directed to the adult ID target group.
CONCLUSIONS
The Commonwealth has not been responsive to the recommendations of the Independent Reviewer regarding assuring that all case managers serving people with DD have been trained about START. While training has been given and is available to DD case managers there is no requirement that they participate nor is there any tracking to account and report on how many have been trained. There is no organized approach to identifying these case managers and having a plan to assure they are all aware of the START program, what it offers and the referral process.
The Commonwealth has specifically responded that they do not plan to provide case management support to people with DD who are not on a DD waiver or on its waiting list. This has been deferred pending the outcome of the HSRI study. It is impossible to know the implications of this decision since there are no data kept to inform the Parties how many individuals referred are impacted by this decision.
These decisions potentially place the Commonwealth out of compliance with Section 6.a.i., ii. and iii. It is not possible to ascertain if all individuals with DD who need START are aware of the service or have access to it if the case managers are not all aware of the START program due to a lack of training. Additionally people with DD who do not have a case manager will not be able to access the START crisis stabilization unit and will not have any one to assist them to access ongoing community support services.
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RECOMMENDATIONS AND ISSUES FOR CONSIDERATION

I recommend that the Commonwealth develop a tracking system to determine which DD case managers have been trained. The DD waiver is being transferred from DMAS to DBHDS in November 2013. That presents DBHDS the opportunity to decide if it wants to set an expectation that all DD case managers be trained about START services and the referral process. DD case managers are currently not reimbursed for training which is certainly a deterrent to taking advantage of the training that is available. This may be an issue that DBHDS wants to include in the HSRI study to determine how reimbursement for training can be addressed. If DBHDS determines that they will not mandate training for DD case managers, it should prepare written material explaining all START services and the referral process and send it to all case managers to assure every case manager is aware of this support service and understands how to access it for his or her consumers.
I also recommend that DBHDS track the number of individuals who are referred to START who do not have a case manager and what the region has done to address this. This information should be shared with the Independent Reviewer on a quarterly basis. If the data indicates there are individuals who experience a crisis that do not have a case manager and this is limiting access to necessary services, the Independent Reviewer may want to ask DBHDS to develop an interim solution until the recommendations of HSRI are completed.
The DBHDS should also work with the DD advocacy and provider communities to determine and implement effective outreach strategies to make sure that individuals with DD and their families know about the DD Crisis Response System. The issue of screening and assessment for inpatient psychiatric services for PWDD needs to be addressed as well.
The Commonwealth’s ability to provide crisis prevention and intervention services to children with either intellectual or developmental disabilities. The review will determine the adequacy of the plan that DBHDS developed.
FINDINGS
The DBHDS has developed a preliminary plan for Children’s Crisis Supports as part of the Crisis Response System: My Life, My Community. The plan outlines the mission, target population, services and requirements, a general timeline for implementation and budget. The mission is to assist families and their support systems in developing and maintaining a stable and happy home for children who have been identified as having an intellectual or developmental disability. Children’s crisis supports will serve children and adolescents under the age of 18. The focus of these services will be on crisis resolution, comprehensive case management and assisting families to navigate the service delivery systems that support children and youth and can be accessed after the crisis is resolved. Staff will be expected to demonstrate crisis interventions that will resolve the crisis and prevent future crises, train the family or other caregivers in these techniques and observe the caregiver using the identified interventions. Services will be provided in-home and in community settings that support the child whenever possible. Staff will also make referrals to appropriate community prevention services after the crisis is resolved. Support will be provided through phone support, in-home coaching, direct services to de-escalate the crisis, in-home respite and short and long term support planning.
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The DBHDS does not plan to offer an out of home respite unit. Since children are best cared for in their family home the goal is to maintain them in their family home if at all possible. If a short term out of home placement is needed a relative, therapeutic foster home, or the existing mental health children’s crisis unit will be used. Only if the person presents the risk of harm to him or herself or others will s/he be referred to a psychiatric hospital.
Staffing will be added to the regional START Teams. This will include Children’s Crisis System Navigators and Community Crisis Professionals. The Navigator’s job is to provide comprehensive case management and service coordination for children and youth who experience a crisis. The department’s plan is to add 3 positions over a 6-month period to each region’s START team. These will include 1 Licensed Regional Children’s Team Lead/Navigator to be hired in the first 3 months, and 1 Child Coordinator/Navigator and 1 Child Community Crisis Professional to be hired within 6 months. All staff will be QMHP C/QIDP qualified and a Masters Level is preferred for these positions. All are full time. The DBHDS staff that authored the plan recommends that the staffing expand after the first 6 months of operation to provide comparable resources to those available to adults with ID or DD through START. This would support each team growing to 8-10 Navigators (coordinators) and 4-5 Community Crisis Professionals (also referred to as Community Crisis Stabilization Clinicians). The inclusion of the Community Crisis Professionals is based on the model used in Region III, which will be discussed in the next section of this report. There is a detailed job description for the Navigator that includes the experience the DBHDS expects, the responsibilities of the role and the Knowledge, Skills and Abilities (KSA).
Training for the staff is proposed and the DBHDS expects to hire staff with experience working with children who have co-occurring conditions. START plans to cross train during the first 6 months so all staff have some familiarity with the needs of children and adolescents.
The budget is based on the original allocation of $1.25M that was approved for providing crisis response services to children and adolescents. DBHDS staff was unable to tell me how this amount of funding was projected and admit that there isn’t reliable utilization data about children accessing crisis services. Any expansion over time to include additional Navigators and Community Crisis Professionals depends upon the regions’ ability to secure Medicaid or other insurance to fund the crisis services which are provided by START and covered by those healthcare insurance plans. The budget includes staff salaries and benefits, and a total amount of $75,000 per team for administrative and overhead costs that includes training. Each team will have $340,000 in the first year for start up costs and then will operate children’s crisis response services with $270,000 as the annual allocation. These are estimated costs at this point.
The DBHDS expects to have children’s crisis response services fully operational within 6 months. There is no specific implementation plan for initiating these children’s services. The department did include a timeline to make the changes it is proposing for its DD Crisis Response Services (DDCRS) that includes expanding crisis services to serve children. The timetable includes obtaining approval from the DBHDS, reviewing the plan with the START Directors, establishing milestones, hiring children’s staff, developing a communication strategy and completing home modifications.
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CONCLUSIONS
The Commonwealth is not in compliance with Sections 6.a.i-iii of the Settlement Agreement because it is not currently providing a statewide crisis system that serves children and adolescents with ID and DD. The plan it has developed once implemented can bring Virginia in compliance with this requirement. DBHDS has done a good job of conceptualizing the role of Navigator and Community Crisis Professional. The addition of these positions to the regional START teams should greatly enhance the teams’ abilities to address the crisis needs of this target population. The DBHDS is creating a mission that will embrace and support families’ desires to keep their children at home and help to develop the community support system that is needed to stabilize these living situations.
The plan needs greater detail about outreach to families, schools and children’s service providers; education of ID and DD case managers; the referral process; the involvement of the CSBs; and what existing community supports are available for children and adolescents that will support them after the crisis is stabilized.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
I recommend that the DBHDS submit a more detailed plan to the Independent Reviewer that includes the outreach, education, referral process and availability of existing community support services for children. I can review this plan using the SHAY evaluation tool.
The DBHDS is proposing to meet the needs of children and adolescents who need to leave home to be stabilized through the use of other relatives, foster homes and the existing children’s mental health crisis unit. The need for temporary out of home placement should be tracked to provide information about frequency, placement type used, length of stay, and capacity. The DBHDS should include data about the final outcome for children who do leave home due to the nature of their crisis so the department and Independent Reviewer know if any children do not return home permanently.
Recruitment and retention of START staff has been an issue identified in previous reviews and by the Independent Reviewer. The Commonwealth is expected to report on the status of staffing in each of the 5 regional START Programs, analyze any problems in recruitment and retention, and share the plans to address any ongoing staffing shortages.
FINDINGS Staffing information for each region was made available on October 18, 2013. The following positions are vacant and recruitment efforts are underway: Region I: START Coordinators -3 of 8 positions
Nurse- 1 PT position Respite Director- resignation effective 12/2/13 Region II: START Coordinators- 1 of 8 positions Region III: START Coordinators- 1 of 8 positions AFS Team Leader- 1 of 2 positions Medical Director1 1 PT position Respite Staff- 2 of 8 positions
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Region IV: START Coordinators- 2 of 8 positions START Team Leader position Respite Nurse position
Region V: START Director Co-Coordinator position Respite positions- Respite Manager, Respite Supervisor, LPN, Respite Counselors and CSA’s (the Respite Crisis Stabilization Unit is not opened yet in Region IV)
The regions that have the respite crisis stabilization units open are well staffed for this component of the program and very few clinical positions are vacant. Of the 40 START Coordinator positions, 7 are vacant which is 17.5 % of the positions statewide. However, 1 region has all of them filled and 2 others have only 1 vacancy. Only Region I has 3 of these positions vacant. The DBHDS Crisis Response System proposal: My Life, My Community, addresses ongoing recruitment. The proposal contains recruitment strategies that begin with developing staff Knowledge Skill and Ability (KSA) requirements that promote the hiring of individuals that should be successful working in a crisis program. A new position, Community Crisis Clinician is being proposed based on a working model tested in Region III. These staff will be utilized to provide direct crisis intervention in homes or other community settings used by the individual and will compliment and in some ways extend the work of the START Coordinators. (This role will be discussed further under a subsequent response to the Independent Reviewer’s recommendations). Job descriptions have been developed for all of the clinical positions that are part of the START Team and include licensing requirements. The job announcements are being revised to better reflect the functions that crisis workers perform to provide candidates with a more realistic understanding of the job duties.
Region III has modified its recruitment process to include steps to accurately identify candidates for crisis services. The Region utilizes job shadowing, role-playing and a written test using vignettes to which the candidate must respond with an assessment and the development of interventions to address the particular circumstance presented in the vignette. DBHDS expects that the other regions will use these same recruitment techniques.
CONCLUSIONS
Any new program sustains periods of difficulty in recruiting and retaining staff as job candidates seeking employment gain a realistic perspective of what the job entails and existing staff work as part of a team to actually develop and implement the program and determine if it is a good fit for their interests, skills and career aspirations. DBHDS has continued to actively recruit for the START program and continuously seeks new referral sources. It is planning to replicate a successful recruitment model statewide and is adding a function to the team that should ease the workload and responsibilities of the START Coordinators that will make that role more appealing.
The program data indicates that all referrals that were appropriate were accepted by the regional START programs and were provided with the START services that were warranted with the exception of emergency and planned respite in Regions IV and V due to the lack of respite facilities. In light of the regional programs’ abilities to serve all of the individuals referred the recruitment and retention of staff for the START program does not seem to be negatively impacting the services
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received for individuals referred who are in crisis or trying to prevent a crisis from occurring. There are no issues of compliance related to staffing at this time.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
The quarterly reports provided by DBHDS to the Independent Reviewer regarding staffing should continue to be provided. These should include any vacancies that occurred during the quarter and the length of time they were vacant. The department should also report if there is a waiting list for any of the START services during the quarter and if this is the result of staff vacancies.

The Commonwealth’s response to the training recommendations made by the Independent Reviewer in his June 6, 2013 report regarding the training of CSB Emergency Services (ES) staff; including standardized information about START Services in CIT training; and determining the training that should be required of providers to assure coordination of follow-up for individuals served who use START services.

FINDINGS

The Independent Reviewer made a recommendation that all CSB ES staff be trained about START Services and the referral process within 1 year. DBHDS provided 2 reports that document the training provided to CSBs ES teams through September 30, 2013. The table below provides a summary of the percentage of CSB ES staff that has been trained about START. While almost half of the CSBs have the full compliment of ES trained, 6 CSBs have between 0-10% of the ES staff trained; an additional 8 are between 30-50% and 9 are between 51-90%. What is noteworthy is that Region III has been able to have almost all of the ES staff in each of its CSBs trained already.

REGION
I II III IV V TOTAL

% OF CSB ES STAFF TRAINED 54% 75% 98% 62% 48% 67%

CSBs WITH 100% OF STAFF TRAINED 3 of 8 3 of 5 9 of 10 1of 8 1 of 9 17 of 40

DBHDS informed me during the interviews conducted for this review that they were not planning any additional formalized training to be offered to CSB ES staff. None was offered during the first quarter of FY14. It is difficult for CSBs to release ES staff to attend training that is offered off site due to the nature of emergency responder jobs. Each region does continue to report about training offered. During the first quarter this included including ES workers on the Regional START Advisory Councils and providing START updates via email in Region III. Larry Barnett confirmed that it is difficult releasing staff to attend trainings. The first quarter ES staff training report does include information from Region III that it has offered CSB ES staff on-line trainings from the national START program and from its own START program to address the training needs of ES staff who
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work evening and on weekends and have a more difficult time participating in classroom training. There are also notations on the FY13 ES Staff Training Report that Dr. Beasley has offered training that ES staff have attended in Regions I and III.
Training with law enforcement-While there is some documentation that regional START programs have been involved sporadically in CIT training there is no evidence of the development of a standardized training module about the START program that is included in all CIT training state wide. The DBHDS ES Staff Training Report also provides brief summaries of training provided to other groups including law enforcement. Region II reported that they have no formal agreements with law enforcement entities but provided training as part of CIT in Loudon County regarding working with people with autism. Similar training is planned for Arlington County. Region IV provided CIT training including START information to D19 in the first quarter of FY14. They are collaborating with Richmond CIT to coordinate future trainings. Regions I and V do not report any training.
Provider Training-There has been numerous engagements between START and providers to offer informational sessions and training regarding START. During the first quarter of FY14, Region I reports providing training for Wall Residences and other providers in the Lynchburg and Winchester areas. Region I START also facilitated 5 webinar trainings in September at 5 locations across the region. Region III also provided training to the provider Wall Residences. Providers in that region were invited and attended training provided by Dr. Beasley at the end of FY13.
The Virginia START Annual Report FY13 includes information on outreach provided by the START Clinical Teams. The data indicates that the majority of outreach time is being spent with service providers and family members. Thirty five % of the outreach hours are devoted to residential providers and 18% is given to day service providers. The Virginia START Annual Report also includes a summary of the hours of training and direct consultation that the START teams provide. During FY2013, the START Medical and Clinical Directors gave approximately 90 hours of consultation to residential providers and almost 50 hours to day service providers. The majority of training provided was to residential and day providers totaling approximately 40 hours.
CONCLUSIONS
The Commonwealth is not in compliance with Section 6.b.i.B. of the Settlement Agreement. This section requires that CSB emergency personnel be trained on the new crisis response system. The original date set for this training to be completed was June 30, 2012. The Independent Reviewer recommended in his June 2013 report that this be accomplished within a year since the original target date was not met. The DBHDS has another 7 months to implement this recommendation and meet the requirements of the Settlement Agreement although not within the original timeframe but has no further plans to ensure all CSB ES staff is trained.
The Settlement Agreement expects that the Commonwealth will have a planned approach to reaching out to and working with law enforcement personnel to improve their interactions with individuals with ID/DD. This will be addressed in a later section of this report. However part of the initial plan of DBHDS was to include a module about the START program in the Crisis Intervention Training (CIT) offered by the DBHDS to law enforcement personnel and this was reinforced in the Independent Reviewer’s most recent report. While there is evidence of some regions offering it in
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some of the CIT trainings DBHDS has not developed a module to be included as a standard part of CIT. This is not compliant with the initial plans DBHDS put forward to address 6.b.ii.C.
Training of providers serving individuals is occurring through invitations to regional training, invitations to training provided through the national START program, and through individual consultation and follow up with providers who serve an individual who is referred to and accepted in START. START is a specialized support that is available to a small group of people served by the ID/DD provider community, those individuals who have a co-occurring condition of mental health. Not all providers may need training about START if they serve a population of individuals who do not have a mental health diagnosis. As the program is still in its development period it may make sense to focus the training on those providers who currently serve people with co-occurring conditions. Tailoring the training, consultation, technical assistance and follow up based on the needs and circumstances of the individuals who use START and return to the provider that serves them is a good use of limited resources. Over time it will be important to determine if these providers have been offered sufficient training and consultation to help them to successfully support individuals with co-occurring conditions and assure them continuity of care.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
DBHDS should develop a plan to train all CSB workers by June 2013.The department should decide if it needs to make this training a requirement of the performance contract it has with the CSBs to guarantee that there is full cooperation and participation.
The department should review the approach that Region III has used to already train 98% of its CSB ES staff to determine of it can be replicated in the other regions. Consideration should be given to recording training sessions and making the recordings available to ES staff online to be used at times convenient to them that will not interfere with their emergency responder duties.
DBHDS should develop a module for the CIT that provides an orientation to START and have it included in all regions’ CIT as part of the module on the needs and characteristics of individuals with ID. A determination should be made if this training should be expanded to include information on people with DD.
A future review of crisis services should include a review of a sample of cases for individuals receiving supports from residential and day providers who utilized START. The review should include a review of the provider’s involvement in the planning process developing the initial crisis intervention strategies; the training and technical assistance offered to the provider; the process of returning the person to the residential setting if out of home emergency respite or hospitalization occurred; and the success of the individual’s transition back to the community residential and employment or day program settings. The review should include interviews with the provider, the case manager, the family and the individual if appropriate.
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The Commonwealth’s plan to reach out to law enforcement and criminal justice personnel to link individuals with ID and DD to crisis intervention services to prevent unnecessary arrests and incarceration.
FINDINGS
These findings are based on a review of the DBHDS CSB ES Staff Training Report. Region III works specifically with law enforcement based on interactions of the individuals with the police to coordinate roles train and try to engage them in some aspects of future planning for the person. Region III also worked with CSBs and providers to encourage the use of police only to respond to emergency situations that cannot otherwise be handled rather than as the first response to an individual who may be non-compliant with his/her plan. Region IV plans to reach out to the Henrico police department once the Crisis Stabilization Unit/Respite Home opens later this fall. They will also be invited to the respite home for onsite observation and training. The Clinical Director has been available to work directly with police based on their involvement with individuals with ID.
The Virginia START annual Report for FY21013 indicates referral sources for all individuals referred to START. No referrals were made by law enforcement.
DBHDS developed a plan, My Life My Community that suggests changes in the START crisis intervention service delivery approach. It was anticipated that this plan would include the strategies and activities that will be used to reach out to law enforcement in a planful, comprehensive and consistent way. This part of the plan was not completed.
CONCLUSIONS
The DBHDS has not responded as yet to the recommendation of the Independent Reviewer to develop an outreach plan for the regional START programs to work effectively with law enforcement and the Commonwealth is potentially not in compliance with Section 6.a.ii.C of the Settlement Agreement. This section requires mobile crisis team members to work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement. While there are vignettes from some regions about work with law enforcement it does not seem to be underway consistently across the state. Potentially the lack of referrals in a year to START from law enforcement may indicate a problem with outreach and indicate a lack of knowledge among police departments about the START program.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
The DBHDS reports it will develop and submit its plan to do outreach with law enforcement departments and their staff. I should review the report to determine if it a comprehensive response to the requirements of the Settlement Agreement. Each region should be asked to report more formally on the interactions and training they have with the law enforcement departments in their regions. This report should include CIT trainings held; individuals consultation provided, communication protocols developed; and the outcome of cases in which law enforcement was also involved. These reports should be submitted to the Independent Reviewer and Expert Consultant semi-annually and reviewed.
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The Commonwealth’s response to the recommendation to provide bridge funding to residential providers to maintain a person’s residential setting while they are being stabilized as a result of a crisis. FINDINGS
The DBHDS indicated during interviews that the department does not have any current mechanism to provide bridge funding to residential providers to assist them to maintain the individual’s placement in that home during a prolonged absence as a result of a psychiatric hospitalization or other out of residence short term placement. DBHDS administrative staff reports that they have no plans to develop such a funding mechanism.
Data from the Virginia START Annual Report is instructive regarding the involvement of individuals who reside with providers. Of the 517 referrals in 2013, 208 (40%) of the referrals lived in a group home. An additional 3 lived in a community ICF-IID. The highest category of living arrangement at the time of referral is a group home, followed by family home. Of the total number of people referred and served by START, 159 people had been hospitalized at least once in the previous year and 176 were hospitalized at least once in the last 1-5 years.
The annual report also contains information about the outcome/primary disposition during crisis contact. For the 195 people reported on in this section, 21 were admitted to a community mental health in-patient unit, 1 to a crisis stabilization unit, and 11 to a state psychiatric hospital. Additionally 15 were admitted for emergency respite at the START respite unit.
Forty-nine of the 195 individuals had some support provided out of their home that is 25% of the group. These data do not break down the information by the type of residence at the time of referral but since the majority of referrals lived in a group home at the time of admission it is reasonable to expect that some of those who were placed out of home to be stabilized were from a group home.
CONCLUSIONS
The Commonwealth does not plan to provide bridge funding to residential providers to insure continuity of care for the individual. This is a recommendation made by Dr. Beasley, the Expert Consultant and the Independent Reviewer. It is not in and of itself a requirement of the Settlement Agreement. The data that is maintained through SIRS and made available to me does not include data about the ability of individuals to return to their original home or residence after using the START Respite Home or being hospitalized for psychiatric stabilization. When asked about how frequently this happens, Bob Villa said that in the few instances when someone did not return to their residence it was because the provider could not meet their increased needs not because of a gap in funding. DBHDS was unable to provide information to document this.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
This remains a concern of Dr. Beasley and of mine. I recommend that DBHDS begin to collect and share data about the transition of individuals who have been placed out of home as a result of a crisis in their lives. Based on a review of the information the Independent Reviewer and I can determine if
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the lack of bridge funding is impacting the department’s ability to prevent future crises and maintain the necessary residential services to enable individuals who have been referred for crisis services to be stabilized in the community and experience continuity of care.
The Commonwealth’s development of policies, procedures and protocols to guide the development and implementation of START services.
FINDINGS
The Independent Reviewer made several recommendations about the need for written guidance for aspects of the START program and the DBHDS’ development of a crisis system that relies on community linkages and partnerships. These include the assignment of case managers for individuals with DD who are not on the waiting list for the DD waiver; the training expectations of CSB ES personnel; medical screenings prior to an admission to the START Respite Home; the role of the case manager in the planning and discharge processes; coordinating crisis planning for individuals leaving the Training Centers and implementing procedural changes resulting from a Corrective Action Plan (CAP) in Region V statewide. Dr. Beasley made many of these recommendations in her reports as well as the Expert Consultant and Independent Reviewer.
No policies, procedures or protocols that address these areas have been developed. DBHDS has indicated it does not plan to continue to train all CSB ES staff. The DBHDS response regarding the role of the case manager in coordinating with START is that it is already addressed in the expectations of case managers to be involved in the overall planning for the individuals they support and to coordinate the provision of services. However, this did not occur in the case of RP, a person who was served by DBHDS and who died earlier in 2013. This death was reviewed by DBHDS Licensing and resulted in numerous CAPs including one that addressed the gaps in coordination by the case manager.
CONCLUSIONS
The lack of a policy regarding the training expectations for CSB ES personnel does not meet the Settlement Agreement requirements of 6.b.i.B.
The lack of a policy regarding the involvement of case managers in the planning, coordinating and discharge of an individual referred to START potentially is not in compliance with 6.a.i-iii. This section requires the development of a crisis system that provides timely and accessible support that includes proactive planning to avoid potential crises. This provision is for individuals with either ID or DD. Since there is a decentralized system of case management through the CSBs and case managers are not under the direct authority of DBHDS, it is even more essential that the role of the case manager be specified. The case manager is critically important to effective communication between the person, family, existing providers, and the START program. It will be the case managers responsibility to insure that all follow up occurs and that the individual is linked to appropriate community resources after the crisis has been stabilized. Guidance for case managers in both the ID and the DD systems should be developed and provided to them.
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Recommendations were also made about the other topics listed in the findings section. These areas do not directly impact compliance with the Settlement Agreement although have the potential to improve and standardize the implementation of the crisis response system.

RECOMMENDATIONS AND ISSUES FOR CONSIDERATION

DBHDS should develop a policy detailing the expectations that all CSB ES staff be trained in the START program and referral process. The policy should include expectations that ES staff hired in the future also be trained. DBHDS should develop guidance for case managers detailing the department’s expectations for their involvement in planning, coordinating and following up on crisis intervention and prevention services.

START should be expected to have policies, procedures, and protocols that are used consistently in all regions that govern the important aspects of its operation. It is encouraging that the DDCRS plan indicates the policies and protocols of Region III are to be adopted statewide.

The Commonwealth’s ability to respond to individuals in their homes to de-escalate a crisis; the steps taken to respond to expand the mobile crisis teams’ capacity to respond to on-site crises and the response time to emergency calls.

FINDINGS

The START Teams continue to respond directly to requests for crisis intervention for adults with ID or DD. According to the Virginia START Annual Report for FY13 and the First Quarter Report for FY14, 735 individuals have been entered into the SIRS database. In FY13 572 individuals were entered and an additional 104 were entered in FY14 through September 30, 2013. Five hundred fifteen (515) of these individuals were receiving support during the first quarter of FY14. Dr. Beasley estimates that START will support 700-1,000 people on an annual basis. The following table summarizes the services provided:

Quarter
FY13 Q4 FY14 Q1

Emergency/Crisis Services 88 68

In- Home Respite 56 30

Emergency Respite 26 33

Planned Respite
38 46

Grand Total
208 177

START also provides training, consultation, comprehensive assessment, treatment planning, and service linkages.

The majority of people referred live at home with their families and the next largest group of referrals is for individuals who live in group homes. Many of the referrals are for people who need comprehensive assessment and planning, prevention strategies and community linkages.

This review is focusing on the START Teams’ response time and the DBHDS plans to revise the program to be more responsive to crises by providing more direct intervention at the time of the crisis.

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The Settlement Agreement requires that the START teams respond to a crisis within 2 hours. By June 30,2014 the teams are supposed to respond to crises in urban areas within 1 hour and maintain the 2 hour response time for all other parts of the regions. During the last quarter of FY13 the teams achieved an average response time of 1 hour and 45 minutes. However, 73% of the calls were responded to in 2 hours or less but 27% took more than 2 hours for a mobile crisis worker to reach the person. The DBHDS report for the first quarter of FY14 indicates that there were 28 requests for the mobile crisis team to respond and that 22 of these referrals were responded to in 2 hours or less with the average response time reported as 1 hour. Only 2 referrals were responded to in more than 2 hours but there was no response time noted for 4 of the referrals that accounts for 14% of the total.
The DBHDS developed the DD Crisis Response System Plan: My Life, My Community. The plan was developed in response to concerns of stakeholders and department staff that there is a lack of immediate crisis interventions, or immediate supports for individuals not known to Emergency Services or START; a lack of crisis interventions for individuals under 18 with ID/DD; a lack of clear collaboration with ES and a lack of information about the program available to law enforcement. The purpose of the plan is to revise the current system to provide more immediate crisis interventions to people who are experiencing a crisis due to behavioral and/or psychiatric issues and support their families. In-home and community based supports will be designed to resolve the immediate crisis and allow the person to remain at home if at all possible. The Crisis Support Unit (CSU) that is the START respite home will continue to be available as a last resort and only for emergency respite. In the new plan the DBHDS views providing prevention crisis services as a secondary approach rather than continuing as the primary focus as it is envisioned by the current START program vision and structure.
I was able to interview Larry Barnett who is the ES Manager of the Chesterfield CSB and a member of the START Advisory Council in Region IV. He is very supportive of the START program providing this type of immediate direct crisis intervention. He believes there is effective coordination with the CSBs and a strong effort to connect with community partners. There is good collaboration and a strong training approach with training offered to all of the START partners.
The key components of the DDCRS are: emergency services through a single point of entry (SPOE); mobile crisis services including intensive community crisis supports, the CSU, intensive transition supports and crisis prevention planning; and quality assurance and standards compliance.
Emergency Services- The CSB (ES) are portrayed as the SPOE into publicly funded mental health, intellectual disability, and substance abuse services which provides comprehensive services within a continuum of care that includes crisis interventions and supports. In this plan they will be the SPOE for individuals experiencing s crisis, but only those who are not already known to the CSB ES or to START.
Mobile Crisis Services- mobile crisis team members will be sent to the place where the person resides or is at the time of the crisis and will decide on the need for in-home or other intensive supports including use of the CSU. They are to assure that the immediate crisis is addressed, supports are immediately provided, and non-crisis referrals are made.
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Intensive In-Home Supports- Staff will implement behavioral intervention strategies, provide individual support, model strategies and interventions for the family or other caregivers, accompany the individuals to appointments, and train caregivers. Staff will be available for direct support for up to 24 hours per day for 7 days. The provision of this more direct, immediate, and hands on intervention is the most significant change to the START program. Region III has already successfully implemented this model by using Community Crisis Clinicians in addition to the START Coordinators. The DBHDS expects that all of the other regions will add these staff as well. Region III also added a Nurse Practitioner to assess whether any medical issues are contributing to the crisis.
New funding is not proposed for these staff. The expectation is that each region can afford the positions by using the funds that are generated by billing Medicaid and other insurers for covered services. Regions will use the State Pan Option Medicaid stabilization and intervention services and will bill as appropriate. Region III uses these positions successfully and has created 2 sub-teams to be more responsive to the needs of its consumers who are accepted into START. This was the original expectation of the Settlement Agreement. Other regions are using a combination of approaches to improve responsiveness including adding more staff and/or supervisors but not necessarily creating a distinct second team.
Crisis Support Unit- The CSU will be available for adults who need to be stabilized. Each home shall serve 6 individuals. The units are staffed with medical and clinical professionals. It is anticipated that the CSU will be for emergency crisis rather than a combination of emergency and planned respite.
The plan includes standards of compliance supporting providing supports where the person lives; involving existing providers; using the least restrictive intervention; using behavioral assessments and plans; providing necessary transportation; and providing immediate collaborative discharge planning. The DBHDS recommends that the Region III policies and procedures be used statewide. There is a listing of Quality Assurance data that will be collected and an understanding that performance measures and outcomes need to be developed.
There is no detailed budget or funding sources, communication plan to educate families, outreach plan to school systems or community providers, or a plan to interact with law enforcement. The DBHDS indicates these components will be developed after the existing plan is shared with START Directors and the communications plan will be completed by 3/5/14. The timeline notes the development of benchmarks and milestones by 12/31/13 but have not proposed them in this version of the plan. There is no timeline set for preparing the budget and funding sources although the DBHDS reports the plan can be implemented within existing resources. START is budgeted at $12.25M through FY15 to include children’s services. In FY16 the budget is proposed to increase to $16.25M. The timetable proposes that full implementation will be achieved by 8/31/14.
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CONCLUSIONS
The Commonwealth remains in compliance with Sections 6.b.i.A, 6.b.ii.A, 6.b.ii.B, and 6.b.ii.D.START Coordinators have been providing local and timely in-home crisis support as required under Section 6.b.ii.E. The plan which focuses the START teams on more direct, hands on, immediate intervention will strengthen the teams’ success in addressing crises by adding staff that can provide direct interactions for up to 7 days complementing the support offered by the START Coordinators. The Commonwealth is not in compliance with Section 6.b.ii.G that requires a response time of 2 hours and the availability of 2 mobile crisis teams in each region. The Commonwealth’s decision to add staff and determine the best supervisory configuration in each region rather than necessarily having 2 distinct teams should be acceptable to meet this requirement as long as the response time requirements can be met and sustained.
The DD Crisis Response System plan proposes improvements that should make the existing system more responsive by adding resources that can provide more immediate assistance to stabilize a crisis. This is a necessary component to insure the system meets its goal of stabilizing the situation and maintaining as many people as possible in their home settings.
However, the continued need to focus on prevention and systems planning cannot be minimized. If the system focuses solely on the direct and immediate response to the crisis it may not put strategies in place to prevent crises in the future. These strategies include prevention planning, providing ongoing support and training of caregivers, and helping the person and his or her family access needed ongoing community resources to avert future crises. This is accomplished through the development of comprehensive assessment, person-centered planning and the creation of community linkages. It is anticipated these aspects of START will continue but the implementation of the plan should be reviewed and data analyzed that documents how frequently these preventative strategies are provided.
As I discuss in another section I remain concerned about the loss of planned out of home respite. More people currently use the respite homes for planned versus emergency respite. Many families rely on this to provide them with a needed break to help them sustain their ability to continue to be the primary caregiver.
It remains unclear as to how the DBHDS is going to assure effective coordination between CSBs and the START program. The intake and referral process for individuals already known to the system is not changing. The CSB ES will only be the SPOE for new referrals. This makes sense for individuals already known to START but may not be as useful for individuals known to the CSB but not previously known to START. It also does not specifically address the issue of every CSB ES being responsive to requests from START for assistance. Dr. Beasley reports that this coordination is inconsistent across the CSBs. The case manager is listed as being a member of the HUB to coordinate the crisis response but there is no specificity about the case managers responsibilities.
At this juncture I cannot determine the adequacy of the plan although it is a very promising approach and adds a needed crisis intervention. In order to complete a thorough review I will need DBHDS to provide information on the budget and resources, marketing and outreach and education for both ID and DD potential referrals and their caregivers and providers. It will also be helpful to articulate the ES role when START requests its assistance and to articulate the expectations of case managers. The
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plan also needs to address the access of emergency service response for individuals with DD who may need psychiatric hospitalization.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
The DBHDS should submit a comprehensive plan and it should be reviewed using the SHAY assessment tool. The plan should include the outcomes and performance measures the department recommends being used going forward and the data that will be collected to determine if measures are being met and outcomes are being achieved. These should include measures of family satisfaction with the timeliness and quality of supports and information on how many people were able to maintain their original home setting and how many had to move permanently.
If planned respite is no longer part of the prevention strategy the DBHDS should provide evidence over the first year of implementation that more out of home placements or psychiatric hospitalizations did not occur as a result.
The availability of START crisis stabilization programs/respite homes in each region and the utilization during the last quarter of FY13 and the first quarter of FY14.
FINDINGS
The Commonwealth was expected to open a START Respite Home in each region by July 2012. While none of the regions met this timeframe Regions I, II, and III opened their homes during calendar year 2013. Region III was the first to open in December 2012 so has the most experience offering both emergency and planned respite. The Virginia START Annual Report states that the 3 operational regions admitted 28 individuals for emergency respite and 31 people for planned respite. Emergency Respite for these 28 people resulted in 36 admissions with no one having more than 2 admissions during FY13. The average length of stay was 18.8 days. The recidivism rate was 28.6%. Thirty- one people used planned respite for a total of 57 admissions. Sixteen individuals had more than 1 planned stay. The average length of stay was 4.6 days. This report differs slightly from the reports provided by DBHDS that indicate a total of 30 people were admitted for respite through June 30, 2013, and 37 for planned respite. DBHDS notes the data inconsistencies and is addressing them.
The 3 regions that have homes opened them in December 2012 (Region III) January 2013 (Region I), and February 2013 (Region II). This means that for the reporting period (December 2012- June 2013), there were 1350 bed days available for emergency respite and 1350 bed days available for planned respite. A total of 677 bed days were used for emergency respite and 262 bed days for planned respite. This represents a 50% utilization rate for emergency respite and a 19% utilization rate for planned respite. The FY14 First Quarter Progress Report for VASTART Services prepared by Joan Beasley, Ph.D., summarizes the service utilization for emergency respite and planned respite which is 28 individuals with 33 episodes and 37 individuals with 46 episodes of use respectively. During the first quarter there were 810 days available for emergency respite and the same number for planned respite approximately. Region II was able to offer only 4 beds for part of the quarter. The utilization rate for the first quarter was 46% for emergency respite and 33% for planned respite.
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Emergency respite stayed about the same (46% versus 50% for FY13), but the utilization of the planned respite beds rose from 19% to 33%. As was true in FY13 more individuals took advantage of planned respite than did emergency respite.
Region IV and V still do not have their respite homes open. They both plan to open them in November 2014. Both were able to send a few people to respite in one of the other regions during the reporting period. Region II is currently operating only 4 of its 6 beds due a zoning issue regarding the adequacy of the well and septic system.
The Crisis Response Systems plan recommends that in the future all of the respite beds be used for emergency respite and that planned respite no longer be offered. Yet in both FY13 and the first quarter of FY14, there were more individuals who used the respite home for planned respite, although for fewer days. The administrative staff of DBHDS did not offer a rationale for the decision to no longer offer planned respite.
CONCLUSION
The Commonwealth is not in compliance with Sections 6.b.iii.F that require the establishment of 1 crisis stabilization program in each region by June 30, 2012 in each region. The Commonwealth should achieve compliance with this requirement by the end of the calendar year. There are some concerns expressed with the type of facility and location that Region IV will be using as it is reported to not be home like nor located in an integrated community setting.
Section 6.b.iii.G requires that the Commonwealth develop an additional crisis stabilization program in each region as determined necessary to meet the needs of the target population. Since the utilization rates for both emergency and planned respite are far under 100%, and there will be additional capacity as soon as Regions IV and V open their respite homes, the Commonwealth has determined that a second setting is not needed in each region to respond to the needs of this population at this time. This is a reasonable decision at this time but the utilization of the respite homes should continue to be monitored, as should the outcome of the DBHDS decision to no longer offer planned respite but devote all of the beds to emergency respite.
The decision by the Commonwealth to end planned out of home respite jeopardizes the Commonwealth’s compliance with Section 6.b.ii.B that expects that the mobile crisis teams plan and identify strategies for preventing future crises. The availability of planned out of home respite is one of the strategies that the teams have been able to offer. As more states move to a family support model of service delivery that relies on the family to maintain their family member at home, respite services become an important support to avert the need for out of home placement. The availability of out of home respite is even more critical to assist families to cope and provide a nurturing home setting if the family member has a co-occurring mental health need.
It appears that the availability of START services can be more widely shared with both ID and DD consumers and their families. From the feedback of one member of the Region IV Advisory Council, the information is given directly to CSB case managers and they determine who on their caseloads may need this service and share its availability with them. It is unclear how the availability is made
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known to individuals with DD and their families. If there is more comprehensive outreach and dissemination of information about START services directly to individuals and their families there may be an increase in referrals.
RECOMMENDATIONS AND ISSUES FOR CONSIDERATION
The DBHDS should explain its rationale for planning to end planned respite in the START respite homes. Families who have used planned respite should be surveyed to determine the impact this crisis support had on their family member stability and on their ability to continue to have their family member live with them. Case managers whose consumers have used planned respite should be surveyed as well to elicit their input in terms of the value of planned out of home respite. The Independent Reviewer should then decide if he wants to recommend to the Court that planned respite continue. The Independent Reviewer or Expert Consultant should visit the facility that will be the START Respite Home in Region IV to determine if it meets the Court’s expectations for a community based respite setting.
I should review utilization in the next review of crisis services and should review how information is shared directly with families of individuals with ID and DD regarding the availability of START services including the START respite homes. This review should include interviews with a sample of START Regional Advisory Council members from each region.
SUMMARY
The DBHDS is not in compliance with the following sections of the Settlement Agreement: 6.a.i-iii; 6.b.i.B; 6.a.ii.C; 6.b.ii.F; and 6.b.ii.G. Virginia is not compliant with the requirements to effectively serve adults with DD; support children with ID or DD who experience a crisis; train emergency service staff; work effectively with law enforcement; offer a crisis stabilization unit/respite home in each region; or respond to all requests for crisis intervention within 2 hours.
This report includes a number of recommendations to address improving outreach and START access for individuals with DD; enhance the plans to serve children and to provide more immediate emergency response to all individuals with ID and DD; train all CSB ES staff; develop an outreach plan with law enforcement; develop consistent expectations for case managers; develop statewide policies and procedures for the START program; report on the impact of discontinuing planned out of home respite; and complete a case study of the coordination and follow up for individuals served by residential providers.
It was very enlightening to interview 2 members of the Regional START Advisory Councils. The individuals interviewed are both members of the Region IV Advisory Council. Representatives of the other Advisory Councils should be interviewed during a future review.
I recommend that the next review concentrate on determining the quality of START services that are provided and the satisfaction of families and individuals who have utilized the services. This should include case reviews for individuals with ID and with DD. This should include a review of in-home supports, emergency and planned respite and START’s ability to link individuals with community
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supports and resources to help maintain stabilized situations and keep people in their homes. Another aspect of the review should focus on the coordination and involvement of the case manager and with residential providers. There should also be a review of the outreach strategies with the DD community including individuals and families, case managers and providers.
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APPENDIX D
 Report on Quality and Risk Management

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INTRODUCTION
In June 2013, Donald Fletcher, the Independent Reviewer in the United States of America v. Commonwealth of Virginia case, asked this Consultant to submit a proposal to review specific components of the Settlement Agreement related to the quality and risk management systems. On June 24, 2013, and June 27, 2013, the Independent Reviewer and the Consultant held initial calls with the Commonwealth and the United States Department of Justice (DOJ), respectively, to hear their input. Taking into consideration the initial conversations with the Commonwealth and DOJ, the Consultant’s proposal recommended that at this juncture, the most helpful approach would be to provide a baseline review of a number of the components of the system. It recommended that the focus of this review be on:
1) Areas in which some development had occurred; and 2) Areas that represented the essential building blocks for the infrastructure of a functioning
Quality Management system. 3) The proposal also identified Settlement Agreement requirements for quality and risk
management systems that would appear to require separate review, and/or review by a consultant(s) with clinical knowledge.
The specific areas that it proposed this Consultant would review included:
1) Risk triggers and thresholds; 2) The web-based incident reporting system and reporting protocol; 3) Investigation of allegations and critical incidents; 4) Data to assess and improve quality; 5) Providers; and 6) Quality service reviews.
The proposal also set out the basic methodology for the review, as well as the State Health Authority Yardstick (SHAY) tool components that would be reviewed. The Independent Reviewer shared the proposal with the Commonwealth and DOJ. Given the parties expressed no objections, the review moved forward using the parameters set forth in the proposal. On August 30, 2013, the Independent Reviewer and Consultant held a call with the Commonwealth to further discuss the methodology with the goal of ensuring the correct documents for review and interviews were identified. The logistics for coordinating the review also were discussed.
The Consultant sincerely appreciates the assistance that Kathy Drumright, Assistant Commissioner of Quality Management and Development, provided in arranging interviews and coordinating the production of documents. In addition to Ms. Drumright, a number of other Commonwealth staff, as well as a provider representative, and staff from the Virginia Commonwealth University (VCU) Partnership for People with Disabilities took time out of very busy schedules to participate in interviews with the Consultant, as well as supply documentation. The Consultant expresses her thanks to all of those involved for their time, as well as their candid assessments of the progress made as well as the challenges that lay ahead.
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The following report summarizes the findings of the review, and offers recommendations. At the request of the Independent Reviewer, it also discusses the applicable SHAY tool components.
METHODOLOGY
This review was conducted through a combination of telephone interviews and document reviews. As noted above, based on initial conversations with the Commonwealth and DOJ, the Consultant identified a number of documents and interviews necessary to learn about the status of the Commonwealth’s activities. In a call on August 30, 2013, the Commonwealth identified additional documents and persons to be included in interviews.
A series of seven interviews were scheduled, and occurred between September 16 and 27, 2013. Based on input from the Commonwealth, the people selected for interviews included staff from the Department of Behavioral Health and Developmental Services (DBHDS), as well as the Department of Medical Assistance Services (DMAS), the VCU Partnership for People with Disabilities, and a representative from the provider community. At this juncture, full implementation of many of these initiatives had not yet occurred. As a result, providers, and individuals and their families were not included in the review. However, as appropriate, during future reviews, their input will be sought.
The Commonwealth submitted the requested documents prior to these interviews. As a result of review of the initial documents as well as information gained during the calls, the Consultant requested some additional documents.
The names and titles of those who participated in the interviews are provided in Appendix B. A listing of documents reviewed also is provided in Appendix B.
BASELINE FINDINGS AND RECOMMENDATIONS
For each of the areas of review, the language from the Settlement Agreement is provided in italics. This is followed by a summary of the status of the Commonwealth’s efforts. Recommendations also are offered for consideration.
It is important to note that given that many of the Commonwealth’s initiatives in relation to the quality and risk management system were at the beginning stages of development and implementation, this review included a number of draft documents that still were in the process of being modified. Based on interviews, the Consultant requested and reviewed some updated drafts. However, the comments in this report are based on these evolving documents. As appropriate, reference has been made to the status of the documents reviewed.
a. Risk Triggers and Thresholds (Section V.C.1)
The Commonwealth shall require that all Training Centers, CSBs [Community Services Boards], and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that
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enable them to adequately address harms and risk of harm. Harm includes any physical
 injury, whether caused by abuse, neglect, or accidental causes.

The goal of the Consultant’s review was to review risk triggers and thresholds that had been developed, and provide initial feedback. In addition, objectives of the review were to determine what actions the Commonwealth had taken or planned to take to require providers to implement the risk management system, and determine how the Commonwealth planned to make sure providers were implementing the system.
Draft Risk Triggers and Thresholds
At the time of the Consultant’s review, the risk triggers and thresholds were still in draft format. Several drafts were provided showing changes over time. Clearly, based on the minutes from Project Team #11’s meetings and the various drafts, a significant amount of work had been devoted to developing the draft risk triggers and thresholds.
Based on discussions with members of Project Team #11, providers would be responsible for tracking and responding to risk triggers. The expectation was that providers would review the event, determine what changes or actions were needed to prevent recurrence to the extent possible, and implement necessary actions. These events generally impacted an individual. For the risk thresholds, the provider was expected to conduct a review and take action, as appropriate, but the Commonwealth also would review these events or series of events, along with the provider’s action plan to determine if necessary action was taken.
The draft document included some valuable triggers and thresholds. However, an overarching concern related to the constraints that appeared to prevent a complete list from being developed. This same issue is further discussed with regard to the section of this report that addresses data to assess and improve quality. However, the following concerns were noted with regard to the draft risk triggers and thresholds:
§ The most recent draft provided, dated 8/8/13, included two categories of triggers and thresholds, including “required,” and “recommended” or “internal.” Providers would be required to report data on those that were identified as “required,” and the data source for each had been identified, as well as the reporting frequency. For “recommended” or “internal” thresholds, the providers would be encouraged to collect data on them, but they would not be required to report them externally, and the Office of Licensing would not review them during its reviews. Based on review of documentation and discussion with members of Project Team #11, the decision was made to divide the triggers and thresholds into these categories due to the limitations on what providers currently were required to report based on regulation and/or contract requirements. Some examples of “recommended” risk thresholds were: “Any staff member who makes three or more medication errors within a quarter,” “Any individual with two (2) or more episodes of aspiration pneumonia within a quarter that requires medical attention…” or “Two (2) or more choking events… by one or more individuals in a program or service area, within a quarter, where emergency measures such as the Heimlich maneuver were undertaken but treatment by a medical professional was not
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provided.” Given that these were significant indicators of potential for harm, it is important that ultimately, the risk system include them as “required” data points. § In addition, the triggers were not necessarily sensitive enough for those individuals with high risk in these areas. For example, one incidence of aspiration pneumonia is significant, and should result in immediate review to prevent the next hospitalization and/or death. § Given the Settlement Agreement provides a fairly inclusive definition of harm (i.e., “Harm includes any physical injury, whether caused by abuse, neglect, or accidental causes), it was not entirely clear why the draft risk triggers and thresholds included some items and not others, and/or why some were removed as the process progressed. Again, based on discussions with members of Project Team #11, this in large part appeared to be due to the data that were currently available. In addition, some prioritization had occurred, based on common issues for individuals with intellectual disabilities (ID) and developmental disabilities (DD), and other available data. For example, reportedly, issues that had been identified through mortality reviews and relevant literature were included, such as aspiration pneumonia and constipation/bowel obstruction. However, other indicators of risk that are fairly typical for individuals with intellectual and/or developmental disabilities that were not addressed included, but were not limited to: peer-to-peer aggression, serious injuries other than fractures/dislocations, infections [e.g., sepsis, Methicillin-resistant Staphylococcus aureus (MRSA), etc.], pica behavior, psychiatric hospitalizations, etc. § Many of the risk triggers and thresholds were dependent on harm actually occurring. Some examples included triggers related to self-injurious behaviors or decubitus ulcers. For both, medical attention was part of the trigger definition. As opposed to waiting for harm to occur, precursors should be identified as triggers to try to prevent harm before it occurred. For example, if an individual’s behavior data are showing increasing self-injurious behavior and minor injuries are occurring, this should trigger action to prevent such a significant injury that medical attention is needed. This dependence on significant harm again appears due to the definition included in regulation of serious incidents that providers needed to report to the Commonwealth. Specifically, “serious incident” was defined in the 12 Virginia Administrative Code (VAC) 35-115-30 as: “any incident or injury resulting in bodily damage, harm, or loss that requires medical attention by a licensed physician, doctor of osteopathic medicine, physician assistant, or nurse practitioner while the individual is supervised by or involved in services, such as attempted suicides, medication overdoses, or reactions from medications administered or prescribed by the service [sic].” As a result, other data would not currently be required to be collected. These include behaviors that reflect dangerous conditions or circumstances but which result in minor or no injuries, such as: unauthorized departures that expose an individual without safety awareness to danger (i.e. traffic), individuals choking while eating that requires intervention to resolve (i.e. finger sweep or Heimlich Maneuver), etc. The goal of a risk trigger and threshold system, however, should be to identify events that increase the risk of actual harm, so that steps are taken to attempt to prevent it. In fact, the Settlement Agreement requires the system to address “risk of harm” as well as actual harm. § Of note, the system being developed would only apply to licensed intellectual disability programs/facilities. Based on information members of Project Team #11 provided, entities that would fall outside of the scope of DBHDS’ authority to require use of the triggers and thresholds included, for example, nursing homes and private homes. As indicated elsewhere in this report, most individuals served through the Developmental Disabilities (DD) Waiver
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lived in private homes, and Case Managers were not required to report allegations or incidents.
As noted above, many of the risk triggers and thresholds that had been developed were important ones that should assist the Commonwealth and providers to provide increased attention to areas of potential risk. As discussed briefly above, the expectation was that providers would address each of the triggers for individuals involved. When a threshold was reached, the provider would be expected to conduct a review to determine if action needed to be taken more systemically. Information about actions taken would be provided to Regional Quality Councils. Information also would be provided to the DBHDS Quality Improvement Committee (QIC), and the RCQs and DBHDS QIC would take action as appropriate, to either work with the provider to address issues specific to the provider, or take more systemic action, such as, issuing safety alerts, new protocols or service guidelines, or to modifying department instructions.
The following list provides some additional comments regarding the draft triggers for consideration:
§ Some terms would benefit from definitions. For example, given the various types of restraint, it would help to clarify whether or not the term “restraint” encompasses all types of restraint.
§ It was not clear why hospital-acquired aspiration pneumonia would not be considered a risk trigger. Any aspiration event presents a risk to the individual, and hospital-acquired aspiration pneumonia requires attention to ensure proper staffing was made to the individual while at the hospital, and the individual’s risk and plans to reduce risk were appropriately communicated to the hospital.
§ As discussed during the phone call with members of Project Team #11, the indicators that made reference to changes in percentages in rates of, for example, overall medication errors or fractures should be reviewed. If a provider’s rates already were too high, these indicators would not capture the fact that a risk of harm already existed, and might result in further risk of harm.
§ Some indicators were based on measures included in Individual Support Plans (ISPs). As discussed in further detail on the section related to data to assess and improve quality, if ISPs are not adequate, then data from these indicators could be difficult to interpret and use.
Providers’ Implementation of the System
Based on interviews with members of Project Team #11 and review of documentation, the Commonwealth plans to provide training to providers on the risk triggers and thresholds process in a number of different ways. For example, online training will be developed and be available through the Learning Management System (LMS). This system allows the Commonwealth to track who had completed training, and allows competency-checks or tests to be included as part of the training. In addition, live training will be available in a number of forums, such as upcoming provider association meetings, and in five regional sessions. Even before training was finalized, plans were to present the overall concept at conferences.
According to staff, they planned to place an emphasis on education and showing providers how the system could assist them in doing their jobs and improving outcomes for individuals. However, if
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enforcement is necessary, the Office of Licensing reportedly has the authority to require licensed providers to comply with the requirements for reporting, as and to take action to address risk triggers or thresholds.
In summary, the Commonwealth had made progress in developing risk triggers and thresholds, but significant challenges remain to develop and implement a complete list of risk triggers and thresholds. A narrow list of triggers and thresholds will continue to expose individuals to risk of harm. Without adequate triggers and thresholds, the potential for harm will likely not be caught early enough to prevent actual harm. The Commonwealth should continue to identify and/or develop relevant sources of data to allow expansion of the list of relevant risk triggers and thresholds. In addition, the current “recommended” or internal triggers should be required, and the Commonwealth should identify mechanisms to collect additional data to allow future expansion of the list.
b. Web-based Incident Reporting System and Reporting Protocol (Section V.C.2)
The Commonwealth shall have and implement a real time, web-based incident reporting
 system and reporting protocol. The protocol shall require that any staff of a Training
 Center, CSB, or community provider aware of any suspected or alleged incident of abuse or
 neglect as defined by Virginia Code § 37.2-100 in effect on the effective date of this
 Agreement, serious injury as defined by 12 VAC 35-115-30 in effect on the effective date of
 this Agreement, or deaths directly report such information to the DBHDS Assistant
 Commissioner for Quality Improvement or his or her designee.

The goal of the Consultant’s review was to obtain a status of the web-based incident reporting system that was rolled out on 6/1/13. In addition, an objective of the review was to determine whether incident definitions were sufficient, what processes were in place to ensure provider staff reported directly, and what processes were in place to ensure necessary data were being entered into the system.
Status of Web-Based Incident Reporting System
Based on an interview with members of Project Team #12 as well as review of documentation, the web-based incident reporting system, known as the Computerized Human Rights Information System (CHRIS), was rolled out over a series of months, and on 6/1/13, all Training Centers, CSBs, and licensed Intellectual Disability community providers were required to submit reports of allegations of abuse, neglect, and exploitation, serious injuries, deaths, and complaints of human rights violations through CHRIS. The following process was used to roll out the system:
§ In January 2013, the Training Centers, CSBs, as well as some large community providers participated in training on the web-based system. The State Facilities had been using the CHRIS system internally, but needed training on the web-based component. Additional training was provided to the CSBs and selected community providers. The training took the form of live training, webinars, and online training. Based on minutes from Project Team #12, in late March 2013, these groups began using the web-based system. Based on feedback from the initial rollout, changes were made to the system.
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§ In April and May 2013, extensive training was completed for the remaining community providers. All providers were notified that beginning on 6/1/13, they were to use CHRIS.
Based on a review of the online training and related manual, they were user-friendly, and walked the trainee through the various steps necessary to enter initial information about an allegation or incident into the system, as well as follow-up information. In addition to training, the Commonwealth also had provided technical assistance. Technical assistance could be accessed through the telephone. In addition, the Commonwealth developed Frequently Asked Question guidance, and posted it on the CHRIS website.
Based on discussion with members of Project Team #12, some challenges had presented themselves, but generally, they had been addressed. Reportedly, one of the biggest challenges was related to the necessary security for a web-based system, and specifically, ensuring that all end-users had obtained their log-on identifications and passwords. Each provider agency was required to identify a local administrator, and the administrator needed to define roles for each user. The system then set up log-on information for the users. This process took some time, and reminders had to be sent to ensure the local administrators had entered all end-users in the system. Another challenge was related to the internet browsers various agencies were using, and their interface with the system. As a result, until this recently was fixed, some providers had needed to continue faxing reports to the Commonwealth’s Licensing and/or Human Rights staff.
Naturally, some reports continued to be sent through the fax, even when providers had the ability to send them through the web-based system. To address this issue, each time this occurred, the Commonwealth sent a fax back as well as an email explaining the new system for making reports.
Questions arose about what providers needed to report, and what information needed to be included in the reports. To address these issues, the Commonwealth developed and posted guidance documents on the website. These included:
§ A list was provided of medication errors providers needed to report as alleged neglect and a serious injury (i.e., any medication error resulting in an injury/illness requiring medical attention by a licensed physician, doctor of osteopathic medicine, physician’s assistant, or nurse practitioner), as well as medication errors that providers needed to report as alleged neglect (i.e., any medication error involving the wrong dose, wrong individual, or wrong medication; and any medication error where multiple doses were missed, or discontinued medications continued to be administered).
§ Guidance was offered related to the types of injuries considered “serious injuries.” The criterion for reporting was any injury resulting in bodily damage, harm, or loss that required medical attention from a licensed physician, doctor of osteopathic medicine, physician’s assistant, or nurse practitioner. The list of examples, however, was somewhat confusing, because some of the items listed were serious illnesses as opposed to serious injuries (e.g., aspiration pneumonia, constipation/bowel obstruction, decubitus ulcer, and seizure/convulsion). There is no question that providers should be required to report these to the Commonwealth. However, it was not clear whether other serious illnesses also should be reported to the Commonwealth, and if so, which ones (i.e., any other illness that results in unexpected medical intervention, particularly emergency room visits or hospitalizations).
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§ Providers also had questions about whether names of staff involved in allegations, serious injuries, and deaths legally could be included in CHRIS. The Commonwealth issued guidance, dated 1/5/13, explaining the statutory and regulatory basis allowing the Commonwealth to require providers to include staff’s names. According to the guidance: “The Department is asking that the names of employees found to have abused or neglected an individual be included in the CHRIS data base. The Department is also asking for the names of employees involved in any reported death or serious injury. The specific personnel action taken is not a required field at this time, so a provider may choose not to complete that information when reporting in CHRIS.” As the guidance indicated: “The DBHDS does not have any authority to take action against a provider's individual employees. It asks for this information, however, so that it can monitor any potential trends and make sure any problems are remedied. If, for instance, the DBHDS noticed that a particular employee of a provider was involved in multiple incidents, we may ask the provider to give us an explanation of what is being done to address this.” From an incident management perspective, it was positive that the Commonwealth was asking for provision of this important information for exactly the reasons stated.
Processes to Ensure Entry of Necessary Data
According to members of Project Team #12, as of 9/1/13, faxes were no longer being accepted as a reporting mechanism. Therefore, it was anticipated that full reporting would occur through CHRIS. The Team estimated that by January 2014, the data regarding frequency and types of incidents would be fairly usable/valid. A few different methodologies were being used to estimate if full reporting was in fact occurring, including:
§ Within the last three months, Office of Licensing staff compared numbers of reports for similar time periods prior to CHRIS becoming operational (i.e., previous numbers of faxes) to current reporting. This required a hand-count to be completed of previous reports. According to the Associate Director of Licensing, these counts were similar.
§ For certain categories of incidents, the system automatically generated a notification to the assigned Licensing Specialist. Licensing Specialists were assigned regionally, and then by provider. Some larger providers that operated programs in different regions were assigned more than one Licensing Specialist. Currently, the Associate Director of Licensing and a staff member from Human Rights were reviewing each entry into the system daily to ensure that allegations and incidents were being directed to the appropriate Commonwealth staff. According to the Associate Director of Licensing, as part of regulatory reviews, if Licensing Specialists identified any incidents that were not reported through CHRIS, they noted the oversight, and reminded the provider of the need to make a report. At this point in the evolution of the web-based system, the Licensing Specialists did not cite the provider, but as the system evolved, the members of the group indicated a citation would be a possible outcome of a failure to report. At this juncture, it was too early to determine if this enforcement mechanism was used and/or effective.
§ Similarly, for certain categories of incidents, the system generated a notification to Human Rights Advocates. They also were assigned regionally. The Human Rights Advocates also were looking to determine if any incidents or allegations of which they were aware were missing from the system.
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§ Ongoing training on the requirements for reporting through the web-based system also was reportedly occurring. The focus was on encouraging providers to report, and educating providers about the benefits of reporting from a quality improvement (QI) perspective.
§ The Commonwealth required all providers with knowledge of an allegation or incident to report it through CHRIS. Sometimes this resulted in multiple reports being submitted for the same allegation or incident. For example, when different day/vocational and residential providers supported an individual, then often, the day/vocational provider, the residential provider, and the Support Coordinator/Case Manager all reported the same incident. Efforts were underway to ensure that duplicate counts of the incidents did not occur, but for now, duplicate reporting was viewed as a better result than underreporting.
§ Providers also were required to report certain allegations and incidents to local Human Rights Committees. Going forward, this also was expected to be used as a check to ensure that the list of reports matched with what was submitted through CHRIS.
Undoubtedly, an ongoing challenge in any incident management system is determining whether or not full reporting is occurring. However, if the mechanisms described above are fully implemented, then a reasonable system of checks and balances would seem to be in place for individuals in Training Centers, and those supported by CSBs and private providers. Due to the fact that the system was in the initial phases of implementation, this review did not include the effectiveness of these checks and balances. An additional recommendation is that, Training Centers, CSBs, and community providers also should be expected to implement mechanisms through their quality improvement programs to identify incidents or allegations that should have been reported, but were not, and to report them promptly if/when they are identified.
Based on an interview with the DMAS Program Manager for the DD Waiver, mechanisms were not yet in place to ensure that reports were made for the approximately 890 individuals supported through the DD Waiver. These individuals had case managers. There were approximately 90 case managers working for 37 different agencies. The individuals on the DD Waiver lived in their own homes, with family, or with friends. They did not live in licensed facilities or homes, and so did not have to conform to the regulations. This seems to be a serious gap and an area of noncompliance. The Program Manager explained that sometimes case managers would inform DMAS when they called Child Protective Services or Adult Protective Services to report an allegation of abuse, neglect, and exploitation, but they were not required to do so. The Program Manager indicated that some discussion about alternatives had occurred with the Project Teams, such as the use of an email form that case managers could complete that would be connected to an Access database. However, this issue had not yet been resolved.
Based on discussion with members of Project Team #12, they recognized that one of the next challenges is to address some of the quality issues related to the entry of information about allegations and incidents. In other words, although it appeared Training Centers, CSBs, and private providers were reporting allegations and incidents, the information about each allegation or incident and the related follow-up was not necessarily complete and thorough.
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Processes to Ensure Provider Staff Reported Directly
An area that will need to be addressed moving forward related to the Settlement Agreement requirement that staff that become aware of allegations of abuse or neglect, serious injuries, or deaths “directly report” them. Based on information gained through interview, each Training Center, CSB, and community provider agency was responsible to identify the staff that would enter information into CHRIS, and not all staff was provided access to the system. As a result, many providers had had to modify their business practices in terms of collecting and reporting information. It was not currently known if all of them had developed processes that would result in staff with the most direct knowledge of the incident submitting an internal report that was then entered into CHRIS. As one example, some larger community providers had internal databases and corresponding processes for staff to enter incident and allegation information. However, there currently was no mechanism for the CHRIS system to interface with these systems. As a result, for these providers, information entered into the provider system had to be extracted and re-entered into CHRIS. As members of Project Team #12 candidly reported, at this time, the staff entering information into CHRIS was not necessarily the staff with the most direct knowledge of the incident or allegation.
Use of CHRIS Data
In terms of reports, each provider agency currently was able to run certain canned reports for the data they had entered (i.e., for their provider agency). At DBHDS, certain staff had access to statewide data. The DBHDS Data Analyst was able to extract data from the CHRIS system, and create charts and graphs showing different aspects of the data. The Commonwealth shared some of these reports with the Consultant. For example, for abuse allegations for the second quarter, data was displayed according to the numbers of reports for each type of abuse (e.g., physical, verbal, sexual), neglect, and exploitation for the CSB Regions, and the numbers and percentages of reports resulting in substantiated findings of abuse, neglect, and exploitation. Further breakdown was available by each CSB. Other charts and graphs showed this same data for the State Facilities, as well as private providers. The data also could be run according to the Waiver through which the individuals were funded. However, as noted above, there currently was no reporting for the DD waiver.
Although the system was at the beginning stages of developing and running the reports, the ability to begin generating these reports was an important step forward. Based on discussion with members of Project Team #12, previously the DBHDS staff entered the information contained in the faxes providers sent into databases that each region maintained. However, there was not one statewide system. As CHRIS is implemented fully, it should provide important data that various groups can use as part of the overall quality improvement efforts.
Project Team #12’s goals were that by January 2014, it would know which reports the various committees/groups needed, and it would be able to develop and begin generating such reports. For example, Regional Quality Councils and the DBHDS Quality Council would require different reports to complete their work. Once it was determined which reports were needed, reports could be built to meet their different needs.
Of note, as mentioned briefly above, CHRIS included a process for Licensing Specialists and Human Rights Advocates to review allegations, incidents, and complaints, as well as the follow-up actions
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providers had taken in response. This process was not a subject of this review, but whether and how well it was working should be reviewed during future reviews of CHRIS.
In summary, the Commonwealth had made significant progress in operationalizing a web-based incident reporting system. However, a number of issues should be addressed as the Commonwealth continues its efforts to address the requirements of the Settlement Agreement. The following recommendations are offered:
§ Further guidance should be provided to better define the types of serious illnesses the Commonwealth considers to fall under the category of serious injury.
§ Through their quality improvement systems, Training Centers, CSBs, and community providers should be expected to implement mechanisms to identify incidents or allegations that should have been reported, but were not, and to report them promptly if/when they are identified.
§ The Commonwealth should work with Training Centers, CSBs, and provider agencies to develop mechanisms to ensure that information entered into CHRIS reflects the information that the staff that became aware of allegations of abuse or neglect, serious injuries, or deaths “directly reported.”
§ Efforts are needed to ensure all allegations of abuse, neglect, and exploitation, serious injuries, and deaths are reported, including for individuals in the DD Waiver system.
On a final note, the Settlement Agreement only requires the web-based system to include reports of abuse, neglect, and exploitation, serious injuries, and deaths as defined in the Commonwealth’s regulations. However, as noted elsewhere in this report, the limitations in regulations on what providers are required to report significantly impacted the types of events about which the Commonwealth was made aware, and stymied a more proactive approach to incident management. Some of the other categories of incidents that it would be reasonable to expect providers to report include, but are not limited to: contact with law enforcement or emergency personnel, unexpected hospitalizations, peer-to-peer aggression regardless of level of injury, community incidents that have had or have the potential to negatively impact the individual or provider, unplanned evacuations, infections reportable to the Department of Public Health, missing persons, and theft of individuals’ funds or property.
c. Investigation of Allegations and Critical Incidents (Section V.C.3)
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services (“DBHDS Human Rights Regulations” (12 VAC 35-11550(D)(3)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations.
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The goal of the Consultant’s review related to investigations of allegations and critical incidents was to provide initial assessment of the draft uniform investigations training and root cause analysis training, and determine expectations of how this would modify current processes for investigations at state-level and provider-level. Project Team #11 had been assigned to work on these Settlement Agreement requirements.
Based on a meeting with members of Project Team #11 and review of draft documents, progress had been made in developing standardized training that will be offered to community providers. Specifically, the Commonwealth provided drafts of training entitled: “DBHDS Investigation Process,” and “Root Cause Analysis: A Brief Overview of the Analysis Process.” During the meeting, staff explained that the Training Centers implemented a two-day investigation curriculum, and staff that successfully completed the training was certified as investigators. The Commonwealth’s Human Rights Advocates also attended this training. The DBHDS Abuse Neglect Investigations Manager, who oversees investigations at the Training Centers, was a member of Project Team #11. Her experience and the training available to the Training Centers were used as resources in developing the training module for the community system.
Currently, regulations require community providers to have “trained investigators,” but no standards for training or the investigation process existed in the community system. Based on information provided during the interview, the training offered and the quality of investigations community providers conducted varied from provider to provider, as did community providers’ resources for training. Commonwealth staff indicated that regulations did not require providers to use a specific training or meet specific quality standards, but the Commonwealth was developing the online training module on the investigation process and root cause analysis as an option for providers with the goal of assisting to standardize the process used for investigations.
With regard to the quality of the training, the draft PowerPoint presentation entitled “DBHDS Investigation Process” covered a number of important components of investigations and was well organized. For each of the following topics, for example, it included a number of details relevant to the investigations process: 1) recognizing events that require investigation; 2) collecting basic information about the incident/allegation; 3) taking immediate action to protect the individual(s) involved, taking necessary personnel action, preserving evidence, and making necessary notifications; 4) developing an investigation plan; 5) conducting the investigation; 6) summarizing and reporting findings; and 7) identifying and implementing corrective actions.
The draft training slides also referenced other resources that trainees eventually will be able to access through hyper-links. Based on interview with Project Team #11 members, these resources were in the process of being collected and/or developed, and the Team was working on embedding the links into the training. The additional resources included: 1) a methodology to “connect” the information gained through the investigation (i.e., it was assumed that this meant a process for analyzing/reconciling various evidence); and 2) an Interview Guide.
While recognizing that the training slides were in draft format, the following observations and suggestions are made:
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§ The draft provided a good outline of the investigation process. As noted above, it was well organized and provided relevant information. The following areas, however, required further information or explanation: o Expectations for coordinating investigations with other investigatory agencies (e.g., when a crime is suspected, coordinating investigation activities with law enforcement to preserve the integrity of their investigation); o Additional considerations that should be made when developing an investigation plan (e.g., timeliness of interviews, particularly with eye witnesses and individuals with intellectual disabilities; need to review relevant documents as background information, etc.); o Additional types of witnesses [e.g., subject-matter experts, or witnesses that can provide background information about the individual(s) involved]; o Additional information about techniques for preserving evidence (e.g., separating witnesses; more information about what to photograph, such as scenes, injuries, etc.; securing documentation quickly to prevent changes and methods for authenticating documents; creating diagrams; techniques for documenting witness testimony, such as having the witness write a statement, the investigator documenting the interview and having the witness sign a statement, etc.; requirements for securing physical evidence, such as bagging and labeling it; maintaining evidence in a locked area; etc.); o Interview techniques (e.g., not leading the witness, use of a chronology of events format, considerations when interviewing individuals with intellectual/developmental disabilities, etc.); o Methodologies for reconstructing the scene and related documentation (e.g., acting out portions of the scenario, taking measurements, taking pictures, creating diagrams, etc.); o Definition of the preponderance of the evidence standard included in regulations; o Additional information about weighing or reconciling evidence (e.g., considerations in weighing conflicting testimonial evidence), and providing the necessary basis for the findings in the written report; o Definitions for the various findings listed (e.g., unsubstantiated, substantiated, and inconclusive); o Potential processes for making recommendations for corrective action (e.g., responsibility of the investigator, the investigator’s supervisor, or a trained group, such as an incident review committee or human rights committee); and o Discussion of potential personnel actions before, during, and after an investigation (e.g., expectation that alleged perpetrators will be removed from all direct contact pending the results of the investigation).
§ The members of Project Team #11 indicated that the intent was to have guidelines, as well as a manual to compliment the online training course. In finalizing these, the couple resources mentioned above were important ones. Other portions of the investigation process for which resources or further delineation in the training itself should be provided include, but are not limited to: standards/techniques for preserving various types of evidence (i.e., physical, documentary, and testimonial); a template for an investigation plan; a template for a confidentiality statement for use with witnesses; and a template for an investigation report.
§ Typically, training on investigation techniques involves a classroom component. As the DBHDS Abuse Neglect Investigations Manager indicated, the Training Centers investigation training consisted of two-days of classroom training, including interactive pieces, such as role-
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plays. Although the training module being developed was not yet complete, it was unclear whether or not it would sufficiently address the need for trainees to practice some of the more complex skills necessary in conducting investigations, such as conducting unbiased interviews, dealing with difficult witnesses, etc. § The training was not competency-based, but the members of Project Team #11 indicated their intent to develop a competency-based component. For example, the members of the team indicated that a pop-up test could be included at different points during the training, or a video could be embedded into the training to which trainees would need to respond to questions. Given that conducting thorough investigations requires a specific set of skills, it will be important for “trained investigators” to demonstrate their competency, and building a competency-based component into this basic training would be a good place to start.
With regard to the Draft Root Cause Analysis training, it presented the process in an easy-tounderstand and thorough manner. The draft training included, for example, a description of the role of a root cause analysis, guidelines for when one should be completed, the composition and roles of a root cause analysis team, a description of what the review should include, the process for analysis and development of causal statements, and identification of actions to prevent recurrence. The area of the training that would benefit from additional information was the final part related to developing corrective actions. Frequently, developing a corrective action plan is a difficult concept for staff to understand. It will help to provide some parameters related to such plans, including measurable action steps, identification of timeframes for completion, and persons responsible, as well as identification of the outcomes or specific changes against which success of the action plan will be measured. Members of Project Team #11 indicated that work was being done to simplify the slides included in the draft. Similar to the Investigations Process training, additional resources were being developed to supplement the online training.
In terms of the use of the Investigations Process and Root Cause Analysis training, as noted above, the members of Project Team #11 with whom the Consultant met explained that this training will be offered to providers, but will not be mandatory training. They referenced the regulations cited in the Settlement Agreement that require providers to conduct investigations of abuse and neglect allegations, and explained that there were no specific training requirements for investigators. Based on discussions with the group, it was expected that eventually, community providers will be required to have investigators trained using the DBHDS Investigations Process training, or some equivalent. At the time of the review, however, this training was not finalized, and “equivalent training” had not been defined.
Based on the Consultant’s review of the regulations, Chapter 115 was entitled “Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded, or Operated by the Department of Behavioral Health and Developmental Services,” and had fairly broad reach for many provider types (e.g., Waiver-funded providers, all licensed providers, CSBs, and Training Centers). Within these regulations, 12 VAC 35-115-50(D)(3) sets forth the requirements for providers to have policies and procedures for their staff and others (e.g., volunteers and consultants) to report abuse, neglect, and exploitation immediately to the director or designee, and for providers to investigate such allegations using “a person trained to do investigations and who is not involved in the issues under investigation.” This section of the regulations provided other specific requirements related to, for example, actions to be taken immediately to protect the individual, the timeliness of investigations,
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notification of the individual and/or guardian of the results, appeal processes, cooperation with other investigations, and actions to remediate problems investigations uncover. The regulations, however, defined neither the specific training that investigators were to complete, nor the content or quality of the investigations beyond indicating that the preponderance of the evidence standard should be used, unless otherwise provided for by law.
The Settlement Agreement also references Chapter 105, “Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services.” It defined “providers” and the licensing process. The specific sections of these regulations the Settlement Agreement references in relation to investigations are 12 VAC 35-105-160 and 12 VAC 35-105-170. They require providers to cooperate with DBHDS Licensing reviews, including investigations of complaints. In addition, amongst the requirements contained in 12 VAC 35-105-160 is the requirement for providers to collect certain information and report allegations of abuse and neglect, deaths, serious injuries, and seclusion or restraint that did not conform with human rights regulations or resulted in injury. Section 12 VAC 35-105-170 spells out the process related to corrective action plans required as a result of any licensing citations. Based on review of these regulations, they did not specify any requirements for providers to train investigators or conduct internal formal investigations.
Although not the specific focus of this initial review, the following were areas that were briefly reviewed, but require further inquiry:
§ With regard to ensuring the quality of investigations, the roles of Licensing Specialists and Human Rights Advocates in reviewing provider investigations was discussed briefly. Within the CHRIS system, Licensing Specialists and Human Rights Advocates each have roles to review provider follow-up for certain types of incidents, including investigation reports and remedial measures taken. Based on interviews with members of Project Team #11 as well as Project Team #12, in order to close out an incident, Commonwealth staff needs to review the information the community provider had entered into the system. For abuse, neglect, and exploitation allegations, providers were required to complete investigations, and, at a minimum, Human Rights Advocates reviewed the providers’ investigations. As part of licensing reviews, the quality of investigations also reportedly could be reviewed. Their review of investigations was not included as part of this review, so the nature of such reviews cannot be addressed, but should be as part of future reviews. Team members reported that no specific guidelines were being used to evaluate providers’ investigations. If further action was needed, different options were available, depending on the issue. For example, requests could be made of the community provider for further information or action; the Human Rights Advocates, Licensing Specialists, or both could conduct further review; or referrals could be made to other State agencies (e.g., health services licensing boards, Adult Protective Services, etc.). Staff explained that, depending on the seriousness of the alleged incident, Licensing Specialists and/or Human Rights Advocates might initiate investigations either before the community provider agency completed and submitted their investigation or after reviewing the provider’s investigation report. Because the Licensing Specialists were able to issue citations and Human Rights Advocates did not have this authority, they sometimes jointly conducted investigations. Any citations were directly related to the regulations, and the provider agencies were cited. In other words, the investigations or reviews revolved around whether or not a regulation had been violated, as opposed to whether or not abuse, neglect, or
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exploitation was confirmed against a particular staff member(s). During this Consultant’s review, a sample of community provider investigations and the Commonwealth’s review of them was not selected and reviewed. As a result, the thoroughness and effectiveness of this process could not be determined. § The Settlement Agreement requires investigation of “reports of suspected or alleged abuse, neglect, critical incidents, or deaths.” Although the Human Rights regulations required providers to investigate allegations of abuse, neglect, and exploitation, they did not require them to investigate “critical incidents” or deaths. It was not yet clear how the Commonwealth would ensure the conduct of these additional investigations. § In addition, in order for “remediation steps” to be taken to address confirmations of abuse, neglect, and exploitation, mechanisms need to be in place to ensure that provider agencies take appropriate action with confirmed perpetrators up to and including termination from employment. Although not reviewed in detail during this review, it appeared that the CHRIS system provided a mechanism for community providers to enter disciplinary action, but this was currently optional for providers. However, a system also is needed to ensure that other community providers do not hire staff confirmed to have perpetrated abuse, neglect, and exploitation. Based on interviews with members of Project Team #11 as well as Project Team #12, it did not appear that the necessary system was in place. For example, some other states use registries to track such confirmations, and provider agencies are required to check the names of potential and current staff against the registry, but the Commonwealth only had such a system through its Department of Social Services Child Protective Services. This system had a central registry for people determined to have abused or neglected a child, but no equivalent was available for vulnerable adults. In fact, staff reported that when Adult Protective Services or DBHDS substantiated abuse, neglect, and exploitation, this information could not be shared with other providers. This was confirmed in the guidance, dated 1/5/13, related to the inclusion of staff’s names in CHRIS. As a result, there did not appear to be a process to prevent staff confirmed to have committed abuse, neglect, or exploitation with vulnerable adults from moving from one provider to another.
In summary, it was positive that the Commonwealth was developing training to address the investigation process. However, a number of issues should be addressed. The following recommendations are offered:
§ As the DBHDS Investigations Process training and related guidelines and manual are finalized, consideration should be given to addressing the areas identified above in which it is recommended additional information be provided.
§ Further training should be included in one or both training modules, or a separate training developed related to the development of corrective action plans, and assessment of their effectiveness.
§ For both the Investigations Process training and the Root Cause Analysis training, consideration should be given to offering classroom training, as well as online training, and/or including the equivalent of experiential-based learning, such as role-plays and discussion in the online training.
§ The current draft of the Investigations Process training module did not have a competencybased component, but DBHDS staff indicated their intent to build some competency-based components into the final training. Given the specific skills required to conduct thorough
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investigations and write reports that include strong bases for the findings, the final training should include specific competency-based components. These should include, but not be limited to competencies with regard to the development of an investigation plan, securing evidence, conducting interviews, interviewing individuals with intellectual disabilities, reconciliation of evidence, and investigation report writing. § It will be important to define what constitutes a “trained investigator.” If training other than the Commonwealth-developed training will be acceptable, the requirements for such training should be defined. § The Commonwealth should develop standards for adequate investigations and investigation reports for use by Licensing Specialists and Human Rights Advocates. § If not already in place, the Commonwealth should require the investigation of critical
 incidents and deaths.
 § If not already in place, a system should be developed and implemented to ensure that
 community providers do not hire staff confirmed to have perpetrated abuse, neglect, and
 exploitation.

d. Data to Assess and Improve Quality (Section V.D)
1. The Commonwealth’s HCBS [Home and Community-Based Services] waivers shall operate in accordance with the Commonwealth’s CMS [Centers for Medicare and Medicaid Services]-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers; identification, response and prevention of occurrences of abuse, neglect and exploitation; administrative oversight of all waiver functions including contracting; and financial accountability. Review of data shall occur at the local and state levels by the CBSs and DBHDS/DMAS, respectively.
3. The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area:
i. Safety and freedom from harm (e.g., neglect and abuse, injuries, use of seclusion or restraints, deaths, effectiveness of corrective actions, licensing violations);
j. Physical, mental, and behavioral health and well being (e.g., access to medial care (including preventative care), timeliness and adequacy of interventions (particularly in response to changes in status));
k. Avoiding crises (e.g., use of crisis services, admissions to emergency rooms or hospitals, admissions to Training Centers or other congregate settings, contact with criminal justice system);
l. Stability (e.g., maintenance of chosen living arrangement, change in providers,
 work/other day program stability);

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m. Choice and self-determination (e.g., service plans developed through personcentered planning process, choice of services and providers, individualized goals, self-direction of services);
n. Community inclusion (e.g., community activities, integrated work opportunities, integrated living options, educational opportunities, relationships with non-paid individuals);
o. Access to services (e.g., waitlists, outreach efforts, identified barriers, service gaps and delays, adaptive equipment, transportation, availability of services geographically, cultural and linguistic competency); and
p. Provider capacity (e.g., caseloads, training, staff turnover, provider competency).
5. The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.
c. The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
d. Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
6. At least annually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in this Agreement) and quality of supports and services in the community and gaps in services, and shall make recommendations for improvements.
The goal of the Consultant’s review was to obtain updates on the following:
§ The Commonwealth indicated that it was in the planning phase to identify the data that will be collected for the eight domains (i.e., as listed in Section V.D.3, a through h), including identifying which entities will collect which data. Therefore, the review revolved around identifying a fuller description of the current status to provide a baseline from which to conduct future reviews.
§ The connection between these efforts and the Commonwealth’s CMS-approved waiver quality improvement plan also was to be explored (i.e., Section V.D.1).
§ In addition, a status report was to be obtained on the Regional Quality Review Councils (i.e., Section V.D.5).
§ A status was to be obtained on the Commonwealth’s ability to publicly report on the availability of services (including the number of people served in each type of service) (i.e., Section V.D.6).
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Identification of Data for Eight Domains
The Commonwealth provided a draft document entitled “DBHDS DOJ Settlement Agreement Domains,” dated 7/31/13. This document listed each of the eight domains, and for each of the eight domains one or more “measure” with corresponding sources of data. Based on review of the meeting minutes for Project Team #8 as well as discussions with members of the Team, the data included on the list was a combination of data that other Project Teams had identified (e.g., CHRIS data, and Quality Service Review data), as well as other data that Project Team #8 had identified as necessary. As discussed in further detail below, this list represented a good start, but further definition of the measures, as well as expansion of the measures was needed.
The Commonwealth also submitted a data dashboard that summarized a number of measures being collected across the DBHDS system (i.e., some of these related to mental health and substance abuse services). Two indicators related to the provision of Developmental Case Management Services. The data definition page showed: the measure, the definition, the entity responsible for reporting the data, the frequency of review, and the data source. Specifically, the definitions for the measures related to Developmental Case Management Services included: 1) the percent of individuals enrolled in Medicaid receiving developmental case management services (denominator) who received at least one face-to-face contact per month (numerator); and 2) the percent of individuals enrolled in Medicaid receiving developmental case management services who received at least one face-to-face contact per month (denominator), and who received one of those contacts every other month in their residence (numerator). The dashboard showed the denominator, numerator, percentage, previous score, percent increase or decrease, and the target. The graphs included with the dashboard were colorcoded to allow quick identification of the indicators that had met or exceeded the target (green), were approaching the target (yellow), or were significantly below the target (red). Breakdowns of the data were then provided for each CSB to show their specific scores in comparison with the target. This was a helpful presentation of the data. Based on the interview with members of Project Team #8, this dashboard will likely expand to include additional case management/support coordination indicators.
During discussions with members of Project Team #8, they shared a number of the challenges to developing a data-based system to measure quality across the Commonwealth. They indicated that their priorities thus far were to ensure that specific deadlines within the Settlement Agreement were met, as well as to start building the system with data that was available. The members of Project Team #8 indicated that more work was needed to expand these efforts, but this will require careful planning, and likely an expansion of resources.
Recognizing that the drafts submitted were works in progress and that the Commonwealth appeared to agree that more work was needed, the following summarizes the discussion with members of Project Team #8, and the Consultant’s review of documents. It also offers comments for consideration as the Commonwealth moves forward to finalize the list of data to assess and improve quality:
§ Although the list of data included in the document entitled: “DOJ Settlement Agreement Domains,” dated 7/31/13, included some important information, it did not yet represent a full listing of data to assess and improve quality. During discussions with members of Project Team #8 and members of other Project Teams, when asked about how data was selected for
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review, reference was made to identification of data that providers already were required to collect through regulation or contractual requirements, data that already was being collected through current processes (e.g., licensing and support coordination), and data specifically referenced in the Settlement Agreement (e.g., data given as examples with regard to the eight domains). One of the challenges that members of Project Team #8 identified was expanding the sources of available data. The three major receptacles of data that existed were: 1) Support Coordination data at the 40 CSBs, including the electronic health records (EHRs); 2) CHRIS data; and 3) Licensing data. However, outside of these sources, the Project Teams found it difficult to identify sources of data, particularly ones that were reliable and valid. For example, private providers varied in their ability to collect usable data. An example of a specific area in which the Project Team #8 recognized data was difficult to collect related to employment. For employment, it appeared no specific requirements to collect data existed, and current processes (e.g., Support Coordination) only collected certain basic pieces of information. However, the Quality Improvement Committee recently had a national expert on employment come to speak and share methods that other states were using to collect such data. As housing options expanded, this was another area the group identified data sources will need to be identified and measures developed. Based on the Consultant’s discussion with the DMAS Program Manager for the Developmental Disabilities Waiver, few formal data collection processes were in place for individuals receiving supports through the DD Waiver.
The following provide examples of areas in which expansion of the measures were needed: 1) for the “Safety and Freedom from Harm” section, five measures were included, including: neglect and abuse reports, injuries, deaths, use of seclusion or restraints, and licensing violations. However, examples of protection from harm indicators that were not included are: unexpected hospitalizations, elopements/missing persons, law enforcement contacts/arrests, etc.; and 2) the only indicators in the section on “Provider Capacity” addressed CSB case manager caseloads and staff turnover, but capacity indicators such as training or competencies to provide services were not included. Part of what should be considered in expanding the scope of what is measured is for quality improvement efforts to be designed from a proactive rather than a reactive approach. For example, in looking at “Safety and Freedom from Harm” and “Avoiding Crises” all of the indicators appeared to be negative outcomes or reactive. As further development of indicators occurs, consideration should be given to including proactive measures. Example might include the percentages of individuals for whom behavior supports are effective at reducing the number of target behaviors or increasing the use of replacement behaviors.
As noted above, members of Project Team #8 viewed the development of indicators as an ongoing process. For example, in addition to the DOJ Settlement Agreement Domain document, the Commonwealth submitted a document outlining licensing data collection and reporting ideas. This document identified additional measures that potentially could be pulled from the data generated through licensing reviews. The Commonwealth should continue to identify and/or develop relevant sources of data, and expand the measures to assess and improve quality.
§ It will be important to measure the quality of services and supports as opposed to just their presence or absence. As noted above, due to the lack of definitions, it was not always clear what would be measured, for example, in indicators such as “Access to Medical Care,” and “Use of Crisis Services.”
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§ In addition, some of the indicators in the draft relied on individuals’ ISPs as the basis for measuring whether or not individuals were receiving required supports, such as: “Extent to which health outcomes in ISP have been met – 3 point scale at quarterly case management ISP review.” However, based on discussions with members of Project Team #8, the quality of ISPs varied greatly. If the ISP documents did not adequately describe individuals’ needs or skills, then a measurement based on whether the ISP outcomes were being met would not produce valid data. No process/output indicators were included in the draft to address the quality of the ISPs.
§ Unlike the Dashboard the Commonwealth provided, the Commonwealth’s “DOJ Settlement Agreement Domains” document did not include a definitions section. The definition section on the Dashboard for the case management indicators identified specifically what would be measured and the formula that would be used (i.e., numerator and denominator). Due to the lack of definitions on the Domains document, it was often difficult to determine what the Commonwealth intended to measure and whether or not the items on the list adequately captured what should be measured. Examples of this included: 1) under “Physical, mental and behavioral health and well being,” two of the indicators read: “Access to Medical Care (Medication)” and “Access to Medical Care (Doctors Visits),” but without further definition, it was not clear specifically what would be measured; and 2) one of the indicators under the “Avoid Crises” section read: “Use of Crises Services” and the source of the data was START data, but without further definition, it was not clear specifically what this would measure or what breakdown of data would be used/provided. It will be important moving forward to provide definitions of what will be measured.
§ The draft contained a source of data (i.e., where the data were maintained). For many of the indicators, however, it will be important to detail the methodology to collect the data, and to ensure data are collected the same way each time. For example, as noted above, a number of indicators relied on Case Managers/Support Coordinators to conduct reviews to determine if outcomes included in the ISP had been met. As an example, based on review of the Community Consumer Submission 3 (CCS 3) Extract Specification document, case managers were to assess the measure that read: “Extent to which health outcomes in ISP have been met – 3 point scale at quarterly case management ISP review” by using the following methodology: identify “the extent to which desired physical, mental, or behavioral health outcomes in the individual’s ISP have been met as determined by the individual, authorized representative if the individual cannot determine this, and case manager during the quarterly case management ISP review; collected and reported quarterly only for individuals receiving developmental services under the DOJ Settlement Agreement.” A six-point scale was then provided, including the following options: Measure met – most goals were met; Measure partially met – some goals were met; Measure not met – no goals were met; Not applicable – use for all other individuals receiving services; Unknown – asked but not answered; and Not collected – not asked. Although this set forth a methodology, the methodology raised many questions about the reliability and validity of the data that would be collected. For example, use of terms such as “some” and “most” could result in unreliable scoring between various reviewers. Similarly, asking a question of an individual or his/her representative about the provision of a service is an important perspective, but is somewhat subjective. In addition, no specific methodology was outlined for the case manager’s review (e.g., review of specific records), or the standards that they would use to judge conformance with the indicator. The 8/21/13 minutes of the
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Quality Improvement Committee indicated, however, that: “The Project 9 team will be developing guidance for case managers to help them collect this data consistently.” § As noted above, limited data were available for individuals enrolled in the DMAS DD Waiver. However, some efforts were underway to educate the DD Case Managers about the requirements of the Settlement Agreement and the Commonwealth’s efforts to collect needed data. On 9/10/13, an IFDDS Waiver Case Managers’ Meeting was held. Amongst other topics, members of the various Project Teams presented information on: Settlement Agreement Case Management Guidelines and Case Management Data; Independent Housing, and Case Management Expectations; Employment, and Case Management Expectations; and Quality Service Reviews.
Members of Project Team #8 indicated that the focus over the next six to 12 months would be to expand the review and analysis of the data collected. Based on review of the DBHDS Quality Improvement Committee minutes for the months of January through July 2013, some discussions were occurring regarding the data, and, in some instances, some actions to address trends were beginning to be identified and implemented. For example, data were being shared with regard to founded/substantiated abuse and neglect allegations, although in-depth analyses had not yet been presented. With regard to mortality reviews, some analysis had occurred of data generated from these reviews as well as serious injury data. As a result of the QI Committee’s discussions about the findings from these analyses, Safety Alerts had been issued to address choking, aspiration, and constipation; psychotropic medication; and when to access medical care. This was an example of good use of data that had resulted in efforts to improve supports provided to individuals.
One future challenge that members of Project Team #8 shared was ensuring that as quality issues were identified, DBHDS had the resources to assist providers. In addition to two QI Specialists (i.e., at the time of the review, one of the two had been hired), other Commonwealth staff working with providers included the Licensing Specialists, and Community Resource Consultants. One activity on which members of Project Team #8 were working was to better define the roles of these various staff, particularly with regard to the provision of the education and technical assistance that likely would be necessary as data analyses began to identify areas in need of improvement. This proactive approach should be helpful as quality improvement initiatives expand, and QI staffing resources should continue to be assessed.
In summary, the Commonwealth had made progress in initiating the identification of data to assess and improve quality. However a number of challenges still need to be overcome. The following is a summary of the recommendations related to these efforts:
§ The Commonwealth should continue to identify and/or develop relevant sources of data. § For each of the indicators identified for the DOJ Settlement Agreement Domains, in addition
to identifying the data source, definitions and methodologies should be developed; as appropriate, baselines or benchmarks should be identified; and targets or goals should be set. § At a minimum and as appropriate to the particular indicator, the methodology section should include the following: 1) how the data will be collected (e.g., through a monitoring tool, through review of records, through a database, through review of the implementation of individuals’ ISPs, etc.); 2) how often and when (e.g., end of month, within first five days of month for preceding month, etc.) the data will be pulled; 3) what the schedule is for assessing
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data reliability and validity, and who will be responsible for this; 4) what subpopulation or percentage of the population will be included in the sample (e.g., 100% or some lesser, but valid sample); 5) the standards that will be applied to judge conformance with the measure; 6) who will be responsible for collecting and/or reporting the data; 7) clear formulas for calculating the indicator/measure, including for example how the “N” and “n” will be determined, and what mathematical or statistical procedures will be used (i.e., this might be included in the definition discussed above); and 8) who will be responsible for analyzing the data.
CMS-approved Waiver Quality Improvement Plan
Based on discussions with members of Project Team #8, in developing data to assess and improve quality, the Commonwealth was not relying on its CMS-approved plan. As described above, efforts were being made to identify data independent of the CMS requirements.
The Assistant Commissioner of Quality Management and Development indicated that an overall Quality Improvement Plan was in development. It will be important in this plan to define the various components of the quality improvement system, and their relationships to one another. This will be an appropriate document in which to describe the relationship between the quality improvement efforts described in the CMS-approved Waiver(s), and those designed to address the requirements of the Settlement Agreement.
Regional Quality Councils
Based on the interview with members of Project Team #8, as of the last week of September, all five Regional Quality Councils (RQCs) had had initial meetings. Three of these had occurred in August, and two in September. Some work was still being done to ensure broad membership on the RQCs. Reportedly, there had been significant interest in becoming a member of the RQCs. Some of the RQCs had individual or family members. All of them had private provider and CSB representation, including some members with quality improvement experience.
Based on review of minutes from some of the initial meetings, the Assistant Commissioner of Quality Management and Development, and/or the Case Management Coordinator had attended the meetings. Time had been devoted to reviewing the members’ responsibilities, the relationship between the RQCs and the DBHDS Quality Improvement Council, and some sample data.
Moving forward, the two QI Specialists (i.e., one had been hired and recruitment was ongoing for the second) and Data Analyst were expected to attend the RQC meetings and provide support to the groups. In addition, it was anticipated that the Assistant Commissioner of Quality Management and Development, and/or the Case Management Coordinator also will remain involved with the groups.
One question that remained to be resolved was whether or not the RQC meetings were considered public meetings. As discussed during the interview, although it is often helpful to have public input, in making this decision, consideration should be given to the need for open discussion at RCQ meetings, including, at times, the need to share confidential information related to trends involving providers or even individuals.
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Commonwealth staff identified one next step as the development of communication plans for the RQCs. It will be important to ensure that information is shared appropriately with various constituents, that those involved in surveys and other data collection activities have information about how the data is being used, and that the information necessary to make needed changes to the system is clearly communicated.
Public Report on Availability of Services
Based on a discussion with the Settlement Agreement Executive Advisor and the Director of Training Center Discharges and Community Integration, a report had not yet been published on the availability of services, including the number of people served in each type of setting. However, some activities were underway to assist the Commonwealth in identifying the needs of individuals at the Training Centers, and to a lesser degree, individuals in the community in need of services. More specifically:
§ With regard to individuals residing at the Training Centers, Individual Needs Profiles were developed for all individuals on the active move list. The Active Move List was based on the Training Center closing schedule and the annual targets for numbers of individuals scheduled to transition to the community from each facility. If other individuals requested a transition, they also had an Individual Needs Profile developed, and were placed on the Active Move List.
The Individual Needs Profile was a brief survey that asked questions about the individual’s preference for where he/she wanted to live, the type of setting in which he/she wished to live, his/her day/vocational needs, whether or not an accessible setting was needed, the individual’s staffing needs, and other major needs (e.g., related to medical/therapy and behavioral needs). Using the information from the Individual Needs Profiles, the Commonwealth populated the “List of Individuals Seeking Community Services Providers.” This list was published on the Developmental Services page of the DBHDS website (i.e., http://www.dbhds.virginia.gov/ODS-default.htm).
Providers also were surveyed to determine the types of supports they could provide, the areas in which they had homes or programs, and the size of homes or programs. Providers interested in being considered to support individuals on the list could complete this survey online. They also could contact the CSB and/or Training Center directly using the information provided on the list. Information about providers that could meet the individuals’ needs was given to individuals and their guardians for their consideration. Licensing reportedly verified the information on completed provider surveys.
The data on this list could be sorted to provide more information about individuals looking for certain types of supports, types of settings, in particular parts of the state, or with particular needs. Barriers or gaps in services were identified when an individual was looking, but could not find supports and services to meet his/her preferences or needs. When this occurred, the Regional Support Team was consulted to assist in problem solving. In the past quarter, approximately 50 individuals with such barriers were referred to the Regional Support Teams. Information about barriers or gaps was being shared with the regional staff and CSBs. Although not yet happening, the
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intention also was to share this information with the DBHDS Quality Improvement Committee, to provide input on systemic gaps or trends that need to be addressed.
Of note, in some instances, providers had indicated that they could provide services to some of the individuals on the list, but not within the current rate structure. The Director of Training Center Discharges and Community Integration explained that for specific individuals falling into this category, DBHDS was working with particular providers to describe the services and supports needed and develop corresponding budgets. Once concrete budgets are available, the next step reportedly will be to determine if funding could be obtained to fill the gap.
§ With regard to individuals currently in the community and on the list for obtaining Waiver services, less data were available. According to the Settlement Agreement Executive Advisor, for years, anecdotal information had been available, but beginning in January 2013, more specific information began being collected, particularly for individuals meeting certain criteria (e.g., individuals living with five or more individuals, individuals applying for admission to the Training Centers, etc.). Specifically, the Regional Support Teams began collecting information about gaps for these priority groups.
In summary, at the time of the review, the Commonwealth was collecting some important data for individuals at the Training Centers, and making referrals to Regional Support Teams when supports were difficult to locate. Some data were beginning to be collected for other individuals in need of services. The Commonwealth had not yet published a report. However, a report to the General Assembly is due in the coming month, and will include some of this information, particularly related to individuals transitioning from the Training Centers.
e. Providers (Section V.E)
1. The Commonwealth shall require all providers (including Training Centers, CSBs, and
 other community providers) to develop and implement a quality improvement (“QI”)
 program, including root cause analyses, that is sufficient to identify and address significant
 service issues and is consistent with the requirements of the DBHDS Licensing Regulations
 at 12 VAC 35-105-620 in effect on the effective date of this Agreement and the provisions of
 this Agreement.

2. Within 12 months of the effective date of this Agreement, the Commonwealth shall
 develop measures that CSBs and other community providers are required to report to
 DBHDS on a regular basis, either through their risk management/critical incident reporting
 requirements or through their QI program. Reported key indicators shall capture
 information regarding both positive and negative outcomes for both health and safety and
 community integration, and will be selected from the relevant domains listed in Section
 V.D.3 above. The measures will be monitored and reviewed by the DBHDS quality 
 improvement committee, with input from the Regional Quality Councils, described in
 Section V.D.5 above. The DBHDS quality improvement committee will assess the validity 
 of each measure at least annually and update measures accordingly.

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Although it was too early to review provider QI systems (i.e., Section V.E.1), within 12 months (i.e., March 6, 2013), Section V.E.2. requires the Commonwealth to identify measures that CSBs and community providers are to report. Similar to the review of data to assess and improve quality, the goal of the Consultant’s review was to obtain a status of these efforts, including any review of data by the Commonwealth QI Committee or the Regional Quality Councils. A status was to be obtained of the actions the Commonwealth had taken to notify providers of their responsibilities, its plans to determine what actions providers had taken to implement these requirements, as well as its plans to determine providers’ compliance with the requirements.
In terms of providers’ responsibilities related to operating quality improvement programs, the Settlement Agreement set forth the requirement for providers to monitor and evaluate service quality, and referenced the DBHDS Licensing Regulations at 12 VAC 35-105-620. Specifically, the regulations required: “The provider shall implement written policies and procedures to monitor and evaluate service quality and effectiveness on a systematic and ongoing basis. Input from individuals receiving services and their authorized representatives, if applicable, about services used and satisfaction level of participation in the direction of service planning shall be part of the provider's quality assurance system. The provider shall implement improvements, when indicated.”
As noted in the sections above, the Commonwealth had made some progress, but still was in the process of finalizing drafts of the data it intended to collect. Some of the data providers will be responsible to collect had been identified, but in order to address the requirements of the Settlement Agreement, additional data will likely be required from providers.
In addition, Regional Quality Councils had recently had their first meetings. Either the DBHDS Assistant Commissioner of Quality Management and Development, or the Case Management Coordinator attended each of these meetings. Part of what they discussed was the need for RCQs to develop and implement communication plans. This communication reportedly will include information about providers’ responsibilities related to their quality improvement programs.
It was anticipated that providers will have different levels of sophistication regarding their quality improvement processes. For example, the CSBs and many of the larger providers had operating QI Departments, but some, particularly smaller providers, might need additional support and guidance to set up and implement the necessary processes. Once expectations were clearly set in relation to quality improvement processes, and technical assistance and guidance had been provided, the Office of Licensing will have a role in ensuring providers are compliant.
The Assistant Commissioner of Quality Management and Development, and the Case Manager Coordinator also had held meetings with each of the 40 CSBs. During these meetings, DBHSD staff provided an overview of some changes occurring as a result of the implementation of the Settlement Agreement, including the role of Support Coordinators. As referenced elsewhere in this report, Support Coordinators collected some of the data the various Project Teams had identified as necessary for the quality improvement process. These meetings also were used to collect information from each CSB about some specific changes they were making, as well as the challenges they were facing. As a result of some of the information collected, the Commonwealth was working with DOJ and the Independent Reviewer to review and potentially make changes to some of the case management requirements. These meetings illustrated the Commonwealth’s commitment to
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proactively work with providers, including CSBs, to share information, identify challenges, and constructively work to overcome any concerns identified.
In summary, the Commonwealth was at the beginning stages of developing and implementing a communication plan to convey to providers their roles and responsibilities for maintaining necessary quality improvement processes, and to share data with the Commonwealth. Some of the mechanisms for reviewing provider data were just being developed, such as the RQCs.
f. Quality Service Reviews (Section V.I with focus on V.I.1.a)
1. The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of
 services at an individual, provider, and system-wide level and the extent to which services are
 provided in the most integrated setting appropriate to individuals’ needs and choice. QSRs
 shall collect information through:

c. Face-to Face interviews of the individual, relevant professional staff, and other people involved in the individual’s life; and
d. Assessment, informed by face-to-face interviews, of treatment records, incident/injury data, key-indicator performance data, compliance with the service requirements of this Agreement, and the contractual compliance of community services boards and/or community providers.
2. QSRs shall evaluate whether individuals’ needs are being identified and met through
 person-centered planning and thinking (including building on the individuals’ strengths,
 preferences, and goals), whether services are being provided in the most integrated setting
 appropriate to the individuals’ needs and consistent with their informed choice, and whether
 individuals are having opportunities for integration in all aspects of their lives (e.g., living
 arrangements, work and other day activities, access to community services and activities, and
 opportunities for relationships with non-paid individuals). Information from the QSRs shall
 be used to improve practice and the quality of services on the provider, CSB, and system
 wide levels.

3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a
 reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR
 process.

4. The Commonwealth shall conduct QSRs annually of a statistically significant sample of
 individuals receiving services under this Agreement.

The goal of the Consultant’s review was to provide comments on the Virginia-specific questions for individuals, families, and providers, and to review plans and report on the status of planning efforts for the overall system. Comments also were to be provided on the adequacy of the Commonwealth’s process for selecting a statistically significant sample.
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Status of Planning Efforts for Overall System
Based on review of the minutes for Project Team #15 as well as interview with some of the members of the Team, the Commonwealth had made the decision that the National Core Indicators (NCI) Survey Process would be used to conduct the Quality Service Reviews the Settlement Agreement requires. Although the NCI process will help the Commonwealth to collect valuable data, it will not meet the requirements of the Settlement Agreement in relation to the Quality Service Reviews. The following summarizes the Settlement Agreement requirements that did not appear to be addressed through the NCI process:
§ The Settlement Agreement requires the QSRs to collect information through: “Face-to Face interviews of the individual, relevant professional staff, and other people involved in the individual’s life.” Although the NCI process collected information through face-to-face interviews with individuals, the process did not include face-to-face interviews with relevant professional staff. In fact, during the face-to-face interviews with individuals, staff was only to be present if the individual requested assistance, could not answer for him or herself, or had needs that required the assistance of staff (e.g., behavioral or medical). Even when staff was present, they were only to assist the individual in answering questions. In order to address the requirements of the Settlement Agreement, interviews need to be conducted with a number of professional staff (e.g., direct support professionals, management staff, healthcare staff, etc.). With regard to other people involved in the individual’s life, mailed surveys would be sent to all guardians and/or family members, but these did not involve face-to-face interviews.
§ The Settlement Agreement requires the QSRs to collect information through: “Assessment, informed by face-to-face interviews, of treatment records, incident/injury data, key-indicator performance data, compliance with the service requirements of this Agreement, and the contractual compliance of community services boards and/or community providers.” The NCI process did not include a comprehensive review of treatment records, and included no review of incident/injury data, key-indicator performance data, compliance with service requirements of the Settlement Agreement, or contractual compliance. Again, although the NCI Individual Survey and Guardian/Family survey process will generate some valuable data, it was essentially a satisfaction survey of individuals and their guardians/families. In fact, the introduction included in the NCI Adult Consumer Survey for 2013-2014 – Virginia tool identified Section I of the tool as a satisfaction survey to be completed only by the individual. Based on review of the survey tools, some information was gathered from records in the “Background” section, but this was largely demographic information and/or information about the types of supports provided, and timeliness of supports (e.g., medical appointments and preventative tests, such as colonoscopies). This did not represent a comprehensive record review to assess the quality of supports and services provided. Section II of the tool focused on individuals’ community integration, choice, and rights. Again, these were important questions to ask the individual. However, the assessment did not include any record review to confirm responses, comparison of responses to the expectations in the individual’s ISP, or other objective assessment. Similarly, the NCI Adult Family Survey for 2013-2014 – Virginia asked for some demographic information, but the majority of the questions related to the individual and family’s access to and satisfaction with services and supports.
§ The Settlement Agreement also requires QSRs to: “evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building
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on the individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals).” Again, although the NCI process assessed individuals’ and their families’ satisfaction with their supports and services, the Settlement Agreement described a broader review to assess the adequacy of the person-centered planning process, and the provision of supports and services outlined in the plans. Determinations regarding “most integrated setting” take into consideration the individual and guardian’s wishes, but also require input through professional assessments. Often individuals and their guardians/families are not aware of all of the options available, and review of the individuals’ assessments and ISPs would be necessary to determine whether or not they were provided with information with which to make an informed choice.
Within the context of a broader Quality Service Review structure, the NCI Survey potentially could provide the valuable information the Settlement Agreement requires related to the face-to-face interview with the individual. However, it will not meet the overall requirements for the QSRs. However, the following provides a summary of the current status of the NCI Survey in Virginia:
§ The VCU Partnership for People with Disabilities had been selected as the vendor to implement the survey process.
§ As described in further detail below, a sampling methodology had been developed and used to select the sample of individuals for the Individual Survey. A Guardian/Family survey also was being conducted, and it would be mailed to all guardians/families in the spring of 2014. Two provider surveys were in draft format, including one entitled: “Access to Services and Supports Survey,” and the other “Staff Stability Survey.” These also would be completed in the spring of 2014. It was anticipated that data from these surveys will be used to address some of the domains for the data to assess and improve quality that will be reported to Regional Quality Councils and the DBHDS QI Committee. The provider surveys likely will be completed online, and a sample size had not yet been decided upon.
§ In addition to two part-time Co-Investigators, the Partnership for People with Disabilities was hiring five part-time paid Regional Coordinators. At the time of the Consultant’s interview with Commonwealth and VCU staff, both Co-Investigators and most of the Regional Coordinator positions had been filled. Recruitment also was underway for interviewers, who were paid a stipend for each review they completed.
§ The next step was to provide training to the interviewers. Training was going to be offered in each of the five regions, and was anticipated to include role-plays and time for questions. The goal was to begin training in October 2013, and for individual face-to-face interviews to occur between November 2013 and May 2014.
§ Prior to completing the face-to-face interviews, contact information needed to be completed; and once interviews were scheduled, background information was completed. The contact information was necessary to allow the interviewer to set up an interview, as well as to be prepared for the interview (e.g., identify whether translation services were needed, identify needed staffing supports, etc.). The background information was fairly extensive. Some CSB staff had completed this information for a smaller sample in years past. However, due
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to an increased sample size and individuals in more service types (e.g., individuals in nursing homes, DD Waiver participants, etc.), VCU was conducting outreach and providing training to groups that would need to assist in the completion of this information, such as DD Case Managers. Complete background information was important to allow more extensive analysis of the data. § A look-behind process was built into the NCI survey activities. For a five percent sample of interviews, two interviewers would sit in, but only one would conduct the interview. However, both interviewers would complete the survey instrument. In addition, the second interviewer would check to ensure that the checklist for interviewers was being followed. The data both interviewers collected would be compared. Discrepancies would be reviewed, and trends in discrepancies would be analyzed to determine if more training was needed for particular questions. The process described appeared to provide an appropriate inter-rater reliability system.
In discussing some of the challenges, members of Project Team #15 indicated that:
§ Finding ways to communicate the results of the surveys and the ways in which data were used to change the system would be an important next step. As they stated, this would require identifying different forums, such as self-advocacy groups, family meetings, etc., and tailoring the message to meet the needs of various audiences. The group was soliciting ideas about what other states participating in NCI had done in this regard.
§ Another challenge was the need to involve different groups in this year’s survey, including, for example, individuals and staff from nursing homes and the DD Waiver.
Virginia-specific Questions:
Minimal changes were made to the NCI survey tools. Some additional changes were being considered for future surveys, but these also were minimal. These changes did not substantially modify the tools, and the Consultant offers no specific comments. The following were the changes that were made to the 2013-2014 tools:
1. Codes for groups of individuals receiving services under the Settlement Agreement: o ID waiver o IFDDS (DD) waiver o community ICF/ID o nursing facility o current training center resident o training center discharge with code identifying from which training center the individual was discharged
2. CSB and region codes for residence of individuals receiving services
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Additions to the Individual Survey
Has your case manager told you about options or opportunities for working in the community? (Employment First) – Section 1 (Yes/No/Not Applicable/Not Sure)
Has your case manager told you about options or opportunities for living in your own home or apartment? – Section 1 (Yes/No/Not Applicable/Not Sure)
Do you know who to talk to if you have a problem with your support coordinator/case manager? – Section I
Additions to Family Surveys
If services received by the person are self-directed, agency-directed, or both (Agency directed means services that an agency provides and is the employer of the direct support professionals doing the service. Consumer directed services means that the consumer is the employer of record and hires the direct service personnel to work for them on their behalf):
Did this person or you choose his/her doctor?
Do you know who to talk to if you or this person have a problem with his/her case manager?”
Statistically Significant Sample
Based on review of the document entitled: “National Core Indicators (NCI) Individual Survey Methodology” and interview with members of Project Team #15, the total population of individuals the Settlement Agreement covers was calculated to be 11,185. The group indicated that this number was arrived at using data that DMAS provided through its reimbursement database. To select a representative sample, VCU calculated the sample size to be 371 individuals with a confidence level of 95%, and a confidence interval of five. The NCI requirement for a minimum sample size was 400. The decision was made to double this minimum sample size for a target sample of 800 individuals. In addition, all individuals discharged from Training Centers on or after October 13, 2011 would be included in the sample.
A formula then was used to calculate the percentages of individuals in each region supported in the various program groups (i.e., Training Centers, nursing facilities, ID Waiver, DD Waiver, and community Intermediate Care Facility). These percentages were then used to select proportionate samples for each Region from each of the various program groups. These numbers were doubled. This took into consideration that some individuals would decline to participate, others would have died or left the state, or contact information would be out-of-date; so fewer surveys would be completed than individuals in the sample.
Therefore, the samples selected for 2013-2014 totaled 1599 individuals in the main sample, and 204 individuals who had been discharged for six months or more from the Training Centers since October 2011. According to VCU staff, the NCI-required 400 individuals would have resulted in a 3% sample size, and although they believed this would provide a representative sample size at the
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Commonwealth-level, it would not necessarily be representative at the Regional-level. By doubling the base sample to 800, however, and then accounting for some non-participation by doubling the number again, they believed the samples would be large enough to provide usable information at both the Commonwealth and Regional levels. In summary, the Commonwealth had made progress in initiating the use of the NCI Survey tools to collect some important data. However, these reviews were not consistent with all of the requirements included in the Settlement Agreement in relation to Quality Service Reviews. The following recommendation is offered:
§ The Commonwealth should review the specific requirements in the Settlement Agreement for the Quality Service Reviews, and either add to the NCI process or replace it with an alternative.
CONCLUSIONS
In conclusion, the Commonwealth had made progress with regard to a number of the Settlement Agreement requirements for a quality and risk management system. Clearly, there was a strong commitment to and excitement about the numerous initiatives underway to strengthen the Commonwealth’s quality improvement processes for individuals the Settlement Agreement covered. The Project Team format had been helpful in involving many different perspectives in the development of the various system change efforts, including staff from DBHDS, DMAS, private provider agencies, and CSBs. The Team Leaders also appeared to keep the momentum going for achieving goals set forth for each Project Team. A number of challenges remained ahead. As described in this report, many of the initiatives were in the beginning phases of implementation. Strong training will be a necessity for many of the changes to be successful. In addition, an overarching theme found during this review was the need to expand the scope of data that is available from the system to allow comprehensive and meaningful quality improvement and risk management initiatives to occur.
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APPENDICES
 APPENDIX A – Acronyms

Acronym CCS CHRIS CMS CSB DBHDS DD DMAS DOJ EBP EHR FY HCBS ID IFDDS ISP LMS NCI QI RQC SHAY SMHA VAC

Meaning Community Consumer Submission
Computerized Human Rights Information System Centers for Medicare and Medicaid Services Community Services Board Department of Behavioral Health and Developmental Services Developmental Disability Department of Medical Assistance Services Department of Justice Evidence-Based Practice Electronic Health Record Fiscal Year Home and Community-Based Services Intellectual Disability Individual and Family Developmental Disabilities Services Individual Support Plan Learning Management System National Core Indicators Quality Improvement Regional Quality Council State Health Authority Yardstick State Mental Health Authority Virginia Administrative Code

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APPENDIX B – Interviews and Documents Reviewed

Risk Triggers and Thresholds (Section V.C.1)

Interview:

On September 17, 2013, at 2:00 p.m., with Marion Greenfield, DBHDS, Director of Clinical Quality and Risk Management; Ann Bevan, President, Virginia Network of Private Providers, Inc.; and Denise Dunn, DBHDS, Abuse Neglect Investigations Manager and Chief Privacy Officer.

Documents Reviewed: § Project Team #11 –Provider Risk Management Team Meeting Agendas, for meetings on
12/20/13, 1/3/13, 1/17/13, 1/31/13, 2/14/13, 2/28/13, 3/14/13, 3/28/13, and 4/11/13; § Project Team #11 –Provider Risk Management Team Meeting Minutes, for meetings on
12/6/12, 12/20/12, 1/3/13, 1/17/13, 1/31/13, 2/14/13, 2/28/13, 3/14/13, 3/28/13, 4/11/13,
5/9/13, 6/6/13, and 7/11/13; and § Draft Triggers and Thresholds dated 1/9/13, 1/17/13, 2/14/13, 2/28/13, 3/14/13, 4/1/13,
5/8/13, 7/11/13, and 8/8/13.

Web-based Incident Reporting System and Reporting Protocol (Section V.C.2)
Interview: On September 18, 2013, at 9:00 a.m., with Margaret Walsh, DBHDS, Director of Office of Human Rights; Karen Moten, DBHDS, Data Analyst; and Keven Schock, DBHDS, Associate Director of Licensing.
Documents Reviewed: § Project Team #12 – Critical Incidents (CHRIS Implementation) Meeting Minutes, for meetings on 12/10/12, 12/19/12, 1/7/13, 1/14/13, 1/22/13, 2/4/13, 2/13/13, 2/12/13, 3/4/13, 3/11/13, 3/18/13, 4/1/13, and 5/6/13; § CBS Detailed Alleged Occurrences from CHRIS for Second Quarter Fiscal Year (FY) 2013;
 § Facility Detailed Alleged Occurrences from CHRIS First Quarter FY 2013;
 § Facility Detailed Alleged Occurrences from CHRIS Second Quarter FY 2013;
 § Provider Detailed Alleged Occurrences from CHRIS Second Quarter FY 2013;
 § Individual Reported Abuse from CHRIS Second Quarter 2013 - CSB by location;
 § Individual Reported Abuse from CHRIS Second Quarter 2013 – Facility by location;
 § Individual Reported Abuse from CHRIS Second Quarter 2013 – Provider by location;
 § Information on DBHDS Website regarding CHRIS, including User’s Guide, Frequently 
 Asked Questions, guidance regarding medication errors and serious injuries, and training modules;
 § Status of Abuse Cases Summary Quarterly – Actual Numbers FY 2013;
 § Status of Abuse Cases Summary Quarterly – Per 1000 Cases First Quarter 2013; and
 § Status of Abuse Cases Summary Quarterly – Per 1000 Cases Second Quarter 2013.


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Investigation of allegations and critical incidents (Section V.C.3)

Interview:

On September 17, 2013, at 3:00 p.m., with Marion Greenfield, DBHDS, Director of Clinical Quality and Risk Management; Ann Bevan, President, Virginia Network of Private Providers, Inc.; Denise Dunn, DBHDS, Abuse Neglect Investigations Manager and Chief Privacy Officer; and Keven Schock, DBHDS, Associate Director of Licensing.

Documents Reviewed: § Draft DBHDS Investigation Process PowerPoint, dated 6/21/13; and § Draft Root Cause Analysis: A Brief Overview of the Analysis Process.

Data to Assess and Improve Quality (Section V.D)
Interviews: § On September 24, 2013, at 11:00 a.m., with Kathy Drumwright, DBHDS, Assistant Commissioner, Quality Management and Development; Paul Gilding, DBHDS, Director of Community Contracting; Dee Keenan, DBHDS, Case Management Coordinator; and Lester Saltzberg, DBHDS, Director of Licensing; § On September 27, 2013, at 9:00 a.m., with Jae Benz, DBHDS, Director of Training Center Discharges and Community Integration; and Heidi Dix, DBHDS, Settlement Agreement Executive Advisor; and § On September 27, 2013, at 2:00 p.m., Sam Pinera, DMAS, Program Manager for
 Developmental Disabilities Waiver, and Liaison with DBHDS.

Documents Reviewed: § DBHDS, Quality Improvement Committee Meeting Minutes, dated 1/31/13, 3/5/13, 4/16/13, 5/21/13, 6/18/13, 7/25/13, and 8/21/13; § Project Team #8 – Quality Improvement and Data Analysis Meeting Agendas, for meetings on 2/14/13, 3/26/13, 6/20/13, and 8/21/13; § Project Team #8 – Quality Improvement and Data Analysis Meeting Minutes, for meetings on 12/5/12, 1/11/13, 2/14/13, 3/26/13, 4/26/13, 6/20/13, and 8/21/13; § Community Consumer Submission 3 Extract Specifications: Version 7.1 Revision 1, selected pages, dated 9/12/13; § DBHDS Data Dashboard with data for May 2013 and July 2013, including charts for data related to completion of face-to-face and in-home developmental case management services; § DBHDS Draft DOJ Settlement Agreement Domains, dated 7/31/13; § Draft Licensing Data Collection and Reporting, undated; § Agenda for Individual and Family Developmental Disabilities Services (IFDDS) Waiver Case Managers Meeting, for meeting on 9/10/13; § Falls with Injuries graph for Training Centers, for 1st Quarter 2012 to 1st Quarter 2013; § Death per Patient Day graphs for Training Centers, from 1/1/11 to 3/31/13; § Events with Injuries graphs for DBHDS Hospitals, from 1/1/12 to 3/31/13; § Falls with Injuries graphs for Training Centers, DBHDS Hospitals, and Specialty Facilities, from 1/1/12 to 3/31/13; and
 § Reported Deaths graph for Training Centers, from 1/1/11 to 3/31/13.


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Providers (Section V.E)
Interview: On September 25, 2013, at 9:00 a.m., with Kathy Drumwright, DBHDS, Assistant Commissioner, Quality Management and Development; and Dee Keenan, DBHDS, Case Management Coordinator.
Documents Reviewed: § DBHDS, Quality Improvement Committee Meeting Minutes, for meetings on 1/31/13, 3/5/13, 4/16/13, 5/21/13, 6/18/13, and 7/25/13; § Project Team #8 – Quality Improvement and Data Analysis Meeting Agendas, for meetings on 2/14/13, 3/26/13, 6/20/13, and 8/21/13; § Project Team #8 – Quality Improvement and Data Analysis Meeting Minutes, for meetings on 12/5/12, 1/11/13, 2/14/13, 3/26/13, 4/26/13, and 6/20/13; § Spreadsheet for DBHDS meetings with CSBs in April and May 2013; § Agenda and meeting minutes for Region II Regional Quality Council, for meeting on 8/29/13; § Agenda and meeting minutes for Region IV Regional Quality Council, for meeting on 8/22/13; and
 § Agenda and meeting minutes for Region V Regional Quality Council, for meeting on 
 8/16/13.

Quality Service Reviews (Section V.I with focus on V.I.1.a) Interview: On September 16, 2013, at 11:00 a.m., with Charline Davidson, DBHDS, Director of
Planning and Development; Tera Yoder, Associate Director, VCU, Partnership for People with Disabilities; Parthenia Dinora, Director of Research and Evaluation, VCU, Partnership for People with Disabilities.
Documents Reviewed: § 2013 Contract between DBHDS and Virginia Commonwealth University Partnership for People with Disabilities for the Quality Service Reviews; § Project Team #15 – Quality Service Reviews Meeting Minutes, for meetings on 12/3/12, 1/7/13, 1/14/13, 2/12/13, 3/5/13, 3/26/13, 4/18/13, 5/29/13, 6/18/13, and 8/6/13; § Project Team #15 – Quality Service Reviews Meeting Agendas, for meetings on 3/5/13, and 3/26/13; § Project Team #15 – Quality Service Reviews Membership, dated April 2013; § National Core Indicators, Adult Consumer Survey, 2013-2014; § National Core Indicators, Adult Family Survey, 2013-2014; § National Core Indicators, Children/Family Survey, 2012-2013; § National Core Indicators, Family/Guardian Survey, 2012-2013; § National Core Indicators, Individual Survey Sample Methodology; § National Core Indicators Process for Fiscal Year 2014 Surveys; § Virginia Process for National Core Indicators, dated August 2013; § Quality Service Reviews, DD Case Manager Training, dated 9/10/13; § Draft Quality Service Review Developmental Services Provider Survey: Access to Services and Supports, dated 8/22/13;
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§ Draft Quality Service Review Developmental Services Provider Survey: Staff Stability Survey – Residential and Day Services Direct Support Staff and Case Managers/Support Coordinators, dated 8/22/13;
§ Virginia-Specific Questions to the 2013-2014 National Core Indicators Individual and Family Surveys; and
§ Virginia-Specific NCI Survey Questions May 2013 - Annotated with Human Services Research Institute (HSRI) Recommendations on 9/16/13.
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APPENDIX C – SHAY Rating Tool

The State Health Authority Yardstick (SHAY) is a nationally recognized tool developed at Dartmouth University to review a state’s ability to plan, develop, monitor, and evaluate evidenced-based practices (EBP) regarding systems development and program implementation. It provides a rating scale to evaluate and determine the adequacy of the plan.

1. EBP Plan

The State Mental Health Authority (SMHA) has an EBP plan to address the following:

Note: The plan does not have to be a written document, or if written, does not have to be distinct document, but could be part of the state’s overall strategic plan. However if not written the plan must be common knowledge among state employees (e.g., if several different staff are asked, they are able to communicate the plan clearly and consistently).

1) A defined scope for initial and future implementation efforts; 2) Strategy for outreach, education, and consensus building among providers
and other stakeholders; X 3) Identification of partners and community champions;

4) Sources of funding;
 5) Training resources;
 6) Identification of policy and regulatory levers to support EBP;
 7) Role of other state agencies in supporting and/or implementing the EBP;
 8) Defines how EBP interfaces with other SMHA priorities and supports

SMHA mission; 9) Evaluation for implementation and outcomes of the EBP; and 10) The plan is a written document, endorsed by the SMHA.

Score X

1) No planning activities 2) 1 – three components of planning 3) 4 – 6 components of planning 4) 7 – 9 components 5) 10 components

Evidence Used to Justify Rating:

Pieces of a plan were in place, and as discussed in detail in the body of the report, clearly planning had occurred for the initial phases of the implementation of all of the components of the quality improvement and risk management components included in this review. This was evident through the work of the Project Teams, and their ongoing methodical work to achieve specific milestones that had been established. However, many of the future implementation efforts remained in the development and planning stages, and based on discussions with staff, for some of these specific plans were being implemented, and for others, more planning was needed.

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The DBHDS Assistant Commissioner of Quality Management and Development indicated that her office was in the process of developing an overall plan for the quality improvement efforts, but it remained in development and was not yet ready for review. This was positive, and once fully developed should be helpful in continuing to guide the course of the Commonwealth’s efforts.
As identified in detail in the body of this report, initiatives that still were being developed included, for example, the strategies to communicate changes and requirements related to quality improvement initiatives to the full provider community, full incorporation of DMAS providers into the process, and a full set of training resources for providers. As indicated in the body of this report, some of the challenges included the limitations of the current data that were available due to the current regulations, and the potential need for additional resources at a number of different levels if this was to be expanded. A comprehensive quality improvement plan should include action steps to address these issues.
Roles of various agencies and offices had been partially defined. For example, the Office of Licensing was involved in many of the Project Teams, and its role in relationship to encouraging, and when necessary, enforcing certain requirements was being discussed and defined. However, although, DMAS was involved in some of the groups, their role and responsibilities seemed less defined.
Evaluation for implementation of the outcomes of the quality improvement efforts appears to be an area that will require additional planning.
In sum, planning certainly was occurring, but further development was needed. This was to be expected in a system that had only some pieces of a quality assurance/improvement system in place when the Settlement Agreement was approved.
4. Training: Ongoing consultation and technical support
Is there ongoing training, supervision and consultation for the program leader and clinical staff to support implementation of the EBP and clinical skills?
Note: If there is variability among sites, then calculate/estimate the average visits per site. 1) Initial didactic training in the EBP provided to clinicians (e.g., one to five days intensive training); 2) Initial agency consultation re: implementation strategies, policies and procedures, etc. (e.g., one – three meetings with leadership prior to implementation or during initial training); 3) Ongoing training for practitioners to reinforce application of EBP and address emergent practice difficulties until they are competent in the practice (minimum of three months, e.g., monthly x 12 months); 4) On site supervision for practitioners, including observation of trainees clinical work and routines in their work setting, and feedback on practice. Videoconferencing that includes clients can substitute for onsite work (minimum of three supervision meetings or sessions for each trainee, e.g., monthly x 12 months); and
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5) Ongoing administrative consultation for program administrators until the practice is incorporated into routine workflow, policies and procedures at the agency (minimum of three months, e.g., monthly x 12 months).

Score X 1) 0-1 components 2) 2 components 3) 3 components 4) 4 components 5) 5 components

Evidence Used to Justify Rating:

As noted in the body of this report, the development and implementation of training components necessary for successful implementation of the Settlement Agreement (e.g., investigations training, etc.) remained in the planning stages.

9. SMHA Leadership: Central Office EBP Leader


There is an identified EBP leader (or coordinating team) that is characterized by the following:


X 1) EBP leader has adequate dedicated time for EBP implementation (minimum 10%), and time is protected from distractions, conflicting priorities, and crises;
X 2) There is evidence that the EBP leader has necessary authority to run the implementation;
X 3) There is evidence that EBP leader has good relationships with community programs; and
X 4) Is viewed as an effective leader (influence, authority, persistence, knows how to get things done) for the EBP, and can site examples of overcoming implementation barriers or establishing new EBP supports.

Score: X

1) No EBP leader 2) 1 component 3) 2 components 4) 3 components 5) All 4 components

Evidence Used to Justify Rating:

At the time of the review, the DBHDS Assistant Commissioner of Quality Management and Development had been in her position for a year. She had worked in the intellectual/developmental system in the community for years and had joined DBHDS in September 2012.

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The DBHDS Assistant Commissioner of Quality Management and Development had oversight of the eight Project Teams related to quality improvement efforts. Her full-time responsibilities related to these implementation efforts. She appeared to be well respected by team members. She had made efforts to reach out specifically to Community Services Boards to identify barriers to their successful completion of some of the new tasks that the Settlement Agreement required. When issues were identified with some of the case management responsibilities, she appropriately raised these through internal channels, and the parties were discussing them. The Assistant Commissioner was carefully selecting QI Specialists, which was important to ensure success in the long-term. In their absence, she had worked to set up the Regional Quality Councils and provide them with initial training/technical assistance, along with the Case Management Coordinator.

11. Policies and Regulations: SMHA

The SMHA has reviewed its own regulations, policies and procedures to identify and remove or mitigate any barriers to EBP implementation, and has introduced new key regulations as necessary to support and promote the EBP.

Score: X

1) Virtually all policies and regulations impacting the EBP act as barriers; 2) On balance, policies that create barriers outweigh policies that
support/promote the EBP; 3) Policies that support/promote the EBP are approximately equally balanced
by policies that create barriers; 4) On balance, policies that support/promote the EBP outweigh policies that
create barriers; and 5) Virtually all policies and regulations impacting the EBP support/promote
the EBP.

Evidence Used to Justify Rating:

Although the policies/regulations in place provided some of the basic structures necessary to implement quality improvement efforts (e.g., providers were required to report some incidents, conduct investigations, etc.), as detailed in the body of this report, current regulations did not support full implementation of the requirements of the Settlement Agreement. Some examples included:

§ During discussions with members of Project Team #8 as well members of other Project Teams, when asked about how data was selected for review, reference was made to identification of data that providers already were required to collect through regulation or contractual requirements, data that already were being collected through current processes (e.g., licensing and support coordination), as well as data specifically referenced in the Settlement Agreement (e.g., data given as examples with regard to the eight domains). One of the challenges that members of Project Team #8 identified was expanding the sources of available data.
§ The Settlement Agreement requires investigation of “reports of suspected or alleged abuse, neglect, critical incidents, or deaths.” Although the Human Rights regulations required providers to investigate allegations of abuse, neglect, and exploitation, they did not require

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them to investigate “critical incidents” or deaths. It was not yet clear how the Commonwealth will ensure the conduct of these additional investigations. § Although regulations required providers to have “trained investigators” and conduct investigations, the regulations defined neither the specific training that investigators were to complete, nor the content or quality of the investigations beyond indicating that the preponderance of the evidence standard would be used, unless otherwise provided for by law. § Based on review of documentation and discussion with members of Project Team #11, the decision was made to divide the triggers and thresholds into required and recommended (i.e. voluntary) categories due to the limitations on what providers currently were required to report based strictly on existing regulation and/or contract requirements. Many of the draft risk triggers and thresholds were dependent on harm actually occurring. Some examples included triggers related to self-injurious behaviors or decubitus ulcers for which medical attention was part of the trigger definition, and no precursors had been identified to try to prevent harm before it occurred. This again appeared to be due to the limited definition included in regulation of serious incidents that providers needed to report to the Commonwealth.

12. Policies and Regulations: SMHA EBP Program Standards

The SMHA has developed and implemented EBP standards consistent with the EBP model with the following components:

1) Explicit EBP program standards and expectations, consonant with all EBP principles and fidelity components, for delivery of EBP services. (Note: fidelity scale may be considered EBP program standards, e.g., contract requires fidelity assessment with performance expectation);
2) SMHA has incorporated EBP standards into contracts, criteria for grant awards, licensing, certification, accreditation processes and/or other mechanisms;
3) Monitors whether EBP standards have been met; and 4) Defines explicit consequences if EBP standards not met (e.g., contracts
require delivery of model supported employment services, and contract penalties or non-renewal if standards not met; or licensing/accreditation standards if not met result in consequences for program license).

Score:

Not Rated 1) No components (e.g., no standards and not using available mechanisms at
this time) 2) 1 component 3) 2 components 4) 3 components 5) 4 components

Evidence Used to Justify Rating:

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Based on the narrow focus of the current review, this could not be rated (e.g., contracts were not requested as part of the document request, nor were licensing reports to show what enforcement was occurring). In addition, given the early stage of implementation efforts, it is unlikely that clear evidence would yet be available of adherence to and/or enforcement of standards.
Page 8 of

 </s> REPORT OF THE INDEPENDENT REVIEWER
 ON COMPLIANCE
 WITH THE

SETTLEMENT AGREEMENT
 UNITED STATES V. COMMONWEALTH OF VIRGINIA

United States District Court for
 Eastern District of Virginia

Civil Action No. 3:12 CV 059
 October 7, 2013 – April 6, 2014

Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
June 6, 2014

TABLE OF CONTENTS


I. EXECUTIVE SUMMARY

1


II. SUMMARY OF COMPLIANCE: YEAR TWO, SECOND HALF

4


III. DISCUSSION OF COMPLIANCE FINDINGS

25


A. Methodology B. Compliance Findings

IV. CONCLUSION

35


V RECOMMENDATIONS

36


VI. APPENDICES

A1

A. Individual Review Study

A2

1. Behavioral Support Summary

A9

B. Crisis Services

A13

C. Integrated Day Activities-Employment Services

A35

D. Community Living Options

A57

E. Licensing

A62

EXECUTIVE SUMMARY

This is the Independent Reviewer’s fourth report on the status of compliance in the Settlement Agreement (Agreement) between the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This report documents and discusses the Commonwealth’s efforts and the status of its compliance with the obligations, as of April 6, 2014. A Summary of Compliance is included.
The Parties acknowledged in the Settlement Agreement that successfully implementing its provisions would take time. Due dates exist annually through 2021 to create 4,170 new waiver slots to afford members of the target population access to, and funding for, an array of community-based services. The Agreement provisions that were due during the first two years are critical elements for the development of a system that is truly responsive to the needs of individuals with intellectual and developmental disabilities. These provisions include the creation of waiver slots, increased case management and licensing oversight, discharge planning and transition services with a post-move monitoring process, regional crisis services and crisis stabilization programs, offering practicable non-work integrated day activities and supported employment, the development of increased community living options, and the beginning stages of systems to collect and analyze data about safety and quality.
The Commonwealth has achieved compliance with many provisions of the Agreement. At the end of the review period, it had created and distributed more than the minimum required number of waiver slots; more than 1445 slots to allow services for individuals with ID and DD who were on waiting lists, often for many years, and in urgent need. Receiving these services has significantly improved the quality of life for these individuals and their families. More than 310 individuals had transitioned from the Training Centers to live in community homes. Individual reviews of the services and circumstances of individuals who moved from the Training Centers concluded that, overall, they have adjusted well to their new homes, live in typical neighborhoods, and have experienced positive life outcomes. The Independent Reviewer previously reported that the Commonwealth developed, by June 2012, and improved over time, a discharge planning and transition process and a post-move monitoring process. Both have been well organized and effectively implemented to comply with many provisions of the Agreement. Case Management and Licensing Services have been increased. This period’s Individual Review study confirmed that all individuals sampled during the past two review periods received case management services; and during the most recent period, all eligible individuals received monthly face-to-face visits. An independent consultant also verified that the frequency of oversight and regular unannounced licensing inspections occurred as required. For adults with ID/DD, in each Region, the Commonwealth provided mobile crisis teams, crisis support, and crisis stabilization services with trained staff. The Commonwealth’s Department of Behavioral Health and Developmental Services (DBHDS) is building a quality and risk management system. Several workgroups are meeting regularly, planning, problem solving, and implementing new, or reforming existing, systems. To strengthen its ability to provide quality community-based services for individuals with complex medical and behavioral needs moving out of facilities, the Commonwealth has created new interim tools (i.e. Bridge Funds, Exceptional Rates), until its HCBS waivers and rates are restructured.
1	

  

The Commonwealth has again demonstrated good faith in its efforts to implement the provisions due to be completed by April 6, 2014, the end of the review period covered by this report. Despite these efforts, the Commonwealth is significantly behind schedule with repeated delays in complying with certain obligations. It is essential that the Commonwealth redouble it efforts and expedite its plans to meet its commitments.
At the recent meeting with the Court, the Commonwealth’s new leadership team made a sincere commitment to the principles and goals of the Agreement and described several positive new initiatives, especially regarding housing and non-work integrated day activities. Appointed since the Governor was elected last November, DBHDS Commissioner, Dr. Debra Ferguson; DBHDS Assistant Commissioner for Developmental Services, Connie Cochran; Settlement Agreement Advisor, Peggy Balak; and Deputy Secretary for Health and Human Resources, Suzanne Gore, were joined by the long serving Director of the Virginia Department of Housing and Community Development, William Shelton, in pledging a coordinated and collaborative effort to fulfill the Commonwealth’s commitments.
The Commonwealth acknowledges that additional work is needed with respect to crisis services for children, integrated day opportunities, community living options, and transitioning children from nursing facilities and large intermediate care facilities. DBHDS and DMAS have each recently added new staff in leadership roles to oversee implementation. Regular meetings are being held amongst state agencies to facilitate collaboration and problem solving in planning and implementation in areas of non-compliance. DBHDS has also recently planned changes to the individual support planning process in response to the Independent Reviewer’s reported concerns and recommendations.
Based on many sources of information available to the Independent Reviewer and his expert consultants, it is clear that a majority of the provisions due in the second half of year two have been met. It is equally clear that there remain significant areas of non-compliance. It is this Reviewer’s opinion that the Commonwealth’s recent actions and future plans to increase resources and expertise devoted to areas of non-compliance is required to achieve desired outcomes and compliance. The recent increase in interagency collaboration and problem solving is also essential to making needed progress. At this stage of program and system development, the Independent Reviewer determined compliance for many provisions based on quantitative measures, i.e. whether the required program components, the building blocks of the community service system, have been developed and are operating. To determine compliance in future review periods, the Independent Reviewer will increasingly review qualitative measures, such as whether the new and reformed programs are delivered effectively and achieve needed outcomes.
In the Agreement, the Parties agreed to many vitally important Quality and Risk Management provisions (Section V). Complying with these provisions involves the development of new systems and the reform of existing ones. The Parties did not include the dates when the Commonwealth would comply with these provisions. During the third review period, the Independent Reviewer retained a consultant with expertise in quality management to provide a baseline assessment of, and feedback to, the Commonwealth about its planning and development efforts for many of these provisions. The Independent Reviewer will determine the Commonwealth’s compliance with the Quality and Risk Management provisions without due dates as of October 6, 2014 and will report the status of compliance in his December 6, 2014, report to the Court. For this report the Independent Reviewer defers determining the Commonwealth’s compliance with these provisions.
2	

  

The implementation of the Agreement has been advanced by the Commonwealth’s good faith efforts. During the transition to the new administration, reform efforts were continued and the pace of implementation was maintained. Implementation with some initiatives has been expedited. Throughout the review period, DBHDS leadership and staff, as well as the VA Attorney General’s attorneys, have been accessible, forthright, and responsive to the many requests of the Independent Reviewer. The DOJ attorneys have assisted effective implementation by gathering information, by providing consultation on the requirements of the Agreement, and by working with the Commonwealth to build shared understanding of the provisions. The Parties have maintained a collaborative working relationship and reached reasonable solutions when sharing and discussing the issues and concerns that naturally arise when implementing new programs and reforming statewide systems of support. The involvement and contribution of the stakeholders are vitally important aspects of effective planning and implementation. My appreciation is given to the individuals and the families, providers and CSBs, for their assistance with visits to families and to community residential and day programs, and for their responsiveness to requests for information.
3	

  

SUMMARY OF COMPLIANCE: YEAR TWO, SECOND HALF


Settlement Agreement Reference
III
III.C.1.a.i-iii.

Provision
Serving Individuals with Developmental Disabilities In the
Most Integrated Setting
The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the target population in the Training Centers to transition to the community according to the following schedule: In State Fiscal Year 2014, 160 waiver slots.

Rating Compliance

Comments
The Commonwealth created 220 waiver slots during FY 12 and 13, and an additional 160 in FY 14 for a total of 380 waiver slots, as required.

III.C.1.b.i-iii

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities). In State Fiscal Year 2014, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

III.C.1.c.i-iii.

The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities). In State Fiscal Year 2014, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs

Compliance Compliance

The Commonwealth created 575 waiver slots during FY 12 and 13, and an additional 575 in FY 14 for a total of 1150 waiver slots, 425 more than the minimum the Agreement required.
The Commonwealth created 215 waiver slots during FY 12 and 13, and an additional 130 in FY 14 for a total of 345 waiver slots, 145 more than the minimum the Agreement required.

III.C.2.a-b

The Commonwealth shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2014, a minimum of 1000 individuals supported.

Compliance

The Commonwealth met the quantitative requirements by supporting 1294 Individuals in FY 2014; 693 for individuals on the urgent wait list, 373 on the non-urgent wait list, and 228 on the DD wait list. The Independent Reviewer has not determined whether the current program fulfills the qualitative requirements for this program, as defined in Section II.D.

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III.C.5.a

Provision
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

III.C.5.b. III.C.5.b.i.

For the purpose of this agreement, case management shall mean:
Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

Monitoring the ISP to make timely additional

III.C.5.b.iii

referrals, service changes, and amendments to the plans as needed.

Rating

Comments

Compliance

 55 (100%) of the
individuals studied during the past year were receiving case management.
 53 (93.4%) of 55 had
current ISPs.

NonCompliance
NonCompliance
NonCompliance

Of individuals studied:
 7 (63.6%) of 11 had not had
ISPs modified in response to a major event for the individuals.
 7 (87.5%) of 8 individuals who
engaged in aggressive, dangerous, and disruptive behaviors were not receiving needed behavioral support services.
Individuals studied did not have the following services:
 5 (29.4%) of 17
day/employment;
 7 (25.9%) of 27 dental; and  5 (45.5%) of 11
communication /assistive technology.
Same as two comments above.

III.C.5.c III.C.5.d

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.
The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

Compliance

There was no evidence that the case managers of the individuals sampled provided direct services, other than case management. A provision has been added to the “FY 2013 and FY 2014 Community Services Performance Contract” with the requirement to offer choice.

NonCompliance

The DBHDS Office of Licensing’s monitoring protocols do not align with the Agreement’s requirements and its review process is not adequate to determine compliance.

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III.C.6.a.

Provision
The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities.

III.C.6.b.i.A

The Commonwealth shall utilize existing CSB Emergency Service, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

III.C.6.b.i.B

By June 30, 2012, the Commonwealth shall train CSB Emergency Services personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

III.C.6.b.ii.A.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.

Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

III.C.6.b.ii.B

III.C.6.b.ii.C

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.

Rating NonCompliance Compliance
Compliance
Compliance
Compliance
NonCompliance

Comments
Crisis services were not developed for children and adolescents. DBHDS projects services will be operational by August 31, 2104.
All regions’ REACH crisis response services are available 24 hours per day. Referrals occur during business, evening and weekend hours. 16 (17%) of reported referrals were from CSB ES Teams.
All Regions trained CSB Emergency Services personnel during this period. To maintain compliance DBHDS must fulfill the Independent Reviewer’s previous recommendation to provide a plan by June 30, 2014, to train all ES staff.
Evidence based training was provided to all regions’ REACH programs by the University of New Hampshire’s START staff.
REACH Teams continue to provide the following components: crisis response, crisis intervention, and crisis planning. Expert review determined that REACH teams responded appropriately to requests. The vast majority of the individuals served remained in their homes. For the few that received an out of home placement, most were able to return and REACH stayed involved with them.
The Commonwealth’s crisis system has not developed a plan, training, or other guidance for work with law enforcement personnel to resolve crises and prevent unnecessary institutionalization.

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III.C.6.b.ii.D

Provision
Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that III.C.6.b.ii.G shall respond to on-site crises within two hours.

III.C.6.b.ii.H

By June 30, 2014, the Commonwealth shall have a sufficient number of mobile crisis teams in each Region to respond on site to crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time.

Crisis Stabilization programs offer a short-term alternative to institutionalization or hospitalization III.C.6.b.iii.A. for individuals who need inpatient stabilization services
Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration III.C.6.b.iii.B. with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement and if that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement.

If an individual receives crisis stabilization services in a community-based placement instead of a crisis stabilization unit, the individual may be given the option of remaining in the placement if the provider III.C.6.b.iii.C. is willing and has capacity to serve the individual and the provider can meet the needs of the individual as determined by the provider and the individual’s case manager.

Rating

Comments

Compliance
NonCompliance
NonCompliance

All Regions’ REACH mobile crisis teams operate at all hours. REACH programs report the time of day of referrals and the time of response. All programs respond on-site to crises.
The Commonwealth has not provided sufficient documentation that this requirement is being properly met. Available data indicate that four of the five Regions may not be offering support for up to three days. See Section IX.C below.
Regions have added staff to existing teams to improve response time. Response time exceeded two hours for 8 (53%) of 15 recent crisis interventions.

Not due

Compliance Compliance

All Regions now have crisis stabilization programs that are providing short-term alternatives.
Crisis stabilization programs are used as last resort; teams attempt to resolve crises and avoid out-of home placements. Vacancies in homes of other individuals are not pursued (see below).

Deferred

The Parties will be asked to determine if this provision should remain. Placing individuals who are in crises into the homes of other individuals with ID/DD is not a recommended practice.

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Settlement Agreement Reference

Provision

Crisis stabilization programs shall have no more
III.C.6.b.iii.D. than six beds and lengths of stay shall not exceed 30 days.

With the exception of the Pathways Program at SWVTC … crisis stabilization programs shall not be located on the grounds of the Training Centers or hospitals with inpatient psychiatric beds. III.C.6.b.iii.E.

By June 30, 2012, the Commonwealth shall develop III.C.6.b.iii.F. one crisis stabilization program in each Region.
By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target III.C.6.b.iii.G. population in that Region.

III.C.7.a III.C.7.b

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.
The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy.

III.C.7.b.i.

Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities.

Provide regional training on the Employment First policy and strategies through the Commonwealth. III.C.7.b.i.A.

Rating

Comments

All five Regions’ crisis Compliance stabilization programs comply.

Substantial Compliance

Four Regions’ stabilization programs are not located on institution grounds and are in compliance. The Commonwealth reports that the other Region has located and will move to a permanent community-based setting.

Compliance Compliance
NonCompliance
Compliance

Each Region now has a crisis stabilization program.
Each Region’s existing crisis stabilization program has beds available to meet the needs of the individuals currently receiving crisis services. At least 17% of the available bedday capacity was not being used .
Of individuals studied: 17 (85%) of 20 were not offered integrated activities, 20 (95.2%) of 21 did not have employment goals developed and discussed.
The Commonwealth has maintained membership in SELN, established an Employment First policy, included the policy as a requirement in its Performance Contracts with CSBs (e.9. page 5.a), and has an employment service coordinator.

NonCompliance

The Commonwealth provided a preliminary plan, but has not developed an implementation plan for integrated day activities.

Compliance

The employment services coordinator provided 28 trainings to more than 500 individuals.

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Settlement

Agreement

Provision

Reference

Establish, for individuals receiving services through

III.C.7.b.i.B.1. the HCBS waivers annual baseline information re:

Rating

Comments

The number of individuals who are receiving III.C.7.b.i.B.1. supported employment
a.
The length of time individuals maintain III.C.7.b.i.B.1. employment in integrated work settings.
b.
III.C.7.b.i.B.1. Amount of earnings from supported employment; c. The number of individuals in pre-vocational
III.C.7.b.i.B.1. services d.
The length of time individuals remain in preIII.C.7.b.i.B.1. vocational services.
e.
Targets to meaningfully increase: the number of individuals who enroll in supported employment III.C.7.b.i.B.2. each year a.
The number of individuals who remain employed in integrated work settings at least 12 months after III.C.7.b.i.B.2. the start of supported employment. b.

III.C.7.c. III.C.7.d III.C.8.a.

Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with those providers with the SELN regarding the need to take additional measures to further enhance these services.
The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.

Compliance Compliance
NonCompliance Compliance Compliance Compliance
Compliance
Deferred

The Commonwealth provided annual baseline information.
The Commonwealth provided annual baseline information.
The Commonwealth did not provide annual information.
The Commonwealth provided annual baseline information.
The Commonwealth provided annual baseline information.
The Commonwealth has set targets to meaningfully increase by 5% annually for five years, from 204 currently enrolled to 2026 in 2019.
The Commonwealth has set the target of 85% of the number of individuals in supported employment to remain employed for at least 12 months is a meaningful increase.
The employment target data were reviewed by the SELN Advisory Group. The RQCs are now established and shall begin reviewing data during the State Fiscal Year 4th quarter.

Deferred Compliance

The RQCs were not developed to be able to review the new targets prior to implementation on April 1, 2014.
Of the Individuals studied, 24 (96%) of 25 were receiving transportation services.

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Settlement Agreement Reference
III.C.8.b.
III.D.1.
III.D.2.
III.D.3.
III.D.3.a.

Provision
The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources …
Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.
The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations as determined appropriate by DBHDS.

Rating

Comments

NonCompliance

The Commonwealth completed draft guidelines in June 2013. There is no evidence that the guidelines were published or provided to appropriate agencies. A committee has been formed to update the guidelines.

NonCompliance
NonCompliance

Individuals are primarily offered congregate settings. The plan developed will not meaningfully increase living options that offer most integrated settings. None (0%) of the 30 individuals who moved from Training Centers and were studied in the two recent review periods were referred for rental assistance.
The Commonwealth has not facilitated individuals receiving waivers to live in leased apartments or made referrals for rental assistance.

NonCompliance

The Commonwealth developed a plan, but it will not meaningfully increase access to independent living options. Commonwealth officials have recently described promising housing initiatives to add to the plan.
A DBHDS housing service coordinator developed the plan with these representatives, and others.

Compliance

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Settlement Agreement Reference
III.D.3.b.i-ii

Provision
The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

III.D.4

Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii,

III.D.5

Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.

III.D.6 III.D.7

No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team.
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home (and, if relevant, to their authorized representative or guardian).

Rating

Comments

NonCompliance

The Commonwealth’s plan estimated through FY15 the number of individuals who would choose independent living options. Recommendations to provide access to these settings each year were not provided.

NonCompliance

The Commonwealth has established and is prepared to distribute the one-time funds. Distribution of the funds, however, did not begin during the review period. No individuals applied due primarily to the time-limited availability of the assistance.

NonCompliance

Studies during the past year found that 27 (90%) of 30 individuals who moved from Training Centers to placements that were consistent with the individual’s, or if applicable the authorized representatives, choice after receiving options. The Independent Reviewer has determined that options received were not consistent with the terms of Section IV.B.9.b.

Compliance

The individuals reviewed who moved to congregate settings that were consistent with the individuals’ needs and informed choice. For many individuals who chose larger congregate settings, barriers were identified to less integrated setting.

Compliance

This term has been included in the Commonwealth’s “FY 2013 and FY 2014 Community Services Performance Contract.”

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Settlement Agreement Reference
III.E.1
III.E.2
III.E.3.a-d
IV
IV.

Provision
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CBSs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team in the appropriate Region. The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC.
The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met)
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section

Rating

Comments

Compliance

Community Resource Consultant positions are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

NonCompliance

The CRC’s referred 37 individuals in the second quarter of FY 2014. The RST’s did not resolve identified barriers to living in most integrated settings or to receiving integrated day opportunities. Reasons for choosing less integrated residential options include: the lack of needed services, the lack of availability in the area, the lack of safety equipment (i.e. fence), and the severity of individuals’ needs for medical and behavioral supports. Integrated day opportunities are not available.

Compliance

DBHDS established the RSTs, which met monthly since March 2013. The CRCs are referring cases to the RSTs regularly. CRCs referred 37 individuals in the second quarter of FY 2014. RSTs frequently recommend more integrated options. See III.E.2. above regarding the RST’s ability to resolve barriers.

Compliance

Discharge planning and transition processes were implemented by July 2012. Improvements have occurred in response to concerns identified and to the Independent Reviewer’s recommendations.

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Settlement Agreement Reference
IV.A
IV.B.3.
IV.B.4.
IV.B.5. IV.B.5.a.

Provision

Rating

Comments

To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and person-centered principles.
Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).
The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) will include: Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;

NonCompliance
Compliance
NonCompliance
Compliance Compliance

Most integrated settings that meet the needs of individuals with complex medical and behavioral concerns are often not available. A sponsored home that meets an individual’s needs is often not offered in most regions. Referrals for rental assistance have not occurred.
Individual Review studies during the past year show that 30 (100%) of individuals and their authorized representatives participated. Staff is trained to present information and a support staff, familiar with the individual and their means of communication, provides communication support during discharge planning meetings.
Individual Review studies during the past year found that the treatment goals in the support plans for 54 individuals, 39 (72%) and 19 (35%) respectively did not include outcomes that lead to skill development and outcomes that relate to the individuals’ talents, preferences and needs. Integrated settings were not provided in most domains of the individuals’ lives.
All 30 (100%) of the individuals studied during the two previous review periods had discharge plans. DBHDS tracks this information and reports that all residents of Training Centers have discharge plans.
Documentation of information provided was present in the discharge records for 27 (90%) of 30 individuals studied during the two recent review periods.

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Settlement Agreement Reference
IV.B.5.b.
IV.B.5.c.
IV.B.5.d. IV.B.5.e.
IV.B.5.e.i.
IV.B.5.e.ii. IV.B.6
IV.B.7

Provision
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes; Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;
Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes; Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers. Such barriers shall not include the individual’s disability or the severity of the disability.
For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a person-centered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served. Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.

Rating

Comments

The discharge plans continue Compliance to include this information.

Compliance Compliance

DBHDS refined its discharge planning guidance to ensure that assessments of supports and services needed are included regardless of availability. The discharge records for both individuals reviewed this period included the assessments.
Specific providers are listed that can provide identified supports and services.

Compliance Compliance
Deferred Deferred

Barriers are documented on the Regional Support Team data collection sheet.
No evidence has been found that an individual’s disability or the severity of the disability is a barrier. The availability of providers, housing options, and services that can meet the needs of individuals with severe disabilities in most integrated settings remain barriers.
Since October 2011, five individuals were each readmitted once to a Training Center.
The facts regarding this provision are inconclusive. Further review will be conducted for the next report to the Court.

Compliance

Individual review studies have not found evidence that complex needs are considered barriers to living in an integrated setting.

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Settlement Agreement Reference
IV.B.9. IV.B.9.a.
IV.B.9.b.
IV.B.9.c.
IV.B.11.

Provision

Rating

Comments

In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options.
The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.
PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop familyto-family peer programs to facilitate these opportunities.
PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.
The Commonwealth shall ensure that Training Center PST’s have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.

Compliance Compliance
NonCompliance
Compliance
Compliance

Individual reviews during the past 6 months found that 28 (93%) of 30 individuals and their ARs were provided with information regarding community options and the opportunity to discuss them with the PST.
Discharge records of individuals reviewed included evidence that a choice of providers was offered.
Individual reviews during the past year found that 28 (93%) of 30 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their families. DBHDS has developed a family-to-family program, but conversations for the individuals studied had not occurred. A peer program does not currently exist, but is being developed.
Discharge records indicate that individuals and their authorized representative were assisted and that providers were identified and engaged. For 29 (97%) of 30 individuals studied, the provider staff was trained in support plan protocols that were transferred to the community.
During the past year, studies of individual services found that 28 (93%) of 30 individuals who moved were provided with information regarding community options.

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Settlement Agreement Reference IV.B.11.a.
IV.B.11.b.
IV.B.15
IV.C.1 IV.C.2

Provision

Rating

Comments

In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of personcentered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meeting and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the person-centered tools and skills. Coaches throughout the state will have regular and structured sessions and person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers

Compliance Compliance

At all Training Centers, training has been provided via regular orientation, monthly, and ad hoc events, and ongoing information sharing.
All staff receives person centered training during orientation and receives annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors.

In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers …

Deferred

Data about barriers are reportedly submitted and aggregated quarterly, and have been used by DBHDS to develop plans to overcome barriers (e.g. Bridge Funding, enhanced rates) The Regional Quality Councils will begin to review these data this quarter.

Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.

Compliance

For 29 (97%) of 30 individuals studied during the past year, the residential provider staff was trained in support plan protocols that were transferred to the community and participated in the premove ISP meeting.

Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

Compliance

Reviews found that 28 (93%) of 30 individuals moved within 6 weeks, or reasons were documented and new time frames developed.

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Settlement Agreement Reference
IV.C.3
IV.C.4
IV.C.5
IV.C.6

Provision

Rating

Comments

The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct post-move monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of lookbehind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.

Compliance

The Commonwealth has developed and documented a well organized post move monitoring process. The schedule includes more visits, especially during the first weeks after individual transitions. Post Move Monitors were adequately trained. During the year, individual review studies found that for 29 (100%) individuals Post Move Monitoring visits had occurred and monitoring checklists were used.
Maintaining a compliance rating will require a functioning look-behind process that utilizes a reasonable sample to validate reliability of the PMM process.

The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.

Compliance

The Commonwealth had updated the discharge plans within the required 30 days for all 30 (100%) individuals whose services were reviewed during the past year.

The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge from the Training Center.

Compliance

All of the 30 (100%) individuals whose services were studied during the past year had essential supports documented in their discharge plans.

No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.

Compliance

The discharge records reviewed indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.

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Settlement Agreement Reference
IV.C.7
IV.D.1 IV.D.2.a
IV.D.3
IV.D.4.
V.
V.B.1
V.C.1

Provision

Rating

Comments

The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems. The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center. CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;
The Commonwealth will create five Regional Support Teams ...
The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed …
Quality and Risk Management
The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.
The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.

Compliance

Documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred.

Compliance Compliance

Community Integration Managers are working at each Training Center.
CIMs have reviewed PST recommendations for individuals to be transferred to settings of five or more.

Compliance

The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The Independent Reviewer has not monitored the ability of the RST’s to resolve barriers or the Commonwealth’s compliance with IV.D.3.a-c.

Compliance

The CIMs provide such monthly reports and the Commonwealth provides the aggregated information to the Reviewer and the US DOJ.

Deferred Deferred

The Commonwealth made progress during this review period. Planning documents, however, continue to indicate that providers will not be required to report a complete list of risks of harm. A future determination of compliance depends, in part, on identifying, reporting, and addressing risks of harm. The Independent Reviewer recommended in his last report that the required list of risk and triggers must include all significant harm and risks of harm.

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Settlement Agreement Reference
V.C.2
V.C.3
V.C.4
V.C.5

Provision The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system.

Rating

Comments

Compliance Deferred Deferred Deferred

A web based incident reporting system and reporting protocol was implemented. The Independent Reviewer recommended in his last report that “all allegations of abuse, neglect…serious injuries, and deaths be reported, including for individuals in DD waiver funded services.”
The Commonwealth has established a reporting and investigative process. Information about serious injuries and critical incidents are reported and promptly shared with the Reviewer. This process will be reviewed for the next report to the court.
The Commonwealth is developing trainings to offer providers in the investigative process and root cause analysis. In his last report, the Independent Reviewer recommended the development of standards for investigators, the investigation process and investigation reports.
A Mortality Review Committee was established under the direction of the DBHDS medical director. It met monthly and completed mortality reviews of unexpected and unexplained deaths reported through its incident reporting system. Information flow has improved, but remains a significant limitation to an effective process. Limited reporting requirements undermine the ability of the Commonwealth to identify trends and to determine corrective actions to reduce mortality rates.

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Settlement Agreement Reference
V.C.6

Provision
If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.

V.D.1 V.D.2.a-d V.D.3.a-h
V.D.4 V.D.5.a-b

The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMSapproved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety.
The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):
The Commonwealth shall collect and analyze data from available sources, including the risk management system described in …(specified sections of the Agreement).
The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.

V.D.6

At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.

Rating Deferred Deferred Deferred Deferred Deferred Deferred Deferred

Comments
The Commonwealth’s process of investigating reports of harm, of timely reporting, and of implementing corrective actions will be reviewed for the December 2014 report to the Court.
The Commonwealth is restructuring its HCBS waivers and its CMS quality improvement plan. The Independent Reviewer will determine how to evaluate compliance during the transition process.
The Independent Reviewer will determine status of compliance for the next report to the Court.
The Commonwealth began collecting and analyzing information in State Fiscal Year 2012. A workgroup is developing the plan to meet the June 30, 2014 due date.
The Independent Reviewer will determine the status of compliance for the next report to the Court.
Regional Quality Councils were implemented beginning in March 2013 and have met quarterly. An evaluation of the Commonwealth’s compliance with this provision will be determined for the next report to the Court.
The Commonwealth has not yet reported publicly on the availability, quality, and gaps in services, or made recommendations for improvement.

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Settlement Agreement Reference
V.E.1 V.E.2
V.E.3
V.F.1
V.F.2

Provision

Rating

Comments

The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program …
Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.
The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.
At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and documents its resolution.

Deferred

The Independent Reviewer will determine the status of compliance for the next report to the Court.

Deferred

Measures were developed and reported in the Independent Reviewer’s second report to the Court. Regional Quality Councils are being developed and will be reviewed for compliance during the next reporting period.

Deferred

Since the Reviewer’s last report to the Court, the Commonwealth evaluated and modified its implementation plan to comply with the Agreement’s requirements. It will be reviewed for the next report.

Compliance

Of the individuals studied during the past year 55 (100%) were receiving case management services.

NonCompliance

The individual study this review period found that 7 (64%) of 11 individuals did not have an individual support plan modified as necessary, and 8 (100%) individuals with mal adaptive behaviors with significant negative consequences did not have needed behavioral support services.

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Settlement Agreement Reference
V.F.3.a-f

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).

Compliance

The individual review study of 27 individuals this period found that all 19 individuals (100%) who met the eligibility criteria for enhanced case management were receiving the required monthly face-toface meetings.

V.F.4

Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.

Compliance

The Commonwealth collects and aggregates this information. An expert reviewer determined for this Reviewer’s previous report to the court that the DBHDS Dashboard appears to be a valid accountability tool.

V.F.5
V.F.6 V.G.1 V.G.2.a-f

Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in Section V.D.3.

Deferred

The provision became effective one month prior to the end of the review period for this report. Compliance will be determined during the next review period.

The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and personcenteredness.

Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination.

The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement.

Compliance Compliance

DBHDS unannounced licensing inspections occur regularly.
DBHDS established and implemented a licensing inspection process with more frequent inspections.

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Settlement Agreement Reference
V.G.3
V.H.1
V.H.2 V.I.1.a-b
V.I.2
V.I.3 V.I.4

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.

NonCompliance

The DBHDS Licensing protocol does not align with the Agreement’s requirements. Its review process is not adequate to ensure provision of reliable data.

The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training.

Deferred

The Commonwealth has provided extensive training related to person-centered practices. A core curriculum and the competencies in the required elements of service training have not been developed, nor has the method for determining competency.

The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.
The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.

Deferred Deferred

The Commonwealth utilizes coaching and supervision to train staff. It has not developed the curriculum for the statewide training program of the coaches and supervisors.
The Commonwealth redesigned and is implementing its revised plan for QSR to address concerns identified in the Independent Reviewer’s report on December 6, 2013.

QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals).

Deferred

The Independent Reviewer will determine the status of compliance for the next report to the Court.

The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.
The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.

Deferred Deferred

The Independent Reviewer will determine the status of compliance for the next report to the Court.
The Independent Reviewer will determine the status of compliance for the next report to the Court.

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Settlement Agreement Reference
VI
VI.D.
IX
IX.C.

Provision
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the Parties … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

Rating

Comments

Compliance

The DHBDS promptly reports to the Independent Reviewer all deaths and serious injuries, upon receipt of notification. This period, the Reviewer, in collaboration with a nurse, reviewed and submitted seven reports to the Court with copies provided to the Parties.

NonCompliance

Sufficient records were not maintained to document compliance with crisis services, supported employment, or case management.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. During this review period the following provisions related to internal operations of Training Centers were not monitored: III.C.9, IV.B.1, IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-c.
2. For the Independent Reviewer’s next report to the Court, due December 6, 2014, monitoring will be prioritized for the obligations in Quality and Risk Management, Licensing Investigations, Integrated Day Activities, Crisis Services for children, and an individual review study of individuals who have transitioned from Training Centers to the community.

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DISCUSSION OF COMPLIANCE FINDINGS

A. Methodology:
The Independent Reviewer requested that the Commonwealth provide data and documentation related to its progress in meeting the provisions of the Settlement Agreement. Throughout the review period, the Commonwealth’s progress was reviewed in Parties’ meetings and work sessions; through discussions with providers and community stakeholders; through examination and evaluation of prioritized areas; and through site visits to community residential and day programs.
During this fourth review period, the second half of year two of implementation, the Reviewer prioritized the following areas for examination and evaluation:
• New services for individuals with behavioral challenges residing in Region IV or V; • Integrated Day Activities and Supported Employment; • Crisis Services; • Licensing, • Community Living Options • Mortality Review
The Reviewer worked with five independent consultants, including four clinical consultants, and utilized a monitoring questionnaire to review the status of services for individuals. Twenty-seven individuals were randomly selected from forty-two individuals residing in Regions IV (Greater Capitol) or V (Tidewater). These individuals had received new waiver-funded community-based services since July 1, 2013. Their prior annual Supplemental Intensity Scale evaluations indicated a need for behavioral support. Of the twenty-seven randomly selected individuals, two had moved from the Southside Virginia Training Center. A new section of the Monitoring Questionnaire was developed to review the planning and delivery of behavior support services. Two-person teams reviewed the services for each individual. One member of each team was a clinician, either a registered nurse with extensive experience serving individuals with ID/DD or a doctoral level Board Certified Behavioral Analyst. The Behavioral Analyst reviewed the services of eight individuals, selected from the twenty-seven individuals due to their histories of aggressive, assaultive or destructive behaviors. Each review included studying service planning and case management records, visiting and observing the individuals (usually in their homes), and interviewing those providing services.
The Independent Reviewer’s consultant, Kathryn du Pree, completed two studies. For the fourth time, she reviewed the status of the Commonwealth’s compliance with Crisis Service requirements of the Agreement. For the third time, she reviewed the status of the Commonwealth’s progress toward meeting the Integrated Day Activities and Supported Employment provisions of the Agreement. Both studies review the status of planning and program development for provisions of the Agreement that the Reviewer had recently determined to be non-compliant and confirm that compliance has been sustained with other requirements. These studies involved reviews of related data and documents and interviews with Commonwealth officials, SELN – VA members, providers, families of individuals served, and other stakeholders.
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Patrick Rafter, an independent consultant with extensive expertise in developing community-based housing options for individuals with ID and DD, was retained to review the status of Virginia’s “Plan to Increase Independent Living Options” and associated progress. His study involved reviewing relevant progress reports and work group minutes, as well as visiting with and engaging in candid discussions with many of those involved at both the state and local levels.
The Independent Reviewer’s consultant, Ric Zaharia Ph.D., who previously completed a base line evaluation of the Commonwealth’s Case Management services, was retained to complete a study of the Commonwealth’s status of compliance with licensing requirements of the Agreement. Dr. Zaharia’s evaluation consisted of reviewing documents, including licensing standards and regulations, licensing tools/protocols, licensing survey reports and corrective action plans, and complaint investigations as well as interviewing Licensing Specialists, the Director of Licensing, and a sample of nine service providers selected by the consultant.
The Independent Reviewer examined the Commonwealth’s mortality review process. The Commonwealth informed the Reviewer of all deaths of individuals served in the community, including deaths of individuals who had moved from the Training Centers. The Reviewer collaborated with a consultant nurse in reviewing and reporting on four deaths during this review period. The study of the mortality review process was comprised of reviewing the membership, meeting minutes, operating procedures and other organizing documents of the Mortality Review Committee; the system of tracking and reviewing deaths; the data collected; and the Medical Director’s mortality reviews. The Reviewer also interviewed three members of the Mortality Review Committee including its chairperson, the DBHDS Medical Director. This review, at this time, did not include the study of whether the findings and recommendations of the MRC were effectively implemented.
Recommendations from these reports/reviews are included at the end of this Report.
Finally, as provided in the Settlement Agreement, the Independent Reviewer provided this report in draft form to the Parties for review and comment prior to submission to the Court.
B. Compliance Findings
1. Providing Waivers
The Commonwealth has created more waiver slots than the minimum required by the Agreement. As detailed in the Summary of Compliance chart (page 4), the Commonwealth has approved funds for these waivers during a challenging fiscal period. These waiver slots were provided to prevent the institutionalization of individuals with intellectual and developmental disabilities who had been on waitlists for services, usually with urgent needs. Waiver slots were also provided to enable members of the target population, children with ID/DD who reside in nursing homes and individuals with ID/DD who reside in Training Centers, to transition to living in the community.
To facilitate the transition of individuals from Training Centers, the Commonwealth advanced a detailed plan. It involved a multiple-step transition process to develop a plan of support for each individual. The plan included a schedule for engaging each individual and his or her family. Staff resources were initially assigned to implement the process and were gradually increased, as needed.
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Feedback from post-move monitors and others, including this Reviewer, was used to adjust and improve the process. Since October 2011 through April 6, 2014, more than 300 individuals transitioned from Training Centers to homes in the community. Overall, studies by the Independent Reviewer have concluded that these individuals have adjusted well to their new community homes, live in typical neighborhoods, and had positive life outcomes.
The Commonwealth has not yet implemented plans to facilitate children with ID and DD living in nursing homes and the largest Intermediate Care Facilities to transition to community homes. Although children continue to be admitted to, and discharged from, these facilities, the Commonwealth’s work group initiatives have not yet increased the number of children who have transitioned. Authorized representatives of children living in nursing facilities have expressed reservations about transferring their children to community homes because of the lack of nursing and other support services needed to support individuals with complex medical needs in community homes. A revision of the initial plan was reported to be nearly complete when the Reviewer submitted his last report to the Court on December 6, 2013. The Commonwealth received significant feedback with concerns from multiple stakeholders. After distributing the draft of the revised plan, the Commonwealth has further revised the plan to address these concerns. The revised plan will reportedly include initiatives to prevent the unnecessary institutionalization of children. This will be accomplished by identifying those at risk of being admitted to these large facilities; by resolving both short and long term barriers; and by providing needed supports in their homes or least isolated, most integrated setting. By September 30, 2014, for specific children currently residing in nursing homes and other large facilities, waiver slots should be prioritized to enable them to live in, rather than be separated from their communities. The Commonwealth has the benefit of its Training Center discharge planning and transition process to offer effective elements of a transition planning and postmove monitoring processes. The success of the plan will be increased if the range of supports available to individuals transferring from Training Centers is available for children transitioning from nursing facilities. These include Bridge Funds, enhanced rates, 24-hour nursing, customized community programs developed for a specific group of children, and housing supports.
The Commonwealth has provided more than 1300 new waiver slots for individuals, who had been on waitlists for services in the community, to gain access to a menu of needed services. Based on a sample of these individuals’ services, a common theme for them and their families is their improved quality of life since receiving services. Reviews confirmed that some needed services are not necessarily available, especially for individuals with complex medical and behavioral needs.
The Commonwealth has taken steps to improve the capacity of community programs to support individuals with complex needs. It has approved Bridge Funds to assist those moving out of the Training Centers. It has requested and, after a lengthy review, received approval from the Centers for Medicare and Medicaid Services to pay enhanced rates to congregate residential providers who serve individuals with complex medical and/or complex behavioral needs. In addition, a national consulting firm is currently reviewing the Commonwealth’s waiver structure and rates. It will recommend reforms with the goal of increasing and strengthening the Commonwealth’s services for people with complex needs. The Commonwealth also used an RFP process to select providers to work directly with individuals who reside at SVTC and their families. They are developing programs for these specific individuals to facilitate their transition to the community.
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With new financial tools, and two years of successfully enabling individuals to transition from Training Centers to the community, the Commonwealth is better prepared to assist children with complex medical needs to move from nursing facilities to integrated settings in their communities.
2. Individual Reviews
By the second half of year two, the Settlement Agreement expects individuals with ID/DD to receive HCBS services in the most integrated setting consistent with their informed choice and needs. The Agreement envisioned these individuals receiving core services including case management, integrated day opportunities, and referrals for rental and housing assistance.
The Independent Reviewer’s study focused on the new services provided for individuals needing behavioral supports who reside in Region IV (greater Capitol) or Region V (Tidewater). The Reviewer randomly selected twenty-seven individuals (from a cohort of forty-two) with histories of challenging behaviors, who had received new HCBS services since July 1, 2013. The Independent Reviewer expanded the monitoring questionnaire used in studies during three previous review periods. Questions were added to review the planning and use of structured behavioral services and to determine the extent to which each individual’s maladaptive behavior impacted their lives. Finally, the Independent Reviewer’s consultant, a doctoral level Board Certified Behavior Analyst, visited with eight selected individuals and reviewed their individual service records to contribute to the findings of the study. Although there were individual exceptions, the Independent Reviewer’s study of individual services found the following themes and examples of positive outcomes and areas of concern.
a. New waiver services significantly improved the quality of life for individuals with urgent needs and their families. The families demonstrated strengths, often making incredible efforts, while providing loving support for their family members.
Among the positive outcomes, all individuals were receiving case management services, including monthly face-to-face visits, as required. Each individual’s support plan listed his or her essential needs. Each had a physical examination within the past twelve months and was receiving the medical supports identified in the plan. Twenty-five (92%) of the twenty-seven individuals had a support plan that was current and received the supports identified in his/her plan.
Areas of concern included that seven (25.9%) of the twenty-seven individuals had not been examined by a dentist within the last twelve months and eight (29.6%) individuals needed assessments that were not recommended. Twenty (74.1%) of twenty-seven individual support plans lacked specific outcomes and activities that lead to skill development or other meaningful outcomes.
b. Structured behavioral supports were not provided to individuals whose aggressive, dangerous, and disruptive behaviors negatively impacted their ability to learn new skills, impeded their ability to participate in their communities, and reduced their quality of life and independence. Language assessments were not offered to individuals for whom communication aid may reduce problematic behaviors. The behavior supports that were provided lacked essential elements of
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behavioral intervention programs, including a Functional Behavior Analysis, objectives to acquire new skills, and data collection to measure progress.
c. Restrictions were imposed on individuals with challenging behaviors without evidence of external review or approval. Restrictions (i.e. locked clothing and food) appeared justified to protect individuals from harm, but were not accompanied by plans to teach skills to reduce the need for the restrictions.
d. Case managers and residential providers did not provide guidance to increase opportunities for integrated activities. Case managers did not develop and discuss supported employment services and goals or make referrals for rental and housing assistance.
The Independent Reviewer has provided the Individual Review reports to the Commonwealth so that it will review the issues identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with the individual’s residential or in-home provider and CSB, and to provide updates, by September 30, 2014, on actions taken with regard to the issues identified.
Selected tables with the Individual Review study’s findings and the Behavior Analyst’s report are attached at Appendix A. The Independent Reviewer has separated findings from the study into tables focusing on positive outcomes and areas of concern. The findings from the Individual Review study are also cited in the Independent Reviewer’s comments in the Summary of Compliance.
3. Crisis Services
The Independent Reviewer’s consultant, whose report is attached at Appendix B, found that the Commonwealth has complied in each Region with the requirements that the crisis service system include the following components: trained mobile crisis teams, CSB emergency services personnel, and crisis stabilization programs. Crisis Services are an important building block of a communitybased service system. At the current stage of program and system development, the Independent Reviewer determined compliance for crisis services based primarily on quantitative measures, such as whether the required program components of a crisis system have been developed and are operating in each region. During future review periods qualitative aspects of these program components will be reviewed to determine compliance based on whether the programs are effectively delivered and achieve needed outcomes. During the recent review period, each Region was providing the required program components including crisis response, crisis intervention, and crisis planning for adults. The Commonwealth’s crisis system is on a pace to serve more than 600 individuals with ID/DD during Fiscal Year 2014. This is comparable to the number served during Fiscal Year 2013. CSBs and case managers were more aware of REACH crisis services and had worked proactively with individuals with dual diagnoses and their families. During the most recent quarter, case managers were the main referral source for crisis services, an indication that more referrals occurred that were not specific to an emergency, a pattern of a more planful approach to referrals.
The Commonwealth has again not complied with the requirements to provide crisis services for children or to respond to each crisis call within two hours. Data were not available to determine the impacts of the lack of crisis services for children or the delayed responses to crisis calls.
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On January 6, 2014, the Commonwealth provided a plan, “My Life, My Community: A Road Map to Creating a Community Infrastructure,” to restructure the operations of its statewide crisis services program. This plan also outlined components of a crisis response system for children. A more detailed plan to develop a crisis service system for children was issued on February 4, 2014. It is positive that the Commonwealth plans to provide crisis services to children using evidence-based models and practices and that it plans to build on existing services and supports through the strengthening of community partnerships. DBHDS requested and received specific proposals from each of the five Regions. The consultant determined that the elements proposed by DBHDS are necessary for effective services, but that each of the five Regions’ plans lacked one, or more, key program component. The missing components that are required by the Agreement include: mobile crisis response, in-home services, and short-term alternatives to institutionalization.
The consultant again found that few individuals with DD, not ID, have utilized crisis services and that the Commonwealth has not planned outreach to individuals with DD and their families.
During the recent period, the Commonwealth continued to make progress with crisis services. It maintained all compliance ratings from previous reporting periods and achieved compliance with other provisions by providing crisis stabilization programs and training CSB Emergency Service personnel in all Regions. For the provisions that have not yet been met, the Commonwealth is embarking on an important transition period. DBHDS is creating standards for its statewide crisis services. It is also developing a monitoring tool and process to ensure that the standards are met. In addition, the Commonwealth will implement a Crisis Response system for children. To help it achieve these important goals and Agreement requirements, the DBHDS is creating a new team to oversee crisis and day services to advance clinical practice.
4. Integrated Day Activities and Supported Employment
The Independent Reviewer’s consultant found that the Commonwealth provided extensive training related to Employment First and that a training module for case managers was developed by the SELN Advisory Group. The Commonwealth gathered baseline annual data and reported it, as required, with the exception of wage information. The Commonwealth has now established meaningful targets to increase the number of individuals in supported employment programs and to track how long they remain employed. It has not yet achieved the very modest targets that were established in March 2013.
The Commonwealth is undertaking a significant redesign of its HCBS waivers for integrated day services, including supported employment. The Commonwealth developed and submitted new service definitions in the recent ID waiver renewal process. With the assistance of a national consulting firm, it is restructuring the rates for services that the Commonwealth will, if approved by the General Assembly, implement in Fiscal Year 2016. There is broad recognition that the waiver structure, definitions, and rates will set the direction and the financial incentives for future program approaches. The training module for case managers will be especially important because both the consultant’s review and the Individual Review Study determined that case managers are not currently implementing and do not appear to understand the Agreement’s requirement to develop and discuss supported employment services and goals annually.
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In addition to providing supported employment services, the Agreement requires DBHDS to provide integrated day activities for members of the target population. To date, it has focused on increasing employment opportunities. With rare exception, providers do not offer individuals who are not employed other types of integrated day activities. The Independent Reviewer asked the Commonwealth to develop an implementation plan by March 31, 2014. Such a plan was due during the first year of implementation. DBHDS provided a preliminary plan that described “strategies and activities.” These include creating a vision, definition, a common understanding and aligning policies, procedures, and funding. The plan lacked specificity and depth about how to achieve these goals, which themselves are preliminary. The Commonwealth agreed to provide day opportunities for individuals served “to the greatest extent possible” so they can enjoy the benefits of being part of a community. The preliminary plan pushes the promise of providing non-work integrated day activities two years away, at best. The Independent Reviewer recommends that the Commonwealth expedite its efforts and actions to offer non-work integrated day activities to individuals in the target population and to report quarterly on the number of individuals who have been offered, and have subsequently received, integrated day activities.
5. Licensing
The Independent Reviewer’s consultant evaluated the Commonwealth’s compliance with the case management requirement (III.C.5.d.) to establish a mechanism to monitor compliance with performance standards and the licensing provisions (V.G.1.-2.) that require both regular unannounced inspections of all providers and more frequent inspections of providers who meet specific criteria. A copy of the consultant’s report is attached at Appendix E.
The DBHDS licensing system is the primary compliance mechanism for Community Service Board (CSB) case management performance under contracts with the Commonwealth. If the licensing system continues as the primary compliance mechanism, its effective functioning, in accordance with the requirements of the Agreement, is critical to the goal of improving the lives of people with I/DD and to achieving compliance. In recent years, the Commonwealth significantly increased the DBHDS Licensing staff to strengthen its oversight of services, including implementing a mechanism to monitor compliance with the provisions of the Agreement.
The consultant reports several positive findings from his review of the DBHDS monitoring mechanism. The six Licensing Specialists that he selected and interviewed appeared mission driven, well trained, and appropriately qualified to review case management compliance. Among the nine providers selected by the consultant, there was a high regard for Licensing Specialists. Exceptions focused on contested citations and “fair” application of a regulation. The consultant reported that to support the Licensing Specialists, DBHDS has made available sufficient resources with in depth clinical, healthcare and medical consultation. The Licensing Specialist reviews that the consultant examined included appropriate attention to detail and fact gathering, and included clear statements of provider problems that appropriately evolved to corrective action plans. The consultant concluded that providers respected the work of the Licensing Specialists and the Office of Licensing, and, for the most part, agreed in retrospect with the validity of problems identified by Licensing at their agencies. Licensing also contributes to the alerts and system guidances that are generated by DBHDS for individuals, families, case managers, and care givers to increase awareness of risks and problems that may occur while someone is receiving services.
31
	
  

The consultant’s evaluation reports several concerns with the DBHDS mechanism to monitor case management compliance with performance standards. The licensing protocols for monitoring case management compliance involve confirming compliance with DBHDS Licensing regulations. Although, the DBHDS regulations align generally, they do not align specifically, with the expectations of the Agreement. The Licensing protocol for reviewing case management involves a review of a small sample of individuals and only the review of documentation from the case managers’ records. The consultant concluded that the licensing protocol for reviewing case management services is “not adequate to determine compliance with performance standards and may result in substandard performance not being discovered and opportunities for improvement being missed.” In addition, results of licensing reviews are not regularly compiled into a report on trends related to compliance patterns across CSBs.
The consultant determined that the frequency and number of unannounced licensing inspections have significantly increased and are in compliance with the Agreement. The protocols for these licensing inspections, however, do not align the Supports and Services area of the regulations with the requirements of the Agreement. This gap leaves assessment up to Licensing Specialists to interpret, which contributes to reliability problems. Services providers have expressed concerns about a lack of consistent and reliable interpretations of regulations. Under the direction of the Assistant Commissioner for Quality, DBHDS has formed the “Licensing Stakeholder’s Workgroup,” in part, to study and to respond to these concerns.
The consultant’s review also discovered examples of problems experienced by individuals, families and other stakeholders. On the DBHDS website, the list of ID providers with provisional status licenses was incorrect, not all completed investigations and corrective action plans were posted, and the “Submit a Complaint about a Licensed Provider” was not functioning.
6. Community Living Options
The Independent Reviewer’s consultant, Patrick Rafter, was retained to review the Commonwealth’s “Plan to Increase Independent Living Options.” Specifically, the Reviewer asked the consultant to determine the connection between the development of accessible and affordable units and the individuals with ID/DD who are receiving waivers; specifically, how did the Commonwealth plan to fulfill its obligation to “facilitate individuals receiving HCBS waivers … to live in their own home or apartment.”
The Commonwealth complied with the Agreement when it developed its “Plan to Increase Independent Living” in coordination with the appropriate agencies and when it submitted the plan on March 6, 2013. This Plan provides a thorough analysis of the challenges to increase housing capacity to meet the needs of the target population. The Plan includes two elements that involve clear deliverables for providing housing units on a schedule: a pilot rental assistance project and the provision of 150 units of accessible/affordable units annually through the LIHTC (Low Income Housing Tax Credit). The consultant determined that both initiatives have problematic elements.
The Commonwealth developed a thoughtful implementation plan for the rental assistance pilot. The consultant concluded, however, that by starting a “pilot project,” the Commonwealth has taken off the table, for at least two years, “the option of expanding a rent subsidy program that could be used quickly to access the existing housing market and be directed to specific areas where individuals in the target population choose to locate.” He also concluded that the Commonwealth had completed
32
	
  

several important preliminary steps to implementation: an operations manual, an interagency Memorandum of Understanding, and performance agreements with two CSBs. The Commonwealth has monitored implementation of the pilot and adjusted its eligibility criteria. Unfortunately, at the end of this review period, no individuals had applied for the pilot rental assistance program, reportedly because there is no assurance of on-going funding once the pilot project ends. To provide on-going funding for the rental assistance program, DBHDS has recently submitted a budget request, which is subject to the approval of the Secretary, Governor, and General Assembly.
The consultant also determined that the plan to develop 150 accessible/affordable units annually “has no direct linkage to the individuals who will receive the waiver slots” being created. The LIHTC program should be eliminated from the plan, unless the Commonwealth can facilitate individuals receiving waivers to live in the LIHTC units. These units will be accessible to individuals with ID/DD if units are located where needed, if arrangements allow for the time to implement support plans and the resources to ensure that rent is paid. To effectively address this challenge typically requires that units are set-aside for the target population and that active coordination occurs at both the state and local levels. The Commonwealth acknowledges that it has more work to do and has pledged a coordinated and collaborative effort.
It is positive that the Commonwealth prepared and submitted an application for HUD 811 funding to provide housing options for people with disabilities. Development of the application required agencies that have historically not worked together to collaborate. If successful, the development of new housing units through the HUD 811 program, however, will take one to three years.
7. Serious Injuries and Mortalities
A. Mortality Reviews The Independent Reviewer found that, in December of 2012, the Commissioner of DBHDS established the Mortality Review Committee (MRC), under the direction of its Medical Director. As required by the Agreement, the MRC membership includes the Assistant Commissioner for Quality Improvement and others who possess appropriate experience, knowledge and skills. The MRC has met monthly to review deaths. It implemented a data collection process; began to identify trends, patterns and problems; and took actions to reduce mortality rates statewide. These actions include developing and issuing Safety Alerts and system guidances related to risks identified in reviews. The Mortality Review Committee operating procedures were developed and implemented over several months. Improved performance was evident between the beginning and end of the period reviewed.
The Independent Reviewer determined that the Commonwealth implemented a statewide mortality review process with the basic elements expected of such systems. The DBHDS Mortality Review Committee:
 screens deaths with standard information,  reviews unexpected and unanticipated deaths,  includes medical professionals as Committee members,  reviews and uses mortality review information to address quality of care;  aggregates data over time to identify trends, and  takes statewide actions to address problems.
33
	
  

The MRC operating procedures required that information be provided and organized for its reviews. Difficulty in obtaining needed information resulted in the Medical Director and MRC’s reviews being based on limited information that significantly reduced the extent of the review possible. As the mortality review procedures were implemented, improvements were made: additional data elements now are collected and a tracking system was implemented to organize the data collected and to monitor the completion of tasks. During the year, DBHDS took statewide action to improve care and safety by posting Safety Alerts related to concerns that have been identified. These include alerts about constipation, choking, psychotropic medications, and holiday season safety. The MRC has not yet determined whether posting Safety Alerts has been effective at improving care related to the identified concerns or at reducing mortality rates.
The elements of the current systems are in the early stage of development. The MRC members described planned improvements. These include gathering and providing more information to allow more thorough reviews. Furthermore, a nurse will be designated to screen all deaths and to serve as an additional MRC member with clinical training and experience.
The Commonwealth has not made significant progress in being notified of the deaths of individuals with ID receiving services under the Agreement who are residing in private homes, unlicensed programs, nursing facilities or in hospitals. As a result, the Medical Director frequently did not have adequate information to complete an informed review; therefore, the information for the MRC to review and analyze about these deaths has been insufficient.
The MRC committee members agree that the implementation of the existing elements of the mortality review process can and should be improved. The provision of more information for the reviews will improve the thoroughness of the Medical Director’s and the Mortality Review Committee’s reports and the value of their respective findings in determining the priority areas for statewide actions to reduce mortality rates.
B. Independent Reviewer’s reviews of serious injuries and deaths of former Training Center residents (VI.D.). The Commonwealth promptly forwards to the Independent Reviewer all reports of deaths of all individuals with ID living in the community and reports of serious injuries to individuals who moved from Training Centers . Between October 2011 and April 6, 2014, DBHDS has reported the deaths of thirteen individuals who moved from the Training Centers, five of whom died during this review period. The Independent Reviewer, in collaboration with a consultant nurse, has reviewed the deaths of seven individuals. The Commonwealth has provided the Reviewer additional resources to complete the remaining reviews and to keep pace with the reviews of serious injuries and deaths as more individuals transition to the community from the Training Centers. The reports from the completed reviews have been submitted to the Court with copies provided to the Parties and shared with the Intervenor’s counsel.
These completed reviews generally found that the Commonwealth’s Licensing Specialists initiated timely reviews of reported deaths and that the investigations were opened and investigated within a reasonable period. If, during these investigations, Licensing Specialists identified violations of regulations, the responsible providers were notified and Corrective Action Plans were developed. In the reviews of deaths, the findings and conclusions were consistent with those of the Mortality Review Committee and the Licensing Specialists’ investigations.
34
	
  

The Independent Reviewer’s reviews of deaths also found individual examples of the reporting and investigation processes not working as expected. Examples include: reports that private providers submitted late and incomplete, investigations that DBHDS Licensing staff did not implement as expected, and corrective action plans which service providers did not complete on schedule. In such cases, the Independent Reviewer has recommended improvements.
DBHDS forwards reports of the deaths of individuals with ID to the US Department of Justice. The DOJ has notified the Commonwealth that its review of the data indicates potential trends in the causes of accidental deaths of individuals with ID in Virginia.
The Independent Reviewer suggests that the DBHDS Mortality Review Committee consider the transparency and accountability benefits of publicly reporting its annual mortality statistics and its annual report with findings, trends and recommendations. It should also consider adding a second external stakeholder; so that at least one external member is present when each mortality review is conducted.
The Independent Reviewer has included mortality review recommendations at the end of this report.
CONCLUSION
The Commonwealth of Virginia, through its Department of Behavioral Health and Developmental Services and sister agencies, has made significant progress implementing key building blocks of a community-based service system for individuals with intellectual and developmental disabilities. It has met, and exceeded, its obligations to create new waiver slots. Since Fiscal Year 2012, the services that resulted from awarding these new slots have significantly improved the quality of life for more than 1400 individuals with intellectual and developmental disabilities and their families. Most have been waiting with urgent needs for many years. The Commonwealth has also developed and implemented a successful discharge planning and transition process and a post-move monitoring program. More than 300 individuals have received needed supports to move from Training Centers and to live in integrated community settings. Although there have been individual exceptions, independent reviews of their services have documented that they now live in typical neighborhoods, have adjusted well, and have had overall positive life outcomes.
At this phase of implementing the Settlement Agreement’s obligations, the Commonwealth has achieved compliance with a majority of provisions that were due by this point in time. By developing and operating new required programs during the recent review period, it has newly achieved compliance. Nonetheless, progress toward achieving compliance with other major provisions of the Agreement has not been what was expected or needed by individuals with ID/DD and their families. During the next six months, it is critical that the Commonwealth make major strides in several areas of non-compliance. These areas of systemic reform include developing and effectively implementing plans to develop a statewide crisis service systems for children; increasing community living options; offering integrated day activities; and providing opportunities for children to transition from living in nursing facilities to integrated community settings with needed supports.
As these needed developments occur, the Commonwealth must continue to take deliberate action to build and comply with the Quality and Risk management systems called for in the Settlement Agreement. As these plans are finalized and implemented, the Commonwealth must pay careful
35
	
  

attention to gathering needed data and information, including a complete list of risks of harm, so its quality and risk management system is able to “ensure that all services for individuals receiving services … are of good quality, meet individuals’ needs, and help individuals achieve positive outcomes, including avoidance of harms, stable community living, and increased integration, independence and self-determination in all life domains ...”
With the change of administrations in the Commonwealth, there are many new leaders in the effort to implement the reforms in the Settlement Agreement. They, and their longer-serving staff and partners in sister agencies, have expressed strong commitment to fulfill the obligations of the Settlement Agreement. With new tools, with lessons learned from two years of implementation, and with new ideas of concrete steps to move forward, the Commonwealth is positioned to make significant progress. The year ahead should be characterized by implementation of strategies to create opportunities for meaningful community integration, to improve the teaching of skills to increase independence, implement a statewide core competency-based training curriculum for all staff, and to develop quality measures to guide future improvements in services and outcomes for individuals with ID/DD and their families.

Case Management

RECOMMENDATIONS

1. The Commonwealth should report by September 30, 2014, its plan to align its monitoring protocols, and sampling methodology, to document that the case management requirements of the Agreement are being properly implemented.

Licensing

2. DBHDS should report by September 30, 2014, its plan to fulfill the requirement that the licensure process assesses the “adequacy of individualized supports and services” and to report these data and assessments.

Community Living Options

3. The Commonwealth should report by August 31, 2014 its revised plan to increase community living options for the target population, including the use of available rental assistance funds.

4. The Commonwealth should report by August 31, 2014, its plan to facilitate individuals receiving waivers to live in leased LIHTC units. The plan should include actions to be taken to ensure careful coordination at the state and local level so that barriers are resolved and access is provided.

Integrated Day Activities and Supported Employment

5. The Commonwealth should report by September 30, 2014, its plan to provide guidance that ensures that CSB’s and ID and DD case managers, understand and fulfill their responsibility to implement the Employment First Policy. These responsibilities include that employment services and goals must be developed and discussed at least annually and included in the Individual Support Plan.

36
	
  

6. The Commonwealth should report its implementation plan by August 31, 2014, to provide individuals in the target population with non-work integrated day activities to the greatest extent practicable. The plan should include more specific objectives, an implementation schedule, measurable interim milestones, and an indication of the resources it will use to complete the implementation plan.
Crisis Services
7. The Commonwealth should report by September 30, 2014, the standards for all Regions’ crisis services for children, including each crisis service requirement of the Agreement, . and what it will document to demonstrate that the requirements have been properly implemented.
8. The Commonwealth should report by September 30, 2014, its plan to provide guidelines to appropriate agencies for use in directing individuals with DD to the point of entry to access the Regional crisis services.
Behavior Supports
9. The Commonwealth should report by September 30, 2014, its plan to ensure access to quality behavior specialists and supports, and for case management and licensing services’ monitoring protocols to include guidance as how to identify risks associated with an individual’s aggressive, dangerous, and disruptive behaviors. These includes monitoring if the individual’s mal adaptive behaviors negatively impacts on his or her:
 ability to learn new skills  participate in their communities;  quality of life and independence; and  safety (the risk of harm to self, or others)
When provided, the monitoring protocol should confirm that behavior support services include the elements that are considered necessary for good quality assessment, services, staff training, and to measure progress. If restrictions are imposed, such restrictions should be monitored to ensure that they receive required external review and approval, and that the plans include teaching skills to reduce the need for the restrictions.
Mortality Reviews
10. The Commonwealth should report by August 31, 2014, its assessment of data about the causes of accidental deaths for 2012 and 2013 and actions taken, or planned, to address areas of concern.
11. The Commonwealth should report by September 30, 2014, its plan to gather and provide to the MRC information related to the deaths of individuals receiving services under the Agreement who die in nursing facilities, hospitals, or non-licensed locations.
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APPENDICES
A. Individual Reviews B. Crisis Services C. Integrated Day Activities and Supported Employment D. Community Living Options E. Licensing

Page #
A2 A13 A35 A57 A62

A1

\

APPENDIX A INDIVIDUAL REVIEWS 
 October 7, 2013 – April 6, 2014

Completed by:
 Donald Fletcher, Independent Reviewer

Elizabeth Jones, Team Leader
 Marisa Brown MSN
 Barbara Pilarcik RN
 Shirley Roth MSN
 Patrick Heick Ph.D.

A2

Demographic Information

Sex

n

Male

17

Female

10

Age ranges

n

Under 21

13

21 to 30

10

31 to 40

2

41 to 50

1

51 to 60

1

Levels of Mobility

n

Ambulatory without support

24

Uses wheelchair

1

Total assistance

2

Authorized Representative

n

Guardian

20

Authorized Representative

7

Type of Residence

n

Group home

9

Family home

16

Sponsored home

2

Nursing home

0

Highest Level of Communication

n

Spoken language, fully articulates without assistance

7

Limited spoken language, needs some staff support

7

Communication device

2

Gestures

9

Vocalizations

2

% 63.0% 37.0%
% 48.1% 37.0% 7.4% 3.7% 3.7%
% 88.9% 3.7% 7.4%
% 74.1% 25.9%
% 33.3% 59.3% 7.4%
0%
% 25.9% 25.9% 7.4% 33.3% 7.4%

A3

Below are the positive outcomes and areas of concern related the individuals’ healthcare.

Healthcare Items - positive outcomes

Item

n

Y

Did the individual have a physical examination within the last

27

100.0%

12 months or is there a variance approved by the physician?

Were the Primary Care Physician’s (PCP’s) recommendations

27

92.6%

addressed/implemented within the time frame recommended

by the PCP?

Were the medical specialist’s recommendations

26

92.3%

addressed/implemented within the time frame recommended

by the medical specialist?

Is lab work completed as ordered by the physician?

27

100.0%

If applicable per the physician’s orders,

11

90.9%

Does the provider monitor fluid intake?

Does the provider monitor food intake?

19

100.0%

Does the provider monitor seizures?

12

100.0%

Does the provider monitor positioning protocols?

16

100.0%

Does the provider monitor bowel movements?

20

100.0%

Were appointments with medical practitioners for essential

6

100.0%

supports scheduled for and, did they occur within 30 days of

discharge?

If ordered by a physician, was there a current psychological

9

88.9%

assessment?

If ordered by a physician, was there a current speech and

8

87.5%

language assessment?

N 0.0% 7.4%
7.7%
0.0% 9.1% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0%
12.5%

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
11.1%
0.0%

Healthcare Items – areas of concern

Item

n

Y

Did the individual have a dental examination within the last

27

74.1%

12 months or is there a variance approved by the dentist?

Are there needed assessments that were not recommended?

27

29.6%

Does the provider monitor weight fluctuations, if applicable

24

83.3%

per the physician’s orders?

If weight fluctuations occurred, were necessary changes made,

18

77.8%

as appropriate?

If applicable, is there documentation that

caregivers/clinicians

Did a review of bowel movements?

10

80.0%

Made necessary changes, as appropriate?

7

71.4%

If applicable, is the dining plan followed?

6

83.3%

Is there documentation that the individual and/or a legal

16

50.0%

guardian have given informed consent for the use of

psychotropic medication(s)?

If the individual receives psychotropic medication is there

16

37.5%

documentation of the intended effects and side effects of the

medication?

N 25.9% 70.4% 16.7% 22.2%
10.0% 28.6% 16.7% 43.8%
43.8%

CND 0.0% 0.0% 0.0% 0.0%
10.0% 0.0% 0.0% 6.3%
18.8%

A4

Below are the positive outcomes and areas of concern related the individuals’ support plans.

Individual Support Plan Items – positive outcomes

Item

n

Y

Is the individual’s support plan current?

27

92.6%

Is there evidence of person-centered (i.e. individualized)

27

96.3%

planning?

Are essential supports listed?

27

100.0%

Is the individual receiving supports identified in his/her individual support plan?
Residential Medical Recreation Mental Health Transportation

25

92.0%

27

100.0%

27

96.3%

15

100.0%

25

96.0%

N 7.4% 3.7%
0.0%
8.0% 0.0% 3.7% 0.0% 4.0%

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0%

Individual Support Plan Items – areas of concern

Item

n

Y

Has the individual’s support plan been modified as necessary

11

36.4%

in response to a major event for the person, if one has

occurred?

Do the individual’s desired outcomes relate to his/her talents,

27

81.5%

preferences and needs as identified in the assessments and

his/her individual support plan?

Does the individual’s support plan have specific outcomes and

27

25.9%

support activities that lead to skill development or other

meaningful outcomes?

Does the individual’s support plan address barriers that may

27

14.8%

limit the achievement of the individual’s desired outcomes?

If applicable, were employment goals and supports developed

21

4.8%

and discussed?

Is the individual receiving supports identified in his/her

individual support plan?

Day/Employment

17

70.6%

Dental

27

71.4%

Communication/Assistive Technology

11

45.5%

Has the individual’s support plan been modified as necessary

11

36.4%

in response to a major event for the person, if one has

occurred?

N 63.6%
18.5%
74.1%
85.2% 95.2%
29.4% 28.6% 54.5% 63.6%

CND 0.0%
0.0%
0.0%
0.0% 0.0%
0.0% 0.0% 0.0% 0.0%

The 2012 to 2014 comparison indicates there has been significant progress with case managers review for individuals who qualify for monthly face-to-face visits.

COMPARISON – Case Management

There is evidence of case management review, e.g. meeting with the individual face-to-face at least every 30

days, with at least one such visit every two months being in the individual’s place of residence.

1st review period

3rd review period

4th review period

% change

2012

2013

2014

+, (-)

46.9% (15 of 32)

88.9% (24 of 27)

100% (19 of 19)

+53.1%

A5

Below are areas of concern related to the development of the individual support plans and integration outcomes of individuals in their communities.

Integration items – areas of concern

Item

n

Y

Were employment goals and supports developed and

21

4.8%

discussed?

If no, were integrated job opportunities offered?

20

15.0%

Does typical day include regular integrated activities?

20

10.0%

Have you met your neighbors?

27

48.1

Do you belong to any community clubs or

27

18.5

organizations?

Do you participate in integrated community volunteer

27

7.4%

activities?

Do you participate in integrated community

27

22.2%

recreational activities?

N 95.2%
85.5% 90.0% 48.1% 81.5%
88.9%
77.8%

CND 0.0%
0.0% 0.0% 3.7% 0.0%
3.7%
0.0%

Below are positive outcomes and areas of concern in the residential programs where case managers monitor the implementation of support plans.

Residential Staff – positive outcomes Items

Item

n

Y

Is there evidence the staff has been trained on the desired 26

96.2%

outcome and support activities of the individual’s support

plan?

Is the staff working with the individual as detailed

26

100.0%

(consider the individual’s Behavior Support Plan or ISP

regarding the level of support needed)?

Is residential staff able to describe the individual’s health 26

96.2%

related needs and their role in ensuring that the needs

are met?

N 3.8%
0.0%
3.8%

CND 0.0%
0.0%
0.0%

Residential Environment Items – positive outcomes

Item

n

Y

N

Is the individual’s residence clean?

16

93.8% 6.3%

Does the individual appear well kempt?

27

100.0% 0.0%

CND 0.0% 0.0%

Residential Environment Items – areas of concern

Item

n

Y

Are food and supplies adequate?

9

66.7%

Is the residence free of any safety issues?

9

55.6%

Is there evidence of personal décor in the individual’s

9

44.4%

room and other personal space?

N 33.3% 44.4% 44.4%

CND 0.0% 0.0% 11.1%

A6

Below are descriptions of the behavior support needs of the twenty-seven individuals who were studied.

Behavioral Supports Needs

Item

n

Does the individual engage in any behaviors (e.g., self-

27

injury, aggression, property destruction, pica,

elopement, etc.) that could result in injury to self or

others?

Does the individual engage in behaviors (e.g.,

27

screaming, tantrums, etc.) that disrupt the environment?

Does the individual engage in behaviors that impede

27

his/her ability to access a wide range of environments

(e.g., public markets, restaurants, libraries, etc.)?

Does the individual engage in behaviors that impede

27

his/her ability to learn new skills or generalize already

learned skills?

Does the individual engage in behaviors that negatively 27

impact his/her quality of life and greater

independence?

Y 59.3%
51.9% 44.4% 29.6% 51.9%

N 40.7%
48.1% 55.6% 70.4% 48.1%

CND 0.0%
0.0% 0.0% 0.0% 0.0%

Heick Ph.D. BCBA-D reviewed the services of eight of the 27 individuals in the study. These eight individuals were selected because their annual Support Intensity Scale assessments indicated the need for behavioral support services. A copy of Dr. Heick’s report is follows at Appendix A.1.

Behavioral Supports Needs

Item

n

Does the individual engage in any behaviors (e.g., self-

8

injury, aggression, property destruction, pica,

elopement, etc.) that could result in injury to self or

others?

Does the individual engage in behaviors (e.g.,

8

screaming, tantrums, etc.) that disrupt the environment?

Does the individual engage in behaviors that impede

8

his/her ability to access a wide range of environments

(e.g., public markets, restaurants, libraries, etc.)?

Does the individual engage in behaviors that impede

8

his/her ability to learn new skills or generalize already

learned skills?

Does the individual engage in behaviors that negatively 8

impact his/her quality of life and greater

independence?

Y 100%
87.5% 87.5% 50.0% 87.5%

N 0.0%
12.5% 12.5% 50.0% 12.5%

CND 0.0%
0.0% 0.0% 0.0% 0.0%

A7

7 (87.5%) of the 8 individuals were engaging in aggressive and destructive behaviors. These behaviors impeded these individuals’ ability to access a wide range of environments and negatively impacted their quality of life and greater independence. The chart below indicates the previous and current planning for behavior support. One of the eight individuals had a current Behavior Support Plan.

Name (see confidential
addendum)
1 2 3 4 5 6 7 8

Behavior Support Planning

Previous Functional Behavior

Previous Behavior Support
Plan

Current Functional Behavior
Assessment

Assessment

N

N

N

Y

Y

N

not provided

Y

Y

N

Y

Y

Y

in development

Current Behavior Support Plan
N N N N not provided N Y in development

A8

APPENDIX A.1.
 Behavioral Support Summary

Completed by:
 Patrick F. Heick, Ph.D., BCBA-D

A9

To: Donald J. Fletcher, Independent Reviewer From: Patrick F. Heick, Ph.D., BCBA-D, Manager, PFHConsulting, LLC RE: UNITED STATES v. VIRGINIA, CIVIL ACTION NO. 3:12cv59-JAG Date: May 2, 2014

The following Behavioral Supports Summary and Confidential Addendum were prepared and submitted in response to Donald Fletcher’s request to summarize a small sample of reviews completed as part of his larger Individual Review Study. More specifically, the following summary is based upon the reviews of eight individuals, a sample selected from a larger sample (n=27) by Mr. Fletcher, which included visits to each of their homes or residential programs, completed with Elizabeth Jones, on March 8-10, 2014. This summary is submitted in addition to previously submitted Monitoring Questionnaires completed for each of the eight individuals reviewed. As detailed in the Addendum, items on the Monitoring Questionnaires were scored based on information obtained through onsite interviews, brief observations, and/or chart reviews as well as off-site phone interviews and/or reviews of provided documentation (see Confidential Addendum for more specific information). It should be noted that, although items within other sections of the Monitoring Questionnaire were completed (e.g., Section 8 Supplemental Questions as well as Section 9: Supplemental Questions), items within Section 9: Behavioral Interventions were only completed for one individual (#7 in Confidential Addendum) as a currently implemented behavior support plan was only provided for one of the eight individuals sampled.

Findings

Summary

1. Based on a review of the individuals’ service records and other provided documentation, onsite observations, and interviews, it appeared that most of the individuals sampled would likely benefit from formal behavioral programming, or other therapeutic supports, implemented within their homes or residential programs. More specifically, of those sampled, eight (100%), seven (88%), and seven (88%) engaged in behaviors that could result in injury to self or others, that disrupted the environment, and that impeded his/her ability to access a wide range of environments, respectively. However, only two (25%) of the individuals sampled were reportedly receiving formal behavioral programming at the time of the on-site visit (see below for more specific information). A third individual was identified as receiving behavioral supports at the time of the on-site visit, however a formal behavior support plan was not yet in place. Overall, all (100%) of the individuals sampled appeared to demonstrate maladaptive behavior and/or evidenced skill deficits that negatively impacted their quality of life and greater independence. Consequently, it appeared that all of these individuals would likely benefit from positive behavioral or other therapeutic supports. Indeed, in lieu of these types of supports, some families appeared to be designing and implementing programs (e.g., behavior strategies, communication systems) without expert support and guidance.

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2. Based on a review of the individuals’ service records and other provided documentation, onsite observations, and interviews, it appeared that two (25%) of the individuals sampled (#5, #7) were currently receiving formal behavioral programming. However, evidence of systematic behavioral programming (e.g., current functional behavior assessment, behavior support plan, and/or data collection and regular data review), although reported to be completed and/or in place, was not provided for one of the two individuals. More specifically, verbal reports indicated that a functional behavioral assessment was completed and documentation (i.e., ‘Client/Family Service Plan’) indicated that a “Behavioral plan will be developed” and “Safety plan will be developed” (i.e., with an expected date of completion of 8/30/13) for one of the individuals (#57) sampled; however, evidence that these were completed and in place was not provided. When evidence of current systematic behavioral interventions was provided (i.e. for #7), current behavioral programming appeared inadequate. A third individual (#8) appeared to require significant behavioral supports, however, although planning was underway, a formal behavior support plan had not yet been implemented. Overall, of the individuals sampled, zero (0%) appeared to have adequate behavioral programming in place.
3. Based on a review of the individuals’ service records and other provided documentation, onsite observations, and interviews, it appeared that all of the individuals living in residential programs experienced rights restrictions that were not identified by the residential provider as restrictive and/or necessitating the review by an independent human rights committee. More specifically, of the three individuals sampled living in residential programs (#4, #6, #7), all (100%) experienced restrictive strategies that limited their access to clothing, food, or other items (e.g., sharps). And, although these restrictions might be necessary to ensure their or others’ safety or quality of life, these restrictions did not appear to be reviewed and/or approved by a human rights committee (HRC) for any (0%) of the individuals reviewed. It should be noted that evidence suggested that one of the individual’s teams (i.e. #4) pursued HRC review for a behavior support plan that had been previously in place. It was unclear if this review included a discussion of the identified restriction.
Conclusions
1. It appeared that most of the sampled individuals were not receiving behavioral supports and/or other therapeutic services that could address unsafe and disruptive as well as skill deficits that would likely improve their independence and quality of life. It was unknown whether or not case managers identified the need for these additional supports, communicated the potential benefits of these supports, and/or facilitated access to these support and services for families.
2. It appeared that, for those few individuals currently identified as receiving formal behavioral supports or behavioral therapy, behavioral programming was inadequate.
3. It appeared that individuals receiving services in residential programs experienced rights restrictions that were not adequately reviewed and/or approved by an independent human rights committee.
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Recommendations/Suggestions 1. Consistent with Section V.5 of the Settlement Agreement, the Commonwealth shall “ … ensure that appropriate services are available and accessible for individuals in the target population …”. It appears that, in some cases, additional services, such as those provided by behavioral analysts or speech language pathologists, should be available and known to individuals and their families. Consequently, it is recommended that case managers assist families in identifying the need for and, when appropriate, accessing necessary behavioral services or supports (or other). 2. Consistent with Section V.5 of the Settlement Agreement, the Commonwealth shall “ … ensure that all services for individuals receiving services under this Agreement are of good quality …”. That is, those individuals receiving behavior supports should receive quality supports. Consequently, it is recommended that the Commonwealth, though the work of their case managers or others, critically examine and ensure the quality of the behavioral supports being provided to individuals receiving those services. 3. Consistent with Section V.5 of the Settlement Agreement, the Commonwealth shall ensure “ … increased integration, independence, and self-determination in all life domains …”. That is, individuals should have the ability to independently access items without undue restriction or dependence on staff. Consequently, it is suggested that any potential rights restriction be reviewed and approved by an independent human rights committee prior to their implementation. When rights restrictions are restricted, behavioral programming should be implemented in an effort to reduce the future need for such restrictions.
Respectfully submitted by,
Patrick F. Heick, Ph.D., BCBA-D Manager, PFHConsulting, LLC
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APPENDIX B
 CRISIS SERVICES REQUIREMENTS

By: Kathryn du Pree MPS

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CRISIS SERVICES REVIEW OF THE VIRGINIA REACH PROGRAM FOR THE INDEPENEDENT REVIEWER FOR THE COMMONWEALTH OF VIRGININA VS. THE US DOJ
PREPARED BY KATHRYN DU PREE, MPS EXPERT REVIEWER MAY 6, 2014
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TABLE OF CONTENTS

Section 1: Overview of the Requirements

3

Section 2: Purpose of the Review

3

Section 3: Review Process

4

Section 4: A Statewide Crisis System for Individuals

with ID and DD

4

Section 4A: Review of the Crisis Services Plan to Serve

Children and Adolescents

5

Section 4B: REACH Services for Adults

12

Section 5: Elements of the Crisis Response System 18

Section 6: Summary

29

Table 1: Summary of the Regions’ Plans for Crisis Services for Children

and Adolescents

10

Table 2: START Adult Consumer/Family Perception Survey

16

Table 3: REACH In-Home Services During the Third Quarter of FY14 23

Table 3: Individuals Using the REACH Crisis Stabilization Units During

Quarters 2 and 3 of FY14

26

Table 4: Comparison of the Average Length of Stay to the Total Capacity

of the REACH CSU during Quarter 3 of FY14

28

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SECTION 1: OVERVIEW OF REQUIREMENTS Donald Fletcher, the Independent Reviewer has contracted with Kathryn du Pree as the Expert Reviewer to perform the review of the crisis services requirements of the Settlement Agreement for the time period 10/7/13-4/6/14. The review will determine the Commonwealth of Virginia’s compliance with the following requirements:
The Commonwealth shall develop a statewide crisis system for individuals with ID and DD; provide timely and accessible supports to individuals who are experiencing a crisis; provide services focused on crisis prevention and proactive planning to avoid potential crises; and provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual from his or her current setting whenever practicable. This will be the fourth review of crisis services and prevention and will focus on the recommendations made by the Independent Reviewer in his report of December 6, 2013.
SECTION 2: PURPOSE OF THE REVIEW This review will build off the review completed last fall for the review period through 10/6/13 and the recommendations the Independent Reviewer made in his last Report as a result of the conclusions and findings of that review. It will focus on those areas that were not in compliance and the Independent Reviewer’s related recommendations. This focus will be on:
• The Commonwealth’s ability to serve adults with developmental disabilities in terms of crisis prevention and intervention services ensuring this target population, including those on the waiting list, has case management services to facilitate full access to crisis services and stabilization programs, and access to community supports to prevent future crises
• Outreach strategies to ensure families of individuals with DD are aware of and can access crisis prevention and intervention services
• The Commonwealth’s ability to provide crisis prevention and intervention services to children with either intellectual or developmental disabilities. A plan to address this population is to be provided to the Independent Reviewer by 3/31/14. It is to include outreach, education of case managers, referral process, CSB involvement, community supports, a methodology to track the need for out-of -home placement, and placement outcomes for children who are placed out of home.
• The DBHDS’ methodology to track training for Case Managers in CSBs serving individuals with intellectual disabilities and actions to train all DD Case Managers by 3/31/14.
• The status of training of CSB Emergency Services workers to be completed by 6/14. • The Commonwealth’s plan to reach out to law enforcement and criminal justice personnel to
link individuals with intellectual and developmental disabilities (I/DD) to crisis intervention services to prevent unnecessary arrests or incarceration • The number of individuals who were removed from their homes to an out-of-home placement during a crisis, the duration of the placement and the number of individuals who were not able to return to their original home or residence. • The status of establishing the crisis stabilization units (crisis therapeutic homes) in Regions IV and V.
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• The impact of changes in the practices of the crisis services and crisis stabilization units on the Commonwealth’s compliance with the prevention, timely response, and in-home service aspects of the crisis system.
• The satisfaction of the families who have used the crisis intervention service system, now called REACH.
SECTION 3: REVIEW PROCESS The Expert Reviewer reviewed relevant documents and interviewed key administrative staff of DBHDS, and REACH administrators to provide the data and information necessary to complete this review and determine compliance with the requirements of the Settlement Agreement.
Document Review: Documents reviewed included: 1. The DD Crisis Response System: “My Life, My Community” 2. Crisis Response System for Children and Adolescents with ID/D 3. The regional implementation proposals for children and adolescent crisis services 4. The National START Center Semi-Annual Report: 7/1/13-12/31/13 5. State and Regional Quarterly reports for 10/7/13-12/31/14 and 1/1/14-3/31/14
Interviews: The Expert Reviewer interviewed the Assistant Commissioner for Developmental Services, Crisis Services State Coordinator, a REACH Program Manager, a Regional REACH Coordinator, and the State Director of the arc. I also participated in one meeting of all of the REACH Coordinators. The Expert Reviewer interviewed seven families randomly selected who have used Crisis Services to determine their level of satisfaction and elicit any recommendations they have for improvement. I appreciate the time that everyone gave to contributing important information for this review.
SECTION 4: A STATEWIDE CRISIS SYSTEM FOR INDIVIDUALS WITH ID and DD The Commonwealth is expected to provide crisis prevention and intervention services to individuals with either intellectual or developmental disabilities as part of its obligation under Section 6.a. of the Settlement Agreement that states: The Commonwealth shall develop a statewide crisis system for individuals with ID and DD. The crisis system shall:
i. Provide timely and accessible support to individuals who are experiencing crises, including crises due to behavioral or psychiatric issues, and to their families;
ii. Provide services focused on crisis prevention and proactive planning to avoid potential crises; and iii. Provide in-home and community –based crisis services that are directed at resolving crises and preventing the
removal of the individual from his or her current placement whenever practicable.
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A. REVIEW OF THE CRISIS SERVICES PLAN TO SERVE CHILDREN AND ADOLECENTS
The Commonwealth focused on developing these services for adults to date and has not had them available for children and adolescents with ID/D in any coordinated and consistent fashion although there are various supports available in different parts of Virginia to respond to children and adolescents in crisis that may include young people with ID/D.
The Independent Reviewer directed DBHDS to develop a plan for crisis services for children and adolescents with ID/D by March 31, 2014. The plan was to include outreach, education of case managers, referral processes, CSB involvement, community supports, a methodology to track the need for out-of –home placements, and placement outcomes for children who are placed out of home. The DBHDS issued “My Life, My Community: A Road Map to Creating a Community Infrastructure “on January 6, 2014. This document included a section about Children’s Crisis Supports. This plan outlined key components of a crisis response system for children based on the review of children’s crisis programs across the country. These components include:
ü The availability of services 24 hours a day, 7 days per week ü A multidisciplinary team of staff consisting of clinicians, nurses, case manager, and psychiatrist ü Mobile Teams trained to assess the crisis, prescribe an appropriate intervention and implement
the course of treatment within the family’s home ü Post crisis time limited supports and services to the individual and/or family ü Access to hospitalization for stabilization and mental health treatment including health
assessments when the child is presenting symptoms indicating s/he is a danger to self or others. The goal is for the child to return home as soon as possible after being stabilized. ü Access to out-of-home placement in a therapeutic foster home when the crisis cannot be deescalated in the home, as a last option
The plan defines the role of a Navigator that will be the lead person in each region to coordinate children’s crisis services and will collaborate with an array of stakeholders to develop a regional crisis response system that coordinates existing resources and systems of care to ensure the effective use of existing resources and building upon them as service gaps are identified. Services are to include crisis resolution, comprehensive case management, assistance to families to navigate service systems, demonstrate and train family caregivers and service providers in effective crisis interventions, and observe and enhance these techniques as used by caregivers.
The Mission of the crisis response system for children is:
To assist families and their support systems in developing and maintaining a stable and happy home for children who have been identified as having an intellectual or developmental disability. The Target Population is children and families with children under eighteen years of age who have experienced a crisis event that their family and support system need assistance to resolve.
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DBHDS anticipates that the children’s crisis response system will teach caregivers the warning signs of impending crises and strategies to avert the crisis; phone support; crisis de-escalation; development of a short-term crisis support plan; medical screening and referral; family and support system assessment and the development of a comprehensive support plan; training for crisis plan implementation; behavior assessment or functional analysis; parent training; intensive in-home respite services; services and supports linkages; alternative placement in a therapeutic foster home; and referrals to inpatient hospitalization when necessary to insure the safety of the individual, family and support system. DBHDS anticipates the children’s crisis response system being developed in four phases beginning with the department’s notification of funding (3/14):
Phase I: 3 months from notification of funding (3/14)- Hire the Regional Program Developer/Navigator: 3 months Phase II: 3-6 months- Hire or contract for the Child Coordinator and the Child Community Professional. Launch services in July 2014 Phase III: 6 months- possible program expansion based on the needs identified in the first six months of operation. A decision will be made about expansion and cross-training REACH clinical staff in providing or developing supports to enhance the comprehensive system. Phase IV: 2-3 years- program expansions based on documented need for crisis services.
Timelines: Timelines are set in the plan for establishing implementation milestones, hiring and training children’s staff, developing a communication strategy and doing home modifications. All of this was to be accomplished by 3/31/14. Regions were asked in March to submit their specific proposals and these were due on March 14, 2014. I review these plans and summarize my conclusions in Table 1. None of the timelines set in the January 2014 plan have been met. Full implementation is anticipated for August 31, 2014.
A more detailed planning document, “Crisis Response System for Children with ID/D” was issued by Connie Cochran, Assistant Commissioner, Division of Developmental Services, DBHDS, on February 4, 2014. While acknowledging it is not a road map, it describes the purpose of a crisis response system for children, how DBHDS will establish children’s crisis operations, and the expectations and timeline for regions submitting proposals to secure funding and departmental approval of individual regional initiatives. Key elements to be addressed in the plans are:
ü Identify the Program Developer ü Detail the use of evidence based practices or models ü Detail how resources will be leveraged to reach all parts of the region with evidence based
services or treatment ü Identify how the region will determine which target priority population the program will serve ü Identify the initial sub-populations to be served through age 17 who may also have co-
occurring mental health or behavioral health problems; be involved in the juvenile justice or court systems, have a history of frequent use of emergency services; have required long-term mental health supports; or have a history of hospital admission for mental health treatment.
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Funding will be provided to each region through FY15 with a base allocation of $225,000. Additional
 funding may be available and each region was to submit budgets through FY16. 
 Examples are provided of the type of services that may be included (italics mine). These are mobile
 crisis response, intensive in-home support, child psychiatry, evidence based treatment team models. 
 This list of services is prefaced that they are examples of services that should be funded. 

I will next provide a summary of the regional proposals evaluating them compared to the DBHDS
 expectations and those articulated by the Independent Reviewer in terms of his expectations of the
 crisis response system for children. I want to comment on the DBHDS plan before reviewing the
 regional proposals. It is a positive step that DBHDS is creating a plan to provide crisis services to 
 children and adolescents with ID/D. Expecting the regions to develop a plan that uses evidence-based 
 models and practices and that builds on existing services and supports through the strengthening of 
 community partnerships provides the right direction. However, there is not a consistent message or
 expectation set for the regional proposals to fulfill the Agreement’s Crisis Services requirements for a
 statewide crisis system with in-home and community based services, mobile response in two hours, and 
 short term alternatives to institutionalization.

The DBHDS expectation of specific services is more detailed in its “My Life, My Community” Plan. 
 All of the supports that are articulated in the plan are not included in the request for proposals used on
 2/4/14. This may be due to the foundation of this initiative, which is to build upon the existing
 supports and services that are available in each region for children with ID and DD who experience a
 crisis. However the request for proposal does not require regions to identify all that exists currently in
 their region, who it is available to, if the capacity is sufficient to meet the need and then identify how
 the region will use the funding from DBHDS to supplement existing services and address gaps so that
 all the components of the ideal crisis response system will be available over time. Each region proposes
 to complete a needs assessment as its first phase of development. Four of the five regions include
 resource identification and a gap analysis as well as a determination of the projected needs of children
 and adolescents for crisis intervention. Region IV should also complete a gap analysis as part of its
 needs assessment. Region III needs to conduct a needs assessment.

The DBHDS needs to clarify its expectations of the children’s crisis response system so that each
 region is offering the full range of required crisis services and supports to individuals with an ID/DD
 diagnosis that are required by the Agreement, realizing that the provider and/or funding sources for
 these services may differ across regions.

The DBHDS also needs to clarify the expectation that all children and adolescents through age of 
 seventeen will have access to the children’s crisis response system. The Development of Child ID/D
 Crisis Services from the Assistant Commissioner includes conflicting information. It first states that the
 DOJ Settlement Agreement requires DBHDS to fully fund a crisis stabilization program by FY14 for
 children under the age of 18. The Development of Child ID/D Crisis Services includes a request that
 the region determine/narrow down which target populations the program will serve as part of the key
 elements to address. At least one region plans to serve only adolescents and does not respond to the full
 age range of children and adolescents. If the narrowing of the population infers that a region can select
 from among the factors of having a mental health or behavioral problem, being involved with the
 court system, using emergency response or inpatient services, that is unresponsive to the Settlement
 Agreement. 

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TABLE 1: SUMMARY OF THE REGIONS’ PLANS FOR CRISIS SERVICES FOR CHILDREN AND ADOLESCENTS

PLAN ELEMENT Timelines Budget Program Model Needs Assessment Gap Analysis Community Linkages Formal Agreements Target Group Outreach Referral Process Csb Role Cm Training Data Collection

REGION I REGION II

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

No

Yes

Only 16-18

Yes

No

Yes

Yes

Yes

Yes

No

No

Yes/Not SpecificYes

Staffing

Yes

Yes

Training

Yes

Yes

Mobile Child Crisis Yes

Yes

Response

Psychiatric Services

Yes

Yes

In-Home Services

No

No

Respite Services

No

Yes*

Out Of Home AlternativeYes

Yes*

Hospital Access

Yes

No

REGION III No No Yes No Yes Yes No 15-17 Initially No Yes Yes No Yes
Yes Yes Yes

REGION IV Yes Yes No Yes No Yes Yes Yes No Yes Yes No Yes/Not Specific Yes No Yes

REGION V Yes Yes No Yes Yes Yes No Yes No Yes Yes No Yes/Not Specific
No No No

Yes

Yes

Yes

Yes

Yes

No

No

Yes

No

No

Yes

No

No

Yes

No

Region I has a fully developed proposal that includes tele-psychiatry in addition to contracting for child psychiatric services. The focus is placed on crisis assessment and coordination of services. The proposal indicates using the START model but does not specifically state whether in-home or respite services will be available.
Region II includes a unique plan to provide training about the Autism Spectrum Disorder for providers, families, and health professionals. Region II plans to collect data about children under the age of 17 but currently has no plans to serve or coordinate services for all children in crisis. Region II also notes to limitations of the current budgetary allocation to serve all children with ID or DD in need. Respite services and out of home placement are noted with an asterisk because there is mention of out of home crisis stabilization but no detail to determine how this will be provided and if this includes respite.
Region III did not include a budget or a specific timeline but did indicate that funding is requested for staffing. The Region is proposing to fund family crisis support grants to help families with financial hardship. There is no discussion of out-of-home services or access to psychiatric hospitalization. Psychiatric services will be available through tele-psychiatry but no additional psychiatric consultation is included.
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Region IV does not have an evidenced-based program model. Training is mentioned but is not at all detailed, which is why it is noted in Table 1. It does detail the availability of respite services and also proposes to offer crisis support funding for families.
Region V does not include an evidenced-based practice model to serve children and adolescents. The proposal references training but provides no specificity. Services are listed in the budget document in terms of their relationship to funded Medicaid services but the proposal does not specify any or them of how they will be provided. The Region is only requesting funding for one position, the Children’s Crisis Program Developer but no other staffing support is proposed.
Conclusions: The DBHDS has developed a plan to serve children and adolescents and has set an expectation that services and supports will begin to be implemented by July 2014. However, there is no requirement of the REACH Programs to create standardized crisis services systems for children and adolescents across the regions. The funding available was not determined based on an analysis of the need and regional proposals indicate the need for additional funding. Of particular concern is the lack of outreach to families, no plan to train case managers, and no consistent data collection requirements. The DBHDS is providing initial funding but it is impossible to know if the level of funding is adequate until the needs assessments and gap analyses are completed. The Commonwealth is not in compliance with Section III.C.6.a.i, ii, and iii of the Settlement Agreement because crisis services are not systematically in place and available to children and adolescents.
Recommendations: The DBHDS has developed a road map to initiate the planning process for serving children and adolescents with I/DD who are in crisis. The elements it proposes are necessary for effective services to be developed. It needs to insure that all of the regions develop and implement a standardized crisis services system for all individuals with a diagnosis of ID or DD. While regional differences exist in terms of the existing capacity and expertise to serve children and adolescents, it is important that the same expectations are set by DBHDS for each regional program and that the regions are monitored to insure consistent implementation. The DBHDS should create standardized requirements for:
ü Serving all children and adolescents up to the age of 18 who have ID/D and experience a crisis ü The continuum of services to include mobile crisis teams, in-home support, respite and access
to crisis stabilization and hospitalization ü Core staffing ü Core training for team members, case managers, providers and CSBs ü Outreach to families ü The data elements to be tracked to determine if outcomes are being achieved ü Program evaluation
I remain concerned about the access that children and adolescents with DD will have for crisis services. CSBs are the point of contact for children with ID and children with DD who also have a mental health diagnosis. The needs assessment should include a review of children and adolescents with DD who may be prone to behavioral crisis who may not have a psychiatric diagnosis. The SemiAnnual START Report for July - December 2013 indicates that 29% of adults referred to START do not have a psychiatric diagnosis. If there is a similar referral pattern among children and adolescents DBHDS will need to create referral and access protocols for them.
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B. REACH SERVICES FOR ADULTS
Regions continue to serve over 100 individuals per quarter as of the 2nd quarter for FY14. Joan Beasley reports they are on pace with START expectations and she believes VA will serve almost 600 individuals during FY14 which is comparable to FY13. As of March 31, 2014, the REACH Program has served 1014 individuals out of 1041 individuals who have been referred. During the second and third quarters a total of 165 new individuals were referred to REACH. The number of referrals is uneven in that sixty-nine individuals were referred in the second quarter and ninety-six were referred in the third quarter. Referrals are no longer pre-dominantly from families and secondarily from group homes. In this reporting period, Case Managers made 30% (21) of the referrals in the second quarter and 50% (48) of the referrals in the third quarter. This is a strong indication of the system taking hold with the CSBs and the Case Managers becoming more aware of REACH services and working proactively with individuals with dual diagnoses and their families.
Only 5% of the individuals have normal or borderline intelligence, which for the time period Dr. Beasley reported on totaled twelve individuals. It remains a concern that there is no plan for outreach to families of individuals with DD. The Independent Reviewer continues to ask the DBHDS to develop an outreach plan to the DD community. The one family member I spoke with whose son has DD, was referred by the police who were called to her home. Her son has no case manager as he is on the waiting list for the DD Waiver. He has still not been provided with a case manager.
The Independent Reviewer asked DBHDS to report on the outcomes for individuals who are hospitalized as a result of the crisis and what involvement START had with them prior to and post hospitalization. DBHDS is to report if these individuals eventually return home or if an alternative placement needs to be located for them. Nineteen individuals were hospitalized in the second quarter and ten individuals during the third quarter. Out of a total number of referrals of 178 individuals with final dispositions this represents 16%. The DBHDS was able to report on the information about seventeen of the individuals. Of the seventeen, REACH was involved with all but three who did not want services. Twelve of the individuals returned home and new placements in the community were found for two of them. The availability of this data is encouraging as is the involvement of REACH with individuals who are hospitalized. DBHDS needs to ensure reporting from all five regions on this data in the future.
Training is not required of ID or DD Case Managers. REACH Program staff do train CSB Case Managers and there is a training module on the web that can be accessed by ID or DD Case Managers. The Assistant Commissioner reports that DBHDS is determining if it will require this training and may use a Train the Trainers model so that each CSB has the capacity to train new Case Managers. I highly recommend that the DBHDS adopt this approach using a standardized training module and making the training a requirement in the CSB Performance Contracts. DBHDS now oversees the DD Waiver. REACH training should be provided to all DD Case Managers and should be required.
The REACH programs for individual age 18 and older are being designed to maintain the requirements of the settlement agreement as Regions III, IV, and V transition from START to REACH. The requirements are detailed in “My Life, My Community”. The services and supports offered through START will continue and the regions will emphasize more in-home support in immediate response to a crisis. As an example, Region III reports it will increase the availability of in-
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home supports from seventy-two hours as START offers to fifteen to thirty days to stabilize the situation.
DBHDS has requested that Joan Beasley, PhD develop standards for the program before the contract between DBHDS and the national START Program at UNH ends on June 30, 2014. She will collaborate with VCU so that they can monitor the provision of these services starting in FY15. If these standards are in place, if they align with the requirements of the Agreement, and if the teams continue to be trained in and effectively implement evidence-based practice, the REACH program model will meet the expectations of the Settlement Agreement for adults.
Conclusions: The DBHDS is not in compliance with Section III.C.6.a.i, 6.a.ii, and 6.a.iii. As I note above many elements are in place for adults with ID and the REACH teams are meeting the expectations for serving this specific population. However, DBHDS des not have a statewide crisis system in place for children and adolescents who experience a crisis. Nor can DBHDS assure that it is reaching all of the individuals with DD who need and may benefit from the crisis system.
Recommendations: The DBHDS should move ahead with its plans to develop a statewide coordinated crisis response system for children and adolescents and standardize its expectations across the five regional programs. DBHDS should determine how many of adults with DD are at risk of a crisis due to a dual diagnosis or who experience significant behavioral issues (one approach would be to complete a SIS for every individual who is on the DD Waiver, or if already available analyze the results). This information should be used to develop a targeted outreach program and to project future utilization of the crisis response system to enable a determination to be made of whether the REACH program is effectively responding to the needs of this group. Training should be required of all Case Managers.
C. The Survey of Families Using REACH
This review included a pilot of the START Stakeholder Perception Survey, which is used nationally by the Center for START Services. The intention was to conduct a telephone interview with a small sample of ten families to get a sense of satisfaction, and more importantly, to determine if this survey can be a useful tool for future reviews of crisis response services and if it can be used across a broader sample using either a telephone or mailed survey method. I asked the Regions to provide the names of all the individuals who used REACH services in the past three months. I randomly selected three names and sent the guardian or family contact a letter of introduction explaining the purpose of the review of Crisis Response Services in Virginia and requesting they participate in a telephone survey. I contacted a total of fifteen families in the hopes of conducting the survey with ten of them, two from each Region. I have spoken to seven of the families. While this is far too small a sample to draw any conclusions about the program it is of value to note that the range of services and supports offered by REACH are being provided and that of this small group there is general satisfaction with REACH. All of the families would recommend REACH to other families.
There are individual comments and circumstances that are of interest but cannot be generalized to the individuals receiving crisis support through REACH. One individual has been hospitalized and the family is seeking an out-of-home placement once the individual is stabilized. Another individual is awaiting hospitalization but there is not a current vacancy. In that case the family plans for the family member’s return. One individual has DD and was referred by law enforcement that responded to a
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call at the home. Because this individual is not yet on the DD Waiver there have not been any linkages with ongoing community supports after the helpful intervention of the REACH program. Families interviewed are generally very satisfied with REACH services. One concern was expressed about the amount of in-home support that was offered during a crisis. The family worked and need someone at the home during his or her working hours but were unable to receive that amount of in-home support. Families appreciate the availability of the crisis stabilization units for both emergency and planned respite. The only comments were about the incompatibility at times of the individuals using the REACH crisis stabilization unit and the cancellation of planned respite as a result of individuals with an emergency. The overall satisfaction and the delivery of the full range of crisis response services is a positive indication that REACH is providing successful crisis interventions.

Below is the summary of the responses to this telephone survey in Table 2.

Table 2: START ADULT CONSUMER/FAMILY PERCEPTION SURVEY

In order to provide the best possible services, START needs to know what you think about the services you received during the last six months and the people who provided it.
1. When was your most recent encounter with START?
 Within the last week __1___
 Within the last month __2___ 
 Within the last three months ___5__
 Within the last six months _____
 Within the last year _____

2. What service/s did you receive from START? (Check all that apply.)
 Consultation __7___
 Crisis intervention ___5__
 Crisis plan development ___5__
 Team planning ___3__
 Caregiver education and training ___3_
 Planned respite __4___
 Crisis respite __2___

3. During a crisis what type of response was provided by START? (Check all that apply.) 
 Phone consultation __4___ 
 On- site consultation __5___
 On- site crisis intervention ___7__

4. What was the outcome of START intervention?
 Was able to stay at home _6____
 Went to crisis respite __1___
 was admitted to a community hospital __1___
 Was admitted to a state hospital ___0__
 You were connected to someone else who could help you? __0___

______________________________________________________________________________________________________ ______

For Questions 5-17 the Scale is: Extremely, Very, Slightly, or Not At All

5.In general, how timely was the START response to your request for assistance during a crisis? Extremely: 1 Very: 5 Slightly: 1
6.Were you satisfied with the outcome that START provided? Very: 6 Slightly: 1
7.In general, how helpful was START involvement to you? Extremely: 2 Very: 4 Slightly: 1

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8.How knowledgeable was the START coordinator who helped you? Extremely: 2 Very: 5
9. How helpful was START in the development of a crisis plan? Extremely: 1 Very: 3 Slightly: 1 Not Applicable: 2
10. How effective was the crisis plan? Very: 4 Slightly: 1 Applicable: 2
11. How timely was the development of the crisis plan? Very: 5 Not Applicable: 2
12. How effective was START in training providers and others in the crisis plan? Extremely: 1 Very: 3 Not Applicable: 3
13. Were training and education events helpful? Very: 1 Not Applicable:
14. Was staff knowledgeable of topics presented? Very: 1 Not Applicable: 6
15. How helpful were the activities provided at the START respite house? Very: 3 Not Applicable: 4
16. How knowledgeable was staff of the START respite house? Very: 3 Not Applicable: 4
17. Overall, how satisfied are you with the services to you received through START? Extremely: 1 Very: 4 Slightly: 1
18. Would you recommend START services to others? Yes 7 No _____
Recommendations: Input from families who use REACH services is important to determine compliance with the Settlement Agreement. It is valuable to have this perspective to determine if the REACH Regional Programs continue to provide the full range of crisis supports expected, and if the program is successfully assisting families during crises and stabilizing individuals experiencing a crisis so they can stay in their home or return after short period of out-of-home crisis intervention. I recommend that future reviews include more in-depth reviews of a statistically valid sample of individuals using REACH. Each individual review should include a record review, interviews with case managers and REACH Coordinators, and satisfaction surveys with families.
SECTION 5: ELEMENTS OF THE CRISIS RESPONSE SYSTEM
6.b. The Crisis system shall include the following components: i. Crisis Point of Entry A. The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about and referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and staffed with clinical professionals who are able to assess crises by phone and assist the caller in identifying and connecting with local services. Where necessary, the crisis hotline will dispatch at least one mobile crisis team member who is adequately trained to address the crisis.
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REACH continues to be available 24 hours each day to respond to crises. During the second quarter of FY14, fifty-nine referrals occurred during business hours, six during evening hours and four during weekend hours. The CSB ES Teams made nine referrals out of forty-one reported. Twenty referrals were not reported in terms of the source. Data is missing from Region III so information for 35 individuals cannot be included in this analysis.
Ninety-six referrals were made to START during the third quarter of FY14. Eighteen of these were after normal business hours including twelve referrals during weekday evening hours and six referrals made during weekend hours.
Conclusion: The Commonwealth is in compliance with Section III.C.6.b.i.a
B. By June 30, 2012 the Commonwealth shall train CSB Emergency personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.
The Regions continue to train CSB ES staff and report on this quarterly. During this reporting period all Regions provided some training to CSB ES staff. The new reporting format initiated in Quarter 3 requires the regions to report the number of CSB ES staff trained. The total for this quarter was thirtyfour. Training occurred in Regions II, II, IV and V. During the second quarter all regions provided some training to CSB ES staff. The Independent Reviewer has requested a plan from DBHDS by June 30, 2014 that will specify that all CSB ES personnel will be trained using a standardized curriculum and this training will be tracked.
Conclusion: The Commonwealth is currently in compliance with Section III.C.6.b.i.B. To remain in compliance requires the submission of an acceptable training plan that assures all CSB ES staffs are trained to the Independent Reviewer by June 30, 2014. The plan should also include a tracking methodology. For prior reviews, DBHDS provide reports that included the total number of ES CSB staff who were trained and the number remaining to be trained. This level of detail was not available in the reports provided for this review period.
Recommendation: The CSB contracts should contain a provision regarding mandatory training of both CSB ES personnel and Case Managers and a reporting requirement to insure newly hired ES team members and case managers are trained in the future.
ii. Mobile Crisis Teams A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and
in other community settings and offer timely assessment, services support and treatment to de-escalate crises without removing individuals from their current placement whenever possible.
Through December 2013 START UNH continued to provide training to all of the regional programs using evidenced based training. Regions I and II are continuing their contracts with UNH and will continue to have staff trained by the national START trainers. Connie Cochran, Deputy Commissioner expects that Regions III, IV and V will sub-contract with Regions I and II for this training or get it directly through UNH. He reports that the REACH standards will require this training so DBHDS needs to provide documentation of this for the next review. DBHDS is creating a new team to advance clinical best practice. The team will oversee crisis services and
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employment. It will include a Behavioral Psychologist Level III who has a background in dual diagnosis. Dr. Beasley is working with VCU to create standards for the REACH program to be completed by June 30, 2014. These standards will include training requirements for START team members.
Conclusion: The Commonwealth is in compliance with Section 6.b.ii.A.
B. Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.
The teams continue to provide response, crisis intervention and crisis planning. During the second quarter sixty-nine services were requested at the time of referral including consultation, comprehensive evaluation, cross system crisis planning, emergency response services and emergency respite. While the report notes that sixty-eight individuals received follow-up as requested, the services requested are unreported for twenty of the individuals. During the third quarter ninety-six individuals requested specific services and ninety-four received the services requested during the quarter. In this reporting period the number of unreported requests dropped to four. Individuals requested consultation, cross system crisis planning, emergency response services, in-home support, planned respite and emergency respite. The REACH teams responded appropriately.
Conclusion: The Commonwealth is in compliance with Section 6.b.ii.B.
C. Mobile crisis team members adequately trained to address the crisis shall work with law enforcement personnel to respond if an individual comes into contact with law enforcement
No referrals from law enforcement are reported in either the second or third quarter although one
 family interviewed whose son has DD was referred by a police officer. 
 Regions do report on training and outreach to law enforcement personnel. 

ü Region I trained one law enforcement team ü Region II trained Prince William County and Loudoun County law enforcement
departments ü Region III developed a training schedule with regional and local law enforcement
departments ü Region IV trained law enforcement personnel in Richmond and trained twenty-four
officers in another department. REACH staff is compiling a listing of all police departments in the Region IV catchment area and will reach out to offer training ü Region V did not report any training with law enforcement personnel
The DBHDS has not responded to the Independent Reviewer’s request to develop a plan to insure that all law enforcement departments receive training in the REACH program. To date there has been no plan submitted that provides a schedule by when a module about REACH will be formally added to all CIT training or will be offered to all law enforcement departments through another method.
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Conclusions: The Regions are making progress by providing training but I do not find the Commonwealth in compliance with Section 6.ii. C until there is an implementation and schedule to train all law enforcement departments that is completed in a reasonable time period.
D. Mobile crisis teams shall be available 24 hours, 7 days per week to respond on-site to crises.
As reported in Section 4.B, the REACH Mobile crisis teams are available around the clock and respond at off hours. During the second quarter reporting period the CSB ES teams referred nine individuals to REACH, representing 13% of the referrals. This number increased during the third quarter to 16 individuals, which is 17% of the individuals who were referred to REACH.
During the second quarter 111 crisis assessments were conducted. The assessments were conducted in the individual’s home for forty-six of the referrals which is 41%. Another twenty-eight individuals were assessed through telephone consultation. Twenty-five individuals had to leave their homes to be assessed at an emergency room, clinic or the START office, with the majority evaluated in the ER. Sixty-nine crisis assessments were completed during the third quarter, of which twenty-nine were done in the person’s home and fifteen were done through a telephone consultation, representing 64% of the individuals assessed for a crisis. Sixteen individuals were assessed in either an emergency room, clinic or at the START office. In the second quarter 20% of individuals were assessed out of their home while during the third quarter this increased to 23%. In both quarters 13% of individuals were recorded on the other or unreported category. It will be helpful if future reports can provide an explanation of the “Other” category and if DBHDS follows up on those in the “Unreported” category for all areas of reporting.
Conclusion: The Commonwealth is in compliance with Section III.C.6.b.ii.D
E. Mobile crisis teams shall provide in-home crisis support for a period of up to three days, with the possibility of 3 additional days
DBHDS is not collecting or providing data on the amount of time that is devoted to a particular individual. The only report of this information is included in the second quarterly report from Region II. This region provides an average of 4.7 days of in-home respite. One family who participated in the telephone satisfaction survey reported getting fewer hours of in-home support than they felt they needed. Over a 15-day period the START staff provided in-home support on 3 occasions. This is not necessarily indicative of a pattern, but may point to the need for further review.
DBHDS was able to provide a summary of the number of individuals receiving in-home supports during the third quarter of FY14. Regions vary significantly in the number of individuals served and the number of hours of in-home support provided by REACH staff that is depicted in Table 3. The average number of hours of support individuals received is twelve. In four of the five regions fewer than ten hours were provided but the number of hours provided in Region I that was 43.5, skews the average. It is striking that there is such disparity between the numbers of individuals served in four of the regions compared to Region III. It is difficult to compare this information to the data provided in the REACH statewide quarterly report. There were a total of ninety-six referrals during this quarter of which fifty-two were referred for Emergency/Crisis Services. A total of 204 individuals received in-home support with the vast majority served in Region III..
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Table 3: REACH In-Home Services During the Third Quarter of FY14

Regions

Number of

Number of Hours Average Number

Individuals

of Hours

Region I

20

870

43.5

Region II

4

36

9

Region III

159

1280

8

Region IV

21

181

9

Region V

14

63

4.5

Conclusion: There is insufficient data to determine if the Commonwealth is compliance with the requirement of Section III.6.C.b.ii.E. This also places the Commonwealth out of compliance with Section IX.C. It does not appear that up to three days of in-home support and the option of three additional days is being offered in at least four of the five regions. I cannot make a determination that the Commonwealth is in compliance with this section without more data about the needs of the individuals and the period of time the in-home supports were provided.

Recommendations: DBHDS should include this information in all future quarterly reports and future reviews should include a sample of individual plans for crisis services and information of the services actually provided.

F. By June 30, 2013 the Commonwealth shall have at least two mobile crisis teams in each region to response to on-site crises within two hours
Regions have not created new teams but have added staff to the existing teams. Determinations will need to be made in the future if this is sufficient capacity to provide the needed crisis services and to respond in the required time period.
During the 2nd quarter there were only 15 referrals for crisis intervention. The regions responded to seven of these requests in less than two hours and eight in over two hours. DBHDS is not meeting the expectation of responding within 2 hours. This becomes a more stringent requirement as of June 30, 2014 when the teams are expected to respond to requests from urban areas in less than one hour and requests in rural areas in less than two hours.
In the third quarter of FY14 the regional REACH teams responded to sixty -nine crisis events. Forty-four (64%) were responded to in less than two hours; fourteen (20%) were responded to in more than two hours. The DBHDS has no data on response time for the remaining eleven events (16%).
Conclusion: DBHDS remains out of compliance with Section III.C.6.b.ii.F.
Recommendations: The START teams are expected to respond more quickly to crisis requests from individuals living in urban areas starting in FY15. The Commonwealth did not create two or more teams in each region as the Settlement Agreement required. It instead added members to the existing team in each region. This may not be a sufficient response. The Court should require the Commonwealth to fund and develop additional teams if delays in response continue.
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iii. Crisis Stabilization programs
A. Crisis stabilization programs offer a short-term alternative to institutionalization or hospitalization for individuals who need inpatient stabilization services. B. Crisis stabilization programs shall be used as a last resort. The state shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first attempted to resolve the crisis to avoid an out-of-home placement, and if that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement. C. If an individual receives crisis stabilization services in a community-based placement instead of a crisis stabilization unit, the individual may be given the option of remaining in placement if the provider is willing to sere the individual and the provider can meet the needs of the individual as determined by the provider and the individual’s case manager. D. Crisis stabilization programs shall have no more than 6 beds and length of stay shall not exceed 30 days.
G. By June 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each region as determined to meet the needs of the target population in that region.
All regions now have a crisis stabilization program providing both emergency and planned respite. Regions I, III, and V have six beds available. Regions II and IV have only four beds available. Region II has been limited because of a septic system issue that has been resolved so it will operate six beds starting in May 2014. Region IV has a staffing problem. DBHDS is not able to project when this will be resolved so that the unit can serve six individuals at one time. One family member reported having planned respite canceled for her son in Region IV. To date DBHDS has not provided any projections or a methodology to determine the need for crisis stabilization units.
Region IV remains in its temporary location. Staff found a home to serve as the permanent site for the crisis stabilization unit. The Advisory Council and DBHDS representatives have toured it. DBHDS reports the home will not need much renovation. The region awaits municipal approval. The region will renew the lease on the existing site through 7/15 but plan to move before the lease period ends.
Table 4 summarizes the number of individuals who used the Crisis Stabilization Units during the second and third quarters of FY14. The regions continue to provide both emergency and planned respite in the REACH Crisis Stabilization Units. Overall more individuals (57%) use the units for planned respite. Region V opened its unit in November 2013 and has only used it for planned respite. Only Region IV serves more individuals experiencing emergencies than for planned respite. During Quarter 3 the regions began to report on the use of the crisis stabilization units as a step down from hospitalization. It was used for a total of eight individuals (noted in parentheses in Table 4) in Regions I, II, and III. This is a positive indication of the REACH program’s efforts to work with individuals who require hospitalization to help them return to the community using effective transition services. It is also positive that DBHDS continues to offer planned respite in the REACH Crisis Stabilization Units for individuals at risk of crises.
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TABLE 4: INDIVIDUALS USING THE REACH CRISIS STABILIZATION UNITS DURING THE SECOND AND THIRD QUARTERS OF FY14

REGION
I II III IV V TOTALS

Q2 Emergency 12
7 22 6 0 47

Q2 Planned 13 24 19 4 10 70

Q3

Q3

Emergency Planned

7

7 (2)

9

19 (2)

10

19 (4)

21

2

0

5

47

52

Total Emergency
19 16 32 27 0 94

Total Planned 20 43 38
6 15 122

DBHDS also reports on the individuals who are maintained in their home settings during while the crisis situation is stabilized. In the second quarter seventy-four (67%)individuals remained in their current settings with or without in-home respite and another five (4.5%) had planned out-of-home respite scheduled. During the third quarter there were 69 individuals referred for emergency/crisis services. Sixty-three (63%) of these individuals remained in their current setting with or without inhome respite and another two (3%) received planned out of home respite. This is a strong indication that the REACH teams attempt to maintain individuals in their homes and provide the supports that make this possible.
Nineteen individuals in Quarter 2 and ten individuals in Quarter 3 of FY14 required some type of psychiatric hospitalization. This may be appropriate for these individuals. However, DBHDS should maintain data about the REACH teams’ involvement with these individuals while in the hospital and post-hospitalization. It is useful to now know through the third quarter report that eight of these individuals went to the REACH Crisis Stabilization Unit. Data should also be maintained on the final outcome or disposition for these individuals to determine how many eventually returned to their residence and for those who didn’t where they were eventually placed.
There is no indication that any other community placements were used for crisis stabilization during Quarters 2 and 3 of FY14 for individuals who could not remain in their home setting. The Settlement Agreement requires the state to attempt to locate another community alternative before using the REACH Crisis Stabilization Unit. REACH teams are attempting to maintain individuals in their own homes with supports as the preferred approach to stabilize someone who is in crisis.
The REACH programs are not currently searching for community residential vacancies before using the Crisis Stabilization Units. In my professional opinion using vacancies in community residential programs is not a recommended practice. Dr. Beasley supports this perspective. Placing an individual who is in crisis into a home shared by other individuals who have I/DD is potentially destabilizing to those individuals for whom this is home. Additionally the practice potentially leaves the individual who is in crisis in an unfamiliar home, in the care of staff with whom he/she is unfamiliar and who is not trained to meet the needs of someone with a dual diagnosis who is experiencing a crisis. I will not recommend a determination of compliance regarding this provision until the Parties discuss it and decide if they want to maintain it as a requirement of the Agreement. I recommend that it not be a REACH practice.

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The DBHDS is to determine if there is a need for additional crisis stabilization units to meet the needs of individuals in the target population. Table 5 depicts the average length of stay for each region’s program for emergency, planned and step down respite. This information is used with the information presented in Table 4 that indicates how many individuals used the crisis stabilization unit to determine the total number of bed days that were used during the third quarter. This is then compared to the total number of bed days that are available by taking each region’s capacity and multiplying it by the days in a quarter, which equals ninety-one. This illustrates the additional capacity that was available but unused during Quarter 3.
All regions had unused bed days ranging from sixty-four in Region IV to 506 in Region V. This seems to indicate that at this time additional crisis stabilization units are not needed. Regions have enough capacity to assist other regions if particular times one program is fully occupied.
Regions I and II both report Waiting Lists for the REACH CSU. Region I reported forty-seven individuals waiting and Region II reported seventeen individuals on the Waiting List. However the waiting lists were a result of the programs being closed for short periods of time for renovations, which does not indicate a problem with capacity. When I spoke to the REACH Directors they assured me that even though three beds are designated for emergency respite and three beds for planned respite, if a person is in crisis and a planned respite bed is available it would be offered to the individual in crisis.
The Regions will need to guard against the practice being extended to offer a planned respite bed to someone in crisis if the bed is already offered to an individual for a planned respite visit. Individuals and families who rely on planned respite to help support the individual staying home should not have planned respite cancelled

TABLE 5: COMPARISON OF THE LENGTH OF STAY TO THE TOTAL CAPACITY OF THE REACH CRISIS STABILIZATION UNITS DURING QUARTER 3

REGION EMERGENCY PLANNED

LOS AVG

LOS AVG

I

16.67

6.6

II

6.9

5.2

III

17

4

IV

13.7

6

V

0

8

STEP DOWN LOS AVG
15 5.8 36 0 0

TOTAL DAYS USED
180 162 374 300 40

TOTAL DAY CAPACITY

DIFFERENCE

546

366

364

202

546

172

364

64

546

506

Conclusions: The Commonwealth of Virginia is in compliance with Sections III.C.6.b.iii.A, B, D, and G determined during this review and achieved compliance with Sections III.C.6.b.iii. E. and F. in an earlier review period. I will not make a determination about Section III.C.6.b.iii.C until the Parties make a decision about the practice of using community residential resources for crisis stabilization.

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SECTION 6: SUMMARY
The Commonwealth of Virginia continues to make progress to implement a statewide crisis response system for individuals with I/DD. It is promising that DBHDS has developed a plan to expand to provide crisis intervention and prevention to children and adolescents. It appears that there is a smooth transition to the REACH program and encouraging that DBHDS will create standards and continued expectations for staff training.
The Commonwealth is in compliance with the following Sections of the Settlement Agreement:
III.C.6.b.i.A III.C.6.b.i.B III.C.6.b.ii.A III.C.6.b.ii.B III.C.6.b.ii.D III.C.6.b.iii.A III.C.6.b.iii.B III.C.6.b.iii.D III.C.6.iii.E III.C.6.iii.F III.C.6.iii.G
The Commonwealth is not in compliance with the following Sections of the Settlement Agreement:
III.C.6.a.i III.C.6a.ii III.C.6.a.iii III.C.6.b.ii.C III.C.6.b.ii.E III.C.6.b.iii.G
Recommendations are included throughout the report. DBHDS needs to provide administrative leadership to insure that comprehensive and well-coordinated crisis response services are available to children and adolescents with ID/D; that there is formal outreach to the DD community; that there is sufficient availability of crisis stabilization emergency and planned respite; that the mobile crisis teams meet the required time to respond to crises; and that CSB ES staff, Case Managers and law enforcement personnel are trained about the REACH program.
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APPENDIX C
 INTEGRATED DAY ACTIVITIES

AND
 SUPPORTED EMPLOYMENT

By: Kathryn du Pree MRP

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2014 REVIEW OF THE INTEGRATED DAY ACTIVITIES AND EMPLOYMENT SUPPORTS REQUIREMENTS OF THE US v COMMONWEALTH OF VIRGINIA’S SETTLEMENT AGREEEMENT REVIEW PERIOD: APRIL 7, 2013 – APRIL 6, 2014 SUBMITTED TO DONALD FLETCHER INDEPENDENT REVIEWER PREPARED BY: KATHRYN DU PREE, MPS EXPERT REVIEWER APRIL 15, 2014
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TABLE OF CONTENTS

Section I: Overview of Requirements

2

Section II: Purpose of the Review

4

Section III: The Review Process

5

Section IV: Setting the Employment Targets

6

Section V: The Plan for Increasing Opportunities for

Integrated Day Activities

11

Section VI: Review of the SELN and the Inclusion of

Employment in the Person-Centered ISP Process

18

Section VII: Summary

25

SECTION VIII: CONFIDENTIAL APPENDIX

Table 1: Individuals in Supported Employment and Pre-Vocational

Services and Those Who Remain 12 or More Months

8

Table 2: Progress Towards Meeting the Employment First Target of the

Number of ISE Participants

9

Table 3: Progress Towards Meeting the Employment First Target of

Increasing the Length of Time in ISE

9

Table 4: Employment Targets for FY15 – FY19

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I. OVERVIEW OF REQUIREMENTS
Donald Fletcher, the Independent Reviewer has contracted with Kathryn du Pree as the Expert Consultant to perform the review of the employment services requirements of the Settlement Agreement for the time period 476/13-4/6/14. The review will determine the Commonwealth of Virginia’s compliance with the following requirements:
7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment. 7.b. The Commonwealth shall maintain its membership in the State Employment Leadership Network (SELN) established by NASDDDS; establish state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy; [use] the principles of employment first include offering employment as the first and priority service option; providing integrated work settings with a goal to pay individuals minimum wage; discussing and developing employment services and goals with individuals through the person- centered planning process at least annually; and employ at least one employment services coordinator to monitor the implementation of employment first practices. 7.b.i. Within 180 days the Commonwealth shall develop an employment implementation plan to increase integrated day opportunities for individuals in the target population including supported employment, community volunteer activities, and other integrated day activities. The plan shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
B. Establish, for individuals receiving services through the HCBS waivers: 1. Annual baseline information regarding:
a. The number of individuals receiving supported employment; b. The length of time people maintain employment in integrated work settings; c. The amount of earnings from supported employment; d. The number of individuals in pre-vocational services as defined in 12 VAC 30-120-211 in effect on the
effective date of this Agreement; and e. The lengths of time individuals remain in pre-vocational services
2. Targets to meaningfully increase:
a. The number of individuals who enroll in supported employment in each year; and b. The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment
II. PURPOSE OF THE REVIEW This review will build off the review completed last spring for the review period through 4/6/13 and the recommendations the Independent Reviewer made in his last Report as a result of the conclusions and findings of that review. At that time the Independent Reviewer determined that the Commonwealth was in compliance with Section III.C.7.b, but not with Section III.C.7.b.i because it had not developed an implementation plan to increase integrated day activities for individuals in the target population. The Commonwealth was also not in compliance with the provisions of Section III.C.7.b.i.B.2.a and b, as it did not develop targets to meaningfully increase the number of individuals who enroll in supported employment and maintain their employment. This review will cover all areas of compliance to make sure the Commonwealth has sustained compliance in areas achieved during the last reporting period. It will focus on those areas that were not in compliance and the Independent Reviewer’s related recommendations. This focus will be on:
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• The Commonwealth’s ability to meet the targets it set to be achieved by 3/31/14 for the number of people in supported employment, those who remain for at least twelve months, and the average earnings for those in supported employment
• The expectation that the Commonwealth set meaningful targets to increase the number of individuals with ID/DD enrolled in supported employment by 3/31/14
• The development of an implementation plan to increase integrated day activities for members of the target population including strategies, goals, action plans, interim milestones, resources, responsibilities, and a timeline for statewide implementation by 3/31/14
• The continued involvement of the SELN in developing the plan and reviewing the status of its implementation
• The DBHDS’ status to address waiver employment service definitions, rates, and provider incentives to increase the number of individuals in the target population who become and remain employed
• The expectation that individuals in the target population are offered employment as the first option by Service Coordinators and their teams during the individual planning process in which they discuss and develop employment goals
III. REVIEW PROCESS The Expert Reviewer reviewed relevant documents and interviewed key administrative staff of DBHDS, members of the SELN, and a member of the HSRI team, to provide the data and information necessary to complete this review and determine compliance with the requirements of the Settlement Agreement. Initially a kickoff meeting was held on February 14, 2014 with the Independent Reviewer, the Expert Reviewer, the Assistant Commissioner and the Employment Services Specialist to review the process and clarify any components before initiating the review. Document Review: Documents reviewed include:
1. Virginia’s Plan to Increase Employment Opportunities for Individuals with Intellectual and Developmental Disabilities: FY2013-2015: Goals, Strategies, and Action Items
2. The Commonwealth’s Plan to develop integrated day services including volunteer activities and community recreation
3. New Targets set for the target population 4. Quarterly Reports for the time period 4/7/13-4/6/14 5. SELN Work Group meeting minutes relevant to the areas of focus for this review 6. Summary of Quarterly Employment Training Events 7. Employment Services Training Module for Case Managers
Interviews: The Expert Reviewer interviewed the Employment Services Specialist from DBHDS, members of the SELN, Rie Kennedy-Lizotte (NASDDS, HSRI team member); Connie Cochran, Assistant Commissioner for Developmental Services, DBHDS; Dee Keenan, Case Management Program Manager, DBHDS, and Sam Pierno, DD Program Manager, DBHDS; and Grant Revell of VCU.
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Review of Individual Service Plans (ISPs): The Expert Reviewer reviewed a random sample of ISPs to determine if employment is being offered as the first option to individuals in the target population. This was accomplished by randomly selecting a sample of twenty-one individuals from three of the five regions for a total of 63 ISPs, from the following groups: individuals who have been on the Waiting List and are receiving funding for day services (7); individuals transitioning from the Training Centers to community services (7); and individuals already in a Group Supported Employment or Sheltered Workshop day setting (7). Individuals were randomly selected from those individuals who have been in these target groups since 2012. Unfortunately DBHDS was unable to provide all sixty-three ISPs. Four individuals selected from the Training Centers who were transitioning were excluded. Three have significant medical conditions that preclude them from participating in day programs and one person is deceased. An additional twenty-seven were not submitted from the CSBs.
The purpose of reviewing these plans is to provide a sense of the DBHDS’ progress in meeting the requirement of the Settlement Agreement to offer members of the class employment as the first option for day services using the person-centered planning process. The following are the indicators to make this determination:
• Has the Case Manager and planning team discussed the availability of employment
 supports with the person and the guardian?

• Has the Case Manager determined the individual’s interest in employment? • Has the person been asked what type of job he or she would prefer or choose? • Has there been a discussion of the initial steps the team needs to take to assist the person to
become employed? • Has a vocational assessment been requested and conducted if the individual, guardian or
team recommends it? • Has the Case Manager made referrals to employment service providers if the individual is
interested in supported employment? • Have employment services been developed and initiated for the individual in the time
period recommended by the team? •
IV. THE EMPLOYMENT IMPLEMENTATION PLAN
7.b.i. Within 180 days the Commonwealth shall develop an employment implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer and recreational activities, and other integrated day activities. The plan shall: A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth:
Adam Sass, Employment Specialist, DBHDS continues to provide extensive training on the Employment First Initiative in Virginia. In this reporting period, April 7, 2013-April 6, 2014 Mr. Sass has presented to 500 individuals at twenty-eight meetings, conferences and regional summit. He made another presentation to twenty-seven ID Case Managers on April 8, 2014. Presentations have been made to ID and DD Case Managers; new and existing providers including a few that plan to convert to the ISE model; DARS regional managers and staff; CSB staff; employers; and advocates. It does not appear that families have been a target group to receive this training during the reporting period.
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The handout materials and talking points indicate that the philosophy of employment first and its tenets are addressed. Mr. Sass reports that at recent presentations the audiences focus more on questions and issues of how to make this transition than to question why the Commonwealth is promoting employment first. Mr. Sass uses the opportunities for these presentations to create community linkages and partnerships that will further the acceptance of the employment first philosophy and encourage implementation.
The SELN sub-committee recently completed a training module on employment for case managers. I have reviewed this training and determine that it will provide case managers with the basic information they need understand employment first and begin to discuss employment with their consumers. Case Managers will not be required to take the training although it will be available on the DBHDS website.
Conclusions: I do not find evidence that ID Case Managers understand their responsibility to introduce employment options as part of the planning meetings to develop the ISP. The Case Management Employment Training is a first step in imparting this information. DBHDS is in compliance with provision 7.b.i.A that it provides regional training on the Employment First policy and strategies.
Recommendations: The Commonwealth should report to the Independent Reviewer how it provides guidelines to families that include how to access employment supports and how it will ensure that case managers understand their essential role. One approach is to incorporate the employment module into required training for ID and DD case managers.
7.b.i.B.a-e: The Commonwealth is to develop an employment implementation plan to increase integrated day opportunities for individuals in the target population including supported employment, community volunteer activities, and other integrated day activities. The plan shall establish, for individuals receiving services through the HCBS waivers: Annual baseline information regarding: a. The number of individuals receiving supported employment; b. The length of time people maintain employment in integrated work settings; c. The amount of earning from supported employment; d. The number of individuals in pre-vocational services; and e. The lengths of time individuals remain in pre-vocational services.
The DBHDS has provided information regarding the number of individuals in Individual Supported Employment (ISE), Group Supported Employment (GSE), and in Pre-Vocational Services. The department also produced data about the number of individuals remaining in ISE and pre-vocation for twelve months or more which is depicted in Table 1 and 3, with Table 3 focusing on the changes in ISE only compared to the target goal set by the DBHDS. These data are not tracked for GSE. Information about the number of new participants is provided in ISE and is depicted in Table 2 and is compared to the target goal set by DBHDS. The department cannot provide data about wages for individuals in ISE and is out of compliance with this requirement. DBHDS can only report through the second quarter of FY14 that ended 12/31/13. They are unable to provide information at this time or before this report must be completed for the third quarter (1/1/14 – 3/31/14). Therefore the analysis is somewhat preliminary since the progress is
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being measured against the targets set for March 31, 2013. DBHDS should provide the data from the third quarter as soon as it is available to the Independent Reviewer so a conclusive determination of compliance can be made.

Individuals in Supported Employment and Pre-Vocational Services

The increase in the number of individuals in ISE has only increased by six individuals at the end of the second quarter of FY14, which is only 3% of the baseline number. The number had actually increased to 204 from 176 at the end of the first quarter of FY14 but dropped significantly from 204 to 182 by 12/31/13.

The overall number of individuals in Supported Employment has increased by fifty- nine individuals as a result of the increase in participation in GSE. The Commonwealth is interested in decreasing the participation in Pre-vocational services but that number continues to increase with 28 additional people in pre-vocational services since the baseline was set for 3/31/13. Table 1 also includes information about individuals remaining in ISE and Pre-Vocational services. The number of individuals maintaining ISE for twelve months or more dropped in the three quarters the DBHDS was able to report. However the first quarter saw the largest decline and the number is steadily increasing through the other two quarters. It was 119 individuals as of 12/31/13, which remains below the baseline number of 133.

Table 1: Individuals in Supported Employment and Pre-Vocational Services and

Those Remaining 12 or More Months

Data

Individuals

Individuals

Individuals

Individuals

element

enrolled/

enrolled/

enrolled/

enrolled/

remaining

remaining 12

remaining

remaining

12 months

months

9/30/13

12/31/13

3/31/13

6/30/13

ISE

176/133

180/97

204/111

182/119

GSE

634

661

660

687

SE Total

810

841

864

869

Pre-voc

819/675

805/679

828/692

847/680

Increasing the number of individuals in ISE: The DBHDS goal for this fiscal year is to increase the number of newly enrolled participants in ISE apart from the overall change to the total number in ISE as that number accounts for individuals who remain, leave and newly enroll. The target the DBHDS set to achieve by 3/31/14 is to newly enroll 162 individuals. Table 2 depicts the progress made. For this goal to be met an additional 58 individuals will need to be enrolled in ISE as of 3/31/14. This may prove to be ambitious since the most who were enrolled was 49 and that dropped to 23 in the last quarter the department reported.

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Table 2: Progress Towards Meeting The Employment First Target of Increasing the

Number of ISE Participants

3/31/13

6/30/13

9/30/13

12/31/13

3/31/14

Baseline

Target

Difference

135

32

81 (49)

104(23)

162

58

Increasing the length of time individuals remain employed through ISE: The DBHDS reports on the number of individuals who remain employed for 12 or more months in each quarter. Table 3 includes these totals and the percentage of the total number of individuals in ISE that remain employed for 12 or more months. The goal is to reach 85% of the total number of individuals in ISE who remain employed for 12 or more months. The DBHDS reported on three quarters as depicted in Table 3. The greatest number and percentage of individuals maintaining employment was 119 individuals (65% of the total) in the second quarter of FY14, showing an improvement over the previous quarters but below the baseline set in March 2013. The data will need to be reviewed for the third quarter, period ending 3/31/14, to determine if this target is met.

Table 3: Progress Towards Meeting The Employment First Target of Increasing The

Length of Time in ISE

3-31-13

6-30-13

9-30-13

12-31-13

3-31-14

Baseline

Target

133 (76%)

97 (53%)

111 (54%)

119 (65%)

85%

The data presented in the three tables presents a somewhat curious picture of employment for individuals with I/DD in Virginia. There is information about the total number in ISE, the number who have twelve or more months of continuous employment, and the number who have newly enrolled during the quarter. For the quarter ending 6/30/13, thirty two (32) newly enrolled, ninety seven (97) stayed and there was a total of 180 in ISE indicating that fifty-one (51) stayed in ISE for less than twelve months. By the end of the next quarter, 9/30/13, 111 individuals remained employed for more than twelve months, forty-nine (49) were newly enrolled during the quarter and a total of 204 individuals were in ISE, indicating that forty-four (44) individuals stayed employed for less than twelve months. In the last quarter reviewed that ended 12/21/13, there was a total of 182 individuals enrolled of whom twenty-three (23) were newly enrolled and 119 maintained employment for twelve months or more, indicating that only forty (40) individuals maintained employment for three to twelve months. This is a lower number than the cumulative number of eighty-one (81) individuals who were newly enrolled during the first two quarters.

The DBHDS should review this data to determine whether there is a reporting problem, or if there are a high number of people who have started to work but are not maintaining employment. This is reflected to some degree in Table 3 that depicts the number and percentage of individuals who retain employment for longer than 12 months. The DBHDS goal is to have 85% of individuals achieve this. Only a little more than 50% are currently employed after 12 months. This figure does not fully tell the story about those who newly enroll and what their experience is within the first 12 months of employment, but it indicates that a number of them are losing employment during that first year, some within 3-6 months. The way in which these data are collected does not track individuals so DBHDS does not know if individuals start ISE and lose a job but find another one or lose a job and are not re-employed during the reporting period.
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Conclusions: The DBHDS is in compliance with 7.b.i.B.a, b, d, and e, as these provisions only require DBHDS to set baseline information and report on each category. DBHDS is not in compliance with 7.b.i.c. as it is unable to provide information about the amount of earnings individuals in ISE receive.
The data that are available does not conclude that DBHDS has met its targets for the number of newly enrolled individuals in ISE or the percentage that remains employed for 12 or more months. However a final determination cannot be made until the data through 3/31/14 is available for review and analysis.
DBHDS is making progress towards enrolling more individuals in ISE.
Recommendations: The SELN should be involved in reviewing these data on a regular basis and assisting the DBHDS to analyze the continued growth in GSE and Pre-Vocational Services to determine if there are strategies that can be put in place prior to the completion of the waiver redesign that will start to turn the curve in Virginia away from other vocational options and towards greater individualized employment for the target population. This is an important undertaking if the DBHDS is going to be able to meet the more assertive targets it has set for the next five years to increase the number of people in ISE by five percent of the total of everyone in adult day services through the HCBS waivers in each of the next five fiscal years.
The DBHDS should report separately in future reporting periods about the ID and DD waivers and the numbers of individuals in ISE so that the impact of the Settlement Agreement on both populations can be followed and tracked.
The DBHDS should also include in its reporting the number of individuals who are in the target population who receive individual supported employment through DARS. DARS does serve this population and many individuals apply directly to DARS to receive employment support and assistance. This was validated at least in small part by my review of the ISPs to determine if individuals in the target population are offered employment as the first option for day support. Individuals who are considered ready for ISE are referred to DARS. The target population is defined as “individuals receiving services through the HCBS waivers.” However it appears that CSBs do refer these individuals to DARS as a first option for employment support especially individuals who are initially interested in individualized employment support and demonstrate ability to work fairly independently, but who need career planning and job coaching. The Commonwealth is not tracking the number of people who are in the target population and become employed with assistance and funding from DARS. This seems to be a missed opportunity to have a more comprehensive understanding of employment trends, opportunities and barriers for the population as a whole.
As discussed this provision relates to the creation of baseline information and ongoing reporting. Future reviews of employment services will determine if DBHDS achieves its targets for increasing the number of individuals in ISE and the number that maintain employment for at least twelve months. The Parties should decide what if any outcomes are expected and required in the following areas: the amount of earnings; the number of individuals in pre-vocational services; and the length of time individuals are in pre-vocational services.
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V. SETTING EMPLOYMENT TARGETS
Sections 7.i.B.2.a and b. require the Commonwealth to set targets to meaningfully increase the number of individuals who enroll in supported employment in each year and the number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.
At the time of the last review 176 individuals had participated in ISE in the past year and 133 individuals had remained in ISE for at least 12 months. DBHDS worked with the SELN to develop targets for increasing the number of individuals who would receive ISE by 3/31/14. The target set at that time was for 162 new enrollees and an expectation that 138 would remain employed for at least 12 months. Data has been provided through the 2nd quarter of 2014. As of 12/31/13, 182 individuals were enrolled in ISE of which 104 were newly enrolled and 119 maintained employment for 12 months or more.
This is an increase of only 6 individuals over the baseline of 176. The DBHDS reports that there are 9648 adults who are enrolled in one of the waivers serving individuals with ID or DD. This level of enrollment in ISE represents only 1.88% of the adult wavier population. Thus is a slight reduction in the percentage of waiver participants in ISE compared to previous years.
This year’s target was set for the number of individuals who would be newly enrolled not the total number enrolled in ISE. This goal is 162 and was not met by 12/31/14 the last reporting period data were available for this review.
The Independent Reviewer directed the DBHDS to set more meaningful employment targets. DBHDS has developed targets for FY15-FY19. The state SELN was consulted in setting the new targets and an independent expert assisted the department and SELN to construct the methodology used. Table 4 below summarizes the targets the DBHDS has established for the next 5 years.
These targets are significantly more ambitious than the target set for FY14. Setting the targets begins with the assumption that the Commonwealth will be providing ISE for 204 individuals by the beginning of FY15 (July 1, 2014), which represents 2.79% of the total number of individuals receiving day services in one of the HCBS waivers. The total number of individuals is now set at 7,292 rather than the previous waiver total of 9,648 to reflect only the number of waiver participants who are of adult age. The plan is then to increase the number of individuals in ISE by 5% each year. This results in a cumulative percentage of 22.79% of waiver participants receiving day supports participating in ISE by the end of FY19. This would translate to 2,026 individuals with either ID or DD being individually employed through one of the HCBS waivers.
The Commonwealth has set targets to meaningfully increase the number of individuals who enroll in supported employment each year. However, it may not meet the less ambitious target it set for itself for 3/31/14 that was based on increasing the number of participants newly enrolled in ISE. The new targets depicted in Table 4 are for the total number of individuals in ISE for each of the next five fiscal years. DBHDS projects starting FY15 with 204 individuals enrolled in ISE. This was the number enrolled as of 9/30/13 although it decreased to 182 by 12/31/13. It is very possible that DBHDS will reach this number of ISE participants again by June 30, 3014. However, the target the department has set for the end of FY15 is 568 individuals which more than doubles the expectation of serving 204 by the start of FY15 and is triple the number of individuals who were enrolled as of 12/31/13. As indicated earlier the DBHDS has to take timely and well-planned
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action to address the various barriers that exist to achieving these targets if the goal of more individuals being employed in integrated work settings is to be realized. The work underway to redesign the waivers is a critical step. The DBHDS and SELN should continue to define what else needs to be put in place and what can be accomplished before the redesign is completed and implemented so that progress towards achieving and sustaining compliance is made.

The DBHDS Employment Specialist reports that the department plans to continue to use the target of eight-five (85) percent for the number of individuals who remain employed in integrated work settings at least twelve months after the start of supported employment. This was not included in the target setting proposal I received to review. If the DBHDS formally commits to this target then they are in compliance with Section 1.B.2.b to set a meaningful target for the number of individuals who remain employed for one year or longer. However, the current level of 65% of individuals who remain employed for 12 or more months indicates that DBHDS will need to analyze and address why the target is not currently met.

Table 4: EMPLOYMENT TARGETS FOR FY15 – FY19

SE Total

Total

% in SE at % in SE by

FY

Start of FY

int. day/

Start of FY End of FY

Employment

Services

15

204

7292

2.79%

7.79%

16

568

7292

7.79%

12.79%

17

932

7292

12.79%

17.79%

18

1297

7292

17.79%

22.79%

19

1661

7292

22.79%

27.79%

SE Total End of FY
568 932 1297 1661 2026

Increase in Base %
5% 5% 5% 5% 5%

The SELN and DBHDS used national data that indicates that presently about 20% of the ID/DD population enrolled in HCBS waivers are engaged in individual employment.

Conclusions and Recommendations: The Commonwealth is substantially in compliance with Section 7.i.B.2.a as it has set targets to meaningfully increase the number of individuals who enroll in supported employment each year. This is significantly more aggressive than the target set for 2014 and reflects the Commonwealth’s commitment to its Employment First policy. It includes targets for both the ID and DD waivers and if achieved will provide many more individuals with meaningful employment and hopefully greater economic independence.

It does not project for any growth in the overall number of waiver participants although growth is expected as the Settlement Agreement is implemented. It will be important for the DBHDS and SELN to track progress towards the implementation of this plan to increase employment for individuals with ID and DD and to revise the targets to continue to achieve the same percentage goals as the number of waiver participants increases overall. I recommend that DBHDS tracks the progress towards meeting the targets that separately identifies individuals with ID and DD who participate in ISE to enable the Commonwealth and the Independent Reviewer to determine if DBHDS is successfully both groups that are part of the target population. The Commonwealth needs to report on its goal of increasing the number of individuals newly enrolled in ISE to 162 by March 31,2014 to the Independent Reviewer as soon as this information is available.

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In order for the Commonwealth to reach the targets set for FY15-FY19 the DBHDS will need to concentrate its efforts on completing its waiver redesign plan to address employment service definitions and revise its rate structure, focus on building provider capacity, considering offering individuals the opportunity to self-direct their employment supports, and ensure case managers are trained in the Employment First policy and using the principles of person-centered planning to help individuals and their families identify and pursue their employment goals and aspirations. The Expert Reviewer suggests that the Commonwealth further refine these targets by indicating the number of individuals it hopes to provide ISE to from the following groups: individuals currently participating in GSE or pre-vocational programs; individuals in the target population who are leaving the Training Centers; and individuals in the target population who become waiver participants during the implementation of the Settlement Agreement. Through discussions between the DBHDS and the SELN as to how to target these specific groups realistic and successful marketing and training approaches can be developed to reach out to families, Service Coordinators, CSBs, Schools, Training Center staff, and ESOs to assist the DBHDS achieve its overall targets in each of the next five fiscal years.
The DBHDS needs to formally set its targets for the number of individuals who will maintain employment for at least twelve months as required in Section 7.i.B.2.b of the Settlement Agreement.
VI. The Plan for Increasing Opportunities for Integrated Day Activities
7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment.
Waiver Redesign: The Commonwealth is undertaking a significant redesign of its HCBS waivers. HSRI has been hired to assist Virginia with this task which will encompass redefining waiver services for integrated day activities including supported employment, restructuring the rates for waiver services and redesigning the implementation of the SIS as it is used as an initial assessment tool and an indicator of the individual’s level of need for support. Various work groups are underway and focus groups are convened to assure broad input from stakeholders. The initial report and analysis is due in July 2014. The Commonwealth plans to submit its new waiver design in FY16. The Commonwealth did submit new definitions for its recent waiver renewal for the ID waiver. These definitions promotes integrated day activities, requires skill building in pre-vocational programs and sets a time limit on a person’s participation in pre-vocational services, and redefines supported employment for both ISE and GSE. Services will be designed using the person-centered planning process. The leadership of both DMAS and DBHDS are actively involved in the redesign process. Stakeholders who represent CSBs, advocacy, provider and family groups are included and some of the work group representatives are also members of the SELN.
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Integrated Day Activity Plan: The DBHDS is required to provide integrated day activities, including supported employment for the target population. The Settlement Agreement states: To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under the Agreement with integrated day opportunities, including supported employment.
Since the Commonwealth of Virginia entered into the Settlement Agreement with the US DOJ, DBHDS has focused its work and activities on increasing employment opportunities for individuals with ID and DD. With rare exception providers in Virginia do not offer individuals who are not employed other types of integrated day activities. DBHDS was directed by the Independent Reviewer to develop a plan by March 31,2014, that describes its implementation plan to increase integrated day opportunities.
DBHDS submitted a preliminary plan describing the “strategies and activities necessary to create a blueprint.” The plan includes Virginia’s vision for integrated day activity, three goals with related objectives, strengths and challenges, and the project approach. I will review each section. Virginia’s vision is to have an array of integrated service opportunities available for individuals with disabilities. It wants individuals to be able to choose to have services delivered to them in the least restrictive and most integrated setting. The definition the plan offers of integrated day activities assures they are meaningful, offered at times to benefit the person to have an active communitybased daily routine, and include leisure activities. Integrated day activities are to complement employment for individuals who are employed and want leisure activities as well, are employed only part time or for those who continue to chose congregate care services (italics added). DBHDS is to be complimented for recognizing the value and need for integrated day activities both as a supplement to employment and for individuals who do not have or wish to engage in employment. The definition should align with the Agreement, “integrated day activities include community volunteer activities, community recreation opportunities, and other integrated activities.”
DBHDS has included individuals who continue to choose congregate care services in its vision of who these services are intended to benefit. The use of the term congregate care activities sends a mixed message in terms of the Commonwealth’s intention in promoting integrated day activities. Congregate day settings may continue to exist for some time as DBHDS transitions to a system that expands the offering of integrated day activities. Providers will need time to design new program models and DBHDS will need to address infrastructure support and staffing ratios to encourage and support meaningful integration into community-based services that are not offered in congregate settings. The intent and coherence of the definition would be strengthened if the definition were reworded to instead include individuals who are not currently employed and who have retired from employment, rather than those who choose congregate care settings. Since the choice of individuals has in large part been limited to congregate day service settings a person’s participation in this type of program does not necessarily reflect informed choice.
The goals and objectives focus on developing a common understanding; ensuring policies, procedures and funding promote integrated day activities, and developing a plan to transform existing structures to support the delivery of integrated day activities. It is important to undertake activities to address these goals. However the plan lacks any specificity or depth as to how this will be accomplished. The plan projects that a common understanding and philosophy about integrated day activities will be achieved by June 2015 with work not starting until July 2014. Having policies and funding in place will be initiated in October, 2014 and completed by January 2015. These
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goals seem out of sequence. It seems DBHDS needs to have its service definitions completed prior to addressing policy and funding changes. The plan indicates the SELN will be responsible for the review of policies and procedures. The SELN has a similar responsibility to review existing policies across the state agencies that might impede employment for individuals with ID or DD. To date the sub-group for this policy review has not met on a regular basis to accomplish this task according to members of the SELN.
Stakeholder involvement will be key to the successful implementation of integrated day activities. The section in the plan to list key stakeholders is left blank. No specific strategies are included for outreach or training in the plan. There is only a vague short-term objective to educate all stakeholders about integrated day activities.
It is a concern that work will not be initiated until July 2014. DBHDS has had the requirement to offer individuals integrated employment since the inception of the Agreement. Because a plan had not been developed as required “within 180 days” of the Agreement, the Independent Reviewer subsequently required an implementation plan by March 31,2014. What has been submitted is a very preliminary plan. It does not include the planning elements or implementation specifics as to how objectives will be accomplished. There are also no measures of progress included.
The last goal is for system transformation. “Structures, both state level and provider level, will support delivery of day activities in the least restrictive and most integrated settings.” The DBHDS wants to ensure funding sources that promote and support integrated settings, ensure provider capacity, develop a guidebook for transformation, and develop a system of outcome tracking. All of these are important components of the development process. These are stated as short- term objectives with the outcome being “a logical replicable and measurable model of integrated day activities.” This is to be completed by December 2015. It appears it will be almost two additional years before DBHDS expects to have a model of integrated day services. The plan does not address when individuals in the target population can expect to be offered integrated day activities or how many individuals will be targeted to receive these integrated services. The plan also does not specifically address:
ü How need for these services will be assessed ü Whether the service delivery model will include a self-directed option ü What the anticipated impact is on providers of congregate day services or how this will be
determined and what the DBHDS policy will be about this service delivery model ü How teams will be instructed to use the person-centered planning process to introduce this
service option and plan appropriate goals and objectives for the individual ü Outreach to families, individuals and schools ü Training for CSBs and Case Managers ü Assessing existing provider capacity and determining how to expand this if necessary ü Qualifying providers
Conclusion and Recommendations: The Commonwealth is not in compliance with 7.a.i. The DBHDS needs to develop an implementation plan with more specific objectives, measurable interim milestones, and an indication of the resources it will commit to complete the implementation plan within the timeframes established. This should be submitted to the Independent Reviewer by July 31, 2014. That plan should be evaluated using the SHAY evaluation tool to provide feedback and recommendations to the Independent Reviewer by August 31, 2014.
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VI. Review of the SELN and the Inclusion of Employment in the Person-Centered ISP Planning Process
b. The Commonwealth shall: ü Maintain its membership in the SELN established by NASDDDS. ü Establish a state policy on Employment First (EF) for this target population and include a term in the CSB
Performance Contract requiring application of this policy. ü The principles of the Employment First Policy include offering employment as the first and priority service
option; providing integrated work settings that pay individuals minimum wage; discussing employment options with individuals through the person-centered planning process at least annually. ü Employ at least one Employment Services Coordinator to monitor the implementation of the employment first practices.
The Commonwealth did develop and promulgate the Employment First policy during the previous reporting period. Additionally, the Governor issued an Executive Order 55 on November 12, 2012 to bring to bear the efforts of both government and the business community to facilitate and advance opportunities for individual with disabilities to be gainfully employed. Various state agencies led this effort organizing a series of events beginning with a kick-off summit held on June 27, 2013. The summit was followed by six regional workshops involving state and business leaders and the Services Solution Teams of the local Workforce Investment Boards. Recommendations have been made to continue this initiative and DBHDS, DARS and the other involved agencies are awaiting approval from the Governor. This is an important initiative to continue the education, partnership building and support of the business community in Virginia to increase the employment opportunities for individuals in this target population.
Virginia has maintained its membership in the SELN and issued a policy on Employment First. DBHDS continues to employ the Employment Services Coordinator. This review will explore the work of the SELN and focus on whether employment is being offered as the first option to individuals in the target population.
ISPS That Include Employment: Part of this review is to determine if the expectation that individuals in the target population are offered employment as the first option by Case Managers and their teams during the individual planning process in which they discuss and develop employment goals. I have reviewed a random sample of 31 ISPs of individuals who have transitioned from the Training Centers, individuals receiving waiver services for the first time, and individuals already enrolled in pre-vocational services or Group Supported Employment (GSE). A review of a larger number of ISPs was planned, however, DBHDS was not able to provide them, reportedly because of the unresponsiveness of some CSBs. This added to the time required to complete this review and, if repeated, could undermine the effectiveness of future reviews.
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SUMMARY OF THE ISP REVIEW OF TEAM DISCUSSIONS OF EMPLOYMENT
Of the 31 ISPs reviewed, 27 (87%) involved no discussion of employment and no mention of a vocational assessment.
The ISPs reviewed do not indicate that the person or guardian was asked to discuss:
 the individual’s preferences and interest in employment,  employment opportunities available to consider and explore, or  employment services and goals.
The ISPs did not indicate discussion or support of individuals in group supported employment to pursue individualized supported or competitive employment.
The ISPs did not include goals and implementation strategies to increase the individual’s employability.
To date there has been no report of specific direction given by DBHDS to the CSBs to help Case Managers and their Supervisors understand how they are expected to fulfill this responsibility, what to discuss and include in the ISPs, and how they will be held accountable.
DBHDS has met with several CSBs to offer targeted training about Employment First, but has not provided this to all CSBs.
CSBs use different formats for the Person-Centered Individual Service Plans. Generally these formats do not focus on employment. The planning templates do not emphasize or include a section that would prompt a discussion of a person’s true work dreams, preferences, and work interests, or how to align the annual objectives with these interests and preferences.
Many of the ISPs have a section in which the consumer or guardian indicates whether the plan meets the person’s expectations and dreams. Every ISP reviewed that included this section had all boxes checked including that “the plan meets the person’s work dreams”.
During the last reporting period DBHDS reported that there is a provision in the FY13 and FY14 Community Services Performance Contract that requires the CSBs to comply with Section III.C.7.b of the Settlement Agreement. DBHDS informed this reviewer that a reformatted planning form would be implemented so that employment would be the first topic discussed with each individual and ISP team. The case manager was also going to submit a report that confirms that employment options were discussed. Workgroup 8 was charged to verify that case managers were in compliance with this requirement.. No evidence has been provided that these practices have been implemented.
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Conclusions:
The Commonwealth is not in compliance with III.C.7.a. It is not providing individuals in the target population integrated day opportunities to the greatest extent possible. The review of ISPs indicates a pattern of minimal, and frequently no discussion of employment by teams. This remained true for individuals who expressed liking to work and for whom increasing earnings is an aspiration.
From the sample of ISPs I reviewed there is no indication that CSBs are in compliance with the Performance Contract regarding employment planning for members of the target population. The process of checking boxes to indicate that essential steps have occurred appears to be a pro forma process and not reflective of a meaningful discussion of the individual’s goals and aspirations at least in the area of employment.
The sample of 31 ISPs validates the need for more formal communication and direction to the CSBs from DBHDS.
Recommendations:
It would be helpful if specific direction were formally communicated to the CSBs that could be reviewed with Case Managers and used as a guide for Supervisors to continue to mentor Case Managers related to supported employment.
It would be helpful if the DBHDS issued guidance on its expectations for the person-centered planning process including a basic outline of how to address employment as the first option for individuals to consider.
The DBHDS must also determine how to impart this information to all DD Case Managers. DBHDS should provide reports about its supported employment initiatives to the Independent Reviewer “to document that the requirements of the Agreement are being properly implemented “. (Section IX.C.)
The Engagement of the SELN: The VA SELN Advisory Group was established to assist DBHDS to develop its strategic employment plan, set the targets for the number of individuals in the target population who will be employed, and provide ongoing assistance to implement the plan and the Employment First Policy. This past year input was sought from SELN members to revise the definitions of employment services and to define integrated day opportunities which are also required as part of the Settlement Agreement. The VA SELN Advisory Group was established in 2008. It includes self-advocates, family members, advocacy organization members, CSB staff, state agency administrators, educators, and employment providers.
I interviewed nine members as part of the review of Employment Services in 2013. The interviews included representatives of CSBs, educators, families, advocates, state agencies and providers. In light of concerns interviewees expressed about the operation of the SELN and the group’s ability to have meaningful input into the employment planning process I chose to interview as many of the same members as were available. Additionally I interviewed a self-advocate, an additional representative of a state agency and a representative of an advocacy organization. I asked all of the members interviewed about the operation of the SELN and the opportunity for input into the
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DBHDS planning process; target setting; training for case managers; the development of the plan for integrated day services; and outreach to the DD community.
1. The operations of the SELN and the opportunity afforded to its members to have input into the planning process. The vast majority of the SELN members interviewed spoke of improvements in the organization of the SELN committee meetings. During the last 5-6 months of calendar year 2013 the meetings ran very smoothly which was attributed to the co-leadership of Adam Sass and Heidi Dix. Ms. Dix was in a position to speak for the administration of DBHDS and was able to support the direction being set by Mr. Sass. Since Ms. Dix’s departure from DBHDS, Connie Cochran, Assistant Commissioner, DBHDS has been involved and members hope that he is able to make a similar commitment to the group so that progress on topics and decisions can be made.
Members report having greater opportunity for input and are pleased that the group is making progress. All members reported that the SELN actively participated in creating the employment targets. Various sub-committees have been formed providing a structure that can assist the SELN to continue to move forward with its work. One sub-committee was charged with developing employment modules that will be added to the training offered to the case managers. The training presentation was recently completed and shared with DBHDS. This training is discussed in another section of this report.
Although there was acknowledgement that progress had been made during the last year to improve the SELN’s effectiveness some of the members interviewed believe the group can be further strengthened by formalizing the membership and advisory group structure. Some of those interviewed recommended that a charter and by-laws be developed and that members be more formally appointed. This would enable the group to be constituted with consistent membership and meet on a regular, predictable basis. There is no set annual schedule and there have been cancellations and re-scheduling. There have been improvements in getting agendas and documents shared prior to a meeting but this is not yet consistent. At the last meeting the plan to develop integrated day services was shared only the night before the meeting. Members also reported not getting written copies of the final proposal setting employment targets.
Members also report that there is still repeated discussion of certain topics without resolution. They credit this to being the result of inconsistent membership and attendance. Suggestions were made to rotate the location of the meetings and use webinars to help members participate remotely. As the DBHDS continues to address the efficiency and effectiveness of the Advisory Group the coordination of the membership’s diverse perspective, knowledge and expertise will contribute to the development and implementation of strategies that will have broad stakeholder support to advance employment services in Virginia.
Goal 6 of Virginia’s Plan to Increase Employment Opportunities for Individuals with Intellectual and Developmental Disabilities FY2013-2015 addresses this issue. It states that the SELN will have formalized structure with clearly defined roles and responsibilities for members. The recommended actions include agreeing on representation, developing by-laws, appointing members and orienting new members. Members do not report that there is a formal appointment process or by-laws developed yet. The DBHDS projected it would develop by-laws and formalize appointments by 1/31/14, and 3/31/14 respectively. It has recently been delayed.
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2. Development of the Employment targets for FY15-FY19: All SELN Advisory Group members interviewed reported that the members had the chance for meaningful input into the creation of the targets and ample time to discuss the implications of setting the targets at the level established. While some members wanted to see more aggressive targets those who were interviewed believed that these increases represent a reasonable but challenging goal for Virginia. Some members expressed concern that the targets assume no growth in the waivers overall and support adjusting the targets each year to reflect the real number of waiver slots that are funded. All of the members are aware that VA DBHDS and its stakeholders need to address many aspects of the existing employment service delivery system and identified barriers for the Commonwealth to achieve these targets. Some of the advocacy groups that are represented on the SELN proposed language for the Legislative budget that would have provided legislative intent for the increases to the number of individuals who were in supported employment but it was not adopted in the Commonwealth’s budget for FY15. Some of the members hope to see DBHDS concentrate on young people who are transitioning to adult services as a group to target for employment opportunities. The SELN members want DBHDS to take ownership of these targets and promote these goals with all stakeholder groups.
3. Case Management Training: The SELN formed a sub-group to assist the DBHDS to develop a curriculum to train case managers about the Employment First Initiative and how to present employment as an option to individuals regardless of their service needs. This was to be completed by 1/31/2014. It was recently finalized and submitted to the Case Management Coordinator of DBHDS. SELN members reported the sub-committee had significant input into the design of this module. SELN members report that training is needed if Case Managers are to understand and fulfill their responsibilities to meaningfully offer employment as an option to individuals in the target population. Some members believe this training has to be required of both ID and DD Case Managers. The DBHDS plans to review the module and make it available on its website, but not require it of Case Managers. I discuss case management training and review this curriculum in an earlier section of the report.
4. Outreach to the DD Community: SELN members interviewed were not aware of any specific outreach efforts to individuals with developmental disabilities or their families. This is not a topic that has been discussed or addressed by the SELN. Members report some frustration that there is not an organized outreach effort to individuals with intellectual disabilities and their families. They appreciate, however, the efforts made by the DBHDS to present employment information at various regional forums across the state. They do recommend that there be dialogue with the CSBs to more formally provide information to individuals and their families about employment services and that DBHDS share information more consistently with school systems. Now that the DBHDS has responsibility for the DD waiver it may be timely for a specific outreach plan to be developed for participants and their families. Individuals on waiting lists for the waivers could be informed of vocational support that is available through DARS. The DBHDS recently developed a DD Newsletter. This form of communication was viewed favorably by some members of the SELN and could be used for ongoing communication about the employment initiative. It will be available on the DBHDS website, but DBHDS does not have the funding to mail it directly to families. The SELN might benefit from including more representatives of the DD Community to assist the department with outreach strategies to reach this target population.
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5. Development of the Plan for Integrated Day Activities: There have been initial discussions with the SELN regarding the DBHDS’ responsibility to develop integrated day activities. The SELN has had some input into the definition of these services and discussed the need to offer integrated day activities to both individuals who are employed part time and also for individuals who are either not interested in employment or currently employed. Members are pleased that the waiver application submitted in March expanded the definition of day supports. However, the SELN has not created a sub-group to address this responsibility. The preliminary plan for integrated day activities that was submitted for this review was first shared at the recent SELN meeting (3/31/14). Members received a copy the day before the meeting. Some members want more time to review the plan and provide feedback.
6. System Redesign: Some members shared their concern and perspectives about the redesign of the waiver system. All agree that this essential infrastructure change is critical to successfully employing more individuals with ID and DD. The members feel strongly that all current barriers to employment need to be examined and addressed through system redesign. This includes expanding service definitions, establishing appropriate rates for supported employment, addressing the true costs providers incur offering supported employment, funding all supports related to employment, determining adequate wages for employment staff, addressing the qualification process for providers, and determining how ESO providers will be monitored. An essential support service related to employing individuals is transportation. Currently the waiver does not reimburse for transporting an individual to work unless the job coach is present. As the need for the job coach to be onsite fades it is essential that the individual can still benefit from transportation support. The SELN had understood that this was to be addressed in the recent waiver renewal, but recently was informed that this was not possible. Connie Cochran reports it will be addressed in the waiver redesign. The ESOs currently receive funding for some employment related supports through DARS that are not yet reimbursable through the HCBS waivers. DARS also qualifies and monitors these providers. DBHDS will need to analyze how best to approach these issues to create an environment that encourages ESO providers to expand employment supports to individuals in the HCBS waivers.
Conclusion and Recommendation: The DBHDS is in compliance with maintaining the SELN and maintaining an Employment Services Coordinator, but is not in overall compliance with III.C.7.b. It does not comply with the requirements to share employment as the first day service option using a person-centered process. The DBHDS cannot report on paying minimum wages in employment settings, which is another requirement of III.C.7.b and is not holding the CSBs responsible for their compliance with this provision of the Settlement Agreement. The DBHDS should continue to work collaboratively with the SELN and develop by-laws and guidance for appointing the SELN members.
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VII. Summary
The Commonwealth of Virginia has made strides toward implementing the employment services requirements of the Agreement since the review in the spring of 2013. The SELN is more organized and has more input into planning to improve and increase employment for individuals with ID and DD. The Employment Services Coordinator remains committed and passionate about enhancing employment services and continues to provide strong technical assistance to the SELN and is engaged in effective training and work with stakeholders. The new administration is committed to employment for individuals with ID and DD, the continued engagement with the SELN, and the waiver redesign. Providing administrative leadership and support for DBHDS’s work in the area of employment will be critical to the success of the initiative. It is encouraging that DBHDS has set meaningful targets to increase the number of individuals who are employed and has outlined a plan to increase opportunities for integrated day activities.
The Commonwealth is not in compliance with III.C.7.a. It is not providing individuals in the target population integrated day opportunities to the greatest extent possible. The review of ISPs indicates a pattern of minimal or no discussion of employment by teams. The implementation plan to increase integrated day activities has not yet been developed or implemented.
The Commonwealth is not in compliance with Section C.7.b.i. It has developed a very preliminary plan, rather than the required implementation plan, for integrated day activities. It is currently not offering integrated day activities other than supported employment to the target population. I recommend a more detailed plan be written by June 30, 2014 and submitted to the Independent Reviewer. DBHDS needs to indicate when these options will be available to individuals and how data will be tracked and reported.
The Commonwealth is in compliance with Section C.7.b. It has maintained its SELN membership, has established the required state policy on Employment First, has included a term in its performance contract with CSBs, and has an employment services coordinator. It is a significant concern that the review of ISP indicated that case managers are not implementing that term of the contract. It is recommended that DBHDS determine how it will monitor, document, and report to the Independent Reviewer that the Employment First policy is being properly implemented (Section IX.C.)
The Commonwealth is in compliance with Section C.7.b.i.A and with Sections C.7.b.i.B.1.a, b, d, and e. It is not in compliance with Section C.7.b.i.B.1.c, as it cannot produce information regarding the wages of individuals in supported employment.
The Commonwealth is in compliance with Section C.7.b.B.2.a. It has now set meaningful targets for ISE and for the number (85% of the supported employment target) maintaining employment for twelve months for FY15- FY19.
There are numerous recommendations offered throughout this report for serious consideration by the Commonwealth. Most important is creating a meaningful and accurate data reporting system, training both ID and DD case managers in employment first and their responsibilities to the individuals they serve, holding the CSBs accountable for implementation of the employment initiative, and effectively reaching out to individuals with developmental disabilities and their families.
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APPENDIX D
 COMMUNITY LIVING OPTIONS

By: Patrick Rafter

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MEMORANDUM


To:

Donald Fletcher, Independent Reviewer /Virginia

From: Patrick Rafter, CEO, Creative Housing Inc.

Re:

Review of Consent Decree Housing Activities

At your request I reviewed “Virginia’s Plan to Increase Independent Living Options”, associated progress reports, and staff meeting minutes. I then had the opportunity to discuss the plan directly with team members involved in the plan development and implementation. I appreciate the willingness of all parties to be generous with their time and candid in their discussions.

General Observations:

Separation of Housing & Supports:The Virginia Plan designates the separation of housing and supports as its “cornerstone”. I encourage the Virginia team stay in touch with this cornerstone as they move forward developing increased housing capacity as a parallel activity to projected waiver development. Having worked in a system where almost all new development over the last 20 years mandates a separation of housing and supports, I can attest that; while a bit traumatic at first, few, if any of us would want to revert to the system in which the residential support provider controlled housing. This separation allows for providers to focus on the care, support and growth of people with disabilities as their core competency. Most importantly, positioning people with disabilities as lessees with independent landlords; empowers these individuals and their families to select (and deselect) their preferred support provider agency. What emerges over time is a true customer-centered free market system for people with disabilities.

Waiver Reform:Team members generally concede that the existing Medicaid waiver does not adequately encourage the movement of individuals from congregant care situations to more independent consumer controlled living environments. DBHDS staff outlined the issues in the Virginia plan and is working to amend the existing waiver. Until amended, the waiver will serve as a burden to, and even a barrier to, helping individuals move from congregant care group homes to more independent living.

DBHDS staff also noted that the current waiver restrictions on sharing supports may result in the unintended consequence of keeping individuals in congregate care settings. Through discussions with colleagues working in other states I believe the time is ripe in the evolution of waivers to engage CMS in discussions focused on allowing consumers the option of choosing to pool their support dollars. It is important that CMS not see this proposal as a restriction on free choice of provider. Rather, it is an additional option for consumers to choose to live nearby or with each other, to collectively select the same provider, or to enable some individuals to live independently who might otherwise not have the support package to do so.

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Potential Federal Assistance:The Virginia team is cognizant of federal programs (i.e. HUD 811, Section 8 ) that provide housing options for people with disabilities. The team has outlined efforts to secure potential funding from these federal sources. While these funding options have yet to be pursued, Plan updates should be realistic with projections of available housing resources within existing and projected federal budget cuts. With the HUD 811 program engaged in slow motion reform, and Section 8 waiting lists closed, I anticipate that traditional federal housing programs will be, at best, minor contributors to the housing development for the target group and of no material benefit for at least the next two to three years.
The Virginia Plan:
The Virginia Plan provides a thorough situational analysis of the challenges facing the Virginia team as they work to increase housing capacity to meet the needs of the expanding pool of waiver recipients. In addition, the Virginia Plan outlines and demonstrates tracking a broad range of administrative activities and processes. In terms of actual deliverables (i.e. specific schedules/numbers for increased housing capacity meeting the cornerstone de-coupling principle) there are significant concerns with the Plan’s actual capacity to develop community-based housing for the target population. There are only two elements of the Plan that appear to have solid funding behind them: Low Income Housing Tax Credit Development (LIHTC) and the Rent Subsidy Pilot. Both programs have problematic elements.
LIHTC:The plan to develop 150 accessible/affordable units on an annual basis has no direct linkage to the waiver slots being created. That is, they will be made available in the general housing market where the development is completed. This will begin no sooner than two years from now. The units may or may not be located in areas of the state that have the most need for housing for the target population. I questioned representatives from the state housing authority about setting aside these units directly for individuals in the target population, and they indicated it was considered not possible. If these units were set aside for the target population, or, to allow other individuals to move from congregate settings to create vacancies for the target population, it would require a careful choreography with DD service providers working with housing developers. This coordination is essential for individuals with DD to access these housing resources with the supports needed to meet their essential needs. Such coordination is not addressed in the plan.
Time limitations prevented an assessment of the availability of subsidies and external funding resources that could make housing available to individuals with incomes significantly lower than those traditionally housed in LIHTC developments.
I recommend that the proposed LIHTC development for low income accessible units be restructured with a clear focus on the target population. Absent a restructuring it should be eliminated from the housing plan, as it gives the false appearance of offering housing options for the target group.
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Rent Subsidy Pilot:I was able to spend some time with the team at Fairfax – Falls Church CSB. While the first person had yet to be placed, it is evident that the team, working with DBHDS staff, has put together a thoughtful implementation plan. The pilot project team is focused on the right issues and is enthusiastic regarding implementation.
The limited resources devoted to rent subsidies and its compartmentalization as a “Pilot Project” essentially takes off the table what could be one of the most useful tools in the housing plan. An expanded rent subsidy program will not require development sophistication, can move rapidly to access the existing housing market, and can be directed to specific areas of the state where individuals in the target population choose to relocate.
Given there are a number of individuals with disabilities already living in subsidized apartments in Virginia, the data is already available to move beyond this small pilot and go to scale. I encourage the Virginia team to do this as rapidly as possible to keep abreast of waiver development. As you expand the program I encourage you to think about the following issues:
o Single Point of Contact with Landlords: Some of your clients may have initial adjustment problems to apartment living. There should have one contact person in your system that will reach out to support staff for problem resolution when contacted by a landlord. Many issues are quickly resolved if rapidly attended to. If not addressed, they can result in lease termination by the landlord.
o Funding Flexibility: Administrators of the program should have the ability to step and make rent payments to the landlords on behalf of a tenant who may be temporarily financially struggling. This is in fact a cost savings option compared to the overall expense of having to relocate someone who has been evicted for not paying their rent. There will also be occasions when tenants are not able to pay for damages. Stepping in and making the payments develops tremendous good will with landlords whose patience may be required in the future.
o Avoid Evictions: Once a client has an eviction on their record it restricts their access to decent housing. If a rental placement is not working out, negotiating an exit strategy with tenant and landlord is definitely preferable to leaving it up to the landlord to proceed through an eviction process.
o Informed Decision Making: Prospective Tenants should be exposed to and visit various types of apartment living before being asked to make an apartment choice and sign an annual lease.
o Landlord Development: The program right now excludes individuals with poor rental history. At some point you will need to serve these people. As you develop ongoing relationships with landlords you will need to find landlords who are willing to work with you to take on “tougher customers” with evictions or criminal convictions on their records.
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Plan Implementation Comment:The current Virginia Plan as written calls for the development of an additional housing dimension of consumer-controlled owned or rented properties, which is a new paradigm distinct from provider- owned and operated group facilities. At the present time the new dimension has not been implemented. The individuals from the Training Centers are primarily moving to existing or expanded group home capacity. This approach may well be the necessary first step in providing post institutional placements for some individuals with extremely complex needs, but there should also be a resulting movement out of group homes into independent living situations. As it now stands Virginia is expanding capacity of congregate living facilities, but seemingly unable to come up with the resources to truly develop independent living alternatives.
Additional Issues for Consideration:
Broaden Housing Options:I would encourage the Housing Plan Team to continue to broaden the range of future housing options beyond the apartment living offered in LIHTC programs. There will be a number of individuals who will be better served (or prefer to live) in single family homes in residential neighborhoods utilizing a single support provider. A robust rent subsidy program opens the door to this possibility. Nonetheless finding landlords who will produce accessibility renovations and are able to deal with behavior issues is exceptionally challenging. Some states have provided grants, financed by state bonds, to nonprofit housing corporations to meet this need.
Waiver Funded Accessibility Renovations:I was not able to review the environmental modification elements of the existing waiver program. Many states have reduced potential benefits in this area in a misguided attempt at cost containment. In my experience it can represent a front end investment which pays for itself in reducing long term staffing costs. I encourage the Team to thoughtfully examine this aspect of the Waiver. Automatic door openers, track lift systems, drive-in showers and home automation systems can open the world for individuals who need wheel chairs for mobility. In many states the lack of a comprehensive accessibility program has unnecessarily kept many nonambulatory individuals in more expensive congregate care settings. Waivers can represent a funding stream to support both housing developers and families having physically disabled individuals in their homes instead of the more costly residential system.
I am more than happy to make myself available to Virginia team members for follow up questions and clarification. I appreciate the courtesy extended to me in my visit.
Patrick Rafter
Creative Housing Inc.
Columbus, Ohio 43219
Phone: (614) 418-7725 Ext. 22
E-Mail: prafter@creativehousing.org
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APPENDIX E
 LICENSING
 By: Ric Zaharia Ph.D.

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Report to the Independent Reviewer United States v. Commonwealth of Virginia
Licensing Requirements of the
 Settlement Agreement

By
 Ric Zaharia, Ph.D., FAAIDD

Vice-President
 Consortium on Innovative Practices

April 28, 2014
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Introduction
The Independent Reviewer for the US v Commonwealth of Virginia Settlement Agreement requested a review of the Licensing requirements of the Agreement. This review was based on the need to assess key indicators that would produce a baseline assessment of the effectiveness of licensing processes and the more frequent licensure visitation schedules.
Licensing services in Virginia are administered through the Office of Licensing Services (OLS) at DBHDS (Department of Behavioral Health and Developmental Services). OLS operates with 32 Licensing Specialists in the field and with a central office of five (5) staff. It is the Commonwealth’s primary system for regulating the conduct of provider agencies by ensuring minimum standards compliance. DBHDS also regards the Licensing system as the primary compliance mechanism for Community Service Board (CSB) case management performance under their contracts with the Commonwealth. Therefore, the effective functioning of OLS in accordance with the requirements of the Agreement is critical to the goal of improving the lives of people with intellectual and developmental disabilities in Virginia.
This report is organized in a way that parallels the two major requirements around Licensing in the Agreement: case management performance and provider performance. In each section the Methodology used is described, the findings from this evaluation are reported, and recommendations to achieve full compliance are made; suggestions are offered where an area might be improved.
Many important aspects of Licensing are not part of this review. Effectiveness of incident investigations, successful provider implementation of corrective action plans, and the management of substandard or poor performing providers via the Licensing process were not examined in this review but are proposed for evaluation in later cycles.
Les Saltzberg has been helpful in supplying materials, facilitating access, and making connections to interviewees. Appreciation is expressed to the Licensing Specialists, provider staff and CSB staff who made themselves available for telephone interviews.
Case Management
Agreement: III.C. Serving Individuals with Developmental Disabilities in the Most Integrated Setting
5. Case Management d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
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Review Methodology
1) Reviewed current licensing standards, regulations and all licensing tools/protocols covering CSB reviews.
2) Reviewed all licensure survey reports with corrective action plans (19) and all ad hoc investigations (20) for two quarters in FY 2014.
3) Reviewed the survey schedule for CY 2013 for three (3) Licensing Specialists. Two were selected by OLS, one was selected by the author.
4) Reviewed available reports for licensing results across CSBs.
Findings
Licensing regulations (12VAC35-105-10 to 105 1410) align generally with the case management expectations in the Agreement. The regulations do not align specifically as to the case management expectations detailed in the Agreement (i.e. regularized face to face meetings with the individual being served, enhanced visit frequency, identifying risks to the individual, offering choice among providers, assembling professionals and non-professionals who provide supports, identifying risks). Licensing protocols (e.g. checklists) align with the Licensing regulations but also do not align with the same specific requirements of the Agreement mentioned above. Per the Department’s Guidance Document for Additional Case Management Data Elements (12/11/13 version), the role of OLS is to verify individual data elements in the enhanced case management performance documentation reported via the automated information system, CCS3. Although there was evidence in specific CSB corrective action plans that this occurs, it is not formalized in checklists or the OLS Office Protocol, which may leave it to the discretion of individual Licensing Specialists.
The current protocol for reviewing CSB case management calls for Licensing review visits “every 6 months, with a minimum sample of 10 cases”. There is evidence (through a cumbersome tracking system) of CSB case management visits every six months. The majority of case management licensing reviews examined in this sample, however, resulted in a ”No Violations” determination (12 of 19 CSBs). The implication is that in a review of 120 case management records out of 190 no documentation deficiencies were identified. Given the complexity of documentation requirements of case managers in general, this outcome is extraordinary for case managers who have caseloads usually over 30 individuals. Furthermore, pulling a sample of ten (10) cases to review documentation provides a) an inadequate sample at some CSBs (e.g. for a CSB with 650 clients, a sample of ten represents less that 2%, which is too low an amount on which to make a licensing judgment) and b) a review of paper and not an examination of the impacts of good (or substandard) case management. Focus on case management documentation in a Licensing review may result in problems being overlooked, substandard performance not being discovered and opportunities for improvement being missed. OLS is considering assessing case management services while it is examining services at the provider level. Some Licensing Specialists are already doing this.
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OLS does not regularly compile the results of licensing reviews into a report on trends related to compliance patterns across CSBs. However, alerts and system guidances are generated by DBHDS in a way that potentially increases awareness for individuals, family members, providers, caregivers and case managers of risks and problems that may occur while someone is receiving services (e.g., constipation, choking, psychotropic medications, emergency room criteria, etc.). Nonetheless, a rich data source for other system improvements is overlooked when the results of licensing visits are not aggregated and analyzed for trends and patterns.
Conclusion
DBHDS is not currently in compliance with the requirement to have a mechanism to monitor CSB compliance with performance standards, because the Commonwealth’s monitoring protocols and regulations do not align with Agreement requirements and the OLS review process is not adequate to determine compliance with performance standards. Section IX.C requires that there be “…sufficient records to document that the requirements of the Agreement are being properly implemented…”
Recommendations to Achieve Full Compliance
OLS should create a supplement to the case management checklist that operationalizes the expectations of the Agreement. This supplement should be outcome focused (versus documentation focused) and specifically include probes of: regularized face to face meetings with the individual being served, enhanced visit frequency, offering choice among providers, assembling professionals and non-professionals who provide supports, and identifying risks to the individual.
The OLS review protocol should require Licensing Specialists to also assess case management services while they are examining services at the provider level. The root cause of service delivery problems is often the poor coordination of services, the absence of monitoring by an outside party, or the absence of leadership/advocacy on behalf of the individual. Therefore, adding a requirement to every person-centered citation that the work of the case manager be concurrently scrutinized, will ensure the causes of many service delivery problems are addressed and not just the symptoms.
OLS sampling will be improved if the current ten (10) case sample review expectation of Licensing Specialists is modified to a 10% sample with a 10 case minimum for future CSB reviews.
Suggestions for Departmental Consideration
OLS might consider compiling an annual trend report on licensing results for case management. Detecting and reporting patterns and frequencies in the results of licensing reviews across CSBs ensures system improvements are discovered and identified.
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The goal of updating automation systems within OLS should continue, so that information retrieval and the “connecting of dots” across systems, services, and geography are done efficiently.
Provider Licensing
Agreement: V. Quality and Risk Management System G. Licensing 1. The Commonwealth shall conduct regular, unannounced licensing inspections of
community providers serving individuals receiving services under this Agreement. 2. Within 12 months of the effective date of this Agreement, the Commonwealth shall
have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including:
a. Providers who have a conditional or provisional license; b. Providers who serve individuals with intensive medical and behavioral needs as
defined by the SIS category representing the highest level of risk to individuals; c. Providers who serve individuals who have an interruption of service greater than
30 days; d. Providers who serve individuals who encounter the crisis system for a serious
crisis or for multiple less serious crises within a three-month period; e. Providers who serve individuals who have transitioned from a Training Center
within the previous 12 months; and f. Providers who serve individuals in congregate settings of 5 or more individuals. 3. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.
Review Methodology
1) Reviewed current licensing standards, regulations and all licensing tools/protocols. 2) Reviewed minutes of the Licensing Stakeholders Workgroup. 3) Interviewed the Director of the Office of Licensing three (3) times. 4) Reviewed a sample of licensure survey reports with corrective action plans (44) and all ad hoc investigations (20) for two quarters in FY 2014. 5) Reviewed survey schedules for CY 2013 for three (3) Licensing Specialists. Two were selected by OLS, one was selected by the author. 6) Reviewed available reports for licensing results across providers. 7) Interviewed and reviewed the qualifications and experience of the six (6) last hired OLS Licensing Specialists. 8) Interviewed nine (9) provider representatives who were selected by the author (three inhome, three day support, three residential), who have experienced a recent licensing review. 9) Reviewed seven (7) complaint investigations from individuals/family members/guardians/anonymous sources who have made formal complaints to DBHDS.
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Findings
Licensing regulations (12VAC35-105-10 to 105 1410) align generally with the expectations in the Agreement. Licensing protocols (checklists) align with the Licensing regulations in most areas except for the Services and Supports area of the regulations, which are the heart of the Agreement (Section V.D.3). This gap leaves assessment up to individual Licensing Specialist discretion and may contribute to reliability problems in interpretation.
Provider feedback suggests confusion at the agency level as to how a variety of items are interpreted by Licensing Specialists. Although it has been utilized during the past 6 months, the recently formalized “dispute resolution process” does not necessarily reassure providers. For example, the regulation for “Monitoring and evaluating service” at 12VAC35-105-620 covers a body of work for providers that is potentially substantial, but it is described in only sixty three words and there appear to be no supplemental materials for providers or Licensing Specialists to reference in order to interpret this significant requirement. The Licensing Stakeholders Workgroup has begun work on a) clarifying current regulations, in order to address provider concerns and to potentially increase reliability among Licensing Specialists, and b) identifying needed changes in the regulations.
The sampling methodology for unannounced provider visits described in the latest Office Protocol requires that Licensing Specialists review “a representative sample (more than two) of client records…interviews staff and clients”. This low sample number and the apparent absence of a checklist for interviewing reduce confidence in the thoroughness of Licensing reviews. For example, at a provider serving 100 clients this is a sample of about 3%, which is an inadequate number on which to make a licensing judgment. The absence of a checklist for interviewing staff and clients ensures there will be variability in interpretation between Specialists.
The sample of Licensing Specialists who were interviewed for this study appeared mission- driven, well trained and appropriately qualified. There is a generally positive high regard for Licensing Specialists among providers with exceptions usually centered on contested citations where the concern is the “fair” application of a regulation. OLS has made extensive efforts to enable informal collaboration among Licensing Specialists as to the appropriate interpretation of a regulation. In addition, the Department has made available sufficient resources to support the Specialists with in depth clinical, healthcare and medical consultation.
Over the past five years the number of providers licensed by OLS has increased from 552 (FY08) to 844 (FY13), a 53% increase. During the same period licensed service locations (perhaps a more accurate indicator of workload for Licensing Specialists) has increased from 3,357 to 7,063, a 110% increase.
The Licensing reviews that were examined for this study include clear statements of provider problems and appropriate corrective action plans. Four ID providers have been moved to
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provisional licenses during FY14. Again the website is unreliable: of three current ID providers with provisional licenses, only one is listed under the link “Providers with Provisional Licenses”. Providers, for the most part, agreed in retrospect with the validity of problems identified at their agencies. The reviews examined for this study also suggest that the enhanced Licensing visit frequency requirements of the Agreement are being achieved. In addition, there is evidence that some Licensing Specialists are assessing the adequacy of services and citing inadequate services or plans. The posting of the corrective action plans to the DBHDS website demonstrates a commendable effort to inform the consumer public, but the site does not reliably display all inspections (e.g. Licensee #325, 7-11-13).
The review of a sample of ad hoc investigations conducted by Licensing Specialists suggests appropriate attention to detail and fact-gathering. Investigations that reveal regulatory compliance problems evolve into corrective action plan requirements of the provider. This review of these seven (7) complaint investigations suggest investigators are thorough and appear to go to root causes. Three (3) of the seven investigations identified problems with and resulted in corrective action plans for “adequacy of services”. Investigations that result in corrective action plans are posted to the DBHDS website. Again, this posting demonstrates a commendable effort to inform the consumer public, but the site does not reliably display all investigations (e.g. Licensee #016, 7-16-13). Finally, near unanimous feedback from providers was that Licensing Specialists are professional and respectful when conducting follow-up investigations on the deaths of individuals.
The “Submit a Complaint about a Licensed Provider” link for the DBHDS website was not functioning at the time of this review. It is located on the OLS tab and is not on the DBHDS Home page; it is two clicks into the OLS page from the Home page.
OLS does not regularly compile the results of licensing reviews and report trends and patterns across providers. DBHDS is consequently relying on the memories and subjective impressions of OLS staff to know what Licensing reviews reveal about the strengths and weaknesses in the provider system. A rich data source for other system improvements is overlooked when the results of over 1500 formal licensing visits a year are not aggregated and analyzed for trends and patterns.
The work of OLS is generally respected by the provider community. In response to the query, “The Office of Licensing’s involvement in my program helps me provide high quality services,” the nine (9) providers gave it an average 4.2 rating out of 5. In the words of one provider, “their visits keep you on your toes.”
DBHDS has available in statute sufficient authority to enforce its regulations, but it appears reticent in recent years to have utilized those authorities. OLS has the necessary regulatory tools to force improvements among substandard providers and to eliminate substandard providers who have demonstrated a refusal to improve their services. These tools include mandatory training, fines up to $500 per violation, provisional licensing, revocation, summary suspension in emergencies, probation, reduced licensed capacity, admission freeze, and funds withholding (Va. Code. §37.2418 & 419). The use of provisional status with four (4) ID providers over the past year appears to be a modest enforcement effort in a system with 844 providers. OLS reports that it is planning to increase the use of fines in the next year. However, the lack of use of the other half dozen tools suggests continued attention and emphasis on enforcement is necessary. Finally, due process and regulatory protections appear sufficient and appropriate to ensure that actions OLS might take are based on substantive issues and only after multiple attempts to clarify, assist and support a provider.
A69

Conclusions
DBHDS appears to be in compliance with Section V.G.1. and 2. The schedules of Licensing Specialists, provider reports, and corrective action plans examined for this study indicate that the enhanced Licensing visit frequency requirements of the Agreement are being achieved.
DBHDS is not currently in compliance with the requirements of Section V.G.3. DBHDS does not have evidence at the policy level that OLS is producing reliable licensing data that would allow it to identify systemic patterns of compliance problems with the Agreement, including its “data and assessments” across the eight (8) domains at Section V.D.3. Weaknesses in the sampling methodology, the absence of a Licensing tool/checklist for the Services and Supports section of the regulations, and the absence of a structured approach to the outcome focus of staff and client interviews indicates policy level activity that needs to be completed before an “in compliance” determination can be reached.
Recommendations to Achieve Full Compliance
OLS should fulfill the requirement of systemic analysis of the “adequacy of individualized supports and services” by compiling regularly, at least annually, a trend report on licensing results for ID provider services. Detecting and reporting patterns and frequencies in the results of licensing reviews across agencies and services not only ensure system improvements are discovered, but it will also allow for a continuing source for the identification of needed guidance instructions, alerts, trainings, etc.
OLS will improve the thoroughness of provider reviews if it modifies its sampling methodology to a 10% sample with a minimum of three, and it develops an outcomes focused checklist and a robust sampling methodology for interviews with staff and clients.
Implementation of a tool that all Licensing Specialists use to review providers in the Services and Supports area will improve the reliability and consistency of OLS assessments and consequently the data available to evaluate trends and patterns.
The Licensing Stakeholders Workgroup should continue its work on updating regulations, in order to formalize the requirements of the Agreement in the regulations.
The Licensing Stakeholders Workgroup should continue its work on clarifying current regulations, in order to ensure the provision of reliable results and to reassure all parties that DBHDS is committed to clear and transparent practice standards.
Suggestions for Departmental Consideration
A70

OLS might consider convening an advisory committee of providers and Licensing Specialists to do a monthly or quarterly review of disputed citations or questions about regulatory interpretation. An approach such as this would amplify provider input and create an anonymous source to identify the need for regulatory clarification. This could result in less time being spent on dispute resolution and informal discussions, and would address the sentiment of a few providers that Licensing Specialists can be “intimidating” and may be feared for “retaliation” for disputing citations.
OLS might consider a formal, annual inter-rater reliability check for each Licensing Specialist as part of their personnel performance evaluation. This may inspire increased confidence among providers who are skeptical about the “fair” application of the regulations.
DBHDS might consider adopting a formula for Licensing Specialists that will assure that OLS capacity is expanded with increased workload in the future. For example, one (1) Licensing Specialist per thirty-two (32) licensed provider agencies or one (1) Licensing Specialist per 220 licensed service locations.
Given the increased complexity of scheduling, OLS might consider adopting a template for the individual organization of the visit workload of Licensing Specialists; for example, an Excel spreadsheet could be adapted to allow for the retrieval of past visit dates, as well as the planning of unannounced visits. This scheduling format could then be examined in real time (e.g. files on shared drives) by central office managers to ensure retrospectively and prospectively that the required frequencies of visits are being followed.
DBHDS should assess the legal counsel resources available to OLS in the pursuit of increased enforcement activity. The ability of Licensing staff to proceed with enforcement activities is heavily based on the ready availability of legal counsel, who ultimately determines the vigor with which enforcement activities will be pursued.
DBHDS might consider refreshing the “Submit a Complaint about a Licensed Provider” link on the website and moving it to the Home page, in order to improve consumer access.
OLS should consider investing administrative support resources to ensure website accuracy. The unreliability of the data on the Licensing pages makes them virtually useless for consumers or family members to research a provider they may be selecting for services.
Next Steps
In subsequent reviews of Licensing the following should be considered for assessment:
1) Section V.C.3,6 Quality and Risk Management System* identifies Licensing as the Commonwealth’s primary investigative body for abuse, neglect and other human rights violations; a sample of investigations should again be assessed to ensure a focus on root causes, as opposed to those causes that are most obvious and generally offered first. This might be accomplished by retracing the investigatory process by interviews with Licensing Specialists and involved provider parties. 2) CSB licensing results around case management requirements should be assessed longitudinally for multiple years, in order to verify that agency shortcomings are resolved and not
A71

repeated from review to review. The case management record for a sample of individuals representing the ‘enhanced frequency’ category of clients from ‘No Violation’ licensing reviews could be examined by a 3rd party to ensure issues are not being overlooked. 3) Licensing surveys should be assessed longitudinally for multiple years of the same provider, in order to verify that service delivery problems do not recur. 4) OLS disciplinary and corrective actions with problematic providers and CSBs since August 2012 should be studied, in order to verify providers and CSBs with service delivery problems are corrected or experience consequences for substandard practice.
* 3. The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC 35-105-160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services (“DBHDS Human Rights Regulations” (12 VAC 35-115-50(D)(3)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations. 6. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations (12 VAC 35-115240), the DBHDS Licensing Regulations (12 VAC 35-105-170), Virginia Code Section 37.2-419 in effect on the effective date of this Agreement, and other requirements in this Agreement.
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 </s> Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 1 of 152 PageID# 5554

REPORT OF THE INDEPENDENT REVIEWER 
 ON COMPLIANCE 
 WITH THE 

SETTLEMENT AGREEMENT 
 UNITED STATES v. COMMONWEALTH OF VIRGINIA 

United States District Court for 
 Eastern District of Virginia 

Civil Action No. 3:12 CV 059
 April 7, 2014 – October 6, 2014 

Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
December 8, 2014
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TABLE OF CONTENTS


I. EXECUTIVE SUMMARY
II. SUMMARY OF COMPLIANCE: YEAR THREE, FIRST HALF
III. DISCUSSION OF COMPLIANCE FINDINGS
IV. CONCLUSION
V RECOMMENDATIONS
VI. APPENDICES A. Individual Review Study B. Crisis Services C. Integrated Day Activities - Employment Services D. Housing - Community Living Options E. Licensing, Case Management and Investigation F. Quality and Risk Management

1
4 

30 

44 

45 

A 1
 A 2
 A10 A34 A56 A59 A77

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EXECUTIVE SUMMARY 


This is the Independent Reviewer’s fifth report on the status of compliance in the Settlement Agreement (Agreement) between the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This report documents and discusses the Commonwealth’s efforts and the status of its compliance with its obligations, as of October 6, 2014.

The review period for this report, April 7, 2014 – October 6, 2014, approximates the first half of the third year of the Commonwealth’s implementation. The Agreement’s provisions due to be implemented during the first two years are components of a statewide system that addresses the Agreement’s first, and overarching, service provision “to prevent unnecessary institutionalization and provide opportunities to live in the most integrated setting appropriate to their needs and consistent with … informed choice” of individuals with intellectual and developmental disabilities.

It is the Independent Reviewer’s opinion that the Commonwealth has continued to make good faith efforts to implement the requirements of the Agreement. The Commonwealth has achieved compliance with many of the required provisions. Its leaders are meeting regularly and collaborating to develop and implement plans to address other requirements. Despite staff turnover during the transition to a new administration, the Commonwealth has continued its implementation efforts. This has included undertaking the complex restructuring of the Home and CommunityBased Services (HCBS) waivers. The Commonwealth has created and filled several new positions and increased expertise to address areas of non-compliance. It also added new staff in leadership roles to oversee implementation. Collaboration amongst state agencies has also increased planning in supported employment and housing. Despite these efforts, however, the Commonwealth continues to be significantly behind schedule. There have been repeated delays in complying with certain obligations, including elements critical to an effective community based services system that is truly responsive to individuals with ID/DD. The following table “Summary of Compliance: Year Three - First Half” provides a rating of compliance and an explanatory comment for each provision. The Findings Section that follows the compliance table includes additional information about the compliance ratings, as do the consultant reports that are included in the Appendices of this report. Recommendations are included at the end of this report. In the coming review periods, it is essential that the Commonwealth demonstrate more substantial progress in developing and improving its programs and systems to comply with the terms of the Agreement.

Provisions that have been effectively implemented and are in compliance include: the creation of HCBS waiver slots, thus permitting an eligible individual to receive services in community settings rather than remaining on the waiting list or in an Intermediate Care Facility; increased case management and licensing oversight; discharge planning and transition services with a post-move monitoring process for individuals residing in Training Centers; an individual and family support program; and regional crisis services and crisis stabilization programs for adults with ID.

Provisions that were due and are not yet in compliance include opportunities to live in the most integrated setting; the transition of children from nursing facilities and large Intermediate Care Facilities to community placements; crisis services for children and adolescents; integrated day activities and supported employment; subsidized community living options; and an individual support planning process focused on helping individuals to learn new skills in order to become more self-sufficient. All of these provisions were to be implemented by this time. The facts gathered

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during this review period, however, demonstrate that none of these requirements has been implemented sufficiently to materially impact the target population. The Commonwealth has long acknowledged that more work needs to be done in these areas.
The Parties did not include a timeline for the implementation of the components of the Quality and Risk Management system. One year ago, the Independent Reviewer retained a consultant with expertise in Quality Management to provide a baseline assessment and recommendations regarding the Commonwealth’s planning and development efforts for these provisions. Prior to the last report to the Court, the Independent Reviewer informed the Parties that base line compliance determinations with the Quality and Risk Management provisions would be included in this report. The individuals in the target population and their families would have preferred that the Commonwealth have Quality and Risk Management systems fully in place when the Agreement began. The Parties both recognized that the lack of such systems limited the Commonwealth’s ability to identify problems and to make quality improvements. They also recognized that building such systems is a complex undertaking. Complying with these provisions requires significant change: the development of new systems and the reform of existing ones. Although the Commonwealth has many work groups engaged in planning and implementing quality initiatives, none have been implemented sufficiently to achieve compliance with the Quality and Risk Management provisions that did not have due dates.
Implementation of the Quality and Risk Management provisions is not controlled entirely by the Commonwealth. Private providers and Community Services Boards (CSBs) are important contributors. They are the sources for much of the data essential to the functioning of the Quality and Risk management system. The Commonwealth’s current regulations and historical practices are often obstacles to achieving compliance. As this review determined, before Virginia can have an effective Quality and Risk Management system, and one that complies fully with the provisions of the Agreement, it must have reliable data that are valid and are obtained from an adequate sample. The data must be consistently submitted, aggregated, and analyzed, so that trends and patterns can be identified and quality improvements planned and implemented.
In his previous Report to the Court, the Independent Reviewer determined that the Commonwealth had achieved compliance with a number of the provisions of the Agreement based on quantitative measures. It was important to recognize that the Commonwealth had successfully developed new policies, contract provisions, and programs. Furthermore, early operations of new programs are expected to be periods of learning and adjusting before quality standards are achieved. The Independent Reviewer also informed the Court, at that time, that future compliance determinations would be based increasingly on qualitative measures, i.e. whether the new and reformed programs and systems comply with the qualitative aspects of the terms of the Agreement. As a result, there are some provisions, previously reported to be in compliance with quantitative measures that are not in compliance currently with the qualitative requirements of these provisions. When DBHDS successfully implemented a web-based incident reporting system, for example, the Independent Reviewer determined that the Commonwealth was in compliance. The review this period established, however, that that the web-based incident reporting system, known as CHRIS, does not comply with the “reporting in real time” qualitative requirement of the provision. Most reports are not submitted within 24 hours as required by DBHDS, so it is now determined to not be in compliance.

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By the end of this review period, the Commonwealth had created 1535 Waiver slots to allow services for individuals with ID and DD who were on urgent waiting lists, often for many years. Receiving these services has significantly improved the quality of life for these individuals and their families. During this review period, the Commonwealth remained in compliance by creating the minimum number of waiver slots required, based on the provision that allows slots funded above the prior year’s minimum to be counted. During the period when these slots were created and more individuals were served, however, the number of individuals with ID/DD on the waitlists continued to increase by more than a thousand to in excess of 7500 children and adults.
Under the Agreement, through October 6, 2014, the Commonwealth has assisted 375 individuals to transition from the Training Centers to more integrated community-based settings. The vast majority of the individuals who have moved have adjusted well to their new homes and have experienced positive life outcomes. Regrettably, this has not been true for every individual. For two (7.1%) of the twenty-eight individuals studied during this period, the residential placements were unsuccessful. For both individuals, their residential service providers decided, after a few months of experiences of challenging health care or behavioral incidents, that they were not capable of meeting the individuals’ complex behavioral and/or medical needs. Eventually, alternative programs were found for each individual, but both experienced traumatic incidents that might have been avoided. One man moved to a nursing facility, a level of services not needed before his move to the community.
As previously reported, and as again confirmed during this review period, the Training Centers’ discharge planning and transition process and the Post-Move Monitoring process are well organized and executed. Successful implementation of these processes verifies that a provider can demonstrate the ability to support the individual in the period closely following discharge. However, these processes do not establish that a provider can ensure that its operating systems and staff competencies will be maintained consistently over time, especially during challenging periods of increased frequency and intensity of the individuals’ risk factors. It continues to be critically important that the Commonwealth monitors to ensure that a residential provider maintain the staff training and supervision mechanisms to consistently implement each individual’s health and safety protocols and to meet performance expectations. Monitoring should include qualified behavioral and healthcare professionals who are on-site periodically to review and to ensure provider systems are operating properly and to answer questions of support staff.
For many provisions with which it is not yet in compliance, the Commonwealth proposes the restructuring of its Home and Community-Based Services waivers as the solution. The Commonwealth has indicated that the Waivers will be restructured to change the existing service definitions and funding rates that have fostered congregation rather than integration, independence, self-sufficiency, and quality in residential and day settings. It is the Independent Reviewer’s judgment that restructuring is required. It is clearly evident that substantive improvements in current community services will not be possible with the existing structure of the Home and Community-Based Services waivers.
For the Independent Reviewer’s next report to the Court, due June 6, 2015, monitoring will be prioritized for the obligations in Community Living Options, Crisis Services for children, Individual and Family Support Program, behavioral support services for individuals at risk of institutionalization, and an individual review study of individuals with developmental disabilities, other than intellectual disabilities.

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In summary, the implementation of the Settlement Agreement has been advanced by the Commonwealth’s good faith efforts. Throughout the review period, the Commonwealth’s leadership and operational staff have been accessible, forthright, and responsive. Attorneys from the Department of Justice have assisted effective implementation and have worked collaboratively with the Commonwealth. The Parties have discussed, with frankness, the issues and concerns that naturally arise when implementing new programs and reforming statewide systems of support. The involvement and contributions of the stakeholders have continued and are vitally important to successful implementation. The Independent Reviewer’s appreciates greatly the assistance generously given by the individuals and their families, providers and Community Services Boards in order to permit his visits to families and to residential and day programs and to comply with his many requests for information. The Parties and the stakeholders were very helpful with candid assessments of the progress made and observations of the challenges ahead.

SUMMARY OF COMPLIANCE: YEAR THREE - FIRST HALF

Settlement Agreement Reference

Provision

Serving Individuals with

III

Developmental Disabilities In the

Most Integrated Setting

The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the III.C.1.a.i-iii. target population in the Training Centers to transition to the community according to the following schedule:

III.C.1.b.i-iii

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities). In State Fiscal Year 2015, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

Rating
The current rating is
bolded and below the previous
rating
Compliance Compliance
Compliance
Non Compliance

Comments
Comments include examples to explain the ratings and status. The Findings Section
and attached consultant reports include additional
explanatory information about progress made and compliance concerns. The Commonwealth created 470 waiver slots during FY 2012 -2015, the minimum number required.
The Commonwealth created 1175 waiver slots during FY 2012 - 2015, 200 more than the minimum required of 975. It only created 25 in FY 2015. The Commonwealth maintained compliance by counting slots created above the requirement in the prior year, as allowed by III.C.1.d The Commonwealth reports that it did prioritize and has slots available, but that it did not finalize or implement its plan to transition individuals with ID under age 22 years.

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Settlement

Agreement

Provision

Reference

The Commonwealth shall create a

minimum of 450 waiver slots to prevent the

institutionalization of individuals with

developmental disabilities other than

intellectual disabilities in the target

population who are on the waitlist for a

waiver, or to transition to the community

individuals with developmental disabilities

III.C.1.c.i-iii. other than intellectual disabilities under 22

years of age from institutions other than the

Training Centers (i.e., ICFs and nursing

facilities). In State Fiscal Year 2014, 25

waiver slots, including 15 prioritized for

individuals under 22 years of age residing in

nursing homes and the largest ICFs

III.C.2.a-b

The Commonwealth shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2015, a minimum of 1000 individuals supported.

III.C.5.a

The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

III.C.5.b.

For the purpose of this agreement, case management shall mean:

Rating

Comments

Compliance Non
Compliance
Compliance Compliance
Compliance Compliance

The Commonwealth created 360 waiver slots between FY 2012 and FY 2015 for individuals with DD, other than ID, and met the quantitative requirements of this provision. This exceeds by 135 the minimum required 225 waiver slots. The Commonwealth did not finalize or implement a plan to utilize prioritized slots to transition individuals with DD, other than ID, under 22 years of age, residing in nursing homes and the largest ICFs. The Commonwealth met the quantitative requirement by supporting 1294 Individuals in FY 2014. The FY 2015 funding is available with distribution planned in two phases. Two qualitative requirements have not been reviewed: 1. the good faith effort to determine who is most at risk of institutionalization, and 2. whether the current program fulfills requirements for this program, as defined in Section II.D. D 55 (100%) of the individuals studied during the past two report periods were receiving case management. D 53 (93.4%) of 55 had current ISPs.

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Settlement Agreement Reference
III.C.5.b.i.

Provision
Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

III.C.5.b.iii

Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.

III.C.5.c

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and nonCSB providers.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance

Of individuals studied during the prior two periods D 12 (63.6%) of 18 had not had ISPs modified in response to a major event for the individuals.
During the fourth period D 7 (87.5%) of 8 individuals who engaged in aggressive, dangerous, and disruptive behaviors were not receiving needed behavioral support services. Of the individuals studied: D 8 (34.8%) of 23 did not have day/employment services; D only 3 (12%) of 25 discussed employment goals; D only 1 (3.6%) of 26 was offered integrated day activities. Same as two comments above. The Commonwealth has developed plans to improve the ISP and case management monitoring during the next review period. There was no evidence found that case managers provided direct services, other than case management.

Non Compliance

A provision is included in the “FY 2015 Community Services Performance Contract” with the requirement to offer choice. This contract provision does not, however, give individuals a choice of CSB case managers.

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Settlement Agreement Reference

Provision
The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

III.C.5.d

The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities.
III.C.6.a.i-iii

III.C.6.b.i.A

The Commonwealth shall utilize existing CSB Emergency Service, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

By June 30, 2012, the Commonwealth shall

train CSB Emergency Services personnel in

III.C.6.b.i.B

each Health Planning Region on the new crisis response system it is establishing, how

to make referrals, and the resources that are

available.

Mobile crisis team members adequately

trained to address the crisis shall respond to

individuals at their homes and in other

community settings and offer timely

III.C.6.b.ii.A.

assessment, services, support, and treatment to de-escalate crises without removing

individuals from their current placement

whenever possible.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance Compliance

The DBHDS Office of Licensing’s monitoring protocols utilized during the review period did not align with the Agreement’s requirements and its review process was not adequate to determine compliance. The Commonwealth plans to implement a revised threepart monitoring mechanism.
Crisis services for adults with ID/DD have been developed. For children and adolescents, standards for statewide crisis services were not finalized and crisis services were not provided. Only three (60%) of the five Regions submitted a gap analysis. All identified gaps that include the lack of: funding, crisis staff, mobile response, and trained providers and law enforcement personnel. All regions’ REACH crisis response services continue to be available 24 hours per day based on reports from DBHDS and REACH. Referrals have occurred during business, evening and weekend hours. REACH programs continue to train CSB Emergency Services staff and report quarterly.

Compliance Compliance

Evidence based training was provided to all regions’ REACH programs by START staff during the first half of this review period. Maintaining compliance will depend on training requirements being defined in the statewide standard and being provided.

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Settlement Agreement Reference
III.C.6.b.ii.B

Provision
Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

III.C.6.b.ii.C

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.

Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.

III.C.6.b.ii.D

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.
III.C.6.b.ii.G

Rating

Comments

Compliance Non
Compliance
Non Compliance
Non Compliance
Compliance Non
Compliance
Non Compliance Compliance
Non Compliance
Non Compliance

REACH Teams continue to provide crisis response, crisis intervention, and crisis planning. A rating of Non­ compliance results from DBHDS not providing data related to the delivery of these services for the second half of the review period.
The Commonwealth’s statewide crisis system has not developed a plan, training, or other guidance for work with law enforcement personnel to resolve crises and prevent institutionalization. All Regions’ REACH mobile crisis teams operate at all hours. DBHDS cannot report information that is sufficient to determine compliance, i.e. where crisis assessments were conducted during the first quarter of FY15. This needs to be a data element in the new reporting tool the DBHDS is designing. The Commonwealth is now providing data on the amount of time that is devoted to a particular individual. All but one region provided individuals with more than an average of three days of inhome support services.
The Commonwealth has not created new teams. Regions added staff to existing teams to improve response time. For the first half of the review period, 42 (55%) of 77 crisis responses either exceeded two hours (34) or were not documented (8). Improvements during the second half led to fewer responses that exceeded two hours. Two regions always responded within two hours.

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Settlement

Agreement

Provision

Reference

By June 30, 2014, the Commonwealth shall

have a sufficient number of mobile crisis

teams in each Region to respond on site to

III.C.6.b.ii.H crises as follows: in urban areas, within one

hour, and in rural areas, within two hours,

as measured by the average annual response

time.

Crisis Stabilization programs offer a short-

III.C.6.b.iii.A.

term alternative to institutionalization or hospitalization for individuals who need

inpatient stabilization services

Crisis stabilization programs shall be used as

a last resort. The State shall ensure that,

prior to transferring an individual to a crisis

stabilization program, the mobile crisis

III.C.6.b.iii.B.

team, in collaboration with the provider, has first attempted to resolve the crisis to avoid

an out-of-home placement and if that is not

possible, has then attempted to locate

another community-based placement that

could serve as a short-term placement.

If an individual receives crisis stabilization

services in a community-based placement

instead of a crisis stabilization unit, the

individual may be given the option of

III.C.6.b.iii.C. remaining in the placement if the provider is

willing and has capacity to serve the

individual and the provider can meet the

needs of the individual as determined by the

provider and the individual’s case manager.

Crisis stabilization programs shall have no

III.C.6.b.iii.D. more than six beds and lengths of stay shall

not exceed 30 days.

With the exception of the Pathways

Program at SWVTC … crisis stabilization

programs shall not be located on the

grounds of the Training Centers or hospitals

with inpatient psychiatric beds.

III.C.6.b.iii.E.

By June 30, 2012, the Commonwealth shall

III.C.6.b.iii.F.

develop one crisis stabilization program in each Region.

Rating

Comments

Not due Compliance

Average response times have met this standard. See immediately above for responses to individual crisis calls.

Compliance Compliance Compliance
Compliance

All Regions continue to have crisis stabilization programs that are providing short-term alternatives. Crisis stabilization programs continue to be used as last resort; teams attempt to resolve crises and avoid out-of home placements. Vacancies in homes of other individuals are not pursued (see directly below).

Deferred Deferred

The Parties have not yet determined whether this provision should remain. Placing individuals who are in crises into the homes of other individuals with ID/DD is not a recommended practice.

Compliance Compliance
Substantial Compliance
Substantial Compliance
Compliance Compliance

All five Regions’ crisis stabilization programs continue to comply. Three Regions’ stabilization programs are not located on institution grounds and are in compliance. Region IV’s expected progress did not occur. To maintain a rating of Substantial Compliance requires the Region IV crisis stabilization program secure a permanent compliant location. Each Region developed and currently maintains a crisis stabilization program.

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Settlement

Agreement

Provision

Reference

By June 30, 2013, the Commonwealth shall

develop an additional crisis stabilization

program in each Region as determined

III.C.6.b.iii.G.

necessary by the Commonwealth to meet the needs of the target population in that

Region.

III.C.7.a III.C.7.b

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment. The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy.

III.C.7.b.i. III.C.7.b.i.A.

Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities. Provide regional training on the Employment First policy and strategies through the Commonwealth.

III.C.7.b.i.B.1 .

Establish, for individuals receiving services through the HCBS waivers annual baseline information re:

III.C.7.b.i.B.1

The number of individuals who are receiving supported employment

.a.

Rating

Comments

Compliance Compliance
Non Compliance
Non Compliance
Compliance
Non Compliance
Non Compliance
Non Compliance

Each Region’s existing crisis stabilization program had unused bed days available in both Quarters. The Regions have enough capacity to assist other regions when their own crisis stabilization beds are not all occupied. Of individuals studied: 25 (96.2/5%) of 26 were not offered integrated activities, 23 (88.0%) of 25 did not have employment goals developed and discussed. The Commonwealth has maintained membership in SELN, established an Employment First policy, and included the policy as a requirement in its Performance Contracts with CSBs. It also has an employment service coordinator. The CSBs are not, however, effectively complying with the required contract provision. The Commonwealth updated its preliminary plan, but has not developed a full implementation plan for integrated day activities. Implementation has not meaningfully increased integrated day activities or supported employment.

Compliance Compliance

The employment services coordinator provided numerous trainings to more than 640 individuals.

Compliance The Commonwealth Compliance provided annual baseline
information.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 13 of 152 PageID# 5566
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Settlement

Agreement

Provision

Reference

The length of time individuals maintain

III.C.7.b.i.B.1 employment in integrated work settings.

.b.

III.C.7.b.i.B.1 .c.

Amount of earnings from supported employment;

III.C.7.b.i.B.1 .d.

The number of individuals in pre-vocational services

III.C.7.b.i.B.1 .e.

The length of time individuals remain in pre-vocational services.

Targets to meaningfully increase: the

III.C.7.b.i.B.2 number of individuals who enroll in

.a.

supported employment each year

The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment. III.C.7.b.i.B.2 .b.

III.C.7.c. III.C.7.d III.C.8.a.

Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.
The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward. The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.

Rating

Comments

Compliance The Commonwealth

provided duplicative data.

Non

The length of time could

Compliance not be reliably determined.

Non Compliance The Commonwealth

Non

continues to not provide

Compliance annual information.

Compliance The Commonwealth continued to provide annual

Compliance baseline information.

Compliance The Commonwealth continued to provide annual

Compliance baseline information.

Compliance Compliance

The Commonwealth has set targets to meaningfully increase by 5% annually for

five years.

Compliance

The Commonwealth has set the target of 85% of the

number of individuals in

supported employment to

Compliance

remain employed for at least 12 months. Lack of

meaningful progress

supporting individuals to

remain employed is

addressed in III.C.7.b.i.

The draft minutes of the

Deferred RQC meetings did not

reflect substantive discussions

of the targets and there is no

Non

evidence that the RQCs

Compliance consulted with the SELN or

providers.

Deferred

Same as immediately above

Non Compliance

Compliance Compliance

Of the Individuals studied over two review periods, 51 (96.4%) of 53 were receiving transportation services. Quality has not been assessed.

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Settlement Agreement Reference
III.C.8.b.
III.D.1.
III.D.2.
III.D.3.

Provision
The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources…
Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The Commonwealth completed draft guidelines in June 2013. It reported that updated guidelines were drafted that addresses ID waiver services, but not DD waiver services or other disability services. The updated guidelines were not published or provided to appropriate agencies during the review period.
Individuals are primarily offered congregate settings. Of individuals studied this period 15 (53.7%) of 28 individuals reviewed moved to settings with a home of five or more, or to a setting with more than one group home. None (0%) was offered housing assistance to live in his/her own home or apartment.
None (0%) of the 39 individuals studied during the fourth and fifth review periods, who were not living with their families, were referred for rental assistance to live in their own home or apartment. See comments immediately above.

Non Compliance
Non Compliance

The Commonwealth developed a plan. It has not meaningfully increased access to independent living options. After eighteen months of implementing the plan’s action items, only two individuals are reported to have accessed housing units.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 15 of 152 PageID# 5568
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Settlement Agreement Reference
III.D.3.a.
III.D.3.b.i-ii
III.D.4
III.D.5

Provision
The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ... The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement. Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii. Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.

Rating

Comments

Compliance

A DBHDS housing service coordinator developed the plan with these representatives, and others.

Compliance

Non Compliance
Non Compliance

The Commonwealth estimated through FY15 the number of individuals who would choose independent living options. Recommendations to provide access to these settings each year were not provided.

Non Compliance Compliance
Non Compliance
Non Compliance

The Commonwealth has established the one-time fund. Distribution of the funds began. During the review period two individual were provided rental assistance.
Studies during the past year found that 27 (90%) of 30 individuals who moved from Training Centers to placements that were consistent with the individual’s, or if applicable, the Authorized Representative’s, choice after receiving options. The Independent Reviewer has determined that options received were not consistent with the terms of Section IV.B.9.b.

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Settlement Agreement Reference
III.D.6
III.D.7
III.E.1
III.E.2

Provision
No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant and, under circumstances described in Section III.E below, the Regional Support Team.
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CBSs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team in the appropriate Region. The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC.

Rating

Comments

Compliance Compliance
Compliance Compliance

The individuals reviewed moved to congregate settings that were consistent with the individuals’ needs and informed choice. For many individuals who chose larger congregate settings, barriers were identified to less integrated settings.
This term has been included in the Commonwealth’s “FY 2015 Community Services Performance Contract.”

Compliance Compliance

Community Resource Consultants are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

Non Compliance
Non Compliance

The CRCs referred individuals to the RSTs. CRC’s and CIMs submitted some referrals after choices were made. The RSTs did not resolve identified barriers to living in most integrated residential or day options. These barriers include: the lack of: nursing and behavioral supports, most integrated homes and day options available, sponsored homes in the area, and the long distance to the available programs.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 17 of 152 PageID# 5570
 �

Settlement Agreement Reference III.E.3.a-d
IV
IV.
IV.A
IV.B.3.
IV.B.4.

Provision
The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met)
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and person-centered principles.
Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).

Rating

Comments

Compliance Compliance

DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly. RSTs frequently recommend more integrated options. See III.E.2. immediately above regarding the RST’s ability to resolve barriers.

Compliance Compliance
Non Compliance
Non Compliance
Compliance
Compliance
Non Compliance
Non Compliance

Discharge planning and transition processes were implemented by July 2012. Improvements have occurred in response to concerns identified by the Independent Reviewer.
Most integrated residential and day options for individuals with complex needs are often not available. A sponsored home that meets an individual’s needs is often not offered in most regions. Two recent Individual Review studies found that 55 (100%) of individuals and their authorized representatives participated. Staff are trained to present information; a support staff, familiar with the individual and his/her means of communication, provides communication support. Two recent Individual Review studies found that the treatment goals in the support plans of 35 (63.6%) of 55 individuals did not include outcomes that led to skill development. For only four (8.9%) of 45 individuals were employment goals discussed or integrated day opportunities offered. Discharge plan lists of what is

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 �

Settlement Agreement Reference
IV.B.5.
IV.B.5.a. IV.B.5.b. IV.B.5.c. IV.B.5.d. IV.B.5.e. IV.B.5.e.i.

Provision

Rating

Comments

The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) will include: Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes; Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;
Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes; Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers. Such barriers shall not include the individual’s disability or the severity of the disability.

Compliance Compliance

important “to” and “for” the individuals rarely included growth, skill development and increased independence.
Two recent Individual Review studies found that all 30 (100%) of the individuals studied had discharge plans. DBHDS tracks this information and reports that all residents of Training Centers have discharge plans.

Compliance
Compliance
Compliance Compliance Compliance Compliance

Documentation of information provided was present in the discharge records that were studied of 55 (94.8%) of the 58 individuals during the three recent review periods. The discharge plans continue to include this information.
The discharge records for 26 (96.3%) of 27 individuals reviewed this period included the assessments.

Compliance Compliance

The PST’s select and list specific providers that can provide identified supports and services.

Compliance Compliance Compliance Compliance

Barriers are documented on the Regional Support Team data collection sheet. No evidence has been found that an individual’s disability or the severity of the disability is a barrier in the discharge plans.

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 �

Settlement Agreement Reference IV.B.5.e.ii.
IV.B.6
IV.B.7 IV.B.9.
IV.B.9.b.

Provision

Rating

Comments

For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.
Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting. In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options. The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.
PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community

Deferred Non
Compliance
Deferred Non
Compliance
Compliance Compliance
Compliance Compliance
Compliance Compliance
Non Compliance
Non Compliance

Reviews of the factors that led to readmission did not occur for two (66.7%) of the three individuals who were readmitted during the previous two report periods. The Commonwealth plans to implement a new process in the next review period.
The individual review study found that the discharge plans lacked recommendations for how individuals can be best served. Discharge plan descriptions of what was important “to” and “for” the individual” did not include skill development to increase selfsufficiency or integrated day opportunities. Individual review studies have not found evidence in discharge plans that complex needs are considered barriers to living in an integrated setting. Individual reviews during the past 6 months found that 28 (100%) of individuals studied and their ARs were provided with information regarding community options and the opportunity to discuss them with the PST.
Discharge records of individuals reviewed included evidence that a choice of providers was offered.
Two recent Individual Review studies found that 10 (35.7%) of 28 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their family members. DBHDS has developed a family-to-family

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Settlement Agreement Reference
IV.B.9.c.
IV.B.11.
IV.B.11.a.

Provision

Rating

Comments

placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities. PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.
The Commonwealth shall ensure that Training Center PST’s have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living. In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.

Compliance Compliance
Compliance Compliance

and peer program. Packets of information are sent to ARs. Frequently, Case Managers’ and Social Worker notes, however, did not include discussions to facilitate opportunities to speak with individuals and their families. Discharge records indicate that individuals and their authorized representative were assisted and that providers were identified and engaged. For 27 (96.4%) of 28 individuals studied this period, the provider staff was trained in support plan protocols that were transferred to the community. The individual services studied this period found that 28 (100%) who transitioned from Training Centers were provided with information regarding community options.

Compliance Compliance

At all Training Centers, training has been provided via regular orientation, monthly, and ad hoc events, and ongoing information sharing.

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Settlement Agreement Reference
IV.B.11.b.
IV.B.15

Provision

Rating

Comments

Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meeting and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the person-centered tools and skills. Coaches throughout the state will have regular and structured sessions and person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.

Compliance
Compliance
Deferred Non
Compliance

All staff receive required person-centered training during orientation and receives annual refresher training. All Training Centers have personcentered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors.
See Comment for IV.D.3.

IV.C.1

Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.

Compliance Compliance

For 27 (96.4%) of 28 individuals studied during this review period, the residential provider staff were trained in support plan protocols that were transferred to the community and participated in the premove ISP meeting.

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Settlement Agreement Reference
IV.C.2
IV.C.3
IV.C.4
IV.C.5

Provision

Rating

Comments

Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST. The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct post-move monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process. The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.
The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge ...

Compliance Compliance
Compliance
Non Compliance
Compliance Compliance Compliance
Non Compliance

25 (89.3%) of 28 individuals studied during this review period moved within 6 weeks, or reasons were documented and new time frames developed.
The Commonwealth has a well-organized post move monitoring (PMM) process with increased frequency during the first weeks after transitions. PMM Monitors were adequately trained. Individual review studies found that for 28 (100%) individuals, PMM visits had occurred and monitoring checklists were used. The Independent Reviewer determined non­ compliance because the Commonwealth has not implemented the required look-behind process with a sample that is sufficient to validate the reliability of the PMM process. Two recent Individual Review studies found that for 28 (93.3%) of 30 individuals, The Commonwealth updated discharge plans within 30 days prior to discharge.
For 8 (28.6%) of 28 individuals whose services were studied, the Commonwealth did not ensure that all essential supports were in place prior to discharge.

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Settlement Agreement Reference
IV.C.6
IV.C.7 IV.D.1 IV.D.2.a
IV.D.3

Provision

Rating

Comments

No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice. The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems. The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.
CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals; The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.

Compliance Compliance
Compliance Compliance
Compliance Compliance Compliance Compliance Compliance
Non Compliance

The discharge records reviewed throughout two review periods indicated that individuals, who moved to settings of five or more, did so based on their informed choice after receiving options.
Documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans.
Community Integration Managers are working at each Training Center.
CIMs have reviewed PST recommendations for individuals to be transferred to settings of five or more.
The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The Individual Review study this period found that for only one (16.6%) of the six individuals referred were steps taken to resolve barriers. Referrals have occurred after individuals have moved to less integrated settings, after a selected list of providers, i.e. recommendations, has been presented, and after the AR has made a choice.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 24 of 152 PageID# 5577
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Settlement Agreement Reference
IV.D.4.
V.
V.B.
V.C.1
V.C.2
V.C.3

Provision

Rating

Comments

The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed …
Quality and Risk Management
The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.
The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm. The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.

Compliance Compliance

The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ.

Deferred Non
Compliance
Deferred Non
Compliance
Compliance Non
Compliance

Section (V.) includes baseline compliance ratings for provisions without due dates. The Commonwealth’s planning documents continue to indicate that providers will not be required to report a complete list of significant risks of harm. Future determinations of compliance depend, in part, on identifying, reporting, and addressing risks of harm. The required list of risks and triggers does not include all significant harm and risks of harm. Many of the identified “risks,” actually require harm to have occurred, rather than identifying events that increase risk of harm. A web based incident reporting system and reporting protocol was implemented. The protocol does not comply with the qualitative measure for real time reporting. Most reports are not submitted within the required 24 hours.

Deferred
Non Compliance

The Commonwealth established a reporting and investigative process. The Office of Human Rights investigation reports do not include adequate information. The Office of Licensing Services’ enforcement actions, beyond corrective action plans, are not adequately utilized.

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Settlement Agreement Reference
V.C.4
V.C.5
V.C.6
V.D.1
V.D.2.a-d

Provision

Rating

Comments

The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions. The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system.
If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.
The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.

Deferred Non
Compliance Deferred
Non Compliance
Deferred Non
Compliance
Deferred Non
Compliance
Deferred Non
Compliance

The Commonwealth has developed, but has not yet offered, the required trainings to providers.
A Mortality Review Committee completed mortality reviews of unexpected and unexplained deaths reported through its incident reporting system. Limited reporting requirements and information flow undermine the ability of the Commonwealth to identify trends and to determine corrective actions to reduce mortality rates. The Office of Licensing Services is not able to take appropriate action because it cannot effectively utilize the mechanisms to sanction providers, beyond use of Corrective Action Plans and provisional status. The Commonwealth’s choice protocol does not include a process for choice of CSB case managers, a core support service for individuals and Authorized Representatives.
Regarding employment, case management, crisis services, investigations, and mortality reviews, data are not available, not reliably collected, not consistently provided, or do not represent an adequate sample.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 26 of 152 PageID# 5579
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Settlement Agreement Reference V.D.3.a-h
V.D.4 V.D.5
V.D.5.a
V.D.5.b
V.D.6

Provision

Rating

Comments

The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified): The Commonwealth shall collect and analyze data from available sources, including the risk management system described in …(specified sections of the Agreement). The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.
The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.

Deferred
Non Compliance
Deferred Non
Compliance
Deferred Non
Compliance
Deferred Non
Compliance
Deferred Non
Compliance
Deferred Non
Compliance

The Commonwealth began collecting and analyzing information in Fiscal Year 2012. Data collection for some measures began as of June 30, 2014. Data collection for the other established measures has not begun. Case management and employment data are not complete or reliable. The data collected cannot be effectively analyzed. The data are frequently incomplete or not reliable.
Regional Quality Councils were implemented beginning in March 2013. Given reliability concerns and the limited data shared, RQCs are beginning to use data to identify service areas that need improvement. Three of the five Regional Quality Councils include all the required members. Two (40.0%) of the five do not include individuals receiving services.
The RQCs met during the past two quarters and are directed by a DBHDS Quality Improvement Committee. Only limited data have been shared and limited analysis conducted. See comment re: V.D.5.
The DBHDS has not annually reported publically as required. The Commonwealth produces reports with some of this information. It plans to produce one report in Fiscal Year 2015.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 27 of 152 PageID# 5580
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Settlement Agreement Reference
V.E.1
V.E.2
V.E.3
V.F.1

Provision

Rating

Comments

The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis, that is sufficient to identify and address significant issues.
Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program. The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate. For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.

Deferred Non
Compliance
Deferred Non
Compliance
Deferred Non
Compliance
Compliance Compliance

The Commonwealth is in the beginning stages of developing and implementing communication to convey to providers their QI responsibilities and to share data with the Commonwealth. Same as V.E.1 immediately above
Since the Reviewer’s last report to the Court, the Commonwealth evaluated and modified its implementation plan to comply with the Agreement’s requirements. Compliant QSRs have not yet occurred. Of the individuals studied during the past year 55 (100%) were receiving case management services.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 28 of 152 PageID# 5581
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Settlement Agreement Reference
V.F.2
V.F.3.a-f V.F.4 V.F.5

Provision

Rating

Comments

At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and documents its resolution.
Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual. Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and

Non Compliance
Non Compliance
Compliance Compliance Compliance
Non Compliance
Deferred Non
Compliance

Of individuals studied during the prior two periods: 12 (64%) of 18 individuals did not have an individual support plan modified as necessary.
During the fourth review period 8 (100%) individuals with maladaptive behaviors with significant negative consequences did not have needed behavioral support services.
DBHDS plans to implement changes in the ISP, case management review and training of case management supervisors during the next review period.
Of individuals studied during the prior two periods: 47 (100%) of the individuals who met the eligibility criteria for enhanced case management were receiving the required monthly face-to-face meetings. The Commonwealth’s mechanism collects and aggregates this information. The data collected from CSBs, however, are not reliable. The key indicators do not address specific elements of the case manager’s face-to­ face visit observation and assessments. For example, there are no plans to address the halo effect of case managers skewing reports to the positive.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 29 of 152 PageID# 5582
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Settlement Agreement Reference
V.F.6 V.G.1 V.G.2.a-f
V.G.3
V.H.1
V.H.2

Provision

Rating

Comments

community integration and will be selected from the relevant domains listed in V.D.3.
The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness. The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement. Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ... Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS. The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training.
The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.

Compliance Compliance
Compliance Compliance Compliance Compliance
Non Compliance
Non Compliance
Deferred
Non Compliance
Deferred Non
Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination.
DBHDS unannounced licensing inspections occur regularly.
DBHDS established and implemented a licensing inspection process with more frequent inspections.
The DBHDS Licensing protocol does not align with the Agreement’s requirements. Its review process is not adequate to ensure provision of reliable data.
The Commonwealth is offering trainings in personcentered practices, community integration and self –determination awareness. A core curriculum and the needed competencies in the required elements of service training have not been implemented, nor has the method for determining competency. Same as V.E.1 immediately Above.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 30 of 152 PageID# 5583
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Settlement Agreement Reference
V.I.1.a-b
V.I.2
V.I.3

Provision

Rating

Comments

The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.
QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals). The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.

Deferred Non
Compliance
Deferred
Non Compliance
Deferred Non
Compliance

The Commonwealth did not implement QSRs during the review period. A detailed work plan was submitted in March 2014 and is being implemented. It is finalizing a contract with an independent organization to conduct QSRs. QSRs were not implemented during the review period. The framework of the revised QSR plan appears to include elements that are required. The Commonwealth is negotiating the final contract with a Vendor to assist in the development of, and to perform QSRs. The revised QSR process will be reviewed after implementation.
Same as V.I.2.immediately above.

V.I.

The Commonwealth shall conduct QSRs

Same as V.I.2. above.

annually of a statistically significant sample of individuals receiving services under this

Deferred

The draft contract includes determining a

Agreement.

Non Compliance

statistically significant sample.

VI
VI.D.
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Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the Parties … shared with Intervenor’s counsel.

Compliance Compliance

The DHBDS promptly reports to the Independent Reviewer all deaths and serious injuries, upon receipt of notification. This period, the Reviewer, in collaboration with a nurse and an independent consultant, reviewed and submitted nine reports to the Court with copies provided to the Parties.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 31 of 152 PageID# 5584
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Settlement Agreement Reference
IX
IX.C.

Provision

Rating

Comments

Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

Non Compliance
Non Compliance

Sufficient records that are aligned with the requirements of the Settlement Agreement were not maintained to document compliance. Examples include records regarding crisis services, supported employment, licensing or case management. Inadequate reporting and poor data entry by CSBs contributes to the Commonwealth’s records not being sufficient.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. During this review period the following provisions related to internal operations of Training Centers were not monitored: III.C.9, IV.B.1, IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-c.

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DISCUSSION OF COMPLIANCE FINDINGS
A. Methodology:
The Independent Reviewer monitored the Commonwealth’s compliance with the requirements of the Agreement as follows: 1) the Commonwealth provided data and documentation; 2) progress was discussed in Parties’ meetings and work sessions with the Independent Reviewer’s consultants; 3) discussions were held with providers and community stakeholders; 4) prioritized provisions were examined and evaluated; and 5) site visits were made to community residential and day programs.
During this fifth review period, the following areas were prioritized for review/evaluation and eight independent consultants, including three clinical consultants, again were retained to complete followup studies of:
• Services for individuals who recently transitioned from Training Centers to community placements;
• Integrated Day Activities and Supported Employment; • Crisis Services; • Licensing, Case Management, and Investigations; • Housing/Community Living Options; and • Quality and Risk Management.
For the fifth time, an Individual Review process and monitoring questionnaire was utilized to evaluate the status of services for a sample of individuals. Utilizing the same questions over several review periods permits the analysis of trends as the Commonwealth builds its community-based service system. During this most recent review period, twenty-eight individuals were randomly selected from forty-five individuals who transitioned from a Training Center to a community setting between January and mid-May 2014. Two-person teams reviewed the services for each individual. One member of each team was a Registered Nurse with extensive experience serving individuals with ID/DD. Each review included studying records related to discharge, service planning and case management; visiting and observing the individuals (usually in their homes); and interviewing service providers.
In each of the five reports completed by the Independent Reviewer’s consultants, the status of the Commonwealth’s compliance with the requirements of the Agreement is reviewed. The methodology for these reports included studying the status of planning, program development, and program performance through on-site visits and the comprehensive review of related data and documents, progress reports, work group minutes, and announcements. Interviews were conducted with selected Commonwealth officials, staff at the state and local levels, workgroup members, providers, families of individuals served, and other stakeholders.
Recommendations from these reports/reviews are included at the end of this Report and in each of the documents included in the Appendices.
Finally, as required, this Report was submitted, in draft form, to the Parties for review and comment prior to submission to the Court.

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B. Compliance Findings
1. Providing Waivers
A core set of provisions in the Settlement Agreement relate to the obligations to increase the number of individuals with ID/DD with access to, and funding for, an array of services in community settings. Each waiver slot allows one selected individual to receive such services. The Independent Reviewer reported previously that, through Fiscal Year 2014, the Commonwealth had created more waiver slots than the minimum required by the Agreement. For Fiscal Year 2015, the Commonwealth created the minimum required number of slots when considering Section III.C.1.d of the Agreement, which allows “for a particular Fiscal Year, the number of slots created above the requirement shall be counted towards the slots required to be created in the subsequent Fiscal Year.” Therefore, the Commonwealth is in Compliance with III.C.1.a.
As detailed in the Summary of Compliance table (page 4), the Commonwealth has approved funds for these waivers during a challenging economic period. These waiver slots have been provided to prevent the institutionalization of individuals with intellectual and developmental disabilities, usually with urgent needs, who had been on waiting lists for services. Waiver slots also have been provided to enable members of the target population, children with ID/DD who reside in nursing homes and individuals who reside in Training Centers, to transition to community-based services and supports.
As previously reported, the Commonwealth developed a well-organized discharge planning and transition process for the individuals residing in the Training Centers. Through a multi-step transition process, and with the participation of the individuals and the guardian/Authorized Representatives, a transition plan and an individual plan of support (ISP) are developed for each individual. This planning and transition process has enabled 375 individuals to move from Training Centers to community-based residential and day settings between October 1, 2011, and October 6, 2014.
For the children in the target population who reside in nursing homes and the largest Intermediate Care Facilities, the planned process to facilitate their transition to community homes has not been completed. Children continue to be admitted to, and discharged from, these facilities. The Commonwealth’s previous action plans have not increased the number of children who have transitioned. The Commonwealth has hired new staff and a new analysis has been undertaken. The Commonwealth initiated the development of a new plan based in part on the extensive feedback from stakeholders to its earlier draft plans. The Commonwealth expects to complete the plan soon. The Commonwealth, therefore, is not in compliance with the requirements of III.C.b. and c.
As noted earlier, the Commonwealth has provided more than 1535 new waiver slots for individuals, who have been on waiting lists, to gain access to a menu of needed community services. Based on a review of a sample of these individuals’ services, an important common theme has been the improved quality of life experienced by both the individuals and their families. However, these same reviews confirmed that some needed services are not available, especially for individuals with complex medical and behavioral needs. In addition, while the Commonwealth created these slots and more individuals were served, the number of individuals with ID/DD on its waitlists increased by a thousand to more than 7500 children and adults.
The Commonwealth has taken steps to improve the capacity of community programs to support individuals with complex needs. Approved Bridge Funds were used to assist forty-two former

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Training Center residents to be supported in community-based settings. Exceptional rates have been improved and are in the process of being implemented for residential providers who serve individuals with complex medical and/or behavioral needs. The Commonwealth used an RFP process to select providers to work directly with individuals who transitioned from the Southside Virginia Training Center and their families. The Commonwealth is also engaged in an extensive process to restructure its waiver structure and rates. The Commonwealth will recommend reforms to the Waiver with the goal of increasing and strengthening its services for people with complex needs.
2. Individual Reviews
By the first half of year three, the Agreement expected individuals with ID/DD to receive Home and Community Based services in the most integrated setting, consistent with their informed choice and needs. The Agreement anticipated these individuals receiving core services, including case management, integrated day opportunities, and referrals for rental and housing assistance.
The Independent Reviewer’s current study focused on forty-five individuals who transitioned from Training Centers to community settings between January 6 and May 19, 2014. A randomly selected sample of twenty-eight of these individuals was selected. This sample provides a 90% confidence interval that findings from the sample can be generalized to the entire cohort. The sample included sixteen (57.1%) individuals who moved from the Southside Virginia Training Center and six (21.4%) who transitioned from the Northern Virginia Training Center. The remaining six individuals moved from the other three Training Centers operated by the Commonwealth.
Although there were individual exceptions, the study of services for individuals who transitioned from Training Centers to community settings found the following themes and examples of positive outcomes and areas of concern.
• The individuals’ new community homes were clean and well maintained Homes were accessible based on the individuals’ needs for environmental modifications. Needed adaptive equipment and supplies were available. The DBHDS Licensing Specialists had recently inspected all homes.
• The individuals transitioned primarily to congregate settings of five or more individuals or to settings with residential programs clustered together. Some congregate group homes had the appearance of a business, not a typical home. The Individuals who lived in these congregate facilities generally went into the community with their housemates as part of a group. They lacked community integration opportunities and did not have individual support plans with goals that promoted the development of skills to increase self-sufficiency.
• The discharge planning and transition process was well organized. The discharge planning process and the Post-Move Monitoring visits occurred as scheduled and appeared to meet DBHDS’s expectations. These processes did not, however, ensure that the residential and day support providers for three individuals with complex needs were able to sustain their critical supports during the first months of service provision.

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• There were many positive healthcare outcomes for virtually all the individuals studied. All individuals had a physical within a year and the Primary Care Physicians’ recommendations were implemented within the prescribed time frames.

• The health and behavioral support systems provided by some residential providers were not adequately designed and/or implemented sufficiently for some individuals with complex needs. Reviews found individual examples of inadequate systems. These include the failure to review inconsistently reported body weight; the failure to confirm that medications matched the prescribing MD’s and pharmacist’s written orders; the failure to monitor body weight, positioning and suctioning as required; the failure to provide tardive dyskinesia screens and to obtain needed lithium levels. Additionally, some related record systems were confusing to staff.

The impressive placements improved the quality of these individuals’ lives. Notable improvements included: 1) individuals with fewer and less intense episodes of behavioral outbursts and self-abuse; and 2) individuals who had bonded with their caregivers, settled into their new homes, and become engaged in their communities.

Of the twenty-eight individuals studied, two residential and one day placements were not successful. These involved three of the eight individuals (see IV.C.5) whose essential services were not in place before they moved. Within a few months, the service providers concluded for each of these three individuals, after dealing with critical incidents, that they could not meet their complex needs.

The Independent Reviewer has provided the Individual Review reports to the Commonwealth so that it will review the issues identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with the individual’s residential provider and Community Services Board and to provide updates, by March 30, 2015, on actions taken with regard to the issues identified.

The Independent Reviewer has organized findings from the study into separate tables with positive outcomes and areas of concern (Appendix A). The findings from the Individual Review study also are cited in the Independent Reviewer’s comments in the Summary of Compliance.

3. Crisis services

Crisis services are an important building block in a community-based service system for individuals with ID/DD. With that understanding, the Parties settled that by June 30, 2012, a statewide crisis service system would be available for all Virginian’s with an ID or DD diagnosis, a much larger group than the target population. As previously reported, DBHDS complied with many of the crisis services provisions for adults with ID/DD: trained mobile crisis teams and Community Services Board Emergency Services personnel, and crisis stabilization programs. It has not, however, complied with several requirements. For example, the Commonwealth did not provide the statewide crisis service system for children and adolescents, as required, by June 30, 2012. It is also the Independent Reviewer’s opinion that the Commonwealth’s current plans are not adequate to provide these services by the end of the next review period, nearly three years after they were required to be in place. Below are highlights of the Commonwealth’s accomplishment as well as areas of concern. Compliance ratings are detailed in the Summary of Compliance (page 4). The independent consultant’s fourth study of the Commonwealth’s progress toward complying with the crisis services provisions is

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included at Appendix B. This study began including quality measures of compliance. This aspect of the study led to a recommendation that the Commonwealth regularly gather input from its customers, the individuals and families who utilize crisis services. Understanding the perspective of the users of the Commonwealth’s crisis services will provide important information about the ways the programs are and are not being successful and the about needed quality improvements. The Independent Reviewer’s future studies of crisis services will increasingly focus on issues of quality and outcomes for individuals.
Crisis Services for Adults: Prior to this review period, DBHDS focused on developing crisis services for adults. These services are now called the regional REACH programs. During this review period, REACH crisis teams continued to serve more than 100 new adults with ID/DD per quarter and have served more than 1200 individuals. A total of 232 new adults were referred during the review period. Most service request referrals were from case managers for consultations and crisis planning. Both are strong indicators that referrals were not specific to an emergency and that the REACH program is taking hold with Community Services Boards and their case managers as part of a service system. DBHDS has drafted statewide standards for REACH programs. These standards do not align with the requirements of the Agreement. Standards are missing the training requirements for REACH staff, case managers, Community Services Board Emergency Services staff or law enforcement personnel. The Agreement’s crisis services requirements are the same for children and adults. The Commonwealth has developed statewide standard expectations for its adult crisis services programs. It has not done so for the required children’s programs. Again, during this review period, many of the responses to crisis calls did not occur within the required two hours. There were fewer late responses in recent months.
Crisis Stabilization for Adults: All regions operated crisis stabilization programs with six or fewer beds; and all, except Region IV’s, are based in locations consistent with the terms of the Agreement. A qualitative review of a small sample of ten adults involved with crisis services found that REACH was regularly involved with the individuals, families and service providers. The REACH teams also maintained their involvement with individuals who were hospitalized and post-hospitalization. Records were not clear, however, concerning whether the interventions were formally reviewed to determine in a measurable way which interventions were successful. Such a review, including customer feedback, provides an important opportunity to proactively identify and address risks of harm, as well as to identify trends and possible quality improvements.
Crisis Services for Children and Adolescents: DBHDS published plans in the first quarter of 2014 to develop crisis services for children and adults with ID/DD. The DBHDS plans outlined key system elements that are necessary for effective services to be developed. It provided a foundation for development of these services by committing to the use of evidence-based models and practices and by setting expectations for availability, for a service continuum, and for systemic values. As a first step in the development of crisis services for children, available funding was distributed to regional REACH programs to increase coordination of existing services, to complete a gap analysis, and to purchase equipment, including technology for tele-psychiatry. DBHDS reported that two regions will begin to provide crisis services to children in October 2014: another plans to begin in January 2015.
Only three (60%) of the five Regions completed the gap analysis. All reported barriers to providing children and adolescents with ID/DD crisis services as the lack of: funding; crisis staff; mobile response; trained providers; trained law enforcement personnel; intensive case management and behavioral supports. Although three Regions completed gap analyses, an accurate projection of the

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number of children and adolescents who need the required services has not been completed, nor has the cost or the revenue sources to fund the needed services been identified. DBHDS reports requesting an additional $4 million for crisis services, but cannot be specific about the amount that is needed or would be provided for crisis services for children and adolescents with ID/DD. The Commonwealth has developed statewide standard expectations for its adult crisis services. Such standards have not yet been developed for the children’s crisis services system that it plans to develop. Nonetheless, statewide requirements are essential for compliance.
The Independent Reviewer determined that the Commonwealth is not in compliance with the provisions to provide crisis services for children as of June 30, 2012. It is also determined that the Commonwealth does not have an implementation plan or the designated resources for a statewide crisis services system for children and adolescents.
Reaching out to individuals with DD, not ID: The required statewide crisis service system is for any Virginian with an ID or DD diagnosis. The target population is a subset of this larger group, as it also requires an individual to be eligible for a Home and Community Based Services waiver. There are many people with DD with significant needs who do not meet the level of functioning criteria for Home and Community Based Services waiver eligibility. DBHDS and the Community Services Boards historically did not work systemically with individuals with DD, other than ID. The Commonwealth has not documented an effort to reach out to these individuals and their families to ensure their awareness of the availability of crisis services. It has been difficult to gather facts about the numbers of individuals with DD in Virginia who have been admitted to psychiatric hospitals or incarcerated in Virginia’s jails. The lack of outreach to individuals with DD, other than ID, sustains the long-term lack of service system relationships between DBHDS and Community Services Boards with a significant segment of the population intended to utilize these services. The Commonwealth reports that a training focused on crisis services is planned for DD case managers for January 2015.
Unnecessary admissions to nursing, psychiatric and law enforcement institutions are the negative outcomes the Settlement Agreement was initiated to address. The overarching provision of the “Serving Individuals with Developmental Disabilities (DD)…” section of the Agreement is “To prevent the unnecessary institutionalization of individuals with ID/DD and to provide them opportunities to live in the most integrated settings appropriate to their needs consistent with their informed choice.”
Individuals diagnosed with Autism Spectrum Disorders comprise a significant segment of the target population with DD, other than ID. A percentage of this group needs behavioral support to avoid injuring themselves or others and, in some cases, to avoid being institutionalized. Referrals to the Regional Support Teams have described individuals with ID/DD who have behaviors that involve threatening and causing property damage and physical harm are not uncommon among individuals with complex behavioral needs. The Individual and Behavioral Support Plans reviewed during Individual Review studies set goals and designed programs to reduce the intensity and frequency of these behaviors. The Individual Review studies and the reviews of Serious Injury Reports have found that when behavioral support services are not successful, or not provided, these individuals’ behaviors have led to engagements with law enforcement personnel. In most instances reviewed, the law enforcement personnel involved diverted these cases to the agencies that are prepared to address their needs appropriately. Typically these agencies are those with which the individual is involved, a private service provider, the Community Services Boards, and DBHDS. In some instances, the behaviors associated with an individual’s developmental disability are inappropriately treated as

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crimes, or as symptoms of severe mental illness. In response to the Independent Reviewer’s request, the Commonwealth has recently provided the names of eleven individuals with ID/DD who have been institutionalized in law enforcement facilities during the Agreement. Although the purpose of the Agreement is to prevent the unnecessary institutionalization of these individuals, the Commonwealth had little available information about the community services provided to these individuals or whether these services were appropriate to their needs. In the Independent Reviewer’s experience, when individuals with DD and/or ID, are incarcerated they are harmed by negative outcomes and that these outcomes are avoidable when needed community-based services are provided. Individuals with DD, other than ID, have not historically been connected to either the DBHDS or Community Services Boards and the lack of outreach to them does not comply with the Commonwealth’s responsibilities to provide crisis services and to prevent their unnecessary institutionalization.
Further evidence of a lack of provision of crisis services to individuals with DD, other than ID, is that during the first quarter of Fiscal Year 2015, only six (4%) of 139 individuals referred by all sources for crisis services had DD, other than ID, and only one (1.1%) of the eighty-nine referred by case managers for crisis services was an individual who had DD, other than ID. DBHDS and the regional REACH programs have not actively reached out to individuals with DD, other than ID, for adult crisis services. The lack of outreach to individuals with DD, other than ID, should not be repeated when crisis services for children and youth are developed. This group includes a well reported and growing percentage of individuals with Autism Spectrum Disorder diagnoses.
Lack of Sufficient Records to demonstrate compliance: For two provisions rated as compliant in the previous Report to the Court, DBHDS was not able to provide sufficient records to demonstrate continued compliance since June 30, 2014. Data were not provided for the second half of the review period for crisis services availability, crisis response, crisis intervention, or for crisis planning for adults
4. Integrated Day Activities and Supported Employment
The Independent Reviewer’s consultant found that the Commonwealth provided extensive training related to Employment First. A draft training module for case managers was made more comprehensive, piloted, and is available on the DBHDS website. The Commonwealth reports that this training will be required of both ID and DD case managers. The Commonwealth gathered baseline annual data and reported it in three areas, but not in two: data regarding wage information and length of time employed. As previously reported, the Commonwealth has established meaningful targets to increase the number of individuals in Supported Employment and how many remain employed after twelve months. The data available about Supported Employment limit the Commonwealth’s ability to achieve compliance. The Independent Reviewer has determined that the Commonwealth does, however, comply with the provision regarding the reporting of the number of individuals who are receiving Supported Employment. During the next review period, the Commonwealth must verify the numbers it reports. This should include all individuals in the target population who are working in Supported Employment, rather than receiving ancillary services before or after periods of integrated paid work. The Commonwealth has not made meaningful progress toward achieving these goals. The Commonwealth reports that its new data survey will gather the required information and will distinguish between actual employment and ancillary employment services.
To move substantively toward achieving compliance with the related provisions, the Commonwealth is undertaking a significant redesign of its Home and Community Based Services waivers for

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integrated day opportunities, including Supported Employment. The restructuring includes new service definitions and new funding rates for services that, if approved by the General Assembly, the Commonwealth will implement in Fiscal Year 2016. The Commonwealth reports that the new waiver structure, definitions, and rates will set the direction and the financial incentives for future program approaches. Defining integrated day and residential options and providing financial incentives to develop these services, for example, is expected to change the direction of program development. The Commonwealth believes that restructuring its waivers is necessary to move toward compliance with its Agreement. Given the existing service definitions and financial incentives, the pace of achieving compliance is limited by the lack of capacity of service providers, the existing service models, and the physical and human resource infrastructure, the vast majority of which is oriented toward providing services in large congregate settings. The role of the case manager is also central to achieving compliance. Both the consultant’s review and the Individual Review Study determined that case managers are not currently implementing the Agreement’s requirement to develop and discuss Supported Employment services and goals annually and, if not pursued, to offer integrated day services. The Commonwealth’s new training module on employment for case managers should help make progress toward compliance. Data about employment discussions and goals, which the Commonwealth’s performance contract with CSBs required in July 2013, will begin to be collected in July 2015
In addition to providing Supported Employment services, the Agreement requires DBHDS to provide integrated day activities for members of the target population. Case managers very rarely offer individuals, who are not employed, other types of integrated day opportunities. The Commonwealth submitted a preliminary plan in March 2014, a year after it was due. The preliminary plan pushed the promise of providing such integrated day activities to two years away, at best. The Independent Reviewer recommends that the Commonwealth expedite its efforts and actions to offer integrated day activities to individuals in the target population and to report quarterly on the number of individuals who have been offered, and have subsequently received, integrated day activities that are not employment-related. Although the Commonwealth has made efforts and has engaged in important preliminary planning activities, seven months after the preliminary plan was submitted, the plan’s completion is projected as December 2014. The Commonwealth has recently confirmed that the existing waiver can appropriately fund integrated day services for individuals who live in group homes. The Commonwealth is hopeful this approach will offer new integrated day opportunities for individuals for whom traditional congregate day support providers are not available.
5. Licensing and Case Management, and Investigations
The Independent Reviewer’s consultant evaluated the Commonwealth’s compliance with case management, investigations, and licensing provisions of the Agreement. For service providers and for individuals who meet specific criteria, these provisions require regular unannounced inspections of providers and more frequent face-to-face case management visits with individuals. The Commonwealth must establish mechanisms to monitor compliance with performance standards and a licensing process that assesses the adequacy of individual services in specified domains. That process must report data to DBHDS for review and assessments. A copy of the consultant’s report is attached at Appendix E.
During the review period, the DBHDS licensing system was the primary compliance mechanism for Community Services Board case management performance under contracts with the Commonwealth. There are several compliance concerns regarding that mechanism. The Licensing

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Specialists of the DBHDS Office of Licensing Services (OLS) use checklists to monitor whether case management performance complies with the Agreement and with DBHDS licensing standards. These checklists do not align with the specific case management requirements of the Agreement (i.e. regular face to face meetings with the individual being served, enhanced visit frequency, offering choice among providers, assembling professionals and non-professionals who provide supports, and identifying risks to the individual). This gap leaves assessment up to the discretion of each Licensing Specialist and, thereby, contributes to reliability problems in interpretation when assessments are viewed collectively. The Office of Licensing Services’ Protocol sampling methodology has been modified and is more valid for providers serving 100 or fewer individuals. This is not an adequate sample, however, for Community Services Boards that serve large numbers of individuals. Finally, results of licensing reviews are not regularly compiled into a report on trends related to compliance patterns across the CSBs. New elements of the DBHDS quality management process are being implemented that may address these issues, but these results will need to be assessed.
The consultant again confirmed that the frequency and number of unannounced licensing inspections have significantly increased and remain in compliance with the Agreement. The protocols for these licensing inspections, however, like those related to case management performance, do not align the Supports and Services area of the regulations with the requirements of the Agreement. This gap leaves assessment up to the Licensing Specialists to interpret, which contributes to reliability problems. Service providers have expressed concerns about a lack of consistent and reliable interpretations of regulations. The DBHDS Licensing Stakeholder’s work group was formed to address this issue. It has been working to clarify current regulations in order to address provider concerns and to potentially increase reliability among Licensing Specialists. Its recent work product (Guidance for Selected Licensing Regulations) appears to be a good first attempt to address this issue.
The DBHDS has implemented “Enhanced Case Management Operational Criteria ” which appear to successfully operationalize the requirements for enhanced visits. The Individual Review studies during the past two report periods verified the required frequency of face-to-face visits by case managers.
The DBHDS has established a Choice Protocol that allows individuals and, if applicable, their Authorized Representatives, a choice of service providers for approved waiver services. The distribution of the Protocol, however, is optional and it does not address choosing or changing a case manager.
The Agreement requires DBHDS to establish key indicators for several of the required domains (i.e. Health & Well Being, Community Inclusion, Choice and Self-Determination, Living Arrangement Stability, and Day Activity Stability). The measures established, however, do not address specific elements of face-to-face visits, such as when to convene the team, how to evaluate significant implementation problems, and how to assess risk when there are changes in status. Of the ten most recently hired case managers, all had completed the DBHDS online training.
The Commonwealth has implemented a process to investigate alleged abuse, neglect, critical incidents and deaths and to identify remedial actions taken in response. A review of ten (10) Office of Human Rights (OHR) field investigation reports found that they do not present enough information (i.e. findings of critical facts) to justify ruling out abuse or neglect. A review of seventeen (17) incident investigations suggests that investigators are thorough. The Office of Licensing Services’ enforcement actions, beyond corrective action plans, however, are not adequate. During

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the past Fiscal Year, its citations for “failure to report” went to fifty ID provider agencies and eight Community Services Board (CSB) providers. Beyond corrective action plans, however, there have been no other enforcement actions taken on these citations. Resolutions to the lack of enhanced enforcement remedies have been proposed, but are awaiting approval. The superficiality of the Office of Human Rights investigation reports and the lack of enhanced sanctioning for ongoing substandard performance contribute to determinations of non-compliance. The Commonwealth acknowledges that it can improve use of the enforcement mechanisms that are available to it. It also recently directed that the narratives in investigation reports should include “sufficient information to support findings …and to detail corrective action plans taken by the provider”.
6. Community Living Options
The Independent Reviewer’s consultant completed a follow-up review of the Commonwealth’s progress on its “Plan to Increase Independent Living Options.” A year ago, the consultant reported “significant concerns about the Plan’s actual capacity to develop community-based housing for the target population.” The concerns were:
the rental assistance pilot program offered only temporary housing assistance for individuals in need of long term supported housing; no other funded efforts dedicated to set-aside subsidies for members of the target population were available; and the ability of members of the target population to access units as they become available requires careful choreography between 1) the LITHC developers who were being incentivized to develop these units and 2) the providers of service to the target group.
During the past two review periods, only two individuals have received housing units as a direct result of the Plan’s implementation. None (0.0%) of the twenty-eight individuals who moved out of Training Centers and were reviewed for this Report were offered rental assistance to live in one of the units being developed.
The Commonwealth has revised, and augmented its Housing Plan’s goals, strategies and action items. The DBHDS has actively collaborated with public and private housing agencies in developing these modifications have increased the potential of establishing the development of housing for the target population:
A 32-unit set-aside of Housing Choices Vouchers for the target population 
 Requests to local Public Housing Authorities to provide set asides for the target group 
 Ongoing Rental Assistance Budget Requests being submitted to the Governor 
 “Tax Bonds Subsidization of Development Costs Decision Brief” to the Governor 
 HUD 811 Application submission 
 Incentives for LIHTC Developers to serve the target population 

These housing initiatives primarily represent the “possible” development of housing units in two to three years. Two and a half years after Virginia completed its Housing plan, it is a reasonable expectation that implementation would have progressed from initial “aspiration activities” (i.e. “encouraging” PHA’s, “applying” for Federal grants, and “submitting briefs.”) to funded and operational processes producing housing units for the target population. The Commonwealth has reported that it will implement additional plans to increase access to independent living options

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during the next review period. Because of the lack of meaningful progress for the target population in the implementation of its Housing Plan, the Independent Reviewer has determined that the Commonwealth was not in compliance with Section III.D.1.
7. Serious Injuries and Mortalities
A. Mortality Reviews The Independent Reviewer previously reported that DBHDS had established the Mortality Review Committee (MRC) under the direction of its Medical Director and that the members of this Committee possess appropriate experience, knowledge and skills. The Mortality Review Committee operates in accord with the basic elements of a statewide mortality review process. The Morality Review Committee:
screens deaths with standard information; reviews unexpected and unanticipated deaths; includes medical professionals as Committee members; reviews and uses mortality review information to address quality of care; aggregates data over time to identify trends; and takes statewide actions to address problems.
During the current review period, the Mortality Review Committee continued operations that were largely developed during 2013: ongoing data collection; monthly meetings to complete organized reviews of deaths; identification of trends, patterns and problems; and recommendation of actions to reduce mortality rates statewide. To date, these actions have included developing and issuing Safety Alerts and system Guidances related to risks identified in the mortality reviews. It has not been determined, however, whether these actions have had any impact. The Commonwealth plans for the mortality review process to continue to improve with more substantive findings and recommendations and with improved analysis of data.
The Mortality Review Committee continued to have difficulty in obtaining reliable and complete information. Therefore, the mortality reviews frequently are based on limited information that reduces the extent of the review. The Mortality Review Committee recognizes that it has limited access to information and records from hospitals, medical providers, nursing facilities, and private unlicensed homes and that its mortality data are not reliable or complete. One agency of the Commonwealth currently presents a barrier to the gathering of more complete and timely information. The Licensing Specialists who investigate deaths of individuals who reside in DBHDS licensed homes are not trained to consistently gather information for a comprehensive and reliable mortality review. It is a positive indication of a working quality system that the DBHDS Quality Improvement Committee also identified the problem of incomplete and unreliable data. DBHDS plans to add staff resources and to collaborate with another state agency to increase and improve data collection with access to records of individuals who die in hospitals.
During this review period, the DBHDS Mortality Review Committee completed its first Mortality Annual Report. The report did not identify to whom it was distributed. Its completion, which is not specifically required by the Agreement, indicates progress in the development of a Quality and Risk Management system. The Mortality Annual Report describes the purpose, structure, and operating protocols of the DBHDS mortality review process. It acknowledges that DBHDS has limited access to information from hospitals and medical providers. Frequently, it has limited information about the

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events leading up to a death and the treatment provided to the individual. The Annual Report presented an analysis of mortality rates in community settings and at Training Centers. Given the underlying difficulties of establishing a well-defined cohort and gathering reliable and complete information, the accuracy of any determined ID/DD mortality rate would be statistically suspect. Still, it is important to begin. Publication of ID/DD mortality rates encourages careful scrutiny of definitions, data collection and rate calculation methodologies. As these are refined, so will be the rates calculated. Comparisons with other states, and between groups within the Commonwealth, also will become more helpful as the reliability of the data and the process used to gather it are verified. An analysis of the composition of the ages and risk factors of the groups, which are compared, will help the Commonwealth and stakeholders interpret the information.
In summary, it is concluded that the Mortality Review Committee and its process have been implemented in accord with the applicable requirements of the Agreement. However, the data currently utilized by the Mortality Review Committee are neither reliable nor complete. This is especially true for people living at home and for information from hospitals and medical practitioners. Without reliable and complete data, the Commonwealth cannot: effectively determine mortality rates, trends, and patterns and is less able to determine necessary remedial actions. The Commonwealth, therefore, is not able to implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable. With improved data and understanding of the critical factors that can lead to avoidable injuries and deaths, the Mortality Review Committee will be able to fulfill the Commonwealth’s responsibility to actively develop and implement measures to reduce risks and mortality rates within individual provider programs and within the statewide service system.
B. The Independent Reviewer reviews and reports to the Court regarding serious injuries and the deaths of former Training Center residents. The Commonwealth promptly forwards the reports of all deaths of all individuals with ID living in the community and the reports of serious injuries to individuals who moved from Training Centers. Between October 1, 2011 and October 6, 2014, DBHDS has reported the deaths of twenty individuals who moved from the Training Centers. Of these individuals, eighteen moved to community homes. Two individuals were transferred while in declining health to a skilled nursing facility, the Hiram Davis Medical Center, on the campus of the Southside Virginia Training Center. Both of these individuals died within seven weeks of their transfers. As previously reported, the Commonwealth has provided the Reviewer additional resources to keep pace with the reviews of serious injuries and deaths. The Independent Reviewer has utilized additional resources provided by the Commonwealth to engage an independent consultant to assist him. On September 9, 2014, the Independent Reviewer, his consultant and senior DBHDS Quality and Office of Licensing Services staff met in Richmond to better understand:
their roles and observations; the correlation of incident reports with individuals seen through the Individual Review study; and the examination of cross-agency interactions in cases involving Adult Protection Services.
The Independent Reviewer’s consultant also met with and interviewed Licensing Specialists. These actions were in preparation for additional reports that are underway.
The reports from the completed reviews have been submitted to the Court with copies provided to the Parties and shared with the Intervenor’s counsel.

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The Independent Reviewer found that in nine (100%) of nine cases reviewed that the Commonwealth’s Licensing Specialists had been assigned and had initiated timely investigations of reported deaths and serous injuries. In eight (90.1%) of the nine reviews, the Licensing Specialist opened, initiated and completed the investigation within a reasonable period and did so consistent with the standards of the investigation process. That is, if regulatory violations were identified, then the responsible providers were notified and Corrective Action Plans were developed. In one (9.1%) of the nine reviews, the Independent Reviewer found that, although significant investigation of facts had occurred and corrective actions had been proposed, the investigation and Corrective Action Plan had not been completed, even after many months. The delay had not been addressed through supervision. Again, for the reviews of deaths that occurred this period, the findings and conclusions were consistent with those of the Mortality Review Committee and the Licensing Specialists’ investigations. In one (9.1%) of the nine DBHDS investigations, the Independent Reviewer concluded that the corrective actions were not adequate to effectively address the problems identified.
The Independent Reviewer’s reviews of serious injuries and deaths also found individual examples of staff members who were not adequately trained, or determined competent, in the service elements of the individual being supported. DBHDS investigations found that two residential providers’ health monitoring systems were not adequately implemented. In the experience of the Independent Reviewer, when serious injuries or deaths occur that might have been avoided, root causes often include staff members who were not adequately trained and whose knowledge and competence were not determined for a specific health protocol and/or the provider’s systems did not ensure that performance standards were consistently met. Individual examples were also found of commendable staff advocacy for an individual to receive needed health care after the hospital initially did not find the source of his discomfort. Based on the findings and conclusions from these reviews, the Independent Reviewer has recommended improvements.
8.Quality and Risk Management
The Independent Reviewer’s consultant completed a follow-up review of the Commonwealth’s progress on its Quality and Risk Management initiatives. A year ago, in her baseline study, the consultant reported that many Quality and Risk Management planning and implementation efforts were underway. At that time, the consultant identified changes in plans that were necessary if the Commonwealth were to move toward achieving compliance. For example, the consultant recommended that the Commonwealth identify and develop:
triggers and thresholds that include all significant harms and the risks of harm; relevant sources and mechanisms to collect additional reliable data; improved training modules and expanded competency measures; standards for a “trained” investigator, for the investigation process, and for investigation reports; and improvements to the planned implementation of Quality Service Reviews.
During the past year, the Commonwealth has continued its planning and implementation efforts. It has addressed some of the suggestions made in previous reports filed by the Independent Reviewer and his consultant. Effective changes have been made to define terms, to improve the sensitivity of risk triggers, and to develop new and revised report formats. DBHDS reports ongoing work with CSBs to improve the reliability of health and safety, community integration, and case management data and to develop additional data sources and reports. The agency also reports that it will increase resources so that data are routinely compiled, analyzed, and monitored; and so that issues and trends

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are communicated broadly. A detailed work plan was developed to create Quality Service Reviews that comply with the Agreement. The Commonwealth acknowledges inadequacies in its data collection. It reports recently completing recommendations for systems improvements and devoting increased resources to address data inadequacies and to improve management of data analysis and trending.
At this time, the Commonwealth has not reached the implementation stage of many of its initiatives and, therefore, has not achieved compliance with most of the Quality and Risk Management provisions of the Agreement. The Commonwealth has done extensive work and made substantial progress in some areas. These areas include the development and implementation of the Mortality Review Committee and mortality review process and the development and implementation of a detailed work plan for Quality Service Reviews. In other areas, the Commonwealth has not yet addressed issues that are critical to achieving compliance. The Agreement requires, for example, that triggers and thresholds be designed to enable the Commonwealth to adequately address both “harms and the risk of harm”. The Commonwealth’s draft Risk Management processes, however, continue with a narrow list that does not include many significant and frequently encountered harms and risks of harm. Specific examples of these potential risks are listed in the consultant’s report in Appendix F. An inadequately defined list of triggers and thresholds will continue to expose individuals to potentially avoidable risks of harm and will not comply with the Agreement.
In summary, it is positive that the Commonwealth has made progress with regards to a number of the Agreement provisions for a Quality and Risk Management system. There continues to be support among the DBHDS leaders for developing a strong Quality Improvement system. However, many challenges lie ahead. Many of the initiatives remain only in the beginning stages of development. Progress has been slow. A sustained effort in both the development of the basis for reliable and valid data and in the implementation of staff training is critical to progress toward substantial compliance.

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CONCLUSION 

The Commonwealth of Virginia, through its Department of Behavioral Health and Developmental Services and sister agencies, achieved compliance with many of the provisions that are currently required. The Commonwealth’s leaders are meeting regularly and collaborating to develop and implement plans to address the Agreement’s requirements. Through the transition to a new administration, despite staff turnover of leaders in key positions, the Commonwealth has continued its implementation efforts. These efforts include a complex undertaking to restructure the Commonwealth’s Home and Community Based Services waivers that fund community-based services for individuals with ID/DD.
As anticipated by the Agreement, and as detailed in this report, the Commonwealth has provided waiver slots, and access to funded community based services for more individuals, most of whom had urgent unmet needs. Individuals have transitioned from Virginia’s Training Centers to community settings as planned. Crisis services programs have and are helping many adults with ID/DD be stabilized and remain living in community settings. A well-organized discharge planning and postmove monitoring process has been implemented, and increased oversight by case mangers and licensing staff is occurring, as required. The Commonwealth has also taken steps to increase community supports for individuals with complex needs, including Bridge funding and exceptional rates.
Despite these successes and its good faith efforts, the Commonwealth continues to lag significantly behind schedule. Repeated delays in the development of essential elements of a community-based service system have continued. During the coming review periods, the Commonwealth must demonstrate more substantial progress developing and improving programs and systems to comply with the provisions of its Agreement. The programs and systems that must be adequately funded and effectively implemented include a statewide crisis service systems for children; increased community living options and integrated day activities; and opportunities for children to transition from living in nursing facilities to integrated community settings with needed supports. Much progress depends on the effective restructure of the Commonwealth HCBS waiver and their service definitions and funding rates.
As these plans are finalized and implemented, the Commonwealth must maintain a sustained effort that includes developing the basis for gathering reliable and valid data and for implementation of staff training. Effective implementation of these provisions will ensure what is most important to the individuals served and their families: that services “… are of good quality, meet individuals’ needs, and help individuals achieve positive outcomes, including avoidance of harms, stable community living, and increased integration, independence and self-determination in all life domains...”
The Commonwealth has transitioned to a new administration and a new leadership team to spearhead the implementation of the new services and the reforms in the Settlement Agreement. They express strong commitment to fully implement the provisions of then Agreement, the promises made to all the citizens of Virginia, especially those with intellectual and developmental disabilities and their families. � �

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RECOMMENDATIONS 


The Independent Reviewer recommends that the Commonwealth address the recommendations listed below. The Independent Reviewer requests a report of actions taken and results for each recommendation by March 30, 2015.
Crisis Services 1. The DBHDS should reach out to the individuals with DD, other than ID, to ensure that they are aware of REACH crisis services and to offer referrals for individuals who may benefit.
2. The DBHDS should identify each individual with ID/DD who has been admitted to a psychiatric or law enforcement facility since June 30, 2012. The DBHDS should determine 1) whether these individuals had been receiving the requisite crisis services and 2) how to provide the services they need in a community-based setting.
3. The DBHDS should undertake a needs assessment that allows it to project the number of children and adolescents in need of the crisis services described in the Agreement, to identify which services will be reimbursed through Medicaid, and request a budget that funds the remainder of the crisis services needed. As soon as possible, DBHDS should initiate the provision of crisis services and supports to address the needs of children and adolescents with ID/DD.
4. The DBHDS should ensure that its statewide crisis response program responds to each crisis call within two hours.
Services for individuals with complex medical and behavioral needs
5. The Commonwealth should adjust its program monitoring process. It should include the periodic (i.e. three, six, and nine months) review and verification that provider operating systems assure that competent staff consistently implement the service elements of each individual at risk due to their complex medical and behavioral needs. This monitoring process should include qualified healthcare professionals and opportunities to provide needed technical assistance to direct support staff and providers.
Integrated Day Opportunities and Supported Employment
6. The DBHDS should ensure information is provided to individuals and their Authorized Representatives (those whose lives will be most impacted) about implementation of the Employment First policy principle, that supported employment is the first and priority service option.
7. The DBHDS should report separately on the progress made in meetings its targets for individuals with ID and DD, not ID, who participate in Individual Supported Employment.
Case Management Monitoring
8. The DBHDS should create a mechanism to monitor compliance with case management requirements of the Agreement. The process should focus on outcomes and specifically include samples of regularized face to face meetings with the individual being served, enhanced visit

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frequency, offering choice among providers, assembling professionals and non-professionals who provide supports, and identifying risks to the individual.
Community Living Options
9. The Commonwealth should revise its housing plan to include quantitative measures, including the projected number of individuals in the target population for each action item. Quarterly plan updates should list the actual number who moved into their own home or apartment with housing assistance related to each action item.
10. Once members of the target population begin moving into and living in their own housing, their feedback should be used to direct mid-course adjustment to the housing plan.
Quality and Risk Management
11. The DBHDS should ensure that it documents a statistically valid approach to determine: the statistically minimum sample to validate procedures for assessing data reliability and validity; the methodology to collect, and the sources of, reliable data; the statistical procedures to validate the findings of licensing and other reviews; and the formulas to calculate the quality indicator/measures and mortality rates.
12. The Commonwealth should develop and report a complete set of standards for what constitutes a “trained investigator,” an “adequate investigation,” and “investigation reports” for use by Licensing Specialists, Human Rights Officers, and community providers.
13. The Commonwealth should address the current risk to individuals served. Their service providers do not currently know whether direct support job applicants have been found to have previously perpetrated abuse, neglect, or exploitation of individuals with ID/DD.
Mortality Review:
14. To ensure the reliability and completeness of mortality data, the Commonwealth should ensure that its agencies share records with the DBHDS that are related to the deaths of individuals with ID/DD. These records are of the events leading up to an individuals’ death and the treatment the individual received. DBHDS should provide Licensing Specialists guidance about how and what information to gather while completing investigations of deaths.

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APPENDICES

A.

INDIVIDUAL REVIEWS

B.

CRISIS SERVICES REQUIREMENTS

C.

INTEGRATED DAY ACTIVITIES AND SUPPORTED EMPLOYMENT

D.

HOUSING PLAN/COMMUNITY LIVING OPTIONS

E.

LICENSING, CASE MANAGEMENT, AND INVESTIGATIONS

F.

QUALITY AND RISK MANAGEMENT

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APPENDIX A INDIVIDUAL REVIEWS 
 April 7, 2014 – October 6, 2014 

Completed by: 
 Donald Fletcher, Independent Reviewer 

Elizabeth Jones, Team Leader 
 Marisa Brown MSN
 Barbara Pilarcik RN 
 Shirley Roth MSN 


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� Demographic Information

Sex Male Female

n

%

13

46.4%

15

53.6%

Age ranges Under 21 21 to 30 31 to 40 41 to 50 51 to 60 61-70 71-80

n

%

0

0.0%

0

0.0%

4

14.3%

2

7.1%

16

57.1%

4

14.3%

2

7.1%

Levels of Mobility Ambulatory without support
Ambulatory with support Uses wheelchair Total assistance

n

%

11

39.3%

6

21.4%

11

39.3%

0

0.0%

Authorized Representative Guardian
Authorized Representative

n

%

6

21.4%

22

78.6%

Type of Residence Group home Family home
Sponsored home Nursing home ICF-ID

n

%

20

71.4%

0

0.0%

2

7.1%

1

3.6%

5

17.9%

Highest Level of Communication

n

Spoken language, fully articulates without assistance

3

Limited spoken language, needs some staff support

2

Communication device

1

Gestures

18

Vocalizations

4

% 10.7% 7.1% 3.6% 64.3% 14.3%

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Discharge Planning – positive outcomes

Item

n

Y

Did the individual and, if applicable, his/her

28

100.0%

Authorized Representative participate in discharge

planning?

Was the discharge plan updated within 30 days prior

28

92.9%

to the individual’s transition?

Was it documented that the individual, and, if

28

100.0%

applicable, his/her Authorized Representative, were

provided with information regarding community

options?

Did person-centered planning occur?

28

100.0%

Were essential supports described in the discharge

28

100.0%

plan?

Did the discharge plan include an assessment of the

27

96.4%

supports and services needed to live in most integrated

settings, regardless of whether such services were

currently available?

Was provider staff trained in the individual support

28

96.4%

plan protocols that were transferred to the community?

Does the discharge plan (including the Discharge Plan

28

96.4%

Memo) list the key contacts in the community,

including the licensing specialist, Human Rights

Officer, Community Resource Consultant and CSB

supports coordinator?

Did the Post-Move Monitor, Licensing Specialist, and

28

100.0%

Human Rights Officer conduct post-move monitoring

visits as required?

Were all medical practitioners identified before the

28

96.4%

individual moved, including primary care physician,

dentist and, as needed, psychiatrist, neurologist and

other specialists?

N 0.0% 7.1% 0.0%
0.0% 0.0% 3.6%
3.6% 3.6%
0.0% 3.6%

CND 0.0% 0.0% 0.0%
0.0% 0.0% 0.0%
0.0% 0.0%
0.0% 0.0%

Discharge Planning Items – areas of concern

Item

n

Y

Was it documented that the individual and, as

28

64.3%

applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals

currently living in the community and their families?

If a move to a residence serving five or more

15

26.7%

individuals was recommended, did the Personal

Support Team (PST) and, when necessary, the

Regional Support Team (RST) identify barriers to

placement in a more integrated setting?

If barriers to move to a more integrated setting were

4

25.0%

identified above, were steps undertaken to resolve

such barriers?

Was placement, with supports, in affordable housing,

28

0.0%

including rental or housing assistance, offered?

N 35.7%
73.3%
75.0% 100.0%

CND 0.0%
0.0%
0.0% 0.0%

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Discharge Planning Items – areas of concern

Item

n

Y

Were all essential supports in place before the

28

78.6%

individual moved?

N 21.4%

CND 0.0%

Discharge Planning Items - COMPARISONS – 2013 to 2014

3rd review period 2013

5th review period 2014

% change +, (­

)

Was it documented that the individual and, as applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals currently living in the community and their

families?

14.3% (4 of 28)

64.3% (17 of 28)

+50.0%

Was placement, with supports, in affordable housing, including rental or housing assistance, offered?

0% (0 of 28)

0% (0 of 28)

0%

Were all essential supports in place before the individual moved?

78.6%% (22 of 28)

71.4%% (20 of 28)

- 7.2%

Below are the positive outcomes and areas of concern related the individuals’ healthcare.


Healthcare Items - positive outcomes

Item

n

Y

Did the individual have a physical examination within

28

100.0%

the last 12 months or is there a variance approved by

the physician?

Were the Primary Care Physician’s (PCP’s)

28

100.0%

recommendations addressed/implemented within the

time frame recommended by the PCP?

Were the medical specialist’s recommendations

28

96.4%

addressed/implemented within the time frame

recommended by the medical specialist?

Is lab work completed as ordered by the physician?

28

92.9%

If applicable per the physician’s orders,

21

95.2%

Does the provider monitor fluid intake?

Does the provider monitor food intake?

22

95.5%

Does the provider monitor bowel movements

28

96.4%

Does the provider monitor weight fluctuations?

28

92.9%

Does the provider monitor seizures?

14

100.0%

Does the provider monitor positioning protocols?

13

100.0%

Does the provider monitor bowel movements?

28

96.4%

If applicable, is the dining plan followed?

24

91.7%

If applicable, is the positioning plan followed?

12

100.0%

Were appointments with medical practitioners for

28

96.4%

essential supports scheduled for and, did they occur

within 30 days of discharge?

Did the individual have a dental examination within

28

96.4%

the last 12 months or is there a variance approved by

the dentist?

N 0.0%
0.0%
3.6%
0.0% 4.8%
4.5% 3.6% 7.1% 0.0% 0.0% 3.6% 8.3% 0.0% 3.6%
3.6%

CND 0.0%
0.0%
0.0%
7.1% 0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0%

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Were the dentist’s recommendations implemented within the time frame recommended by the dentist? Is there any evidence of administering excessive or unnecessary medication(s) (including psychotropic medication?

28

85.7% 7.1%

7.1%

28

3.6% 96.4% 0.0%

COMPARISON Healthcare – positive outcomes improvement – 2013 to 2014

3rd review period

5th review period

% change

2013

2014

+, (-)

Did the individual have a dental examination within the last 12 months or is there a variance

approved by the dentist?

74.1%% (20 of 27)

96.4%% (27 of 28)

+ 22.3%

Does the provider monitor weight fluctuations, if applicable per the physician’s orders?

83.3% (20 of 24)

92.9% (26 of 28)

+9.6%

If weight fluctuations occurred, were necessary changes made, as appropriate?

77.8% (14 of 18)

88.0% (22 of 25)

+10.2%

Is there documentation of the intended effects and side effects of the medication?

66.7% (8 of 12)

75.0-% (9 of 12)

Healthcare Items – areas of concern

Item

n

Y

If ordered by a physician, was there a current

13

84.6%

psychological assessment?

If ordered by a physician, was there a current speech

13

76.9%

and language assessment?

Are there needed assessments that were not

28

25.0%

recommended?

If applicable, is there documentation that

caregivers/clinicians

Did a review of bowel movements?

10

80.0%

Made necessary changes, as appropriate?

7

71.4%

After a review of fluid intake, necessary changes

were made, as appropriate?

13

84.6%

After a review of tube feeding, necessary changes

6

83.3%

were made, as appropriate?

N 7.7% 23.1% 75.0%
10.0% 28.6% 15.4% 16.7%

CND 7.7% 0.0% 0.0%
10.0% 0.0% 0.0% 0.0%

Healthcare Items –Psychotropic Medications - areas of concern

Item

n

Y

N

If the individual receives psychotropic medication:

12

75.0% 25.0%

is there documentation of the intended effects and

side effects of the medication?

is there documentation that the individual and/or a

13

69.2% 30.8%

legal guardian have given informed consent for the

use of psychotropic medication(s)?

does the individual’s nurse or psychiatrist conduct

12

41.7% 41.7%

monitoring as indicated for the potential

development of tardive dyskinesia, or other side

CND 0.0%
0.0%
16.7%

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�
effects of psychotropic medications, using a standardized tool (e.g. AIMS) at baseline and at least every 6 months thereafter)?

Below are the positive outcomes and areas of concern related the individuals’ support plans. Note: All items in the listed “Individual Support Plan Items – positive outcomes” were also found to have positive outcomes in the Independent Reviewer’s previous Report to the Court

Individual Support Plan Items – positive outcomes

Item

n

Y

Is the individual’s support plan current?

28

96.4%

Is there evidence of person-centered (i.e. individualized)

28

96.4%

planning?

Are essential supports listed?

28

96.4%

Is the individual receiving supports identified in his/her

individual support plan?

Residential

28

100.0%

Medical

28

100.0%

Recreation

28

85.7%

Mental Health

10

100.0%

Transportation

28

96.4%

Do the individual’s desired outcomes relate to his/her

28

96.4%

talents, preferences and needs as identified in the

assessments and his/her individual support plan?

For individuals who require adaptive equipment, is staff

24

100.0%

knowledgeable and able to assist the individual to use

the equipment?

N 3.6% 3.6%
3.6%
0.0% 0.0% 14.3% 0.0% 3.6% 3.6%
0.0%

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0%

Individual Support Plan Items – areas of concern

Item

n

Y

Has the individual’s support plan been modified as

7

28.6%

necessary in response to a major event for the person, if

one has occurred?

Do the individual’s desired outcomes relate to his/her

28

96.4%

talents, preferences and needs as identified in the

assessments and his/her individual support plan?

Does the individual’s support plan have specific

28

46.4%

outcomes and support activities that lead to skill

development or other meaningful outcomes?

Does the individual’s support plan address barriers that

27

66.7%

may limit the achievement of the individual’s desired

outcomes?

If applicable, were employment goals and supports

25

12.0%

developed and discussed?

Is the individual receiving supports identified in his/her

individual support plan?

Day/Employment

23

65.2%

Communication/Assistive Technology

4

75.0%

24

100.0%

N 71.4%
3.6%
53.6%
33.3%
88.0%
34.8% 25.0% 0.0%

CND 0.0%
0.0%
0.0%
0.0%
0.0%
0.0% 0.0% 0.0%

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Individual Support Plan Items – areas of concern

Item

n

Y

Is staff assisting the individual to use the equipment as

24

91.7%

prescribed?

Is staff assisting the individual to use the equipment as

24

91.7%

prescribed?

N 8.3%
8.3%

CND 0.0%
0.0%

The 2012 to 2014 comparison indicates there has been significant progress with case managers review for individuals who qualify for monthly face-to-face visits.

COMPARISON – Case Management

There is evidence of case management review, e.g. meeting with the individual face-to-face at least

every 30 days, with at least one such visit every two months being in the individual’s place of residence.

1st review period 3rd review period 4th review period 5th review period

%

2012

2013

2014

2014

change

+, (-)

46.9% (15 of 32)

88.9% (24 of 27)

100% (19 of 19)

96.4% (27 of 28) +49.5%

Below are areas of concern related to the development of the individual support plans and integration outcomes of individuals in their communities.

Integration items – areas of concern

Item

n

Y

Were employment goals and supports developed and

25

12.0%

discussed?

If no, were integrated day opportunities offered?

26

3.8%

Does typical day include regular integrated activities?

27

3.7%

Have you met your neighbors?

27

46.4%

Do you belong to any community clubs or

28

3.6%

organizations?

Do you participate in integrated community volunteer

28

3.6%

activities?

Do you participate in integrated community

28

10.7%

recreational activities?

N 88.0%
96.2% 96.3% 53.6% 96.4%
96.4%
89.3%

CND 0.0%
0.0% 0.0% 0.0% 0.0%
0.0%
0.0%

COMPARISON – Most Integrated Setting

The Commonwealth shall serve individuals in the target population in the most integrated setting

consistent with their informed choice and needs.

1st review period

3rd review period

5th review period

% change

2012

2013

2014

+, (-)

46.9% (15 of 32)

53.6% (15 of 28)

57.1% (16 of 28)

- 10.2%

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�
Below are positive outcomes and areas of concern in the residential programs where case managers 
 monitor the implementation of support plans.


Residential Staff – positive outcomes Items

Item

n

Y

Is residential staff able to describe the individual’s likes

28

100.0%

and dislikes?

Is residential staff able to describe the individual’s health 28

96.4%

related needs and their role in ensuring that the needs

are met?

Is there evidence the staff has been trained on the desired 28

92.9%

outcome and support activities of the individual’s support

plan?

N 0.0% 3.6%
7.1%

CND 0.0% 0.0%
0.0%

Residential Staff – areas of concern

Item

n

Y

Is residential staff able to describe the individual’s

28

75.0%

talents/contributions and what’s important to and

important for the individual?

N 25.0%

CND 0.0%

Residential Environment Items – positive outcomes

Item

n

Y

N

Is the individual’s residence clean?

16

93.8% 6.3%

Are food and supplies adequate?

28

96.4% 3.6%

Does the individual appear well kempt?

28

89.3% 7.1%

Are services and supports available within a reasonable

28

96.4% 3.6%

distance from your home?

Do you have your own bedroom?

28

96.4% 3.6%

Do you have privacy in your home if you want it?

28

92.9% 7.1%

CND 0.0% 0.0% 3.6% 0.0%
0.0% 0.0%

Residential Environment Items – areas of concern

Item

n

Y

Is there evidence of personal décor in the individual’s

28

67.9%

room and other personal space?

N 32.1%

CND 0.0%

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 �
APPENDIX B 
 CRISIS SERVICES REQUIREMENTS 

By: Kathryn du Pree MPS 


�

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�
CRISIS SERVICES REVIEW OF THE VIRGINIA REACH PROGRAM FOR THE INDEPENEDENT REVIEWER FOR THE COMMONWEALTH OF VIRGININA VS. THE US DO}

PREPARED BY KATHRYN DU PREE, MPS EXPERT REVIEWER November 12, 2014

TABLE OF CONTENTS

Section 1: Overview of the Requirements

3

Section 2: Purpose of the Review

3

Section 3: Review Process

4

Section 4: A Statewide Crisis System for Individuals with ID and

DD

5

Section 4A: Review of the Crisis Services Plan to Serve Children

and Adolescents

6

Section 4B: REACH Services for Adults

10

Section 4C: Review of Individuals Using REACH Services 14

Section 5: Elements of the Crisis Response System

20

Section 6: Summary

30

Table 1: Summary of Individuals Using REACH Services 18
Table 2: Individuals Using The Reach Crisis Stabilization Units During Fy14 Fourth
Quarter And Fy15 First Quarter
Table 3: Individuals Using the REACH Crisis Stabilization Units 28

�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 60 of 152 PageID# 5613

� SECTION 1: OVERVIEW OF REQUIREMENTS
Denald�lleecheem�ehe�endependene�eevieeee�has�ceneeaceed�eieh�uaehepn�di�meee�as�ehe� Enpeee�eevieeee�ee�peeueem�ehe�eeviee�eu�ehe�ceisis�seevices�eeniieemenes�eu�ehe� Seeelemene�Ageeemene�uee�ehe�eime�peeied�4/7/14m10/6/14w�The�eeviee�eill�deeeemine�ehe� oemmeneealeh�eu�rieginiass�cempliance�eieh�ehe�uelleeing�eeniieemenes1� The�oemmeneealeh�shall�develep�a�seaeeeide�ceisis�spseem�uee�individials�eieh�eD�and�DD;� peevide�eimelp�and�accessille�sippeees�ee�individials�ehe�aee�enpeeiencing�a�ceisis;� peevide�seevices�uecised�en�ceisis�peeveneien�and�peeaceive�planning�ee�aveid�peeeneial� ceises;�and�peevide�inmheme�and�cemminiepmlased�ceisis�seevices�ehae�aee�dieeceed�ae� eeselving�ceises�and�peeveneing�ehe�eemeval�eu�ehe�individial�ueem�his�ee�hee�cieeene� seeeing�ehenevee�peaceicallew�This�eill�le�ehe�ueieeh�eeviee�eu�ceisis�seevices�and� peeveneien�and�eill�uecis�en�ehe�eecemmendaeiens�made�lp�ehe�endependene�eevieeee�in� his�eepeee�eu�eine�6m�2014w� � � SECTION 2: PURPOSE OF THE REVIEW
This�eeviee�eill�liild�euu�ehe�eeviee�cempleeed�lase�speing�uee�ehe�eeviee�peeied�eheeigh� 4/6/14�and�ehe�eecemmendaeiens�ehe�endependene�eevieeee�made�in�his�lase�eepeee�as�a� eesile�eu�ehe�cenclisiens�and�uindings�eu�ehae�eevieew��� � ee�eill�uecis�en�ehese�aeeas�ehae�eeee�nee�in�cempliance�and�ehe�endependene�eevieeeess� eelaeed�eecemmendaeiensw�This�uecis�eill�le�en1�� �
• The�oemmeneealehss�aliliep�ee�seeve�adiles�eieh�develepmeneal�disalilieies�in� eeems�eu�ceisis�peeveneien�and�ineeeveneien�seevices�ensieing�ehis�eaegee�pepilaeienm� incliding�ehese�en�ehe�eaieing�lisem�has�case�managemene�seevices�ee�uacilieaee�uill� access�ee�ceisis�seevices�and�sealilinaeien�peegeamsm�and�access�ee�cemminiep� sippeees�ee�peevene�uieiee�ceises�
• The�oemmeneealehss�aliliep�ee�peevide�ceisis�peeveneien�and�ineeeveneien�seevices� ee�childeen�eieh�eiehee�ineelleceial�ee�develepmeneal�disalilieiesw�e�eevieeed�ehe� DHHDS�plan�and�eegienal�eespenses�ee�analpne�eegienal�seevices�and�seevice�gaps�in� Apeilm�2014�and�made�seveeal�eecemmendaeiens�ehae�DHHDS�needed�ee�ideneiup�ehe� seevice�needs�in�each�eegien�and�addeess�eieeeachm�edicaeien�eu�case�manageesm� eeueeeal�peecessm�oSH�invelvemenem�cemminiep�sippeeesm�a�meehedelegp�ee�eeacn�ehe� need�uee�eiemeu�mheme�placemenem�and�placemene�eiecemes�uee�childeen�ehe�aee� placed�eie�eu�heme�
• The�DHHDSs�aceiens�ee�eeach�eie�ee�individials�eieh�DD�and�eheie�uamilies�and�eeain� all�DD�oase�aanagees�ee�ensiee�uamilies�eu�individials�eieh�DD�aee�aeaee�eu�and�can� access�ceisis�seevices�
• The�seaeis�eu�eeaining�eu�oSH�Emeegencp�Seevices�eeenees�ee�le�cempleeed�lp�6/14� • The�oemmeneealehss�plan�ee�eeach�eie�ee�lae�enueecemene�and�ceiminal�viseice�
peesennel�ee�linn�individials�eieh�ineelleceial�and�develepmeneal�disalilieies�eieh� ceisis�ineeeveneien�seevices�ee�peevene�innecessaep�aeeeses�ee�incaeceeaeien�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 61 of 152 PageID# 5614

� • The�nimlee�eu�individials�ehe�eeee�eemeved�ueem�eheie�hemes�ee�an�eiemeumheme� placemene�dieing�a�ceisism�ehe�dieaeien�eu�ehe�placemene�and�ehe�nimlee�eu� individials�ehe�eeee�nee�alle�ee�eeeien�ee�eheie�eeiginal�heme�ee�eesidence� • The�seaeis�eu�lecaeing�a�peemanene�ceisis�eheeapeieic�hemes�in�eegiens�er� • The�nialiep�eu�ceisis�seevices�ehae�individials�aee�eeceiving�ueem�ehe�uive�eegienal� eEAoH�peegeams� • The�saeisuaceien�eu�ehe�uamilies�ehe�have�ieilined�eEAoH�seevices�uee�a�uamilp�
 memlee�

� SECTION 3: REVIEW PROCESS
The�Enpeee�eevieeee�eevieeed�eelevane�decimenes�and�ineeevieeed�nep�adminiseeaeive� seauu�eu�DHHDSm�eEAoH�adminiseeaeees�and�seaneheldees�ee�peevide�ehe�daea�and� inueemaeien�necessaep�ee�cempleee�ehis�eeviee�and�deeeemine�cempliance�eieh�ehe� eeniieemenes�eu�ehe�Seeelemene�Ageeemenew�� � Document Review1�Decimenes�eevieeed�inclided1�
1w The�eEAoH�meegeam�Seandaeds� 2w �The�eegienal�Aap�Analpsis�and�meegeam�Develepmene�opdaees�uee�childeen�and�
adelescene�ceisis�seevices� 3w The�aaeienal�STAeT�oeneee�Annial�eepeee1�7/1/13�4�6/30/14� 4w Seaee�and�eegienal�riaeeeelp�eepeees�uee�4/1/14m6/30/14�and�eegienal�riaeeeelp�
eepeees�uee�7/1/14m9/30/14��
Interviews1�e�ineeevieeed�ehe�Assiseane�oemmissienee�uee�Develepmeneal�Seevicesm�ehe� Dieeceee�eu�oemminiep�Seevicesm�ehe�cieeene�and�ueemee�oeisis�Seevices�Seaee�oeeedinaeeesm� a�eEAoH�oeeedinaeeem�memlees�eu�ehe�eegien�er�eEAoH�Adviseep�oeincil�and�ehe�Seaee� Dieeceee�eu�ehe�arc.��e�alse�aeeended�ene�seaeeeide�meeeing�eu�all�eu�ehe�eEAoH�oeeedinaeeesm� ehich�inclided�eegienal�aanagees�and�eegienal�seauu�develeping�ceisis�seevices�uee�childeen� and�adelescenesw�e�ineeevieeed�4ueie�eu�ehe�een�uamilies�eandemlp�seleceed�ehe�have�ised� oeisis�Seevices�ee�deeeemine�eheie�level�eu�saeisuaceien�and�elicie�anp�eecemmendaeiens�ehep� have�uee�impeevemenew�e�appeeciaee�ehe�eime�ehae�eveepene�gave�ee�ceneeilieing�impeeeane� inueemaeien�uee�ehis�eevieew�� � Individual Reviews1�e�seleceed�een�individials�eandemlp�ehe�ise�eEAoH�seevices�ee� deeeemine�ehe�nialiep�eu�ehe�seevices�peevidedw�e�eevieeed�eheie�eeceeds�and�ineeevieeed� seme�eu�eheie�uamiliesw� � � SECTION 4: A STATEWIDE CRISIS SYSTEM FOR INDIVIDUALS WITH ID and DD� The�oemmeneealeh�is�enpeceed�ee�peevide�ceisis�peeveneien�and�ineeeveneien�seevices�ee� individials�eieh�eiehee�ineelleceial�ee�develepmeneal�disalilieies�as�paee�eu�ies�elligaeien� indee�Seceien�6waw�eu�ehe�Seeelemene�Ageeemene�ehae�seaees1�� � The Commonwealth shall develop a statewide crisis system or individuals with ID and DD. 
 The crisis system shall: 
 


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� i.
ii.
iii.

Provide timely and accessible support to individuals who are experiencing crises, including crises due to behavioral or psychiatric issues, and to their amilies; Provide services ocused on crisis prevention and proactive planning to avoid potential crises; and Provide in-home and community -based crisis services that are directed at resolving crises and preventing the removal o the individual rom his or her current placement whenever practicable.

A. REVIEW OF THE CRISIS SERVICES PLAN TO SERVE CHILDREN AND 
 ADOLECENTS 

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 66 of 152 PageID# 5619

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 67 of 152 PageID# 5620

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 68 of 152 PageID# 5621

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 69 of 152 PageID# 5622


� The�eespense�eime�ee�ceisis�eeueeeals�

Finding1�100%�eu�ehe�eeam�eespenses�eeee�in�ehe�eeniieed�eime� hheehee�an�assessmene�and�an�ineeeveneien�plan�eas�develeped�

Finding:�100�%�eu�ehe�individials�had�an�assessmene�and�an�ineeeveneien� plan� hheehee�ehe�plan�eas�implemeneed�

Finding:�100%�eu�ehe�individials�had�ehe�plan�implemeneed� hheehee�inmheme�sippeees�eeee�peevided�

Finding:�100%�eu�ehe�individials�ehe�eenieseed�inmheme�sippeees�eeceived� ehese�sippeees� The�ise�eu�ehe�oTH�uee�leeh�ceisis�sealilinaeien�and�peeveneien�

Finding1�60%�eu�ehe�individials�in�ehe�sample�ised�ehe�oTH�peegeamw�ae�ene� ehe�eenieseed�ie�eas�denied�iew�An�addieienal�uamilp�eas�euueeed�iem�lie�has� nee�ised�ie�peew� hheehee�uamilies�and�peevidees�eeee�eeained�in�lehavieeal�ineeeveneiens�

Finding:�tnlp�50%�eu�ehe�uamilies�and�peevidees�eeee�eeained�acceeding�ee� ehe�availalle�decimeneaeien� The�invelvemene�eu�ehe�oa�and�eeam�uee�eeansieien�planning�iu�an�individial�leue� his/hee�heme�

Finding:�sin�eu�ehe�seven�individials�H86%h�ehe�leue�heme�uee�ceisis� sealilinaeien�had�eheie�eeam�invelved�in�eeansieien�planning� hheehee�ehe�individial�eas�hespiealined �

Finding1��50%�eu�ehe�individials�eeee�hespiealined�in�a�pspchiaeeic�

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uaciliepw�eEAoH�seauu�uelleeed�ehem�dieing�ehe�hespiealinaeiens�

The�invelvemene�eu�ehe�oa�and�eeam�uee�eeansieien�planning�iu�ehe�peesen�eas�

hespiealined�

Finding:�100%�eu�ehe�individials�hespiealined�had�eheie�eeam�invelved�in� eeansieiening�planning�� hheehee�ehe�individial�eas�maineained�ae�heme�

Finding1�80%�eu�ehe�individials�eeee�maineained�in�eheie�heme�seeeingw�tne� individial�eas�appeepeiaeelp�placed�in�sippeeeed�living�aueee�a� hespiealinaeienw�A�secend�peesen�eas�appeepeiaeelp�placed�in�a�cemminiep� eesidence�aueee�a�visie�ee�ehe�oTH� � This�eeviee�eu�a�small�sample�ueind�ehae�eEAoH�eas�veep�invelved�eieh�ehe�individials� eeueeeed�uee�eheie�seevicesw�Decimeneaeien�shees�eegilae�invelvemene�eieh�individialsm� uamilies�and�seevice�peevideesm�iu�ehep�aee�invelvedw�eEAoH�peevided�uellee�ip�aueee� hespiealinaeiens�and�eas�eegilaelp�availalle�lp�phene�ee�uamilies�in�addieien�ee�maning� visies�ee�ehe�hemew�eEAoH�eeueeeed�individials�appeepeiaeelp�ee�needed�cemminiep� seevices�incliding�pspchiaeeises�and�neieelegisesw�eEAoH�uelleeed�ies�dischaege�pelicp�and�

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����A� 21


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 70 of 152 PageID# 5623

� aeeanged�appeepeiaee�eeansieiensw�Theee�eas�alse�evidence�ehae�individials�ehe�had�leen� dischaeged�eeee�niicnlp�seeved�againm�iu�eheie�sieiaeien�lecame�inseallew�eEAoH�eas�veep� engaged�eieh�ehe�eesideneial�and�dap�peevideesm�incliding�scheelsw�eEAoH�oeeedinaeees� geneeallp�engaged�eieh�oase�aanagees�ee�ceeedinaee�ceisis�sippeees�and�ee�neep�ehe�oa� inueemed�eu�anp�changesw�The�eeceeds�eeee�nee�cleae�ehae�ehe�ineeeveneiens�eeee�ueemallp� eevieeed�ee�deeeemine�in�a�measiealle�eap�ehich�ineeeveneiens�eeee�siccessuilw� e�de�have�a�uee�cenceens�ueem�mp�eeviee�eu�ehis�sample�eu�een�individialsw�The�oeisis� meeveneien�and�eneeeveneien�mlans�Homemh�seem�lacning�in�eecemmendaeiens�uee�ehae�ehe� uamilp�ee�peevidee�can�de�iu�euueees�ee�veelallp�engage�ehe�individial�ee�eemdieece�ehem� deesnse�eeenw�en�manp�eu�ehe�plans�ehe�nene�seep�is�ee�call�eEAoHm�ES�Seauu�ee�ehe�pelicew� eEAoH�dees�eespend�eimelp�ehen�called�in�ehese�sieiaeiens�lie�uamilies�and�paeeicilaelp� peevidees�map�le�alle�ee�le�eeained�ee�caeep�eie�meee�ineensive�ineeeveneiens�incliding� appeepeiaee�phpsical�managemene�eechninies�ee�help�sealiline�ehe�sieiaeien�leueee�calling� ES�seauu�ee�lae�enueecemenew�eEAoH�seauu�aee�eespensive�lie�in�seme�eu�ehe�eeceeds�ie�is� diuuicile�ee�asceeeain�ehae�aceial�eeaining�eas�peevided�ee�give�ehe�caeegivee�meee�snills�in� ineeeaceing�siccessuillp�eieh�ehe�individial�dieing�a�ceisis�veesis�censileaeienw�ee�is�alse� eeeilling�ehae�a�uee�eu�ehe�individials�ehe�eeceived�eEAoH�seevices�eiehee�did�nee�have�a� dap�peegeam�ee�eepeeeed�leing�leeed�eieh�eheie�dap�peegeam�aceivieiesw��This�is�nee�a� eespensililiep�eu�eEAoHw�Heeeveem�ehe�impace�eu�a�lacn�eu�meaninguil�dap�en�individials� eieh�lehavieeal�and/ee�meneal�healeh�needs�sheild�le�analpned�and�censideeed�lp�DHHDS� as�ehe�depaeemene�peieeieines�ehe�eeceives�eaivee�eeseiecesw� � Theee�eu�ehe�een�individials�had�leen�invelved�eieh�ehe�pelice�en�meee�ehan�ene�eccasienw�� As�seaeed�aleve�calling�ehe�pelice�is�eueen�paee�eu�ehe�omemw�This�manes�ie�meee�impeeaeive� ehae�lae�enueecemene�peesennel�aee�censiseenelp�eeainedw�� � e�eas�enlp�alle�ee�ineeeviee�ueie�eu�ehe�een�uamilies�ehese�eelaeive�eas�paee�eu�ehe� individial�eevieew��Tee�eu�ehe�uamilies�eepeeeed�high�levels�eu�saeisuaceien�eieh�ehe�ceisis� seevices�ehae�eeee�peevided�ee�eheie�childeen�and�ueind�ehe�ceeedinaeien�eu�eEAoH�seevices� and�seevice�ceeedinaeien�euueceivew�tne�uamilp�ineeevieeed�aceiallp�had�eee�childeen�ehe� eeee�eeueeeed�ee�eEAoH�aleheigh�enlp�ehe�sen�ised�ehe�oTH�and�paeeicipaeed�in�ceisis� planningw�The�daigheee�visieed�ehe�oTH�lie�did�nee�ueel�cemueeealle�ising�ie�as�eepeeeed�lp� hee�meeheew�The�uamilp�has�disceneinied�ise�eu�ehe�eEAoH�peegeam�lecaise�eu� dissaeisuaceien�eieh�ehe�pspchiaeeise�and�lecaise�ehe�sen�lecame�ceneiniallp�ipsee�aleie� leing�asned�iu�he�eaneed�ee�leave�his�heme�peemanenelpw�The�eEAoH�peegeam�seauu�made�a� eepeee�ee�Secial�Seevices�aleie�eheie�cenceens�eieh�his�heme�seeeingw�oieeenelp�leeh� childeen�eemain�eieh�eheie�uamilpw�� � The�ueieeh�uamilp�ineeevieeed�had�signiuicane�cenceens�aleie�ehe�geneeal�seevices�eu�ehe� eeam�and�Seevice�oeeedinaeeem�seme�eu�ehich�indicaeed�cenceens�aleie�eEAoHm�lie�ee�a� lessee�eneenew�The�individial�ehe�ised�eEAoH�cemminicaees�ising�ASaw�The�Seevice� oeeedinaeee�cannee�ise�ASa�and�uee�a�leng�peeied�did�nee�aeeange�uee�an�ineeepeeeeew�The� siseee�ehe�e�ineeevieeed�cemplained�ehae�ehe�eEAoH�oTH�did�nee�have�anpene�uliene�in� ASa�uee�manp�eu�hee�siseeess�visiesm�ehich�made�ie�impessille�uee�hee�ee�cemminicaeew� eEAoH�ueind�a�Seevice�oeeedinaeee�ehe�eas�uliene�in�ASam�ehich�impeeved�ehe� individialss�enpeeiencew�She�has�leen�meved�ee�a�nee�cemminiep�eesidence�eieh�ehe� eecemmendaeien�and�sippeee�eu�eEAoH�die�ee�alise�eccieeing�in�hee�peevieis�eesidencew�

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����A� 22


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 71 of 152 PageID# 5624 � Hee�siseee�lelieves�ehe�alise�ceneinied�uee�a�leng�peeied�inchecned�lecaise�ne�ene� liseened�ee�hee�siseeew�
TABLE 1: REVIEWS OF INDIVIDUAL USING REACH SERVICES

eespended�en�eeniieed�Time�eu� 2�hesw eespenses�enclided�Assessmene� and�eneeeveneien�uee� e�Seauu�emplemeneed� Sealilinaeien�mlan �enmHeme�Sippeees�tuueeed osed�oeisis�TH�uee�Heeh� Emeegencp�and�mlanned�oeisis� Sippeee e�Seauu�Availalle�uee�op�ee�3� Daps�uee�Sealilinaeien oeisis�meeveneien�mlan� Develeped���enclided� meeveneien�Seeaeegies���ainns� eieh oemminiep eeseieces e�Seauu�Teained�lamilp�aemlees� and�meevidees�en�meeveneien� mlan heee�e�Team���oa�Engaged�in� Teansieien�mlanning�iu�endividial� aeeded�ee�aeave�Heme heee�e�Team���oa�Engaged�in� Teansieien�mlanning�iu�Sheee� Teem�mspchiaeeic� e�Team�Euueceivelp� oemminicaeien�e/Seevice� meevideesm�endividial���lamilp�

1 aES aES aES aES aES

aES aES

aES aES aES aES

2 aES aES aES aES at

aES aES

aES a/A a/A aES

aES�

maAa�

at�

3 a/A aES aES aES aES

aES aeauAAE at

aES a/A aES

aES�

maAa�

at�

4 a/A aES aES a/A aES

a/A aeauAAE at

at

a/A at

5 a/A aES aES aES aES

aES aES

at

aES aES aES

6 a/A aES aES aES at

aES aES

aES aES aES aES

at�maAa�

7 a/A aES aES aES at

aES ea�leaE at*** a/A a/A aES

8 aES aES aES aES aES

aES aES

at

aES aES aES

at�HoT�

9 a/A aES aES aES tllEeED a/A aES

aES a/A a/A aES

10 aES aES aES aES aES

aES aES

aES aES aES aES

NOTE: * INDICATES THE INDIVIDUALS COULD NOT RETURN HOME BUT WERE PLACED PERMANENTLY ELSEWHERE; ** INDIVIDUAL APPROPRIATELY REFERRED FOR A NEW RESIDENCE AFTER USING THE CTH; *** PARENT COMPLAINED ABOUT THE LACK OF TRAINING

Recommendations:�enpie�ueem�uamilies�ehe�ise�eEAoH�seevices�is�impeeeane�ee�deeeemine� cempliance�eieh�ehe�Seeelemene�Ageeemenew�ee�is�valialle�ee�have�ehis�peespeceive�ee� deeeemine�iu�ehe�eEAoH�eegienal�meegeams�ceneinie�ee�peevide�ehe�uill�eange�eu�ceisis� sippeees�enpeceedm�and�iu�ehe�peegeam�is�siccessuillp�assiseing�uamilies�dieing�ceises�and�

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����A� 23


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 72 of 152 PageID# 5625

� sealilining�individials�enpeeiencing�a�ceisis�se�ehep�can�seap�in�eheie�heme�ee�eeeien�aueee� sheee�peeied�eu�eiemeumheme�ceisis�ineeeveneienw�e�eecemmend�ehae�uieiee�eeviees�inclide� ehis�saeisuaceien�sievep�and�ehae�eEAoH�peegeams�ise�ie�eieh�paeeicipanes�and�shaee�ehe� eesiles�eieh�eheie�Adviseep�oeincilsm�ehe�endependene�eevieeeem�and�ehe�Enpeee�eevieeeew� � Conclusions:�The�DHHDS�is�nee�in�cempliance�eieh�Section III.C.6.a.i, 6.a.ii, and 6.a.iii. The� peegeam�elemenes�aee�in�place�uee�adiles�eieh�eD�and�ehe�eEAoH�eeams�aee�meeeing�ehe� enpeceaeiens�uee�seeving�ehis�speciuic�pepilaeienw�Heeeveem�DHHDS�dees�nee�have�a� seaeeeide�ceisis�spseem�in�place�uee�childeen�and�adelescenes�ehe�enpeeience�a�ceisis;�nee� can�DHHDS�assiee�ehae�ie�is�eeaching�all�eu�ehe�individials�eieh�DD�ehe�need�and�map� leneuie�ueem�ehe�ceisis�spseemw� � � SECTION 5: ELEMENTS OF THE CRISIS RESPONSE SYSTEM

6.b. The Crisis system shall include the ollowing components:

i.

Crisis Point o Entry

A. The Commonwealth shall utilize existing CSB Emergency Services, including existing

CSB hotlines, or individuals to access in ormation about and re errals to local

resources. Such hotlines shall be operated 24 hours per day, 7 days per week and

sta ed with clinical pro essionals who are able to assess crises by phone and assist the

caller in identi ying and connecting with local services. Where necessary, the crisis

hotline will dispatch at least one mobile crisis team member who is adequately trained

to address the crisis.

en�all�eegiens�eEAoH�ceneinies�ee�le�availalle�24�heies�each�dap�ee�eespend�ee�ceisesw� Dieing�ehe�ueieeh�niaeeee�eu�la14m�eighepmueie�eeueeeals�eccieeed�dieing�lisiness�heiesm� seven�dieing�evening�heies�and�eee�dieing�eeenend�heiesw�The�oSH�ES�Teams�made�uive� eeueeealsm�eie�eu�nineepmuive�eepeeeedw�oase�aanagees�made�sevenepmeheee�and�sin�eeee� made�lp�uamiliesw� � aineepmuive�eeueeeals�eeee�made�ee�STAeT�dieing�la14�r4m�ehich�is�veep�censiseene�eieh� ehe�nineepmsin�eeueeeals�made�dieing�ehe�ehied�niaeeeew�DHHDS�eepeeeed�en�all�eu�ehe� eegiens�encepe�eegien�eew�Theee�eeee�139�eeueeeals�in�la15�r1w�This�eepeesenes�an�inceease� evee�ehe�peevieis�eee�niaeeeesw�The�oSH�ES�Teams�made�seven�eu�ehe�eeueeeals�in�eee�eu�ehe� eegiensw�oase�aanagees�made�eighemnine�eu�ehe�eeueeealsm�enlp�ene�eu�ehich�eas�ueem�a�DD� oase�aanageew�Sin�eeueeeals�eeee�made�dieecelp�lp�uamiliesw�ee�is�enpeceed�ehae�ehe�maveeiep� eu�eeueeeals�eill�le�made�lp�oase�aanagees�as�ehep�leceme�meee�aeaee�eu�ehe�seevices� availalle�eheeigh�eEAoH�and�have�eegilae�ceneace�eieh�ehe�individials�en�eheie�caseleadsw�� The�DHHDS�is�inalle�ee�eepeee�ehe�eime�eu�dap�eeueeeals�eeee�made�dieing�la15�r1w�� � Conclusion1�The�oemmeneealeh�is�in�cempliance�eieh�Section III.C.6.b.i.A.The�DHHDS� needs�ee�inclide�inueemaeien�aleie�ehe�eime�eu�dap�and�daps�eu�ehe�eeen�eeueeeals�aee�made� ee�veeiup�ehae�ehe�eespense�is�availalle�and�ised�evenings�and�eeenends�as�eell�as�eppical� lisiness�heiesw�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 73 of 152 PageID# 5626

� B. By June 30, 2012 the Commonwealth shall train CSB Emergency personnel in each Health Planning Region on the new crisis response system it is establishing, how to make re errals, and the resources that are available.
The�eegiens�ceneinie�ee�eeain�oSH�ES�seauu�and�eepeee�en�ehis�niaeeeelpw�Dieing�ehis� eepeeeing�peeied�all�eegiens�peevided�seme�eeaining�ee�oSH�ES�seauum�lie�enlp�eegien�eee� peevided�eeaining�in�leeh�niaeeees�in�ehe�eepeeeing�peeiedw��The�eeeal�ES�seauu�eeained�dieing� ehis�eepeeeing�peeied�eas�sinepmeheeew�eegien�eee�eeained�eeenepmeheee�ES�seauuw�The�eehee� eegiens�eeained�leeeeen�sin�and�ueieeeen�ES�seauuw�� � The�endependene�eevieeee�eenieseed�a�plan�ueem�DHHDS�lp�eine�30m�2014�ee�speciup�ehae� all�oSH�ES�peesennel�eill�le�eeained�ising�a�seandaedined�cieeicilim�and�ehis�eeaining�eill� le�eeacnedw��The�DHHDS�did�nee�silmie�ehis�planw� Conclusion:�The�oemmeneealeh�eemains�in�cempliance�with Section III.C.6.b.i.B�lecaise� ehe�eEAoH�peegeams�ceneinie�ee�eeain�ES�seauuw�Heeeveem�ehe�DHHDS�cannee�eepeee�ehae�all� ES�seauu�aee�eeained�and�did�nee�cemplp�eieh�ehe�endependene�eevieeeess�eeniieemene�ee� develep�and�silmie�a�planw�� � Recommendation:�The�oemmeneealeh�sheild�eseallish�a�seaeeeide�ceisis�spseem� seandaed�ehae�all�leeh�oSH�ES�peesennel�and�oase�aanagees�aee�eeained�and�ehae�ehis� inueemaeien�sheild�le�eepeeeed�ee�DHHDSw�� � �
ii. Mobile Crisis Teams A. Mobile crisis team members adequately trained to address the crisis shall respond to
individuals at their homes and in other community settings and o er timely assessment, services support and treatment to de-escalate crises without removing individuals rom their current placement whenever possible.
�The�aaeienal�oeneee�uee�STAeT�Seevices�ae�oaH�ceneinied�ee�peevide�eeaining�ee�all�eu�ehe� eegienal�peegeams�ising�evidenced�lased�eeaining�eheeigh�eine�2014w�eegiens�e�and�ee�aee� ceneiniing�eheie�ceneeaces�eieh�oaH�and�eill�ceneinie�ee�have�seauu�eeained�lp�ehe�naeienal� STAeT�eeaineesw�The�DHHDS�has�nee�leen�alle�ee�eepeee�en�ehe�plan�ee�ceneinie�eeaining�uee� eEAoH�seauu�in�eegiens�eeem�er�and�rw�ap�cenceens�aleie�ehis�aee�addeessed�indee�ehe� eeviee�eu�ehe�eEAoH�Deaue�Seandaedsw�All�eegiens�have�ceneinied�ee�access�ehe�aieism� eeaining�peevided�lp�uaeen�hiegelm�mhwDw�eheeigh�ehe�aaeienal�oeneee�uee�STAeT�Seevicesw� Seveeal�eEAoH�seauu�have�alse�aeeended�eeainings�euueeed�lp�ehe�rieginia�Aieism�oeincil� leaening�seeaeegies�ee�sippeee�adelescenes�and�adiles�eieh�Aieism�Speceeim�Diseedeesw� � Conclusion:�The�oemmeneealeh�is�in�cempliance�eieh�Section 6.b.ii.A.�e�uind�ehep�aee�in� cempliance�lecaise�STAeT�eeaining�ceneinied�uee�halu�eu�ehis�eepeeeing�peeied�and�seauu� ehae�eemain�eieh�ehe�peegeams�have�leen�eeainedw�The�DHHDS�mise�develep�eeaining� eeniieemenes�as�paee�eu�ehe�eEAoH�Seandaeds�and�peevide�ehe�eeaining�ee�maineain� cempliance�in�ehe�uieieew�

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����A� 25


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 74 of 152 PageID# 5627
 �

B. Mobile crisis teams shall assist with crisis planning and identi ying strategies or preventing uture crises and may also provide enhanced short-term capacity within an individual's home or other community setting.
The�eeams�ceneinie�ee�peevide�eespensem�ceisis�ineeeveneien�and�ceisis�planningw�Dieing�ehe� ueieeh�niaeeee�nineepmuive�individials�eeee�eeueeeed�ee�eEAoHw�These�eeueeeals�inclided� eenieses�uee�ehe�uelleeing�cemminiep�seevices1�cempeehensive�evaliaeienm�censileaeienm� ceess�spseem�ceisis�plan�seevices�eeee�eenieseed�ae�ehe�eime�eu�eeueeeal�incliding� censileaeien�H50hm�cempeehensive�evaliaeien�H4hm�ceess�spseem�ceisis�planning�H22hm� emeegencp�eespense�seevices�H3hm�and�inmheme�sippeee�H3hw��The�eehee�eeueeeals�eeee�uee� emeegencp�and�planned�eespieew�The�eEAoH�peegeams�accepeed�nineepmeheee�eu�ehe� eeueeealsw�tne�peesen�eas�nee�eepeeeed�and�ehe�ene�peesen�ehe�eas�nee�accepeed�eas� eeueeeed�uee�nenmeEAoH�seevicesw�The�eEAoH�eeams�eespended�appeepeiaeelpw�The�DHHDS� has�nee�made�ehe�daea�availalle�uee�ehe�liese�riaeeee�eu�la15w� Conclusion:�The�oemmeneealehss�cempliance�eieh�Section 6.b.ii.B cannee�le�deeeemined� eieheie�ehe�daea�uee�la15�r1w�DHHDS�cannee�peevide�ehis�daeaw�This�alse�places�ehem�eie�eu� cempliance�eieh�Seceien�e.wow� � C. Mobile crisis team members adequately trained to address the crisis shall work with law
en orcement personnel to respond i an individual comes into contact with law en orcement
ae�eeueeeals�ueem�lae�enueecemene�aee�eepeeeed�in�eiehee�eu�ehe�niaeeees�in�ehe�eepeeeing� peeiedw�eegien�ee�did�nee�eepeee�ehis�inueemaeien�in�la15�r1w� � eegiens�eepeee�en�eeaining�ee�lae�enueecemene�peesennelw�A�eeeal�eu�266�lae�enueecemene� peesennel�eeee�eeained�dieing�ehe�eepeeeing�peeiedw�eegien�r�eeained�140m�ehich� eepeesenes�52%�eu�ehe�euuicees�eeainedw��eegien�eee�eeained�58�euuiceesm�ehich�is�22%�eu�ehe� nimlee�eeainedw�eegien�er�did�nee�eeain�anp�lae�enueecemene�peesennelw�This�vaeiaeien�in� ehe�nimlee�eu�lae�enueecemene�euuicees�eeained�aceess�eegiens�demenseeaees�ehae�eheee�is� ne�censiseene�eeniieemene�lp�DHHDS�ee�peevide�ehis�eeainingw�Seme�eu�ehe�individials� eevieeed�as�paee�eu�ehe�individial�eeviee�had�seveeal�ineeeaceiens�eieh�pelice�euuicees�ehae� eeee�called�lp�eiehee�a�uamilp�memlee�ee�peevideew�This�appeaes�ee�le�a�cemmen�peaceice� in�rieginia�ee�help�addeess�ehe�saueep�eu�individials�ehe�enpeeience�a�ceisis�and�eehees�eieh� ehem�ehep�ineeeacew�This�manes�ie�meee�ceieical�ehae�lae�enueecemene�euuicees�aee� nneeledgealle�aleie�eEAoH�seevices�and�hee�ee�eespend�ee�individials�eieh�eD/DD�ehe� aee�in�ceisisw� � The�DHHDS�ceneinies�ee�nee�eespend�ee�ehe�endependene�eevieeeess�eeniese�ee�develep�a� plan�ee�insiee�ehae�all�lae�enueecemene�depaeemenes�eeceive�eeaining�in�ehe�eEAoH� peegeamw�Te�daee�eheee�has�leen�ne�plan�silmieeed�ehae�peevides�a�schedile�lp�ehen�a� medile�aleie�eEAoH�eill�le�ueemallp�added�ee�all�oeT�eeaining�ee�eill�le�euueeed�ee�all�lae� enueecemene�depaeemenes�eheeigh�aneehee�meehedw�� �

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 75 of 152 PageID# 5628

� Conclusion:��The�eegiens�aee�maning�peegeess�lp�peeviding�eeaining�lie�e�de�nee�uind�ehe� oemmeneealeh�in�cempliance�eieh�Section 6.ii. C�ineil�eheee�is�an�implemeneaeien�and� schedile�ee�eeain�all�lae�enueecemene�depaeemenes�ehae�is�cempleeed�in�a�eeasenalle�eime� peeiedw�

D. Mobile crisis teams shall be available 24 hours, 7 days per week to respond on-site to crises.
As�eepeeeed�eaeliee�in�Seceien�4�ehe�eEAoH�aelile�ceisis�eeams�aee�availalle�aeeind�ehe� clecn�and�eespend�ae�euu�heies�as�eepeeeed�uee�la14�r4w�Dieing�ehe�la14�r4�eepeeeing� peeied�ehe�oSH�ES�eeams�eeueeeed�sin�individials�ee�eEAoHm�eepeeseneing�8%�eu�ehe� eeueeealsw�Dieing�la15�r1�ehe�oSH�ES�eeams�eeueeeed�seven�individials�eepeeseneing�5%�eu� ehe�eeueeealsw� � Dieing�la14�r4�sevenepmseven�ceisis�assessmenes�eeee�cendiceedw�leeep�H52%h�eu�ehe� sevenepmseven�ceisis�assessmenes�eeee�cendiceed�in�ehe�individialss�hemem�an�11%� inceease�evee�ehe�peevieis�eepeeeing�peeiedw�Aneehee�eighe�individials�eeee�assessed� eheeigh�eelephene�censileaeienw�aineeeen�individials�had�ee�leave�eheie�hemes�ee�le� assessed�ae�an�emeegencp�eeem�ee�ehe�STAeT�euuicem�eieh�ehe�maveeiep�evaliaeed�in�ehe�Eew� en�la14�r4�nine�eu�individials�eeee�eeceeded�en�ehe�eehee�ee�ineepeeeed�caeegeepw��This�is� 12%�eu�ehe�eeeal�and�has�leen�a�censiseene�peellem�eieh�peevieis�eepeeesw�ee�eill�le�helpuil� iu�uieiee�eepeees�can�peevide�an�enplanaeien�eu�ehe�6teheeg�caeegeep�and�iu�DHHDS�uellees� ip�en�ehese�in�ehe�6oneepeeeedg�caeegeep�uee�all�aeeas�eu�eepeeeingw�� � DHHDS�cannee�eepeee�inueemaeien�aleie�eheee�ceisis�assessmenes�eeee�cendiceed�uee� la15�r1w�This�needs�ee�le�a�daea�elemene�in�ehe�nee�eepeeeing�eeel�ehe�DHHDS�is�designingw� � Conclusion1��oempliance�eieh�Section III.C.6.b.ii.D cannee�le�deeeemined�eieheie�ehe�daea� uee�la15�r1w� � � E. Mobile crisis teams shall provide in-home crisis support or a period o up to three days,
with the possibility o 3 additional days
DHHDS�is�nee�celleceing�and�eepeeeing�daea�en�ehe�ameine�eu�eime�ehae�is�deveeed�ee�a� paeeicilae�individialw��All�eegiens�peevided�individials�eieh�meee�ehan�eheee�daps�en� aveeage�eu�inmheme�sippeee�seevices�eieh�ehe�encepeien�eu�eegien�ee�in�la14�riaeeee�4w� eegiens�peevided�cemminiep�lased�ceisis�seevices�as�uellees1�� � Region I: twelve individuals for an average of seven days Region II: seventeen individuals for an average of one day Region III: twenty-five individuals for an average of thirteen days Region IV: forty individuals for an average of four days Region V: 121 individuals for an average of three days
Dieing�ehe�la15�riaeeee1�ehe�eegiens�peevided�cemminiep�lased�ceises�seevices�as� uellees1�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 76 of 152 PageID# 5629
� � � Region I: provided data in percentages with no total number Region II: nine individuals for an average of four days Region III: eighteen individuals for an average of fourteen days Region IV: thirty-two individuals for an average of four days Region V: provided data in percentages with no total number
eegien�r�seeved�ehe�mese�individials�ising�cemminiep�lased�ceisis�seevicesw��eegiens�vaep� in�ehe�nimlee�eu�individials�seeved�and�ehe�eeeal�nimlee�eu�daps�eu�cemminiep�lased�ceisis� seevicesw�eegien�ee�seeved�eeenepmsin�individials�peeviding�uiuepmeheee�daps�aceess�leeh� niaeeeesm�eegien�eee�seeved�ueeepmeheee�individials�peeviding�577�daps�aceess�leeh�niaeeees� and�eegien�er�seeved�sevenepmeee�individials�peeviding�288�daps�eu�cemminiep�lased� ceisis�seevicesw��eegien�r�seeved�ehe�mese�individials�and�euueeed�363�daps�eu�seevices� dieing�vise�ene�niaeeeew�� A�similae�paeeeen�eu�dispaeiep�in�ehe�nimlee�eu�individial�seeved�and�ehe�nimlee�eu�daps� ehe�cemminiep�lased�ceisis�seevice�eas�euueeed�eas�evidence�in�ehe�lase�eepeee�uee�ehe� peevieis�eee�niaeeees�H10/13m12/13�and�1/14m3/14hw�This�uinding�dees�nee�impace� cempliance�lie�leings�in�ee�nieseien�eeenlead�eu�ehe�eEAoH�seauu�and�eheehee�eieeeach� and�nneeledge�aleie�ehe�peegeam�vaeies�aceess�ehe�eegiensw� � Conclusion:�The�oemmeneealeh�is�in�cempliance�eieh�ehe�eeniieemene�eu�Section III.6.C.b.ii.E. �
C. By June 30, 2013 the Commonwealth shall have at least two mobile crisis teams in 
 each region to response to on-site crises within two hours 
 H. By June 30, 2014 the Commonwealth shall have a su icient number o mobile crisis 
 teams in each Region to respond on site to crises as ollows: in urban areas, within one hour, 
 and in rural areas, within two hours, as measured by the average annual response time. 

eegiens�have�nee�ceeaeed�nee�eeamsm�lie�have�added�seauu�ee�ehe�eniseing�eeamsw�The�added� seauu�has�nee�eesileed�in�siuuiciene�capaciep�ee�peevide�ehe�needed�ceisis�eespense�eiehin� eee�heies�as�eeniieedw�Dieing�la14�r4�eheee�eeee�sevenepmseven�eeueeeals�uee�ceisis� ineeeveneien�uee�uiuepmseven�individialsw�The�eegiens�eespended�ee�ehieepmuive�H45%h�eu� sevenepmseven�eenieses�in�less�ehan�eee�heies�and�ehieepmueie�in�evee�eee�heiesw�The� eespense�eime�eas�nee�eepeeeed�uee�eighe�eu�ehe�eeueeealsw�DHHDS�did�nee�meee�ehe� enpeceaeien�eu�eespending�eiehin�2�heiesw��� � This�lecame�a�meee�seeingene�eeniieemene�as�eu�eine�30m�2014�ehen�ehe�eeams�eeee� enpeceed�ee�eespend�ee�eenieses�ueem�ielan�aeeas�in�less�ehan�ene�heie�and�eenieses�in� eieal�aeeas�in�less�ehan�eee�heiesw�The�DHHDS�eepeees�ehae�eegiens�ee�and�er�aee�ielan� aeeas�and�sheild�meee�ehe�enpeceaeien�eu�eespending�ee�a�ceisis�eeueeeal�eiehin�ene�heiew� The�eespense�eaees�uee�la15�r1�aee�as�uellees1� � Region II:�26�eeueeeals�eespended�ee�in�ene�heie�ee�lessm�uive�eespended�ee�in�meee�ehan�
 ene�heie�


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 77 of 152 PageID# 5630

� Region IV1�Teenepmnine�eeueeeals�eespended�ee�in�ene�heie�ee�lessm�uive�eespended�ee�in� meee�ehan�ene�heie� � en�eegien�ee�19%�and�in�eegien�er�15%�eu�ehe�individials�eeee�nee�eespended�ee�in�ehe�eime� ehe�Seeelemene�Ageeemene�eeniieesw�� � eegiens�em�eeem�and�r�aee�eieal�eegiens�ehae�aee�eeniieed�ee�eespend�ee�ceises�in�eee�heies�ee� lessw�eegiens�e�and�eee�mee�ehis�eeniieemene�uee�all�lie�ene�individial�eachw�eegien�r�eas� inalle�ee�eespend�in�eee�heies�uee�uive�eu�ies�eeueeealsw�The�aveeage�eespense�eime�eas� eighepmnine�miniees�uee�eegien�em�sinep�miniees�uee�eegien�eeem�and�sinepmuive�miniees�uee� eegien�rw� � Conclusion1�The�oemmeneealeh�eemains�eie�eu�cempliance�eieh�Section III.C.6.b.ii.C. The� oemmeneealeh�ee�daee�is�in�cempliance�eieh�Section III.C.6.b.ii.H lie�ies�aveeage�eespense� eime�eill�need�ee�le�evaliaeed�evee�ehe�uiscal�peaew� � Recommendations1�The�STAeT�eeams�aee�enpeceed�ee�eespend�meee�niicnlp�ee�ceisis� eenieses�ueem�individials�living�in�ielan�aeeas�seaeeing�in�la15w�The�oemmeneealeh�did� nee�ceeaee�eee�ee�meee�eeams�in�each�eegien�as�ehe�Seeelemene�Ageeemene�eeniieedw�ee� inseead�added�memlees�ee�ehe�eniseing�eeam�in�each�eegienw�Heeevee�ehe�oemmeneealeh� ceneinies�ee�le�nenmcempliane�eieh�ehis�eeniieemenew�The�oeiee�sheild�eeniiee�ehe� oemmeneealeh�ee�uind�and�develep�addieienal�eeams�ee�hiee�eemeee�seauu�in�eegiens�ehae� ceneinie�ee�le�inalle�ee�meee�ehe�eespense�enpeceaeiens�lp�ehe�end�eu�ehe�nene�eeviee� peeiedw� � �
iii. Crisis Stabilization programs
A. Crisis stabilization programs o er a short-term alternative to institutionalization or hospitalization or individuals who need inpatient stabilization services. B. Crisis stabilization programs shall be used as a last resort. The state shall ensure that, prior to trans erring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has irst attempted to resolve the crisis to avoid an out-o -home placement, and i that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement. C. I an individual receives crisis stabilization services in a community-based placement instead o a crisis stabilization unit, the individual may be given the option o remaining in placement i the provider is willing to serve the individual and the provider can meet the needs o the individual as determined by the provider and the individual's case manager. D. Crisis stabilization programs shall have no more than 6 beds and length o stay shall not exceed 30 days.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 78 of 152 PageID# 5631

� C. By June 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each region as determined to meet the needs o the target population in that region.

All�eegiens�nee�have�a�ceisis�sealilinaeien�peegeam�peeviding�leeh�emeegencp�and�planned�

eespieew�All�eegiens�have�sin�leds�availallew��

�

eegien�er�eemains�in�ies�eempeeaep�lecaeienw�The�heme�ehae�e�eepeeeed�eas�lecaeed�in�ehe�

lase�eepeeeing�peeied�ee�seeve�as�ehe�peemanene�siee�uee�ehe�ceisis�sealilinaeien�inie�ceild�

nee�le�piechasedw�The�DHHDS�seauu�e�ineeevieeed�did�nee�indicaee�anp�paeeicilae�iegencp�ee�

uind�a�peemanene�cemminiep�lecaeien�aleheigh�ehe�eegien�ceneinies�ee�leenw�aemlees�eu�

ehe�eegienal�Adviseep�oeincil�ehae�e�spene�ee�aee�eeeilled�lp�ehe�cieeene�lecaeien�die�ee�

leing�lecaeed�en�a�campis�eieh�eehee�uacilieiesw�

�

e�visieed�ehe�oTH�in�eegien�rw�ee�is�in�a�levelp�seeeing�ehae�is�veep�siiealle�uee�ehe�piepese�eu�

ehe�peegeamw�ee�is�nicelp�appeineed�and�maineained�eellw�endividials�have�peivaee�ledeeems�

and�eheee�is�siuuiciene�space�inside�ehe�heme�and�eiedeees�uee�visieees�ee�cheese�eimes�ehep�

eish�ee�le�en�eheie�eenw�Seauus�aee�enehisiaseic�aleie�ehe�peegeamw�The�visieees�eeee�all�en�

eieings�in�ehe�cemminiep�ehen�e�eeieed�ehe�seeeing�se�e�didnse�have�ehe�chance�ee�ineeeace�

eieh�ehemw�

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Table 2 simmaeines�ehe�nimlee�eu�individials�ehe�ised�ehe�oeisis�Sealilinaeien�onies�

dieing�ehe�eee�niaeeees�ceveeed�lp�ehis�eevieew�The�eegiens�ceneinie�ee�peevide�leeh�

emeegencp�and�planned�eespiee�in�ehe�eEAoH�oeisis�Sealilinaeien�oniesw��The�peegeams�nee�

eepeee�en�hee�manp�individials�ise�ehe�peegeam�as�a�seep�deen�ueem�a�pspchiaeeic�

hespieal�ee�eeaining�scheelw�Theee�eeee�a�eeeal�eu�319�visies�ee�ehe�oTH�peegeamsw�online�ehe�

lase�eepeeeing�peeied�eheee�eeee�meee�visies�uee�ceisis�sealilinaeien�H151h�ehan�uee�ceisis�

peeveneien�H128hw�leeep�individials�ised�ie�as�a�seep�deen�sieew��This�is�a�pesieive�indicaeien�

eu�ehe�eEAoH�peegeamss�euueees�ee�eeen�eieh�individials�ehe�eeniiee�hespiealinaeien�ee�

help�ehem�eeeien�ee�ehe�cemminiep�ising�euueceive�eeansieien�seevicesw�ee�is�alse�pesieive�

ehae�DHHDS�ceneinies�ee�euuee�planned�eespiee�in�ehe�eEAoH�oeisis�Sealilinaeien�onies�uee�

individials�ae�eisn�eu�ceisesw�leie�eu�ehe�uive�eegiens�eepeee�seeving�ae�lease�ene�individial�

ueem�aneehee�eegienw�The�individials�in�ehe�planned�celimns�inclide�ceisis�peeveneien�Hehe�

nimlee�leueee�ehe�slashh�and�seep�deen�Hehe�nimlee�aueee�ehe�slashh�isew�

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TABLE 2: INDIVIDUALS USING THE REACH CRISIS STABILIZATION UNITS DURING FY14

FOURTH QUARTER AND FY15 FIRST QUARTER

REGION Q4

Q4

Q1

Q1

Total

Total

Emergency Planned Emergency Planned Emergency Planned

I

11

13/2

14

6/ 3

25

19/5

II

10

19 /2

15

17/0

25

36/2

III

15

18/6

11

16/ 5

26

34/11

IV

15

4/9

35

4/ 7

50

8/16

V

12

14/3

13

17/3

25

31/6

TOTALS

63

68/22

88

60/18

151

128/40

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 79 of 152 PageID# 5632

� �DHHDS�alse�eepeees�en�ehe�individials�ehe�aee�maineained�in�eheie�heme�seeeings�ehile� ehe�ceisis�sieiaeien�is�sealilinedw�The�eegiens�ceneinie�ee�meee�ehe�needs�eu�ehe�maveeiep�eu� individials�eeueeeed�uee�ceisis�sealilinaeien�in�ehe�cemminiep�maineaining�individials�in� eheie�seeeing�and�ehen�needed�peeviding�cemminiepmlased�sippeeesw�eegiens�eem�eeem�er�and� r�maineain�evee�98%�eu�ehe�individials�eeueeeed�uee�cemminiepmlased�sippeee�in�eheie�een� hemes�peeviding�cemminiepmlased�sippeees�ehenevee�neededw�HAleheigh�eegien�rss�daea� map�le�inaccieaee�ee�deuined�diuueeenelp�since�ie�alse�eepeees�individials�ising�ehe�oTHhw�� The�DHHDS�sheild�deeeemine�iu�ies�daea�deuinieiens�aee�applied�censiseenelpw�� � tveeall�ehe�eEAoH�peegeam�is�meeeing�ies�geal�eu�peeviding�cemminiepmlased�ceisis� sippeees�and�ising�eie�eu�heme�ceisis�sippeees�as�a�lase�eepeeew� � Theee�is�ne�indicaeien�ehae�anp�eehee�cemminiep�placemenes�eeee�ised�uee�ceisis� sealilinaeien�dieing�ehe�eepeeeing�peeied�uee�individials�ehe�ceild�nee�eemain�in�eheie� heme�seeeingw�The�Seeelemene�Ageeemene�eeniiees�ehe�seaee�ee�aeeempe�ee�lecaee�aneehee� cemminiep�aleeenaeive�leueee�ising�ehe�eEAoH�oeisis�Sealilinaeien�oniew�eEAoH�eeams�aee� aeeempeing�ee�maineain�individials�in�eheie�een�hemes�eieh�sippeees�as�ehe�peeueeeed� appeeach�ee�sealiline�semeene�ehe�is�in�ceisisw�� � The�eEAoH�peegeams�aee�nee�cieeenelp�seening�cemminiep�eesideneial�vacancies�leueee� ising�ehe�oeisis�Sealilinaeien�oniesw��en�mp�peeuessienal�epinien�ising�vacancies�in� cemminiep�eesideneial�peegeams�is�nee�a�lese�peaceicew�Dew�Heaslep�sippeees�ehis� peespeceivew�mlacing�an�individial�ehe�is�in�ceisis�inee�a�heme�shaeed�lp�eehee�individials� ehe�have�e/DD�is�peeeneiallp�desealilining�ee�ehese�individials�uee�ehem�ehis�is�hemew� Addieienallp�ehe�peaceice�peeeneiallp�leaves�ehe�individial�ehe�is�in�ceisis�in�an�inuamiliae� hemem�in�ehe�caee�eu�a�seauu�peesen�eieh�ehem�he/she�is�inuamiliae�and�ehe�is�nee�eeained� ee�meee�ehe�needs�eu�semeene�eieh�a�dial�diagnesis�ehe�is�enpeeiencing�a�ceisisw��e�eill�nee� eecemmend�a�deeeeminaeien�eu�cempliance�eegaeding�ehis�peevisien�ineil�ehe�maeeies� disciss�ie�and�decide�iu�ehep�eane�ee�maineain�ie�as�a�eeniieemene�eu�ehe�Ageeemenew��e� eecemmend�ehae�ie�nee�le�a�eEAoH�peaceicew� � The�DHHDS�is�ee�deeeemine�iu�eheee�is�a�need�uee�addieienal�ceisis�sealilinaeien�inies�ee�meee� ehe�needs�eu�individials�in�ehe�eaegee�pepilaeienw��All�eu�ehe�eegiens�have�inised�led�daps� in�leeh�niaeeees�eu�ehis�eepeeeing�peeiedw�en�la14�r4�ehep�eange�ueem�266m324�eieh�ehe� encepeien�eu�eegien�eee�ehae�had�enlp�eigheeen�daps�inisedw�The�uive�eegiens�had�similae� availaliliep�in�la15�r1�eieh�a�eange�eu�179m342�inised�dapsw�Tee�eegiens�did�nee�have� anpene�en�ehe�haieing�aisew�The�eehee�eheee�eegiens�had�a�eaieing�lise� in�enlp�ene�eu�ehe�eee� niaeeees�and�ie�eas�nee�meee�ehan�eheee�individialsw� � All�eegiens�have�inised�led�daps�ae�ehe�oTH�peegeamsw�This�seems�ee�indicaee�ehae�ae�ehis� eime�addieienal�ceisis�sealilinaeien�inies�aee�nee�neededw��eegiens�have�eneigh�capaciep�ee� assise�eehee�eegiens�iu�dieing�ceeeain�eimes�ene�peegeam�is�uillp�eccipiedw�leie�eegiens�did� seeve�semeene�ueem�aneehee�eegien�dieing�ehe�eepeeeing�peeiedw� � Conclusion:�The�oemmeneealeh�eu�rieginia�is�in�cempliance�eieh�Seceiens�eeewow6wlwiiiwAm�Hm� Dm�Em�l�and�Aw�e�eill�nee�mane�a�deeeeminaeien�aleie�Seceien�eeewow6wlwiiiwo�ineil�ehe�maeeies�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 80 of 152 PageID# 5633

� mane�a�decisien�aleie�ehe�peaceice�eu�ising�cemminiep�eesideneial�eeseieces�uee�ceisis� sealilinaeienw�� � � SECTION 6: SUMMARY The�oemmeneealeh�eu�rieginia�ceneinies�ee�mane�peegeess�ee�implemene�a�seaeeeide�ceisis� eespense�spseem�uee�individials�eieh�e/DDw�ee�is�peemising�ehae�DHHDS�has�develeped�a� plan�ee�enpand�ee�peevide�ceisis�ineeeveneien�and�peeveneien�ee�childeen�and�adelescenesw�ee� appeaes�ehae�eheee�is�a�smeeeh�eeansieien�ee�ehe�eEAoH�peegeam�and�enceieaging�ehae� DHHDS�eill�ceeaee�seandaeds�and�ceneinied�enpeceaeiens�uee�seauu�eeainingw�� � The�oemmeneealeh�is�in�cempliance�eieh�ehe�uelleeing�Seceiens�eu�ehe�Seeelemene� Ageeemene1� � III.C.6.b.i.A III.C.6.b.i.B III.C.6.b.ii.A III.C.6.b.ii.E III.C.6.b.ii.H III.C.6.b.iii.A III.C.6.b.iii.B III.C.6.b.iii.D III.C.6.iii.E III.C.6.iii.F III.C.6.iii.C
The�oemmeneealeh�is�nee�in�cempliance�eieh�ehe�uelleeing�Seceiens�eu�ehe�Seeelemene� Ageeemene1� � III.C.6.a.i III.C.6a.ii III.C.6.a.iii III.C.6.b.ii.C III.C.6.b.ii.C IX.C.
oempliance�cannee�le�deeeemined�uee�ehe�uelleeing�eeniieemenes�lecaise�eu�a�lacn�eu�daea1� � III.C.6.b.ii.B III.C.6.b.ii.D
eecemmendaeiens�aee�inclided�eheeigheie�ehe�eepeeew�DHHDS�needs�ee�peevide� adminiseeaeive�leadeeship�ee�insiee�ehae�cempeehensive�and�eellmceeedinaeed�ceisis� eespense�seevices�aee�availalle�ee�childeen�and�adelescenes�eieh�eD/D;�ehae�eheee�is�ueemal� eieeeach�ee�ehe�DD�cemminiep;�ehae�ehe�melile�ceisis�eeams�meee�ehe�eeniieed�eime�ee� eespend�ee�ceises;�ehae�oSH�ES�seauum�oase�aanagees�and�lae�enueecemene�peesennel�aee� eeained�aleie�ehe�eEAoH�peegeam;�and�ehae�DHHDS�develep�a�cempeehensive�daea�eepeee�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 81 of 152 PageID# 5634

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 82 of 152 PageID# 5635
 �
APPENDIX C 
 INTEGRATED DAY ACTIVITIES 

AND 
 SUPPORTED EMPLOYMENT 

By: Kathryn du Pree MRP 


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 83 of 152 PageID# 5636 �
2014 REVIEW OF THE INTEGRATED DAY ACTIVITIES AND 
 SUPPORTED EMPLOYMENT REQUIREMENTS OF THE US v 
 COMMONWEALTH OF VIRGINIA'S SETTLEMENT AGREEEMENT 

REVIEW PERIOD: APRIL 2014- OCTOBER 6, 2014
SUBMITTED TO DONALD FLETCHER 
 INDEPENDENT REVIEWER 


PREPARED BY: KATHRYN DU PREE, MPS 
 EXPERT REVIEWER 
 OCTOBER 31, 2014 


TABLE OF CONTENTS

Section I: Overview of Requirements

3

Section II: Purpose of the Review

4

Section III: The Review Process

4

Section IV: The Employment Implementation Plan 6

Section V: Setting the Employment Targets

8

Section VI: The Plan for Increasing Opportunities for Integrated

Day Activities

12

Section VII: Review of the SELN and the Inclusion of

Employment in the Person-Centered ISP Planning Process 15

VIII: Review of the Regional Quality Councils

23 


Section IX: Summary

24 


Table 1: Employment Targets for FY15 - FY19

9 


Table 2: Progress Towards Meeting the Employment First Target of the 


Number of ISE Participants

10 


Table 3: Summary of the Individual Reviews for Implementing 


Employment First

18 


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 84 of 152 PageID# 5637

� I. OVERVIEW OF REQUIREMENTS Denald�lleecheem�ehe�endependene�eevieeee�has�ceneeaceed�eieh�uaehepn�di�meee�as�ehe� Enpeee�oensileane�ee�peeueem�ehe�eeviee�eu�ehe�emplepmene�seevices�eeniieemenes�eu�ehe� Seeelemene�Ageeemene�uee�ehe�eime�peeied�4/7/14�4�10/6/14w�The�eeviee�eill�deeeemine� ehe�oemmeneealeh�eu�rieginiass�cempliance�eieh�ehe�uelleeing�Seceien�eeewow��eeniieemenes1� �
7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment. 7.b. The Commonwealth shall maintain its membership in the State Employment Leadership Network (SELN) established by NASDDDS; establish state policy on Employment First or the target population and include a term in the CSB Per ormance Contract requiring application o this policy; [use] the principles o employment irst include o ering employment as the irst and priority service option; providing integrated work settings that pay individuals minimum wage; discussing and developing employment options with individuals through the person- centered planning process at least annually; and employ at least one employment services coordinator to monitor the implementation o employment irst practices. 7.b.i. Within 180 days the Commonwealth shall develop an employment implementation plan to increase integrated day opportunities or individuals in the target population including supported employment, community volunteer activities, and other integrated day activities. The plan shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
B. Establish, or individuals receiving services through the HCBS waivers: 1. Annual baseline in ormation regarding:
a. The number o individuals receiving supported employment; b. The length o time people maintain employment in integrated work settings; c. The amount o earnings rom supported employment; d. The number o individuals in pre-vocational services as de ined in 12 VAC 30-120-211
in e ect on the e ective date o this Agreement; and e. The lengths o time individuals remain in pre-vocational services
2. Targets to meaning ully increase:
a. The number o individuals who enroll in supported employment in each year; and b. The number o individuals who remain employed in integrated work settings at least 12 months a ter the start o supported employment � II. PURPOSE OF THE REVIEW This�eeviee�eill�liild�euu�ehe�eeviee�cempleeed�lase�speing�uee�ehe�eeviee�peeied�eheeigh� 4/6/14�and�ehe�eecemmendaeiens�ehe�endependene�eevieeee�made�in�his�lase�eepeee�as�a� eesile�eu�ehe�cenclisiens�and�uindings�eu�ehae�eeviee�eu�Emplepmene�Seevicesw�Ae�ehae�eime� ehe�endependene�eevieeee�deeeemined�ehae�ehe�oemmeneealeh�eas�in�cempliance�eieh1� 7wl;�7wlw1wA;�7wHw1wam�lm�dm�e;�and�7wHw2wam�lw�eecemmendaeiens�eeee�made�ee�uieehee�develep� ehe�eneegeaeed�Dap�Aceivieies�emplemeneaeien�mlanm�peevide�eeaining�and�eechnical� assiseance�ee�oase�aanagees�ee�meee�ehe�eeniieemenes�ee�euuee�individials�emplepmene� seevices�and�implemene�ehe�seevices�as�paee�eu�ehe�annial�eSm�eevieem�and�seeengehen�ehe�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 85 of 152 PageID# 5638

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III. REVIEW PROCESS e�eevieeed�eelevane�decimenes�and�ineeevieeed�nep�adminiseeaeive�seauu�eu�DHHDSm� memlees�eu�ehe�SEaam�and�a�memlee�eu�ehe�tDEm�risien�riese�eeam�ee�peevide�ehe�daea� and�inueemaeien�necessaep�ee�cempleee�ehis�eeviee�and�deeeemine�cempliance�eieh�ehe� eeniieemenes�eu�ehe�Seeelemene�Ageeemenew�enieiallp�a�nicneuu�meeeing�eas�held�in�eilp�2014� eieh�ehe�endependene�eevieeeem�ehe�Enpeee�eevieeeem�Heaehee�aeeeenm�meggp�Halanm�and� Adam�Sass�ee�eeviee�ehe�peecess�and�claeiup�anp�cempenenes�leueee�inieiaeing�ehe�eevieew� � Document Review1�Decimenes�eevieeed�inclide1�
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Interviews1�The�Enpeee�eevieeee�ineeevieeed�Adam�Sass�Emplepmene�Seevices�Specialise� ueem�DHHDSm�memlees�eu�ehe�SEaam�Seeena�aeee�tDEm;�oennie�oecheanm�Assiseane� oemmissienee�uee�Develepmeneal�Seevicesm�meggp�Halanm�Seeelemene�Ageeemene� oeeedinaeeem�and�Heaehee�aeeeenm�Dieeceee�eu�oemminiep�Sippeee�Seevicesm�DHHDS� Review of Individual Service Plans (ISPsh1�The�Enpeee�eevieeee�eevieeed�a�eandem� sample�eu�eSms�ee�deeeemine�iu�emplepmene�is�leing�euueeed�as�ehe�uiese�epeien�ee�individials� in�ehe�eaegee�pepilaeienw��This�eas�accemplished�lp�eandemlp�seleceing�a�sample�eu�eeenepm

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 86 of 152 PageID# 5639

� ueie�individials�ueem�ehe�uive�eegiens�ueem�ehe�uelleeing�geeips1�individials�ehe�have� leen�en�ehe�haieing�aise�and�have�eeceived�uinding�uee�dap�seevices�eiehin�ehe�eepeeeing� peeied�H15h;�and�individials�aleeadp�in�a�Aeeip�Sippeeeed�Emplepmene�ee�dap�seevice� seeeing�ehe�had�an�annial�eSm�meeeing�eiehin�ehe�eeviee�peeied�H9hw��Denald�lleechee�and� his�eeviee�eeam�eevieeed�ehe�seevices�eu�eandemlp�seleceed�individials�ehe�had� eeansieiened�ueem�ehe�Teaining�oeneees�ee�ehe�cemminiepw�Thep�gaeheeed�inueemaeien�aleie� emplepmene�planning�and�seevices�ehae�aee�simmaeined�sepaeaeelp�in�ehe�endependene� eevieeeess�eepeee�ee�ehe�oeieew�� � IV. THE EMPLOYMENT IMPLEMENTATION PLAN 7.b.i.A. Within 180 days the Commonwealth shall develop an employment implementation plan to increase integrated day opportunities or individuals in the target population, including supported employment, community volunteer and recreational activities, and other integrated day activities. The plan shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth: Adam�Sassm�Emplepmene�Specialisem�DHHDS�ceneinies�ee�peevide�eneensive�eeaining�en�ehe� Emplepmene�liese�enieiaeive�in�rieginiaw�en�ehis�eepeeeing�peeiedm�Apeil�7m�2014mtceelee�6m� 2014�aew�Sass�peeseneed�ee�meee�ehan�640�individials�ae�nimeeeis�meeeingsm�cenueeences� and�ehe�eegienal�simmiew�meeseneaeiens�have�leen�made�ee�eD�oase�aanagees;�peevidees;� oSH�seauu�and�Teaining�oeneee�seauuw��aanp�eu�ehe�peeseneaeiens�have�leen�made� cellaleeaeivelp�eieh�DAeS�seauuw�DHHDS�seill�did�nee�inclide�uamilies�as�a�eaegee�geeip�ee� eeceive�ehis�eeaining�dieing�ehe�eepeeeing�peeied�as�eas�eeie�in�ehe�peevieis�eepeeeing� peeiedw� � �The�handeie�maeeeials�and�ealning�peines�indicaee�ehae�ehe�philesephp�eu�emplepmene�uiese� and�ies�eenees�aee�addeessedw�aew�Sass�ises�ehe�eppeeeinieies�uee�ehese�peeseneaeiens�ee� ceeaee�cemminiep�linnages�and�paeeneeships�ee�uieehee�ehe�accepeance�eu�ehe�emplepmene� uiese�philesephp�and�enceieage�implemeneaeienw� � Dieing�ehe�lase�eeviee�e�eepeeeed�ehae�ehe�SEaa�silmcemmieeee�cempleeed�a�medile�en� emplepmene�uee�case�manageesw�Since�ehae�eime�DHHDS�has�made�ie�meee�cempeehensive�ee� inclide�meee�inueemaeien�aleie�ineegeaeing�ehe�discissiens�eu�emplepmene�in�ehe�peesenm ceneeeed�planning�peecessm�ee�addeess�ehe�nieseien�eu�leneuies�and�ee�peevide�meee� eeseieces�uee�case�managees�as�ehep�seen�ee�implemene�eheie�eespensililieies�ee�help� individials�leceme�empleped�deing�eeen�ehae�is�eu�ineeeese�ee�ehemw�ee�has�leen�pileeed� eieh�a�uee�geeips�eu�oase�aanagees�and�is�availalle�en�ehe�DHHDS�eelsieew�DHHDS�eepeees� ehae�oase�aanagees�uee�leeh�eD�and�DD�eill�le�eeniieed�ee�eane�ehe�eeainingw��Ensieing�ehae� oase�aanagees�aee�eell�eeained�sheild�impeeve�ehe�oemmeneealehss�cempliance�eieh�ies� eespensililiep�ee�ensiee�ehae�ehep�disciss�emplepmene�epeiens�eieh�all�individials�and� eheie�Aieheeined�eepeeseneaeives�ceveeed�lp�ehe�ageeemene�and�help�ehem�ee�enpleee�and� uind�appeepeiaee�emplepmene�eppeeeinieiesw�� � Conclusion and Recommendations1�DHHDS�is�in�cempliance�eieh�peevisien�7.b.i.A�ehae�ie� peevides�eegienal�eeaining�en�ehe�Emplepmene�liese�pelicp�and�seeaeegiesw�e�ceneinie�ee� eecemmendm�heeeveem�ehae�ehe�oemmeneealeh�deeeemine�hee�lese�ee�shaee�ehis�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 87 of 152 PageID# 5640

� inueemaeien�eieh�individials�and�eheie�uamilies/Aieheeined�eepeeseneaeivesm�ehese�ehese� lives�eill�le�mese�impaceed�lp�implemeneaeien�eu�ehe�Emplepmene�liese�pelicp�peinciple� ehae�sippeeeed�emplepmene�is�ehe�uiese�and�peieeiep�seevice�epeienw��The�oemmeneealeh� sheild�eepeee�in�ehe�uieiee�en�ies�eieeeach�ee�ehis�geeipw�� � 7.b.i.B.a-e: The Commonwealth is to develop an employment implementation plan to increase integrated day opportunities or individuals in the target population including supported employment, community volunteer activities, and other integrated day activities. The plan shall establish, or individuals receiving services through the HCBS waivers:� Annual baseline in ormation regarding:
a. The number o individuals receiving supported employment; b. The length o time people maintain employment in integrated work settings; c. The amount o earning rom supported employment; d. The number o individuals in pre-vocational services; and e. The lengths o time individuals remain in pre-vocational servicesw� � DHHDS�ceneinies�ee�peevide�annial�laseline�inueemaeien�aleie�ehe�nimlee�eu�individials� eeceiving�sippeeeed�emplepmenem�ehe�lengeh�eu�eime�peeple�maineain�emplepmene�in� ineegeaeed�eeen�seeeingsm�ehe�nimlee�eu�individials�in�peemvecaeienal�seevices�and�ehe� lengeh�eu�eime�individials�eemain�in�peemvecaeienal�seevicesw�Theee�ceneinies�ee�le�ne�daea� en�ehe�ameine�eu�eaenings�uee�individialsw� � The�DHHDS�peevides�all�eu�ehis�inueemaeien�en�a�niaeeeelp�lasis�ehae�is�helpuilw�Te�peevide�a� eeiee�sense�eu�seaeis�and�peegeess�ie�is�meee�inueemaeive�ee�enamine�changes�evee�a�peaess� peeied�eu�eimew�� � Individual Employmentm�The�nimlee�eu�individials�eneelled�in�endividial�Emplepmene� has�aceiallp�deceeased�in�ehe�lase�peae�ueem�204�individials�ee�200�individialsw�Theee�eas�a� deep�ee�176�individials�ae�ehe�end�eu�ehe�3ed �niaeeee�eu�2014�and�ehen�an�inceease�in�each�eu� ehe�nene�eee�niaeeees�eu�eigheeen�and�sin�individials�eespeceivelpw�The�nimlee�eu�neelp� eneelled�individials�eanged�ueem�23m43�aceess�ehe�niaeeeesw�aeee�individials�aceiallp� disceneinied�seevices�in�ehe�pase�ueie�niaeeees�H132h�ehan�ehe�inieiaeed�seevices�H128hw�� DHHDS�cannee�eepeee�ehe�eeasens�ehp�individials�disceneinie�eE�seevicesw�Te�le�alle�ee� analpne�ehp�individials�disceneinied�seevices�eeniiees�nneeing�ee�eeild�le�helpuil�ee� nnee�hee�manp�ueind�cempeeieive�emplepmene�and�disceneiniedm�lecaise�ehe�peegeam� eas�siccessuil�and�ehep�ne�lengee�needed�eE�sippeeesw� � Group Supported EmploymentmASE�inceeased�ies�eveeall�eneellmene�lp�eeenepmsin� individials�dieing�ehe�pase�ueie�niaeeeesw�The�eeeal�nimlee�eu�nee�eneellees�dieing�ehe� peae�eeealed�212�ehile�186�disceneinied�seevicesw�The�nimlee�ehae�seepped�eeceiving�ASE� is�signiuicanelp�highee�ehan�ehe�nimlee�eu�nee�eneellees�in�eSw�ee�eeild�le�ineeeeseing�ee� nnee�ehe�eeasens�uee�individials�disceneiniing�ehese�seevices�and�iu�anp�eneelled�in�eEw � � Pre-Vocational Servicesm�endividials�ceneinie�ee�eneell�in�meemrecaeienal�Seevicesw�Dieing� ehe�pase�peae�285�individials�seaeeed�in�ehis�seevice�eppem�and�272�disceneinied� paeeicipaeien�in�meemrecaeienal�Seevicesw��tveeall�ehe�geeeeh�in�ehe�seevice�eas�uiueeenw�ee�

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� appeaes�ehae�286�individials�have�leen�in�meemrecaeienal�Seevices�uee�eeelve�ee�ehieepm eheee�menehsm�sileeaceing�ehe�nimlees�eu�individials�ehe�neelp�eneelled�and�ehese�ehe� disceneinied�seevicesw�meemrecaeienal�Seevices�sheild�le�a�peemciesee�ee�geeipm�individial� ee�cempeeieive�emplepmenew��endividials�sheild�le�ineenselp�leaening�and�acniieing�snills� ehae�assise�ehem�ee�le�emplepallew�The�eime�in�peemvecaeien�sheild�le�individialined�lie� eime�limieedw�ee�is�cenceening�ehae�manp�individials�appeae�ee�le�seicn�in�ehe�peemvecaeienal� epeienw�aanp�appeae�ee�le�in�ehis�seevice�eppe�uee�lengee�ehan�ehe�peae�DHHDS�seipilaees�in� ies�eevised�eaivee�seevice�deuinieiensw� � Conclusion and Recommendations1�The�DHHDS�is�in�cempliance�eieh 7.b.i.B.1.a, d, and e. �e� ne�lengee�uind�DHHDS�in�cempliance�eieh�7.b.i.B.b.�The�daea�ehe�agencp�peevided�aleie�ehe� lengeh�eu�eime�an�individial�seaps�empleped�is�diplicaeive�and�nee�meaninguilw�DHHDS�is� nee�in�cempliance�eieh�7.b.i.cw�ee�is�inalle�ee�peevide�anp�inueemaeien�aleie�ehe�ameine�eu� eaenings�individials�eeceive�in�eEw� � DHHDS�is�nee�maning�peegeess�eeeaeds�eneelling�meee�individials�in�eEw�leeee�individials� eeee�eneelled�in�ehe�pase�ueie�niaeeees�H128h�ehan�in�ehe�peevieis�ueie�niaeeees�H156hw� aeee�individials�aee�enieing�ueem�eE�ehan�aee�eneellingm�ehich�map�ee�map�nee�le�aeeeilieed� ee�leceming�cempeeieivelp�emplepedw�The�SEaa�sheild�le�invelved�in�eevieeing�ehis�daea� en�a�eegilae�lasis�and�assiseing�ehe�DHHDS�ee�analpne�ehe�ceneinied�geeeeh�in�ASE�and� meemrecaeienal�Seevices�ee�deeeemine�iu�eheee�aee�seeaeegies�ehae�can�le�pie�in�place�peiee�ee� ehe�cempleeien�eu�ehe�eaivee�eedesign�ehae�eill�seaee�ee�eien�ehe�cieve�in�rieginia�aeap�ueem� eehee�vecaeienal�epeiens�and�eeeaeds�geeaeee�individialined�emplepmene�uee�ehe�eaegee� pepilaeienw�This�is�an�impeeeane�indeeeaning�iu�ehe�DHHDS�is�geing�ee�le�alle�ee�meee�ehe��� eaegees�ie�has�see�uee�ehe�nene�uive�peaes�ee�inceease�ehe�nimlee�eu�peeple�in�eE�lp�uive� peecene�eu�ehe�eeeal�eu�eveepene�in�adile�dap�seevices�eheeigh�ehe�HoHS�eaivees�in�each�eu� ehe�nene�uive�uiscal�peaesw�DHHDS�eeild�leneuie�ueem�an�engeing�analpsis�eu�ehe�depaeeiees� ueem�ehese�peegeam�eppesw�Te�deeeemine�needed�ceeeeceive�aceiensm�ie�is�esseneial�ee�nnee� ehe�ueeniencp�eu�individials�ehe�disceneinie�seevices�as�an�indicaeien�eu�a�pesieive� eiecemem�iwew�lecaise�eu�eppeeeinieies�uee�meee�ineegeaeed�emplepmenem�ee�a�negaeive� eiecemew� � The�DHHDS�sheild�eepeee�sepaeaeelp�in�uieiee�eepeeeing�peeieds�aleie�ehe�eD�and�DD� eaivees�and�ehe�nimlees�eu�individials�in�eSE�se�ehae�ehe�impace�eu�ehe�Seeelemene� Ageeemene�en�leeh�pepilaeiens�can�le�uelleeed�and�eeacnedw�ee�eemains�impessille�ee�eell� ehe�impace�en�individials�eieh�DD�eu�ehe�emplepmene�eeniieemenes�eu�ehe�Seeelemene� Ageeemene�The�DHHDS�alse�needs�ee�develep�a�eepeee�ehae�peevides�inueemaeien�en�ehe� eages�individials�eaenw�These�aee�eepeae�deeeeminaeiens�eu�nenmcempliancem�and� eecemmendaeiensm�ehae�have�nee�leen�addeessedw�A�nee�eecemmendaeien�is�uee�DHHDS�ee� accieaeelp�eepeee�hee�leng�individials�maineain�eheie�emplepmene�and�hee�leng� individials�seap�in�ASE�and�meemrecaeienal�Seevicesw� � The�maeeies�sheild�decide�ehae�iu�anp�eiecemes�aee�enpeceed�and�eeniieed�in�ehe�uelleeing� aeeas1�ehe�ameine�eu�eaenings;�ehe�nimlee�eu�individials�in�peemvecaeienal�seevices;�and� ehe�lengeh�eu�eime�individials�aee�in�peemvecaeienal�seevicesw�oieeenelp�ehe�Ageeemene�enlp� eeniiees�ehae�DHHDS�eepeee�accieaeelp�en�ehese�daea�elemenesw� �

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����A� 40


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 89 of 152 PageID# 5642

� V. SETTING EMPLOYMENT TARGETS

Sections 7.i.B.2.a and b. require the Commonwealth to set targets to meaning ully increase the number o individuals who enroll in supported employment in each year and the number o individuals who remain employed in integrated work settings at least 12 months a ter the start o supported employment.

The�nee�DHHDS�eaegees�depiceed�in�Talle�1�aee�uee�ehe�eeeal�nimlee�eu�individials�in�eE�uee�

each�eu�ehe�nene�uive�uiscal�peaesw�DHHDS�peeveceed�seaeeing�la15�eieh�204�individials�

eneelled�in�eSEw��The�aceial�nimlee�eas�194w��

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individials�ehe�eeee�eneelled�as�eu�12/31/13w��DHHDS�has�enlp�eneelled�ueeep�meheee�nee�

individials�in�endividial�Emplepmene�in�ehe�liese�riaeeee�eu�2015w�ee�is�nee�pessille�ee�deae�

anp�deuiniee�cenclisien�ueem�peeueemance�in�ene�niaeeeew�ee�is�eu�cenceenm�heeeveem�ehae�

DHHDS�needs�ee�eneell�an�aveeage�eu�175�individials�in�eE�uee�each�eu�ehe�nene�eheee�

niaeeees�ee�eeach�ies�eaegeew�leeepmnine�is�ehe�highese�nimlee�eu�individials�ehe�have�leen�

eneelled�in�anp�enemniaeeee�since�ehe�agencp�seaeeed�eepeeeing�ehis�daea�elemenew�

�

As�indicaeed�in�ehe�peevieis�eepeeem�ehe�DHHDS�has�ee�eane�eimelp�and�eellmplanned�aceien�

ee�addeess�ehe�vaeieis�laeeiees�ee�achieving�ehese�eaegees�iu�ehe�geal�eu�meee�individials�

leing�empleped�in�ineegeaeed�eeen�seeeings�is�ee�le�eealinedw�The�eeen�indeeeap�ee�

eedesign�ehe�eaivees�is�a�ceieical�seepw�Heeevee�implemeneaeien�eu�ehe�eaviee�eevisiens�eill�

nee�seaee�ineil�la16w�The�DHHDS�sheild�desceile�ehe�seeps�ie�plans�ee�eane�ee�inceease�

eneellmene�in�endividial�Emplepmene�lp�a�eeeal�eu�568�individial�lp�ehe�end�eu�ehis�uiscal�

peae�eieheie�ehe�eaivee�eedesignw�The�DHHDS�sheild�ieiline�ehe�enpeeeise�eu�ehe�SEaa�ee�

deuine�ehae�else�needs�ee�le�pie�in�place�and�ehae�can�le�accemplished�leueee�ehe�eedesign�

is�cempleeed�and�implemeneed�se�ehae�peegeess�eeeaeds�achieving�and�siseaining�

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Table 1: EMPLOYMENT TARGETS FOR FY15 - FY19�

liscal�aeae� SE�Teeal� Teeal�in� %�in�SE�ae� %�in�SE�lp� SE�Teeal� enceease�in�

Seaee�eu�la� dap�m�

seaee�eu�la� end�eu�la� End�eu�la� Hase�%�

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ne�Seevices�

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7w79%�

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17w79%� 22w79%�

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1661�

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Increasing the number of individuals in IE:�The�DHHDS�ceeaeed�ehe�geal�uee�ehis�uiscal�

peae�ee�inceease�ehe�nimlee�eu�neelp�eneelled�paeeicipanes�in�eSE�apaee�ueem�ehe�eveeall�

change�ee�ehe�eeeal�nimlee�in�eSE�as�ehae�nimlee�acceines�uee�individials�ehe�eemainm�

leave�and�neelp�eneellw�The�eaegee�ehe�DHHDS�see�ee�achieve�lp�3/31/14�eas�ee�neelp�

eneell�162�individialsw��Ae�ehe�eime�ehe�lase�Emplepmene�Seevices�eepeee�eas�peepaeed�ehe�

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����A� 41

Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 90 of 152 PageID# 5643


�

uinal�inueemaeien�ueem�ehe�niaeeee�ending�3/31/14�eas�nee�availallew�ee�is�inclided�heee�in�

Talle�2w��The�DHHDS�did�nee�achieve�ies�eaegee�eu�eneelling�an�addieienal�162�individials�in�

endividial�Emplepmenew�The�nimlee�in�paeeneheses�eepeesenes�ehe�nimlee�eu�individials�

neelp�eneelled�each�niaeeeew�The�iealicined�nimlees�eepeesene�ehe�cimilaeive�eeeal�aceess�

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Table 2: Progress Towards Meeting The Employment First Target of Increasing the

Number of IE Participants

�

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6/30/13�

9/30/13� 12/31/13� 3/31/14�

3/31/14 Difference

Target

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104H23h�

130 H26h�

162

32 (-)

Individuals in Supported Employment and Pre-Vocational Services:

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����A� 42


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 91 of 152 PageID# 5644

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����A� 43


Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 92 of 152 PageID# 5645

� VI. The Plan for Increasing Opportunities for Integrated Day Activities � 7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment.
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 93 of 152 PageID# 5646

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 94 of 152 PageID# 5647

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 95 of 152 PageID# 5648

� VII. Review of the SELN and The Inclusion of Employment in the Person-Centered ISP Planning Process � III.C.7.b. The Commonwealth shall:
Maintain its membership in the SELN established by NASDDDS. Establish a state policy on Employment First (EF) or this target population and include a term in the CSB Per ormance Contract requiring application o this policy. The principles o the Employment First Policy include o ering employment as the irst and priority service option; providing integrated work settings that pay individuals minimum wage; discussing employment options with individuals through the personcentered planning process at least annually. Employ at least one Employment Services Coordinator to monitor the implementation o the employment irst practices.
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 97 of 152 PageID# 5650

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TABLE 3: SUMMARY OF INDIVIDUAL REVIEWS FOR EMPLOYMENT

Question

Day Service Pre-Voc

GSE

Total

(YES)

(YES)

(YES)

Percentage

Met

1

0

0 (0%)

2 (18%)

(9.5%)

2

2 (50%)

2 (33%)

6 (55%)

(48%)

3

2 (50%)

0 (0%)

4 (36%)

(29%)

4

0 (0%)

0 (0%)

4(36%)

(19%)

5

1 (25%)

1 (17%)

7 (64%)

(43%)

6

0 (0%)

0 (0%)

0 (0%)

(0%)

7

(N/A)

(N/A)

(N/A)

(N/A)

Conclusion and Recommendations (review of the CSB requirements for introducing employment options)1�The�Seeelemene�Ageeemene�eeniiees�ehe�oemmeneealeh�ee�ensiee� ehae�individials�in�ehe�eaegee�pepilaeien�aee�euueeed�emplepmene�as�ehe�uiese�dap�seevice� epeienw�DHHDS�is�claeiuping�ehis�enpeceaeien�eheeigh�ehe�meeueemance�oeneeaces�eieh�ehe� oSHs�uee�la2015�and�la2016w�The�eeaining�ie�has�develeped�uee�oase�aanagees�is�eell�dene� and�peevides�an�encellene�eeieneaeien�and�eveeviee�ee�ehe�DHHDS�enpeceaeiensw�DHHDS� eepeees�ie�eill�le�eeniieed�uee�all�eD�and�DD�oase�aanageesw�Sipeevisees�sheild�le� mandaeed�ee�aeeend�ehe�eeaining�as�eellw� � ap�eeviee�eu�ehis�small�sample�eu�eSms�validaees�ehe�need�uee�meee�ueemal�cemminicaeien� and�dieeceien�ee�ehe�oSHs�ueem �DHHDSw��oSHs�ise�diuueeene�ueemaes�uee�ehe�meesenmoeneeeed� mlans�aleheigh�meee�appeae�ee�ise�a�cemmen�ene�ehan�dieing�ehe�peevieis�eevieew�The� ueemae�dees�nee�seeess�emplepmene�nee�dees�ie�inclide�peempe�nieseiens�ehae�ceild�help�a� oase�aanagee�mane�siee�ee�addeess�emplepmene�ineeeesesm�cheicesm�snills�and�deeamsw�ee�is� a�eepic�ehae�is�nee�discissed�ineil�eell�inee�ehe�plan�iu�ehe�eeam�ises�ehe�planning�decimene� as�a�giide�uee�ies�discissienw� � � The�mese�cemmen�eSm�ueemae�has�a�seceien�in�ehich�ehe�censimee�ee�giaedian�indicaees� eheehee�ehe�plan�meees�ehe�peesenss�enpeceaeiens�and�deeamsw�Eveep�plan�e�eevieeed�ehae� inclided�ehis�seceien�had�all�eu�ehe�lenes�incliding�ehae�ehe�plan�meees�ehe�peesenss�eeen� deeams�checned�auuiemaeivelpw�This�eas�similae�ee�mp�uindings�ueem�ehe�lase�eeviee�eu� emplepmene�seevices�cendiceed�in�Apeil�2014w�e�eeild�siemise�ehae�ehis�has�leceme�a�pee� ueema�peecess�and�is�nee�eeuleceive�eu�a�meaninguil�discissien�eu�ehe�individialss�geals�and� aspieaeiens�ae�lease�in�ehe�aeea�eu�emplepmene�since�ie�eas�checned�euu�uee�eveepene� eheehee�ee�nee�ehep�had�anp�eeen�ee�eeen�peepaeaeien�in�eheie�planw��The�planned�oase� aanagemene�eeaining�is�a�uiese�seep�ee�addeess�ehis�cenceenw� � Dieing�ehe�lase�eepeeeing�peeied�DHHDS�eepeeeed�ehae�eheee�is�a�peevisien�in�ehe�la13�and� la14�oemminiep�Seevices�meeueemance�oeneeace�ehae�eeniiees�ehe�oSHs�ee�cemplp�eieh� Section III.C.7.b�eu�ehe�Seeelemene�Ageeemenew�DHHDS�eeueemaeeed�ies�planning�ueem�se�ehae� emplepmene�eeild�le�ehe�uiese�eepic�discissed�eieh�ehe�individial�and�eSm�eeamw�The�case�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 100 of 152 PageID# 5653

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� 2.Development and monitoring of the Employment targets for FY15-FY191�� � The�rA�SEaa�had�meaninguil�inpie�inee�eseallishing�ehe�emplepmene�eaegees�dieing�ehe�lae� eepeeeing�peeiedw��Heeeveem�ehe�DHHDS�dees�nee�eegilaelp�shaee�ehe�peegeess�eepeees�eieh� ehe�SEaaw�This�sheild�le�a�seanding�agenda�ieem�se�ehae�ehe�SEaa�can�le�aeaee�eu�peegeess� ee�laeeiees�ee�achieving�ehe�peeveceiens�en�a�niaeeeelp�lasis�and�mane�eecemmendaeiens� uee�anp�needed�midmpeae�ceeeeceiensw�The�SEaa�can�cemmene�en�ehe�impace�eu�ineeemagencp� ceeedinaeienm�ehe�eele�eie�eu�emplepmene�uiese�inieiaeive�eieh�oase�aanagemenem�and� peevidee�capaciepw� � 3. Inter-agency coordination: The�SEaa�inclides�eepeeseneaeives�ueem�ehe�eehee�nep�seaee� agenciesw�Thep�aee�enehisiaseic�memlees�eu�ehe�SEaaw�eecenelp�Assiseane�oemmissienee� oechean�has�seaeeed�ee�have�adminiseeaeive�discissiens�eieh�DAeS�and�DtE�ae�an� adminiseeaeive�level�ehae�has�led�ee�discissien�eu�an�ineeeagencp�peevece�in�ene�eegien�eu� rieginia�ee�impeeve�ehe�scheel�ee�eeen�eiecemes�uee�seidenes�geadiaeing�ehe�have�eD/DDw�� � The�Aealsm�Seeaeegies�and�Aceien�eeems�asseciaeed�eieh�rieginiass�mlan�ee�enceease� Emplepmene�tppeeeinieies�uee�endividials�eieh�eneelleceial�and�Develepmeneal�Disalilieies� la�2013m�la�2015�inclides�ehe�uelleeing�as�ies�uiese�geal1�Align licensing, certification, accreditation, data collection and other activities between state agencies that facilitates employment for individuals with disabilities.�Theee�has�nee�leen�anp� mevemene�en�eee�eu�ies�sil�geals�eelaeed�ee�celleceing�daea�and�peeviding�edicaeien�aceess� agencies�eegaeding�alleealle�emplepmene�aceivieies�indee�aedicaid�eaivee�peegeamsw�The� SEaa�memlees�alse�eepeee�eheee�aee�ne�atos�eegaeding�daea�shaeingw��� � Theee�has�leen�peegeess�en�ceeaeing�a�meee�ceeedinaeed�and�peesenmueiendlp�eeansieien� ueem�DAeS�ee�DHHDS�uinding�uee�individials�in�emplepmene�peegeamsw�ee�is�impeeeane�ehae� ehe�leadeeship�eu�DHHDS�eeens�eieh�ehe�eehee�nep�agencies�en�measiealle�geals�and� engages�ehe�SEaa�memlees�ee�assise�eieh�ehe�achievemene�eu�ehese�gealsw�� � 4. Outreach to the DD Community1�aemlees�eu�ehe�rA�SEaa�ehe�e�ineeevieeed�eeee�nee� aeaee�eu�anp�speciuic�eieeeach�euueees�ee�individials�eieh�develepmeneal�disalilieies�ee� eheie�uamiliesw�This�is�nee�a�eepic�ehae�has�leen�discissed�ee�addeessed�lp�ehe�rA�SEaaw� aemlees�eepeee�seme�ueiseeaeien�ehae�eheee�is�nee�an�eeganined�eieeeach�euueee�ee� individials�eieh�ineelleceial�disalilieies�and�eheie�uamilies�eieheem�aleheigh�ehep�appeeciaee� ehe�euueees�made�lp�ehe�DHHDS�ee�peesene�emplepmene�inueemaeien�ae�vaeieis�eegienal� ueeims�aceess�ehe�seaeew��Thep�de�eecemmend�ehae�eheee�le�dialegie�eieh�ehe�oSHs�ee�meee� ueemallp�peevide�inueemaeien�ee�individials�and�eheie�uamilies�aleie�emplepmene�seevices�

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� and�ehae�DHHDS�shaee�inueemaeien�meee�censiseenelp�eieh�scheel�spseemsw��DHHDS�has�had� eespensililiep�uee�ehe�DD�eaivee�since�aevemlee�2013w�ee�has�seill�nee�develeped�a�speciuic� eieeeach�plan�uee�paeeicipanes�and�eheie�uamiliesw�The�SEaa�mighe�leneuie�ueem�incliding� meee�eepeeseneaeives�eu�ehe�DD�oemminiep�ee�assise�ehe�depaeemene�eieh�eieeeach� seeaeegies�ee�eeach�ehis�eaegee�pepilaeienw�e�have�made�ehis�eecemmendaeien�since�ehe� leginning�eu�ehe�eeviees�eu�Emplepmene�Seevicesw�ee�is�eelling�ehae�all�eu�ehe�individials�in� ehe�sample�eeee�ueem�ehe�eD�eaiveew�The�oemmeneealehss�DHHDS�sheild�le�eeniieed�ee� develepm�uindm�and�implemene�an�eieeeach�plan�uee�individials�eieh�DD�and�eheie�uamiliesw��
� 5w�Development of the Plan for Integrated Day Activities: The�rA�SEaa�ueemed�a�silm cemmieeee�ee�uieehee�develep�ehe�plan�uee�ineegeaeed�dap�aceivieiesw�The�aceial�plan�is� eevieeed�in�a�diuueeene�seceien�eu�ehis�eepeeew�The�silmcemmieeee�develeped�ehe�deuinieien� eu�ineegeaeed�dap�aceivieies�ising�inueemaeien�ueem�eehee�seaees�and�naeienal�enpeeesw�Thep� develeped�a�cempeehensive�deuinieien�and�seighe�seaneheldee�inpie�ee�ehich�ehep� eespended�and�made�eevisiens�ee�ehe�deuinieienw��
6. System Redesign1�The�eedesign�eu�ehe�HoHS�haivees�ceneiniesw�Theee�is�a�sepaeaee� haivee�eedesign�oemmieeee�and�alse�a�sepaeaee�geeip�ehae�is�paee�eu�ehe�tDEm�risien� riesew�The�SEaa�memlees�ehe�eeee�ineeevieeed�enpeessed�cenceen�ehae�ehep�eeee�nee� asned�ueemallp�uee�inpie�inee�ehe�eaivee�eedesign�eu�emplepmene�seevices�and�eeee�nee� inclided�as�memlees�eu�ehe�risien�riese�Aeeipw��Theee�is�seme�eveelap�eu�memleeship�se� eheee�is�seme�cemminicaeien�ee�ehe�SEaa�geeipm�lie�ie�is�nee�ueemalw�aemlees�aee� cenuised�as�ee�ehp�ehe�risien�riese�eeen�eieh�tDEm�easnse�dene�as�paee�eu�ehe�SEaaw�e� eecemmend�ehae�ehe�SEaa�le�ehe�leading�seaneheldee�geeip�uee�all�aceivieies�and�inieiaeives� ehae�aee�emplepmene�eelaeed�and�ehae�inclide�ehe�inpie�eu�eieside�geeipsw��Eiehee�ehe�SEaa� sheild�ceeedinaee�anp�eu�ehese�emplepmene�inieiaeives�ee�ehe�SEaa�aemlees�sheild�have� ehe�chance�ee�eepeesene�ehe�SEaa�en�anp�eehee�emplepmene�eeen�geeipsm�peevide�ueemal� ueedlacn�ee�ehe�SEaam�and�seen�eheie�ee�shaee�eieh�ehese�eehee�cemmieeees�and�eeen� geeipsw�
� Conclusion and Recommendation1�The�DHHDS�ceneinies�ee�meee�ehe�Seeelemene� Ageeemene�eeniieemenes�ee�maineain�ehe�SEaam�lie�is�nee�in�eveeall�cempliance�eieh� III.C.7.b.�ee�dees�nee�cemplp�eieh�ehe�eeniieemenes�ee�shaee�emplepmene�as�ehe�uiese�dap� seevice�epeien�ising�a�peesenmceneeeed�peecess�nee�is�ie�pee�helding�ehe�oSHs�acceinealle� uee�ehe�eelaeed�eeniieemenes�in�ehe�oSH�meeueemance�oeneeacew�ee�is�pesieive�ehae�ehe�DHHDS� is�seeengehening�ehe�eeniieemenes�eu�ehe�oSHs�ee�euuee�emplepmene�uiese�ee�paeeicipanes�lie� ie�needs�ee�demenseeaee�ehae�ie�is�helding�ehem�acceinealle�ee�le�uillp�cemplianew�� The�DHHDS�sheild�ceneinie�ee�eeen�cellaleeaeivelp�eieh�ehe�SEaam�implemene�ehe�nee�lpm laes�and�giidance�uee�appeineing�ehe�SEaa�memleesm�and�inclide�ehem�in�a�meee� meaninguil�eap�in�ehe�eeviee�eu�eeaching�ehe�emplepmene�eaegees�and�eehee�emplepmene� inieiaeivesw�DHHDS�paeeicipaeed�eieh�tDEm�in�a�risien�riese�peecess�ehis�peaew��This�peecess� eas�nee�ceeedinaeed�eieh�ehe�aceivieies�eu�ehe�SEaa�lie�addeesses�manp�eu�ehe�same�issies� leueee�ehe�SEaaw�ee�peevided�a�simmaep�eu�seeengehsm�challengesm�eheeaes�and�eppeeeinieies� uee�rieginiaw�The�simmaep�peevides�inueemaeien�and�analpsis�ehae�can�seeve�as�aneehee� giide�uee�engeing�emplepmene�impeevemene�aceivieies�in�rieginiaw�e�eecemmend�ehae�ehe� risien�riese�insighes�le�shaeed�eieh�ehe�SEaa�and�ehe�eecemmendaeiens�le�censideeed�uee� adepeien�lp�DHHDSw�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 102 of 152 PageID# 5655

� � VIII. Review of the Regional Quality Councils
Section III.C.7.c- the Regional Quality Councils (RQC), described in V.D.S shall review data regarding the extent to which the targets identi ied in Section Iii.C.7.b.i.B.2 above are being met. These data shall be provided quarterly.. Regional Quality Councils shall consult with those providers with the SELN regarding the need to take additional measures to urther enhance these services.
Section III.C.7.d - the Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
The�DHHDS�shaeed�ehe�deaue�miniees�eu�ehe�uive�ero�meeeings�ehae�eeee�held�in�eine�and� eilp�2014w��DHHDS�peeseneed�ehe�emplepmene�daea�eheeigh�ehe�secend�niaeeee�eu�la14�nee� ehe�daea�ueem�ehe�ehied�niaeeeew�The�annial�eaegee�eas�see�uee�ehe�end�eu�ehae�niaeeeew�Theee� eas�ne�silseaneive�discissien�eu�ehe�eaegees�ae�anp�eu�ehe�ero�meeeings�and�eheee�is�ne� evidence�ehae�ehe�eros�censileed�eieh�ehe�SEaa�ee�peevideesw�The�DHHDS�did�nee�shaee� miniees�eu�anp�eehee�meeeings�eu�ehe�eros� � Conclusions and Recommendations1��The�DHHDS�is�nee�in�cempliance�eieh�Sections III.C.7.c or III.C.7.d.�The�DHHDS�sheild�insiee�ehe�eros�meee�niaeeeelp�and�sheild�shaee�all� cieeene�emplepmene�daea�eegaeding�ehe�emplepmene�eaegeesw�The�eros�sheild�censile�eieh� ehe�SEaa�and�emplepmene�peevidees�and�disciss�ehe�DHHDSs�peegeess�eeeaed�meeeing�ehe� emplepmene�eaegeesw� � IX. SUMMARY DHHDS�eemains�in�cempliance�eieh�Seceiens1� III.C.7.b.i.A, III.C.7.b.i.B. 1. a, d, and e � DHHDS�is�nee�in�cempliance�eieh�Seceiens1� III.C.7.a, III.C.7.b, III.C.7.b.i. IIIC.7.b.i.B.1b and c, III.C.7.i.B.2.a, b, III.C.7.c, III.c.7.d � ee�is�eeeilling�ehae�DHHDS�ceneinies�ee�le�inalle�ee�accieaeelp�eepeee�daea�e�a�vaeieep�eu� impeeeane�daea�elemenesm�has�nee�made�peegeess�en�leing�alle�ee�euuee�ineegeaeed�dap� aceivieies�ee�individials�in�ehe�eaegee�pepilaeien�ee�meaninguillp�implemeneed�ies� emplepmene�uiese�pelicpw�The�ineeneiens�eu�ehe�DHHDS�leadeeship�aee�pesieive�lie�ehe� lieeaiceacpm�lacn�eu�daeam�and�seevice�deuinieiens�and�eaees�ehae�cannee�le�signiuicanelp� impeeved�ineil�ehe�nee�eaivee�is�appeeved�lp�oaS�and�implemeneedm�slees�peegeessw��The� oemmeneealehss�euueees�ee�eedesign�ehe�eaivees�aee�pesieive�and�necessaepw�Heeeveem� peegeess�seill�needs�ee�le�made�in�ehe�ineeevening�peeied�uee�ehe�Seeelemene�Ageeemene�ee� le�implemeneedw�e�eecemmend�ehae�ehe�endependene�eevieeee�censidee�iu�immediaee�aceien� needs�ee�le�eeniieed�eu�DHHDS�lp�ehe�oeiee�ee1� � emplemene�a�siseainalle�daea�celleceien�and�eepeeeing�spseem�epeeaeed�lp�DHHDS�ehae� peevides�accieaee�inueemaeien�aleie�neelp�eneelled�individialsm�ehe�lengeh�eu�eime�

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 103 of 152 PageID# 5656

� individials�aee�emplepedm�ehe�eages�ehep�eaen�and�ehae�can�diseingiish�inueemaeien�aleie� individials�eieh�eD�and�DDw� � Develep�and�implemene�a�deeailed�plan�as�ee��meee�ies�emplepmene�eaegee�uee�la15w� linaline�ehe�implemeneaeien�plan�uee�eneegeaeed�Dap�Aceivieies�and�peevide�ehese�aceivieies� ee�seme�nimlee�eu�individials�ising�seaee�uinding�ineil�ehe�nee�eaivee�is�availallew� Develep�and�implemene�eieeeach�ee�individials�eieh�DD�and�eheie�uamiliesw� � � �
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 104 of 152 PageID# 5657
 �
APPENDIX D 
 HOUSING PLAN/COMMUNITY LIVING OPTIONS 

By: Patrick Rafter 


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 105 of 152 PageID# 5658 �

MEMORANDUM

DATE: TO: FROM: RE:

NOVEMBER 5, 2014 DRAFT 2 DONALD FLETCHER, INDEPENDENT REVIEWER/VIRGINIA PATRICK RAFTER, PRESIDENT/CEO REVIEW OF THE COMMONWEALTH’S HOUSING PLAN

As a follow up to my visit of approximately one year ago, you requested that I again review the progress of Commonwealth’s Housing Plan as it relates to compliance with the consent decree with the U. S. Department of Justice. During my two days on site, I met with team members responsible for implementing the plan, overseeing department heads, provider representatives, ARC leadership and affected families.
A year ago, I expressed “significant concerns about the Plan’s actual capacity to develop communitybased housing for the target population” based on three major areas. First, the Rental Assistance Pilot seemed ill-conceived, since it offered only temporary housing assistance to individuals requiring long term supported housing. Secondly, there were no other funded efforts beyond this contained pilot dedicated to set aside rent subsidies for members of the target population. Lastly, in order for the target group to “lay claim” to affordable (20% AMI) and accessible units as they become available in the market, there is a need for careful choreography between the LITHC developers who were being asked and incentivized to develop these units and the coordinators of service to the target group.
When I met with the Housing Plan Team during the week of October 27th, I asked as to how many individuals in the target group were provided housing as a direct result of their efforts over the past year.
The answer was two (2).

Current Revisions to the Housing Plan’s Goals, Strategies & Action Items
The Commonwealth’s Housing Team augmented their plan with the following items, increasing its potential of establishing the development of housing for the target group in the years and months ahead:
A 32 unit set-aside of Housing Choices Vouchers for the target population Requesting local PHA’s to provide set aside for target group On Going Rental Assistance Budget Request being submitted to the Governor Tax Bonds Subsidization of Development Costs Decision Brief to Governor. HUD 811 Application submitted Incentives for LIHTC Developers to serve the target population.
However, the Commonwealth’s glacial implementation pace over the last year needs to be rectified.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 106 of 152 PageID# 5659
�
Essential Missing Elements
The third anniversary of the signing of the consent decree is approaching. It is a reasonable expectation that by now, the housing plan would have progressed from initial “aspiration activities” (i.e. “encouraging” PHAs, “applying” for Federal Grants, “submitting briefs” to the Governor’s office etc.) to funded and operational processes producing housing units for the target population. Gubernatorial transitions often result in a loss of traction for cross agency activities and may well have had a contributory effect to housing plan production of deliverables. Nonetheless, the transition from “aspirational” to “operational” is long overdue.
I recommend that the Goal/Strategies/Action Items section of the housing plan be revised to reflect quantitative measures. Updates of the report should clearly reflect projected numbers of the target class who will be moving into their own homes and apartments on a quarterly basis. In comparison, updates should note the actual numbers of target group members who moved into their own homes and apartments. Future reporting should also clearly identify which activities are actually producing the most housing for the target group.
I also recommend that a “customer feedback” system be put into place. This system should be initiated once target group members begin moving into their own housing. Customer feedback received should then be used to direct mid-course adjustments to the housing plan.
Finally, handled appropriately and diligently, this could be an incredibly empowering and exciting time for people with intellectual and developmental disabilities and their families in Virginia. With the separation of housing and supports, and the introduction of neighborhood based housing options, there is the possibility of significantly advancing the support system for people with disabilities.
I am happy to make myself available to Housing Team members to discuss my observations.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 107 of 152 PageID# 5660
 �
APPENDIX E 
 LICENSING, CASE MANAGEMENT AND INVESTIGATIONS 

REQUIREMENTS 
 By: Ric Zaharia Ph.D. 


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 108 of 152 PageID# 5661
 �



Report to the Independent Reviewer United States v. Commonwealth of Virginia

 

Licensing, Case Management & Investigation 
 Requirements

� �

By
Ric Zaharia, Ph.D., FAAIDD Consortium on Innovative Practices
October 24, 2014

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 109 of 152 PageID# 5662

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Execmtive�ummmry��
The Independent Reviewer for the US v Commonwealth of Virginia Settlement Agreement requested a follow-up review of the Licensing and Case Management requirements of the Agreement and a new review of Investigations of Abuse and Neglect requirements. This review was based on onsite interviews, document reviews, and telephone interviews and was conducted to assess key indicators and progress towards compliance.
DBHDS licensing rules (12VAC 35-105-1240) regard the Office of Licensing Services (OLS) as the compliance mechanism for Community Service Board (CSB) case management performance under their contracts with the Commonwealth. Monitoring case management performance has been expanded to include a) Quality Management staff at DBHDS (Department of Behavioral Health and Developmental Services) conducting performance improvement activities and b) case management expectations added to the DBHDS Internal Auditor's periodic Operational Review of CSBs.
Investigation of alleged or suspected abuse or neglect and other serious incidents are based in the CHRIS (Comprehensive Human Rights Information System), an electronic reporting system monitored by the Office of Human Rights (OHR). Incidents are typically entered by providers and are investigated by local OHR investigators, OLS investigators, or jointly by staffs of both offices, depending on the severity of the incident.
The Compliance Table on the next page summarizes the assessment of compliance described in the narrative report below. This review assessed fifteen (15) requirements in the Agreement. Seven (7) of the fifteen (15) are in compliance. For eight (8) requirements the progress made by the Commonwealth toward compliance has not been sufficient to achieve compliance. Recommendations are made on approaches to achieve compliance. Suggestions for improvement are offered for consideration.
DBHDS efforts to achieve compliance are continuing. Workload ratios for newer case managers appear to be lower than for more experienced case managers. This is positive in that it acknowledges the complexity of the role and the learning of the role. The vulnerability of the individuals served by DBHDS and the exposure of the system to the negative impacts of providers who repeatedly fail to meet performance expectations or correction plans continue due to the inability of OLS to deliver a wider variety of negative consequences without Attorney General (OAG) support. The revocation of the license of one poor performing provider has been deferred awaiting OAG endorsement of OLS process proposals.

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 110 of 152 PageID# 5663
 �

Settlement Agreement Section
III.C.5.a Case Management III.C.5.b Case Management

Compliance Table 
 �
Settlement Agreement Language
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. For the purposes of this Agreement, case management shall mean.

III.C.5.c Case Management
III.C.5.d Case Management V.C.3 Abuse and Neglect Investigations
V.C.6 Abuse and Neglect Investigations V.F.1 Case Management
V.F.2 Case Management

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or ... the provision of such services. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation ..in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations.
For individuals receiving case management services pursuant to this Agreement, the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual's residence, as dictated by the individual's needs. At these face to face meetings, the case manager shall.

V.F.3 Case Management V.F.4 Case Management V.F.5 Observation & Assessment
V.F.6 Training
V.G.1 Licensing V.G.2 Licensing V.G.3 Licensing
Section IX.C
�

Within 12 months of the effective date of this Agreement, the individual's case manager shall meet with the individual face-to-face at least every .0 days, and at least one such visit every two months must be in the individual's place of residence. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual. Within 24 months from the date of this Agreement, key indicators from the case manager's face-to-face visits with the individual, and the case manager's observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.. above. The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness. The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.. above and that these data and assessments are reported to DBHDS. ??? requires that there be ".sufficient records to document that the requirements of the Agreement are being properly implemented."

Compliance Compliance Assessed through Individual Service
Reviews Non-Compliance Non- Compliance Non-Compliance
Non-Compliance
Compliance
Assessed through Individual Service
Reviews Compliance Non-Compliance Non-Compliance
Compliance
Compliance Compliance Non-Compliance
Non-Compliance

Page 11 N.A. 11 5 17
17 13 N.A. 13 13 14
15 8 8 8
5

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Licensing�
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Case Management Performance

Settlement Requirement: III.C.5.d 5. Case Management d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

Review Methodology • Interviewed Les Saltzberg and Dee Keenan. • Reviewed OLS Office Protocol (8/2014 version), OLS internal operating procedures. • Reviewed nine (9) records of individuals receiving case management services from one CSB with no case management violations. • Interviewed ID director, case management supervisor, case manager in one CSB with no recent OLS violations. • Reviewed frequency analysis for licensing citations across CSBs and providers. • Reviewed DBHDS Quality Management Plan (7/25/2014 draft). • Reviewed Clinical/ Case Management Review (9/12/2014 draft). • Reviewed Supports Efficiency Checklist (undated) for 'whole person reviews' by OLS.
Findings Licensing regulations (12VAC35-105-10 to 105 1410) do not align specifically as to the case management expectations detailed in the Agreement (i.e. regularized face to face meetings with the individual being served, enhanced visit frequency, identifying risks to the individual, offering choice among providers, assembling professionals and non-professionals who provide supports, identifying risks). Licensing checklists do not align with these same specific requirements of the Agreement.
The draft DBHDS Quality Management Plan calls for a) 'whole person reviews' during which Licensing Specialists will draw a sample from case management records, will review documentation and will observe the in situ delivery of services at the provider locations, b) the introduction of a Supports Efficiency Checklist for Licensing Specialists to use when reviewing case management services, c) the initiation of a DBHDS quality improvement team upon the "triggering" of selected problems (e.g. lack of follow-up on health issues, inadequate support plans, etc.; see Clinical/Case Management Review) by Licensing reviews, and d) the refocus of DBHDS Internal Auditor's Operational Reviews of five CSBs annually to include case management. These changes have been initiated. The effectiveness of these additional quality management strategies for monitoring and improving case management performance will have to be determined.
The majority of case management licensing reviews examined in an earlier sample (see report dated 4/28/14 to the Independent Reviewer, Licensing Requirements of the Settlement

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Agreement), resulted in a "No Violations" determination for 12 of 19 CSBs. The implication is that in a review of 120 case management records out of 190, no documentation deficiencies were identified. This reviewer skimmed nine case management records (selected by the reviewer and staff) at one of those CSBs who had received a recent "No Violations" review, and identified at least one deficiency that warranted a citation by OLS. More thorough case management reviews appear to be needed.

OLS does not regularly compile the results of licensing reviews into a report on trends related to compliance patterns across CSBs. However, recent OLS analyses of citation frequencies has suggested a methodology for informing trend reports, that, although crude initially, could result in additional quality improvement studies that encourage additional initiatives, alerts and system guidance.
OLS sampling for case management remains at 10 cases, which is not an adequate sample for CSBs that serve large numbers of individuals.

Conclusion Although the Department's quality management planning indicates progress, and more is reflected below in the Case Management section, DBHDS is not currently in compliance with the requirements of III.C.5.d, a mechanism to monitor CSB compliance with performance standards. Section IX.C requires that there be "�sufficient records to document that the requirements of the Agreement are being properly implemented�"

Recommendations to Achieve Full Compliance OLS should create a supplement to the case management checklist that operationalizes the expectations of the Agreement. The Supports Efficiency Checklist has promise as a metric for case management performance in the key service domains. This supplement should be outcome focused and specifically include samples of regularized face to face meetings with the individual being served, enhanced visit frequency, offering choice among providers, assembling professionals and non-professionals who provide supports, and identifying risks to the individual.

The proposed revised OLS review process, which requires Licensing Specialists to assess case management services received by the individual while they are examining services provided to the individual at the provider level, looks promising. It needs to be operationalized in the OLS Office Protocol, to identify the desired outcomes of the process, and revised after test runs. Similarly, the follow-up visits to "triggered" case management reviews by Quality Management staff will need to be field tested and assessed for the value they add.

At least annually OLS should compile a trend report on licensing results for case management. Detecting and reporting patterns and frequencies in the results of licensing reviews across CSBs ensures that needed system improvements are discovered and that corrective actions can be planned and implemented. The database is accessible to OLS to inform these reports.

DBHDS should secure the services of a statistician to identify the statistically minimum sample size OLS needs to validate the findings of a CSB case management review.

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Provider Licensing

Settlement Requirement: V.G.1-. G. Licensing 1. The Commonwealth shall conduct regular, unannounced licensing inspections of
community providers serving individuals receiving services under this Agreement. 2. Within 12 months of the effective date of this Agreement, the Commonwealth shall
have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including:
a. Providers who have a conditional or provisional license; b. Providers who serve individuals with intensive medical and behavioral needs as
defined by the SIS category representing the highest level of risk to individuals; c. Providers who serve individuals who have an interruption of service greater than
.0 days; d. Providers who serve individuals who encounter the crisis system for a serious
crisis or for multiple less serious crises within a three-month period; e. Providers who serve individuals who have transitioned from a Training Center
within the previous 12 months; and f. Providers who serve individuals in congregate settings of 5 or more individuals. .. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.. above and that these data and assessments are reported to DBHDS.

Review Methodology • Reviewed Guidance for Selected Licensing Regulations (9/9/2014). • Interviewed two provider representatives on the Licensing Stakeholders
Workgroup. • Reviewed licensure survey reports with corrective action plans and chronologies
for five (5) agencies on provisional status. • Reviewed available reports for licensing results across providers ('citation
frequency count'). • Reviewed Supports Efficiency Checklist (undated) • Reviewed new DBHDS website. • Reviewed 8/2014 revision of OLS Office Protocol.

Findings Licensing regulations (12VAC35-105-10 to 105 1410) align generally with the expectations in the Agreement. Licensing checklists align with the Licensing regulations in most areas except for the Services and Supports area of the regulations, which are the heart of the Agreement (Section V.D.3). This gap leaves assessment up to individual Licensing Specialist discretion and contributes to reliability problems in interpretation. The Supports Efficiency Checklist is built around four areas (Health & Safety, Access & Engagement, Community Integration, and Habilitation) and includes guidelines and examples for the assessment of the goals and outcomes in an individual's IPP at the case management and provider level.

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The 'whole person review' process should generate metrics to establish congruence in expectations and performance between case management and providers. At the time of this visit training in the changes for Licensing Specialists had been scheduled. These changes show good potential for addressing the issue of Services and Supports in the regulations but will need to be assessed for their success at measuring these regulatory expectations once a database of surveys is available.

As previously reported (see report dated 4/28/14 to the Independent Reviewer, Licensing Requirements of the Settlement Agreement), provider feedback suggests continuing confusion at the agency level as to how a variety of items are interpreted by Licensing Specialists. The Licensing Stakeholders Workgroup was formed to address this issue. It has been working on clarifying current regulations, in order to address provider concerns and to potentially increase reliability among Licensing Specialists. Their recent work product (Guidance for Selected Licensing Regulations) appears to be a good first attempt to address this issue.

OLS sampling for providers has been modified in the Office Protocol 8/2014 revision to: "10 or 10%, whichever is less with a minimum of 2". Previous versions of the Office Protocol directed that the licensing specialist "reviews a representative sample (more than two)". This change should result in sample sizes that are more valid for providers serving 100 or fewer individuals; for providers serving more than 100 individuals the improvement in sampling will be modest to negligible.

The absence of a checklist (or some other structure) for interviewing staff and individuals receiving services and accompanying assessment criteria creates the likelihood that there is variability in interpretation among Specialists.
The new website will hopefully be an improvement for the Department. The "Submit a Complaint about a Licensed Provider" link has moved. The "Home" page has a "Need Help" tab but this only locates information for the DBHDS website. The "Human Rights" tab, which can be accessed under the "Individuals and Families" tab and the "Professionals & Service Providers" tab, has a "How to File a Complaint" tab, but it is informational only and does not permit the online submission of a complaint. The submission of a complaint by a user of the system should be relatively easy. Five (5) ID providers were accurately listed on the new website as being on provisional status.

OLS does not regularly compile the results of licensing reviews into a report on trends related to compliance patterns across providers. However, recent OLS analyses ('citation frequency count') suggest a methodology for the reporting of trend reports that will inform quality improvement initiatives, alerts and system guidance.

DBHDS has available sufficient authority in statute to enforce its regulations, but it never uses some of these authorities and only rarely uses others in a system of 844 service providers. These tools include mandatory training, fines up to $500 per violation, provisional licensing, revocation, summary suspension in emergencies, probation, reduced

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licensed capacity, admission freeze, and funds withholding (Va. Code. �37.2-418 & 419). 
 OLS reports that it has developed a proposed process for exercising increased use of these 
 enforcement tools. However, approval from the Office of the Attorney General has not 
 occurred, preventing OLS from implementing enhanced enforcement efforts. An OLS 
 decision to revoke the license of at least one poorly performing ID service provider has 
 been deferred, pending receipt of this approval. The exposure of the individuals served 
 and the Commonwealth is self-evident. 

Conclusions 
 DBHDS is in compliance with the requirements of V.G.1 and V.G.2. 


DBHDS is not currently in compliance with the requirements of Section V.G.3. DBHDS does not have evidence at the policy level that OLS is producing reliable licensing data that would allow it to identify systemic patterns of compliance problems with the Agreement, including its "data and assessments" across the eight (8) domains at Section V.D.3. The absence of a Licensing tool/checklist for the Services and Supports section of the regulations and the absence of a structured approach to staff and individual interviews indicates policy level activity that needs to be completed.

Recommendations to Achieve Full Compliance OLS should fulfill the requirement of systemic analysis of the "adequacy of individualized supports and services" by compiling regularly, at least annually, a trend report on licensing results for ID providers of services. Detecting and reporting patterns and frequencies in the results of licensing reviews across agencies and services not only ensure system improvements are discovered, but it will also allow for a continuing source for the identification of needed guidance instructions, alerts, trainings, etc.
Implementation of an assessment and monitoring tool that all Licensing Specialists use to review providers in the Services and Supports area will also improve the reliability and consistency of OLS assessments and consequently the data available to evaluate trends and patterns. The Supports Efficiency Checklist shows promise in this regard.
The Licensing Stakeholders Workgroup should continue its work to update regulations, in order to formalize the requirements of the Agreement in the regulations.

The Licensing Stakeholders Workgroup (or some similar entity) should continue its work on clarifying regulations that providers report are still confusing. The recently finalized Guidance for Selected Licensing Regulations addressed nine selected regulations, which does not cover all regulations that need clarification.

DBHDS should approach the Attorney General and request a target date for approval of the proposed OLS enhanced enforcement process.

OLS should evaluate other non-statutory interventions to deal with providers who are not performing well. For example, requiring a provider to contract with a non-agency

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consultant, above and beyond Community Resource Consultants, to support the agency's successful implementation of corrective action plans or requiring a provider on provisional status to align/partner with an experienced provider who has a good track record of services and licensing reviews.

DBHDS should secure the services of a statistician to identify the statistically minimum sample size OLS needs to validate the findings of a provider review. Sampling size is critical in order to ensure fairness in application of the rules across providers, to establish comparability when aggregating licensing data for trend reporting, and to provide a case for the Commonwealth that can be defended when findings are appealed to administrative hearing officers, civil courts, etc.

Suggestions for Departmental Consideration OLS might consider a formal, annual inter-rater reliability check for each Licensing Specialist as part of their personnel performance evaluation. This may inspire increased confidence among providers who are skeptical about the "fair" application of the regulations.

DBHDS might consider creating a complaint tab on the "Home" page that permits the electronic submission of a complaint about services.
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Crse�arnrgement�

Case Management Service
Settlement Requirement: 
 III.C.5.a-c 
 5. Case Management a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. b. For the purposes of this agreement, case management shall mean: i. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans ("ISP") that are individualized, person-centered, and meet the individual's needs; ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed. c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.

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Review Methodology: • Reviewed May Data Dashboard report, which the Department is using to assess
system progress. • Interviewed Dee Keenan and Kathy Drumwright re CSB action plans regarding
increasing compliance for CSBs reporting less than 90% compliance. • Reviewed Keenan/Drumwright matrix of CSB input per Health Planning Region
visits (8/26/14). • Reviewed DBHDS Choice Protocol: Offering and Resolving Issues Regarding Choice
in Virginia's Intellectual Disability and Day Support Home and Community Based Waivers (1/28/11). • Reviewed Guidance Document for Additional Case Management Elements (undated). • Interviewed at one CSB: ID director, one case management supervisor, and one case manager. • Interviewed by phone ten (10) case managers hired during the past year. • Interviewed five (5) parents/authorized representatives (three ID, two DD) about satisfaction with case management services. • Interviewed Dawn Travers, DDD Waiver Manager, regarding Waiver Redesign planning.

Findings The Data Dashboard continues to have viability as an accountability tool for the tracking of the delivery of case management services but not the quality of case management services. The Dashboard's effectiveness is now centered on the accuracy of data entry at the local CSB level.
The DBHDS "Choice Protocol" is a good example of shifting the system to a personcentered system. However, distribution of the Choice Protocol is optional and at the discretion of the case manager. Ten (10) recently hired case managers, selected by the Department from across the five Health Planning Regions, were asked if they had been involved in a choice situation. Most case managers interviewed for this report have experienced a change in provider request and report having followed the key themes of the Choice Protocol.

There is apparently no formalized mechanism for a consumer/authorized representative to choose or change among available CSB case managers, who are providers of service. The Choice Protocol does not address choosing or changing a case manager, which is an emerging best practice nationally. Planned changes in the Virginia HCBS Waiver may address this.

The updated DBHDS website 'CSB Provider Search' places this tab on the Home page for DBHDS, which is positive. However, its use continues to be required only for Training Center placements. In addition, the Search tab is not user friendly (for example, the font size for selecting search criteria is some of the smallest font on the page) and when several

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searches were conducted for several rural or suburban areas, as a parent or individual is 
 most likely to do, there were no licensed listed providers doing services in that area. 

Five (5) parent/authorized representatives, selected by the Arc of Virginia (three ID Waiver 
 and two DD Waiver) were interviewed with regard to their satisfaction with case 
 management services. Although this was an inadequate sample (representative of only 
 three CSBs and two case management agencies) these five interviewees rated the quality 
 of their case management an average of 8.7 on a 1-10 scale, where ten (10) was Very 
 Helpful, Very Responsive. This sample should be increased in size in future reviews. 

Conclusions 
 DBHDS is in compliance with the requirements of III.C.5.a. 

Section III.C.5.b. is assessed as part of the Individual Service Review study 

DBHDS is not currently in compliance with the requirements of III.C.5.c. DBHDS has not 
 yet implemented a mechanism to ensure individuals/families are offered practicable 
 options among available providers, conflict free case management, or the option of 
 changing case managers. 

Recommendations to achieve compliance: 
 Publish the Choice Protocol as Departmental/Division policy. Towards the theme of choice, 
 DBHDS should revise the Choice Protocol to establish a formal mechanism so that 
 consumers/family members can select or can change a CSB case manager. 

Refine the link to the 'Provider Search' to make it more user friendly and accessible to consumers, family members, authorized representatives, and case managers. Assess whether the provider search only goes to headquarters or main offices of providers, rather than all their specific locations, which is what most consumers/family members will be seeking; if this is not the case, it will suggest serious gaps in the system of services and the need for a Network Development Plan.

Case Management Practice

Settlement Requirement: V.F.1-4 F. Case Management 1. For individuals receiving case management services pursuant to this Agreement, the individual's 
 case manager shall meet with the individual face-to-face on a regular basis and shall conduct 
 regular visits to the individual's residence, as dictated by the individual's needs.
 2. [See below] 
 .. Within 12 months of the effective date of this Agreement, the individual's case manager shall 
 meet with the individual face-to-face at least every .0 days, and at least one such visit every two 
 months must be in the individual's place of residence, for any individuals who:
 a. Receive services from providers having conditional or provisional licenses; 


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b. Have more intensive behavioral or medical needs as defined by the Supports Intensity Scale ("SIS") category representing the highest level of risk to individuals; c. Have an interruption of service greater than .0 days; d. Encounter the crisis system for a serious crisis or for multiple less serious crises within a threemonth period; e. Have transitioned from a Training Center within the previous 12 months; or f. Reside in congregate settings of 5 or more individuals. 4. Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
Review Methodology: • Reviewed May Data Dashboard report • Reviewed DBHDS Quality Management Plan (7/25/14 draft). • Interviewed Dee Keenan re CSB improvement plans. • Reviewed Keenan/Drumwright matrix report, 2014 ID Case Management CSB Visits
(8/26/2014 ). • Reviewed Guidance document entitled Enhanced Case Management Criteria
(4/2014 and Case Management Operational Guidelines (11/.0/12).
Findings The Data Dashboard does not yet reliably reflect CSB performance for the Settlement Agreement requirement of "a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual". Poor data entry at the CSB level has been identified as the source of the remaining reliability problems in the Dashboard. However, beyond publication of the dashboard and conversations with individual CSBs, there do not appear to be strategies that would ensure CSBs improve their data entry processes or address poor performance outcomes.
The Guidance document entitled Enhanced Case Management Criteria appears to operationalize successfully the requirements for enhanced visits.
The Case Management Operational Guideline presents the steps a case manager should follow in the event there is a problem, deficiency or discrepancy between the ISP and the ongoing provision of supports and services. The hierarchy the case manager should follow is logical and appropriate. However, missing from the hierarchy is an early step in the process wherein the case manager would discuss the problem, deficiency or discrepancy with CSB supervisors/managers or others in the DBHDS chain of command to achieve resolution. Although this may be assumed to occur, by its inclusion it ensures the CSB/DBHDS is responsible for resolving implementation difficulties.
Conclusions DBHDS appears to be in compliance with the requirements of V.F.1 and V.F. 3 regarding enhanced case management visits.

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DBHDS is not currently in compliance with the requirements of V.F.4. DBHDS does not yet 
 have evidence at the policy level that it has reliable mechanism/s to assess CSB compliance 
 with their performance standards relative to case manager contacts. 

Recommendations to achieve compliance: 
 DBHDS should require that CSB's achieving less than 50% on all Data Dashboard measures 
 provide a 'data entry improvement plan'; CSBs achieving less than 90% should provide a 
 'case management performance improvement plan.' 

Suggestions for Departmental consideration: 
 The Drumwright/Keenan CSB input matrix review creates a rich information pool for 
 DBHDS and should be an annual event. 

The Case Management Operational Guideline should be revised to add an early step in the process wherein the case manager would discuss the problem, deficiency or discrepancy for resolution with a supervisor or other manager at the CSB, as well as seek solutions up the DBHDS chain of command.

Observation & Assessment
Settlement Requirement: V.F.2 & 5 2. At these face-to-face meetings, the case manager shall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual's support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual's support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual's strengths and preferences, then the case manager shall report and document the issue, convene the individual's service planning team to address it, and document its resolution.
5. Within 24 months from the date of this Agreement, key indicators from the case manager's faceto-face visits with the individual, and the case manager's observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.. above.
Review Methodology: • Interviewed Dee Keenan regarding Data Dashboard. • Reviewed May Data Dashboard report. • Reviewed Guidance Document for Additional Case Management Elements
(undated). • Reviewed Enhanced Case Management Criteria (4/2014). • Reviewed Support Coordination ECM Onsite Report (10/18/2013).

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Findings The Settlement objective to measure the content of the face-to-face visits was scheduled for accomplishment in March of 2014. The key indicators settled on by DBHDS (Health & Well Being, Community Inclusion, Choice and Self-Determination, Living Arrangement Stability, and Day Activity Stability) show promise. However, these measures do not address specific elements of the face-to-face visits, such as when to convene the team, how to evaluate significant implementation problems, assessing risk when there are status changes, etc. If not addressed through the Additional Case Management-revised Data Dashboard reports, these elements will need to be measured elsewhere.
The halo effect of case managers skewing reports for the Data Dashboard toward the positive is a serious issue. As yet there are no plans in place to correct for this factor.
The incident reporting system (CHRIS) has been proposed as the negative outcome indicator. This may be appropriate, although CHRIS does not necessarily capture process events, such as precipitous discharge by a provider, poorly trained staff, delayed services, etc.
Conclusions DBHDS is not yet in compliance with the requirements of V.F.5 regarding the capture of information regarding outcomes discovered at case management visits.
Section V.F.2 is assessed elsewhere in the Individual Service Review study 

Recommendations to achieve compliance: 
 DBHDS should develop methods to show validity in the reported data from case managers. 
 This may involve sampling individual records to verify agreement between what is 
 documented and what is reported. This could be delegated to case management 
 supervisors. 

DBHDS should create strategies that ensure the analytics for poor-performing CSBs are 
 being used to cause improvements at the CSB case management level. 

Specific elements of the face-to-face visits, such as when to convene the team, how to 
 evaluate significant implementation problems, assessing risk when there are status 
 changes, etc. will need to be assessed or measured. The Support Coordination ECM Onsite 
 Report appears to have potential for addressing this, but it is optional and not required of 
 the field. 

Suggestions for Departmental consideration: 
 DBHDS should consider dialogues with CSB managers about a) the integrity of the five 
 indicators now reported in the Data Dashboard and b) the urgency of accurate Data 
 Dashboard reports. 


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Training
Settlement Requirement: V.F.6 6. The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of self-determination and person-centeredness.
Methodology: • Interviewed by phone ten (10) case managers hired during the past year. • Reviewed case manager training database.
Findings Ten (10) recently hired case managers (nine ID, one DD), who were selected by the Department from six CSBs and one case management agency with at least one from each of the five Health Planning Regions, rated the value of the DBHDS online training as a 7.0 on a ten point scale, ("How well did the online training prepare you for the job on a scale of 1-10 with 10 being, Great?".)
As a group the interviewed case managers felt generally capable of handling their jobs, but reported discomfort in knowledge of available services, the electronic record, and in supporting individuals who are their own guardian and who have co-occurring behavioral health issues.
The Quality Management section at DBHDS can, and should, periodically track who has completed the online training. Interviews suggest that at least one of the ten case managers had taken on a caseload before completing the online training.
Conclusions DBHDS remains in compliance with the requirements of V.F.6 in the Settlement Agreement.
Suggestions for Departmental consideration: 
 Revise the appropriate module in the online case management training curriculum to 
 address choice presentations by case managers. The Choice Protocol provides substantive 
 content for a curriculum modification. 

Where the training module describes the development of the ISP or monitoring it for effectiveness and satisfaction, DBHDS should consider providing a link to samples of actual ISPs.

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Abmse�rnN�gegcect�envestigrti�ns�
Settlement Requirement: V.C.3 & 6 .. The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC .5-105-160 and 12 VAC .5-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DBHDS Human Rights Regulations" (12 VAC .5-115-50(D)(.)) in effect on the effective date of this Agreement, and shall verify the implementation of corrective action plans required under these Rules and Regulations. 6. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations (12 VAC .5-115- 240), the DBHDS Licensing Regulations (12 VAC .5-105-170), Virginia Code Section .7.2-419 in effect on the effective date of this Agreement, and other requirements in this Agreement.
Methodology: • Reviewed ten (10) recently completed Office of Human Rights (OHR) incident
investigations from the Regions IV and V. • Reviewed seventeen (17) completed OLS incident investigations from June 2013
through August 2014. • Reviewed FY 2013-2014 report from OLS identifying agencies cited for Failure to
Report. • Interviewed Deb Lochart and Les Saltzberg.
Findings OHR receives all initial reports of abuse, neglect or serious injury through CHRIS. It then triages for investigation of abuse and neglect. Suspicious, serious cases are forwarded to OLS for investigation because of their enforcement statute. OHR field investigation reports, which are reviewed at DBHDS, appear superficial and do not usually present enough information (i.e. the findings of critical facts) to justify ruling out abuse or neglect. The information may be available in the full investigation file in the field but the summary report does not contain sufficient information, so that DBHDS can quality control the conclusions of its investigators.
The review of a sample of OLS investigations suggests appropriate attention to detail and fact gathering. Investigations that reveal regulatory compliance problems evolve into corrective action plan requirements of the provider. This review of seventeen (17) investigations suggests investigators are thorough and appear to go to root causes, when there is a clear regulatory path to follow. The question of OLS enforcement actions, above and beyond corrective action plans and provisional status, remains an issue. Resolution is pending at the Office of the Attorney General.

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OLS citations for 'failure to report' went to 50 ID provider agencies and 8 CSB providers during the past fiscal year. Beyond corrective action plans there have been no enforcement actions on these citations.
Conclusions DBHDS is not in compliance with the investigational requirements at V.C.3. The superficiality of OHR reports and the absence of enhanced sanctioning efforts result in gaps in these critical protection from harm processes.
DBHDS is not in compliance with the requirements of V.C.6. The ability of the Department 
 through OLS to sanction providers, who violate requirements and then do not correct their 
 problems, remains a shortcoming. 

Recommendations to achieve compliance: 
 DBHDS should use all the tools in the OLS statute to sanction providers who do not 
 respond to corrective actions. 

DBHDS should approach the Attorney General and request a target date for approval of the proposed OLS enhanced enforcement process.
OHR should require expanded narrative in their investigators' reports to provide the rationale for determining whether abuse or neglect had occurred in each specific incident.

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APPENDIX F 


QUALITY AND RISK MANAGEMENT 


By: Maria Laurence 


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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 126 of 152 PageID# 5679
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Report on Quality and Ris� Management in�onieed�Seaees�vw�oemmeneealeh�eu�rieginia� �
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 127 of 152 PageID# 5680
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INTRODUCTION
The�Seeelemene�Ageeemene�eeniiees�ehe�oemmeneealeh�ee�develep�and�implemene�a�rialiep� and�eisn�aanagemene�Spseem�ehae�eill�6ideneiup�and�addeess�eisns�eu�haem;�ensiee�ehe� siuuiciencpm�accessililiepm�and�nialiep�eu�seevices�ee�meee�individialss�needs�in�ineegeaeed� seeeings;�and�cellece�and�evaliaee�daea�ee�ideneiup�and�eespend�ee�eeends�ee�ensiee�ceneinieis� nialiep�impeevemenewg�HrwAmewh� � This�is�ehe�secend�eepeee�peepaeedm�ae�ehe�eeniese�eu�ehe�endependene�eevieeeem�ee�assess�ehe� oemmeneealehss�peegeess�in�meeeing�ehese�eeems�eu�ehe�Seeelemene�Ageeemenew�HThe�uiese� eepeee�eas�issied�en�tceelee�22m�2013;�eeueeences�aee�made�ee�ehis�peevieis�eepeeem�as� eelevane�ee�eecene�uindingswh� � This�eepeee�is�uecised�en�seven�disceeee�aeeas�eu�rialiep�and�eisn�aanagemene1� �
1h eisn�eeiggees�and�eheeshelds;�� 2h The�eelmlased�incidene�eepeeeing�spseem�and�eepeeeing�peeeecel;�� 3h enveseigaeien�eu�allegaeiens�and�ceieical�incidenes;�� 4h Daea�ee�assess�and�impeeve�nialiep;�� 5h meevidees;� 6h Seaeeeide�oeee�oempeeencpmHased�Teaining�oieeicilim;�and�� 7h rialiep�Seevice�eevieesw��� � The�assiseance�given�eheeigheie�ehe�eeviee�peeied�lp�ehe�Aceing�Assiseane�oemmissienee�eu� rialiep�aanagemene�and�Develepmene�is�geeaelp�appeeciaeedw�en�addieienm�a�nimlee�eu�eehee� oemmeneealeh�seauum�as�eell�as�a�peevidee�eepeeseneaeivem�paeeicipaeed�in�ineeeviees�and� peevided�decimeneaeienw��Theie�candid�assessmenes�eu�ehe�peegeess�madem�as�eell�as�ehe� challenges�aheadm�eeee�veep�helpuilw������ �
METHODOLOGY
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 128 of 152 PageID# 5681
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FINDINGS AND RECOMMENDATIONS � lee�each�eu�ehe�seven�aeeas�eevieeedm�ehe�langiage�ueem�ehe�Seeelemene�Ageeemene�is� peevided�and�is�ehen�uelleeed�lp�a�simmaep�eu�ehe�seaeis�eu�ehe�oemmeneealehss�euueees�ee� daeew�eecemmendaeiens�aee�euueeed�uee�censideeaeienm�as�appeepeiaeew� �
The Commonwealth shall require that all Training Centers, CSBs [Community Services Boards], and other community providers o residential and day services implement risk management processes, including establishment o uni orm risk triggers and thresholds, that enable them to adequately address harms and risk o harm. Harm includes any physical injury, whether caused by abuse, neglect, or accidental causes.
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The required list of triggers and thresholds must include all significant harms and risks of harm. The Commonwealth should provide a plan and timeline, by March 31, 2014, to require the reporting of all harms and risks of harm.� The Commonwealth should continue to identify and/or develop relevant sources of reliable data to allow expansion of the list of relevant risk triggers and thresholds; it should identify mechanisms to collect additional data to allow future expansion of the list and report these to the Reviewer by March 31, 2014.� � The�oemmeneealeh�ceneinies�ee�eevise�ehe�lise�eu�eeiggees�and�eheesheldsw��The� oemmeneealeh�silmieeed�a�deaue�eu�ehe�mhase�tne�eisn�Teiggees�and�Theesheldsw��This� decimene�ideneiuies�ehe�demains�Heeseeainem�aggeessienm�meeealiepm�uallsm�eecwhm�ehe�eppe�eu� measiee�Hindividial�ee�peevidee;�eeiggee�ee�eheesheldhm�ehe�daea�elemene�Hehae�eas�leing� measieedhm�ehe�eile�Hceieeeia�uee�ehen�ehe�eheesheld�ee�eeiggee�eas�meehm�ehe�daea�celleceien� seaeism�ehe�eppe�eu�eepeeem�ehe�eepeee�seaeism�deuinieiensm�and�uelleemip�aceiensw�� � The�daea�celleceien�seaeis�indicaees�eheehee�ehe�daea�celleceien�spseem�is�indee�develepmene� uee�ehe�cemminiepm�uee�ehe�Teaining�oeneeesm�in�a�eese�phasem�and/ee�implemeneed�uee�ehe� cemminiepw��lee�manp�eu�ehe�eeiggees�and�eheesheldsm�ehe�deaue�indicaees�ehep�eeee� implemeneed�uee�ehe�cemminiepm�lie�indee�develepmene�uee�ehe�Teaining�oeneeesw� � ee�is�pesieive�ehae�ehe�oemmeneealeh�has�addeessed�seme�eu�ehe�siggeseiens�made�in�ehe� oensileaness�lase�eepeeem�incliding1� Euueees�have�leen�made�ee�ensiee�ehe�eisns�and�eeiggees�aee�sensieive�eneigh�ee� ideneiup�ehese�individials�eieh�highmeisn�in�ceeeain�aeeasw��lee�enamplem�ehe�eeiggees� have�leen�mediuied�ee�eeulece�ehae�ene�incidence�eu�aspieaeien�pneimenia�is�signiuicane� and�sheild�eesile�in�immediaee�eeviee�ee�peevene�ehe�nene�hespiealinaeien�and/ee� deaehw���� Deuinieiens�have�leen�addedm�ehich�sheild�assise�in�daea�eelialiliepw� meevieislpm�seme�eu�ehe�indicaeees�made�eeueeence�ee�changes�in�peeceneages�in�eaees� eum�uee�enamplem�eveeall�medicaeien�eeeees�ee�ueaceieesw��Heeeveem�iu�a�peevideess�eaees� aleeadp�eeee�eee�highm�ehese�indicaeees�eeild� nee�capeiee�ehe�uace�ehae�a�eisn�eu�haem� aleeadp�eniseed�and�mighe�eesile�in�uieehee�eisn�eu�haemw��Since�ehe�lase�eevieem�ehe� oemmeneealeh�has�eemeved�ehese�eeueeencesw��

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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 129 of 152 PageID# 5682
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 130 of 152 PageID# 5683
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The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol. The protocol shall require that any sta o a Training Center, CSB, or community provider aware o any suspected or alleged incident o abuse or neglect as de ined by Virginia Code � 37.2-100 in e ect on the e ective date o this Agreement, serious injury as de ined by 12 VAC 3S-11S-30 in e ect on the e ective date o this Agreement, or deaths directly report such in ormation to the DBHDS Assistant Commissioner or Quality Improvement or his or her designee.
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 131 of 152 PageID# 5684

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The Commonwealth shall o er guidance and training to providers on proactively identi ying and addressing risks o harm, conducting root cause analysis, and developing and monitoring corrective actions.
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As�ehe�DHHDS�enveseigaeiens�meecess�eeaining�and�eelaeed�giidelines�and�manial�aee� uinalinedm�censideeaeien�sheild�le�given�ee�addeessing�ehe�aeeas�ideneiuied�aleve�in� ehich�ehe�peevisien�eu� addieienal�inueemaeien�is�eecemmendedw��� lieehee�eeaining�sheild�le�inclided�in�ene�ee�leeh�eeaining�medilesm�ee�a�sepaeaee� eeaining�inieiaeedm�eelaeed�ee�ehe�develepmene�eu�ceeeeceive�aceien�plans�and�an� assessmene�eu�eheie�euueceivenessw��� lee�leeh�ehe�enveseigaeien�meecess�eeaining�and�ehe�eeee�oaise�Analpsis�eeainingm�ehe� oemmeneealeh�sheild�euuee�classeeem�eeainingm�as�eell�as�enline�eeainingm�incliding� ehe�eniivalene�eu�enpeeieneialmlased�leaeningm�sich�as�eelemplaps�and�discissien�in�ehe� enline�eeainingw� The�cieeene�deaue�eu�ehe�enveseigaeiens�meecess�eeaining�medile�dees�nee�have�a� cempeeencpmlased�cempenenem�lie�DHHDS�seauu�indicaeed�eheie�ineene�ee�liild�seme� cempeeencpmlased�cempenenes�inee�ehe�uinal�eeainingw��Aiven�ehe�speciuic�snills� eeniieed�ee�cendice�eheeeigh�inveseigaeiens�and�eeiee�eepeees�ehae�inclide�seeeng� lases�uee�ehe�uindingsm�ehe�uinal�eeaining�sheild�inclide�speciuic�cempeeencpmlased� cempenenesw��These�sheild�inclidem�lie�nee�le�limieed�eem�cempeeencies�eieh�eegaed�ee� ehe�develepmene�eu�an�inveseigaeien�planm�secieing�evidencem�cendiceing�ineeevieesm� ineeevieeing�individials�eieh�ineelleceial�disalilieiesm�eecenciliaeien�eu�evidencem�and� inveseigaeien�eepeee�eeieingw�� ee�eill�le�impeeeane�ee�deuine�seandaeds�uee�ehae�censeieiees�a�6eeained�inveseigaeeewg��eu� eeaining�eehee�ehan�ehe�oemmeneealehmdeveleped�eeaining�eill�le�accepeallem�ehe� eeniieemenes�uee�sich�eeaining�sheild�le�deuinedw� The�oemmeneealeh�sheild�develep�a�cempleee�see�eu�seandaeds�uee�adeniaee� inveseigaeiens�and�inveseigaeien�eepeees�uee�ise�lp�aicensing�Specialises�and�Himan� eighes�Advecaeesw� A�spseem�sheild�le�develeped�and�implemeneed�ee�ensiee�ehae�cemminiep�peevidees� de�nee�hiee�seauu�cenuiemed�ee�have�peepeeeaeed�alisem�neglecem�and�enpleieaeienw� �
1. The Commonwealth's HCBS [Home and Community-Based Services] waivers shall operate in accordance with the Commonwealth's CMS [Centers or Medicare and Medicaid Services]-approved waiver quality improvement plan to ensure the needs o individuals enrolled in a waiver are met, that individuals have choice in all aspects o their selection o goals and supports, and that there are e ective processes in place to monitor participant health and sa ety. The plan shall include evaluation o level o care; development and monitoring o individual service plans; assurance o quali ied providers; identi ication, response and prevention o occurrences o abuse, neglect and exploitation; administrative oversight o all waiver unctions including contracting; and inancial accountability. Review o data shall occur at the local and state levels by the CBSs and DBHDSjDMAS, respectively.
2. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility o services or individuals in the target population and the quality o services o ered to individuals receiving services under this agreement. The Commonwealth shall use data to: a. Identi y trends, patterns, strengths, and problems at the individual, servicedelivery, and systemic levels, including, but not limited to, quality o services, service gaps, accessibility o services, serving individuals with complex needs,

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and the discharge and transition planning process; b. Develop preventative, corrective, and improvement measures to address
identi ied problems; c. Track the e icacy o preventative, corrective, and improvement measures;
and d. Enhance outreach, education, and training. 3. The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected rom the ollowing areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed rom each o these areas by June 30, 2014. Multiple types o sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type o source need not provide data in every area: a. Sa ety and reedom rom harm (e.g., neglect and abuse, injuries, use o
seclusion or restraints, deaths, e ectiveness o corrective actions, licensing violations); b. Physical, mental, and behavioral health and well being (e.g., access to medial care (including preventative care), timeliness and adequacy o interventions (particularly in response to changes in status); c. Avoiding crises (e.g., use o crisis services, admissions to emergency rooms or hospitals, admissions to Training Centers or other congregate settings, contact with criminal justice system); d. Stability (e.g., maintenance o chosen living arrangement, change in providers, workjother day program stability); e. Choice and sel -determination (e.g., service plans developed through personcentered planning process, choice o services and providers, individualized goals, sel -direction o services); . Community inclusion (e.g., community activities, integrated work opportunities, integrated living options, educational opportunities, relationships with non-paid individuals); g. Access to services (e.g., waitlists, outreach e orts, identi ied barriers, service gaps and delays, adaptive equipment, transportation, availability o services geographically, cultural and linguistic competency); and h. Provider capacity (e.g., caseloads, training, sta turnover, provider competency). S. The Commonwealth shall implement Regional Quality Councils that shall be responsible or assessing relevant data, identi ying trends, and recommending responsive actions in their respective Regions o the Commonwealth. a. The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and
amilies, and may include other relevant stakeholders. b. Each council shall meet on a quarterly basis to share regional data, trends,
and monitoring e orts and plan and recommend regional quality improvement initiatives. The work o the Regional Quality Councils shall be directed by a DBHDS quality improvement committee. 6. At least annually, the Commonwealth shall report publicly, through new or existing mechanisms, on the availability (including the number o people served in each type

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o service described in this Agreement) and quality o supports and services in the community and gaps in services, and shall make recommendations or improvements.
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1. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement ("QI") program, including root cause analyses, that is su icient to identi y and address signi icant service issues and is consistent with the requirements o the DBHDS Licensing Regulations at 12 VAC 3S-10S-620 in e ect on the e ective date o this Agreement and the provisions o this Agreement.
2. Within 12 months o the e ective date o this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk managementjcritical incident reporting requirements or through their QI program. Reported key indicators shall capture in ormation regarding both positive and negative outcomes or both health and sa ety and community integration, and will be selected rom the relevant domains listed in Section V.D.3 above. The measures will be monitored and reviewed by the DBHDS quality improvement committee, with input rom the Regional Quality Councils, described in Section V.D.S above. The DBHDS quality improvement committee will assess the validity o each measure at least annually and update measures accordingly.
3. The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy o providers' quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
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1. The Commonwealth shall have a statewide core competency-based training curriculum or all sta who provide services under this Agreement. The training shall include person-centered practices, community integration and sel determination awareness, and required elements o service training.
2. The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision o sta trainees. Coaches and supervisors must have demonstrated competency in providing the services they are coaching and supervising.
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1. The Commonwealth shall use Quality Service Reviews ("QSRs") to evaluate the quality o services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals' needs and choice. QSRs shall collect in ormation through: a. Face-to Face interviews o the individual, relevant pro essional sta , and other people involved in the individual's li e; and b. Assessment, in ormed by ace-to- ace interviews, o treatment records, incidentjinjury data, key-indicator per ormance data, compliance with the service requirements o this Agreement, and the contractual compliance o community services boards andjor community providers.
2. QSRs shall evaluate whether individuals' needs are being identi ied and met through person-centered planning and thinking (including building on the individuals' strengths, pre erences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals' needs and consistent with their in ormed choice, and whether individuals are having opportunities or integration in all aspects o their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities or relationships with non-paid individuals). In ormation rom the QSRs shall be used to improve practice and the quality o services on the provider, CSB, and system wide levels.
3. The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample o look-behind QSRs are completed to validate the reliability o the QSR process.
4. The Commonwealth shall conduct QSRs annually o a statistically signi icant sample o individuals receiving services under this Agreement.
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Case 3:12-cv-00059-JAG Document 158 Filed 12/08/14 Page 152 of 152 PageID# 5705
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 </s> Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 1 of 149 PageID# 5768

REPORT OF THE INDEPENDENT REVIEWER 
 ON COMPLIANCE 
 WITH THE 

SETTLEMENT AGREEMENT 
 UNITED STATES v. COMMONWEALTH OF VIRGINIA 

United States District Court for 
 Eastern District of Virginia 

Civil Action No. 3:12 CV 059
 October 7, 2014 – April 6, 2015 


Respectfully Submitted By

Donald J. Fletcher Independent Reviewer
June 6, 2015

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 2 of 149 PageID# 5769


TABLE OF CONTENTS 


I. EXECUTIVE SUMMARY………………………………………….…………………… 3 


II. SUMMARY OF COMPLIANCE: YEAR THREE, SECOND HALF……………….. 7 


Section III. Serving Individuals with ID/DD in the most integrated settings.......7 


Waivers…………………………………………………………..….7 


Case Management…………………………………………….……....8




Crisis Services……………………………………………..….…...….9




Integrated Day and Supported Employment Opportunities...........................12 


Independent Living Options………………………………......…..…...15




Community Resource Consultants…………………..………….............17




Section IV. Discharge Planning and Transition from Training Centers….….….18 


Section V. Quality and Risk Management………...……………………..……...25 


Section VI. Independent Reviewer……………………………….....…..………..33 


Section IX. Implementation……………………………………………………....33 


III. DISCUSSION OF COMPLIANCE FINDINGS………………………………………34 A. Methodology……………………………………………………………….…34 B. Compliance Findings………………………………………………………....35 
 1. Providing Waivers……………………………………………….35 2. Discharge Planning and Transition from Training Centers………......35 
 3. Transition of Children from Nursing Homes and Large ICFs……......36 
 4. Individual Reviews…………………………………………........36 
 5. Case Management and Licensing……………………………….....39 
 6. Crisis Services…………………………………………………...42 
 7. Integrated Day Opportunities……………………………………...47 
 8. Supported Employment……………………………………….......48 
 9. Individual and Family Support……………………………………50 10. Guidelines for Families Seeking Services…………………………....53


IV. CONCLUSION…………………………………………………………………………..55


V RECOMMENDATIONS………………………………………………………………..56


VI. APPENDICES……………………………………………………....……………………58

A. Individual Review Study…………………………………………….….…59 B. Case Management and Licensing………………………………….….…..64 
 C. Crisis Services…………………………………………………….…….….78 D. Integrated Day Activities - Employment Services………...……….……..102 
 E. Individual/Family Supports and Guidelines to Access………….…….…125 F. List of Acronyms……………….………………………………….……...148 


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I. EXECUTIVE SUMMARY 

This is the Independent Reviewer’s sixth report on the status of compliance with the Settlement Agreement (Agreement) between the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This report documents and discusses the Commonwealth’s efforts and the status of its compliance with its obligations, during the review period October 7, 2014 – April 6, 2015. The review period approximates the second half of the third year of the Commonwealth’s implementation efforts.
The Agreement’s provisions that the Commonwealth was to have implemented during the first three years include the structural components of the Commonwealth’s community-based service system. These include strengthening its case management and licensing services, adding crisis services, and creating integrated day and community living options for individuals with intellectual and developmental disabilities (ID/DD).
These services are cornerstones of a statewide system for individuals with intellectual and developmental disabilities that is able to effectively address the Agreement’s first, and overarching, service provision “to prevent unnecessary institutionalization and provide opportunities to live in the most integrated setting appropriate to their needs and consistent with … informed choice.”
For more than two years, the Commonwealth has identified the redesign of its Home and Community Based Services (HCBS) waivers as its primary strategy to reform the service system and to come into compliance with many provisions of the Agreement. During this review period, the Commonwealth has not been able to put its redesigned waivers into effect. The Commonwealth continues, therefore, not to be in compliance with many provisions. Furthermore, the Commonwealth will remain in non-compliance until it puts into effect, and effectively implements, a restructuring of its system that accomplishes the changes needed to meet these requirements. The Commonwealth’s proposed redesign of its HCBS waiver program includes reforms needed to provide essential community-based services for individuals with complex medical and behavioral, and to offer integrated day and independent living options, as required.
Also, the Commonwealth has not provided the housing resources needed to substantively increase the desired outcome of its housing plan. The desired outcome would mean that a substantial number of individuals in the target population have a choice, if appropriate to their needs, and actually move into their own homes or apartments. The Commonwealth must also provide housing supports and the resources needed to facilitate individuals moving to more independent and more integrated living options.
The Commonwealth has achieved compliance with many of the Agreement’s provisions. Its leaders meet regularly and collaborate to develop and implement plans to make progress toward achieving other requirements. The Commonwealth has formed an interagency consortium to kick-off a 100­ day initiative to increase future housing options, including independent living options, for individuals in the target population. The Commonwealth also continues to develop the detailed rules and policies that will govern the operations of its redesigned HCBS waivers. The Department of Behavioral Health and Developmental Services (DBHDS) and the Department of Medical Assistance Services (DMAS) continue to work with the Center for Medicaid Services (CMS) to

Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 4 of 149 PageID# 5771
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identify any necessary revisions in the Commonwealth’s draft restructure plans to gain the required CMS approval.
The Department of Behavioral Health and Developmental Services (DBHDS) has reorganized its management structure to effectively implement initiatives needed to accomplish the requirements of the Agreement. During this review period, it has newly achieved compliance with some provisions and has made progress toward achieving others. It remains, however, significantly behind schedule. The Commonwealth has experienced repeated delays in complying with certain obligations. In addition, it has not put into effect two core strategies: implementing its redesigned HCBS waiver and providing ongoing rent assistance to support independent living options. These strategies have been, and continue to be, presented as essential to achieving compliance.
The following table “Summary of Compliance: Year Three - First Half” provides a rating of compliance and an explanatory comment for each provision. The “Discussion of Findings” Section includes additional information to explain the compliance ratings, as do the consultant reports that are included in the Appendix. The Independent Reviewer’s (IR) recommendations are included at the end of this report.
To determine the compliance ratings, the IR has again primarily focused monitoring on quantitative measures, i.e. whether the Commonwealth has the required staff, policies, programs and process elements in place. The IR has also monitored whether these system elements are functioning, as measured by the number of individuals served or staff trained. The Commonwealth is still developing and implementing elements that were to have been in place by this time. As the Commonwealth implements these elements, the IR will initially monitor compliance with the quantitative aspects of the provisions. For the process and program elements that the Commonwealth has fully developed, the IR will gradually shift the focus of monitoring. For these provisions, future monitoring will determine whether the operating processes and programs comply with the quality measures of the Agreement’s provisions and whether they result in positive outcomes.
For the sixth review period, the IR has determined that the Commonwealth:
maintained ratings of compliance with provisions of the Agreements that include: 
 the creation of HCBS waiver slots; 
 increased case management and licensing oversight; 
 discharge planning and transition services for individuals residing in Training Centers; and development of a statewide crisis services system for adults with intellectual and
developmental disabilities (ID/DD).
newly achieved ratings of compliance with provisions related to: 
 Virginia’s Plan to Increase Independent Living; 
 offering choice of service providers; and 
 Regional Quality Councils. 

remains in non-compliance with requirements that were to be implemented by this time including:
opportunities for individuals with ID/DD to live in most integrated settings; transition of children to community homes from nursing facilities and large ICFs; crisis services for children and adolescents;

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integrated day activities and supported employment; subsidized community living options; and an individual support planning process focused on helping individuals to learn new skills in order to become more self-sufficient. The Commonwealth has continued efforts to achieve compliance in most of theses areas. Despite these efforts, the IR determined that the Commonwealth has not yet met these requirements. The Commonwealth has not implemented initiatives sufficiently to substantively impact the members of the target population. With the Commonwealth’s delay both in implementing its redesigned HCBS waiver and in providing housing resources, it remains in non-compliance and will remain in non­ compliance until it implements needed systems reforms.
The Quality and Risk Management provisions (i.e. Quality provisions) comprise a substantial portion of the number and complexity of the Agreement’s requirements. These provisions are designed with the goal of ensuring that all services are of good quality, meet individuals’ needs, and help individuals achieve positive outcomes. The Parties recognized that implementation of these provisions would involve building a statewide system that operates with multiple levels, variables, and sources of input. Although components of a Quality system had existed, the Agreement recognized that what existed fell far short of what should be established. When the Agreement was approved, the Commonwealth had an inadequate organizational infrastructure and insufficient human resources to design, build and operate a statewide operating Quality and Risk Management system. All stakeholders want the Commonwealth to have achieved by now the goals of the Quality provisions, but this is an enormous and complex undertaking. The Commonwealth has now added leadership and staff and has implemented the structural components of a Quality system. It is now creating the organization processes and performance expectations needed to effectively implement a statewide Quality system. The Parties did not agree on due dates; many of the provisions in this section do not have them. The IR prioritized monitoring the Quality provisions during the previous review period. The Commonwealth was in non-compliance with most of these provisions at that time. The IR decided not to prioritize monitoring these provisions during this current period. The four month period since the IR’s December 6, 2014 Report and the April 6, 2015 end of the current review period was too brief to accomplish substantial systemic change. Updated compliance ratings are deferred until the next review period when the IR will prioritize monitoring the Quality provisions.

This report also does not include updated ratings of compliance for most Discharge Planning and Transition provisions. The IR prioritized monitoring these provisions in the previous Report to the Court. At that time, the IR determined that the Commonwealth had achieved compliance with twenty-four of the thirty-three requirements. The IR has determined that the substantial changes needed to achieve compliance ratings in most remaining areas would require more than one review period. Therefore, updated compliance ratings are deferred until the next review period when the IR will prioritize monitoring the Discharge Planning and Transition provisions.

Under the Agreement, the Commonwealth has created 2005 HCBS waiver slots, 200 more than the minimum required. These waiver slots allowed individuals with ID and DD, most of whom had been on waitlists for many years, to receive HCBS waiver-funded services. The IR found that receiving these services has significantly improved the quality of life for these individuals and their families. Between October 11, 2011 and April 30, 2015, the Commonwealth has assisted 443 individuals to transition from the Training Centers to more integrated community-based settings. The IR’s studies of more than 100 of these individuals’ services found that, although there were

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exceptions, the vast majority of the individuals who have moved have adjusted well to their new homes and have experienced positive life outcomes. Notably, during this period, the number of children and adults with ID/DD on the Commonwealth’s waitlists has continued to increase to 9867, as of April 2015, with an increase of more than a thousand during the past year.
During the next review period, the IR will prioritize monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: crisis services for individuals admitted to psychiatric and law enforcement facilities and long term hospitals; Quality and Risk Management; and Discharge Planning and Transition from Training Centers. The Individual Review study will focus on individuals who have transitioned from Training Centers to community-based living in Regions I and II.
In summary, the Commonwealth remains in compliance with many provisions of the Agreement. It is making progress toward achieving others. It also remains in continued non-compliance with many core provisions. Its strategy to come into compliance is the redesign of its HCBS waivers. However, during this review period, the Commonwealth’s redesigned waiver did not go into effect. The Commonwealth will remain in non-compliance until it effectively implements needed system reforms.
Throughout the review period, the Commonwealth’s staff have been accessible, forthright, and responsive. Attorneys and independent consultants from the Department of Justice have gathered information that will be helpful to effective implementation and have worked collaboratively with the Commonwealth. The Parties have openly and regularly discussed implementation issues and concerns with progress toward the shared goals embodied in the Agreement. The involvement and contributions of the stakeholders have been vitally important to progress that the Commonwealth has made to date; their involvement will continue to be important. The IR appreciates greatly the assistance generously given by the individuals and their families, their case managers and their service providers who helped to arrange visits to family homes and program settings and to respond to his many requests for information. Finally, the Parties and the stakeholders were very helpful with their candid assessments of the progress made and observations of the challenges ahead.

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II. SUMMARY OF COMPLIANCE: YEAR THREE - SECOND HALF

Settlement Agreement Reference
III
III.C.1.a.i-iii.

Provision

Rating

Complianc

e ratings

for the

fourth, fifth

Serving Individuals with Developmental Disabilities In the
Most Integrated Setting

and sixth review periods are presented

as:

(4th period)

5th period

6th period

The Commonwealth shall create a minimum of (Compliance)

805 waiver slots to enable individuals in the

Compliance

target population in the Training Centers to Compliance

transition to the community according to the

following schedule:

Comments
Comments include examples to explain the ratings and status. The Findings Section and attached consultant reports include additional explanatory information.
The Commonwealth created 470 waiver slots during FY 2012 -2015, the minimum number required.

III.C.1.b.i-iii

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities). In State Fiscal Year 2015, 225 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

The Commonwealth shall create a minimum

of 450 waiver slots to prevent the

institutionalization of individuals with

developmental disabilities other than

intellectual disabilities in the target

III.C.1.c.i-iii.

population who are on the waitlist for a waiver, or to transition to the community

individuals with developmental disabilities

other than intellectual disabilities under 22

years of age from institutions other than the

Training Centers (i.e., ICFs and nursing

facilities). In State Fiscal Year 2014, 25

(Compliance) Non
Compliance
Non Compliance
(Compliance) Non
Compliance Non
Compliance

The Commonwealth created 1175 waiver slots during FY 2012 - 2015, 200 more than the minimum required of 975. It created only 25 in FY 2015. The Commonwealth maintained compliance by counting slots created above the requirement in the prior year, as allowed by III.C.1.d The Commonwealth has not implemented its plan to transition individuals under 22 years of age. See comment below. The Commonwealth created 360 waiver slots between FY 2012 and FY 2015 for individuals with DD, other than ID, and met the quantitative requirements of this provision. This exceeds by 135 the minimum required 225 waiver slots. The Commonwealth has not Implemented its plan to transition individuals under

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 �

Settlement Agreement Reference
III.C.2.a-b
III.C.5.a III.C.5.b.
III.C.5.b.i.

Provision
waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs The Commonwealth shall create an individual and family support program for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2015, a minimum of 1000 individuals supported.
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.
For the purpose of this agreement, case management shall mean: Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

Rating

Comments

(Compliance) Compliance
Non Compliance

22 years of age. It has prioritized diverting new admissions to nursing homes. The Commonwealth met the quantitative requirement by supporting 1294 individuals in FY 2014 and 600 in the first of two equal funding cycles in FY 15. The individual and family support program does not include a comprehensive and coordinated set of strategies, as required by the program’s definition in Section II.D.

(Compliance) Compliance Compliance

D 80 (100%) of the individuals studied were receiving case management. D 78 (97.5%) of the 80 studied had current Individual Support Plans

(Non Compliance)
Non Compliance
Non Compliance

D For 3 (12%) of 24 individuals studied evidence of actual or potential harm was found. D For 9 (60%) of 15 individuals, employment goals were not developed or discussed. D For 16 (64%) of 25 individuals, the ISPs did not include activities that lead to skill development or increased integration.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

(Non Compliance)
Non Compliance
Non Compliance

See answers immediately above. In addition D 4 (40%) of 10 individuals were not receiving needed communication/ assistive technology. D 8 (33.3%) of 24 were not receiving dental care.

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 9 of 149 PageID# 5776
 �

Settlement Agreement Reference
III.C.5.b.iii

Provision
Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.

III.C.5.c III.C.5.d

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities.

III.C.6.a.i-iii

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance (Compliance)
Non Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

See comments for the two provisions directly above.
The IR did not find evidence that case managers provided direct services, other than case management. A provision is included in the “FY 2015 CSB Performance Contract” with the requirement to offer choice. Eighty-one percent (81%) of thirty-one individuals / families interviewed knew that they had the choice of choosing /changing service providers, including the case manager. The DBHDS regulations and its Office of Licensing Services (OLS) monitoring protocols do not align with Agreement’s requirements. DBHDS is implementing additional monitoring processes. The Commonwealth has developed the required program elements of a statewide crisis system for adults with ID/DD. There are qualitative concerns that will be reviewed in the next period. DBHDS has developed a plan and begun to implement a crisis system for children and adolescents. These services are not yet fully in place. Funds have been appropriated with a Dec. 2016 target date for full implementation.

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 10 of 149 PageID# 5777
 �

Settlement Agreement Reference
III.C.6.b.i.A

Provision
The Commonwealth shall utilize existing CSB Emergency Service, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

Rating (Compliance) Compliance Compliance

Comments
All Regions’ REACH crisis response services continue to be available 24 hours per day. Referrals have occurred during business, evening and weekend hours.

III.C.6.b.i.B

By June 30, 2012, the Commonwealth shall train CSB Emergency Services personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely III.C.6.b.ii.A. assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.

(Compliance) Compliance Compliance

REACH programs continue to train CSB Emergency Services (ES) staff and report quarterly. The DBHDS has developed a standardized curriculum. All new CSB ES staff and case managers will be required to be trained.

(Compliance) Compliance Compliance

Evidence-based training was provided to all REACH programs. DBHDS developed a training program and a process to reinforce learning through supervision, team meeting discussions and peer review.

III.C.6.b.ii.B

Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

(Compliance)
Non Compliance
Compliance

REACH teams continue to provide crisis response, crisis intervention, and crisis planning. During this review period DBHDS provided data confirming the delivery of these services.

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.
III.C.6.b.ii.C

(Non Compliance)
Non Compliance
Compliance

The Commonwealth developed a plan, communicated with, disseminated written materials to, and conducted regional meetings with law enforcement entities about crisis services. It developed an online training module available to police. 226 officers were trained during the review period.

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 �

Settlement Agreement Reference

Provision
Mobile crisis teams shall be available 24 hours per day, 7 days per week and to respond on-site to crises.

III.C.6.b.ii.D

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

III.C.6.b.ii.G

By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.

By June 30, 2014, the Commonwealth shall

have a sufficient number of mobile crisis

teams in each Region to respond on site to

III.C.6.b.ii.H crises as follows: in urban areas, within one

hour, and in rural areas, within two hours, as

measured by the average annual response

time.

Crisis Stabilization programs offer a short-

III.C6.b.iii.A.

term alternative to institutionalization or hospitalization for individuals who need

inpatient stabilization services

Crisis stabilization programs shall be used as

a last resort. The State shall ensure that,

prior to transferring an individual to a crisis

stabilization program, the mobile crisis team,

in collaboration with the provider, has first

III.C.6.b.iii.B. attempted to resolve the crisis to avoid an

out-of-home placement and if that is not

possible, has then attempted to locate

another community-based placement that

could serve as a short-term placement.

Rating

Comments

(Compliance)
Non Compliance
Compliance

All Regions’ REACH mobile crisis teams operate and respond at all hours. DBHDS reported information regarding where crisis assessments were conducted during second and third quarters of FY15.

(Non Compliance)
Compliance
Compliance

The Commonwealth is now providing data on the amount of time that is devoted to a particular individual. All but one Region provided individuals with more than an average of three days of inhome support services.

(Non Compliance)
Non Compliance
Non Compliance
(Not due)
Compliance
Non Compliance

The Commonwealth has not created new teams. Regions added staff to existing teams to improve response time. DBHDS records do not demonstrate compliance. Three Regions are missing data that responses are within the required time frame. DBHDS cannot provide data from the time between the crisis call and the time of on-site response.

(Compliance) Compliance Compliance
(Compliance) Compliance
Compliance

All Regions continue to have crisis stabilization programs that are providing short-term alternatives. For those admitted to the programs, crisis stabilization programs continue to be used as last resort. For these individuals teams have attempted to resolve crises and avoid out-of home placements.

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 12 of 149 PageID# 5779
 �

Settlement

Agreement

Provision

Reference

If an individual receives crisis stabilization

services in a community-based placement

instead of a crisis stabilization unit, the

individual may be given the option of

III.C.6.b.iii.C. remaining in the placement if the provider is

willing and has capacity to serve the

individual and the provider can meet the

needs of the individual as determined by the

provider and the individual’s case manager.

Crisis stabilization programs shall have no

III.C.6.b.iii.D. more than six beds and lengths of stay shall

not exceed 30 days.

With the exception of the Pathways Program

at SWVTC … crisis stabilization programs

shall not be located on the grounds of the

Training Centers or hospitals with inpatient

III.C.6.b.iii.E. psychiatric beds.

By June 30, 2012, the Commonwealth shall III.C.6.b.iii.F. develop one crisis stabilization program in
each Region. By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the III.C.6.b.iii.G. needs of the target population in that Region.

III.C.7.b

The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy.

Rating

Comments

(Deferred) Deferred Deferred

The Parties have not yet determined whether this provision should remain. Placing individuals who are in crises into the homes of other individuals with ID/DD is not a recommended practice.

(Compliance) Compliance Compliance (Substantial Compliance)
Substantial Compliance
Substantial Compliance
(Compliance) Compliance Compliance (Compliance)
Compliance
Compliance
(Compliance) Non
Compliance
Non Compliance

All five Regions’ crisis stabilization programs continue to comply. Four Regions’ stabilization programs (Crisis Therapeutic Homes) are not located on institution grounds and are in compliance. Region IV has secured land and has developed architectural drawings to build a crisis stabilization home. Each Region developed and currently maintains a crisis stabilization program. Each Region’s existing crisis stabilization program had unused bed days available during the second and third quarters of FY 2015. The Regions have the capacity to assist other Regions with crisis stabilization beds fully occupied.
For 9 (60%) of 15 individuals studied, case managers did not develop and discuss employment goals and supports. The consultant’s study found that for 16 (76%) of 21 individuals the ISP discussion did not include employment. The CSBs have not effectively implemented the Commonwealth’s performance requirements re: Employment First.

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Settlement Agreement Reference
III.C.7.b.i.

Provision
Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community rec. opportunities, and other integrated day activities.

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth has still not developed a full implementation plan for integrated day activities. The Commonwealth’s plan is largely on-hold until its primary strategy for reform, i.e. the redesigned HCBS waivers are in effect.

III.C.7.b.i. A.
III.C.7.b.i. B.1.
III.C.7.b.i. B.1.a.
III.C.7.b.i. B.1.b.
III.C.7.b.i. B.1.c.
III.C.7.b.i. B.1.d.
III.C.7.b.i. B.1.e.

Provide regional training on the Employment First policy and strategies through the Commonwealth.
Establish, for individuals receiving services through the HCBS waivers annual baseline information re: The number of individuals who are receiving supported employment
The length of time individuals maintain employment in integrated work settings.
Amount of earnings from supported employment;
The number of individuals in pre-vocational services. The length-of-time individuals remain in pre­ vocational services.

(Compliance) Compliance Compliance

The employment services coordinator provided numerous trainings throughout the Commonwealth.

(Compliance) Compliance

The Commonwealth began a promising method of collecting data. It cannot, however,

determine the number of

Non

individuals who are

Compliance receiving supported

employment. Data have been collected from only

44% of the Employment Service Organizations and

70% of the individuals.

(Compliance) See answer above for
Non Compliance III.C.7.b.i.B.1.a. Non

Compliance

(Non Compliance)
Non

See answer above for III.C.7.b.i.B.1.a.

Compliance Non

Compliance

(Compliance) The Commonwealth Compliance provided the number of Compliance individuals.

(Compliance) The Commonwealth Compliance provided the number who Compliance remain in such services.

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Settlement Agreement Reference
III.C.7.b.i. B.2.a.
III.C.7.b.i. B.2.b.
III.C.7.c.
III.C.7.d
III.C.8.a.

Provision

Rating

Comments

Targets to meaningfully increase: the number of individuals who enroll in supported employment each year
The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.

(Compliance) Compliance
Non Compliance
(Compliance) Compliance
Non Compliance

The Commonwealth began a new and promising method of collecting data. It also expanded the definition of the cohort to include a much number of individuals. The Commonwealth’ s previous targets were based on a much smaller number of individuals and do not represent a meaningful increase for the larger cohort.
The Commonwealth has expanded the definition to include a much higher number of individuals. The new data cannot be compared to the old data to determine the number who remain employed.

Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.

(Deferred) Non
Compliance
Compliance

The RQCs met quarterly. The DBHDS Employment Coordinator, the liaison between the SELN (Supported Employment Leadership Network) and the RQCs, presented employment data to them. Meeting minutes indicate that the RQCs engaged in substantive discussions.

The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.

(Deferred) Same as immediately above Non Compliance
Compliance

The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.

(Compliance) Compliance Compliance

Of the Individuals studied over three review periods, D 61 (96.4%) of 66 were receiving transportation services. The IR has not assessed the quality of the transportation services. Many families report problems with Logisticare subcontractors.

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Settlement Agreement Reference
III.C.8.b.
III.D.1.
III.D.2.
III.D.3.

Provision
The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources… Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth updated guidelines (“Just the Facts”) for individuals with waiver-funded services. These guidelines did not include information regarding how and where to apply and how to obtain services for 9,867 individuals / families who are on the waitlists or others seeking services who do not know how to apply to get on it. DBHDS has not updated the outdated IFSP guidelines for those on waitlists. Individuals are primarily offered congregate settings. An increased percent of the individuals who transitioned from Training Centers have moved to homes with five or more residents. D45% in FY 2014, 84 of 185 D55% in FY 2015, 52 of 94. The Commonwealth lacks capacity in northern Virginia for residential settings with four or fewer beds. The Commonwealth has not been able to facilitate individuals receiving waivers who would choose to live in their own home to do so. The Commonwealth is making multiple changes in its systems to move toward achieving compliance.

(Non Compliance)
Non Compliance

The Commonwealth developed a plan. It has not substantively increased access to independent living options. The Commonwealth has created

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Provision

III.D.3.a. III.D.3.b.i-ii

The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ... The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

III.D.4

Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii.

Rating

Comments

Non Compliance
(Compliance) Compliance

strategies to improve access to independent living options. Some individuals have received rental assistance to live in their own apartments. A DBHDS housing service coordinator developed the plan with these representatives and others.

Compliance

(Non Compliance) Compliance
Compliance

The Commonwealth estimated the number of individuals who would choose independent living options through FY15. It revised its Housing Plan with new strategies and recommendations to increase access and improvements to Low Income Tax Housing Credit (LITHC) and Rental Choice programs.

(Non Compliance)
Compliance
Compliance

The Commonwealth has established the one-time fund. Distribution of the funds began. Nine individuals are now living in rental units with this rental assistance.

III.D.5

Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.

(Non Compliance)
Non Compliance

The IR found during the fourth and fifth period 10 (35.7%) of 28 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their families.

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Settlement Agreement Reference
III.D.6
III.D.7

Provision

Rating

Comments

No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant (CRC) and, under circumstances described in Section III.E below, the Regional Support Team (RST).
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …

(Compliance) Compliance
Compliance

The individuals reviewed during the fourth and fifth review periods moved to congregate settings that were consistent with the individuals’ needs and informed choice. For many individuals who chose larger congregate settings, the CRC and RST identified barriers to less integrated settings.

(Compliance) Compliance
Compliance

The Commonwealth: D included this term the “FY 2015 Community Services Performance Contract,” D developed and provided training to case managers D implemented a revised ISP form that confirms education about less restrictive community options. ☐ 24 (78%) of 31 randomly selected families / individuals who had a recent annual ISP recalled less restrictive service options being discussed.

III.E.1

The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CBSs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team in the appropriate Region.

(Compliance) Compliance Compliance

Community Resource Consultants (CRC) are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

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Settlement Agreement Reference
III.E.2
III.E.3.a-d
IV
IV. IV.A

Provision
The CRC may consult at any time with the Regional Support Team. Upon referral to it, the Regional Support Team shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CRC. The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met)
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance

The CRCs referred individuals to the RSTs. CRCs and CIMs submitted some referrals after choices were made. The RSTs did not resolve barriers that were identified to living in most integrated residential or day options.

(Compliance) Compliance
Compliance

DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly. RSTs frequently recommend more integrated options. See comment immediately above regarding the RST’s ability to resolve barriers.

The compliance ratings for the fourth, fifth and sixth review periods are presented as:
(4th period) 5th period 6th period (Compliance)
Compliance
(Non Compliance)
Non Compliance
Non

Note: The IR did not gather information during this review period about individuals who transitioned from Training Centers.
The Commonwealth developed and implemented discharge planning and transition processes prior to July 2012. It made subsequent improvements re: concerns the IR identified. Most integrated residential and day options for individuals with complex needs are often not available. The Commonwealth’s implementation of its redesigned HCBS waiver is

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Settlement Agreement Reference
IV.B.3.
IV.B.4.
IV.B.5. IV.B.5.a.

Provision

Rating

Comments

Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.

Compliance
(Compliance) Compliance

its strategy to come into compliance. That restructure has not yet been put into effect. The IR found that o 55 (100%) of the individuals whose services were studied during the fourth and fifth review periods and their authorized representatives participated in such planning. DBHDS trains staff to present information.

The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).
The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;

(Non Compliance)
Non Compliance
(Compliance) Compliance

The IR found that o 35 (63.6%) of 55 individuals whose services were studied during the fourth and fifth review periods did not have treatment goals with outcomes that led to skill development and increased self-sufficiency. The Commonwealth acknowledges its inability to provide integrated day services without the restructure of the HCBS waivers. The IR studies during the fourth and fifth review periods found that o 30 (100%) of the individuals studied had discharge plans.

DBHDS tracks this information and reports that all residents of Training Centers have discharge plans.

(Compliance) Compliance

The IR found that documentation of information provided was present in the discharge records o for 55 (94.8%) of the 58 individuals studied during the three review periods.

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Settlement Agreement Reference
IV.B.5.b. IV.B.5.c. IV.B.5.d. IV.B.5.e. IV.B.5.e.i.
IV.B.5.e.ii.
IV.B.6

Provision
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes; Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available; Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes; Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers. Such barriers shall not include the individual’s disability or the severity of the disability.
For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.

Rating

Comments

(Compliance) The discharge plans included Compliance this information.

(Compliance) Compliance

o for 26 (96.3%) of 27 individuals studied during the fifth review period, the discharge records included the assessments.

(Compliance) Compliance

The PSTs select and list specific providers that can provide identified supports and services.

(Compliance) Compliance

The CIMs and Regional Support Team document barriers on the data collection sheet.

(Compliance) Compliance

The IR has not found evidence that an individual’s disability, or the severity of the disability, is a barrier in the discharge plans.

(Deferred)
Non Compliance

Reviews of the factors that led to readmission did not occur o for 2 (66.7%) of the 3 individuals who were readmitted during the previous two report periods. The results of the Commonwealth’s new processes will be reviewed and reported the next review period.

(Deferred)
Non Compliance

The individual review study found that the discharge plans lacked recommendations for how individuals can be best served. Discharge plan descriptions of what was important “to” and “for” the individual did not include skill development to increase selfsufficiency or integrated day opportunities.

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Settlement Agreement Reference
IV.B.7 IV.B.9. IV.B.9.a.
IV.B.9.b.
IV.B.9.c.

Provision

Rating

Comments

Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.
In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options. The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.
PSTs and the CSB case manager shall coordinate with the specific type of community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities.
PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.

(Compliance) Compliance
(Compliance) Compliance
(Compliance) Compliance
(Non Compliance)
Non Compliance
(Compliance) Compliance

Individual review studies have not found evidence in discharge plans that complex needs are considered barriers to living in an integrated setting.
The individual reviews during the fifth review period found that o 28 (100%) individuals and their ARs were provided with information regarding community options and had the opportunity to discuss them with the PST.
The IR found that discharge records of individuals reviewed included evidence that the Commonwealth had offered a choice of providers.
The IR’s reviews found that o10 (35.7%) of 28 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their family members. DBHDS developed a family-to-family and peer program and it sends packets of information to ARs. The IR found that the Case Managers’ and Social Workers’ notes, however, frequently did not document discussions that facilitated opportunities to speak with individuals and their families.
The individual reviews found that discharge records document that individuals and their Authorized Representative were assisted and that providers were identified and engaged; o for 27 (96.4%) of 28 individuals studied during the fifth period, the provider staff

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Settlement Agreement Reference
IV.B.11.
IV.B.11.a.
IV.B.11.b.

Provision
The Commonwealth shall ensure that Training Center PST’s have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.
In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meeting and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the personcentered tools and skills. Coaches throughout the state will have regular and structured sessions and person-centered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers

Rating

Comments

(Compliance) Compliance

were trained in support plan protocols that were transferred to the community. During the fifth review period, the IR found that 28 (100%) individuals/Authorized Representatives (AR) who transitioned from Training Centers were provided with information regarding community options.

(Compliance) Compliance

The IR confirmed that at all Training Centers, training has been provided via regular orientation, monthly and ad hoc events, and ongoing information sharing.

(Compliance) Compliance

The IR confirmed that staff receive required personcentered training during orientation and receive annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors.

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Settlement Agreement Reference
IV.B.15

Provision
In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.

Rating

Comments

(Deferred) See Comment for IV.D.3.

Non Compliance

IV.C.1 IV.C.2

Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

(Compliance) Compliance
(Compliance) Compliance

During the fifth period, the IR found that the residential provider staff for o 27 (96.4%) of 28 individuals participated in the pre-move ISP meeting and were trained in the support plan protocols that were transferred to the community.
During the fifth period, the IR found that o 25 (89.3%) of 28 individuals had moved within 6 weeks, or reasons were documented and new time frames developed.

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Settlement Agreement Reference
IV.C.3
IV.C.4
IV.C.5

Provision

Rating

Comments

The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct postmove monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.

(Compliance) Non
Compliance
Compliance
(Compliance) Compliance

The IR determined that the Commonwealth has a wellorganized Post Move Monitoring (PMM) process with increased frequency during the first weeks after transitions. The IR found that for 28 (100%) individuals, PMM visits had occurred and that the monitors had been trained and utilized monitoring checklists.
The Commonwealth came into compliance during the sixth review period as a result of designing and implementing a Post Move Monitoring lookbehind process with a significant sample size.
The IR review studies during the fourth and fifth review periods found that ☐ for 28 (93.3%) of 30 individuals, the Commonwealth updated discharge plans within 30 days prior to discharge.

The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge ...

(Compliance)
Non Compliance

The IR review studies during the fourth and fifth review periods found that ☐ for 8 (28.6%) of 28 individuals the Commonwealth did not ensure that all essential supports were in place prior to discharge.

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Settlement Agreement Reference
IV.C.6
IV.C.7 IV.D.1 IV.D.2.a
IV.D.3

Provision
No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.
The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.
CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;
The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.

Rating

Comments

(Compliance) Compliance

The discharge records reviewed throughout fourth and fifth review periods indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.

(Compliance) Compliance

The IR confirmed that documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans.

(Compliance) Compliance
(Compliance) Compliance

Community Integration Managers are working at each Training Center.
CIMs have reviewed PST recommendations for individuals to be transferred to settings of five or more.

(Compliance)
Non Compliance

The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The IR found, during the fifth period, that o for 1 (16.6%) of 6 individuals referred steps were taken to resolve barriers, that referrals occurred after individuals had moved to less integrated settings, after the Commonwealth recommended a selected list of providers and after the AR had made a choice.

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Settlement Agreement Reference
IV.D.4.
V.
V.B.
V.C.1

Provision

Rating

Comments

The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed …
Quality and Risk Management
The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.
The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.

(Compliance)
Compliance
The compliance ratings for the fourth, fifth and sixth review periods are presented as:
(4th period) 5th period 6th period (Deferred)
Non Compliance
(Deferred)
Non Compliance

The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ.
The IR did not prioritize monitoring the Quality provisions without due dates during this review period. Updated compliance ratings will be determined during the next review period.
The IR determined that the Commonwealth’s planning documents continue to indicate that providers will not be required to report a complete list of significant risks of harm. DBHDS reported that it will revise regulations to clarify expectations of providers. A Risk Management Review process has been established.
The IR determined that the required list of risks and triggers does not include all significant harm and risks of harm. Many of the identified “risks,” actually require harm to have occurred, rather than identifying events that increase risk of harm.

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Settlement Agreement Reference
V.C.2
V.C.3
V.C.4

Provision The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.

Rating

Comments

(Compliance) Non
Compliance
(Deferred) Non
Compliance
(Deferred) Non
Compliance

The IR determined that a web based incident reporting system and reporting protocol was implemented. The DBHDS system, however, does not comply with the real-time reporting requirement. A rating of non­ compliance will remain until the web-based system operates in real time (i.e. within 24 hours of the incident). The IR determined that the Commonwealth established a reporting and investigative process. The DBHDS Office of Human Rights (OHR) investigation reports, however, are not adequate. A future rating of compliance will require that the Commonwealth implement investigation processes and produce reports that meet standards and that identify remedial actions. The Commonwealth has developed, but has not yet offered, the required trainings to providers. The Commonwealth has drafted standards for what constitutes a trained investigator, an adequate investigation, and the components of an investigation report. August 2015 is the expected implementation date.

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Settlement Agreement Reference
V.C.5
V.C.6
V.D.1
V.D.2.a-d

Provision
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system.
If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.
The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety.
The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.

Rating

Comments

(Deferred) Non
Compliance
(Deferred) Non
Compliance
(Deferred) Non
Compliance
(Deferred) Non
Compliance

A Mortality Review Committee completed reviews of unexpected and unexplained deaths, as required. Limited reporting requirements and information flow undermined the ability to identify trends and to determine corrective actions to reduce mortality rates. DBHDS has assigned a nurse to assist and to gather more information. DBHDS is not able to take appropriate action because it cannot effectively utilize the mechanisms to sanction providers, beyond use of Corrective Action Plans and provisional status. The Commonwealth reports exploring options to utilize the sanctions process.
The IR confirmed that DBHDS revised its Informed Choice form and has implemented ISP changes. o 25 (81%) of 31 individuals / families interviewed knew that they had the choice of choosing /changing service providers, including the case manager.
The IR found that data are not available, not reliably collected, not consistently provided, or do not represent an adequate sample for employment, case management, crisis services, investigations, and mortality reviews. The Commonwealth has established a work group with CSB representatives to identify improvements. New systems are reported to have been implemented, but not yet evaluated.

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Settlement Agreement Reference V.D.3.a-h
V.D.4
V.D.5 V.D.5.a
V.D.5.b

Provision

Rating

Comments

The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):

(Deferred)
Non Compliance

The Commonwealth began collecting and analyzing information in FY 2012. Data collection for some measures began as of June 30, 2014.For other measures, it has not begun. Case management, employment and crisis data are not complete or reliable. DBHDS has begun a promising new method of collecting employment data.

The Commonwealth shall collect and analyze data from available sources, including the risk management system described in …(specified sections of the Agreement).
The Commonwealth shall implement Regional Quality Councils that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.

(Deferred) Non
Compliance
(Deferred) Non
Compliance

The IR found that the data collected by DBHDS are frequently incomplete or not reliable and could not be effectively analyzed. DBHDS reports that it implemented a new risk management report and expects future summary reports to include more detailed information. The IR confirmed that Regional Quality Councils met twice during the sixth review period, received a presentation from the Employment Coordinator/ SELN liaison, reviewed employment data, and recommended actions.

The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.

(Deferred) The five Regional Quality Non Compliance Councils now include all the
required members. Compliance

Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.

(Deferred)
Non Compliance

The IR confirmed that the RQCs met during the past two quarters and that they are directed by a DBHDS Quality Improvement Committee. DBHDS reports improvement in RQC ability to review data. Further improvements are expected to be evident during the next review period.

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Settlement Agreement Reference
V.D.6

Provision
At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.

Rating

Comments

(Deferred)
Non Compliance

The DBHDS has not annually reported publically as required. The Commonwealth produces reports with some of this information.

V.E.1 V.E.2 V.E.3

The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis, that is sufficient to identify and address significant issues.

(Deferred)
Non Compliance

The Commonwealth reports that it has drafted expectations of providers’ risk management programs. These expectations will begin to be put in place during the next review period. The Commonwealth does not expect results to be evident until the following review period.

Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.

(Deferred)
Non Compliance

The IR has confirmed that the Commonwealth requires providers to report deaths, serious injuries and allegations of abuse and neglect. DBHDS will require reporting through the risk management and provider QI programs as described in V.E.1, immediately above.

The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.

(Deferred)
Non Compliance

The Commonwealth reports that it now expects that it will implement QSRs during the next review period.

V.F.1

For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.

(Compliance) Compliance

The IR found that o 55 (100%) individuals were receiving case management services. The DBHDS data dashboard indicates that 89% of case managers meet the standard for face-to-face meetings.

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Settlement Agreement Reference
V.F.2
V.F.3.a-f
V.F.4

Provision

Rating

Comments

At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service planning team to address it, and documents its resolution. Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.

(Non Compliance)
Non Compliance
(Compliance) Compliance
(Compliance) Non
Compliance Non
Compliance

The IR determined that of the individuals studied during the fourth and fifth review periods: o12 (64%) of 18 individuals did not have an individual support plan modified as necessary.
DBHDS has described several changes in initial implementation: changes in the ISP, monitoring changes, and training of case management supervisors. The Commonwealth expects that meaningful changes in the ISP will be evident after the next review period.
The IR found that o 47 (100%) individuals who met the eligibility criteria for enhanced case management received monthly face-to-face meetings as required.
The IR determined that DBHDS does not yet have evidence at the policy level that it has reliable mechanism/s to assess CSB compliance with their performance standards relative to case manager contacts. The DBHDS reports that its Data Dashboard does not yet reliably reflect CSB performance due to inadequate CSB data entry.

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Settlement Agreement Reference
V.F.5
V.F.6

Provision
Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in V.D.3.
The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of selfdetermination and person-centeredness.

Rating

Comments

(Deferred)
Non Compliance

The IR determined that the key indicators developed by DBHDS do not address specific elements of the case manager’s face-to-face visit observation and assessments. For example, there are no plans to address the halo effect of case managers skewing reports to the positive.

(Compliance) Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination.

V.G.1 V.G.2.a-f
V.G.3

The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ...
Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.

(Compliance) Compliance
(Compliance) Compliance
(Non Compliance)
Non Compliance

DBHDS unannounced licensing inspections continue to occur regularly.
DBHDS has maintained a licensing inspection process with more frequent inspections.
The DBHDS Licensing protocol does not align with the Agreement’s requirements. DBHDS has created a new three-part monitoring process focused in part on the adequacy of supports. The outcomes of these revised processes will determine their effectiveness. To date there are no data to confirm that this is the case.

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Settlement Agreement Reference
V.H.1
V.H.2 V.I.1.a-b
V.I.2

Provision

Rating

Comments

The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training.

(Deferred) Non
Compliance
Non Compliance

The Commonwealth is offering trainings in personcentered practices, community integration and self –determination awareness. The Commonwealth has not yet:
developed the curriculum to train staff in the required elements of service for the individuals,
determined the required competencies to provide these elements, or
the methods and frequency of determining staff competency

The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.

(Deferred)
Non Compliance

Same as V.E.1 immediately Above.

The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.

(Deferred)
Non Compliance

The Commonwealth experienced delays implementing the QSR process. It now anticipates implementation during the next review period.

QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives (e.g., living arrangements, work and other day activities, access to community services and activities, and opportunities for relationships with non-paid individuals).

(Deferred)
Non Compliance

DBHDS did not implement QSRs during the sixth review period. The framework of the revised QSR plan appears to include elements that are required. The Commonwealth reports that it plans to implement QSRs during the next review period.

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Settlement Agreement Reference
V.I.3
V.I.
VI
VI.D.
IX
IX.C.

Provision

Rating

Comments

The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.

(Deferred)
Non Compliance

Same as V.I.2.immediately above.

The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the Parties … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

(Deferred)
Non Compliance

Same as V.I.2. above. The previous draft contract included determining a statistically significant sample.

(Compliance) Compliance
Compliance

The DHBDS promptly reports to the IR. The IR, in collaboration with a nurse and independent consultants, reviewed and submitted thirteen reports to the Court with copies provided to the Parties. DBHDS has established an internal working group to review and follow-up on the IR’s conclusions and recommendations.

(Non Compliance)
Non Compliance
Non Compliance

The IR has determined that the Commonwealth did not maintain sufficient records to document proper implementation of the individual and family support program, case management, crisis services, employment, and licensing. DBHDS has not established indicators of compliance or how it will measure performance related to these indicators, and, therefore, are not able to determine the records needed.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. The following provisions are related to internal operations of Training Centers and were not monitored: III.C.9, IV.B.1, IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-

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III. DISCUSSION OF COMPLIANCE FINDINGS
A. Methodology:
The Independent Reviewer (IR) and independent consultants monitored the Commonwealth’s compliance with the requirements of the Agreement in several ways:
by reviewing data and documentation produced by the Commonwealth in response to requests by the Independent Reviewer and the Department of Justice; by discussions in regularly scheduled Parties’ meetings and in work sessions with Commonwealth officials; by examining and evaluating documentation of supports provided to individuals and their families; by interviewing individuals and/or their families, providers, and other stakeholders; and by site visits to individuals’ homes, to community based residential, day and other programs.
During this sixth review period, the second half of the third year of implementation, the following areas were prioritized for review and evaluation. Seven independent consultants were retained to complete studies of:
Services for individuals with developmental disabilities, other than intellectual disabilities; Case Management and Licensing; Crisis Services Integrated Day and Supported Employment Individual and Family Support and Guidelines for Families Seeking Services
For the sixth time, the IR utilized his Individual Review Study process and Monitoring Questionnaire to evaluate the status of services for a sample of individuals. By utilizing the same questions over several review periods, for different subgroups, in different geographic areas, the IR identifies both positive outcomes and areas of concern. By reviewing the findings from this review period’s Individual Review Study, the IR identified patterns and trends that related to these outcomes. For this report, and for the first time, the IR focused the individual review study on the services for individuals with DD, other than ID. The individuals, randomly selected for review, received new waiver slots over a fifteen-month time period and live in Region I (northwest Virginia) and Region V (Tidewater).
The studies completed by the Independent Reviewer’s consultants for this report each involved reviewing the status of the Commonwealth’s compliance with specific prioritized provisions that the IR targeted for review and evaluation. The Independent Reviewer and expert consultants defined the scope of the planned study, the methodology to be followed, the documents to be reviewed, the interviews to be conducted, and an estimated time line for each study. The IR and the consultant shared with its plans with the Commonwealth. The Commonwealth was invited to suggest refinements and other documents that would indicate the Commonwealth’s achievements putting staff, policy, program and process elements in place and by determining measurable outcomes related to the provisions studied. The consultants then reviewed the status of program planning, program development, and program operations, to find whether the Commonwealth’s initiative had been implemented sufficiently for measurable results to be evident. For each study, the expert consultant conducted interviews with selected Commonwealth officials, staff at the state and local levels, workgroup members, providers, families of individuals served, and other stakeholders. The primary

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focus of these studies, and the IR’s determinations of compliance ratings is whether the Commonwealth has complied with the quantitative measures of compliance. The IR considers the findings from these studies, information from the Individual Review Study and from various other sources to determine the ratings of compliance, the conclusion, and the recommendations in this report. The IR’s compliance determinations are best understood by reviewing the comments in the Summary of Compliance table, the Findings section of this report, and the consultant reports included in the Appendices.
The provisions in the Discharge Planning and Transition and the Quality and Risk Management sections of the Agreement were closely studied during the fifth reporting period and described in the previous Report to the Court. The compliance ratings for most of the provisions in these sections were not expected to change substantially during the four months between the last Report to the Court and the end of this review period. The IR, therefore, prioritized other areas for monitoring during this review period. These provisions will be prioritized for review for the next Report to the Court. The Compliance ratings for nearly all provisions in these sections therefore have not changed.
Finally, as required, the IR submitted this Report to the Parties, in draft form, for comments prior to submission to the Court.

B. Compliance Findings
1. Providing Waivers The Independent Reviewer reported in the last Report to the Court that the Commonwealth has created the required number of waiver slots and the funding for an individual and family support program for FY 2015. The Commonwealth has now created a total of 2005 new waiver slots under the Agreement. Under the Agreement, these slots were created to prevent institutionalization of individuals with intellectual and developmental disabilities, to enable children to transition to the community from nursing homes and large Intermediate Care Facilities (ICF), and to enable individuals to move from Training Centers to community-based living with needed services and supports. The IR’s Individual Review Studies have consistently found that waiver slots provide individuals and families critical supports that significantly improve their quality of life. For those individuals previously on wait lists, their access to waiver funded services is vital to their good health, to protecting them from harm, and to prevent their institutionalization. While these new slots have been created and the census of the Training Centers has declined, the number of individuals on Virginia’s wait lists continues to increase. The number of individuals with ID or DD, other than ID, on the HCBS waiver waitlists totaled 9867 as of April 30, 2015, an increase of more than a thousand individuals in one year.
2. Discharge Planning and Transition from Training Centers

Overall, the discharge planning and transition process has been effectively implemented to support individuals who move from the Training Centers. This process and the provision of waiver slots have enabled 443 individuals to move from Training Centers to community-based living between October 11, 2011 and April 30, 2015. By that date, the census of the Training Centers had declined to 501. The IR’s Individual Review Study during the fifth review period focused exclusively on individuals who moved from the Training Centers, as did the Individual Review Study during the first and third review periods. In total, the IR’s review teams have studied the discharge and transition process and the community based-services for more than 100 former residents of Training Centers who moved to

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community settings in all five Regions. Because most individuals moved from the Southside Training Center, most of these individual reviews occurred in Regions IV (greater Capitol) and Region V (Tidewater). The IR has previously determined that the Commonwealth is in compliance with most ratings for the Discharge Planning and Transition provision. The IR’s previous ratings of compliance in this section have largely remained stable through multiple review periods. The ratings were not expected to change substantially during this review period. The IR did not prioritize these provisions for monitoring and has not updated the compliance ratings with the exception of a new rating of compliance for the Post-Move-Monitoring program. The IR confirmed that DBHDS had developed and implemented the elements of a look-behind review process, which are required to validate the reliability of the Post-Move Monitoring process.
During the next review period, the IR will prioritize the Individual Review Study that focuses exclusively on the services and supports of individuals who transitioned from Training Centers. Updated compliance ratings are deferred until the next review period. The review will center on individuals who moved to community settings in Region I (central-northwest Virginia) and Region II (northern Virginia) during 2014 and early 2015.
3. Transition of Children from Nursing Facilities and Large ICF’s For children with ID and DD, other than ID, who live in nursing facilities and the largest ICFs, the DBHDS has not yet been implemented its planned process to facilitate their transition to community homes. The Commonwealth reports that it prioritized the waiver slots and that slots are available for these children. The Commonwealth has decided, however, to implement the plan sequentially, rather than simultaneously. It will focus first on diverting possible new admissions away from nursing facilities by developing community based services for children who are at risk of unnecessary institutionalization. If a child is admitted to a nursing facility, then the Commonwealth plans to perform a 90-day review to determine whether the individual continues to need nursing home level of services. During this and the previous review period, the Commonwealth added staff resources and expertise to improve services for individuals with complex medical needs. By focusing first on diverting possible admissions to needed community-based services, the Commonwealth believes that it will learn important lessons that will improve its effective implementation of the second phase of its plan to transition individuals with ID and DD under age 22 years in future years. Although lessons learned are always helpful, it is the IR’s opinion that the children living in nursing facilities should have an equal opportunity to transition to community homes with needed services and supports, as have the residents of the state owned Training Centers and those the Commonwealth is diverting to community-based services.
4. Individual Reviews By the second half of the third year of implementation, the Agreement expected individuals to receive HCBS services in the most integrated settings, consistent with their informed choice and needs. The Agreement anticipated that these individuals would be receiving core services, including case management, integrated day opportunities, and referrals for rental and housing assistance. During this review period, the study focused for the first time on individuals with Developmental Disabilities, other than Intellectual Disabilities. The study focused on the forty individuals who received IFDDS (DD) waiver slots between July 2012 and November 2013 who live in two of the five Regions. A randomly selected sample of twenty-five of these individuals provides sufficient confidence that findings from the sample can be generalized to the forty individuals.

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Of the twenty-five randomly selected individuals, nine (36%) lived in Region 1 (NW Virginia), sixteen (64%) live in Region V (Tidewater). Overall, these randomly selected individuals with DD, other than ID whose services the IR studied during the sixth review period differed from the group of individuals who moved from Training Centers whose services were studied during the fifth review period:

Demographic information

Twenty-eight (28) individuals who Twenty-five (25) individuals with

moved from Training Centers

DD, other than ID,

Gender

5th period study
13 (46.4%) were males

6th period study
16 (64%) were males

Age Ranges 22 (78.5%) were age fifty one or older 20 (80%) were age thirty or younger

Levels of Mobility 11 (39.3%) use wheelchairs

Highest Level of 18 (64.3%) use gestures

Communication

Type of Residence

26 (92.9%) live in congregate residential programs

19 (76%) were ambulatory without support 20 (80%) fully articulate without assistance 23 (92%) live in his or her own or family’s home

Many of the individuals with DD, other than ID, were diagnosed with Autism Spectrum Disorders, which is likely the reason for the higher percent of males. The age profile of those selected, and the fact that the IFDDS waiver slots do not offer residential programs, is consistent with the higher percentage of the sample living with their families.

Although there were individual exceptions, the study of services for individuals with DD, other than ID, found the following themes:

a. New waiver services significantly improved the quality of life for individuals with DD, other than ID and their families. The Individual Review teams again found that families demonstrated strengths, often making incredible efforts, while providing loving support for their family members. The level of support required often took physical, emotional, employment and financial tolls on these families. These burdens were eased when a family member provided the staff support to the individual because the family member knew the individual well, understood what providing needed supports involved, and was less likely to resign after a short period of time.

The positive outcomes included that all twenty-five individuals (100%) were receiving case management services; the Individual Support Plans (ISP)/Plans of Care (POC) were current (92%) person-centered (96%), and related to the individuals’ talents, preferences, and needs (92%). Face-to face case management review (96%) occurred every ninety days, as required. The individuals had a physical examination (92%) within the past twelve months and all were receiving the medical and mental health supports identified in the individuals’ POC recommendations. Overall, the individuals who were living with their families were more engaged with their neighbors and their communities than individuals studied previously who live in congregate residential programs. (The IR was not able to answer most questions related to one individual who was living away at a rehabilitation facility. Many answers pertained to twenty-four individuals.)

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The IR identified areas of concern including that several individuals were not receiving services identified in their ISPs/POCs, as follows:
eight (33.3%) of twenty-four individuals had not been examined by a dentist within the last twelve months; 
 five (41.7%) of twelve adults were not receiving recreation or day/employment services; 
 five (55.6%) of nine adults were not offered integrated day opportunities; 
 sixteen (64%) of twenty-four individuals had Plans of Care that lacked specific outcomes that leads to skill development and increased independence.
b. Families often have great difficulty recruiting and retaining support staff to provide essential in-home support services. Families report that agency-provided support staff lack training in the elements of the individual’s service needs, including basic understanding of the unique issues associated with supporting an individual with an Autism Spectrum Disorder or traumatic brain injury. Several families reported deciding to stop trying to recruit needed support staff. The burden of the efforts to find staff and to make sure they were competent was compounded when the staff soon resigned without notice leaving their family member, who has difficulty with change, in emotional turmoil. Many families, again during this review period, reported delays with their support staff being paid in a reasonable time. One family said, “It just wasn’t worth it.” This problem of maintaining consistent staff was more pronounced in rural areas.
c. Children and adults with DD, other than ID, who also have significant medical needs, were not able to access crisis stabilization (out of home) or in-patient psychiatric services. Children with DD and co-occurring behavioral and/or psychiatric needs lack available and accessible crisis services. Many individuals lacked available and accessible behavioral support services.
d. Families lack accessible guidelines and case management supports to know how to seek and obtain services. Two families reported nearly losing their waiver slots because they did not know how to obtain needed services, thinking that the case manager was responsible. Many families were not aware of REACH crisis services and all reported being unaware of the Individual and Family Support Program. Many families reported difficulty securing the services they need including dental, recreation, day/employment, and behavioral supports. Many families reported learning about the importance of available service options from friends or advocacy organizations.
e. Individuals have been exposed to significant and avoidable risks due to the inadequate oversight and management of adaptive equipment. One individual is unnecessarily bed-ridden because her mechanical lift requires two staff but no more than one is ever on duty. Another individual stays in his apartment and does not engage his community because his motorized wheel chair stalls and he is afraid that it will stall in the community and put him at risk. Following one boy’s orthopedic surgery, his wheel chair adaptations were delayed excessively. The delay put him at risk of harm and of required additional, unnecessary surgery to correct a problem that the adaptations were intended to prevent.
By themselves, findings for this subgroup cannot be generalized, with sufficient confidence, to the entire state or to the whole target population. Compliance ratings can be determined with sufficient confidence, however, when findings are consistent with the same positive outcomes and areas of concern found in multiple studies during different review periods for different subgroups and in

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different geographic areas. Findings that are unique for one subgroup or one geographic area will be targeted for gathering and verifying facts in future individual review or independent consultant studies.
The IR has provided the Individual Review reports to the Commonwealth so that it will review the issues identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with the individual’s direct service provider(s) and case manager and, by September 30, 2015, to provide updates on actions taken and the results in regard to the issues identified.
Selected tables with the Individual Review Study’s findings are attached (Appendix A). The Independent Reviewer has separated findings from the study into tables focusing on positive outcomes and areas of concern. The findings from the Individual Review Study are also cited in the Independent Reviewer’s comments in the Summary of Compliance table. These comments also cite examples of patterns from multiple independent review studies.
5. Case Management and Licensing
The Parties decided that Case Management should be the first specific service listed in their Settlement Agreement. This decision is consistent with the Independent Reviewer’s opinion that the case manager is the most important single resource for an individual with ID/DD and his or her family. The case manager is the hub of their services system. It is the case manager who assembles the Individual Support Team and makes sure that the members have the combined expertise to develop the support plan for the individual; assists the individual and family to gain access to needed services; and monitors service delivery and makes service changes as needed. The central importance of the case manager to the individual and family, and to the Commonwealth’s ability to achieve the goals of the Settlement Agreement, is the reason the Agreement includes provisions to ensure that:
case managers do not have a conflict of interest; individuals and families have a choice of, and can change, case managers; case managers observe and assess whether each individual’s support services are properly implemented, address risks, are in the most integrated setting appropriate to the individual’s needs, report and document any identified concern, and assemble the ISP team to address it and to document its resolution; there is a licensure process that assesses the adequacy of individualized supports; the Commonwealth establishes a mechanism to monitor the delivery of case management services to ensure that they comply with performance standards; and the Commonwealth maintains sufficient records to document that these requirements of the Agreement are met. This central importance of case management services is the reason the Independent Reviewer prioritized these provisions for additional independent monitoring during this and the four previous review periods.
The Independent Reviewer again retained the same independent consultant to evaluate the Commonwealth’s compliance with the case management provisions and the provisions that govern how the Commonwealth monitors case management to ensure compliance with regulatory and quality standards. The independent consultant’s report Case Management and Licensing Requirements is attached at Appendix B.

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Case Management Availability and Face-to-Face Meetings: The independent consultant found that the Commonwealth’s data dashboard is a viable accountability tool for tracking the delivery of case management services. That is, the data gathered detail the number, type, and frequency of visits, not the quality of the case management services. The data reported indicate that 88% of individuals receive the minimum number of case management visits and that 89% of those eligible are receiving more frequent monthly face-to face visits. The Individual Review Study also found that twenty-three (92%) of twenty-five individuals studied had an ISP that was current, and for 96% there was documentation of face-to-face case management review. The IR has again determined that DBHDS is in compliance with the requirements of III.C.5.a. and V.F.1.
The IR is concerned that DBHDS does not maintain records on the integrity of the Dashboard data. The DBHDS quality managers question the accuracy of data entry at the CSB level. The independent consultant’s report includes a suggestion about how to address these concerns and improve CSB data entry performance.
Conflict Free Case management: The consultant reviewed the Commonwealth’s policies and forms related to offering individuals and families a choice of service providers. The consultant then surveyed thirty-one randomly selected Authorized Representatives/individuals who had recent annual review ISP meetings. Twenty-five (81%) knew that they had the option to choose, and to change, service providers, including case managers. The IR has determined that DBHDS is in compliance with III.C.5.c. The consultant has included a suggestion in his report that the Commonwealth could increase individual/Authorized Representative awareness of their continuing rights to change providers in user friendly and accessible materials.
Case Management Performance monitoring: Previously, the IR determined that the DBHDS Office of Licensing was the Commonwealth’s primary monitor of Case Management performance. The DBHDS Licensing Regulations do not align with the specific requirements of the Agreement (i.e. face-to-face meetings, visit frequency, identifying risks, assembling professionals, etc.). The IR found that the Commonwealth implemented the 360° Reviews, using its revised Supports Intensity Checklist for twenty-two providers (3% of all). The DBHDS monitoring process includes reviews of a sample of case management records and then a document review of providers assigned to deliver services. The independent consultant review determined that it was too early to judge the viability of the 360° Review process and whether it will fulfill the requirements of the Agreement. The findings from the 360° Reviews completed, however, were congruent with the findings from the Individual Review Studies. There is a lack of community integration objectives and data to support them. The Commonwealth reports that it plans to address these areas of concern through case manager retraining. DBHDS has Quality Management monitoring activities that indicate progress, however, the IR has determined that the Commonwealth is not in compliance with the requirements of III.C.5.d. The Commonwealth did not provide sufficient records to document that it properly implemented this provision. The IR also determined that the Commonwealth is not in compliance with the requirements of IX.C.
Less Restrictive Options: This year, the Commonwealth has created and began to use a new ISP form. The form is to be used state wide as annual ISPs become due. The form is designed to confirm that the case manager provides information regarding less restrictive options and a review of most integrated settings. The

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Community Resource Consultants have been training case managers and providers on the new ISP format. The consultant surveyed thirty-one randomly selected individuals/families/Authorized Representatives who had recently had annual ISP meetings. Seventy-eight percent of those who answered the phone recalled discussing other and less restrictive options. The IR determined that the Commonwealth is in compliance with III.D.7.
Observation and Assessment: The consultant found that DBHDS established key indicators to measure the content of face-to face visits, and that the indicators show promise. His review also determined that these measures do not address specific elements of the face-to-face visits, such as, when to assemble the team, how to evaluate significant implementation problems, and how to assess risk when there are status changes. The consultant found that DBHDS had improved parts of its Data Dashboard, which improved its outputs. DBHDS also plans to offer training for case managers related to observations and assessment.
The consultant’s evaluation again raised the serious issue of the halo effect of case managers skewing reports toward the positive. DBHDS reports that it has plans to put corrections into place. For example, in October 2014 four CSBs reported that 100% of their 740 individuals had successfully achieved all their Health and Well Being goals. Generally, Health and Well Being goals are less likely to be achieved 100% of the time, since this category is tied to a personal variable like health which is very often out of the control of providers and case managers. Another example that raises concern is that the Individual Review study found that for only five (33%) of fifteen adults reviewed did the case manager develop and discuss employment goals and supports. The IR’s Individual Review Studies have found a consistent pattern of individuals not being adequately assisted to gain access to needed services. The IR’s Individual Review Studies have found this pattern to exist among different subgroups of the target population, in different geographic regions, and over several review periods. The IR retained an expert consultant to complete a study focused on employment support (attached at Appendix C). The consultant found that with only five (24%) of twenty-one randomly selected individuals did the case manager discuss employment. The case managers reported to DBHDS, however, that they had discussed employment goals with 77% of the 4848 individuals who had ISP annual meetings during the first two quarters of FY 2015.
The IR has determined that DBHDS does not have a mechanism to test the validity of the data reported by case managers and that the reliability of this component of the Data Dashboard raises significant concerns. The IR has determined that the Commonwealth is not in compliance with Section V.F.2.
Case Manager Contacts: The independent Consultant’s evaluation found that the Data Dashboard does not yet reliably reflect CSB performance in regards to the number, type, and frequency of case manager contacts with the individuals. DBHDS Quality Administrators report that poor data entry at the CSB level is the source of the remaining reliability problems in the data included in the Dashboard. Beyond publication of the dashboard and conversations with individual CSBs, DBHDS did not report other strategies to address poor performance outcomes. The IR determined that the Commonwealth continues not to be in compliance with the requirements of V.F.4. DBHDS does not yet have evidence at the policy level that it has reliable mechanism(s) to assess CSB compliance with the DBHDS performance standards relative to case manager contacts.

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Office of Licensure Services - Unannounced Visits: The consultant reviewed all OLS licensing reviews of providers and resulting Corrective Action Plans completed during the second quarter of FY 2015. He also reviewed the OLS tracking sheet for all licensing visits and interviewed DBHDS licensing staff. The consultant found that OLS visits are scheduled and occur in a random fashion that indicates that visits are unannounced and more frequent for those covered by the Agreement. The IR determined that DBHDS remains in compliance with the requirements of V.G.1-2.
Adequacy of Supports: The consultant’s evaluation included extensive document review and interviews with DBHDS Quality And Licensing leaders. His review found that a new OLS Office Protocol, an Internal Auditor’s report, and the new 360o Review process suggest that DBHD is increasingly focusing its Quality Management monitoring process on the adequacy of supports. His evaluation concluded that the outcomes of DBHDS’s revised processes would determine their effectiveness. He concluded that although to date there are no data to confirm their overall effectiveness DBHDS’s revised processes in its Quality Management Plan may eventually establish that DBHDS is examining the adequacy of supports regularly and consistently. The IR determined that DBHDS is not in compliance with V.G.3.
Case management and Licensing Summary: DBHDS maintained compliance that it had achieved during prior review periods and strove to accomplish other related provisions. The consultant’s review concluded, however, that service providers who repeatedly fail to meet performance expectations, or to fulfill corrective action plans, continue to provided services without further sanctions. The Commonwealth’s case management monitoring mechanism was not adequate to achieve a rating of compliance. The Commonwealth plans to implement a revised three-part mechanism to monitor compliance with case management performance standards. To address needed improvements in the Individual Support Planning (ISP) process, DBHDS has recently revised the ISP elements and has implemented training of case managers and private providers. It expects that evidence of improvements will be present after the next (7th) review period.
6. Crisis services Crisis services are a cornerstone in a community-based services system that prevents the unnecessary institutionalization of individuals with ID/DD. In the Agreement, the Parties agreed that a statewide crisis system would be available for all Virginians with ID and DD as of June 30, 2012. The Commonwealth has complied with crisis services provisions for adults by developing and operating the program elements required by the Agreement. The Commonwealth has begun to implement a statewide crisis system for children and adolescents. It reports having developed new DBHDS internal collaboration with its behavioral health division to improve crisis services. As of April 6, 2015, the end of the sixth review period, a statewide crisis system of services was not yet in place for children and adolescents. As of July 1, 2015, new additional funds have been appropriated to further develop a statewide crisis system for children. The Commonwealth plans to implement elements of the children’s crisis system (i.e. single point of entry and crisis call responses) during the next review period and to begin to meet performance standards by December 2016, after the next review period.

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The Commonwealth’s accomplishments related to a statewide crisis system and areas of concern are highlighted below. In determining compliance ratings, the Independent Reviewer has considered the sixth independent “Crisis Services Requirements” study of the Commonwealth’s progress. That study focused primarily on quantitative measures of compliance and the findings from the Individual Review Study. The independent consultant’s review, Crisis Services Requirements, is included at Appendix C.
The Department of Justice also retained independent experts to review crisis and behavioral support services for twelve individuals with ID/DD who had contact with law enforcement, which often resulted in incarceration or admission to a psychiatric hospital. The DOJ reviews of twelve individuals identified inadequacies and, for individual with challenging behaviors, gaps in the crisis system. The number of reviews was not large enough to be able to generalize the findings to the broader population. The findings from these reviews, however, raise serious questions about the performance and effectiveness of the Commonwealth’s crisis services for individuals with ID/DD. The identified gaps included:
a lack of timely response to individuals in crisis; a lack of services focused on crisis prevention; failure to respond on-site; and the frequent involvement of the police and Emergency Services for individuals who threaten aggression or elopement.
The DOJ’s consultants’ reviews also found that the crisis services programs actively involved the police and Emergency Services to provide needed transportation. Because police and Emergency Services are only able to transport individuals to hospitals or jails, a “direct pipeline to institutionalization” was created. Service providers and CSB staff reported to DOJ that before intervening, REACH crisis services required an assessment of an individual to determine whether the crisis was behavioral or psychiatric. If the crisis was determined to be psychiatric, or if the individual was threatening aggression or elopement, providers were instructed to call 911 or Emergency Services. The DOJ reviews also cited examples of the crisis stabilization programs not being available as a last resort option for short-term out-of-home placement, as an alternative to institutionalization, for individuals:
with challenging behaviors, without a case manager, who only used sign language, or without stable housing. The IR’s Individual Review Study found a similar example. A crisis stabilization program was not capable of providing a short-term out-of-home alternative to institutionalization for an individual with significant medical support needs. The crisis stabilization programs were not available for these individuals for two reasons. The programs refused to admit individuals with more challenging support needs; or a family chose not to use the program because no staff was competent to meet the essential support needs of their family member. The support needs that the crisis stabilization programs could not meet for these individuals included behavioral, communication, health, safety, or physical care needs.
The Independent Reviewer will prioritize an independent study during the next review period to focus on whether the Commonwealth’s REACH crisis services are designed and implemented to provide the required program elements to individuals with significant behavioral, communication, physical care, medical, or housing needs, and who are at risk of institutionalization. The study will

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also monitor whether the Commonwealth’s crisis system achieves the qualitative measures and expected outcomes of the Crisis Services provisions.
Adult Crisis Services: In 2012, DBHDS initially focused on developing crisis services for adults with ID. After several months of development, DBHDS required the CSB operating the new crisis system to include adults with DD, other than ID. The Commonwealth’s crisis services programs for adults, now called REACH, continue to operate at all hours of the day, in all five Regions, and to respond on-site to individuals in crisis. The Commonwealth has not met the requirement for a timely response to each crisis within two hours. Providers and family members reported many examples of the REACH mobile crisis teams not responding on-site to a crisis. Case managers, providers and families continue to refer individuals with ID/DD to REACH. The number of calls to REACH and the number of referrals appears to have increased. Analysis is not possible, however, because the definitions of data have changed between calendar quarters, and some data are missing. DBHDS reported that the number of individuals admitted to psychiatric hospitals increased from forty-seven in the previous two quarters to 119 in the most recent two quarters. This reported increase and high number of psychiatric hospitalizations are significant concern, especially in light of concerns that REACH programs may not be an option for individuals with challenging behaviors, physical care, medical, and communication needs.
The Agreement requires that members of mobile crisis teams be adequately trained. The independent 
 consultant report details the trainings required of mobile crisis team members in each Region. The 
 mobile crisis team training process includes tests to determine whether competencies and skills have 
 been learned. Mobile crisis team supervisors review training outcomes with staff and use team 
 meetings to reinforce the training concepts. Mobile crisis teams provide clinical supervision in a group 
 format. As part of orientation, mobile crisis staff shadow community and Crisis Therapeutic Home 
 staff; prepare and present case reviews; and participate in peer reviews. 

The REACH programs reported provided training to 967 stakeholders during the two quarters for 
 this review period. The identified support roles of those trained were: case managers (355), law 
 enforcement (226), Emergency Services (46), and other (331) There is a significant disparity in the 
 amount of training provided by the five REACH teams. Regions II and IV consistently provide fewer 
 trainings to fewer individuals. Neither Region provided any training to law enforcement or 
 emergency services staff during the review period. Training materials are now available on-line. 
 DBHDS requires that new DD case managers complete the training. It plans to require all new ID 
 case managers and CSB Emergency Services staff to complete the training. 

During this review period DBHDS developed a work plan for Law Enforcement Outreach. The plan 
 includes: 

communicating with all law enforcement entities about REACH; 
 providing information about the new children and adolescent initiative; 
 creating and disseminating printed materials; 
 conducting regional meetings with law enforcement entities; and 
 developing an online training module available to police officers through the Department of 
 Criminal Justice Services website. The training will be implemented starting in July 2015.
The REACH programs trained 226 law enforcement officers during the reporting period. The development and implementation of the Law Enforcement Outreach plan are very positive steps.

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The IR rated the Commonwealth in compliance with Section 6.b.ii.C, because REACH programs trained many officers during this reporting period and the DBHDS plan to insure that all new officers are trained. For the Commonwealth to maintain a rating of compliance, it will require the ongoing and successful implementation of its outreach and training plan and evidence of mobile crisis team members’ effective work with law enforcement.
During the second and third quarters of FY 2015, the mobile crisis teams continued to provide crisis service elements: crisis planning, crisis intervention, and crisis response. The consultant’s study of crisis services for adults did not evaluate the qualitative aspects or whether these crisis services achieved positive outcomes. Four of the five Regions provided individuals with in-home supports for an average of more than three days.
The Commonwealth is in compliance with Section III.C.6.b.i.A. and B., with Section 6.b.ii.A. and B., and with Section III.C.6.b.ii.D and E.
The Agreement requires that mobile crisis teams respond to on-site crises within two hours, and to achieve average response times within one hour in urban areas. DBHDS has defined the urban areas as Region II (Northern Virginia) and Region IV (greater Capitol area). Previously, the mobile crisis response time was measured as the amount of time between when the crisis call was received and when the mobile crisis team arrived at the site of the crisis. The independent consultant learned in the course of the review, however, that the Commonwealth changed how it measures response time. During the review period, the REACH programs determined response time would begin after it completes an internal review and determines that a face-to-face assessment is needed. Furthermore, the Commonwealth cannot report the length of time these assessment decisions require. The purpose of the specific response standards in the Agreement is to offer timely on-site assessment, services, supports, and treatment to de-escalate and help families and providers to assist a person in crisis. DBHDS cannot accurately report the actual length of time for mobile crisis team responses. The IR will continue to determine that the Commonwealth is not in compliance until data regarding response times are complete and are based on the length of time from the call to the time mobile crisis team member(s) arrive at the site of the crisis and when data provided are complete. Although the actual response times are of a longer duration than reported, the shorter than actual times again demonstrated that the mobile crisis teams continue not to respond to all crisis calls within two hours. The Commonwealth has not created second mobile crisis teams, as the Agreement requires, in the Regions that have not met the required response times.
The Commonwealth remains out of compliance with Section III.C.6.b.ii.G. and is also not in compliance with Section III.C.6.b.ii.H.
Crisis Stabilization: The Commonwealth is in compliance with four of five provisions related to the development and operations of its crisis stabilization programs. It is in substantial compliance with the fifth provision. Each Region’s crisis stabilization program (now called Crisis Therapeutic Homes) is providing shortterm alternatives to individuals who need in-patient stabilization services. All Regions Crisis Therapeutic Homes have six or fewer beds. For those admitted to the Crisis Therapeutic Homes (CTH), the programs were used as a last resort to avoid out-of-home placements. Four of the five

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Regions have Crisis Therapeutic Homes that are located in community settings. The fifth Region has completed architectural drawings and has recently purchased a community-based site for its program.
The Commonwealth remains in compliance with Section III.C.6.b.iii.A.,B,D, F and G. It is in substantial compliance with Section III.C.6.b.iii.E.
In this and previous reports, the IR determined the compliance ratings for the crisis stabilization programs were based on whether these programs have been used as a “last resort” for those who were admitted to them. That is, did the REACH crisis stabilization programs admit individuals only after attempts to resolve the crises were not able to maintain the individuals in their current placements? Findings from a small sample in the Individual Review Study and from the Department of Justice reviews of twelve individuals raise significant questions about whether individuals with significant behavioral, physical care, medical, or communication needs are excluded from receiving this crisis stabilization “last resort” program, and whether they experience unnecessary institutionalization as a result. Family members, case managers and CSB staff reported individual examples that painfully illustrated the consequences of not receiving this “last” community-based service option. The individuals with ID and DD and other complex needs who were not offered the “last option” were instead directed to the police and emergency services, which were only able to transport them to hospitals and jails, frequently leading to admissions. During the upcoming review period, the Independent Reviewer will prioritize monitoring the extent to which the REACH services fulfill the Commonwealth’s requirements to provide crisis services to all Virginians with ID and DD, and whether these programs effectively maintain individuals’ current placements and prevent unnecessary institutionalization.
Children’s Crisis Services: DBHDS completed a detailed plan “Crisis Response System for Children with ID/DD” in February of 2014. The plan describes the purpose of the program for children. It outlines key components and a fourphase development process with services launched in July 2014. Initial new funding for crisis support services for children was provided through FY 2015. An additional $4 million has been appropriated for FY 2016. It is commendable that $3.75 of this $4 million FY 2016 will be directed toward this age group and for crisis support. In each Region a gap analysis established that the existing children’s crisis services in place vary and that the Regional arrangements, partnerships and service gaps differ. Therefore, DBHDS will allow the available funding to be used differently in each Region. DBHDS reports that it will expect all children’s crisis programs, however, to meet statewide standards that align with the requirements of the Agreement. The Commonwealth expects each Region to hire a navigator, to provide the required training, to provide consistent data, and to use the performance measures in the contract with the responsible CSBs to insure the program standards are met.
The statewide children’s crisis program standards remain in draft form. It is positive that the standards include most of the service elements and expectations detailed in the Agreement and that the standards will apply to all five regions. The standards do not, however, include expectations that the five regions will provide an alternative residential setting, of no more than six beds, that can provide crisis stabilization for a period not to exceed thirty days. How the Commonwealth meets this standard for the children’s crisis system will likely be different from its approach for adults. The approaches may also vary among regions. All Agreement provisions, however, apply equally to the children’s portion of the statewide crisis system as they do for adults. The Commonwealth has included basic data collection and training expectations in the standards. Additional data, however, are necessary to determine whether the Commonwealth is properly implementing the requirements of

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the Agreement. These include: information about the type of crisis services provided; any use of outof-home respite or inpatient hospitalization and the length of time a child is admitted; and information about the child’s placement after an out-of-home crisis intervention. DBHDS is continuing to finalize the list of trainings. This does not yet include modules on person-centered planning, transition from law enforcement or inpatient settings, cross-system comprehensive planning, or training for CSB Emergency Services or case management staff.
The Commonwealth is not in compliance with Section III.C.6.a.i, ii, and iii of the Settlement Agreement because crisis services are not systematically in place and available to children and adolescents. Serious questions have been raised regarding the effectiveness of the timely supports, crisis prevention, and proactive planning, and whether these services are implemented to avoid potential crises and to prevent institutionalization. The IR will prioritize monitoring these quality aspects of crisis services during the next review period.
Outreach to the DD Community: DBHDS has developed and begun implementation of a plan to reach out to individuals with DD, other than ID, their families and providers. DBHDS has provided trainings, brochures, and reminders to DD case managers to share this information with families. DBHDS has sought the advice of the autism and other advocacy organizations to help distribute information about the REACH programs to connect with more families of individuals with DD and to make them aware of the crisis supports that are available. In January 2015 sixty-five staff attended a training specifically designed for DD case managers.
7. Integrated Day Opportunities In the Agreement, the Commonwealth committed “to the greatest extent practicable…to provide individuals in the target population…with integrated day opportunities, including supported employment.” By September 6, 2012, 180 days after the Agreement was provisionally approved for implementation, the Commonwealth was required to develop and submit a plan to increase integrated day opportunities, as part of a plan to increase supported employment. It produced the plan to increase supported employment but not an implementation of a plan that includes community recreational activities, community volunteer opportunities, and other integrated day activities, as required. The IR directed the Commonwealth to submit the required plan by March 2014. The Commonwealth submitted a preliminary plan in June 2014. It indicated that a comprehensive plan would be submitted in December 2014. The draft plan to increase integrated day opportunities (i.e. the Community Engagement Plan) was provided in February 2015.
The Commonwealth’s Community Engagement Plan includes several commendable features: a specific and outcome oriented definition of integrated day opportunities, the option of consumer directed services, and statewide training. The plan, however, lacks critical elements, such as, the means by which the Commonwealth will:
assess the need for these services; train service planning teams in how to introduce this service concept into a person-centered planning process; train CSB staff, and ID and DD Case Managers; assess and plan to expand provider capacity; and qualify providers. The independent consultant recommended that these elements be included in her last evaluation of the status of the Commonwealth’s planning to develop integrated day activities.

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For more than two years, the Commonwealth’s redesign of it HCBS waiver has been its strategy to come into compliance with the integrated day provisions of the Agreement. The redesign will include changes to the service definitions and rates, and will align the level of resource allocation with the individual’s level of need. The Community Engagement Plan lists extensive work between March 2015 and January 2016. None of that work has begun and the Commonwealth has now put implementation largely on-hold. The DBHDS February 23, 2015, quarterly report states that it’s implementation activities will not begin until the new restructured waiver is in effect. The earliest that the redesigned waiver can now be in effect is Fiscal Year 2017. Prior to the current implementation delay, the Community Engagement Plan would not have establish a baseline for who is now receiving such services until October 2016, four years after its implementation plan was due. The Commonwealth continues not to be in compliance with Sections III.C.7.a and b.i. and it will remain out of compliance until it effectively implements systems reform strategies that facilitate the major changes needed to move from a day system that is characterized by very large congregate facilities to one that provides opportunities in integrated settings with needed supports.
8. Supported Employment The Commonwealth has provided extensive training related to Employment First, including training and technical assistance to other state agencies. The Commonwealth has developed and, with the input of the SELN AG (Supported Employment Leadership Network – Advisory Group), updated its plan to increase supported employment. During this review period, the SELN AG significantly improved its structure. The SELN AG created subcommittees with targeted responsibilities including a separate group to focus on integrated day opportunities. Completed minutes were written for all meetings; and it is tightening membership to improve consistent attendance. The consultant’s study also found, however, that there was no tangible progress on one activity in the employment services plan assigned to the SELN AG – “to develop standards for the delivery of employment”.
The SELN AG and the DBHDS Regional Quality Councils (RQC) worked together to review the employment data and quarterly employment targets. Each RQC met twice during this review period with members of the SELN AG, who are also DBHDS employment leaders. The DBHDS Employment Coordinator completed a thorough presentation to each of the RQCs; and the RQCs had in-depth discussions about employment and made recommendations to enhance services. The RQCs and the SELN AG liaison also discussed progress toward implementing the employment services plan.
The IR determined that the DBHDS is in compliance with provision 7.b.i.A. It continued to provide Regional training on the Employment First policy and strategies. It is also in compliance with III.C.7.c and d. The RQCs reviewed quarterly employment data and made recommendations for improvement. The independent consultant’s report, Integrated Day and Supported Employment Requirements, attached at Appendix D, includes recommendations for improvements to strengthen the SELN AG – RQC processes so that the RQC’s are able to base future recommendations on current and complete information about the status of the employment services plan’s implementation. The consultant recommendations also include developing specific outreach strategies for individuals with DD, other than ID, and their support community.
The Commonwealth’s state agencies continue to work together to facilitate employment for individuals with disabilities. In northern Virginia, two agencies provided training together that

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focused on the employment needs of individuals transitioning from Training Centers to live in the 
 community. 

The Commonwealth reported in its biannual report through the second quarter of FY 2015 that 805 
 individuals were being served in prevocational services. Its report indicated that 785 of these 
 individuals had continued in these services from the previous reporting period. 

The Commonwealth recognized previously that the employment data that it compiled in the past 
 did not align with the requirements of the Agreement and were incomplete. After exploring 
 alternatives, the Commonwealth decided to change its source for the data and to collect data about 
 a significantly increased number of individuals. It is the IR’s opinion that both decisions were very 
 positive. The new data set includes information about all individuals with ID and DD, including 
 those whose services are temporarily funded by Virginia’s Department of Rehabilitative and Aging 
 Services (DARS), rather than about individuals who receive employment supports only through the 
 Commonwealth’s HCBS waivers.�
� � DBHDS now has data for 1650 individuals with ID and 254 individuals with DD as a result of its 
 new approach. Wage information was provided for 1332 (80%) of the 1650 individuals with ID and 
 for 148(61%). of the 254 individuals with DD. The data portrays the following about the wages for 
 these individuals: 

840 individuals with ID (63%) are paid minimum wage or above 

116 individuals with DD (78%) are paid minimum wage or above 

The average wage for ID individuals is $5.85 

The average wage for individuals with DD is $6.60 

Subsequent to the DBHDS Semi-Annual Report on Employment the SELN Data Sub-Committee 
 did further analysis. This analysis indicates that: 

490 individuals with ID earn less than the minimum wage ($2.48 average) 

1160 individual with ID earn minimum wage or more ($9.19 average) 

32 individuals with DD earn less than minimum wage ($3.82 average 

222 individuals with DD earn minimum wage or more ($8.42 average) 

The Commonwealth initially completed a pilot study with four Employment Service Organizations 
 (ESOs). This study confirmed the advantages of collecting data directly from ESOs. DBHDS then 
 completed its first full survey. The data gathered during this review period now aligns with the 
 requirements of the Agreement. The survey response rate, however, was not adequate to determine 
 the number of individuals employed, the hours worked, the length of time, or earnings, all of which 
 the Agreement requires. Only 44% of ESOs provided the requested data. DBHDS estimates that 
 these providers may serve 70% of the individuals. The new data set, therefore, cannot be compared to 
 the old data set that was used in the previous reports. As a result, the Commonwealth is not able to 
 report on progress, which would be determined by comparing two similar sets of data. For example, 
 because the cohorts of individuals are now defined differently, the Commonwealth is not able to 
 report the change in the number of individuals who enrolled or remained in individual or group 
 supported employment. The Commonwealth is not able to determine if progress has been made 


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toward achieving its employment targets. During the next review period, DBHDS plans to revise its employment targets based on the new definition of the cohort, all individuals with ID and DD, and with more meaningful and comprehensive information.
The IR commends the Commonwealth for the substantial improvement in the accuracy of the data that it gathered, in the alignment of these data sets with the requirements of the Agreement, and because the data can now be provided by type of disability. The IR has determined, however, that the Commonwealth is not yet in full compliance with III.C.7.b.i.B.1.a, b, c, d or e. as it can only report on an estimated 70% of the individuals. It is also not in compliance with III.C.7.b.i.B.2.a and b. The Commonwealth is in compliance with III.C.7.b.i.B.1.d and e. as it provided the data required related to the number of individuals participating in prevocational services.
As reported previously, the Commonwealth has continued to make progress with its HCBS waiver redesign. The Commonwealth designed its strategy, when put into effect, to provide the necessary underpinnings for a more robust set of employment services and supports. The Commonwealth and SELN AG members recognize that to achieve the employment targets will require building provider capacity especially in rural areas. The number of individuals in individual employment is very small in three Regions, and only sixteen in Virginia’s most populous Region. The DBHDS Employment Services Plan assigns responsibility to work on this goal to the SELN AG. To date, however, there has been no work or progress reported.
9. Individual and Family Support The Independent Reviewer’s consultant evaluated whether the Commonwealth’s design and implementation of its Individual and Family Support Program (IFSP) and other individual and family supports fulfill the qualitative aspects of the definition in Section II.D. and the service requirements of Section III.C.8.b. The Independent Reviewer also convened two focus groups with individuals and families to obtain their input about the design and implementation of the Individual and Family Support Program. These focus group meetings included individuals and families who live in two different geographic areas, one rural and one urban. In prior Reports to the Court the IR determined that during FY 2013 and FY 2014 the Commonwealth had complied with the quantitative requirements of Section III.C.8.b. i.e. to support at least 700 individuals and families in FY 2013 and 1000 in FY 2014. The Agreement definition limited eligibility to those who were not already receiving services under Virginia’s HCBS waivers.
The consultant confirmed that the Commonwealth designed and implemented Individual and Family Support Program to provide a one-time financial amount of up to $3,000 to eligible individuals and families on a first come-first serve basis. The Commonwealth determined that a single criterion would be utilized to determine those “most at risk of institutionalization.” That criterion is defined as being on the Commonwealth’s waitlists for services under the HCBS waivers. The consultant confirmed that the Commonwealth utilized $1.5 million, half of the $3 million available, to provide a one-time financial award to 600 individuals during the first half of FY 2015. The Commonwealth has $1.5 million remaining. When it completes the second set of awards, the Commonwealth will again exceed the minimum number of 1000 beneficiaries during FY 2015. When it does so, the Commonwealth will again have complied with the quantitative requirements of III.C.2.
The consultant found that the Commonwealth’s Individual and Family Support Program was not designed or implemented to meet the qualitative aspects of the definition (Section II.D) of an

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individual and family support program. The IFSP did not include a comprehensive and coordinated set of strategies to ensure access to person and family-centered resources and supports. To solicit input in the design of the program, the Commonwealth documented that it met once with a stakeholder group in April 2012. DBHDS reports that it met more frequently and that it considered information gathered from other states. It did not provide documentation of these meetings, the options considered, or the rationales for decisions. Stakeholder participants reported to the IR that DBHDS established tight parameters for the IFSP: the timeline in the Agreement for the first awards, the number of individuals to be served and the amount of money available. To establish a maximum annual award to a single individual of $3,000, the Commonwealth divided the available $3 million by the minimum number of 1000 individuals it is required to support annually. It decided to award up to this one-time amount on a first come-first serve basis. The Commonwealth recognized that an average award of less than the maximum would result in more than the minimum required number of individuals who would receive an award annually. The Commonwealth determined that “most at risk of institutionalization” is defined as everyone who is on its waitlists for services under the HCBS waivers.
In designing and implementing the IFSP, the Commonwealth did not analyze the existing individual and family supports available or determine the gaps. When the stakeholder met with DBHDS for its documented annual meeting in 2012, 2013, and 2104, there was no discussion as to how to achieve a comprehensive and coordinated set of strategies to ensure that individuals and families have access to needed resources and supports. Since DBHDS implemented the IFSP, there has been no other ongoing formalized mechanism for stakeholder input. Such a mechanism would help identify gaps in the comprehensiveness or coordination of current strategies and help to guide the evolution of the IFSP to meet the definition of an individual and family support program in the Agreement.
The Commonwealth has made changes each year to the IFSP application and its internal administrative processes. DBHDS completed an internal audit of the IFSP program in July 2014. The audit recommended that timeline goals be set for the review of applications and appropriate notifications. DBHDS again modified its internal processes hoping to streamline the program and to reduce response time. DBHDS did not consistently vet these modifications with stakeholders to ensure that the changes adequately address the issues and concerns.
Overall, the independent consultant found that overall the IFSP does not include adequate design or program evaluation strategies to make progress toward achieving the goal of a comprehensive and coordinated set of strategies for individual and family support. There has been no assessment of individual and family supports available statewide or any goals, objectives and timelines for developing a comprehensive and coordinated set of strategies. There has not been an evaluation of whether the IFSP has made progress toward achieving a comprehensive and coordinated set of strategies. Furthermore, the benefits of the IFSP are not coordinated with other support resources.
The DBHDS case management operational guidelines define the functions of case management for individuals on HCBS waiver waitlists who have more intensive medical or behavioral needs or those with multiple encounters with the crisis system. The IFSP guidelines indicate that one IFSP objective is to support the continued residence of an individual with ID/DD in his/her own home or family home. To accomplish this objective, coordination of various services and supports beyond a one-time monetary award is essential. Yet the Commonwealth reports that case managers do not

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have any role in facilitating access to or in coordinating the use of any IFSP funds awarded with other individual and family supports.
The number of applications for the IFSP has grown substantially between FY 2013 and FY 2015, from 1,744 to 5,500, a 315% increase. The amount requested also increased during that period from $2,303 to $2,500, an increase from 77% to 83% of the maximum allowed. Current IFSP staffing resources were not sufficient to meet the turnaround goals for handling and responding to applications even before the most recent increase in the number of applications. These limited staff resources are not adequate to identify other available resources or to coordinate with other agencies for each of the 5,300 applications received in FY 2015. Families and advocates interviewed by the independent consultant consistently indicated frustration over the lack of DBHDS transparency about the IFSP processes and the perceived lack of responsiveness from IFSP staff at DBHDS.
Individuals Most at Risk of Institutionalization:
The Commonwealth has determined those “most at risk for institutionalization”, as required by the Agreement, with a very broad definition. It determined that presence on either the ID or DD waiver waitlists is the sole criterion for who is most at-risk for institutionalization and therefore eligible to receive a monetary award under the IFSP. This broad definition is in keeping with the primary tenets of traditional individual and family support programs: that all individuals with intellectual and developmental disabilities and their families need and deserve supports and should not have to prove that they are more deserving than others. At the same time, stakeholders interviewed shared an almost universal uneasiness that the design of the IFSP may be inherently unfair to those who need it the most. A common theme expressed was that the needs of individuals and families on the waitlists varied dramatically. There was no prioritization based on individual situations that are more important or urgent than others. For example, stakeholders expressed uneasiness as to whether the IFSP should fund summer camp or violin lessons over health and safety-related needs. The ID waitlist is further stratified into “urgent” and “non-urgent,” but this differentiation is not factored into the determination of most at-risk or any prioritization. On its face, this lack of “most at risk” prioritization between “urgent” and “non-urgent” appears contradictory.
Most stakeholders shared concerns that higher-income and better-educated families are more likely to be able to get the application completed and submitted within the very small window that makes funding even possible. The current guidelines require that an individual or family submit an application on one given day during the funding period to have any real chance of being approved. This is a significant hardship for many. Individuals and families cannot predict if a personal crisis, such as a family member illness, support staff not being available, or a car breakdown may occur on the first day of the funding period. If this occurs, and they cannot make it to the post office, they have virtually no opportunity to receive funding. Such crises have the potential to occur more frequently for those with fewer social and financial resources, which reinforces the concern that these individuals and family members are at a disadvantage in terms of successfully receiving an award under the IFSP.

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First Come-First Serve: Overall, the first come-first served structure has been unwieldy and impractical. The volume of applications postmarked on the first day of the application period exceeds the number that can be funded. For example, of the 3,300 applications received in the first funding period for FY 2015, 2,278 were postmarked on the first day. Only 600 (26.3%) of those post marked on the first day were approved for funding based on the available dollars. DBHDS acknowledges that it was impossible to determine which of the 600 among those 2,278 were actually “first-come.” The resulting first-day volume also creates a sizeable backlog of applications and notifications that takes months to work through.
Maintaining sufficient records to demonstrate proper implementation:
The Commonwealth has not defined outcome or satisfaction indicators for the IFSP, other than the number of individuals/families who receive a one-time fund award. Data are not collected that relate to performance, impact, or satisfaction. DBHDS acknowledges the importance of this and the lack of feedback from individuals and families. DBHDS reported that it is drafting a survey, which it expects to distribute in the near future. The consultant concluded that DBHDS also does not yet have a comprehensive picture of systemic individual and family supports on the broader scale. Neither has it determined the indicators or data needed to demonstrate that the individual and family supports offered are comprehensive and coordinated.
The IR determined that the Commonwealth is not in compliance with Section III.C.2. The individual and family support program does not include the qualitative aspects included in the definition of an individual and family support program. The program does not include a comprehensive and coordinated set of strategies that ensure access for individuals and families to a range of needed resources and support.
The IR determined that the Commonwealth is not in compliance with Section IX.C. DBHDS has not determined the indicators or data needed and does not maintain sufficient records to demonstrate a comprehensive and coordinated set of strategies that ensure individuals and families have access to a range of person-centered and family centered supports.
10. Guidelines For Families Seeking Services The Independent Reviewer’s consultant reviewed the Commonwealth’s published guidelines for families seeking services, and whether it had provided the guidelines to appropriate agencies for use in directing individuals with ID and DD and their families to the correct point of entry to access services.
The consultant found that during this review period, the Commonwealth had updated guidelines (“Just the Facts”) for individuals and families seeking services funded by Virginia’s HCBS waivers. These guidelines did not include information regarding how and where to apply or how to obtain services for either the nearly ten thousand individuals who are already on the waitlists, or for the others seeking services who do not yet know how to apply to get onto the waitlists.
The IFSP is available to individuals/families on the waitlists. DBHDS published IFSP guidelines in February 2014, however, these guidelines had not been updated during the past year and are now outdated and incorrect.

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Publishing and Providing Updated Guidelines Annually to Appropriate Agencies: DBHDS has posted updated “Just the Facts” guidelines on-line during this review period. Finding the guidelines is difficult, and likely not possible without detailed instructions. For example, locating guidelines for families seeking services requires the family to understand what services his or her family member might be eligible for, to know to search for the DBHDS website, and to navigate a series of multiple choices through four separate links to arrive at, and recognize that the ID waiver fact sheet may help. Once the family opens the fact sheet, someone must read a nine-page document without a table of contents to find the final section Accessing ID Waiver Services. This process must be repeated for the Day Support and IFDDS fact sheets. These fact sheets explain how to access services funded under the Commonwealth’s HCBS waivers, but do not mention that submitting an application typically results in being placed on a waitlist for many years. These fact sheets do not include guidelines to access other resources and supports while waiting to be awarded a waiver slot, or to gain access to services funded through the HCBS waivers.
The Commonwealth published and distributed IFSP guidelines to some appropriate agencies, such as Community Service Boards, agencies providing private case management, and some ID and DD advocacy organizations. The Commonwealth did not provide either set of guidelines to agencies that are frequently the first point of contact for a child with a significant developmental disability and his or her family, such as hospital neonatal intensive care units, pediatrician organizations, and special education offices of public schools.
The Independent Reviewer determined that the Commonwealth is not in compliance with Section III.C.8.b. The IFSP Guidelines, as updated February, 2014, are not sufficient in terms of detail, accuracy and accessibility to individuals and families, to be effectively used to direct individuals in the target population to the correct point of entry to access services. The “Just the Facts” guidelines are not designed for individuals/families who are not yet aware of how to apply for waiver services or for those who have applied and have been placed on the waitlists. These guidelines are not truly accessible and have not been provided to agencies which are the likely first point of contact for families seeking services.

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IV. CONCLUSION 

The IR reported in the last Report to the Court that the Commonwealth had achieved compliance with certain requirements of the Agreement. During this, the sixth review period, the Commonwealth through its lead agency, DBHDS, and its sister agencies has maintained compliance with these same provisions and has come into compliance with additional requirements. The Commonwealths leaders have continued to meet regularly and to collaborate to develop and implement plans to address the Agreement’s requirements and to improve people’s lives. The IR also reported in the last Report to the Court that the Commonwealth lagged significantly behind schedule. It continues to do so. There have been significant delays in the it’s compliance with requirements that are critical to an effective community-based services system for individuals with ID/DD. For two years, the Commonwealth’s primary strategy to come into compliance has been the redesign of it HCBS waiver program. The Commonwealth’s primary strategy to increase independent living options has been to ensure that the rental assistance it offers is ongoing for a substantial number of individuals.
Although the Commonwealth has made continued efforts and progress on its planning the implementation of these strategies, it did not put the redesign of its HCBS waiver into effect. The IR determined that the Commonwealth continues to be in non-compliance with many provisions of the Agreement. Furthermore, the Commonwealth will remain in non-compliance until it successfully implements needed system reforms.
The IR previously reported that the Commonwealth had implemented and refined a discharge planning and post-move monitoring process, and that it had achieved and maintained compliance over multiple review periods with most of the Discharge Planning and Transition provisions. The IR did not monitor or provide updated compliance ratings for these provisions during this review period. The IR confirmed during this review period that the Commonwealth maintained compliance with provisions that require increased frequency of visits and oversight by case management and licensing. It has also developed the required program elements of crisis services for adults. The Commonwealth provided increased community supports for individuals with complex needs by creating Bridge Funding and exceptional rates. It has begun new initiatives to increase behavioral support resources. The Commonwealth has newly come into compliance with provisions related to its plan to increase independent living options, with case managers offering choice of service providers, and with requirements that the Regional Quality Councils review of employment targets.
The Commonwealth has not, however, made substantive progress implementing planned changes to achieve compliance with many core structural and programmatic provisions of the Agreement. It has not put into effect the strategies that it has presented as necessary to bring about systems reforms needed for compliance. The IR has continued to determine that during this review period the Commonwealth is not in compliance with many provisions that must be implemented effectively to fulfill its promises to members of the target population and their families “to prevent unnecessary institutionalization and provide opportunities to live in the most integrated setting appropriate to their needs and consistent with…their informed choice.”
The Commonwealth’s leaders continue to express strong commitment to vigorously continue its planning and full implementation of new service and system reforms to achieve compliance. Substantial progress with the implementation of the needed reforms is vital to fulfill the requirements of the Agreement and its promises to all Virginians with intellectual and developmental disabilities and their families.

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V. RECOMMENDATIONS 

The Independent Reviewer recommendations to the Commonwealth are listed below. The Independent Reviewer requests a report regarding the Commonwealth’s actions to address these recommendations and the results by September 30, 2015.
Children’s Crisis Services 1. The Commonwealth’s statewide program standards for children’s crisis services should include
the requirements for crisis stabilization settings, follow-up and monitoring, staff development, and evaluation of service quality including user feedback.
2. The Commonwealth training requirements should parallel those for adult crisis services, with modifications needed for children’s services. These trainings should include modules on personcentered planning, transition from law enforcement and in-patient facilities, cross-system comprehensive planning, and training for CSB Emergency Services or case management staff.
3. The Commonwealth should collect data and information about the types of crisis services provided. This includes any use of out-of-home respite or inpatient hospitalization, the length of time a child is admitted; and information about the child’s placement after an out-of-home crisis intervention.
Adult Crisis Services 4. DBHDS should gather, analyze, and provide consistent information about the services
provided through REACH. This information should include the number of individuals with DD, other than ID, who call or are referred to REACH and the number REACH served. This should also include information about all individuals who experience psychiatric hospitalizations or incarceration. The information gathered should include the individual’s name, whether REACH staff was involved, the duration of hospitalization or incarceration, and whether the individual experienced repeated hospitalizations or incarcerations.
5. The Commonwealth should provide support, including training and technical assistance, to community providers about how to identify individuals who are behaviorally or psychiatrically at-risk, how to proactively plan to avoid future crises, and how to de-escalate crises that do occur without removing them from their current placements to a hospital, psychiatric facility, or jail.
6. DBHDS should establish training expectations for the REACH programs to train CSB Emergency Services staff. It should also determine how to ensure that existing ID and DD Case Managers are trained. Additionally, it should establish expectations for ongoing outreach to law enforcement personnel in each REACH area to expand upon the training module and to develop effective working relationships.

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Integrated Day Activities 7. The DBHDS should develop an implementation plan to provide integrated day activities that
includes the timelines and measurable milestones for each set of planned actions. The Commonwealth should include details of how it will prepare the current provider network for very substantial needed changes.
Supported Employment 8. The Commonwealth should create targets for subgroups of the population. These subgroups
should include individuals who are currently in group supported employment and pre­ vocational services, individuals transitioning to the community from Training Centers, individuals transitioning from school to adult services, and individuals who receive new waiver slots under the Agreement.
Licensing 9. The DBHDS Office of Licensure Services should compile an annual trend report on the
results of Licensing reviews, Internal Auditor reviews, and 360° Reviews. The trend report should include results of reviews across CSBs. This will help the Commonwealth to discover needed system improvements and to plan and implement corrective actions.
Case Management 10. DBHDS should develop training, monitoring tools, and clinical support for case managers.
Doing so will ensure that they have the skills, tools, and clinical supports to assess identified and unidentified risks and to determine whether supports are being implemented consistent with each individual’s safety protocols and needs.
11. DBHDS should ensure that case managers receive training in the specific elements of their face-to-face visits. These elements include when to convene the team, how to evaluate significant implementation problems, and how to assess risk when there are status changes.
Individual and Family Support 12. The Commonwealth should develop and implement a formalized and ongoing mechanism for
stakeholder input to help guide the evolution of the Commonwealth’s individual and family support program as person-and family-centered, and to incorporate a comprehensive and coordinated set of strategies.
Guidelines for Families Seeking Services 13. The Commonwealth should publish easily accessible and user friendly guidelines for families
seeking services designed to assist individuals/families who: are not yet aware how to apply and obtain HCBS waiver service are on waitlists for services through HCBS waivers, or have been awarded a HCBS waiver slot.
14. The Commonwealth should provide its published guidelines to the agencies that an individual/family is likely to contact first when a child is diagnosed with a significant disability or when an individual is new to the Commonwealth. These agencies include hospital neonatal intensive care units, pediatric organizations, and public school special education programs.

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VI. APPENDICES

A.

INDIVIDUAL REVIEWS

B.

CASE MANAGEMENT AND LICENSING REQUIREMENTS

C.

CRISIS SERVICES REQUIREMENTS

D.

INTEGRATED DAY ACTIVITIES AND SUPPORTED EMPLOYMENT

E.

INDIVIDUAL AND FAMILY SUPPORT and GUIDELINES FOR FAMILIES

SEEKING SERVICES

F.

LIST OF ACRONYMS

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APPENDIX A INDIVIDUAL REVIEWS 
 October 7, 2014 – April 6, 2015 

Completed by: 
 Donald Fletcher, Independent Reviewer 

Elizabeth Jones, Team Leader 
 Marisa Brown MSN
 Barbara Pilarcik RN 
 Shirley Roth MSN 


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Demographic Information 


Sex

N

Male

16

Female

9

Age ranges

N

Under 21

12

21 to 30

8

31 to 40

2

41 to 50

1

51 to 60

2

Levels of Mobility

N

Ambulatory without support

19

Ambulatory with support

1

Uses wheelchair

4

Confined to bed

1

Authorized Representative

N

Guardian

12

Authorized Representative

8

Type of Residence

N

Individual/family home

23

Supported apartment

1

Rehabilitation facility

1

Highest Level of Communication

N

Spoken language, fully articulates without assistance

20

Communication device

2

Gestures

1

Vocalizations

2

% 64.0% 36.0%
% 48.0% 32.0% 8.0% 4.0% 8.0%
% 76.0% 4.0% 16.0% 4.0%
% 48.0% 29.2%
% 92.0% 4.0% 4.0%
% 80.0% 8.0% 4.0% 8.0%

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NOTE: The Reviewers were not able to visit one of the twenty-five individuals and Could Not Determine (CND) the answers to most questions for that individual. Two families were not able to accommodate a home visit. One was interviewed over the phone. A mother and her son were interviewed in a hospital lobby. In the following tables “n” is the number of individuals for whom the question was applicable. Some questions are only applicable if the individual is an adult, or does not live with his or her family, or does has the condition. Consider the % of CND answers for each question when reviewing the % of Yes and No answers in the tables below.

Below are the positive outcomes and areas of concern related the individuals’ healthcare.

Healthcare Items - positive outcomes

Item

n

Y

Did the individual have a physical examination within

25

92.0%

the last 12 months or is there a variance approved by

the physician?

Were the Primary Care Physician’s (PCP’s)

25

92.0%

recommendations addressed/implemented within the

time frame recommended by the PCP?

Were the medical specialist’s recommendations

23

87.0%

addressed/implemented within the time frame

recommended by the medical specialist?

Is lab work completed as ordered by the physician?

25

88.0%

Are physician ordered diagnostic consults completed as

18

94.4%

ordered within the time frame recommended by the

physician?

If ordered by a physician, was there a current physical

4

100.0%

therapy assessment?

If ordered by a physician, was there a current

6

100.0%

occupational therapy assessment?

If ordered by a physician, was there a current speech

7

100.0%

and language assessment?

If applicable per the physician’s orders,

Is there monitoring of seizures, if applicable per the

6

83.3%

physician’s orders?

Is there monitoring of seizures, if applicable per the

6

83.3%

physician’s orders?

Is there any evidence of administering excessive or

25

0.0%

unnecessary medication(s) (including psychotropic

medication?

N 4.0%
4.0%
8.7%
8.0% 0.0%
0.0% 0.0% 0.0%
0.0% 0.0% 96.0%

CND 4.0%
4.0%
4.3%
4.0% 5.6%
0.0% 0.0% 0.0%
16.7% 16.7% 4.0%

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Healthcare Items – areas of concern

Item

n

Y

Did the individual have a dental examination within the 25

56.0%

last 12 months or is there a variance approved by the

dentist?

Were the dentist’s recommendations implemented

25

56.0%

within the time frame recommended by the dentist?

If ordered by a physician, was there a current

11

81.8%

psychological assessment?

If ordered by a physician, was there a current

5

60.0%

nutritional assessment?

Are there needed assessments that were not

25

24.0%

recommended?

Is there monitoring of fluid intake, if applicable per the

10

80.0%

physician’s orders?

Is there monitoring of bowel movements, if applicable

14

78.6%

per the physician’s orders?

N 36.0%
32.0% 18.2% 20.0% 72.0% 10.0% 14.3%

CND 8.0%
12.0% 0.0% 20.0% 4.0% 10.0% 7.1%

Healthcare Items –Psychotropic Medications - areas of concern

Item

n

Y

N

If yes, is there documentation that the individual

18

61.1% 33.3%

and/or a legal guardian have given informed

consent for the use of psychotropic medication(s)?

Does the individual’s nurse or psychiatrist conduct

14

42.9% 28.6%

monitoring as indicated for the potential

development of tardive dyskinesia, or other side

effects of psychotropic medications, using a

standardized tool (e.g. AIMS) at baseline and at least

every 6 months thereafter?

CND 5.6%
28.6%

Below are the positive outcomes and areas of concern related the individuals’ support plans. 


Individual Support Plan Items – positive outcomes

Item

n

Y

Is the Individual’s Support Plan/Plan of Care current?

25

92.0%

Is there evidence of person-centered (i.e. individualized)

25

96.0%

planning in the development of the Individual’s Support

Plan/Plan of Care?

Is the individual receiving supports identified in his/her

individual support plan?

Residential

25

96.0%

Medical

25

100.0%

Health

18

88.9%

Mental Health

15

100.0%

Do the individual’s desired outcomes relate to his/her

25

92.0%

talents, preferences and needs as identified in the

assessments and his/her Individual’s Support Plan/Plan

of Care?

N 8.0% 4.0%
4.0% 0.0% 11.1% 0.0% 4.0%

CND 0.0% 0.0%
0.0% 0.0% 0.0% 0.0% 4.0%

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Individual Support Plan Items – areas of concern

Item

n

Y

Are all essential supports listed?

25

80.0%

Does the Individual’s Support Plan/Plan of Care have

25

32.0%

specific outcomes and support activities that lead to skill

development or other meaningful outcomes?

If the individual requires an adaptive environment, have

7

71.4%

all the adaptations been provided?

If the individual requires adaptive equipment, is the

15

60.0%

equipment available?

If applicable, were employment goals and supports

15

33.3%

developed and discussed?

Is the individual receiving supports identified in his/her

individual support plan?

Dental

24

62.5%

Day/Employment

12

58.3%

Recreation Communication/Assistive Technology

12

58.3%

10

60.0%

N 16.0% 64.0%
28.6% 33.3% 60.0%
33.3% 41.7% 41.7% 40.0%

CND 4.0% 4.0%
0.0% 6.7% 6.7%
4.2% 0.0% 0.0% 0.0%

Below are areas of concern related to the development of the individual support plans and integration outcomes of individuals in their communities.

Integration items – areas of concern

Item

n

Y

If applicable, were employment goals and supports

15

5

developed and discussed?

If no, were integrated day opportunities offered

9

44.4%

Does typical day include regular integrated activities?

15

41.7%

Do you participate in integrated community volunteer

25

16.0%

activities?

Do you participate in integrated community

25

56.0%

recreational activities?

N 9
55.6% 58.3% 84.0%
40.0%

CND 1
0.0% 6.7% 0.0%
4.0%

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APPENDIX B 
 CASE MANAGEMENT AND LICENSING 

By: Ric Zaharia Ph.D. 


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of
Report to the Independent Reviewer United States v. Commonwealth of Virginia

 

Case Management and Licensing 
 Requirements
By
Ric Zaharia, Ph.D., FAAIDD Consortium on Innovative Practices
April 24, 2015

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� Execmtive�ummmry��
The Independent Reviewer for the US v. Commonwealth of Virginia Settlement Agreement requested a follow-up review of the Licensing and Case Management requirements of the Agreement. This review updates the findings from previous reports on these areas.
DBHDS (Department of Behavioral Health and Developmental Services) licensing rules (12VAC 35-105-1240) regard the Office of Licensing Services (OLS) as the compliance mechanism for Community Service Board (CSB) case management performance under their contracts with the Commonwealth. Monitoring case management performance, however, has been expanded to include case management expectations that have been added to the DBHDS Internal Auditor's periodic Operational Review of CSBs. In addition, DBHDS is widening the scope of OLS case management reviews through a process called 360o Review. While the Internal Auditor's Operational Review of CSBs clearly measures case management performance of the CSBs, it does so infrequently. The 360o Review process was initiated in the fall of 2014 is, as yet, not established as an effective performance monitoring strategy.
DBHDS efforts to achieve compliance in the monitoring area continue. The exposure of individuals and the system to the negative impacts of providers who repeatedly fail to meet performance expectations or correction plans continue. One residential provider during the fall of 2014 had repeat citations with no additional consequence besides another CAP.
The Agreement contains an overarching requirement that data collected by DBHDS for the purposes of continuous improvement be "reliable". DBHDS has not tested for the reliability of case manager data referenced in the Agreement, whether for case manager visits or their assessment of the individual's accomplishment of goals. This could be simply addressed in the same manner as HCBS audits - requiring supervisors to conduct samplings of records and report the performance they discover.
The Compliance Table on the next page summarizes the assessment of compliance described in the narrative report below. This review assessed ten requirements in the Agreement. Five of the ten are in compliance. For five of the ten requirements the progress made by the Commonwealth toward compliance has not been sufficient to achieve compliance. Recommendations are made on approaches to achieve compliance. Suggestions for improvement are offered for consideration.

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uettlement� Agyeement�
uection� III.C.5.a Case Management III.C.5.c Case Management
III.C.5.d Case Management III.D.7
V.F.1 Case Management V.F.2 Case Management
V.F.4 Case Management V.G.1-2 Licensing
V.G.3 Licensing
Section IX.C

Compliance Table 
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uettlement�Agyeement�arngmrge�
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.
Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family's home (and, if relevant, to their Authorized Representative or guardian). For individuals receiving case management services pursuant to this Agreement, the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual's residence, as dictated by the individual's needs. At these face-to-face meetings, the case manager shall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual's support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual's support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual's strengths and preferences, then the case manager shall report and document the issue, convene the individual's service planning team to address it, and document its resolution.
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement. Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS. Requires that there be ".sufficient records to document that the requirements of the Agreement are being properly implemented."

Complirnce�ro�o�� 4/15/15�
(10/24/15) Complirnce�
(same)

Page� 4

Complirnce�

5

(Non-Compliance)

Non-�Complirnce� 6 (same)

Complirnce�

8

(none)

Complirnce�

9

(Same)

Non-Complirnce� 10 (same)

[also Assessed through Individual Service Reviews]

Non-Complirnce� 11 (same)

Complirnce�

12

(same)

Non-Complirnce�

13

(same)

Non-Complirnce� 7 (same)

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Case Management
Case Management Availability III.C.S.a The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.
. Methodology ● Reviewed October 2014 Data Dashboard. ● Interviewed Dee Keenan.
Findings The Data Dashboard continues to have viability as an accountability tool for the tracking of the delivery, but not quality, of case management services. The Dashboard's effectiveness is now centered on the accuracy of data entry at the local CSB level.
The October 2014 Data Dashboard shows that system-wide 88% of the individuals eligible 
 for in-home case management are receiving the required visit minimums. Of the 
 individuals eligible for monthly face-to-face visits, 89% are receiving those minimums. No 
 records were provided to support or show the integrity of the data in the Dashboard. 

Conclusion 
 DBHDS is in compliance with the requirements of III.C.5.a. 

DBHDS is not in compliance with IX.C.
Recommendations toward Achieving Full Compliance None
Suggestions for Departmental Consideration DBHDS might request Data Entry Improvement Plans from the CSBs below 90% might begin to challenge CSBs between 90-95% to achieve the 100% reached by four CSBs in October and clearly establish a minimum expectation that all CBSs will achieve 95%.
Choice-based, Conflict-free Case Management III.C.S.c Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board ("CSB") Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.

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Methodology ● Reviewed Individual Choice Form (10.1.10) and Virginia Informed Choice and
Notification Form (1.21.15). ● Telephone interviewed ARs/individuals who are in out-of-home placements from a
list of 4,176 individuals who had an ISP during Oct.-Nov.-Dec. 2014. The reviewer selected 63 names randomly drawn (every fifth name alphabetically) with at least one drawn from each CSB, 2 from CSBs with over 100 names, 3 from CSBs with over 200 names, and so on. The final 31 individuals who responded represented 25 CSBs and all the Health Planning Regions. ● Interviewed Dee Keenan.
Findings The reviewer telephone surveyed 31 authorized representatives/individuals who had recent annual ISP meetings, who were randomly selected and who answered phone calls. Eighty-one percent (81%) knew that they had the choice of choosing/changing service providers, including the case manager.
Case managers present individuals or their authorized representative with a formal Choice Form "when there is a request for a change in provider/s, when additional services are initiated, or when the individual is dissatisfied with the current provider."
Conclusion DBHDS is in compliance with III.C.5.c. and has ensured that case managers are giving individuals a choice of service providers.
Recommendations towards Achieving Full Compliance None
Suggestions for Departmental Consideration DBHDS might consider educating individuals or their authorized representative of their continuing rights to change providers in user friendly and accessible materials, such as in the annual guidelines it publishes per Section III.C.8.b.

Case Management Performance Monitoring III.C.S.d The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

Methodology ● Reviewed all data available on Supports Efficacy Checklist as applied during Oct.-
Nov.-Dec. 2014. ● Reviewed one Internal Auditor's report on a CSB completed during Oct.-Nov.-Dec.
2014. ● Interviewed Dee Keenan, Keven Schock, Chanda Braggs.

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Findings Based on information provided to this reviewer, no CSBs were required to generate a CAP by Licensing during Oct-Nov-Dec 2014.
DBHDS reports that six (6) Operational Reviews were completed through March of 2015. Only one was provided to this reviewer for the last quarter of 2014, but it is an excellent example of the kind of case management performance review that the system requires.
Twenty-two (22) provider programs (3% of all providers) were reviewed using the Supports Efficacy Checklist (formerly Supports Efficiency Checklist) from Oct 2014 through January 2015; these Checklist reviews, which covered 56 individuals in total, are a major component of the 360o Review, in which OLS staff look at a sample of case management records and then conduct a document review of providers assigned to deliver services to the individual. It is too early to judge the value of these 360o Reviews, but it is disappointing to learn that in this initial group four (4) providers had no data to support the objectives/services they were assigned and almost a third were missing community integration goals/objectives, which is congruent with findings from our Individual Service Reviews. DBHDS reports that it is will be revisiting this issue with CSB case managers through re-training.
Licensing regulations (12VAC35-105-10 to 105 1410) do not align specifically as to the case management expectations detailed in the Agreement (i.e. regularized face to face meetings with the individual being served, enhanced visit frequency, identifying risks to the individual, offering choice among providers, assembling professionals and nonprofessionals who provide supports, identifying risks). As structured, the current process for the licensing reviews cannot determine if the provisions of the Settlement Agreement are being properly implemented. However, a set of regulatory changes is being developed which may impact this area.
The latest OLS Office Protocol has been revised to include the eight (8) areas identified in the Agreement (V.D.3.) for monitoring. This is a positive modification towards CSB performance monitoring.
OLS does not regularly compile the results of licensing reviews into a report on trends related to compliance patterns across CSBs.
Conclusion Although the Department's quality management activities indicate progress, DBHDS is not currently in compliance with the requirements of III.C.5.d, a mechanism to monitor CSB compliance with performance standards. Section IX.C also requires that there be ".sufficient records to document that the requirements of the Agreement are being properly implemented." and those were not provided to the reviewer.

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Recommendations toward Achieving Full Compliance At least annually OLS should compile a trend report on Licensing/Internal Auditor/360o Reviews results for case management. Detecting and reporting patterns and frequencies in the results of reviews across CSBs ensure that needed system improvements are discovered and that corrective action can be planned and implemented. Data warehousing software should enable OLS to inform these reports as the use of this software is implemented on monitoring data.
Continue to evaluate and revise the Supports Efficacy Checklist process for effectiveness.
DBHDS should identify the statistically minimum sample size OLS needs to validate the findings of any CSB case management review. The current "minimum sample of 10 cases" does not ensure that CSBs with caseloads over 200 are receiving a valid sampling. A 10% sample size, such as now required at provider agencies, would provide more confidence in the findings, their generalizability, and their representativeness of agency performance.
Suggestions for Departmental Consideration None
Less Restrictive Options III.D.7 The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family's home (and, if relevant, to their Authorized Representative or guardian).
Methodology ● Reviewed new ISP form (12.16.14). ● Telephone interviewed ARs/individuals who are in out-of-home placements (see
above for more information). ● Interviewed Dee Keenan.
Findings This reviewer telephone surveyed 31 families/authorized representatives/individuals who had recent annual ISP meetings, who were randomly selected and who answered phone calls. Seventy-eight percent (78%) recalled other, less restrictive service options being discussed at the annual meeting.
The revised ISP form (dated 12.16.14), which was rolled out to the system earlier this year and is to be used system-wide as annual ISPs come due, includes a section that is designed to confirm that education is offered and a review of most integrated settings is conducted. Community Resource Consultants have been training CSB staff and providers on the new format.

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Conclusion DBHDS is in compliance with III.D.7, the annual revisit of most integrated options per the recently revised ISP. The telephone interviews confirm that families/authorized representatives/individuals are discussing alternative options at the annual meeting.
Recommendations toward Achieving Full Compliance None
Suggestions for Departmental Consideration None
Face-to-face Case Management V.F.1. For individuals receiving case management services pursuant to this Agreement, the individual's case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual's residence, as dictated by the individual's needs.
Methodology ● Reviewed October 2014 Data Dashboard. ● Reviewed records maintained to demonstrate that visits occur regularly as dictated
by individual needs. ● Telephone interviewed ARs/individuals who are in out-of-home placements (see
above for more information). ● Interviewed Dee Keenan.
Findings As reported above, the October 2014 Data Dashboard shows that system-wide 88% of the individuals eligible for in-home case management are receiving the required visit minimums. Of the individuals eligible for monthly face-to-face visits, 89% are receiving those minimums. No records were provided to support or show the integrity of the data in the Dashboard
The reviewer telephone surveyed 31 families/authorized representatives/individuals who 
 had recent annual ISP meetings, who were randomly selected and who answered phone 
 calls. Two thirds of this group knew the case manager made regular face-to-face visits; 
 some knew the frequency. A third of the group did not know the case manager's visit 
 schedule. Sixty-one percent (61%) believed that their assigned support coordinator "kept a 
 good eye on things on their behalf." 

Conclusion 
 DBHDS is in compliance with V.F.1. 


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Recommendations to Achieve Full Compliance None
Suggestions for Departmental Consideration DBHDS might request Data Entry Improvement Plans from the CSBs below 90% and might begin to challenge CSBs between 90-95% to seek to achieve the 100% reached by four CSBs in October.
Observation and Assessment V.F.2. At these face-to-face meetings, the case manager shall: observe the individual and the individual's environment to assess for previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual's support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual's strengths and preferences and in the most integrated setting appropriate to the individual's needs. If any of these observations or assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the individual's support plan or its implementation; or a discrepancy between the implementation of supports and services and the individual's strengths and preferences, then the case manager shall report and document the issue, convene the individual's service planning team to address it, and document its resolution.
Methodology • Reviewed the planned changes to the ISP and the ISP process. • Evaluated data collection tool. • Reviewed October 2014 Data Dashboard. • Interviewed Dee Keenan.
Findings For this Agreement objective (to measure the content of the face-to-face visits) the key indicators settled on by DBHDS (Health & Well Being, Community Inclusion, Choice and Self-Determination, Living Arrangement Stability, and Day Activity Stability) showed promise. However, these measures do not address specific elements of the face-to-face visits, such as when to convene the team, how to evaluate significant implementation problems, assessing risk when there are status changes, etc.
As with the larger parts of the Data Dashboard, these latter five measures, which DBHDS developed, are collected centrally from the CSBs through the CCS3 (Community Consumer Submission 3). Edits were made to the CCS3 extract in 2014 which improved its outputs and additional training is planned for case managers regarding reports on the five measures.

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These latter data pieces may be captured through other processes being tested by DBHDS, but the halo effect of case managers skewing reports for the Data Dashboard toward the positive is a serious issue. There are plans to put corrections in place to correct for this via the ISP, but the reliability of this component of the Data Dashboard remains a large question. For example, in October 2014 four CSBs (Dickenson, Henrico, Northwestern, Rockbridge) reported that 100% of their Health and Well Being goals were being successfully achieved for 740 individuals; while this is certainly plausible, there is no mechanism to test the validity of this data given that Health and Well Being goals are the least likely to be achieved 100% of the time, since it is the one category that is tied to a personal variable like health which is very often out of the control of providers and case managers.
Conclusion Based on this review DBHDS is not in compliance with Section V.F.2. This section is also assessed in the Individual Service Review study, which has found in each previous reporting period that most ISPs do not include baseline or measurable outcomes. The oversight for this issue is clearly vested in OLS, which does not routinely examine case manager notes relevant to an incident in its SIR and death investigations.
Recommendations towards Achieving Full Compliance DBHDS should develop methods to show validity in the reported data from case managers. This will involve sampling individual records to verify agreement between what is documented and what is reported. This could be delegated to case management supervisors.
OLS should establish a minimum investigation protocol that always includes review of case 
 manager notes in the period preceding an incident or a death. 

DBHDS should develop training, clinical support, and monitoring tools for CMs to ensure 
 that they have the skills and clinical supports to assess for identified and unidentified risks 
 and to determine if supports are being implemented consistent with safety protocols and 
 the individual's needs. 

Specific elements of the face-to-face visits, such as when to convene the team, how to 
 evaluate significant implementation problems, assessing risk when there are status 
 changes, etc. will need to be assessed or measured. The Support Coordination ECM Onsite 
 Report appears to have potential for addressing this, but it is optional and not required of 
 the field. 

Suggestions for Departmental consideration: 
 DBHDS should consider dialogues with CSB managers about the integrity of the five 
 indicators now reported in the Data Dashboard. 


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Case Manager Visits V.F... 
 Within 12 months from the effective date of this Agreement, the Commonwealth shall 
 establish a mechanism to collect reliable data from the case managers on the number, 
 type, and frequency of case manager contacts with the individual. 

Methodology ● Reviewed any data gathered that demonstrates that the data provided by CSBs is
complete and reliable. ● Reviewed October 2014 Data Dashboard. ● Interviewed Dee Keenan.
Findings The Data Dashboard does not yet reliably reflect CSB performance for the Settlement Agreement requirement of "a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual". DBHDS quality administrators have identified poor data entry at the CSB level as the source of the remaining reliability problems in the Dashboard. However, beyond publication of the dashboard and conversations with individual CSBs, there do not appear to be strategies that would ensure CSBs improve their data entry processes or address poor performance outcomes.
Conclusion DBHDS is not currently in compliance with the requirements of V.F.4. DBHDS does not yet have evidence at the policy level that it has reliable mechanism/s to assess CSB compliance with their performance standards relative to case manager contacts.
Recommendations towards achieving Full Compliance: 
 DBHDS should implement strategies that direct CSBs improve their data entry. 

Suggestions for Departmental consideration: 
 The Drumwright/Keenan CSB input matrix review creates a rich information pool for 
 DBHDS and should be an annual event. 

DBHDS should require that CSBs achieving less than 50% on all Data Dashboard measures provide a 'data entry improvement plan'; CSBs achieving less than 90% should provide a 'case management performance improvement plan.'

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Licensing 


Unannounced OLS Visits V.G.1-2 The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement. Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement.

Methodology: ● Reviewed all provider licensing reviews/CAPs during Oct.-Nov.-Dec. 2014. ● Reviewed OLS tracking sheet for all Licensing visits Oct-Nov-Dec 2014. ● Interviewed Keven Schock, Chanda Braggs.

Findings Visits are scheduled and occur in a random fashion that indicates they are unannounced and more frequent for those covered by the Agreement.

Conclusion 
 DBHDS is in compliance with the requirements of V.G.1-2. 


Recommendations to Achieve Full Compliance None

Suggestions for Departmental Consideration None

Adequacy of Supports V.G.3 Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS

Methodology ● Evaluated the revised OLS Office Protocol. ● Reviewed all CSB and provider licensing reviews/CAPs during Oct.-Nov.-Dec.
2014. ● Reviewed all data available on use of the Supports Efficacy Checklist during Oct.-
Nov.-Dec. 2014. ● Reviewed one Internal Auditor's report on a CSB completed during October-
November-December 2014.

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● Interviewed Dee Keenan, Keven Schock, Chanda Braggs.
Findings A new OLS Office Protocol, an Internal Auditor's report, and the new 360o Review suggest the quality management monitoring process is being increasingly focused on the adequacy of supports. The outcomes of these revised processes will determine their effectiveness.
The revised processes in the Quality Management Plan may eventually establish that 
 DBHDS is examining the adequacy of supports regularly and consistently. To date there is 
 no data to confirm that this is the case. 

There is a theme at OLS that educational approaches to providers are preferred to 
 applying more serious consequences. 

Conclusion 
 DBHDS is not in compliance with V.G.3. 

Recommendations towards Achieving Full Compliance 
 DBHDS should continue to test-evaluate-revise its quality management processes. 

Quality Management planning should consider using a similar methodology to the HCBS audits: request that case management supervisors review samples of case management records and report their reliability and internal consistency.
While providers should be given every opportunity to respond to training and corrective action plan approaches, the OLS licensing mechanisms should ultimately be in use to weed out providers who repeatedly fail to meet performance expectations or correction plans, sooner rather than later.
Suggestions for Departmental Consideration None
Summary
DBHDS continues to accomplish requirements in the Agreement and to strive to accomplish those not yet achieved. Upcoming submission of emergency rule revisions for OLS, full roll-out and evaluation of the 3600 Review process, and implementation of the proposed Waiver Re-Design which will be submitted to the General Assembly for approval in November of 2015, should position DBHDS to accomplish many more of the Agreement requirements.

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APPENDIX C 
 CRISIS SERVICES REQUIREMENTS 

By: Kathryn du Pree MPS 


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CRISIS SERVICES REVIEW OF THE VIRGINIA REACH PROGRAM FOR THE INDEPENEDENT REVIEWER FOR THE COMMONWEALTH OF VIRGINIA VS. THE US DOJ
PREPARED BY KATHRYN DU PREE, MPS EXPERT REVIEWER M�� �, ����

TABLE OF CONTENTS
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• Tbe�snrrn4hedntbse�db�n�ty�tn�eesoe�dstnte�h�tb�seoennere4tdn�s�edb�n�t�ee��4�tesre� nd�cs�e�e�eseoe4t�n4�d4s��4tesoe4t�n4�eeso�cee�e4ets�4n�tb�e�tdsnet�enetndt�n4n� �4cnts�4n�tbnee�n4�tbe�hd�t�4n�n�etn�bde�cdee�rd4dnere4t�eeso�cee�tn�ddc�n�tdte�dtnn� dcceee�tn�cs�e�e�eeso�cee�d4s�etdb�n�adt�n4�esnnsdren�d4s�dcceee�tn�cnrrt4�ty�eteenste� tn�eseoe4t�dtttse�cs�eee�
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SECTION 3: REVIEW PROCESS Tbe�Hpeest�eeo�ehes�seo�ehes�seneod4t�snctre4te�d4s��4teso�ehes�pey�dsr�4�etsdt�oe�etddd� nd�rRrrSn�eHRsr�dsr�4�etsdtnse�d4s�etdpebnnsese�tn�esno�se�tbe�sdtd�d4s��4dnsrdt�n4� 4eceeedsy�tn�cnrenete�tb�e�seo�eh�d4s�setesr�4e�cnren�d4ce�h�tb�tbe�sett�sere4te�nd�tbe� Settnere4t�Rnseere4t2��
Document Reviewe�rnctre4te�seo�ehes��4cntsese� 12 Tbe�sb�nsse4se�ss�e�e�Std4sdssee�ssddt�12m1m14� 22 Tbe�een�n4�dg�nde�R4dnye�e�d4s�hsnnsdr�reoennere4t�hesdtee�dns�cb�nsse4�d4s� dsnneece4t�cs�e�e�eeso�cee� 32 rhe�dd�sb�nsse4�ss�eee�Seso�cee�rctnbes�2014�eeenst�d4s�dr/r�neese�Reeeeere4t� eeenst�� 42 Stdte�ttdstesny�eHRsr�seenste�dns�10/1/14m12/31/14�d4s�1/1/15m3/31/15� 52 eHRsr�Fnyes�2014� 62 rr�rttsedcb�hnd4�hesdte�2m11m15� 72 Wnsp�hnd4�dns�Edh�H4dnscere4t�rttsedcb� 82 rs�n�4dn�d4s�hesdte�T�ren�4e�dns�rntee�Sedscb�een�n4�dg� 92 eHRsr�snnss�4dtnse�neet�4n�n�4tteem10m14�d4s�11m14�
� Interviewse�d��4teso�ehes�sn44�e�sncbsd4�tbe�Ree�etd4t�snrr�ee�n4es�dns�reoennere4tdn� Seso�ceen�redtbes�nnstn4�tbe�r�sectns�nd�snrrt4�ty�Seso�ceen�n�cbene�Hbs�nbt�tbe�ss�e�e� Seso�cee�Stdte�snnss�4dtnsn�tbe�een�n4�dg�dr/r�r�sectnsn�eHRsr�sTr�snnss�4dtns�d4s�nes�cdn� r�sectnsm�rerbese�nd�tbe�een�n4�d�eHRsr�Rso�ensy�snt4c�n�MeRsg�d4s�d�sdee�nd4dnes��4� een�n4�d2��d�o�e�tes�tbe�sTr��4�een�n4�dg2�d�hde�dbne�tn��4teso�eh�n4e�nd�tbe�ddr�n�ee�tbdt� sece�oes�eHRsr�eeso�cee�dns�tbe�s�cb�ns�n�o�4n�dt�bnre�d4s�d�rerbes�nd�tbe�een�n4�d�eRs�tbdt� bds�tees�eHRsr�eeso�cee�tn�setesr�4e�tbe�s�neoen�nd�edt�eddct�n4�d4s�en�c�t�d4y� secnrre4sdt�n4e�tbey�bdoe�dns��resnoere4t2�d�deesec�dte�tbe�t�re�tbdt�eoesyn4e�ndoe�tn� cn4ts�btt�4n��renstd4t��4dnsrdt�n4�dns�tb�e�seo�eh2��
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SECTION 4: A STATEWIDE CRISIS SYSTEM FOR INDIVIDUALS WITH ID and DD Tbe�snrrn4hedntb��e�epeectes�tn�esno�se�cs�e�e�eseoe4t�n4�d4s��4tesoe4t�n4�eeso�cee�tn� �4s�o�stdne�h�tb�e�tbes��4tennecttdn�ns�seoennere4tdn�s�edb�n�t�ee�de�edst�nd��te�nbn�ndt�n4� t4ses�Sect�n4�62d2�nd�tbe�Settnere4t�Rnseere4t�tbdt�etdteee� The Commonwealth shall develop a statewide crisis system or individuals with ID and DD. The crisis system shall:
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 including crises due to behavioral or psychiatric issues, and to their amilies; 

ii. Provide services ocused on crisis prevention and proactive planning to avoid potential crises; and

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iii. Provide in-home and community -based crisis services that are directed at resolving 
 crises and preventing the removal o the individual rom his or her current placement 
 whenever practicable. 

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RESPONSE ASSESS INTERIM TIME MENT PLAN

CSCP

1

nHT

nHT

nHT

nrT� nHT

2

nHT

nHT

nHT

nHT

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nHT

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nrT� nHT

4

MET

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nHT

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nHT

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nHT

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10 % MET

nrT�� nHT
nHT
nrT� �nHT nrT� �nHT
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nrT�� nHT nHT
nHT nrT�� nHT
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nrT�� nHT nHT
nHT nrT�� nHT
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nrT� nHT nrT� nHT NOT MET
nHT*
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nrT� nHT nHT
nHT
nHT nrT� nHT nrT� nHT nrT� nHT nHT
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nHT
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70%

CASE MNGR
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MET
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MET
nrT�� nHT
nHT
nHT
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Honc usions Tbe�rRrrS��e�4nt��4�cnren�d4ce�h�tb�Section III.C.�.a.i, �.a.ii, and �.a.iii. Tbe� esnnsdr�enere4te�dse��4�endce�dns�dstnte�h�tb�dr�d4s�tbe�eHRsr�tedre�dse�ne4esdnny�reet�4n� tbe�epeectdt�n4e�dns�eeso�4n�tb�e�eeec�d�c�enetndt�n4�dntbntnb�tbese�dse�dsede�dns�esnnsdr� �resnoere4t�d4s�snctre4tdt�n42�rnheoesn�rRrrS�snee�4nt�bdoe�d�etdteh�se�cs�e�e�eyeter� �4�endce�dns�cb�nsse4�d4s�dsnneece4te�hbn�epees�e4ce�d�cs�e�em�4ns�cd4�rRrrS�deetse�tbdt��t��e� sedcb�4n�dnn�nd�tbe��4s�o�stdne�h�tb�rr�hbn�4ees�d4s�rdy�be4ed�t�dsnr�tbe�cs�e�e�eyeter2�� �

SECTION 5: ELEMENTS OF THE CRISIS RESPONSE SYSTEM

�.b. The Crisis system shall include the ollowing components: i. A. Crisis Point o Entry The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, or individuals to access in ormation about and re errals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week and sta ed with clinical pro essionals who are able to assess crises by phone and assist the caller in identi ying and connecting with local services. Where necessary, the crisis hotline will dispatch at least one mobile crisis team member who is adequately trained to address the crisis.

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B. By june 30, 2012 the Commonwealth shall train CSB Emergency personnel in each Health

Planning Region on the new crisis response system it is establishin

g, how to make

re errals, and the resources that are available.

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Tbe�d4seee4se4t�eeo�ehes�setteetes�d�end4�dsnr�rRrrS�by�Dt4e�30n�2014�tn�eeec�dy�tbdt�dnn� sSR�HS�eesen44en�h�nn�be�tsd�4es�te�4n�d�etd4sdss�aes�ctss�ctntr�d4s�tb�e�tsd�4�4n�h�nn�be� tsdcpes2�Tbe�rRrrS�bde�seoennees�d�etd4sdss�aes�ctss�ctntr�sts�4n�tb�e�seenst�4n�ees�ns� d4s�dnn�4eh�HS�etddd�d4s�cdee�rd4dnese�h�nn�be�sett�ses�tn�be�tsd�4es�dbntt�eHRsr2� � Honc usion Tbe�snrrn4hedntb�serd�4e��4�cnren�d4ce�with Section III.C.�.b.i.B becdtee�tbe� eHRsr�esnnsdre�cn4t�4te�tn�tsd�4�HS�etddd2�rRrrS�bde�seeen4ses�tn�tbe�d4seee4se4t� eeo�ehesse�sett�sere4t�tn�seoenne�d�tsd�4�4n�end4��4�tbdt�tbe�tsd�4�4n��e�4nh�sett�ses�dns�dnn� 4eh�eesen44en2�Tbe�rRrrS�cn4t�4tee�tn�be�t4dbne�tn�tsdcp��d�dnn�ep�et�4n�HS�etddde�bdoe�bee4� tsd�4es�btt�eHRsr�etddd�cn4t�4tee�tn�rdpe�tsd�4�4n�dod�ndbne2�� � Recommend�tion Rnn�sen�n4e�ebntns�be�sett�ses�tn�esno�se�tb�e�tsd�4�4n�t4neee�dnn�HS� erennyeee��4�tbe�s�sen�n4�bdoe�dnsedsy�bee4�tsd�4es2�rRrrS�ebntns�seoenne�d�tsdcp�4n� recbd4�er�h�tb�tbe�sSRe�tn�snctre4t�tbe�etddde�tbdt�dse�tsd�4es�d4s�dnnnnh�te�h�tb�d4y�hbn� �e�4nt2�

ii. Mobile Crisis Teams

A. Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and o er timely assessment, services support and treatment to de-escalate crises without removing individuals rom their current placement whenever possible.

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Honc usion Tbe�snrrn4hedntb��e��4�cnren�d4ce�h�tb�Section �.b.ii.A. dt�bde�seoennees�d�cnresebe4e�oe�tsd�4�4n�esnnsdr�d4s�d�esnceee�tn�se�4dnsce�neds4�4n� tbsntnb�eteeso�e�n4n�tedr�reet�4n�s�ectee�n4e�d4s�eees�seo�eh2� � Recommend�tionse�Tbe�eHRsr�esnnsdre�rdy�hd4t�tn��4cntse�eesen4mce4teses�end44�4nn� s�ecbdsne�end44�4n�d4s�ddr�ny�tsd�4�4n��4�tbe�tsd�4�4n�esnnsdr2� �
B. Mobile crisis teams shall assist with crisis planning and identi ying strategies or preventing uture crises and may also provide enhanced short-term capacity within an individual�s home or other community setting.
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C. Mobile crisis team members adequately trained to address the crisis shall work with law en orcement personnel to respond i an individual comes into contact with law en orcement
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D. Mobile crisis teams shall be available 24 hours, 7 days per week to respond on-site to crises.

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E. Mobile crisis teams shall provide in-home crisis support or a period o up to three days, with the possibility o 3 additional days

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Region I: twelve individuals or an average o seven days in QII Thirty-two individuals or an average o our days in QIII Region II twelve individuals or an average o ive days in QII Fourteen individuals or an average o 3.5 days in QIII Region III seventeen individuals or an average o thirteen days in QII Twenty-one individuals or an average o eleven days in QIII Region IV thirty-eight individuals or an average o three days in QII Thirty-two individuals or an average o our days in QIII Region V: ourteen individuals or an average o eleven days in QII Thirty-seven individuals or an average o two days in QIII

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�. By june 30, 2013 the Commonwealth shall have at least two mobile crisis teams in each region to response to on-site crises within two hours H. By june 30, 2014 the Commonwealth shall have a su icient number o mobile crisis teams in each Region to respond on site to crises as ollows: in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time.

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iii. Crisis Stabilization programs A. Crisis stabilization programs o er a short-term alternative to institutionalization or hospitalization or individuals who need inpatient stabilization services. B. Crisis stabilization programs shall be used as a last resort. The state shall ensure that, prior to trans erring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has irst attempted to resolve the crisis to avoid an out-o -home placement, and i that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement. C. I an individual receives crisis stabilization services in a community-based placement instead o a crisis stabilization unit, the individual may be given the option o remaining in placement i the provider is willing to serve the individual and the provider can meet the needs o the individual as determined by the provider and the individual�s case manager. D. Crisis stabilization programs shall have no more than � beds and length o stay shall not exceed 30 days. �. By june 30, 2013 the Commonwealth shall develop an additional crisis stabilization program in each region as determined to meet the needs o the target population in that region.

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TABLE � INDIVIDUALS USIN THE REAHH HRISIS STABILIAATIFN UNITS DURIN Y�� SEHFND QUARTER (QII) AND Y�� THIRD QUARTER (QIII)

REGION

QII

QII

Emergency Planned

QIII Emergency

QIII Planned

Total Emergency

Total Planned

I

10

10

20

9

30

19

II

8

34

11

20

19

54

III

22

13

19

13

41

26

IV

12

12

17

23

29

35

V

19

14

24

9

43

23

TOTAL

71

83

91

74

162

157

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SECTION 6: SUMMARY
Tbe�snrrn4hedntb�nd�g�sn�4�d�cn4t�4tee�tn�rdpe�esnnseee�tn��renere4t�d�etdteh�se�cs�e�e� seeen4ee�eyeter�dns��4s�o�stdne�h�tb�d/rr2�dt��e�esnr�e�4n�tbdt�rRrrS�bde�seoennees�d�end4� tn�eped4s�tn�esno�se�cs�e�e��4tesoe4t�n4�d4s�eseoe4t�n4�tn�cb�nsse4�d4s�dsnneece4te�d4s�bde� dt4s�4n�etdst�4n��4�Fe162�Thn�sen�n4e�bdoe�dnsedsy�etdstes�cs�e�e�eeso�cee�dns�cb�nsse4�d4s� dsnneece4te2�Tbe�seo�eh�nd�e�p�nd�tbe�thenoe�cb�nsse4�tbdt�sece�oes�cs�e�e�eteenste��4�een�n4� ddd��e�oesy�ene�t�oe2�
I interviewed three members of the REACH Region I Regional Advisory Council. They support the importance of crisis prevention and intervention services. They report that the program in Region I is stabilizing and beginning to be more utilized. The outreach to the DD community is improving. They find the Region to be flexible and open to the input of stakeholders. They report some reluctance by providers to use REACH but also report of families who have been satisfied with the REACH services. They all believe this is a very important service. Recommendations they make for improvement include providing a clearer description of what REACH does in terms of its specific services, implementing crisis services for children and adolescents, improving the response time to crises, and developing stronger collaboration with the CSBs and providers. One member uses REACH services and reports satisfaction with the supports provided to her son.
The issue of the actual response time to crises must be addressed to determine if the Commonwealth is meeting its obligation under the Settlement Agreement. The dramatic increase in psychiatric admissions bears further analysis. In addition to the REACH data about individuals who experience inpatient admissions DBHDS provided a summary of psychiatric hospitalizations for individuals with ID/D that occurred between July 1, 2014 and March 15, 2015. All individuals had some level of ID, some of whom had a co-existing developmental disorder. No one was reported as having only a developmental disability. The data included the following:
• Sixty-eight individuals were still hospitalized at the time of the report • One hundred fifty individuals had been discharged although the time period of the review
was not specified

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• Eleven of the 150 individuals discharged were hospitalized for more than one year with a range of 418-1926 days. Those individuals with lengthy stays included individuals with dementia and others with a forensic history
• 139 of the 150 individuals were hospitalized for 365 days or less with an average length of stay of forty-one days
This data will be important to maintain and update in the future. It will be useful for the next review and enable the review to focus on the reasons for and disposition of psychiatric admissions. The Commonwealth must determine if the crisis response to these individuals has been sufficient and whether additional supports and services are needed to complement the supports REACH is able to offer to meet the goal of supporting individuals whenever possible in their homes. The Commonwealth must ensure that when out of home placement is needed it is appropriate, shortterm and provides clinical assessment and treatment planning that prepares the individual to successfully return to the community with the comprehensive supports he or she needs that avert future crises. REACH is only one component of a successful system that addresses the needs of individuals who have a dual diagnosis or exhibit challenging behaviors.
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III.C.�.b.i.A 
 III.C.�.b.i.B 
 III.C.�.b.ii.A 
 III.C.�.b.ii.B 
 III.C.�.b.ii.C 
 III.C.�.b.ii.D 
 III.C.�.b.ii.E 
 III.C.�.b.iii.A 
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APPENDIX D INTEGRATED DAY AND EMPLOYMENT SERVICES REQUIREMENTS 

By: Kathryn du Pree MPH 


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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 104 of 149 PageID# 5871 �
2015 REVIEW OF THE EMPLOYMENT SERVICES REQUIREMENTS OF THE US v COMMONWEALTH OF VIRGINIA'S SETTLEMENT AGREEEMENT
REVIEW PERIOD: OCTOBER 7,2014- APRIL 6, 2015
SUBMITTED TO DONALD FLETCHER INDEPENDENT REVIEWER
PREPARED BY: KATHRYN DU PREE, MPS EXPERT REVIEWER APRIL 30, 2015
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I. OVERVIEW OF REQUIREMENTS rn4dns�Fnetcbesn�tbe�d4seee4se4t�eeo�ehes�bde�cn4tsdctes�h�tb�rdtbsy4�st�hsee�de�tbe� Hpeest�sn4etntd4t�tn�eesdnsr�tbe�seo�eh�nd�tbe�erennyre4t�eeso�cee�sett�sere4te�nd�tbe� Settnere4t�Rnseere4t�dns�tbe�t�re�ees�ns�10/7/14���4/6/152�Tbe�seo�eh�h�nn�setesr�4e�tbe� snrrn4hedntb�nd�g�sn�4�dse�cnren�d4ce�h�tb�tbe�dnnnnh�4n�sett�sere4tee�
7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment. 7.b. The Commonwealth shall maintain its membership in the State Employment Leadership Network (SELN) established by NASDDDS; establish state policy on Employment First or the target population and include a term in the CSB Per ormance Contract requiring application o this policy; [use] the principles o employment irst include o ering employment as the irst and priority service option; providing integrated work settings that pay individuals minimum wage; discussing and developing employment options with individuals through the person- centered planning process at least annually; and employ at least one employment services coordinator to monitor the implementation o employment irst practices. 7.b.i. Within 180 days the Commonwealth shall develop an employment implementation plan to increase integrated day opportunities or individuals in the target population including supported employment, community volunteer activities, and other integrated day activities. The plan shall:
A. Provide regional training on the Employment First policy and strategies throughout the Commonwealth; and
B. Establish, or individuals receiving services through the HCBS waivers: 1. Annual baseline in ormation regarding:
a. The number o individuals receiving supported employment; b. The length o time people maintain employment in integrated work settings; c. The amount o earnings rom supported employment; d. The number o individuals in pre-vocational services as de ined in 12 VAC 30-120-211 in
e ect on the e ective date o this Agreement; and e. The lengths o time individuals remain in pre-vocational services
2. Targets to meaning ully increase:
a. The number o individuals who enroll in supported employment in each year; and b. The number o individuals who remain employed in integrated work settings at least 12 months a ter the start o supported employment 1.b.i.c. Regional Quality Councils, described in Section V.D.5 below, shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly to the Regional Quality Councils and the Quality Management system by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to take additional measures to further enhance these services.
1.b.i.d. The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN �

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Review of Virginia's Plan to Increase Employment Opportunities for Individuals with Intellectual and Developmental Disabilities: FY 2013-FY2015- Goals, Strategies, and Action Items.

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VI. THE PLAN FOR INCREASING OPPORTUNITIES FOR INTEGRATED DAY ACTIVITIES � 7.a. To the greatest extent practicable the Commonwealth shall provide individuals in the target population receiving services under this agreement with integrated day opportunities, including supported employment.

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VII. REVIEW OF THE SELN AND THE INCLUSION OF EMPLOYMENT IN THE PERSONCENTERED ISP PLANNING PROCESS
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Maintain its membership in the SELN established by NASDDDS. Establish a state policy on Employment First (EF) or this target population and include a term in the CSB Per ormance Contract requiring application o this policy. The principles o the Employment First Policy include o ering employment as the irst and priority service option; providing integrated work settings that pay individuals minimum wage; discussing employment options with individuals through the personcentered planning process at least annually. Employ at least one Employment Services Coordinator to monitor the implementation o the employment irst practices.
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APPENDIX E�
INDIVIDUAL AND FAMILY SUPPORTS 
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GUIDELINES FOR FAMILIES SEEKING SERVICES 
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Report to the Independent Reviewer United St�tes v� Hommonwe� te of Virgini�

INDIVIDUAL AND FAMILY SUPPORTS, and GUIDELINES FOR FAMILIES SEEKING SERVICES 

By Rebecca Wright, MSW, LCSW Consortium on Innovative Practices May 1, 2015�

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I. EXECUTIVE SUMMARY 

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II. PURPOSE OF THE REVIEW�
Tbe� etsenee� nd� tb�e� seo�eh� hde� tn� rdpe� d� setesr�4dt�n4� de� tn� tbe� cnren�d4ce� etdtte� nd� tbe� ttdn�tdt�oe� sett�sere4te� nd� tbe� Settnere4t� Rnseere4t� de� tbey� eestd�4� tn� �4s�o�stdn� d4s� ddr�ny�eteenste2��Tbeee�sett�sere4te�dse�de�dnnnnhee�
Section II.D: Individual and amily supports are de ined as a comprehensive and coordinated set o strategies that are designed to ensure that amilies who are assisting amily members with intellectual or developmental disabilities ("IDjDD") or individuals with IDjDD who live independently have access to person-centered and amily-centered resources, supports, services and other assistance. Individual and amily supports are targeted to individuals not already receiving services under HCBS waivers, as de ined in Section II.C. The amily supports provided under this Agreement shall not supplant or in any way limit the availability o services provided through the Elderly or Disabled with Consumer Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment ("EPSDT"), or similar programs. Section III.C.2: The Commonwealth shall create an individual and amily support program or individuals with IDjDD whom the Commonwealth determines to be most at risk o institutionalization�
Section III.C.8.b: The Commonwealth shall publish guidelines or amilies seeking intellectual and developmental disability services on how and where to apply or and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies or use in directing individuals in the target population to the correct point o entry to access services.
Section IX.se� The Commonwealth shall maintain su icient records to document that the requirements o this Agreement are being properly implemented and shall make such records available to the Independent Reviewer or inspection and copying upon request and on a reasonable basis. �
Seec�d�cdnnyn� tbe� ettsy� d4dnyaes� hbetbes� bntb� tbe� see�n4� d4s� �renere4tdt�n4� nd� tbe� dFSh� d4s� ntbes� �4s�o�stdn� d4s� ddr�ny� eteenste� dtnd�nn� tbe� sett�sere4te� eet� dnstb� �4� tbeee� eect�n4en� te�4n� tbe�dnnnnh�4n�te4�cs�tes�de� �
12 Wbetbes� tbe� see�n4� d4s� �renere4tdt�n4� nd� tbe� dFSh� d4s� ntbes� �4s�o�stdn� d4s� ddr�ny� eteenste� esno�ses� t4ses� tbe� Rnseere4t� seetnt� �4� d� eet� nd� etsdten�ee� tbdt� cd4� be� cn4e�seses�cnresebe4e�oe��4�4dttse2�

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32 Wbetbes� tbe� see�n4� d4s� �renere4tdt�n4� nd� tbe� �4s�o�stdn� d4s� ddr�ny� eteenste� dsettdteny� ddc�n�tdte� dcceee� tn� eesen4mce4teses� d4s� ddr�nymce4teses� seentsceen� eteensten�eeso�cee�d4s�ntbes�dee�etd4ce2��
42 Wbetbes�tbe�see�n4�nd�tbe�dFSh�esno�see�d�cneds�d4s�ent4s�sed�4�t�n4�nd�ernet�dt�s�ep�nd� �4et�ttt�n4dn�adt�n4no� ns� hbetbes� tbe� sed�4�t�n4� bde� bee4� sed�4es� tn� sednect� tbe� es�ns�ty� nd�eteenste�tn�tbnee�dt�nsedteet�s�ep2�
52 Wbetbes� tbe� see�n4� nd� tbe� dFSh� esno�see� d� cneds� d4s� nnn�cdn� esnceeen� �4cnts�4n� es�ns�t�adt�n4� cs�tes�dn� dns� setesr�4�4n� hb�cb� �4s�o�stdne� rdy� be� cn4e�seses� ernet� dt� s�ep� nd� �4et�ttt�n4dn�adt�n4no� d4sn� �d� enn� hbetbes� tbe� esnceee� d4s� es�ns�t�adt�n4� cs�tes�d� dse��renere4tes��4�d�rd44es�tbdt��e�see�n4es�tn�dssseee�tbe�s�epe�nd��4s�o�stdne�hbn� dse�rnet�dt�s�ep�nd��4et�ttt�n4dn�adt�n42�
62 Wbetbes� sdtd� bde� bee4� cnnnectes� d4s� d4y� tse4se� d4dnyaes� tn� setesr�4e� hbetbes� tbe� dFSh� �e� dtnd�nn�4n� tbe� snrrn4hedntbse� nbn�ndt�n4e� t4ses� tbe� Rnseere4tn� d4s� hbetbes� tbe�snrrn4hedntb��e�rd�4td�4�4n�etdd�c�e4t� secnsse�tn�sern4etsdte�tbdt�tbe�esno�e�n4� �e�be�4n�esneesny��renere4tes2�
72 Wbetbes� tbe� snrrn4hedntb� etbn�ebes� dFSh� nt�sen�4ee� de� sett�ses� d4s� tesdtes� de� 4eesesn�dt�nedet�d44tdnny2�
82 Wbetbes� deesnes�dte� nttsedcb� d4s� s�eeer�4dt�n4� esnceeeee� hese� t4sestdpe4� tn� e4etse� tbdt� �4s�o�stdne� d4s� ddr�n�ee� bds� dcceee� tn� tbe� dFSh� nt�sen�4ee� n4� d� t�reny� bde�e2�
92 Wbetbes� tbe� snrrn4hedntb� �se4t�d�es� tbe� edeesnes�dte� dne4c�eeo� d4s� hbetbes� etcb� dne4c�ee�hese�esno�ses�h�tb�tbe�dFSh�nt�sen�4ee�n4�d�t�reny�bde�e2�
102 Wbetbes�tbe�etbn�ebes�dFSh�nt�sen�4ee�hese�etdd�c�e4tn��4�tesre�nd�setd�nn�dcctsdcy�d4s� dcceee�b�n�ty�tn�tbe�enetndt�n4n�tn�be�eddect�oeny�tees�tn�s�sect��4s�o�stdne��4�tbe�tdsnet� enetndt�n4�tn�tbe�cnssect�en�4t�nd�e4tsy�tn�dcceee�eeso�cee2�
III. STUDY METHODOLOGY
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IV. FINDINGS

Background Tbe� cn4ceet� nd� �4s�o�stdn� d4s� ddr�ny� eteenste� �4� tbe� d�ens� nd� �4tennecttdn� d4s� seoennere4tdn� s�edb�n�t�een� d4s� tbe� seoennere4t� nd� etcb� esnnsdre� �4� etdtee� dcsnee� tbe� cnt4tsyn� bend4� �4� eds4eet� �4� tbe� ndet� thn� secdsee� nd� tbe� the4t�etb� ce4ttsy2� � Wb�ne� deesndcbee� d4s� esnnsdr� cbdsdctes�et�ce� ods�es� dsnr� endce� tn� endcen� tbese� hese� cestd�4� es�4c�eneen� hb�cb� hese� cnrrn4ny�dcceetesn�de�dt4sdre4tdn2��Re�d�bdcpssne�tn�tbe�s�ectee�n4�tbdt�dnnnnhen��t�rdy�be� teedtn� tn� dst�ctndte� eeoesdn� nd� tbnee� pey� te4ete� de� tbey� dnen� dnsr� tbe� bde�c� cs�tes�d� by� hb�cb� tbe� cn4ceet� nd� eesen4� d4s� ddr�nymce4teses4eeen� d� sett�sere4t� nd� tbe� Settnere4t� Rnseere4tn� �e�sed�4es2� �
Individuals and amilies know best what supports they need. Supports should be broadly de ined and lexible, and include, but not be limited to inancial assistance, in ormation and re erral, peer support and amily support groups. Individual and amilies must be empowered to have a say in the design and implementation o systems intended to support them. ddn� de� tbe� Settnere4t� Rnseere4t� �4s�cdteen� tbe� etsenee� nd� d� ecnresebe4e�oe� d4s� cnnss�4dtes� eet� nd� etsdten�eeo� �e� tn� e4etse� tbdt� ddr�n�ee� ns� �4s�o�stdne� bdoe� dcceee� tn� eesen4mce4teses� d4s� ddr�nymce4teses� seentsceen� eteensten� eeso�cee� d4s� ntbes� dee�etd4cen� tbe4� cnresebe4e�oe4eee� d4s� cnnss�4dt�n4� h�nn� beet� be� otsnes� dsnr� tbe� eeseeect�oe� nd� tbeee� �4s�o�stdne� d4s� ddr�n�ee2� Tbesednsen� esnnseee� tnhdss� tbe� dcb�eoere4t� nd� d� cnresebe4e�oe� d4s� cnnss�4dtes� eet� nd� etsdten�ee� rtet� bt�ns� �4� d� deesbdcp� nnne� tbdt� �4cntsee� ndtbes�4n� tbe� eeseeect�oee� d4s� secnrre4sdt�n4e�nd��4s�o�stdn�d4s�ddr�n�ee�tn��resnoe�tbe�see�n4�d4s��renere4tdt�n42��� � reee�te� enre� n �r�tes� nttsedcb� dct�o�t�een� tbe� esnceee� t4sestdpe4� by� tbe� snrrn4hedntb� tbte� dds� �4� seoenne�4n� �te� deesndcb� tn� �4s�o�stdn� d4s� ddr�ny� eteenste� �4� seeen4ee� tn� tbe� Settnere4t� Rnseere4t� bde� 4nt� cn4e�ete4tny� esno�ses� dns� etcb� d� deesbdcp� nnne2� � d4� Res�n� 2012n� rRrrS� ndtbeses�d�etdpebnnses�nsnte�tn�cn4e�ses�d4s�esno�se��4ett�n4�tbe�snrrn4hedntbse�end44es� deesndcb�tn��4s�o�stdn�d4s�ddr�ny�eteensten�eeec�d�cdnny�tn�dee�et��4�see�n4�sec�e�n4e�sendss�4n� tbe� �renere4tdt�n4� nd� tbe� dFSh2� � rRrrS� esno�ses� snctre4tdt�n4� nd� tbsee� reet�4ne� nd� tb�e� Wnspnsnten� bens� seeeect�oeny��4� Res�n� 2012n� Res�n� 2013� d4s� ndy� 20142� � � � Tbe� sen�besdt�n4e� d4s� cn4e�sesdt�n4e� hese� 4nt� henn� snctre4tes� n4� d� cn4e�ete4t� bde�en� edst�ctndsny� �4� tesre� nd� tbe� net�n4e� cn4e�seses� d4s� tbe� sdt�n4dnee� dns� edcb� sec�e�n42� � rRrrS� etddd� dcp4nhnesne� tbdt� ns�n�4dn� see�n4� sec�e�n4e� hese� rdse� tt�cpnyn� h�tb�4� d� ebnst� t�re� ees�ns� tn� reet� tbe� Settnere4t� Rnseere4t� t�ren�4e� d4s� tn� net� dt4se� tn� �4s�o�stdne� d4s� ddr�n�ee� �4� 4ees� de� tt�cpny� de�enee�bne2�� � Tbese� bde� bee4� 4n� ntbes� n4nn�4n� dnsrdn�aes� doe4te� dns� etdpebnnses� �4ett� tn� bene� �se4t�dy� ndee� �4� tbe� cnresebe4e�oe� d4s� cnnss�4dt�n4� nd� ctsse4t� etsdten�ee� ns� tn� bene� nt�se� tbe� eonntt�n4� nd� �4s�o�stdn� d4s� ddr�ny� eteenste� esnnsdrn� ns� tbe� dFSh� �4� edst�ctndsn� tn� reet� tbe�

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Compliance Findings for�Section II.D:
Individual and amily supports are de ined as a comprehensive and coordinated set o strategies that are designed to ensure that amilies who are assisting amily members with intellectual or developmental disabilities ("IDjDD") or individuals with IDjDD who live independently have access to person-centered and amilycentered resources, supports, services and other assistance. Individual and amily supports are targeted to individuals not already receiving services under HCBS waivers, as de ined in Section II.C. The amily supports provided under this Agreement shall not supplant or in any way limit the availability o services provided through the Elderly or Disabled with Consumer Direction ("EDCD") waiver, Early and Periodic Screening, Diagnosis and Treatment ("EPSDT"), or similar programs. � 1. Does the design and implementation of the IFSP and other individual and family supports provided under the Agreement result in a set of strategies that can be considered comprehensive in nature?
Ft4s�4n� tbsntnb� tbe� dFSh� ebntns� be� o�ehes� de� n4ny� n4e� cnren4e4t� nd� d� cnresebe4e�oe� �4s�o�stdn� d4s� ddr�ny� eteenst� esnnsdr� tbdt� �4cntsee� ntbes� seentsceee� ntbes� d�4d4c�dn� seentsceen� eees� eteensten� ddr�ny� tn� ddr�ny� eteenstn� �4dnsrdt�n4� d4s� sedessdnn� etc2� � Wb�ne� tbe� d�4d4c�dn� dee�etd4ce� dod�ndbne� t4ses� tbe� dFSh� �e� cestd�4ny� nd� enre� be4ed�t� tn� tbnee� dnstt4dte� e4ntnb�tn�be�eenectes�tn�sece�oe�dt4s�4nn��t��e�eeee4t�dnny�d�n4emt�re�dhdss�tbdt�cd4�sn�n�ttne�tn� dssseeen� �4� d� cnresebe4e�oe� rd44esn� tbe� 4eese� nd� �4s�o�stdne� d4s� ddr�n�ee� h�tbntt� cn4e�sesdt�n4� nd� ntbes� n4nn�4n� eteenste� dod�ndbne� tn� eteenst� cnrrt4�ty� n�o�4n2� rtbesh�een� tbese� hese� deh� cn4csete� etsdten�ee� �4� see�n4�4n� tbe� dFSh� tn� cnrenere4tn� ns� tn� cnnss�4dte� h�tbn�ntbes�dod�ndbne�eteenste2��Tbe�n4ny�e�n4�d�cd4t�epceet�n4�hde�tbe�dnnnhd4ce�dns�dt4se�tn� esno�se�dss�t�n4dn�eteenste�tn��4s�o�stdnen�d4s� tbe�s�ddr�n�een�hbn�dse�eesoes�t4ses�tbe�Hrsr� Wd�oesn� tbe� rdy� Steenste� Wd�oes� d4s� tbe� Tecb4nnnny� Ree�etes� hd�oesn� dnn� nd� hb�cb� esno�se� enre� eeso�ceen� tetdnny� dt� d� nnhes� �4te4e�ty� noesdnn� tbd4� hntns� be� dod�ndbne� t4ses� tbe� dr� ns� rr� hd�oese2�� � � � �

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� roesdnnn� tbe� dFSh� snee� 4nt� �4cntse� dsettdte� see�n4n� ns� esnnsdr� eodntdt�n4n� etsdten�ee� tn� rdpe� esnnseee� tnhdss� dcb�eo�4n� tbe� noesdnn� nndn� nd� d� cnresebe4e�oe� d4s� cnnss�4dtes� eet� nd� etsdten�ee� dns� �4s�o�stdn� d4s� ddr�ny� eteenst2� �Tbese� bde� bee4� 4n� deeeeere4t� nd� �4s�o�stdn� d4s� ddr�ny� eteenste� dod�ndbne� etdteh�se� ns� d4y� nndnen� nboect�oee� d4s� t�ren�4ee� dns� seoenne�4n� d� cnresebe4e�oe� d4s� cnnss�4dtes� eet� nd� etsdten�ee2� � � Tbese� bde� dnen� bee4� 4n� eodntdt�n4� nd� hbetbes� tbe� dFSh� bde� rdse� esnnseee� tnhdss� dcb�eo�4n� d� ecnresebe4e�oe� d4s� cnnss�4dtes� eet� nd�etsdten�ee2o�� � 2. Are the individual and family supports provided under the agreement coordinated
with other services and supports for which a family or individual may be eligible? Fsnr� d� eyeter�c� eeseeect�oen� cnnss�4dt�n4� h�tb� ntbes� eeso�cee� d4s� eteenste� dns� hb�cb� d� ddr�ny� ns� �4s�o�stdn� rdy� be� en�n�bne� bde� 4nt� yet� bee4� dtnny� sedn�aes� dns� �4s�o�stdne� n4� tbe� dr� d4s� dFSrr� hd�tn�ete� d4s� tbe�s� ddr�n�een� d4s� tbe� snne� nd� cdee� rd4dnere4t� �4� ddc�n�tdt�4n� tb�e� dcceee� d4s� cnnss�4dt�n4� nd� �4s�o�stdn� d4s� ddr�ny� eteensten� d4s� tbe� dFSh� �4� edst�ctndsn� bde� 4nt� bee4� dsettdteny� epdr�4es2� � Tbe� Settnere4t� Rnseere4t� sed�4ee� dt4ct�n4e� nd� cdee� rd4dnere4tn� �4cnts�4n� dee�et�4n� tbe� �4s�o�stdn� tn� nd�4� dcceee� tn� 4eeses� res�cdnn� enc�dnn� estcdt�n4n� bnte�4nn� 4tts�t�n4dnn� tbesdeett�cn� bebdo�nsdnn� eeycb�dts�cn� 4tse�4nn� eesen4dn� cdsen� seee�ten� d4s� ntbes� eeso�ceen� dnn� nd� hb�cb� rdy� be� cnren4e4te� nd� �4s�o�stdn� d4s� ddr�ny� eteenstn� seee4s�4n�n4�tbe��4s�o�stdn�aes�e�ttdt�n4e2�dd�tbe�noesdnn�nboect�oe�nd� esno�s�4n��4s�o�stdn�d4s� ddr�ny� eteenste� �en� de� tbe� dFSh� nt�sen�4ee� etnneetn� tn� eteenst� tbe� cn4t�4tes� see�se4ce� nd� d4� �4s�o�stdn� h�tb� dr/rr� �4� b�e/bes� nh4� bnre� ns� ddr�ny� bnren� tbe4� cdee� rd4dnere4t� nd� tbe� enst� seecs�bes� dbnoe� �e� eeee4t�dn� tn� cnnss�4dt�n4� nd� ods�nte� eeso�cee� d4s� eteenste� tbdt� hntns� be�4eeses�beyn4s�d�n4emt�re�rn4etdsy�dhdss2��� � d4s�o�stdne� n4� tbe� dr� d4s� dFrrS� hd�tn�ete� dse� dee�n4es� d� cdee� rd4dnes� h�tb� d� dsette4cy� nd� sett�ses� cn4tdcte� sd4n�4n� dsnr� 30� tn� 90� sdyen� seee4s�4n� n4� �4s�o�stdn� c�sctretd4cee2� � Fns� �4s�o�stdne� n4� tbe� dr� ns� rr� hd�tn�et� hbn� dse� sece�o�4n� 4n� eeso�cee� dsnr� ntbes� hd�oesen� etcb� cn4tdcte� dse� 4nt� sett�ses� tn� be� ddcemtn� ddce� reet�4ne2� Stdpebnnsese� seenstes� �4� �4teso�ehe� tbdt�tbese��e�e�n4�d�cd4t�ods�db�n�ty��4�tbe�neoen�nd�etcb�dee�etd4ce�be�4n�esno�ses�tn��4s�o�stdne� n4� tbe� hd�oes� hd�tn�ete2� Tb�e� hde� seenstes� tn� be� rnet� edst�ctndsny� dns� tbnee� n4� tbe� dFSrr� hd�tn�etn� hb�cb� �e� cn4e�ete4t� h�tb� tbe� neee� �4te4e�oe� sett�sere4te� dns� ddcemtnmddce� cdee� rd4dnere4t�dns�tbnee��4s�o�stdne�d4s�tbe�s�ddr�n�ee2� � Re��t�eestd�4e�eeec�d�cdnny�tn�tbe�dFShn�tbese��e�4nt�d�snne�dns�cdee�rd4dnese�sed�4es��4�tbe�dFSh� nt�sen�4een� 4ns� �e� tbese� d4y� �4s�cdt�n4� �4� tbe� dFSh� deen�cdt�n4� ns� �4etstct�n4e� tbdt� nt�se� �4s�o�stdne� d4s� ddr�n�ee� tn� tbe�s� dee�n4es� cdee� rd4dnes� dns� d4y� 4eeses� dee�etd4ce2� � rRrrS� esno�ses� tsd�4�4n� tn� dFSrr� cdee� rd4dnese� es�ns� tn� tb�e� ndet� snt4s� nd� dt4s�4nn� �4� Dd4tdsy� 2015n� btt� dnd�4� etdpebnnsese� seenstes� enre� cdee� rd4dnese� tdpe� d� rnse� dct�oe� snne� �4� 4nt�dy�4n� �4s�o�stdne� d4s� ddr�n�ee� nd� tbe� neenstt4�tyn� esno�s�4n� d4� deen�cdt�n4� d4s/ns� esno�s�4n� nt�sd4ce� d4s� dee�etd4ce� tn� tbnee� hbn� 4ees� bene� h�tb� cnrenet�4n� tbe� deen�cdt�n4� esnceee2� d4�

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Tbe� dFSh� hsnnsdr� r�sectns� dsnr� tbe� d�set� yeds� nd� �te� neesdt�n4� seenstes� ebe� hde� dbne� tn� sn� enre� etcb� cnnss�4dt�n4� �4dnsrdnny� �4� tbe� d�set� dt4s�4n� ees�nsn� �4dnsr�4n� �4s�o�stdne� d4s� ddr�n�ee� nd� dss�t�n4dn� seentscee� dns� tbe�s� setteetes� eteenste� d4s� ddc�n�tdt�4n� cn4tdct2� stsse4t� dFSh� etddd� �4s�cdtes� �4� seeen4ee� tn� snctre4t� seo�eh� tbdt� enre� �4s�o�stdne� hese� sedesses� tn� rReS�dns�seee�te�nsd4t�dt4sen�btt�4n�ntbes�cnnss�4dt�n4��4dnsrdt�n4�hde�dod�ndbne2���
3. Does the design and implementation of the individual and family supports ade�uately facilitate access to person-centered and family-centered resources, supports, services and other assistance?�
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The Commonwealth shall create an individual and amily support program or individuals with IDjDD whom the Commonwealth determines to be most at risk o institutionalization. In the State Fiscal Year 2015, a minimum o 1000 individuals supported. � 4. Does the design of the IFSP provide a clear and sound definition of "most at risk of institutionalization," and has the definition has been refined to reflect the priority of supports to those at greatest risk?�
Tbe�ernet�dt�s�ep�dns��4et�ttt�n4dn�adt�n4o�sett�sere4t�nd�tbe�SR�bde�bee4�sed�4es�by�rRrrS� �4� d� oesy� bsnds� rd44es2� � hseee4ce� n4� e�tbes� tbe� dr� ns� dFrrS� hd�oes� hd�tn�et� �e� tbe� enne� cs�tes�n4� dns� rdp�4n� tbe� setesr�4dt�n4� tbdt� enren4e� �e� rnet� dtms�ep� dns� �4et�ttt�n4dn�adt�n4� d4s� tbesednse� en�n�bne� tn� sece�oe� d� rn4etdsy� dhdss� t4ses� tbe� dFSh2� �Tb�e� bsnds� sed�4�t�n4� �e� �4� peee�4n� h�tb� tbe� es�rdsy� te4ete� nd� tbe� tsds�t�n4dn� �4s�o�stdn� d4s� ddr�ny� eteenst� esnnsdre� tbdt� dnn� �4s�o�stdne� h�tb� �4tennecttdn� d4s� seoennere4tdn� s�edb�n�t�ee� d4s� tbe�s� ddr�n�ee� 4ees� d4s� seeesoe� eteenste� d4s� tbdt� tbey� ebntns� 4nt� bdoe� tn� esnoe� tbey� dse� enrebnh� rnse� seeeso�4n�tbd4�enren4e�enee2���
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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 140 of 149 PageID# 5907
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prioritization criteria, for determining which individuals may be considered "most at risk of institutionalization," and, if so, whether the process and prioritization criteria are implemented in a manner that is designed to address the risks of individuals who are most at risk of institutionalization.
Tbe� Rsr�4�etsdt�oe� snse� sendtes� tn� tbe� dFSh� M§3722m203g� d4s� tbe� dFSh� nt�sen�4een� tesdtes� Febstdsy� 2014n� sn� 4nt� esno�se� d4y� es�ns�t�adt�n4� cs�tes�d� dns� dtstbes� setesr�4�4n� hb�cb� �4s�o�stdne�rdy�be�rnet�dt�s�ep�dns��4et�ttt�n4dn�adt�n4�beyn4s�tbe�sett�sere4t�dns�be�4n�n4� tbe� hd�tn�et� dns� e�tbes� tbe� dr� ns� dFSrr� hd�oes2� � nn� deeeeere4t� nd� neoen� nd� 4ees� ns� ctsse4t� etdtte� de� �t� sendtee� tn� �rr�4e4t� s�ep� nd� �4et�ttt�n4dn�adt�n4� �e� cnrenetes� �4� tbe� deen�cdt�n4� seo�eh� esnceee2� � d4etedsn� tbe� snse� d4s� nt�sen�4ee� et�etndte� n4ny� tbdt� deen�cdt�n4e� etbr�ttes� by��4s�o�stdne�d4s�ddr�n�ee�h�nn�be�cn4e�seses�n4�d�d�set�cnremd�set�eesoes�bde�e2���

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 141 of 149 PageID# 5908
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Re�4ntes�dbnoen�tbese�hde�d4�dnrnet�t4�oesedn�t4ede�4eee�drn4n�etdpebnnses��4teso�eheee�de� tn�hbetbes�tbe�see�n4�nd�tbe�dFShn�edst�ctndsny��4�tb�e�d�set�cnremd�set�eesoes�deesndcbn�rdy�be� �4bese4tny� t4dd�s� tn� tbnee� hbn� 4ees� �t� tbe� rnet2� nnet� etdpebnnsese� ebdses� cn4ces4e� tbdt� b�nbesm�4cnre� d4s� bettesmestcdtes� ddr�n�ee� dse� rnse� n�peny� tn� be� dbne� tn� net� tbe� deen�cdt�n4� cnrenetes� d4s� etbr�ttes� h�tb�4� tbe� oesy� erdnn� h�4snh� tbdt� rdpee� dt4s�4n� eoe4� enee�bne2���� Tbe� ctsse4t� nt�sen�4ee� sett�se� tbdt� d4� �4s�o�stdn� ns� ddr�ny� etbr�t� d4� deen�cdt�n4� n4� n4e� n�oe4� sdy� sts�4n� tbe� dt4s�4n� ees�ns� tn� bdoe� d4y� sedn� cbd4ce� nd� be�4n� deesnoes2� � Tb�e� �e� d� e�n4�d�cd4t� bdsseb�e� dns� rd4y2� � d4s�o�stdne� d4s� ddr�n�ee� cd44nt� eses�ct� �d� d� eesen4dn� cs�e�en� etcb� de� d� ddr�ny� rerbes� �nn4eeen� eteenst� etddd� 4nt� be�4n� dod�ndbnen� cds� bsedpsnh4n� etc2g� rdy� nccts� n4� tbe� d�set� sdy� nd� tbe� dt4s�4n� ees�nsm� �d� enn� d4s� tbey� cd44nt� rdpe� �t� tn� tbe� enet� ndd�cen� tbe�s� neenstt4�ty� tn� sece�oe� dt4s�4n� �e� o�sttdnny� 4�n2� � Stcb� cs�eee� dnen� bdoe� tbe� ente4t�dn� tn� nccts� rnse� dsette4tny� dns� tbnee� h�tb� dehes� enc�dn� d4s� d�4d4c�dn� seentsceen� se�4dnsc�4n� tbe� cn4ces4� tbdt� tbnee� �4s�o�stdne� d4s� ddr�ny� rerbese� dse� dt� d� s�edsod4tdne� �4� tesre� nd� etcceeedtnny�sece�o�4n�d4�dhdss�t4ses�tbe�dFSh2� � roesdnnn� tbe� d�set� cnremd�set� eesoes� etstcttse� bde� bee4� t4h�ensy� d4s� �resdct�cdn� �4� d4y� eoe4t2� Tbe� onntre� nd� deen�cdt�n4e� enetrdspes� n4� tbe� d�set� sdy� nd� tbe� deen�cdt�n4� dds� ees�ns� epceese� tbe� 4trbes� tbdt� cd4� be� dt4ses2� � Fns� epdrenen� nd� tbe� 3n300� deen�cdt�n4e� sece�oes� �4� tbe� d�set� dt4s�4n� ees�ns� dns� Fe� 2015n� 2n278� hese� enetrdspes� n4� tbe� d�set� sdyn� d4s� n4ny� 600� M2623mg� nd� tbnee� hese� deesnoes� dns� dt4s�4n� bdees� n4� tbe� dod�ndbne� snnndse2� � Re� seecs�bes� eneehbese� �4� tb�e� seenstn� �t� hde� �renee�bne� tn� dcctsdteny� setesr�4e� hb�cb� nd� tbe� 600� drn4n� tbnee� 2n278� hese� dcttdnny� ed�setmcnre2o� � Tbe� seetnt�4n� d�setmsdy� onntre� dnen� csedtee� d� e�aedbne� bdcpnnn� nd� deen�cdt�n4e�d4s�4nt�d�cdt�n4e�tbdt�tdpee�rn4tbe�tn�hnsp�tbsntnb2��� � 6. Has data been collected and any trends analyzed to determine whether the IFSP is
fulfilling the Commonwealth's obligations under the Agreement? rRrrS� bde� bee4� cbdnne4nes� h�tb� sdtd� cnnnect�n4� d4s� sdtd� rd4dnere4t� �4� tbe� edsny� nn�4n� nd� tbe� dFShn� es�rds�ny� te�4n� eesedsebeete� tbdt� bdoe� bee4� esn4e� tn� essns� d4s� s�dd�ctnt� tn� rd4�etndte�dns�etseneee�nd�d4dnye�e�d4s�esnnsdr�eodntdt�n42��R�sdtdbdee�bde�bee4�seoennees� tbdt� dFSh� etddd� seenst� bde� bee4� dt4ct�n4dn� e�4ce� ndte� se20142� � Tb�e� dnnnhe� tbe� dFSh� ndd�ce� tn� eseee4t� enre� sdtd� sendtes� tn� s�ebtseere4t� nd� tbe� dFSh� dt4sen� btt� sdtd� dse� 4nt� yet� be�4n� d4dnyaes�dns�ttdn�ty��resnoere4t�tn�d4y�e�n4�d�cd4t�sensee2�� � Tbese� bdoe� bee4� 4n� nttcnre� ns� edt�eddct�n4� �4s�cdtnse� sed�4es� de� nd� tb�e� sdte� d4s� 4n� sdtd� cnnnectes� sendtes� tn� eesdnsrd4cen� �redct� ns� edt�eddct�n42� � rRrrS� epeecte� tn� s�ets�btte� d� bdeen�4e� edt�eddct�n4� etsoey� �4� tbe� 4eds� dtttsen� dccnss�4n� tn� tbe� rRrrS� r�sectns� nd� Rsr�4�etsdt�oe� d4s� snrrt4�ty� reesdt�n4en� h�tb� d� dnnnnhmte� etsoey� tn� be� ecbestnes� d� yeds� ndtes2��Tb�e�etsoey�hde��4�tbe�esnceee�nd�be�4n�ssddtes�dt�tbe�t�re�nd�tb�e�seenst2� � rRrrS� dnen� snee� 4nt� yet� bdoe� d� cnresebe4e�oe� e�cttse� nd� eyeter�c� �4s�o�stdn� d4s� ddr�ny� eteenste� n4� tbe� bsndses� ecdne� d4s� bde� 4nt� setesr�4es� tbe� �4s�cdtnse� ns� sdtd� 4eeses� tn� sern4etsdte� tbdt� tbe� �4s�o�stdn� d4s� ddr�ny� eteenste� nddeses� dse� cnresebe4e�oe� d4s�

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cnnss�4dtes2��Fns�epdrenen�n4e�etdpebnnses�re4t�n4es�tbdt�dt�nedet�enre�snrrt4�ty�Seso�ce� Rndsse� MsSReg� bds� �4� tbe� edet� sece�oes� etdte� eesdnsrd4ce� cn4tsdct� dt4s�4n� tn� edy� dns� �4s�o�stdn� d4s� ddr�ny� eteenste� dns� bntb� cb�nsse4� d4s� dstnten� btt� tbdt� tbe� dt4s�4n� hde� 4nh� n4ny� see�n4dtes� dns� cb�nsse42� � rRrrS� hde� t4dbne� tn� esno�se� d4y� eeec�d�c� sdtd� sendss�4n� tb�e� dt4s�4nn� epceet� tn� 4nte� tbe� snnnds� drnt4te� bds� bee4� oesy� erdnn� d4s� tbdt� 4nt� dnn� sSRe� bds� sece�oes� tber2� �dt� �e� eeee4t�dn� d� cnresebe4e�oe� d4s� eyeter�c� 4eese� d4s� seentsce� deeeeere4t� be� cnrenetes� tn� decestd�4� bnh� beet� tn� cnnss�4dte� d4s� tee� n�r�tes� �4s�o�stdn� d4s� ddr�ny� eteenst�dt4se2� � Compliance Findings for�Section III.C.8.b.��
The Commonwealth shall publish guidelines or amilies seeking intellectual and developmental disability services on how and where to apply or and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies or use in directing individuals in the target population to the correct point o entry to access services. � nntee�Tbe�dFSh�nt�sen�4een�deen�cdt�n4�d4s�deen�cdt�n4��4etstct�n4e�hese�dnn�cn4e�seses��4�tbe� eodntdt�n4�nd�cnren�d4ce�dns�tbe�Sect�n42� � 7. Did the Commonwealth publish IFSP and other guidelines as re�uired and updated as needed, at least annually? � DBHDS last published updated IFSP Guidelines in February 2014. These were largely identical, for the most part, to the Administrative Code (§37.2-203) promulgated September 9, 2014. No additional updates have been made to the IFSP Guidelines, although some changes have been made to the processes that are not adequately represented in the current document. In particular, the Guidelines indicate that individuals and families may submit applications throughout the year, but the current twice a year funding period process would render many of these applications unacceptable. The IFSP application and accompanying instructions have been revised on an ongoing basis and more accurately represent the current process, but individuals and families should not be required to attempt to reconcile these conflicts. For purposes of accessing services generally, DBHDS-published fact sheets (“Just the Facts”) are available on-line for individuals/families and had been updated during the review period. Finding the guidelines is difficult, and not likely possible without detailed instructions. For example, locating guidelines for families seeking services requires the family to understand what services his or her family member might be eligible for and then navigating a series of choices through four separate links on the DBHDS website to arrive at the ID waiver fact sheet. Once the fact sheet is opened, individuals/families must then read through a nine-page document, without a table of contents, to find the final section: “Accessing ID Waiver Services”. This process must be repeated for the Day Support and IFDDS fact sheets. � 8. Were appropriate outreach and dissemination processes undertaken to ensure individuals on the waitlists and their families had access to the IFSP guidelines on a timely basis?

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 143 of 149 PageID# 5910
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rRrrS� seenstes� �t� bde� �renere4tes� ods�nte� nttsedcb� d4s� s�eeer�4dt�n4� etsdten�ee� dns� tbe� dFSh� nt�sen�4ee� sts�4n� edcb� nd� tbe� dt4s�4n� ees�nse� tbte� dds2� roesdnnn� tbe� dFSh� nt�sen�4ee� tbereenoee� bdoe� 4nt� bee4� esno�ses� tn� �4s�o�stdne� d4s� ddr�n�een� ntbes� tbd4� tn� 4nt�dy� tber� nd� tbe� dod�ndb�n�ty� nd� tbe� snctre4t� n4mn�4e2� �d4� eseo�nte� dt4s�4n� ees�nse� MFe� 2013� d4s� Fe� 2014g� tbe� deen�cdt�n4� bds� bee4� s�ets�bttes� tn� hd�t�4n� n�et� deen�cd4te� by� rd�nn� btt� rRrrS� bde� s�ecn4t�4tes�rd�n�4n�tbe�deen�cdt�n4��4�tbe�ndet�dt4s�4n�ees�ns�Md�set�bdnd�nd�Fe�2015g2��d4etedsn� �4s�o�stdne� n4� tbe� hd�tn�et� hbn� s�s� 4nt� sece�oe� dt4s�4n� hese� 4nt�d�es� by� rd�n� nd� tbe� dod�ndb�n�ty� nd� tbe� deen�cdt�n4� n4mn�4e� d4s� nd� tbe� sdte� dns� tbe� eecn4s� dt4s�4n� ees�ns2� Tb�e� sett�see� �4s�o�stdne� d4s� ddr�n�ee� tn� nbtd�4� tbeee� deen�cdt�n4e� d4s� ntbes� rdtes�dne� n4n�4e� ns� dsnr�d�eeso�ce�ns�dsoncdcy�nsnd4�adt�n4n�hb�cb��e�nd�cn4ces4�becdtee�4nt�dnn��4s�o�stdne�d4s� ddr�n�ee� n4� tbe� hd�tn�ete� rdy� bdoe� sentnds� cn4tdct� h�tb� etcb� d4� nsnd4�adt�n4� ns� tbe�s� see�n4dtes�cdee�rd4dnes2��
9. Were appropriate agencies provided with the IFSP and other guidelines on a timely basis? �
rRrrS� bde� s�eeer�4dtes� tbe� dFSh� nt�sen�4ee� es�rds�ny� tbsntnb� etbn�eb�4n� tbe� snctre4t� n4n�4e� dt� tbe� rRrrS� hebe�te2� Reesnes�dte� dne4c�een� etcb� de� snrrt4�ty� Seso�ce� Rndssen� dsoncdcy� nsnd4�adt�n4e� etcb� de� tbe� Rsc� nd� g�sn�4�d� d4s� dne4c�ee� esno�s�4n� es�odte� cdee� rd4dnere4t� bdoe� bee4� 4nt�d�es� o�d� erd�n� nd� tbe� dod�ndb�n�ty� nd� tbe� dFSh� nt�sen�4ee� d4s� deen�cdt�n4�dnsr�n4mn�4e2��Tbese�hese�4n�secnsse�nd�tbe�snrrn4hedntb�esno�s�4n�tbe�dFSh�ns� ntbes�nt�sen�4ee�tn�tbe�dne4c�ee�tbdt�dse�dsette4tny�tbe�d�set�en�4t�nd�cn4tdct�h�tb�d�cb�ns�h�tb� d� e�n4�d�cd4t� seoennere4tdn� s�edb�n�ty� d4s� b�e� ns� bes� ddr�nyn� etcb� de� bnee�tdn� 4en4dtdn� �4te4e�oe� cdse� t4�ten� ees�dts�c�d4� nsnd4�adt�n4en� d4s� tbe� eeec�dn� estcdt�n4� ndd�cee� nd� etbn�c� ecbnnne2� dt� �e� dnd�4� 4ntes� tbe� dFSh� nt�sen�4ee� snctre4t� hde� 4nt� tesdtes� sts�4n� tbe� edet� yeds� d4s� dse� 4nt� nn4nes� ctsse4t� h�tb� cbd4nee� tn� tbe� esnnsdr2� Tbe� dFSh� nt�sen�4ee� hese� ndet� tesdtes��4�Febstdsy�2014�d4s�sn�4nt�dcctsdteny�seeseee4t�dnn�ctsse4t�esnceeeee2� � 10. Were the published IFSP guidelines sufficient, in terms of detail, accuracy and
accessibility to the population, to be effectively used to direct individuals in the target population to the correct point of entry to access services? � Tbe� dFSh� nt�sen�4een� de� tesdtes� Febstdsyn� 2014n� dse� 4nt� etdd�c�e4t� �4� tesre� nd� setd�nn� dcctsdcy� d4s� dcceee�b�n�ty� tn� tbe� enetndt�n4n� tn� be� eddect�oeny� tees� tn� s�sect� �4s�o�stdne� �4� tbe� tdsnet� enetndt�n4� tn� tbe� cnssect� en�4t� nd� e4tsy� tn� dcceee� eeso�cee2� Tbe� Dtet� tbe� Fdcte� nt�sen�4ee� dse� 4nt� see�n4es� dns� �4s�o�stdne/ddr�n�ee� hbn� dse� 4nt� yet� dhdse� bnh� tn� deeny� dns� hd�oes� eeso�cee� ns�dns�tbnee�hbn�bdoe�deen�es�d4s�dse�n4�tbe�hd�tn�ete2� � Tbe� dFSh� nt�sen�4ee� dse� 4nt� etdd�c�e4tny� dcceee�bne� tn� dnn� �4s�o�stdne� d4s� ddr�n�ee2� � Tbe� snctre4t��en�h�tb�d�deh�epceet�n4en�d�secde�ttndt�n4�nd�tbe�g�sn�4�d�Rsr�4�etsdt�oe�snse�d4s� hs�tte4� �4� sentndtnsy� nd4ntdne� tbdt� cntns� 4nt� be� cn4e�seses� dcceee�bne� by� rd4y� �4� tbe� tdsnet� enetndt�n42�� �

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 144 of 149 PageID# 5911 �

Tbe� dFSh� nt�sen�4ee� bdoe� 4nt� bee4� tesdtes� d4s� sn� 4nt� dcctsdteny� sednect� enre� nd� tbe� cbd4nee� tbdt� bdoe� ncctsses� �4� tbe� esnceee� e�4ce� tbe� ndet� tesdt�4nn� ns� tbe� sedn�t�ee� nd� tbe� d�setmcnren� d�setmeesoe�esnceee2��Fns�epdrenen�tbe�nt�sen�4ee�etdte�tbdt��4s�o�stdne�d4s�ddr�n�ee�rdy�deeny� dns� dt4s�4n� tbsntnbntt� tbe� yedsm� bnheoesn� �4� tbe� ctsse4t� b �md44tdn� dt4s�4n� retbnsnnnnyn� d4� deen�cdt�n4� cd44nt� be� enetrdspes� bednse� d� see�n4dtes� sdte� tn� be� cn4e�seses� en�n�bne� �4� tbe� e�pmrn4tb� ees�ns� tbdt� dnnnnhe2� � Tb�e� sedn�et�cdnny� red4e� tbdt� d4� deen�cdt�n4� etbr�ttes� bethee4� tbe� thn� dt4s�4n� ees�ns� etdst� sdtee� hntns� bdoe� 4n� cbd4ce� nd� be�4n� deesnoesn� e�4ce� dt4se� dns� tbe� d�set� ees�ns� hntns� bdoe� dnsedsy� bee4� epee4ses� d4s� tbe� enetrdspes� sdte� hntns� se4ses��t��4en�n�bne�dns�tbe�eecn4s�ees�ns2��� � dFSh� etddd� 4nte� tbdt� �4s�o�stdne� d4s� ddr�n�ee� sn� cn4tdct� tbe�s� ndd�ce� tn� tsy� tn� t4sesetd4s� hbdt� etsdten�ee� dse� rnet� n�peny� tn� seetnt� �4� d� ene�t�oe� nttcnren� �2e2� rdp�4n� tbe� ctt� bednse� dod�ndbne� dt4s�4n� �e� epee4ses2� � Tbe� ctsse4t� dFSh� nt�sen�4ee� sn� 4nt� esno�se� d� cneds� edtbhdy� �4� tb�e� sendssn� 4ns� sn� tbe� ctsse4t� d�set� cnremd�set� eesoes� esnceeeee� ne4s� tbereenoee� tn� tb�e� neoen� nd� cnds�ty2�
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V. CONCLUSIONS AND RECOMMENDATIONS
� Tbe� dnnnnh�4n� secnrre4sdt�n4e� dse� nddeses� de� eteee� tnhdss� dcb�eo�4n� cnren�d4ce� h�tb� tbe� �4s�o�stdn�d4s�ddr�ny�eteenst�sett�sere4te�nd�tbe�Settnere4t�Rnseere4t2�
� 12 reoenne�d4s��renere4t�d�dnsrdn�aes�d4s�n4nn�4n�doe4te�dns�etdpebnnses��4ett�tn�bene�tn�
nt�se� tbe� eonntt�n4� nd� �4s�o�stdn� d4s� ddr�ny� eteenst� esnnsdr� de� d� eesen4� d4s� ddr�ny� ce4teses� cnresebe4e�oe� d4s� cnnss�4dtes� eet� nd� etsdten�ee� �4� tbe� snrrn4hedntbn� d4s� nd� tbe�dFSh��4�edst�ctnds�de�d�edst�nd�tbdt�noesdnn�eet�nd�etsdten�ee2��
� 22 R4�noesdnn�etsdten�c�end4�dns��4s�o�stdn�d4s�ddr�ny�eteenste�ebntns�be�seoennees�tbsntnb�
d4� �4cnte�oe� etdpebnnses� end44�4n� esnceee2� � Stcb� �4s�cdtnse� rtet� sednect� tbe� bsndses� sed�4�t�n4�nd�cnresebe4e�oe4eee�d4s�cnnss�4dt�n4�d4s�tbesednse�d�semeodntdt�n4��e�4eeses� nd� tbe� cn4ceettdn�adt�n4� nd� d4� �4s�o�stdn� d4s� ddr�ny� eteenst� esnnsdr� de� rnse� tbd4� d�
esnnsdr�nd�rn4etdsy�dhdsse2�� �
32 Tbe� sed�4�t�n4� nd� ernet� dt� s�ep� dns� �4et�ttt�n4dn�adt�n4o� ebntns� be� dtnny� epennses� h�tb� etdpebnnsese��4�tbe�esnceee�nd�etsdten�c�end44�4n2��
� 42 Tbe� snnee� nd� cdee� rd4dnere4t� ebntns� be� epdr�4es� d4s� epeectdt�n4e� cnedsny� sed�4es� de�
tbey� sendte� tn� ddc�n�tdt�4n� dcceee� tn� �4s�o�stdn� d4s� ddr�ny� eteenste� d4s� tn� tbe� dFSh� �4�
edst�ctnds�dns��4s�o�stdne�n4�tbe�dr�d4s�hd�t�4n�n�ete�d4s�e4ets�4n�cnnss�4dt�n4�h�tb�ntbes� eeso�cee�d4s�eteenste�dns�hb�cb�tbey�rdy�be�en�n�bne2���
� 52 R4��4s�o�stdn�d4s�ddr�ny�ds�e4sny�nt�se�tn�tbe�dFSh�d4s�tbe�deen�cdt�n4�esnceee�ebntns�be�
seoennees� d4s� s�eeer�4dtes� tn� �4s�o�stdne� d4s� ddr�n�ee� tn� e4etse� �t� esno�see� d� neoen� nd�
setd�nn� dcctsdcy� d4s� dcceee�b�n�ty� tn� tbe� enetndt�n4n� tn� be� eddect�oeny� tees� tn� s�sect�

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�4s�o�stdne� �4� tbe� tdsnet� enetndt�n4� tn� tbe� cnssect� en�4t� nd� e4tsy� tn� dcceee� eeso�cee2� � dt� ebntns� be� tesdtes� de� esnnsdrrdt�c� cbd4nee� nccts� tbdt� r�nbt� dddect� en�n�b�n�tyn� sdteen� eteenste�dod�ndbne�ns�d4y�ntbes�rns�d�cdt�n4e2� � 62 nt�sen�4ee� etbn�ebes� dns� ddr�n�ee� eeep�4n� eeso�cee� ebntns� be� see�n4es� tn� dee�et� �4s�o�stdne/ddr�n�ee� hbn� dse� 4nt� yet� dhdse� bnh� tn� eeep� rsRS� hd�oes� eeso�cee� d4s� dns� tbnee� hbn� bdoe� deen�es� d4s� dse� n4� hd�tn�eten� de� henn� de� tbnee� hbn� bdoe� bee4� dhdsses� d� hd�oes�ennt2� � 72 Tbe� snrrn4hedntb� ebntns� �4cntse� tbe� dne4c�ee� tbdt� d4� �4s�o�stdn/ddr�ny� �e� n�peny� tn� be� tbe� d�set� en�4t� nd� cn4tdct� hbe4� d� cb�ns� �e� d�set� s�dn4nees� h�tb� d� e�n4�d�cd4t� s�edb�n�ty� ns� hbe4�d4��4s�o�stdn��e�4eh�tn�tbe�snrrn4hedntbn�etcb�den�bnee�tdn�4en4dtdn��4te4e�oe�cdse� t4�ten�ees�dts�c�d4�nsnd4�adt�n4en�d4s�etbn�c�ecbnnn�eeec�dn�estcdt�n4�esnnsdre2� � 82 rRrrS� ebntns� �se4t�dy� �4s�cdtnse� 4eeses� tn� dsettdteny� deeeee� eesdnsrd4ce� d4s� nttcnree� sendtes� tn� dcceeen� cnresebe4e�oe4eee� d4s� cnnss�4dt�n4� nd� �4s�o�stdn� d4s� ddr�ny� eteenste� d4s� �te� �redct� n4� tbe� s�ep� nd� �4et�ttt�n4dn�adt�n4� d4s� seoenne� cdedc�ty� dns� cnnnect�n4�d4s�d4dnye�e�nd�tbe�4eeses�sdtd2��� � rRrrS� bde� dcp4nhnesnes� �te� dhdse4eee� nd� tbe� dFSh� �eetee� seecs�bes� �4� tb�e� seenst� d4s� bde� sece4tny� �4�t�dtes� d� tdep� dnscen� nes� by� tbe� r�sectns� nd� Rsr�4�etsdt�oe� d4s� snrrt4�ty� reesdt�n4en tn�dssseee�rd4y�nd�tber2��Tbe�etdtes�etsenee�nd�tb�e�tdep�dnsce��e�tn�eseoenne�d� cnresebe4e�oe� ddr�ny� eteenst� eyeter� dns� tbe� snrrn4hedntb2� Tn� dncte� n4� d4s� seoenne� d� o�dbne� hnsp� end4� tn� dssseee� tbe� Settnere4t� Rnseere4t� hsnoect� w192� Tn� setesr�4e� tbe� noesdnn� cnrene�t�n4� nd� tbe� hnsp� nsnte� �4cnts�4n� cnrrt4�ty� etdpebnnsese� d4s� tn� s�ectee� tecnr�4n� reet�4nen�nndnen�d4s�dnseeeedbne�cbdnne4nee2o��� � Snre�nd�tbe�dct�o�t�ee�t4seshdy�ns�end44es��4cntsee� • dse4t�d�cdt�n4�nd�etdpebnnses�rerbeseb�e�dsnr�dcsnee�tbe�snrrn4hedntb2� • eeeedscb�d4s�d4dnye�e�nd�ntbes��4s�o�stdn�d4s�ddr�ny�eteenst�esnnsdre�dcsnee�tbe�
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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 147 of 149 PageID# 5914

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APPENDIX A: DOCUMENT/DATA REVIEWED 

1. Settlement Agreement Implementation Structure 2. Initial creation and invite of IFSP Workgroup April 2012 3. IFSP Meeting Notes 4-27-12 4. IFSP Meeting Notes 4-27-12-1. 5. Individual and Family Support Proposed Regulations-draft-5-7-12 62 Wnspnsnte�d4s�hsnoect�Tedr�r�4ttee�d4s�seenste�dns�Res�n�3n�2013�d4s�ndy�15n�2014� 72 rRrrS�d4s�o�stdn�d4s�Fdr�ny�Steenst�hsnnsdr�nt�sen�4een�tesdtes�Febstdsy�1n�2014�� 82 dFSh�Rsr�4�etsdt�oe�snse�Mg�sn�4�d�Rsr�4�etsdt�oe�snsen�T�tne�122�redntb�Rne4cy�352�
reedstre4t�nd�Rebdo�nsdn�redntb�d4s�reoennere4tdn�Seso�ceen�sbdetes�2302�reesdt�n4� nd�tbe�d4s�o�stdn�d4s�Fdr�ny�Steenst�hsnnsdr� 92 dFSh�Reen�cdt�n4�d4s�d4etstct�n4en�Fe�2015� 102 eeo�ees�dFSh�Reen�cdt�n4�d4s�d4etstct�n4en�ndscb�2015� 112 rRrrS�dFSh�hnheshn�4t�eseee4tdt�n4n�sdtes�7m10m13� 122 Hrd�n�tn�sSRe�see�4nt�d�cdt�n4�nd�dFSh�deen�cdt�n4e�tn�be�rd�nesn�Dt4e�16n�2014� 132 Rsc�Web�4ds�n4�dFSh�Fnyesn�2m14m14� 142 Rst�cne�dns�gR�Rndss�dns�henene�h�tb�r�edb�n�t�ee�dns�tbe�s�4ehenettes/hebe�te��4� recerbes�2012� 152 g�sn�4�d�E�deeed4�eeee�te�gntcbes�hsnnsdr�Reen�cdt�n4�d4s�ee�rbtseere4t� hsncestsee� 162 dFSh�hnheshn�4t�eseee4tdt�n4�tn�rr�sdee�nd4dnese�Dd4tdsy�2015� 172 Fe�15�hsnenees�hsnceee�Rsotetre4te�dns�dFSh��MFeb�2014g� 182 � 192 dr�Wd�t�E�et�cs�tes�d�d4s�esnceee�Mbttee//edeydcceee2o�sn�4�d2nno/hd�oesm rs�s2ebtrnwhbdtrdpeeg� 202 dFSrr�Wd�t�E�et�cs�tes�d�d4s�esnceee�bttee//edeydcceee2o�sn�4�d2nno/hd�oesm �dsse2ebtrnwhbdtrdpeeg� 212 bttee//hhh2sbbse2o�sn�4�d2nno/�4s�o�stdnemd4smddr�n�ee/seoennere4tdnm s�edb�n�t�ee/cnrrt4�tymeteenstmeeso�cee � 222 dFSh�2014�rdtd�sendss�4n�w�sece�oes�Fe�14� 232 2014205215�m�d4s�o�stdn�d4s�Fdr�ny�Steenst�hsnnsdr�Fe�13���14�re4�dn�sdtd� 24. 2014.05.15 – Approved item details for FY 2014 25. FY 2014 Final All IFSP Application 7-2-2014 26. FINAL FY 2014 All accepted applications 7-2-2014 27. Family Appeal Letter, dated 2-9-14 28. 2014 Assessment of Disability Services in Virginia, Virginia Board for People with Disabilities 29. BRBH FAMILY SUPPORT PROGRAM GUIDELINES

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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 148 of 149 PageID# 5915
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APPENDIX B: INTERVIEWS � STAKEHOLDER INPUT
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Case 3:12-cv-00059-JAG Document 177 Filed 06/11/15 Page 149 of 149 PageID# 5916 �

APPENDIX F. 
 LIST OF ACRONYMS 


AR CAP CIL CIM CM CMS CRC CSB CSB ES CTH DARS DMAS DBHDS DOJ EDCD EPSDT ESO GSE HCBS HPR ICF IFDDS IFSP IR ISE ISP LIHTC OHR OLS PCP POC PMM PST QI QSR RAC REACH RST RQC SA SC SIS SW SELN AG WDAC

Authorized Representative Corrective Action Plan Center for Independent Living Community Integration Managers Case Manager Center for Medicaid Services Community Resource Consultants Community Service Board Community Service Board Emergency Services Crisis Therapeutic Home Department of Rehabilitation and Aging Services Department of Medical Assistance Services Department of Behavioral Health and Developmental Services Department of Justice, United States Elderly or Disabled with Consumer Directed Services Early and Periodic Screening Diagnosis and Treatment Employment Service Organization Group Supported Employment Home and Community Based Services Health Planning Region Intermediate Care Facility Individual and Family Developmental Disabilities Supports Individual and Family Support Program Independent Reviewer Individual Supported Employment Individual Supports Plan Low Income Housing Tax Credit Office of Human Rights Office of Licensure Services Primary Care Physician Plan of Care Post-Move Monitoring Personal Support Team Quality Improvement Quality Service Reviews Regional Advisory Council for REACH Regional Education, Assessment, Crisis Services, Habilitation Regional Support Team Regional Quality Council Settlement Agreement US v. VA 3:12 CV 059 Support Coordinator Supports Intensity Scale Sheltered Work Supported Employment Leadership Network, Advisory Group Waiver Design Advisory Group

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 </s> Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 1 of 161 PageID# 6503

REPORT OF THE INDEPENDENT REVIEWER ON COMPLIANCE WITH THE
SETTLEMENT AGREEMENT UNITED STATES v. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia
Civil Action No. 3:12 CV 059 April 7, 2015 – October 6, 2015

Respectfully Submitted By

Donald J. Fletcher Independent Reviewer
December 6, 2015

	
  

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TABLE OF CONTENTS
I. EXECUTIVESUMMARY…………………………….………………………………..3
II. SUMMARY OF COMPLIANCE: ……………………………..……………………..8
Section III. Serving Individuals with ID/DD in the most integrated settings........8 Section IV. Discharge Planning and Transition from Training Centers…...........18 Section V. Quality and Risk Management………...……………………..……...25 Section VI. Independent Reviewer……………………………….....…..………..32 Section IX. Implementation……………………………………………………....32
III. DISCUSSION OF COMPLIANCE FINDINGS……………………………………34
A. Methodology……………………………………………………………….…33 B. Compliance Findings……………………………………………………….....34
1. Providing Waivers……………………………………………….34 2. Transition of Children from Nursing Homes and Large ICFs ………..36 3. Discharge Planning and Transition from Training Centers.……..........37 4. Regional Support Teams………………………………………….39 5. Crisis Services………………………………………………........41 6. Integrated Day Opportunities / Supported Employment……………...49 7. Community Living Options……………………………………….51 8. Transportation…………..……………………………………....53 9. Risk Triggers and Thresholds…………………………………......55 10. Web-based Incident Reports……………………………………....56 11. Investigations and Critical Incidents………….……………………56 12. Data to Assess and Improve Quality………......................................57 13. Regional Quality Councils and Quality Improvement Council………..59 14. Providers……………………………………………………….60 15. Quality Service Reviews………………………………………….61 16. Mortality Reviews………………………………………………62
IV. CONCLUSION………………………………………………………………………….65
V RECOMMENDATIONS……………………………………………………………….66
VI. APPENDICES……………………………………………………....…………………..70
A. Individual Review Study………………………………………………..71 B. Transportation and Regional Support Teams……………………...…..80 C. Crisis Services………………………………………………….…….….98 D. Quality and Risk Management………………………………...……....126 E. List of Acronyms……………….……………………………….……....160

	
  

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I. EXECUTIVE SUMMARY
This is the Independent Reviewer’s seventh report on the status of compliance with the Settlement Agreement (Agreement) between the parties to the Agreement: the Commonwealth of Virginia (the Commonwealth or Virginia) and the United States (U.S.), represented by the Department of Justice (DOJ). This report documents and discusses the Commonwealth’s efforts and the status of its progress during the review period April 7, 2015 – October 6, 2015. This report also provides information regarding Virginia’s progress in relationship to the Agreement’s ten-year implementation schedule and how its Home and Community Based Services waiver programs and regulations impede compliance.
The review period for this Report approximates the first half of the fourth year since the Court temporarily approved the Agreement on March 6, 2012, and approved it on August 23, 2012. The Court’s temporary approval allowed the Commonwealth to plan the implementation of the Agreement’s provisions. With the Court’s August 23, 2012, order approving and adopting the Agreement as a consent decree, the Commonwealth became obligated to implement its provisions. The Agreement’s provisions include a ten-year implementation schedule: July 1, 2011- June 30, 2021. The Agreement’s implementation schedule begins more than a year before the Agreement was approved. Five and a half years of the ten-year implementation schedule remain as of the date of this Report.
The Independent Reviewer began monitoring the planning and implementation of the Agreement after the Court temporarily approved the Agreement on March 6, 2012. At the end of the first monitoring period, October 6, 2012, the Independent Reviewer reported that the Commonwealth made significant progress during the first fifteen months of the ten-year implementation schedule, including before the settlement was signed. The Reviewer also identified that the pay rates and structure of the Commonwealth’s Home- and Community-Based Services (HCBS) wavier programs create incentives that promote congregation, are inadequate to serve those with complex needs and impede progress toward compliance.
The U.S. Center for Medicare and Medicaid Services (CMS) created the Home- and CommunityBased Services (HCBS) 1915(c) waiver program in 1981. It authorized states to request the option of providing home- and community-based alternatives to institutional care. Virginia requested this option in 1990. States must propose and CMS must approve all HCBS 1915(c) waiver programs. These programs include eligibility criteria, service definitions, payment rates, service limits, and cost caps; they must specify a limit on the number of individuals who receive benefits. These numerical limits are commonly referred to as waiver slots. All states’ waiver programs require the provision of case management and include a plan for the assessment of quality. All individuals who receive waiver slots must have a significant intellectual or developmental disability and a level of need that makes them eligible for institutional care.
The rules and payment rates of each state’s HCBS 1915(c) waiver programs create pressures to structure settings and services in particular ways to allow service providers to survive financially. Over time, if payment rates are not increased with inflation, the financial pressures increase and the particular ways services and settings are organized become intensified. The Commonwealth’s current HCBS 1915(c) waiver programs target groups of individuals based on diagnosis rather than needs. Individuals with ID are in one program. Individuals with DD, other than ID, are in

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another. Virginia’s waiver programs create financial pressure to develop larger congregate settings rather than smaller more integrated ones. This result conflicts with the goal of the Agreement to provide services “in the most integrated setting appropriate to meet their needs”.
The Independent Reviewer’s first Report to the Court, submitted December 6, 2012, identified the impediments inherent in the design and financial incentives of the Commonwealth’s HCBS waiver programs. The statements below continue to be true:
“The bifurcated ID/DD systems contribute to the confusion of families” and to “service providers struggling to provide efficient services for people with similar needs operating with two different sets of rules, regulations and monitoring systems.”
“The current community service system is comprised of mostly large group homes and day support centers. Developing this physical infrastructure has led to most staff being trained and oriented to work in congregate settings.”
The Commonwealth has long identified the redesign of its HCBS waiver programs as its primary strategy to reform the service system to come into compliance with many provisions of the Agreement. The Independent Reviewer’s sixth Report to the Court included the following statement that also continues to be true:
“During this review period, the Commonwealth has not been able to put its redesigned waivers into effect. The Commonwealth continues, therefore, not to be in compliance with many provisions. Furthermore, the Commonwealth will remain in non-compliance until it puts into effect, and effectively implements, a restructuring of its system that accomplishes the changes needed to meet these requirements. The Commonwealth’s proposed redesign of its HCBS waiver programs include reforms necessary to provide essential community-based services for individuals with complex medical and behavioral needs, and to offer integrated day and independent living options, as required.”
The Independent Reviewer has repeatedly reported that the Commonwealth’s regulations impede its ability to comply with many provisions of the Agreement. The Independent Reviewer’s second Report included the following statement that continues to be true:
The Commonwealth’s “regulations are reported to set low standards, to be broadly written, to be too vague to be effectively enforced, and to have not kept up with changes in the field of practice.”
The Commonwealth is experiencing a rapidly growing need for services to support individuals with ID/DD and their families. Since July 1, 2011, the Commonwealth has exceeded its obligations by creating 2455 waiver slots, 400 more than the Agreement requires. The Commonwealth created these slots to enable individuals to transition from institutions to live in the community. Most waiver slots, however, were created to support individuals on urgent wait lists to continue to live in their communities and avoid admission to institutions. Between July 1, 2011 and October 23, 2015, while the Commonwealth created 2,455 new waiver slots, 6,356 individuals with ID/DD have been added to the waitlists. The Commonwealth’s wait lists hav grown to 10,240 children and adults, an increase of seventy-seven percent (Table 1, page 35). The widely reported and dramatic increase in the number of children with autism spectrum disorders has contributed to the increased number of individuals with ID/DD. The Commonwealth expects that the redesigned waiver programs will have a positive impact on the wait lists.

	
  

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The Commonwealth has not been able to make progress on the provisions of the Agreement related to providing smaller and more integrated day and congregate residential programs for individuals living in the community. The Commonwealth’s Departmental staff and stakeholders, however, have engaged in concerted and collaborative efforts and made progress. They have planned and implemented initiatives and made important progress in several areas. During this review period, the Commonwealth provided rental subsidies to allow individuals to live in their own apartment with more independence. It brought on line a data warehouse, which is a foundation element in its quality and risk management system. The Commonwealth also collected reliable point-in-time data for all individuals with ID/DD in supported employment. These successes have not resulted in determinations of compliance, but they are accomplishments of key milestones. Significantly, between October 13, 2011 and October 26, 2015, the Commonwealth helped 477 individuals transition to live in the community from the Training Centers; where the census has declined to 455 residents.
Since the Court’s temporary approval of the Agreement on March 6, 2012, the Independent Reviewer has monitored primarily whether the Commonwealth has funded, designed, and put the required service elements into place. These elements include case management, transportation, crisis services, an individual and family support program, and discharge and transition planning. The Independent Reviewer initially rated these provisions as in compliance because the Commonwealth achieved the quantitative aspects of the provisions. During this reporting period, however, the Independent Reviewer, with the assistance of his independent consultants with subject matter expertise, completed qualitative reviews of transportation services, crisis services for adults, and the Regional Support Teams. There has been sufficient time for these service system elements to implement quality improvement programs, to identify how programs are falling short of expectations, and to demonstrate the ability to address performance problems.
The Agreement requires quality improvement programs for all services and of all service providers. The development of effective quality improvement programs takes time. While the Agreement had due dates for about half of the specific provisions in the Quality and Risk Management Section, it does not include due dates for providers to have quality improvement programs in place. It is the Independent Reviewer’s considered opinion that it is possible to achieve quality standards only after identifying the quality standards and employing a quality improvement mechanism to provide information about whether a program is accessible, available and effectively meeting individuals’ needs.
In this Report, the Independent Reviewer has determined that the Commonwealth is in noncompliance with qualitative aspects of transportation and mobile crisis services. Both have experienced ongoing complaints from members of the target population, their families and other service providers. The Commonwealth has not identified concerns related to the quality of transportation services for individuals with ID/DD and has not taken steps to address them. The Commonwealth has identified and has taken initial steps to address concerns with mobile crisis services. Neither service entity has developed an ongoing quality improvement program to identify, address, and resolve concerns and to ensure that the services provided to the members of the target population are of good quality.

	
  

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The Commonwealth’s development of a fully operating quality and risk management system requires a methodical multi-step approach. To date, the Department of Behavioral Health and Developmental Services (DBHDS) has made significant progress in some areas. In several areas, however, progress has been impeded by existing regulations. The regulatory requirements that exist do not align with the requirements of the Agreement. DBHDS reports that it is not able to make further progress in several key areas until its regulations are revised. Some examples include:
 DBHDS cannot require providers to report information regarding “risk triggers”;  DBHDS cannot utilize sanctions against providers that consistently do not meet standards;  residential providers discharge individuals who do not have a home;  DBHDS cannot establish minimum qualifications for required provider investigations;  providers do not have access to records about whether job applicants have had one or more
substantiated acts of abuse, neglect, or exploitation against a vulnerable adult.
Below is an overview of the provisions with which the Independent Reviewer has rated to be in compliance, substantial compliance or non-compliance. The Independent Reviewer determines substantial compliance when four of five Regions are clearly in compliance and when the fifth region has the required program in place and is implementing a plan to come into full compliance. During the seventh review period, the Commonwealth:
Maintained Ratings of Compliance with provisions that include:  the creation of HCBS waiver slots;  increased case management and licensing oversight;  discharge planning and transition services for individuals residing in Training Centers;  elements of a statewide crisis services system for adults with intellectual disabilities (ID);  development of Virginia’s Plan to Increase Independent Living; and  offering choice of service providers.
Gained Ratings of Compliance due to achieving the quantitative measures of compliance  mobile crisis on-site response times
Lost Ratings of Compliance with provisions due to qualitative and data concerns that include:  transportation services;  a statewide crisis services system for adults with developmental disabilities (DD);  mobile crisis support services; and  Regional Quality Councils’ review of employment data.
Retained Ratings in Non-Compliance with provisions that were due by this time that include:  opportunities for individuals with ID/DD to live in most integrated settings;  transition of children to community homes from nursing facilities and large ICFs;  crisis services for children and adolescents;  integrated day activities and supported employment;  subsidized community living options; and  an individual support planning process focused on helping individuals to learn new skills in order to become more self-sufficient.

	
  

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The following “Summary of Compliance” table provides a rating of compliance and an explanatory comment for each provision. The “Discussion of Findings” section includes additional information to explain the compliance ratings, as do the consultant reports that are included in the Appendix. The Independent Reviewer’s recommendations are included at the end of this report.
In summary, the Commonwealth remains in compliance with many provisions of the Agreement; and it has made progress with others. Based on concerns about quality, during this review period, the Independent Reviewer rated the Commonwealth in non-compliance in areas in which it was previously rated as in compliance based on quantitative measures. Furthermore, the Commonwealth’s progress toward compliance with many provisions of the Agreement is largely on hold. The Commonwealth will remain in non-compliance until it approves and effectively implements its primary compliance strategy--the redesigned HCBS 1915 (c) waiver programs. The Commonwealth will not come into compliance with other provisions until it revises its regulations to align with the requirements of the Agreement.
During the next review period, the Independent Reviewer will prioritize monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: Crisis Services for Children; Case Management and Individual Service Planning; Individual and Family Support Program, Guidelines for Individuals and Families Seeking Services, Integrated Day Opportunities and Supported Employment, and plans to revise regulations to align with the Agreement. The Individual Services Review study will focus on children: those who live in and those are diverted and transitioned from nursing facilities and large ICFs.
Throughout the recent review period, the Commonwealth’s staff have been accessible, forthright, and responsive. Attorneys from the Department of Justice have gathered information that will be helpful to effective implementation of this Agreement; they continue to work collaboratively with the Commonwealth. Overall, the willingness of both Parties to openly and regularly discuss implementation issues and any concerns about progress towards shared goals has been important and productive. The involvement and contributions of the stakeholders have been vitally important to the progress that the Commonwealth has made to date; their meaningful participation will continue to be critically necessary. The Independent Reviewer greatly appreciates the assistance generously given by the individuals at the center of this Agreement and their families, their case managers and their service providers who produced documents, helped to arrange interviews with staff and family members and facilitated site visits to homes and programs.

	
  

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II. SUMMARY OF COMPLIANCE:

Settlement Agreement Reference
III
III.C.1.a.i-v.

Provision

Rating

Serving Individuals with Developmental Disabilities In the
Most Integrated Setting

Compliance ratings for the fifth, sixth, and seventh review periods are presented as:
(5th period) 6th period
7th period

The Commonwealth shall create a minimum of (Compliance)

805 waiver slots to enable individuals in the

Compliance

target population in the Training Centers to Compliance

transition to the community …

Comments
Comments include examples to explain the ratings and status. The Findings Section and attached consultant reports include additional explanatory information.
The Commonwealth created 555 waiver slots during FY 2012 -2016, the minimum number required.

III.C.1.b.i-v

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 275 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth created 1500 waiver slots between FY 2012 and FY 2016, 250 more than the1250 required. It created 325 slots in FY 2016, 50 more than required. It met the quantitative requirements of this provision. It expects to initiate its plan to transition individuals under 22 years of age living in nursing facilities in March 2016.

III.C.1.c.i-v.

The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs

(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth created 400 waiver slots between FY 2012 and FY 2016 for individuals with DD, other than ID, 150 more than the 250 required. It met the quantitative requirements of this provision. It has not implemented its plan to transition individuals under 22 years of age. It has prioritized diverting children to alternative home- and community-based services.

	
  

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Settlement Agreement Reference
III.C.2.a-b

Provision
The Commonwealth shall create an individual and family support program (IFSP) for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2015, a minimum of 1000 individuals supported.

Rating

Comments

(Compliance) Non
Compliance
Non Compliance

The Commonwealth met the quantitative requirement by supporting 1,201 individuals in FY 2015. In FY 2016, $600K has been distributed to 625 individuals/families. The current IFSP does not include a comprehensive and coordinated set of strategies.

III.C.5.a

The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

For the purpose of this agreement, case III.C.5.b. management shall mean:

(Compliance) Compliance
Compliance

24 (100%) of the individuals studied were receiving case management.
24 (100%) also had current Individual Support Plans.

III.C.5.b.i.

Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

DBHDS is making substantive changes to the ISP process and DD case management. It is providing training to ID case managers. The Commonwealth expects that improvements become evident in the next (eighth) review periods. See immediately above.

Monitoring the ISP to make timely additional referrals, service changes, and amendments III.C.5.b.iii to the plans as needed.

(Non Compliance)
Non Compliance
Non Compliance

See comment re: III.C.5.b.i.

	
  

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Settlement Agreement Reference
III.C.5.c
III.C.5.d

Provision
Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.
The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities.

III.C.6.a.i-iii

III.C.6.b.i.A

The Commonwealth shall utilize existing CSB Emergency Service, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

Rating

Comments

(Non Compliance) Compliance
Compliance

The IR did not find evidence that case managers provided direct services, other than case management. The required term is included in the “FY 2016 CSB Performance Contract”.

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance) Compliance
Compliance

The DBHDS regulations and licensing monitoring protocols do not align with the Agreement’s requirements. DBHDS has implemented additional monitoring processes.
The Commonwealth has developed the required elements of a statewide crisis system for adults with ID. DBHDS is putting in place the elements of a statewide children’s crisis system. Additional appropriated funds were provided as of 7/1/2015. DBHDS cannot assure that it is reaching individuals with DD who need the crisis system.
CSB Emergency Services are utilized for adults with ID. CSB hotlines are operated 24 hours per day, 7 days per week.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 11 of 161 PageID# 6513 	
  

Settlement Agreement Reference
III.C.6.b.i.B

Provision
By June 30, 2012, the Commonwealth shall train CSB Emergency Services personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment III.C.6.b.ii.A. to de-escalate crises without removing individuals from their current placement whenever possible.

III.C.6.b.ii.B

Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

III.C.6.b.ii.C

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.

Mobile crisis teams shall be available 24 hours per day, 7 days per week and to III.C.6.b.ii.D respond on-site to crises.

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

Rating

Comments

(Compliance) Compliance
Compliance
(Compliance) Compliance
Non Compliance
(Non Compliance) Compliance
Non Compliance
(Non Compliance) Compliance
Compliance
(Non Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

REACH programs continue to train CSB Emergency Services (ES) staff and to report quarterly. DBHDS has developed a standardized curriculum. All new CSB ES staff and case managers are required to be trained.
The Commonwealth has developed and implemented a training program and a process to reinforce learning. The training it provided has not been adequate for team members to respond with, effective or timely assessments, or good quality in-home supports and treatment, in many cases.
REACH teams provide crisis response, crisis intervention, and crisis planning. REACH programs did not provide effective prevention plans or strategies, or in-home supports. DBHDS now requires that crisis plans be completed for every individual referred to REACH.
During the review period REACH trained 332 police, an increase over the 224 law enforcement staff trained during the previous reporting period.
REACH Mobile crisis teams are available around the clock and respond at off-hours for adults with ID.
Most regions provided adults with ID with more than an average of three days inhome support services.

	
  

11	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 12 of 161 PageID# 6514 	
  

Settlement Agreement Reference
III.C.6.b.ii.G

Provision
By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.

By June 30, 2014, the Commonwealth shall have a sufficient number of mobile crisis teams in each Region to respond on site to III.C.6.b.ii.H crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time. Crisis Stabilization programs offer a shortterm alternative to institutionalization or III.C6.b.iii.A. hospitalization for individuals who need inpatient stabilization services

Crisis stabilization programs shall be used as

a last resort. The State shall ensure that,

prior to transferring an individual to a crisis

stabilization program, the mobile crisis team,

III.C.6.b.iii.B.

in collaboration with the provider, has first attempted to resolve the crisis to avoid an

out-of-home placement and if that is not

possible, has then attempted to locate

another community-based placement that

could serve as a short-term placement.

Crisis stabilization programs shall have no

more than six beds and lengths of stay shall

III.C.6.b.iii.D. not exceed 30 days.

With the exception of the Pathways Program

at SWVTC … crisis stabilization programs

shall not be located on the grounds of the

III.C.6.b.iii.E.

Training Centers or hospitals with inpatient psychiatric beds.

By June 30, 2012, the Commonwealth shall

III.C.6.b.iii.F.

develop one crisis stabilization program in each Region.

Rating

Comments

(Non Compliance)
Non Compliance
Compliance
(Compliance) Non
Compliance
Compliance

The Commonwealth had not created new teams as required. REACH teams achieved responses within two hours for
434 (94.1%) of 461 calls. Late crisis calls were generally involved minor amounts of time.
The Commonwealth reported average response times of within one hour in urban areas and within two hours in rural areas.

(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

All Regions continue to have crisis stabilization programs that are providing short-term alternatives for adults with ID. For adults with ID admitted to the programs, crisis stabilization programs continue to be used as last resort. For these individuals, teams have attempted to resolve crises and avoid outof home placements.

(Compliance) Compliance
Substantial Compliance
(Substantial Compliance) Substantial Compliance
Substantial Compliance
(Compliance) Compliance
Compliance

Four Regions’ programs have no more that six beds. Region III’s program now has more than six beds. It reports that it has a plan to return to compliance. Four Regions’ stabilization programs are not located on institution grounds and are in compliance. Region IV has ‘broken-ground’ to build a crisis stabilization home and move its existing program.
Each Region developed and currently maintains a crisis stabilization program for adults with ID.

	
  

12	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 13 of 161 PageID# 6515 	
  

Settlement

Agreement

Provision

Reference

By June 30, 2013, the Commonwealth shall

develop an additional crisis stabilization

program in each Region as determined

necessary by the Commonwealth to meet the

needs of the target population in that Region.

III.C.6.b.iii.G.

III.C.7.a

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.

III.C.7.b

The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy… (3) employment services and goals must be developed and discussed at least annually …

III.C.7.b.i. III.C.7.b.i.A

Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community rec. opportunities, and other integrated day activities.
Provide regional training on the Employment First policy and strategies through the Commonwealth.

Rating

Comments

(Compliance) Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance) Compliance Compliance

The Commonwealth has not made a determination of whether it is necessary to develop additional crisis stabilization programs for adults with ID. There appears to be compelling evidence that additional crisis stabilization capacity is needed to meet the needs of the target population. This is an overarching provision. Compliance will not be achieved until the sub-provisions of Integrated Day – Supported Employment are in compliance.
CSBs are not fulfilling the term of their Performance Contracts that requires implementation of the Commonwealth’s Employment First Policy. For 18 (90%) of 20 individuals studied, case managers did not develop and discuss employment goals and services. DBHDS expects improvements in the ISPs to begin in the next review period.
The Commonwealth developed a plan for Supported Employment. It finalized an updated draft plan for integrated day opportunities after the Independent Reviewer was reviewing information for this Report.
The Employment Services Coordinator provided numerous trainings, i.e., 10 trainings in 10 weeks were provided to a total of 303 staff in 4 of the Regions.

	
  

13	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 14 of 161 PageID# 6516 	
  

Settlement Agreement Reference
III.C.7.b.i. B.1.
III.C.7.b.i. B.1.a.
III.C.7.b.i. B.1.b.
III.C.7.b.i. B.1.c.
III.C.7.b.i. B.1.d.
III.C.7.b.i. B.1.e.
III.C.7.b.i. B.2.a.

Provision Establish, for individuals receiving services through the HCBS waivers annual baseline information re:
The number of individuals who are receiving supported employment.
The length of time individuals maintain employment in integrated work settings.
Amount of earnings from supported employment;
The number of individuals in pre-vocational services. The length-of-time individuals remain in prevocational services. Targets to meaningfully increase: the number of individuals who enroll in supported employment each year

Rating

Comments

(Compliance) Non
Compliance Non
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance) Compliance
Compliance
(Compliance) Compliance Compliance

The Commonwealth implemented an improved method of collecting data. Data reported includes only 86% return rate for group supported employment. The Commonwealth has not determined the number of individuals who are receiving supported employment, as defined in the Agreement, and cannot determine the number for meaningful increases in each year. See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
The Commonwealth provided the number of individuals. The Commonwealth provided the number who remain in such services.

(Compliance) Non
Compliance Non
Compliance

The Commonwealth has set the % to meaningfully increase. The data gathered are not complete and include individuals in supported employment that does not align with the Agreement.

	
  

14	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 15 of 161 PageID# 6517 	
  

Settlement Agreement Reference
III.C.7.b.i.

Provision
The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.

III.C.7.c.

Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.

III.C.7.d III.C.8.a.

The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward. The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.

III.C.8.b.

The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.

Rating

Comments

(Compliance)
Non Compliance

The Commonwealth has expanded the definition to include a higher number of individuals. The data gathered are not complete and include individuals who earn below minimum wage.

(Non Compliance) Compliance
Non Compliance
(Non Compliance) Compliance
Non Compliance

The RQCs met quarterly. The DBHDS Employment Coordinator, the liaison between the SELN (Supported Employment Leadership Network) and the RQCs, presented employment data to them. The RQCs’ had only limited discussion of supported employment data. Same as immediately above

(Compliance) Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

A review found that DMAS /Logisticare do not know whether transportation services for the target population are of good quality. Several sources indicate a higher level of complaints from this population.
The Commonwealth guidelines (“Just the Facts”) do not include information regarding how and where to apply and how to obtain services for individuals / families who are on the waitlists or others seeking services who do not know how to apply to get on it.

	
  

15	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 16 of 161 PageID# 6518 	
  

Settlement Agreement Reference
III.D.1.
III.D.2.
III.D.3.
III.D.3.a.

Provision
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources…
Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.
The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ...

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance) Compliance

The Commonwealth primarily offers individuals congregate settings. An increased percent of the individuals who transitioned from Training Centers have moved to settings with five or more residents or with multiple group homes on one setting.
44% in FY 2013, 62 of 141 53% in FY 2014, 84 of 158 58% in FY 2015, 62 of 107 61% in FY 2016, 12 of 19 The Commonwealth began to facilitate individuals receiving waivers who would choose to live in their own home to do so. Further progress is needed in resolving systemic barriers, including providing necessary rental subsidies and in demonstrating sustained ability to achieve its Independent Living timeline and outcome targets in all Regions. The Commonwealth developed a plan. It created strategies to improve access and provided rental subsidies to some individuals to live in their own apartments. It has taken positive steps toward compliance. A DBHDS housing service coordinator developed the plan with these representatives and others.

Compliance

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 17 of 161 PageID# 6519 	
  

Settlement Agreement Reference
III.D.3.b.i-ii

Provision
The plan will establish, for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

III.D.4

Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing, from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii.

III.D.5 III.D.6

Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.
No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant (CRC) and, under circumstances described in Section III.E below, the Regional Support Team (RST).

Rating

Comments

(Compliance) Compliance
Compliance

The Commonwealth estimated the number of individuals who would choose independent living options through FY15. It revised its Housing Plan with new strategies and recommendations.

(Compliance) Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance
Compliance) Compliance
Non Compliance

The Commonwealth has established the one-time fund and distributed funds. Fourteen individuals are now living in rental units with this rental assistance. Five limited time rental vouchers remain.
Documents reviewed did not indicate that the family-to family and peer programs were active and creating pairings for individuals served in sponsored homes or congregate settings.
Individuals were placed in settings of five or more or to ICFs without the review of Regional Support Teams Referrals were not submitted or submitted so late that the RST did not have time to fulfill its responsibilities or to utilize its authority.

III.D.7

The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …

(Compliance) Compliance
Compliance

The Commonwealth: included this term in the performance contracts, developed and provided training to case managers, and implemented ISP form with less restrictive options.

	
  

17	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 18 of 161 PageID# 6520 	
  

Settlement Agreement Reference
III.E.1
III.E.2
III.E.3.a-d
IV
IV.
IV.A

Provision
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CBSs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team ... The CRC may consult at any time with the Regional Support Team (RST). Upon referral to it, the RST shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The RST shall have the authority to recommend additional steps by the PST and/or CRC. The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met)
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.

Rating

Comments

(Compliance) Compliance
Compliance

Community Resource Consultants (CRC) are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

(Non
Compliance) Non
Compliance
Non Compliance

PSTs did not submit some referrals as required. Individuals moved to settings of five or more, or to ICFs, without the CRCs submitting referrals in time for the RSTs to fulfill their responsibilities or to utilize their authority.

(Compliance) Compliance Compliance
Compliance ratings for the fifth, sixth, and seventh review periods are presented as:
(5th period) 6th period
7th period
(Compliance)
Compliance
(Non Compliance)
Non Compliance
Non Compliance

DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly. For the Discharge provisions, the IR did not prioritize monitoring and did not provide compliance ratings during the sixth review period.
The Commonwealth developed and implemented discharge planning and transition processes prior to July 2012. It made subsequent improvements re: concerns the IR identified. The Commonwealth has not implemented its strategy to come into compliance. Most integrated residential and day options are often not available for individuals with intense needs.

	
  

18	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 19 of 161 PageID# 6521 	
  

Settlement Agreement Reference
IV.B.3.
IV.B.4.
IV.B.5.
IV.B.5.a. IV.B.5.b. IV.B.5.c.

Provision

Rating

Comments

Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process. The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships). The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan (developed within 30 days prior to discharge) Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes; Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;

(Compliance)
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance

The IR’s individual services review studies found that DBHDS has consistently complied with this provision. The discharge plans are well documented
Discharge plan goals did not include measurable outcomes that lead to skill development and increased self-sufficiency. The Commonwealth acknowledges its inability to provide integrated day services until it implements its redesigned waivers. The IR’s individual services review studies found that DBHDS has consistently complied with this provision and that the discharge plans are well documented. DBHDS tracks and reports that all residents of Training Centers have discharge plans.
The IR found that documentation of information provided was present in the discharge records ☐ for 75 (91.5%) of the 82 individuals studied during three review periods. The discharge plans included this information.
☐ for 50 (98.0%) of 51 individuals studied during the fifth and seventh review period, the discharge records included these assessments.

	
  

19	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 20 of 161 PageID# 6522 	
  

Settlement Agreement Reference
IV.B.5.d. IV.B.5.e. IV.B.5.e.i. IV.B.5.e.ii.
IV.B.6
IV.B.7
IV.B.9.
IV.B.9.a.

Provision

Rating

Comments

Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes;
Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.

(Compliance)
Compliance

The PSTs select and list specific providers that can provide identified supports and services.

(Compliance)
Compliance

The CIMs and Regional Support Team document barriers on the data collection sheet.

Such barriers shall not include the individual’s disability or the severity of the disability.
For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.

(Compliance)
Compliance
(Compliance)
Compliance
(Non Compliance)
Non Compliance

The severity of the disability has not been a barrier in the discharge plans.
DBHDS has identified the factors that led to readmission and has implemented steps to support individuals with intensive needs.
The individual review study found that the discharge plans lacked recommendations for how individuals can be best served. They did not include skill development to increase self-sufficiency or integrated day opportunities. DBHDS is implementing improvements.

Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.
In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options.
The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.

(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance

The Commonwealth’s discharge plans indicate that individuals with complex needs can live in integrated settings..
The individual reviews during the fifth and seventh review periods found that ☐ 52 (100%) individuals and their ARs were provided with information regarding community options and had the opportunity to discuss them with the PST.
Discharge records included evidence that the Commonwealth had offered a choice of providers.

	
  

20	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 21 of 161 PageID# 6523 	
  

Settlement Agreement Reference
IV.B.9.b.
IV.B.9.c.
IV.B.11.
IV.B.11.a.

Provision

Rating

Comments

PSTs and the CSB case manager shall coordinate with the … community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities. PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.
The Commonwealth shall ensure that Training Center PST’s have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.
In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.

(Non Compliance)
Non Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance

The IR’s reviews found that of the individuals studied ☐11 (45.8%) of 24 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their family members. DBHDS sent packets of information to ARs. Of 61 referrals at CVTC and NVTC one family and two peer mentor pairings occurred. DBHDS plans to contact each family to offer this opportunity PST’s and case managers assisted individuals and their Authorized Representative. Providers were identified and engaged; and provider staff were trained in support plan protocols that were transferred to the community.
During the fifth and seventh review periods, the IR found that 48 (92.3%) of 52 individuals /Authorized Representatives who transitioned from Training Centers were provided with information regarding community options.
The IR confirmed that training has been provided via regular orientation, monthly and ad hoc events at all Training Centers, and via ongoing information sharing.

	
  

21	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 22 of 161 PageID# 6524 	
  

Settlement Agreement Reference IV.B.11.b.
IV.B.15
IV.C.1 IV.C.2

Provision

Rating

Comments

Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meeting and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the personcentered tools and skills. Coaches … will have regular and structured sessions and personcentered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.
Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

(Compliance)
Compliance
(Non Compliance)
Non Compliance
(Compliance)
Compliance
(Compliance)
Compliance

The IR confirmed that staff receive required personcentered training during orientation and annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors. An extensive list of trainings was provided and attendance is well documented. These include “Core Retraining”, after which is a comprehensive test.
See Comment for IV.D.3.
The IR found that the residential provider staff for ☐ 51 (98.1%) of 52 individuals participated in the pre-move ISP meeting and were trained in the support plan protocols. During the fifth and seventh period, the IR found that ☐ 49 (94.2%) of 52 individuals had moved within 6 weeks, or reasons were documented and new time frames developed.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 23 of 161 PageID# 6525 	
  

Settlement Agreement Reference
IV.C.3
IV.C.4
IV.C.5

Provision

Rating

Comments

The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct postmove monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring (PMM) Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process. The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.
The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge ...

(Non Compliance) Compliance
Compliance
(Compliance)
Compliance
(Non Compliance)
Non Compliance

The IR determined the Commonwealth’s PMM process is well organized. It functions with increased frequency during the first weeks after transitions. The IR found that for 52 (100%) individuals PMM visits had occurred and that the monitors had been trained and utilized monitoring checklists. During the sixth review period, the Commonwealth completed a look-behind process with a significant sample size. The look-behind process was maintained during the seventh period.
The IR review studies during the third, fifth and seventh review periods found that ☐ for 52 (96.3%) of 54 individuals, the Commonwealth updated discharge plans within 30 days prior to discharge.
The IR review studies found that essential supports were not in place prior to discharge for 8 (28.6%) of 28 individuals in the fifth and for 3 (12.5%) of 24 individuals in the seventh review periods. For the fifty-two individuals in the two groups: ☐ 8 (15.4%) did not have outof-home day opportunities identified or provided, ☐ 3 (5.8%) did not have behavioral or medical supports identified or provided.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 24 of 161 PageID# 6526 	
  

Settlement Agreement Reference
IV.C.6
IV.C.7
IV.D.1 IV.D.2.a
IV.D.3

Provision

Rating

Comments

No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.
The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.
CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;
The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.

(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Non Compliance)
Non Compliance

The discharge records reviewed in the third and fifth review periods indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.
The IR confirmed that documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans.
Community Integration Managers are working at each Training Center.
CIMs have reviewed PST recommendations for individuals to be transferred to a nursing home or congregate settings of five or more individuals. The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The IR found, during the seventh period, that ☐ for 0 (0.0%) of 12 individuals referred to the RST, there was sufficient time to work with the PST and CIM to resolve identified barriers.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 25 of 161 PageID# 6527 	
  

Settlement Agreement Reference
IV.D.4.
V.
V.B.
V.C.1
V.C.2

Provision

Rating

Comments

The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed …

(Compliance)
Compliance

The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ.

Quality and Risk Management
The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.

Compliance ratings for the fifth, sixth, and seventh review periods are presented as:
(5th period) 6th period
7th period (Non
Compliance)
Non Compliance

For the Quality provisions without due dates, the IR did not prioritize monitoring and did not provide compliance ratings during the sixth review period.
This is an overarching provision of the Agreement. Compliance will not be achieved until the subprovisions in the Quality and Risk Management Section are determined to be in compliance.

The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.

(Non Compliance)
Non Compliance

The Commonwealth has improved its draft list of risk triggers by including risks of harm in addition to harm that has occurred. It has not completed or implemented the lists and draft annual risk assessment. It has not changed regulations to allow collection of required data.

The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.

(Non Compliance)
Non Compliance

DBHDS implemented a web-based incident reporting system. Although improved, providers do not report within 24 hours. consistently. The reporting form is inadequately designed and does not produce reliable data.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 26 of 161 PageID# 6528 	
  

Settlement Agreement Reference
V.C.3
V.C.4
V.C.5

Provision

Rating

Comments

The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The …mortality review team … shall have at least one member with the clinical experience to conduct mortality re who is otherwise independent of the State. Within ninety days of a death, the mortality review team shall: (a) review, or document the unavailability of: (i) medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual’s death; … (b) interview, as warranted, any persons having information regarding the individual’s care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems … and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable.

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth established a reporting and investigative process. The DBHDS Office of Human Rights (OHR) investigations do not align with the requirements of the Agreement.
The Commonwealth has completed some training modules. Other progress has been made with root cause analysis and training on risk assessment. Available trainings are incomplete, not adequate to ensure reliability, and not competency based. A Mortality Review Committee (MRC) completed reviews of unexpected and unexplained deaths. Recommendations occurred and some positive systemic steps have been taken to reduce mortalities. The MRC did not include a member independent of the state; most mortality reviews were not completed in 90 days; and a quality improvement assessment has not been completed to determine whether initiatives have addressed problems or to determine other actions to reduce mortality rates.

	
  

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Settlement Agreement Reference
V.C.6

Provision
If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.

Rating

Comments

(Non Compliance)
Non Compliance

DBHDS cannot effectively use available mechanisms to sanction providers, beyond use of Corrective Action Plans. DBHDS reports that, provisional licenses being issued for repeat offenders.

V.D.1 V.D.2.a-d V.D.3.a-h

The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers, … Review of data shall occur at the local and state levels by the CSBs and DMAS/DBHDS, respectively. The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data is collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

This is an overarching provision requiring effective quality improvement processes at the local and state levels. Compliance will not be achieved until the quality improvement sub-provisions are in compliance. The lack of consistently collected, and complete and reliable, data has not allowed effective review at the local and state levels. Only limited analysis occurred.
The Commonwealth has taken steps to improve collection and use of data, to develop reports, and to share data among staff and divisions. Implementation of the Data Warehouse is an important accomplishment. Significant work remains to increase and organize the data and to ensure its reliability. The Commonwealth began collecting and analyzing information in FY 2012. Data collection for some measures began June 30, 2014. For other measures, it has not begun. Case management and ISP data are not complete or reliable. Data about individuals with DD services and private ICFs are not included.

	
  

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Settlement Agreement Reference
V.D.4

Provision
The Commonwealth shall collect and analyze data from available sources, including the risk management system described in V.C. above, those sources described in Sections V.E-G and I below (e.g. providers, case managers, Quality Service Reviews, and licensing), Quality Service Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.

V.D.5

The Commonwealth shall implement Regional Quality Councils (RQCs) that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.

V.D.5.a V.D.5.b

The councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
Each council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.

V.D.6 V.E.1

At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis that is sufficient to identify and address significant issues.

Rating (Non
Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance) Compliance Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

Comments
This is an overarching provision. It will be in noncompliance until reliable data are provided from all the sources listed and cited by reference in V.C. and in V.E-G.
The RQCs had limited and unreliable data. The RQCs completed limited analysis and discussion of trends or recommendations
The five Regional Quality Councils now include all the required members.
The RQCs met quarterly and had limited discussion of trends. The data available were not complete or reliable. The DBHDS Quality Improvement Council directed their work. The Commonwealth has begun to compile and has posted on its website: information toward creating and publicly reporting.
The Commonwealth has surveyed all CSBs and will survey a sample of providers to ascertain a baseline regarding existing quality improvement practices. It has targeted 12/31/2015 to set clear expectations about QI processes for providers.

	
  

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Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 29 of 161 PageID# 6531 	
  

Settlement Agreement Reference
V.E.2
V.E.3
V.F.1
V.F.2

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.
The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.
At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs….

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Compliance) Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth requires providers to report deaths, serious injuries and allegations of abuse and neglect. DBHDS plans to require reporting through the risk management and provider QI programs as described in V.E.1. above. The Commonwealth began to implement the QSR process. It plans to use the results to improve quality of services on the provider, CSB, and system wide levels and to provide technical assistance. It has not finalized the data it will collect to assess provider quality improvement strategies. The IR found that 79 (100%) individuals studied were receiving case management services. The IR will complete a qualitative review after the Commonwealth implements its current initiative to improve ISPs and case management. DBHDS is making substantive changes to the ISP process, ISP monitoring, the training provided to ID case managers, and the changes related to the DD case management through the HCBS waiver restructure. The Commonwealth expects that meaningful changes in the ISP will be evident at the end of the next review period.

	
  

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Settlement Agreement Reference
V.F.3.a-f
V.F.4
V.F.5
V.F.6 V.G.1 V.G.2.a-f

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in V.D.3.

(Compliance)
Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

The IR found that ☐ 23 (95.8%) of 24 individuals who met the eligibility criteria for enhanced case management received monthly face-to-face meetings as required.
DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards relative to case manager contacts.
The IR determined during the sixth period that the key indicators developed by DBHDS do not address specific elements of the case manager’s face-to-face visit observation and assessments. For example, there continues to be no plans to address the halo effect of case managers skewing reports to the positive.

The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of selfdetermination and person-centeredness.
The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ...

(Compliance) Compliance
Compliance
(Compliance)
Compliance
Compliance)
Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination.
DBHDS completed 434 unannounced licensing inspection visits between 4/1/15 and 9/30/15.
DBHDS has maintained a licensing inspection process with more frequent inspections.

	
  

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Settlement Agreement Reference
V.G.3
V.H.1
V.H.2
V.I.1.a-b
V.I.2

Provision

Rating

Comments

Within 12 months of the effective date of this (Non-Compliance) The DBHDS Licensing

Agreement, the Commonwealth shall ensure

regulations and protocol do

that the licensure process assesses the

not align with the

adequacy of the individualized supports and

Non

Agreement’s requirements.

services provided to persons receiving services Compliance Licensing is undergoing a

under this Agreement in each of the domains

thorough review to

listed in Section V.D.3 above and that these

determine system

data and assessments are reported to DBHDS.

requirements.

The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training.
The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.

(Non-Compliance) The Commonwealth is

offering some training to

DSPs, their supervisors and

case managers. It has not

created a plan to:

develop the curriculum to

Non

train staff in the required

Compliance elements of service for the

individuals, or

- determine the

competencies required or

- the methods and frequency

of determining competency.

(Non-Compliance) Same as V.E.1 immediately

Above. Non

Compliance

The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.
QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting appropriate to the individuals’ needs and consistent with their informed choice, and whether individuals are having opportunities for integration in all aspects of their lives …

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth has worked steadily to modify the Quality Service Review process to meet the requirements of the Agreement. The selected contractor recently began conducting reviews. Compliance will be achieved when results are used to improve quality. Same comment as V.I.1. immediately above.

	
  

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Settlement Agreement Reference
V.I.3
V.I.4
VI
VI.D.
IX
IX.C.

Provision
The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.
The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the Parties … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

Rating

Comments

(Non Compliance)
Non Compliance

Same comment as V.I.1.

(Non Compliance)
Non Compliance

Same comment as V.I.1.

(Compliance) Compliance
Compliance

The DHBDS promptly reports to the IR. The IR, in collaboration with a nurse and independent consultants, completes his review and issues his Report to the Court and the Parties. DBHDS has established an internal working group to review and follow-up on the IR’s recommendations.

(Non Compliance)
Non Compliance
Non Compliance

The IR has determined that the Commonwealth did not maintain sufficient records to document proper implementation of the provisions including: webbased incident reporting, case management, crisis services, employment, and licensing.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. The following provisions are related to internal operations of Training Centers and were not monitored: Sections III.C.9, IV.B.1,
IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-. The independent Reviewer will not monitor Sections
III.C.6.b.iii.C.until the Parties decide whether this provision will be retained.

	
  

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III. DISCUSSION OF COMPLIANCE FINDINGS
A. Methodology:
The Independent Reviewer and his independent consultants monitored the Commonwealth’s compliance with the requirements of the Agreement in several ways:
 by reviewing data and documentation produced by the Commonwealth in response to requests by the Independent Reviewer and the Department of Justice (DOJ);
 by discussing progress and challenges in regularly scheduled Parties’ meetings and in work sessions with Commonwealth officials;
 by examining and evaluating documentation of supports provided to individuals and their families;
 by interviewing individuals and/or their families, providers, and other stakeholders; and  by visiting sites, including individuals’ homes, community-based residential, day and other
programs.
During this seventh review period, the Independent Reviewer prioritized the following areas review and evaluation. Seven independent consultants were retained to complete studies of:
 Individual Services Review: Discharge and Transition from Training Centers  Crisis Services for Adults  Crisis Services for Children  Transportation Services  Regional Support Teams  Quality and Risk Management  Mortality Review
For the seventh time, the Independent Reviewer utilized his Individual Services Review study process and Monitoring Questionnaire to evaluate the status of services for a sample of individuals. By utilizing the same questions over several review periods, for different subgroups and in different geographic areas, the Independent Reviewer identified findings that include positive outcomes, areas of concern and trends. By reviewing these findings, the Independent Reviewer has identified and reported themes. For this report, the Individual Services Review study was focused on the services for individuals who transitioned from Virginia’s Training Centers. Twenty-four individuals were selected randomly from the forty-two individuals who transitioned to live in community homes located in either Region I (northwestern/central Virginia) or Region II (northern Virginia) during Fiscal Year 2015. The random selection of this sample size provides 90% confidence that the findings of the study can be generalized to the group of forty-two.
The studies completed by the Independent Reviewer’s consultants for this report each involved reviewing the status of the Commonwealth’s compliance with specific prioritized provisions that were targeted for review and evaluation. The Independent Reviewer utilized a process to ensure that information would be gathered that indicates the Commonwealth’s achievements in establishing the requisite staff, policy, program and process elements. The Independent Reviewer shared the planned scope, methodology, site visits, document review, and interviews with the Commonwealth and requested its suggested refinements. The Independent Reviewer also asked the Commonwealth to provide the measurable outcomes that it has established and to identify the records that it maintains to demonstrate proper implementation of the provisions that are the focus of each study.

	
  

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The Independent Reviewer’s consultants then reviewed the status of program development to ascertain whether the Commonwealth’s initiatives had been implemented sufficiently for measurable results to be evident. The consultants conducted interviews with selected officials, staff at the state and local levels, workgroup members, providers, families of individuals served and other stakeholders. The primary focus of previous studies, and the Independent Reviewer’s subsequent determinations of compliance ratings,, has been whether the Commonwealth has complied with the quantitative measures of compliance. During this review period, however, the studies of Crisis Services For Adults and Transportation Services focused on whether the qualitative measures of compliance have been achieved. To determine the ratings of compliance, the Independent Reviewer considered information provided prior to November 1, 2015. This included the findings and conclusions from the consultant’s topical studies, the Individual Services Review study, and many other services. The Independent Reviewer’s compliance ratings are best understood by reviewing the comments in the Summary of Compliance table, the Findings section of this report, and the consultant reports included in the Appendix.
The provisions in the Discharge Planning and Transition and the Quality and Risk Management sections of the Agreement were closely studied during the fifth reporting period. The compliance ratings for many provisions in these sections were not expected to change substantially during the sixth review period so the Independent Reviewer did not study or rate them. They have been studied and are rated in this report.
Finally, as required, the Independent Reviewer submitted this Report to the Parties in draft form for their comments. The Independent Reviewer will consider any comments before finalizing and submitting this seventh Report to the Court.

B. Compliance Findings
1. Providing Home and Community Based Services (HCBS) Waivers The U.S. Center for Medicaid Services operates the Home and Community-Based 1915(c) waiver program. The funding from the Home and Community-Based Services (HCBS) waiver provides support services in the community as an alternative to receiving services in an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID). Individuals with ID/DD may receive HCBS waiver funded services once they are awarded a waiver slot.

Since Fiscal Year 2012, the first year the Commonwealth provided funding to implement the provisions of the Settlement Agreement, a total of 2455 new waiver slots have been created under the Agreement; 400 more than were required. The Commonwealth created 450 waiver slots in FY 2016, sixty-five more than the minimum required. It created these waiver slots not only to enable individuals with IDD to receive waiver-funded services in the community, so they are able to continue to live in their communities, but also to transition children and adults from living in nursing facilities and large ICFs. Training Centers are large state-operated ICFs.
The Independent Reviewer’s Individual Review Studies have consistently found that waiver slots provide individuals and families with critical supports that significantly improve their quality of life. For those individuals previously on wait lists, their access to waiver-funded services is vital to their good health, safety, and prevention of institutionalization. While these new slots have been created and the census of the Training Centers has declined, the number of individuals on Virginia’s wait lists has continued to increase significantly, by more than an additional thousand individuals in each

	
  

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of the past four years. The widely publicized increase in the incidence of Autism Spectrum Disorders in recent decades has been, and will continue to be, a major influence. The chart below shows that between June 30, 2011 and October 23, 2015, there has been a very significant overall increase in the number of individuals with ID/DD, which has increased by 6,284 (39.5%), and in the number of individuals on the wait lists, which has increased by 4,457 (77.1%).

TABLE 1 Increase in the Number of Individuals with ID/DD

# Individuals

June 30,2011 October 23,2015

#
change

%
change

Waiver Slots(1)
# living in the community

9,035

11,490

+2,455

+27.2%

Wait Lists
living in the community

5,783

10,240 (5)

+4,457 + 77.1%

Training Centers
# living in
Total number of Individuals with ID/DD (2) (4)

1,084
15,902

455
22,185

-628 (3)
+6,283

- 58%
+39.5%

In Fiscal Year 2012, the Commonwealth began funding initiatives that it would commit to accomplish when it settled the Agreement on January 26, 2012, and when the Court approved the Agreement on August 23, 2012. Between July 1, 2011 and October 23, 2015, the Commonwealth created 1900 new waiver slots to provide community services for individuals on Virginia’s wait lists and for children living in nursing facilities and large ICFs. During that same period, 6,357 individuals have been added to the wait lists. This has resulted in the wait lists growing by 4,457 people. After creating the new waiver slots, the number of individuals on the wait lists still has increased by more than a thousand individuals each year. The Commonwealth also created waiver slots to transition individuals from Training Centers.
The Commonwealth is in compliance with Section III.C.1.a.i.- iii.
_
(1) All waiver slots are not being used on any specific dates. Slots are held in reserve for emergencies and for individuals who will transition from Training Centers, Nursing Facilities, and large ICFs.
(2) Total “individuals with ID/DD”= the sum of waiver slots, Training Center residents, and individuals on wait lists. (3) The decline in the census at the Training Centers is greater than the number of individuals who moved to live in
community settings. The two primary reasons for the difference is that 105 residents of Training Centers on June 30, 2011, had died by October 23,2015, and some were discharged to skilled nursing facilities (4) All individuals have a level of need that makes them eligible for institutional care. (5) More than a third of these individuals are receiving some services through either the EDCD or Tech waivers.

	
  

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2. Transition of Children from Nursing Facilities and Large ICF’s For children with ID and DD, other than ID, who live in nursing facilities and the largest ICFs, DBHDS plans to initiate its process to facilitate their transitions to community homes in March 2016. The Commonwealth reports that it prioritized the waiver slots and that slots are currently available for these children. As reported previously, the Commonwealth has prioritized diverting children to alternative community-based services that address their needs and away from possible admission to a nursing facility. If a child is admitted to a nursing facility, the specific purpose of the admission will be identified and the Commonwealth will conduct 90-day reviews. The purpose of the review will be to determine whether the individual continues to need skilled nursing services in a hospital-like setting and to offer home- and community-based services alternatives.
By first focusing on diverting possible institutional admissions to needed community-based services, the Commonwealth has learned lessons that will improve its effective implementation of the second phase to transition individuals who have been living in nursing facilities. The Commonwealth plans to establish the baseline number and to begin transitions of children living in nursing facilities in April 2016. The Commonwealth reports that it has restructured the PASSR II screening process that is required for any individual with ID/DD who has been referred for admission to a nursing facility. DBHDS reports that it has significantly improved its ability to identify, develop and provide alternative community-based services for adults and children who have been referred for admission to nursing facilities. The Commonwealth has not yet planned its initiative to identify and determine the needs of children and adults with ID/DD who are referred to or currently living in the large private ICFs, or to offer alternative services to these individuals in settings that will not separate them from their schools, families and communities.
The Commonwealth decided to begin implementation of its plan to transition children who live in nursing facilities near the end of the next review period. The Agreement requires that the transition plans for children living in institutions lead to quality services provided in the most integrated setting appropriate to meet their needs in all domains of their lives. It is the intent of the Agreement that individuals with HCBS waiver slots will be offered available and accessible community-based supports that are designed to promote skill development, self-sufficiency and community integration and that are of good quality.
The Individual Services Review study conducted during the eighth review period (December 7, 2015 - April 6, 2016) will focus on the adults and children with ID and DD, other than ID, who reside in nursing homes and the large ICFs.
Conclusion: The Commonwealth created 1500 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who were/are on the urgent waitlist for a waiver during FY 2012 – 2016. This is 250 more waiver slots than the required minimum number of 1250. It created 325 slots in FY 2016, 50 more waivers than required. The Commonwealth created 400 waiver slots between FY 2012 and FY 2016 for individuals with DD, other than ID; 150 more waivers than the minimum required number of 250 waivers. The Commonwealth has met the quantitative requirements for these provisions. It has not, however, developed or implemented a plan to transition individuals under 22 years of age from large ICFs and has not implemented its transition plans for children living in nursing facilities.
The Commonwealth is in non-compliance with Section III.C.1.b.i.-iii. and III.C.1.c.i.-iii.

	
  

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3. Discharge Planning and Transition from Training Centers Overall, the discharge planning and transition process to support individuals who move from the Training Centers has been effectively implemented and well documented. This process and the provision of waiver slots have enabled 477 individuals to move from Training Centers to community-based living between October 11, 2011 and October 26, 2015. As of that latter date, 456 individuals were living in the Training Centers.
During the seventh review period, the Independent Reviewer’s Individual Service Review Study focused exclusively on forty-two individuals who moved from the Training Centers, as did similar studies during the first, third, and fifth review periods. In total, the Independent Reviewer’s individual services review teams have carefully studied the discharge and transition process and the community based-services for 114 individuals who transitioned from Training Centers. (This sample size was selected to provide a 90% confidence level and a 10% confidence interval: it, therefore, offered a sufficient degree of confidence that findings can be generalized to the 194 former residents of Training Centers who moved to community settings in all five Regions.) Since more individuals (227) moved from the Southside Training Center, most of these individual service reviews occurred in Regions IV (greater Capitol area) and Region V (tidewater). During this review period, the study focused on twenty-four who were randomly selected from forty-two residents of Training Centers who moved between mid-July 2014 and mid-June 2015 to live in Virginia’s Health Planning Regions I (northwestern/central) or II (northern).
Although there were individual exceptions, the study of services for individuals who transitioned from Training Centers to community settings found the following themes and examples of positive outcomes and areas of concern:
• The individuals’ new community homes were clean and well maintained. Homes were accessible based on the individuals’ needs for environmental modifications. Needed adaptive equipment and supplies were available. The DBHDS Licensing Specialists had recently inspected all homes.
• Fourteen (58.3%) of the twenty-four individuals transitioned to congregate settings of five or more individuals or to settings with residential programs clustered together. Some congregate group homes had the appearance of a medical facility or business, not that of a typical home. Arrangements typical of institutions continued for many, such as: a central nurses’ station enclosed in plexi-glass; day programs in their own or other’s residential settings; the use of a shower trolley rather than the available state-of-the-art free standing accessible walk- or roll-in bath tub; standing orders for PRN medications rather than individualized parameters; and maintenance of pureed diets for individuals who drank clear liquids without apparent difficulty.
• Referrals to the Regional Support Team to address and resolve barriers to living in more integrated settings occurred too late to have any chance of success. The Personal Support Team delayed referrals for months after it presented a list of primarily larger congregate homes to the Authorized Representative. Referrals occurred with too little time for the RST to act. Referrals occurred after a larger congregate home was selected, after transition planning with the residential provider, after transition visits were completed and after the move date was scheduled.

	
  

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• The individuals lacked community integration opportunities and did not have individual support plans with goals that promoted the development of skills to increase selfsufficiency. None of the individuals were offered integrated day programs or had typical days that involved integrated activities.
• The discharge planning and transition process was well organized and well documented. The selected residential providers were involved in the discharge planning process. The residential provider staffs were trained in the individuals’ support plan protocols. The Post-Move Monitor visits occurred. Transition planning, provider training and post-move monitoring, however, did not ensure that all essential needs were addressed. Three individuals were not referred to the RCSC dentist, as expected in their discharge plans, until the individual review nurse consultant raised the issue during a site visit months later.
• There were many positive healthcare process outcomes for virtually all the individuals studied. All individuals had a physical within a year and the Primary Care Physicians’ recommendations were implemented within the prescribed time frames.
• The individuals made successful transitions and had settled-in well into their new home environments. After living in their new homes, there were several examples of individuals with previously documented histories of problematic behaviors experiencing significantly fewer and less severe incidents of shorter duration, than had been expected at the time of discharge from the Training Center.
The themes identified from the findings from the study of the individuals who transitioned from the Training Centers are consistent with the themes identified in earlier studies.
The demographic information of the individuals studied during the third, fifth and seventh periods indicate that of every twenty individuals who moved:
 eleven (56.3%) were males,  fifteen (75%) were age 51 or older,  eight (40%) used wheel chairs for all mobility,  thirteen (67.5%) used gestures as their highest form of communication,  eighteen (88.8%) moved to congregate residences, and  seventeen (83.8%) had a parent or sibling as Authorized Representative.
The Commonwealth had previously achieved, and in the seventh period maintained, a rating of Compliance with most of the Discharge Planning and Transition provisions. As exemplified by the themes described above and by the tables (found in Appendix A) resulting from this period’s Individual Services Review study, consistent compliance with the provisions of the Agreement has resulted in many positive outcomes for the transitioned individuals. Significant areas of concern remain. The Independent Reviewer has previously reported these concerns and made recommendations for improvement. Most areas of concern involve the continued predominance of larger congregate residential and day settings, the lack of day opportunities for individuals with

	
  

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intensive medical and behavioral needs, as well as the lack of community integration opportunities and habilitation. The Commonwealth reports broad initiatives to address these areas of concern:
 the planned reform of its HCBS waiver program for ID/DD;  the DBHDS effort to reorganize case management and individual service planning; and  the actions proposed for provider development and capacity building.
The Independent Reviewer has provided the Individual Review reports to the Commonwealth so that it will review the issues identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with the individual’s residential service provider and case manager and, by March 30, 2015, to provide updates on actions taken and the results in regard to the issues identified.
Selected tables with the Individual Service Review study’s findings are attached (Appendix A). The Independent Reviewer has separated findings from the study into tables focusing on positive outcomes and areas of concern. The Independent Reviewer cites findings from the seventh period’s Individual Services Review Study as well as patterns from multiple independent consultant studies in the explanatory comments in the Summary of Compliance table.
During the ninth review period, April – October 2016, the Independent Reviewer will again prioritize the Individual Review Study to focus exclusively on the services and supports of individuals who have transitioned from Training Centers.
4. Regional Support Teams The Independent Reviewer previously reported that the Commonwealth had created five Regional Support Teams (RSTs) and that they were composed of professionals with the required expertise. Community Integration Manager (CIM) positions are found at each of the Training Centers and Community Resource Consultants (CRCs) are located in each Region; the CIMs and CRCs are members of the RST in their respective Regions. The RSTs review cases that are referred and work to resolve barriers, including those that prevent individuals from moving to more integrated settings.
During this review period, the Independent Reviewer’s consultant reviewed and confirmed that the Commonwealth utilizes an appraisal process for the Community Resource Consultants; the process includes evaluating the CRC’s performance of the functions and responsibilities required by the Agreement. The evaluation correctly describes the core responsibilities. However, one area is missing. The DBHDS performance appraisal does not include responsibility for “‘ongoing planning and development of community-based services.”
The Independent Reviewer’s consultant found that the Regional Support Team’s referral, barrier resolution and quality improvement processes were still in the development phase. Some early challenges have been resolved. Other problems continue.
In its early phases of development, the RST focused on ensuring “informed choice” and on effective processing of referrals. It has now developed better systems, including how to generate information for future quality improvement. For example, its survey of RST members in May 2015 yielded useful information that was used to make some significant changes to policy and practice. These included such new practices as creating an urgent meeting, case manager presentations, and providing referral

	
  

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information before meetings. The RST policy now requires that it survey RST members every eighteen months. The RST’s next survey should occur in the Fall of 2016.
The consultant found that the reliability of referrals from CSB case managers, and the timeliness and thoroughness when submitted to CRCs, has been inconsistent. This appears to be improving for many individuals living in the community, but not for individuals transitioning from the Training Centers or who need emergency placements. For individuals planning to transition from the Training Centers to larger congregate settings, referrals to the RST confirmed that only a home of five or more was selected; the referral was submitted after a transition plan had been developed and after the individual completed transition visits. As a result, by the time a referral occurred, there was not sufficient time to review and resolve barriers. DBHDS has improved its ability to secure needed community-based services for individuals with very intense needs by developing its Critical and Complex Consultation Team. It helps to address and to resolve barriers early in the process. When referrals are not submitted to the RSTs when required or are submitted too late for the RSTs to effectively resolve barriers, the process cannot and does not achieve its intended purpose.
The Commonwealth’s Quality Improvement processes for the RSTs have evolved. The RSTs devoted initial attention to their processes to ensure “informed choice” and to process referrals effectively. This attention led to improvement in these processes. The RST’s ability to resolve barriers related to the absence of needed resources in local community-based services is its greatest continuing challenge.
The CRCs and the RSTs now are actively involved with individuals who are referred to skilled nursing facilities. Their involvement has contributed to securing alternative community-based services. As a result, skilled nursing facilities are used primarily for short-term convalescent or acute care activities.
CRCs reported positive relationships with the RSTs, including availability of the RSTs to consult with the CRC at any time. Interviews with RST members suggest that most RSTs function as effective collaborative entities with the CRC. RST members report regular networking within the Team to find innovative barrier resolutions for some individual cases.
The quality of the RST data collection and analysis system to determine recommendations and actions to elevate quality and effectiveness is improving. The RST now portrays trends and patterns discovered in barrier identification and case resolutions in the Provider Development Sections of the RST Quarterly Reports and the annual Aggregate RST Report. DBHDS has added resources to support the RSTs that should lead to further improvements in the quality of its data collection and analysis system. For example, the RST Quarterly Reports are beginning to illustrate referral patterns. The data the RST collected in 2013-2014 may have been undercounted or under reported, so its current trending analyses may not be valid. The RSTs have identified, tentatively, that when waiver slots allocations occur at the end and beginning of fiscal year, the number of referrals are higher. If the RSTs confirm this pattern, then it may be able to modify processes to enhance the timeliness of referrals to the RST. RSTs have recently begun to classify cases referred to RSTs (success, pending, critical-complex, etc.). These steps are on the right track and will permit ongoing evaluation and quality improvements.

	
  

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Conclusion: RST members were unanimous in reporting that their initial effectiveness in resolving barriers in individual cases was poor. With changes to the RST process in the last year, some improvement has been noted, except in cases that are not referred or that are submitted with too little time to act. Barriers that continue to be confronted by RSTs include the failure to receive timely referrals, late involvement in the decision-making process about placement settings, the scarcity of residential settings of four or fewer people and the gaps in the availability of community supports (medical, behavioral, etc.). The Commonwealth’s strategy to implement a redesigned Waiver will support CRC efforts on provider development, as well as being used by local officials and advocates to recruit new vendors or convince existing providers to expand.
The Commonwealth is in compliance with Sections III.E.1 and 3, IV.B.14, and IV.D.1. The Commonwealth is in non-compliance with Sections III.D.6, III.E.2, IV.B.15, and IV.D.3
5. Crisis services Crisis services are a cornerstone in a community-based services system that prevents the unnecessary institutionalization. In the Agreement, the Parties agreed that a statewide crisis system would be available for all Virginians with ID and DD as of June 30, 2012. The Independent Reviewer reported previously that the Commonwealth had complied with provisions requiring the development and operation of the structural elements of statewide crisis services for adults. The Independent Reviewer raised serious questions about gaps, quality, and effectiveness in his June 6, 2015 Report to the Court. The Independent Reviewed initiated a study during this review period to determine whether the Commonwealth’s adult crisis system performed adequately and as expected.
The Commonwealth decided to develop crisis services for children separately from these services for adults. This decision led to a substantial delay of at least four years. By April 2015, the Commonwealth had begun to implement a statewide crisis service system for children. Due to Regional differences in resources, demographics and organizational relationships, the Commonwealth decided that Regions would develop unique plans to create crisis services for children. All Regions, however, were and will be expected to meet statewide standards and to achieve core milestone timelines. Funds had previously been allocated to plan and begin development of children’s crisis services. As of July 1, 2015, DBHDS expected all Regions to be operating three initial program elements: a single point of entry, on-site crisis response and data collection. Additional appropriated funds were available, on July 1, 2015, to further develop this system and to achieve future milestones. The timeline projected that all statewide elements would be operating by December 2015 and that statewide quality and effectiveness standards would be achieved by December 2016. This would be four and a half years after these services were due.
During this review period, the Independent Reviewer engaged an expert consultant to complete a review of the status of crisis services development for children and an in-depth study of the quality and effectiveness of crisis services for adults with ID and DD, other than ID, who had experienced psychiatric hospitalization. The Independent Reviewer has attached the consultant’s report on the quality of the adult crisis services and the status of the development of the children’s crisis services is attached (Appendix B). The report includes a detailed description of the review process, the information gathered, findings, analysis, conclusions and recommendations. The consultant’s study included a review of twenty randomly selected individuals who are affiliated with either Region I (northwestern and central) or Region IV (greater Capitol district). Ten of the individuals utilized the adult crisis services and ten did not. In this report all determinations of compliance with the crisis services provisions are based only on services that are documented for adults with ID.

	
  

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A. Review Of The Status Of Crisis Services To Serve Children And Adolescents
DBHDS completed the program standards for children’s crisis services that it had drafted during the previous review period. While each Region developed a plan with unique features, DBHDS expected each to meet statewide standards and to achieve milestones by certain dates on a timeline. The documents provided by the Commonwealth did not clarify whether the REACH standards and “data dictionary” for adult crisis services also apply to children’s crisis services. Some of the Regional Children’s Crisis Services are part of REACH and some of are not. The REACH standards for data collection and for training are not considered in the analysis of children’s crisis services program standards. The attached consultant report (Appendix C) includes descriptions of the standards, the timeline milestones, the status of each Region’s development, and unique Regional crisis program features.
DBHDS has developed statewide Children’s Developmental Disability Crisis Services Program Standards for many of the requirements of the Agreement, including:
 crisis services for all children and adolescents with a diagnosis of ID or DD, other than ID;  single point of entry;  response time and availability of mobile crisis teams;  training and outreach  crisis education and prevention plans for each child;  minimum prevention services requirements, and  data collection.
The DBHDS children’s standards do not include some provisions and others are not complete. For example:
 requirements for out-of-home crisis stabilization programs are not included;  data collection does not include the information necessary to determine whether the
provisions are properly implemented (e.g. the type of service provided, the use of out-ofhome respite, admissions to and the length of stay in psychiatric facilities, or information about the provision of out-of-home crisis stabilization services);  training topics do not include training for CSB Emergency Services, person-centered planning, transitions from in-patient settings, cross-system comprehensive planning, and training for ID and DD case managers.

As noted above, the DBHDS standards do not include requirements to provide out-of-home crisis stabilization programs for children. It is laudable that DBHDS has stated a goal of supporting children in their homes. The Agreement requires providing in-home crisis services for that purpose. The Agreement also requires, however, that the Commonwealth provide crisis stabilization programs that offer out-of home crisis stabilization services as an alternative, a “last option,” to avoid institutionalization or hospitalization. The Regional plans mention out-of-home options, but not whether they are to be in community-based homes. Three Regions include plans to provide crisis stabilization services on the grounds of a former institution and in a hospital. The Independent Reviewer has determined that such locations would be in non-compliance.
The DBHDS statewide program standards for crisis services for children, as written, are not complete and are not all inclusive of the Agreement’s requirements. The Commonwealth will not achieve compliance until its standards include all of the crisis services provisions of the Agreement.

	
  

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While planning the development of their crisis services for children, each Region completed a needs assessment. The Regions used data sources that varied considerably, so it is not possible to estimate the number of children who will need access to these services. Four of the Regions project having a single “Navigator.” The Regions expect the individual who fills the Navigator role to provide outreach, to be involved with daily triage calls, to discuss crisis plans, as well as to follow-up monthly for six months with each child who is referred for crisis services throughout the Region. The Independent Reviewer is concerned whether any one individual will be able to fulfill all these responsibilities. The Commonwealth has reported that it will monitor whether the Regions have allocated sufficient human resources to effectively fulfill the assigned responsibilities.
Four of the five Regions created a single point of entry during this review period, as expected. The Commonwealth’s quarterly report did not include first quarter data three months after the data collection system for the children’s crisis services for was to be in place. These data are necessary to determine the Regions current status and whether each Region is able to respond timely and will be able to meet the timely response standard for 60% of crisis intervention calls, as of December 2015. The Commonwealth’s current timeline target is to achieve compliance with quality standards for children’s crisis services by December 2016. Although it is not an indication that response times are not meeting the standard, the Independent Reviewer is concerned that data system development, one of the first milestones, appears to be behind schedule.
B. Outreach to the DD Community
DBHDS reports that it is implementing a plan to reach out to individuals with DD, other than ID. DBHDS reports that it distributes information about DD, other than ID, by offering various trainings and by distributing brochures. For example, DBHDS offers trainings to DD case managers that includes crisis services. The required crisis services, however, are for all individuals with DD, not only those on waiting lists or with a case manager. Details of the Commonwealth’s efforts are included in the consultant’s report (Appendix B). In focus groups in Region I and IV, workers in the DD field expressed concerns about the lack of outreach. DD case managers were invited but did not attend, possibly because the rate paid under the existing HCBS waiver for DD case management is substantially less than for ID case managers; therefore, attending the focus group is not a billable activity.
The Independent Reviewer has previously reported concerns that there has not been sufficient outreach to individuals with DD, other than ID, and their families about the availability of, and contact information for, crisis services. The Independent Reviewer cannot determine compliance with the provision of crisis services for adults with DD, other than ID, because the Commonwealth does not maintain sufficient data and records that demonstrate that the provisions of the crisis services are being properly implemented for them. During this period, REACH documented that only eight of the 323 referrals (i.e. one of every forty) it received were for individuals with DD, other than ID. No information was provided that trainings about REACH included DD case managers.
The Commonwealth is in non-compliance with Section III.C.6i, 6.a.ii, and 6.a.iii.
DBHDS does not yet have the elements of a statewide crisis system in place for children who experience a crisis; nor can DBHDS ensure that it is reaching many individuals with DD, other than ID, who need and may benefit from the crisis system.

	
  

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At the current time, compliance ratings for the remainder of the crisis services provisions are based only on services provided to adults with ID. The quality and effectiveness concerns with crisis services for adults are described below.
C. REACH Crisis Services For Adults
DBHDS issued revised Crisis Services (i.e. REACH) Program Standards on August 1, 2015. These include improvements that address systemic concerns about whether crisis services were available and effective for adults with ID and DD, other than ID. Individuals who do not have a case manager or a discharge plan and those with significant physical care needs may no longer be excluded from receiving crisis stabilization services. The new requirements will increase the competencies and expertise of staff providing crisis prevention and stabilization support.
The DBHDS crisis services standards for adults now require:  crisis services staff to have direct experience with individuals with ID or DD, college degrees, and credentials and licensing appropriate to their roles;  mobile crisis services staff to join the CSB ES staff for all on-site assessments;  provision of a Crisis Education Prevention Plan (CEPP) and preventive follow up services to individuals accepted; and  crisis staff to follow all individuals admitted to psychiatric hospitals.
D. Utilizing CSB Emergency Service and Existing CSB Hotlines Which Operate 24/7 All Regions utilize CSB hotlines and operating twenty-four hours per day, seven days per week.
E. Training of CSB Emergency Services staff, case managers and other stakeholders The Regions continue to train CSB Emergency Services staff and report on this quarterly. During the reporting period, twenty-four additional CSB Emergency Services staff received training. REACH reported training a total of 1,860 individuals across the five regions. Trainings were provided for 396 CSB case managers and 125 hospital staff. Training materials are now available on the DBHDS website and DBHDS requires new DD Case managers to be trained.
REACH teams continue to train police officers through the Crisis Intervention Training (CIT) program. During the two quarter 332 police received training. This is an increase over the 224 law enforcement staff trained during the previous reporting period.
The Commonwealth remains in compliance with Section III.C.6.b.i.B.and III.C.6.b.ii.C.
F. Qualitative Review of Crisis Services to Adults with ID/DD At the request of Independent Reviewer, the consultant randomly selected twenty individuals who experienced psychiatric hospitalizations and were affiliated with Region I (northwestern/central) or Region IV (greater Capitol area). Ten individuals had received REACH crisis services; ten had not. The individual reviews included extensive document review and interviews with involved case managers, discharge planners, behavior specialists, residential providers and family members. The consultant held in-person meetings with the REACH crisis services teams in both Regions and convened two focus group to gather information and examples of experiences with REACH crisis services. Each focus group included a diverse group of participants who had experiences with crisis services. The information gathered through these sources was consistent with the themes derived

	
  

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from the individual reviews. Systemic strengths and areas of concern with crisis services for adults are described in the themes listed below.
REACH crisis services staff generally accompanied CSB Emergency Services staff to pre-screen crisis requests. DBHDS now requires that this occur.
Case managers and residential providers deemed in-home mobile crisis services as not effective in a majority of cases. The interventions and techniques offered were already in place or had been tried previously. More expertise may be required for effective support of individuals with challenging behaviors who are at risk of institutionalization or hospitalization.
Out-of-home crisis stabilization services sometimes can successfully divert an individual from a psychiatric hospitalization and can reduce lengths of stay. The success of the crisis stabilization programs seems to result from providing a comprehensive assessment, a therapeutic milieu and structured activities that participants usually enjoy.
The consultant did not find evidence that REACH teams assisted individuals’ support teams to identify and secure the resources needed such as, providers with expertise in co-occurring conditions; behavioral supports; counseling; and training of law enforcement personnel with whom they regularly interact as a result of elopement or aggression. DBHDS intends to address the lack of these services, in part, through the restructuring of the waiver.
Crisis Education and Prevention Plans (CEPP) were not provided for many of the individuals studied. As of August 2015, DBHDS now requires that CEPPs be provided for individuals served by REACH. These individuals were admitted before DBHDS required CEPPs.
Residential Providers discharged individuals without a discharge plan. Case managers did not assemble the individual support team and the residential provider to identify what was needed, to determine a workable plan to assist the individual to access needed services, or to learn from experience to better plan for the individual in the future.
The consultant did not find evidence of effective discharge planning when individuals were released from hospitals or jails.
REACH provided psychiatric supports for all individuals reviewed who received REACH crisis services in both Regions.
Case managers were involved with all individuals reviewed who received REACH services. Some were very involved.
Additional information is included in Appendix C. The Independent Reviewer has submitted the summary notes of each individual review to the Court and to the Parties “under seal” to protect the confidentiality of the individuals and families, as required by Section VI.C.
The Commonwealth is in non-compliance with Section 6.b.ii.A.

	
  

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Conclusion: The Commonwealth has developed a comprehensive training program and a process to reinforce learning through supervision, team meeting discussions and peer review. The training that REACH provides has not resulted, however, in good quality or effective and timely assessment, in-home supports and treatment. The Commonwealth reports that among other quality improvement initiatives, it continues to review and revise the training for crisis services staff regarding the provision of effective interventions.

The Commonwealth is in non-compliance with Section 6.b.ii.B.

The data in Table 4 “Crisis Education and Prevention Plans and Crisis Prevention (CEPP) Follow-up” indicate that REACH programs are not consistently developing CEPPs or providing good quality strategies and follow-up that effectively prevent recurrences of crises. It is very positive that DBHDS now requires REACH staff to complete CEPPs for all individuals referred. As a result, REACH programs significantly improved follow-up during the second half of the review period.

Table 2

Crisis Education and Prevention Plans and Crisis Prevention Follow-up

Quarter

Individuals

CEPP

Percentage Follow-up Percentage

done

done

done

done

QIV-15

329

188

57%

34

10%

QI-16

299

189

63%

273

91%

Overall Compliance

60%

49%

G. Admissions to Psychiatric Facilities

DBHDS programs reported that 167 individuals were admitted to psychiatric facilities. If correct, this represents a decrease from the 216 admissions that DBHDS reported during the prior reporting period. These data, however, do not appear to be reliable. The data reported were not consistent across Regions. Three Regions under report while two Regions over report. REACH is not aware of the disposition of all individuals who were admitted to psychiatric facilities. The Commonwealth has committed to offering alternatives to institutionalization or hospitalization. It reports that it has not yet developed a mechanism so that it knows when individuals with ID/DD are admitted to private psychiatric facilities or their disposition when discharged.

H. Mobile Crisis Services

REACH mobile crisis teams are available around the clock and respond at off-hours. Disposition data indicate that REACH served 495 individuals and received 323 new referrals. This is an increase in referrals from 272 individuals during the previous reporting period. Case Managers make the majority of the referrals, followed by families. On average, most Regions provided individuals with more than three days of in-home support services.

The Commonwealth is in compliance with Sections III.C.6.b.ii.D. and E.

	
  

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I. Crisis response on-site within two hours and within one hour on average in urban areas
The Commonwealth is required to respond on-site to each crisis call within two hours or to create two or more mobile crisis teams to achieve this measurable standard. Compliance is achieved when violations are incidental and not systemic. The Commonwealth did not create two teams in each region as the Agreement required. Instead, it added staff to existing teams. The Commonwealth did continue to address the systemic issues that delayed responses and to improve on-site response times. For the most recent two quarters, between April 1, 2015 and September 30, 2015, the REACH Teams responded to 434 (94%) of 461 crisis calls within two hours. REACH exceeded the two hour standard with twenty-seven (6%) of the 461 responses. The amount of time that responses exceeded the two-hour standard was generally minor. The two primary reasons were usual weather or traffic.
The improved response times are important and significant. They are important to the individuals and families in crisis. They are significant because the improved response times indicate that the mobile crisis teams have substantially resolved the systemic issues that have delayed past responses. The REACH mobile crisis teams should continue their efforts to improve and to demonstrate that it can sustain timely responses to all crisis calls. "REACH achieved the two hour response standard in 434 (94%) of the 461 responses. Of the twenty-seven responses that exceeded the standard most exceeded by only a minor amount of time and there did not appear to be one or two systemic causes of the delays."
The Commonwealth came into compliance with the provision that requires respond on-site to crises within two hours and with the standards to respond in urban areas, within one hour, and in rural areas, within two hours, as measured by the average annual response time. (See Table 5, in Appendix C)
The Commonwealth remains in compliance with Sections III.C.6.b.ii.G., and H.
J. Crisis Stabilization Programs
All Regions have a crisis stabilization program that offers short-term out-of-home emergency and planned respite as alternatives to institutionalization or hospitalization for individuals who may otherwise need inpatient stabilization services. Four of the five Regions’ crisis stabilization programs have no more than six beds, as required. Region III, to address unmet need, increased its home to seven beds and, therefore, is no longer in compliance. During this review period, DBHDS revised its REACH policies to allow crisis stabilization services for individuals without a case manager or a discharge plan. This change will help more individuals avoid admissions to psychiatric hospitals. The policy change likely contributed to the average length of stay increasing to 20-24 days, to waiting lists growing, and to reported prolonged stays of more than 30 days. The Commonwealth reports that it monitors the frequency of prolonged stays. This systemic problem occurs when individuals’ residential providers discharge them without another home placement. Prolonged stays in crisis stabilization homes are reported to undermine the quality outcomes that are otherwise reported. An increase in prolonged stays, beyond the rare exception, would result in a determination of noncompliance.
Four of the five Regions’ crisis stabilization programs remain community-based. DBHDS reported that Region IV “broke ground” in October 2015 to build a new crisis stabilization home and to

	
  

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complete its plan to move its existing program from its temporary location on the grounds of a former institution. The Pathways Program at SWVTC ceased providing crisis stabilization during this period.
The Commonwealth is in compliance with Sections III.C.6.b.iii.A, B, and F. It is in substantial compliance with Sections III.C.6.b.iii.D and E. and it is in non-compliance with Sections III.C.6.b.iii.G.
The Commonwealth is in substantial compliance with III.C.6.b.iii.D and E. because four of five Regions are in full compliance with each provision. Region IV is moving forward with its plan to come into compliance. Region III reports that its non-compliance is temporary and that it has a plan to return to compliance.
The Agreement requires the Commonwealth to determine whether it is necessary to develop an additional crisis stabilization program to meet the needs of the target population for crisis stabilization services in a Region. Although the Commonwealth disputes this conclusion, there appears to be clear and compelling evidence that additional crisis stabilization capacity is needed. One Region has increased its bed capacity beyond six beds to address unmet need knowing that it would move into non-compliance with the Agreement. Waiting lists exist in other Regions. Individuals have been unable to avoid psychiatric hospitalization, in part, due to crisis stabilization beds not being available. Case managers report that they frequently do not make referrals for individuals who need crisis stabilization because beds are rarely available.
The crisis services program elements are in place for adults with ID. The REACH teams are responding to crises directly more of the time. DBHDS has put in place the program elements of mobile response, in-home supports, crisis stabilization programs, prevention planning and transition from hospitals. The REACH programs, however, need to improve the systemic concerns with its mobile in-home supports. Evidence of these systemic concerns come from the service review of ten individuals who experienced multiple hospitalizations and the reports of case managers, residential providers, and behaviorists involved in many other crisis situations. The concerns identified during the seventh period also align with the concerns identified by independent consultants who completed a review for the DOJ during the sixth review period.
REACH is one part of the system that provides a variety of temporary crisis supports. The Commonwealth needs to continue to implement systemic improvements to support individuals to help them avoid experiencing multiple and unnecessary hospitalizations. There is not sufficient current community capacity to provide the essential complements that REACH crisis services require:
 well trained residential and day providers with expertise in mental health and behavioral supports;
 the availability of mental health community supports;  the availability of behavioral support specialists;  psychiatric settings with expertise in ID and DD; and  effective discharge planning for individuals who are hospitalized or incarcerated.
During the ninth review period, the Independent Reviewer will study whether the Pathways Program has been replaced with off-site crisis stabilization programs with sufficient capacity to effectively meet the needs of the children and adults with ID/DD in that Region.

	
  

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6. Integrated Day Opportunities and Supported Employment
A. Integrated Day Opportunities The Commonwealth’s community-based system of day services is characterized by individuals with ID/DD being provided day support services in large congregate centers. The Commonwealth recognizes that its existing HCBS waivers have service definitions and a rate structure that supported this type of service in larger congregate centers rather than providing more integrated day opportunities. The Commonwealth developed the required plan for Supported Employment, but did not develop an adequate or complete plan to “develop community volunteer and community recreation and other integrated day activities.” The Independent Reviewer has previously reported that the Commonwealth’s initial planning efforts for integrated day activities had been inadequate and incomplete. For more than two years, the Commonwealth has recognized that its HCBS waiver must be redesigned to bring about the changes required by the Agreement. While the Commonwealth has implemented a long-term multi-phased effort to redesign its HCBS waivers, its efforts to make substantial changes in its system of congregated day services has largely been on hold. Although the General Assembly did not approve the requested changes during its session in 2015, the administration has since devoted much greater effort to explain why the existing waivers require the redesign of more integrated services called for by the Settlement Agreement. In fact, the Commonwealth’s ability to comply with the Center for Medicaid Services’ Final Rule also would likely require redesign of its HCBS ID/DD waivers.
During this review period, the Commonwealth renewed planning to develop integrated day opportunities. As it explained at the recent status conference, a newly revised draft plan, Community Engagement Plan, was being developed. The Commonwealth completed a draft of the Community Engagement Plan Independent Reviewer stopped reviewing information for this report. The Outcome Timeline report that the Commonwealth provided to the Court includes milestones for coming into compliance with several related provisions of the Agreement. The Outcome Timeline is based on the assumption that the General Assembly will approve the proposed HCBS waiver redesign. If so, DBHDS intends to initiate integrated day activities in July 2016. Providers may already be implementing more integrated activities. Because such activities are not defined services under the existing waiver, the Commonwealth has no record of the extent to which integrated services currently exist. With the existing HCBS ID/DD waivers, all day services, regardless of the service delivery model, are billed using the day support services definition. It is not possible at this time, therefore, to delineate center-based rather than community-based day services. The Commonwealth plans to determine the number of individuals receiving integrated day activities in December 2016, six months after the redesigned waiver is implemented and after the tenth review period.
Conclusion: The Commonwealth has not finalized a completed plan for the implementation of all Integrated Day Opportunities. The redesign of its HCBS waivers is the Commonwealth’s primary strategy to develop the required community volunteer, community recreation and other integrated day activities. The Commonwealth will remain in non-compliance until it finalizes a complete implementation plan and effectively implements its strategy to make the substantial changes that are required.

	
  

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B. Supported Employment The Commonwealth submitted a plan to develop the Supported Employment portion of the provision that requires “to the greatest extent practicable…to provide individuals in the target population…with integrated day opportunities, including supported employment.”
The Commonwealth has provided extensive training related to Employment First, including training and technical assistance to other state agencies. Between July and September 2015, the DBHDS Employment Specialist conducted ten trainings in four Regions of the Commonwealth and trained 303 State, CSB and employment service organization staff and other stakeholders.
As reported previously to the Court, the Commonwealth had developed and, with the input of the SELN AG (Supported Employment Leadership Network – Advisory Group), had updated its plan to increase supported employment. The Commonwealth had also implemented a positive new approach to gather data. It changed its data sources and began collecting data about a significantly increased number of individuals. These new draft data include information about individuals with ID and DD, including those whose services are temporarily funded by Virginia’s Department for Aging and Rehabilitative Services (DARS), rather than only those individuals who receive employment supports through the Commonwealth’s HCBS waivers.
For the Draft DBHDS Semi-Annual Report On Employment, Summer 2015, the Commonwealth continued to strengthen its supported employment data collection for all individuals with ID and DD whose services are funded by Virginia’s Department of Rehabilitative and Aging Services (DARS) and through the Commonwealth’s HCBS waivers. Fifty-seven (95%) of sixty employment providers submitted data, but for only 86% of individuals in group supported employment. The supported employment data include information about individuals who earn below minimum wages, which does not align with the definition in the Agreement. The Independent Reviewer commends the Commonwealth for the extensive and collaborative efforts of its employment service organizations, DARS, and the data subcommittee of the SELN AG. The Commonwealth reports that the national SELN has recommended that the Commonwealth determine the number employed annually by counting the number at two points in time during the year. The Independent Reviewer will study the Commonwealth’s final data and next semiannual report to determine whether this approach is sufficient during the next review period. The Commonwealth learned important lessons during the seventh review period and appears to have developed a growing and sustainable collaboration for the ongoing effort needed to successfully collect the annual baseline data.
The SELN AG did establish a new target of having 3,660 of 14,640 (25%) of all individuals with ID/DD employed. The target was based on the total number of individuals with ID/DD waiver slots plus the number of individuals on the wait list who are age eighteen and older. It also set percentage Case Management targets that 100% of individuals will have discussed employment options at least annually and that 35% will have an employment-related goal in their Individual Service Plans. The Commonwealth also established annual targets of increasing number of individuals in supported employment by five percent annually. For example, a five percent increase between the start of Fiscal Year 2015 and the start of Fiscal Year 2016 establishes the target increasing from 204 individuals with waiver services (2.8%) to 568 (7.8%) and to 932 individuals employed by the start of Fiscal Year 2017 932 (12.8%). It is positive that the SELN AG decided to establish goals related to employment for individuals who are awarded new waiver slots and for those who transition from the Training Centers. It decided to delay establishing these targets until it collects sufficient data to establish baselines. Importantly, the SELN AG and the DBHDS are reviewing and reporting these data in

	
  

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relationship to the cultural and organizational shifts away from providing center-based congregate day services and toward meaningful integrated employment services.
The draft point in time data of the number of individuals in supported employment that have been collected for one day (June 30, 2015), although important and helpful, do not establish the required annual baselines and cannot be used to determine meaningful increases of the number of individuals enrolled through the subsequent year. The data in the draft semiannual report count individuals in supported employment who earn below minimum wage which is not consistent with the definition in the Agreement. In addition, to comply with the requirements of the Agreement the case management goal that “individuals will have discussed employment options, at least annually” must include that “goals are developed and discussed…”. Meaningful discussions of employment for individuals with ID/DD and their authorized representatives should include the interim steps to explore employment interests and options. Developing these interim-step goals, as required for any thoughtful discussion, will help participants to better understand the possible paths that might lead to meaningful employment activities. Thinking through these paths may also inform goals that ISP teams can then use to develop community volunteer activities as part of the community engagement process for some individuals.
The Commonwealth implemented an improved method of collecting data. Data reported includes only 86% return rate for group supported employment. The Commonwealth has not determined the number of individuals who are receiving supported employment, as defined in the Agreement, and cannot determine meaningful increases in each year.
Conclusion: The Commonwealth made positive and collaborative efforts to achieve an important milestone in gathering point in time data for the larger group of individuals who receive DARS and waiver funding on the final day of the fiscal year. These data, however, are incomplete, include individuals who earn below minimum wage, and are not sufficient to establish the required annual baselines. The percentage goals for employment and case management have been established, but one case management goal needs to be refined to comply with the Agreement. The SELN AG is making important and positive contributions to the dedicated work of the Employment Service Coordinator who continues to provide training on supported employment policies and strategies throughout the Commonwealth.
The Commonwealth remains in compliance with Sections III.C.7.b.i.A., C.7.b.i.B.1.d.- e., III.C.7.c - d. It remains in non-compliance with Sections III.C.7.a., III.C.7.b. and b.i., 7.b.i.B.1.a-c, and B.2.a-b.
7. Community Living Options The Commonwealth made significant progress with some of its housing initiatives during this review period. The Independent Reviewer previously reported that the Commonwealth had developed the “Independent Living Option Plan” in collaboration with other state agencies. The Commonwealth also set a measurable targets of creating 847 new independent living options by June 2021 and supporting more than 1,800 adults living independently. It reported that through its Housing and Support Services consortium and local stakeholders in three Regions, the Commonwealth had exceeded its first year target by creating 115 options as of September 2015. “Available options,” are a prerequisite to achieving what the Agreement describes as the Commonwealth’s requirement “to facilitate individuals to live in their own home or apartment.” The Commonwealth reports that sixtynine individuals with ID and DD who receive waivers have achieved that goal as of September 2015. Two collaborative initiatives with state and local agencies contributed to this progress.

	
  

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In late 2014, the Commonwealth formed an Interagency Housing Committee. In the spring of 2015, DBHDS, the Virginia Housing Development Authority (VHDA) and the Department of Housing and Community Development (DHCD) convened a Housing and Supportive Services (HSS) Consortium to create collaborative strategies that can be applied in Region II (northern), Region IV (greater Capitol), and Region V (Tidewater). The goal of this collaboration is to create strategies and action plans to connect individuals with ID/DD to integrated, independent housing opportunities. During this reporting period, the Commonwealth’s HSS Consortium implemented its “100-day housing challenge” in three of Virginia’s most populated communities, replicating previous successful housing development initiatives. Local agencies are working hard to identify individuals and to take other preliminary steps for those who may choose the independent housing options that become available. Both of these collaborative initiatives are working to expand independent living options for members of the target population. As of September 2015, two initiatives in the “Independent Living Option Plan” have achieved the desired outcome for individuals living in their own home or apartment. Both succeeded, in part, because they offered rental subsidies that helped make the housing affordable.
The Commonwealth’s Rental Choice VA program, which utilizes rental choice subsidies from the one-time $800,000 fund established in 2012, has become fully operational. As of September 30 2015, the Rental Choice Voucher Program is now supporting fourteen individuals with ID/DD who are living in rental units. Six other individuals are in the housing search process. Five Rental Choice slots remain. The Commonwealth has not yet provided permanent rental subsidies to sustain these independent living arrangements.
The Virginia Housing and Development Agency (VHDA) set aside ninety-seven rental vouchers for individuals with ID/DD with waiver services. Forty-seven individuals are now using these vouchers and living in their own apartments. Eight other individuals with ID/DD are in rental units of their own through other non-VHDA programs. Fifty rental vouchers remain.
The Commonwealth’s initiative through the Low Income Housing Tax Credits (LIHTC) program also made important but initial progress between July1, 2015 and September 30, 2015. The LIHTC program offers the possibility of independent housing for individuals. Realizing this goal, however, will take time and likely require additional and permanent rental vouchers. The LIHTC Qualified Allocation Plan was modified to help expand the inventory of affordable accessible units for members of the target population. Two projects in northern Virginia have received an allocation of competitive tax credits to provide a marketing preference for people with ID/DD. Both projects have a Memorandum of Understanding with the CSB to make referrals. The Commonwealth reports that additional applications for tax credits through the LIHTC program may occur in the coming months. The effectiveness of the program’s guidelines, for producing applications that will help provide housing for the target population, will also be evaluated. The developers of approved LIHTC projects have eighteen to twenty-four months to make these units available. If rental subsidies are provided and the LIHTC units become available, they may be able to serve more than one individual per unit. The Commonwealth did not project a separate number of individuals with HCBS waivers who will live in the LIHTC units. The outcome will depend on multiple factors including the provision of rental subsidy vouchers needed to afford to live in some LIHTC units.
The Commonwealth has reported that other housing initiatives are underway. For example, VHDA’s Capacity Building grant program may be able to help sustain some of the work. The

	
  

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Commonwealth’s Interagency Committee continues to search for additional capital funding opportunities to support the creation of independent living options. Most importantly the Commonwealth reports that, as of September 30, 2015, VHDA and Rental Choice VA had a total of fifty-five rental subsidies available for individuals with ID/DD waiver services.
Setting aside rental vouchers for the target population was the most important step. These vouchers have the potential for providing housing options in both the short- and long-term. Other initiatives currently underway reflect an increased awareness about integrated housing options and the possibility of more success over time. The housing options that the Commonwealth provides in Training Centers, nursing and private Intermediate Care facilities and in sponsored and group homes all include the cost of the housing for individuals in the target populations. More independent community living options do not. The ninety-seven rental vouchers set aside by VHDA will support nine-tenths of one percent of the individuals with waiver slots. The eighteen rental slots provided by Rental Choice VA are temporary. Additional permanent rental assistance is needed for individuals with ID/DD waivers to afford independent living options.
The Commonwealth recognizes that its current HCBS waiver provides a financial incentive for larger congregate homes rather that the more integrated options described by the Agreement. It will not be able to achieve compliance until the service definitions and rate structure are amended to create and promote a more integrated array of residential options for those who do not choose to live in independent housing.
Conclusion: The Commonwealth’s housing plan initiatives have made important progress. It began to facilitate individuals receiving waivers to live in their own home or apartment. In September 2014, in an early phase of the housing plan, there were only two individuals living in their own apartments. Just one year later, there are sixty-nine individuals who have been supported to live in their own apartments. Other housing initiatives are in various preliminary stages of development. They will take time to become “options” and more rental subsidies will be needed, in most cases, if they are to become the apartments that members of the target population can call “home.” The eighteen rental slots provided by Rental Choice VA are temporary. More actual progress for individuals with ID/DD is likely during the next review period because fifty-five rental vouchers are available. To
achieve compliance, further progress is needed in resolving systemic barriers, including necessary rental subsidies, and in demonstrating sustained ability to achieve its Independent Living timeline and outcome targets in all Regions.
The Commonwealth remains in compliance with Sections III.D.3.a., III.D.3.b.i-ii, and III.D.4. The Commonwealth is in non-compliance with Sections III.D.1., III.D.2, III.D.3 and III.D.5
8. Transportation The Independent Reviewer’s consultant evaluated whether the Commonwealth provides effective transportation services to the target population, as required by the Settlement Agreement. The review also sought to determine the extent to which the Commonwealth has implemented a quality system to ensure that its transportation services are of good quality, appropriate, available and accessible to the target population.
The Virginia Department of Medical Assistance (DMAS) administers the Non-Emergency Transportation through a brokerage system contracted to a multi-state private sector contractor, Logisticare. The effective functioning of the DMAS transportation brokerage is critical to the goal

	
  

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of improving the lives of people with intellectual and developmental disabilities. The Independent Reviewer’s studies, over multiple review periods, have confirmed that transportation services are included in most of the Individual Service Plans for individuals with HCBS waivers. The approximately 10,000 individuals with intellectual and developmental disabilities with HCBS waivers are but a small percentage of the 1.2 million Virginians who are eligible for Medicaid. They also account for a small percentage of the four million trips taken annually by those Virginians provided transportation services through the brokerage.
In its databases, Logisticare does not separate out individuals with ID/DD waivers. Since implementation of the provisions of the Settlement Agreement began, DMAS/Logisticare has not completed an analysis related to the delivery of transportation services for the target population. For this review, with the assistance of DMAS, Logisticare eventually sorted complaints it has received to identify those that were made on behalf of individuals with ID/DD with waiver services. This gives encouragement that DMAS and Logisticare have the records to conduct additional analysis of the quality of transportation services for the target population. Only with information about the transportation experiences of these individuals will DMAS/Logisticare be able to undertake the quality improvement processes required by the Agreement to ensure that their transportation services are of good quality.
The DMAS and Logisitcare quality improvement systems exist for the general population of Medicaid transportation users; operational processes are in place to monitor safety. For example, both Logisticare and DMAS inspect vehicles and drivers under contract with Logisticare. Logisticare provides reports to DMAS about its most persistent problems and the actions taken to remedy them. “Rides not on time” is the most common complaint. The lack of reliability, especially with substitute driver for Logisticare subcontractors has been reported through the Individual Service Reviews. Logisticare provides DMAS with a weekly and monthly recap reports on operational problems based on a jointly developed implementation plan. Logisticare utilizes a performance feedback report with all providers to give positive and negative performance information. Logisticare issues Corrective Action Plans and DMAS exercises its sanction “liquidated damages” to address non-compliant behavior. Logisticare convenes quarterly meetings with stakeholders to seek input. A recent assessment of the satisfaction of users of the transportation system by an outside vendor reported that, through telephone interviews, 92.7% of 370 transportation users were pleased with the arrival time for their pickup. Alternative Transportation approaches also have been implemented to address service gaps. The DMAS/Logisticare quality improvement processes do not, however, provide information about the quality of transportation services for individuals with ID/DD waiver services. There are several indicators that these users have a disproportionately higher rate of complaints with Logisticare sub-contractor transportation services.
With the help of DMAS, Logisticare identified 12,867 complaints from ID/DD waiver users for fiscal year 2015; whereas, Logisticare reported 8,603 complaints from all users during one 90-day period in 2015. By extrapolation, this is an annual overall complaint rate of .9% or 9 per 1,000 trips (34,890 complaints per 4,000,000 trips). These data further suggest that complaints from the ID/DD Waiver users constitute about 37% (12,867 Waiver complaints versus 34,890 from the general Medicaid population) of the total complaints received by Logisticare.
The Independent Reviewer has found that residential service providers for individuals with ID/DD widely use alternatives approaches to provide transportation services for their residents.

	
  

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Of the randomly selected 161 Individual Service Reviews conducted from 2012-2015, one in seven individuals (14.3%) reported problems with their transportation services, no matter who provided it. Of those who depended on transportation services provided by Logisticare subcontractors, six of ten individuals (60%) reported problems with their transportation. This is a small number of users because the studies have focused primarily on individuals who moved from Training Centers and who live in group or sponsored homes. The individuals who live with their families or in homes of their own are more frequent users of transportation services provided by Logisticare subcontractors.
Recent record reviews and focus groups conducted for the Independent Reviewer have surfaced frequent anecdotal reports of problems with DMAS/Logisticare transportation for ID/DD Waiver users. The most disruptive transportation problems appear to occur for individuals attending day or work programs, usually five days a week. When the “ride” is not there on time, individuals may get upset or may cause supervision issues for parents who work or group home staff who might be scheduled to go off duty.
Conclusion: DMAS and Logisticare do not have records that indicate that transportation services are being properly provided to individuals with ID/DD with waiver services. The existing DMAS/Logisticare quality improvement processes cannot fulfill the requirements of the Settlement Agreement without data that ensure that transportation services provided to members of the target population are of good quality.
The Commonwealth is not in compliance with Section III.C.8.a. It is also in non-compliance with the relevant provisions in Section V: Quality and Risk Management.
QUALITY AND RISK MANAGEMENT
The Independent Reviewer’s consultant assessed the status of the Commonwealth’s progress in developing and implementing a Quality and Risk Management System. The purpose of the required system is to “identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.” (Section V.B). There were due dates for only about half of the sixty provisions in Section V. Quality and Risk Management. The Independent Reviewer’s consultant previously assessed the baseline performance of the Commonwealth’s progress with quality provisions in 2013 and the progress that the Commonwealth had made one year later in 2014. The overview below is based on the findings of the consultant’s third annual review (see Appendix D) of Quality and Risk Management provisions and additional facts gathered by the Independent Reviewer.
9. Risk triggers and thresholds The Commonwealth’s list of risk triggers and thresholds has grown and improved. The list now includes not only events that have already occurred and caused harm, but also those with risk potential. The Commonwealth has improved its lists by analyzing data it has collected. The Commonwealth also has identified the data that are currently available to measure the risks that it has identified and those that are not. The expanded lists and measures set the stage to proactively address risk. DBHDS does not consider the lists of triggers and thresholds as final. The Commonwealth plans to include risk triggers and thresholds in the redesigned Individual Service Plan (ISP) format and to begin implementing the medical triggers for individuals transitioning

	
  

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from the Training Centers to the community. The Commonwealth has taken initial steps that could assist providers to implement risk triggers and thresholds. The Commonwealth recognizes, however, that although a report format and a process that encourages sharing information might be helpful steps, its licensing regulations must be revised to require reporting of data beyond a narrow and incomplete list of risks
The Commonwealth’ risk management system does not address a significant and well known risk to vulnerable individuals with ID/DD. It does not have a current system or registry for service providers to determine whether job applicants have had one or several substantiated acts of abuse, neglect, or exploitation against a vulnerable adult with ID/DD. Providers have reported to the Independent Reviewer that job applicants who have committed and been terminated for such acts can and do easily find employment providing direct care to vulnerable and non verbal adults with other service providers.
The Commonwealth continues to be in non-compliance with Section V.C.1.
10. The web-based incident reporting system and reporting protocol The DBHDS web-based incident reporting system, the Computerized Human Rights Information System (CHRIS), was examined to determine whether the Commonwealth has taken sufficient actions to achieve compliance. The consultant’s assessment determined that providers are reporting incidents using the web-based incident reporting system (CHRIS). These reports, however, were not consistently submitted in “real-time” (i.e. within 24 hours). The Commonwealth had taken some steps to evaluate and increase providers’ compliance with “realtime” (i.e. within 24 hours) reporting.
The CHRIS reporting form has not been improved since it was created in 2012. It is inadequately designed, inconsistently completed and does not produce reliable incident data. Although widely adopted throughout the licensed provider system, there are several shortcomings with the CHRIS report form. It does not include a “report of the incident;” the name of the reporter who first witnessed the event and/or how the reporter became aware of the incident. The check boxes are for both incidents (i.e. falls) and for harms (i.e. sprain). The filers, however, rarely check more than one box. The most frequently checked box is “other” and many reports do not have any box checked. These deficiencies, which are well known, contribute to data that are not complete or reliable.
The Commonwealth has gathered some useful data from the CHRIS system and it has been shared with the Regional Quality Councils.
The Commonwealth continues in non-compliance with Section V.C.2.
11. Guidance and training on investigation of allegations and critical incidents Since the last review, DBHDS has extended considerable thought and effort related to offering guidance and training on investigation of allegations and critical incidents. To assist service providers in risk assessment and corrective action processes, DBHDS has:
 revised portions of its draft training on investigations;  published (i.e. on its website) webinars of two of seven investigation-training modules;  finalized and published a root-cause analysis training; and  developed and published an initial training module on risk assessment and tools.

	
  

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These materials include some basic and some higher level information. Details are described in the consultant report (Appendix D). The Commonwealth is providing investigation training to the DBHDS Human Rights Advocates and to its Licensing Specialists. The Commonwealth distributed a flier inviting providers to use the training. However, providers are not part of the Learning and Management System (LMS) that the Commonwealth uses to track required training. Until the Commonwealth’s regulations are revised, using the trainings is optional for providers. The training materials do not include competency components. Because five of the seven webinars for investigations are still works in progress, the consultant could not determine whether, as a whole, they will provide the information that providers need. For example, the completed trainings include limited information about the conduct of interviews or the different types of evidence. The investigation and root cause analysis training materials do not reflect as broad a range of instructional techniques as is needed to ensure reliability and competency in performance.
As indicated in the Independent Reviewer’s previous Report to the Court, current DBHDS licensing regulations (12 VAC 35-115-50.D.3.e., page 11),	
   require community providers to have “trained investigators.” The existing regulations, however, do not include standards for what represents an adequately trained investigator, investigation process, or investigation report.
The Commonwealth staff recognize that, after publishing these training materials, additional steps are needed. These include:
 additional trainings and technical assistance;  “live” training and other methods to assess the competency of investigators;  published resources which will strengthen provider’s efforts to reduce risks only if used; and  new regulations to establish standards for the adequacy of investigations.
Conclusion: The Commonwealth made progress in finalizing the root cause analysis webinars, two of seven modules of investigation training and in publishing these online. The release of the technical assistance materials and completion of the initial module on risk analysis are also positive. The Commonwealth still must address a number of substantive issues.
The Commonwealth is in non-compliance with Section V.C.4.
12. Data to assess and improve quality The consultant found that collaborative work within DBHDS contributed to the Commonwealth taking significant steps in its ability to collect and use data to assess and improve quality. These steps included:
 developing of the OneSource Data Warehouse;  pulling data from various sources into the warehouse;  cleaning the data and developing reports so that the data can be easily queried;  developing standard reports from the Warehouse in a usable format; and  identifying individuals in the target population by type of waiver or institution.

	
  

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The development of the Data Warehouse and reports and the addition of staff resources were significant accomplishments with both short- and long-term benefits. DBHDS now has the ability to:
 share data among offices and divisions;  use data to influence DBHDS operations; and  take more proactive approaches to the protections, services and supports that it offers and
oversees.
For its Data Warehouse, the Commonwealth needs to do additional work to:  organize the data collected;  increase the scope of data available;  ensure reliability; and  make the data useful.
The Commonwealth’s staff continues to refine the data for the eight domains required by the Agreement. The Independent Reviewer previously reported that the Commonwealth had collected data for one or more measures for each domain. Nevertheless, it needed to further define and expand the measures, and to take effective steps to ensure that the data were reliable. Since that report, the Commonwealth has moved toward the collection of more comprehensive data for use in the eight domains. Data for the eight domains are now prominent in the Warehouse, in the revisions to the ISP format and in the design of the Quality Service Reviews. The Independent Reviewer remains concerned with the reliability of case management data regarding individuals’ health and wellbeing and the “halo effect” of case managers self-judging whether ISP goals, that they participate in developing, are accomplished.. A DBHDS work group is now reviewing each of the measures and is attempting to identify reliable and valid measures. Some progress has been made. The group responsible for developing the data to be collected and used for the eight domains, however, should incorporate the recommendations that the Independent Reviewer and his consultant made in the attached report (Appendix D) and in previous reports. These concerns relate to improving the:
 definitions of terms;  comprehensiveness of the measures;  completeness and reliability of the data;  methodology of data collection; and  measures of the quality of services, rather than only the presence.
Conclusion: The Commonwealth has made significant progress by developing the Data Warehouse and by building its reporting capability. Limited progress has occurred in expanding the identification of data to assess and improve quality or to ensure that the data are complete and reliable. A number of challenges still need to be overcome. The quality improvement reviews by the CSBs at the local level and by DBHDS/DMAS at the regional, and state levels, have not utilized data, especially from the ISPs and from case managers, that is not collected is a consistent manner, is not complete or reliable; and only limited analysis occurred. The Commonwealth is working on the development of a revised QI Plan that will be submitted with its redesigned HCBS waiver redesign.
The Commonwealth is in non-compliance with Section V.D.1.-3.

	
  

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Report publicly on the availability and quality of services and recommendations for improvement
The Commonwealth has made a good beginning to compile information so that it can report publicly both on the availability of and gaps in services as well as on the quality of supports and services in the community. The information will include recommendations for improvement. DBHDS provided initial information publicly at the end of this review period. It added an “Annual Reporting” tab with this information on the “DOJ Settlement Agreement” page (i.e., http://www.dbhds.virginia.gov/individuals-and-families/developmental-disabilities/doj-settlement-agreement). The Commonwealth recognizes that this site does not yet have all the information that is required. The included reports target a variety of audiences with information regarding demographics, the quality and quantity of supports and recommendations for improvements. DBHDS plans to add the initial information, and then to update it annually. The Commonwealth should ensure that the data and reports that are included accurately reflect the current system. This should include unmet needs in the Regions of the Commonwealth.
Conclusion: The Commonwealth had recently developed and implemented a format and location to report, at least annually, information described in the Settlement Agreement. The Commonwealth recognizes that the information provided is not complete and that this effort is a work in progress.
The Commonwealth is in non-compliance with Section V.D.6.
13. Regional Quality Councils and Quality Improvement Council The Independent Reviewer previously reported that the Commonwealth implemented Regional Quality Councils (RQC) and a Quality Improvement Council (QIC). These Councils met during the review period. They discussed issues and completed basic but limited analysis of the data available. It was positive that the QIC identified concerns with the limited data available (e.g. mortalities and allegations of abuse) and discussed mechanisms for improvement. The consultant’s report describes other examples, including where limited actions were taken to address identified trends (Appendix D). It also describes areas where data are not complete or reliable. These include the data that emerge from Individual Service Plans, the quality of which vary substantially. It also included goal accomplishment data reported by case managers of whether the ISP goals, that they participated in developing, had been achieved.
The consultant reviewed membership lists (August 2015) and the operational guidelines and voting rules of the Regional Quality Councils. They indicate that the DBHDS Quality Improvement Council clearly directs their work as required by the Agreement. Evidence also indicates that DBHDS supports the work of these Councils. The consultant also reviewed the RQC and QIC meeting minutes and interviewed members of three RQCs who had different expertise and perspectives. All verified that the RQCs continued to make progress during the past year. They reported that the meetings were efficient and that diverse membership contributed different perspectives. DBHDS has shared Regional Support Team, employment, mortality and National Core Indicator (NCI) data with the RQCs. In some instances, the RQCs made recommendations. For example, a recommendation was made regarding the need to expand community living options for individuals with complex medical and/or behavioral needs. The RQCs made some systemic recommendations to the QIC. The RQC meetings have also allowed for a more regional focus on problem solving discussions.

	
  

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Effective functioning is a challenge for the RQCs due to the limited data that are currently available, the unreliability of the data and the inability to drill down into the data to the regional level. Some data shared with the RQCs identified potential areas of need. The RQC meeting minutes, however, indicated only limited discussion of trends or recommendations. RQC members recognize that more growth and development is needed to achieve the desired and intended results of their work.
Conclusion: As reported previously, the Quality Improvement Committee and Regional Quality Councils have been created and have met regularly. The RQC’s include members with the required expertise and stakeholders. The QIC is directing the work of the RQCs, as required by the Agreement. These groups are using some of the data currently available, are conducting limited analyses of such data and are beginning to use such analyses to determine what, if any, actions should be taken. The data reviewed at the local and state levels was not reliable or complete. The Commonwealth should increase these activities over time, particularly as more data become available, reliable and more in-depth analyses of the data are made available to both groups.
DBHDS is in compliance with V.D.5. It continues in non-compliance with Sections V.D.1-4
14. Providers
A. Quality Improvement As previously reported, the Commonwealth added Quality Improvement program requirements to the draft Performance Contract with CSBs, beginning with Fiscal Years 2015 and 2016. The Commonwealth has conducted a survey of all forty CSBs. The survey results indicated different levels of experience and knowledge of Quality Improvement processes. The next step in the DBHDS assessment is to survey a sample of the 900 community providers to ascertain a baseline regarding providers’ current Quality Improvement practices. These activities are positive first steps that will assist DBHDS staff in determining the scope and type of technical assistance necessary to assist providers to comply with the Agreement. The Commonwealth has targeted December 31, 2015 to set clear expectations about the processes and the reporting requirements for providers’ Quality Improvement programs. The Commonwealth also reports that it plans to provide technical assistance and guidance to providers.
The Commonwealth is in in non-compliance with Section V.E.1. and 2.
B. Statewide Core Competency-Based Training Curriculum The Agreement requires a statewide competency-based training curriculum for all staff who provide services under the Agreement. Complying with this provision, however, is a complex undertaking that will involve both breadth and depth. The training curriculum must be statewide and for all staff. The Commonwealth’s curriculum must address both general elements, such as in community integration and self-sufficiency, and individual service elements. Staff must also be determined competent to deliver the required elements of service. The Commonwealth has accomplished some of initial pieces of the curriculum. The Commonwealth has not, however, developed the comprehensive plan that is needed. The plan must include the general elements and the individual service elements, as well as coaching and supervision. The ultimate measure of success should be that each staff demonstrates competence in delivering the elements of services for the specific individuals he or she supports. This is especially important for the health and safety

	
  

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service elements for individuals with intensive medical and behavioral needs, and for the community integration and personal growth/self-sufficiency goals of all individuals served under the Agreement.
The Commonwealth has established basic expectations for providers to train Direct Support Professionals (DSPs) on a variety of topics. Providers are expected to certify that DSPs have successfully completed a written quiz with a minimum score of 80% prior to providing ID or DD waiver services. Other than the quiz, confirmation of competence (i.e. demonstrated ability to implement the skills that are taught) has not yet been required. The Commonwealth has begun developing some competencies. A draft document, “Behavioral Support Competencies for Direct Support Providers and Professionals in Virginia,” shows a significant amount of thoughtful work, such as the delineation of competencies for different staff and different levels of training. The goal is to add this to the DSP training.
In finalizing these and developing other competency-based trainings, it will be important for the Commonwealth to ensure that competencies are measurable, that when numerous competencies are included in one standard/skill there should be standards to determine when a staff member has “implemented skills” and/or demonstrated “proficiency.” For different trainings, it might be helpful to think in terms of various types or levels of competency-­‐‑based training, including knowledge-­‐‑based competency, skills-based competency, and ability-­‐‑ or expertise-­‐‑based competency. The consultant’s report (Appendix D) gives examples of other trainings offered (i.e. for case managers and investigators), additional situations when trainings have been offered (Provider Roundtables, case manger meetings, webinars) or as required by licensing and audit staff, or by request. These additional trainings do not generally include competency components and are not specific to the service elements of individuals (i.e. demonstrating competency with the knowledge and skills needed to prepare a meal and assist a specific individual to eat, given his/her degree and type of dysphagia).
Conclusion: The Commonwealth has developed some trainings for certain staff who provide services under the Agreement. Some of the trainings that are in place for DSPs, their supervisors, case managers, and investigators include a knowledge-based test. A plan to develop a statewide core competency-based training for all staff providing services under the Agreement has not been developed. Compliance with these provisions of the Agreement will require careful and comprehensive planning, effective implementation and on-going evaluation to improve over time.
The Commonwealth is in non-compliance with Sections V.H.1-
15. Quality Service Reviews The Independent Reviewer previously determined that the Commonwealth’s planned use of the National Core Indicators (NCI) Survey tools to implement Quality Service Reviews (QSRs) would not fulfill the requirements of the Agreement. In response, the Commonwealth decided to supplement the NCI process. On May 18, 2015, subsequent to a Request for Proposal process, the Commonwealth’s contract went into effect with the Delmarva Foundation, a Quality Improvement Organization (QIO)-like entity. The Commonwealth’s contract states the purpose of the QSRs as defined in Section V.I.2. of the Agreement. The contract includes a multi-tiered approach to conduct the QSRs. These include:

	
  

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 conducting Person-Centered Reviews of a statistically significant sample of individuals;  conducting Provider Quality Reviews (PQRs) of the selected individuals’ direct service
providers;  completing Quality Service Review Assessments that will involve reviews at the Community
Services Board, regional, and statewide levels; and  submitting Quality Service Review Assessment reports.
At the time of the Independent Reviewer’s consultant’s study, implementation of the QSR process had just begun. The contract required Delmarva to complete 400 individual and family interviews, and 50 provider reviews. Delmarva selected the sample using a regional approach. It also took into account certain demographics (e.g., service type) to attempt to ensure that large enough numbers of individuals are surveyed to allow Delmarva and the Commonwealth to draw statistically valid conclusions.
It is positive that the contractor established a web portal for key DBHDS staff to access and to review reports as they are posted and that an alert system is in place. If the auditors note urgent concerns, then DBHDS staff can take immediate action, as needed.
The Independent Reviewer is concerned that a sample of only 50 providers (out of 491 licensed ID providers and an undetermined number of DD and unlicensed service providers) is sufficient to effectively evaluate the quality of services, especially for different types of services and in different geographic areas of Virginia. On August 5, 2015, the Independent Reviewer notified DBHDS of initial concerns identified with the contractor’s draft protocol and audit tools. These concerns included:
 lack of definition of standards/terms;  lack of definition of methodology;  lack of criteria for determining compliance;  scope of review without definition of auditor qualifications; and  missing components.
The consultant’s findings and analysis are described in the consultant’s report (see Appendix D).
Conclusion: The Commonwealth has worked steadily to modify the Quality Service Review process to meet the requirements of the Agreement. The selected contractor had recently begun conducting reviews in September 2015. The Commonwealth will achieve compliance when the QSRs are completed have utilized processes and protocols that would provide reliable indicators of quality services and when the Commonwealth is using the results to improve practice and the quality of services on the provider, CSB and system-wide levels.
The Commonwealth is in non-compliance with Sections V.I.1-3

	
  

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16. Mortality Reviews The Independent Reviewer previously reported that DBHDS had established the Mortality Review Committee (MRC) under the direction of its Medical Director. At that time, the membership of the MRC possessed appropriate experience, knowledge and skills. The MRC met the requirements of the Agreement; it operated in accord with the basic elements of a statewide mortality review process.
The stated purpose of the DBHDS MRC is to:  identify safety issues that require action to reduce the risk of future adverse events; and  implement Quality Improvement initiatives at the individual and systemic levels to reduce mortality rates.
During the current review period, the Mortality Review Committee continued to operate in accordance with the basic elements of a statewide mortality review process, as described by the Center for Medicaid Services. It completed ongoing data collection and analysis; it met regularly to organize and complete reviews of deaths. The MRC also made recommendations and has taken some meaningful systemic actions to reduce mortality rates. This is a substantial and challenging ongoing undertaking given the number of individuals with ID/DD and the number of deaths of individuals who reside in state-operated and private provider residences and in individuals’ own and their families’ homes. The Mortality Review Committee has completed hundreds of mortality reviews since being established by the Commissioner of DBHDS in 2012.
The Mortality Review Committee has broadly distributed many Safety Alerts on risk factors associated with unexplained deaths to case management agencies and DBHDS Licensing Specialists and to state operated and private service providers for individuals with ID and DD. The Director of ID/DD Health Services has convened a group of nurses to gather and share health information with hospitals when individuals are being hospitalized. A food consistency group developed and distributed information about the importance and the specifications of food consistencies. The DBHDS Medical Director wrote to medical providers known to serve individuals with ID. The letter informed these medical providers of the “fatal five” medical conditions that are common causes of death for individuals with ID/DD. The letter described other factors that frequently contribute and conditions that are common early indicators of these conditions. The Mortality Review Committee has contributed information about these risks to the revised Individual Service Planning process and to the DBHDS Quality Improvement Committee. The Mortality Review Committee has not implemented a quality improvement program and has not evaluated whether its initiatives have led to expected results.
The MRC has drafted its second DBHDS Annual Mortality Report, “Mortality Among Individuals with an Intellectual Disability.” The Report includes an analysis of Virginia mortalities including sections titled: “Reported Deaths,” “Mortality Rates,” “Community Tenure,” “Causes of Death,” “Unexpected Deaths,” “Leading Causes of Unexpected Deaths,” and “Community Death Trends.”
The Mortality Review Committee has attempted to review all deaths, expected and unexpected, of individuals with an intellectual disability who died while under the care or supervision of a DBHDS licensed provider. Individuals with DD, other than ID, do not receive waiver funded residential services and are not under the care or supervision of a DBHDS licensed provider. The MRC determined that during 2014:
 226 individuals died who served in community programs.  13 of the 447 individuals died who had moved from the Training Centers since October 2011  23 of the Training Center residents died. The census declined from 688 to 551 during 2014.

	
  

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Qualified staff for both the Mortality Review Committee and the Department of Justice independently determined that the mortality rates have not been higher for individuals who were discharged from the Training Centers under the Settlement Agreement compared with those who continued to reside in the Training Centers.
The mortality rates of both groups are substantially higher than that of Virginia’s general population, or of all Virginia citizens with ID/DD. The average age of residents of the Training Centers and those who have transitioned to community settings is significantly higher than that of the general population. For example, of the eighty individuals who were randomly selected from individuals who had moved from the Training Centers, sixty (75%) were over age 51. Most individuals who transitioned from, and those who remain in the Training Centers, also have severe or profound intellectual disability. In the general population, the average age of death is significantly lower for individuals with severe and profound intellectual disability. Mortality rates of relatively small populations and over short durations of time will vary more than rates of larger groups over longer durations. The mortality rates of a fixed group of individuals will generally increase over time as the group’s average age increases. The Independent Reviewer recommends that the MRC continue to study and to publicly report its findings and conclusions on the causes of unexpected death, on mortality rates and on safety issues that require action to reduce the risk of future adverse health events.
The Mortality Review Committee continued to have difficulty in obtaining reliable and complete information. The information process has been labor intensive and slow. The mortality reviews, therefore, continue to be based on limited information that reduces the extent of the many reviews. Most mortality reviews have not been completed within the ninety-day period required by the Agreement. The Mortality Review Committee recognizes that it has limited access to information and records from hospitals, medical providers, nursing facilities and private unlicensed homes and that its mortality data are not reliable or complete. During the recent review period, the Mortality Review Committee did not include a member who was independent of the Commonwealth. Although the MRC maintained an extensive database for information related to hundreds of deaths, it did not “review or document the unavailability” of all the required records. It is the Independent Reviewer’s considered opinion that the slow flow and the lack of reliable information, the lack of staff to keep up with the work, and the resulting delays in completing required reviews all contribute to insufficient development and implementation of recommendations to reduce mortality rates.
Conclusion: The Mortality Review Committee and its process have been implemented in accord with the applicable requirements of the Agreement. Its membership does not, however, include an independent member qualified to conduct mortality reviews. The MRC reviews are not complete and recommendations are not made within ninety days. There appears to be too few staff available to complete the required work. The data available to the Mortality Review Committee, although improving, are not consistently reliable or complete. The lack of reliable information is especially true for individuals who live at home and for information from hospitals and nursing homes. The Commonwealth has made and implemented some recommendations; however, it has not implemented a Quality Improvement process to determine whether its actions have been sufficient to have had the expected effect and have reduced mortality rates.
The Commonwealth is in non-compliance with Section V.C.5.

	
  

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IV. CONCLUSION
The Independent Reviewer reported in his last Report to the Court that the Commonwealth had achieved compliance with certain requirements of the Agreement. During this, the seventh review period, the Commonwealth through its lead agencies, DBHDS and DMAS, and their sister agencies has maintained compliance with most of these same provisions. It received a new rating of noncompliance, however, in three areas due to concerns with quality. The Commonwealth’s leaders have continued to meet regularly and to collaborate with stakeholders and have made significant progress in several areas. It continues to develop and implement plans to address the Agreement’s requirements to improve people’s lives.
The Independent Reviewer also reported in his previous and in this Report to the Court that the Commonwealth lagged significantly behind schedule, and that it will remain in non-compliance until it successfully implements needed system reforms. The Commonwealth has not been able to move toward achieving compliance in two areas that involve many requirements of the Agreement: in creating residential and day activity programs that offer smaller more integrated services rather than larger more congregated community-based opportunities, and in implementing aspects of its quality and risk management system. Both areas are critical to an effective community-based services system for individuals with ID/DD.
For more than two years, the Commonwealth’s primary strategy to come into compliance has been the redesign of it HCBS waiver program. The Commonwealth’s state agencies report that during this review period it provided new and more extensive information to the members of the General Assembly about how and why approval will benefit Virginia’s citizens with ID/DD and why the Commonwealth’s effective implementation of its redesigned waivers is needed to achieve compliance.
The Commonwealth’s progress toward achieving compliance with the quality and risk management provisions of the Agreement is delayed by its outdated regulations. The Commonwealth continues to report that it is not able to require the reporting of data and implementation of investigations that align with the requirements of the Agreement. It also reports that progress with achieving certain provisions is largely on hold until its regulations are revised, approved, and implemented. The Commonwealth is reviewing draft revisions to its regulations. It has not projected in which year of the ten-year implementation schedule regulations that align with the requirements of the Agreement will be in effect.
As described in the previous Report, the Commonwealth has made continued efforts and progress on its planning for the implementation of its redesigned HCBS waiver. If approved by the General Assembly, it expects to kick-off a tighter implementation schedule and to catch up with its previously scheduled implementation timeline within Fiscal Year 2017.
The Independent Reviewer has continued to find that the Commonwealth has successfully  implemented and refined a discharge planning and post-move monitoring processes  increased frequency of visits and oversight by case management and licensing, the  implemented the required program elements of crisis services for adults,  increased community supports for individuals with complex needs by creating Bridge Funding
and exceptional rates,

	
  

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The Commonwealth has also ensured that case managers offer choice of service providers, and that the Regional Quality Councils have met and reviewed employment targets.
During this review period it made additional progress in several areas. It successfully implemented a100-day challenge and provided additional rental assistance vouchers to increase independent living options. DBHDS built a data warehouse as a foundational element for its quality and risk management system, the Commonwealth developed and adopted a new collaborative method to gather point in time data about all individuals in supported employment who receive supports from either DARS or waiver-funded programs
The Commonwealth has not, however, made substantive progress implementing planned changes to achieve compliance with many core structural and programmatic provisions of the Agreement. It has not put into effect the strategies that it has presented as necessary to bring about systems reforms needed for compliance, and it has not revised its regulations. The Independent Reviewer has continued to determine that during this review period the Commonwealth is in non-compliance with many provisions that must be implemented effectively to fulfill its promises to members of the target population and their families “to prevent unnecessary institutionalization and provide opportunities to live in the most integrated setting appropriate to their needs and consistent with…their informed choice.”
The Commonwealth’s leaders continue to express strong commitment to vigorously continue its planning and full implementation of new service and system reforms to achieve compliance. Substantial progress with the implementation of the needed reforms is vital to fulfill the requirements of the Agreement and its promises to all Virginians with intellectual and developmental disabilities and their families.
V. RECOMMENDATIONS
The Independent Reviewer’s recommendations to the Commonwealth are listed below. The Independent Reviewer requests a report regarding the Commonwealth’s actions to address these recommendations and the results by March 30, 2016. The Commonwealth should also consider the recommendations and suggestions included in the consultants’ reports that are included in the Appendices. The implementation and impact of these recommendations will be studied during the ninth review period (April 7, 2016 – October 6, 2016).
Transition of Children from Nursing facilities and Large ICFs 1. The Commonwealth should facilitate the transition of children from nursing homes and large ICFs. To determine what community-based services are needed and to comply with the Regional Support Team provisions of the Agreement, the Commonwealth should:  determine what services children and the adults with ID/DD need to continue to live and to
transition from living in nursing homes and large ICFs  establish a single-entry point early in the process of the potential admission of children and adults
with ID/DD to these facilities.

	
  

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2. For the transition process for children from nursing facilities and large ICFs, the Commonwealth should adopt five discharge planning and discharge plan (provisions (IV.B.1-5) and the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting (IV.B.7) .
Discharge Planning and Transition from Training Centers 3. The Commonwealth should modify its post-move monitoring process to comply with the Agreement’s requirements that PMM visits also occur after thirty days. Completing a visit after thirty days will allow post-move monitors to verify that each individual has had appointments with all his or her medical practitioners, as planned. These visits should also confirm that planned actions to ensure out-of-home day activities and supported employment opportunities have occurred.
Crisis Services for adults with ID and DD, other than ID. 4. The Commonwealth should require all Regions to complete, and maintain records that document, trainings that include:  CSB Emergency Service employees, until all in their region are trained;  outreach and training of law enforcement;  ID and DD Case Managers; and  the number of REACH staff who complete and pass each required training.
DBHDS should facilitate sharing of the different Regions’ trainings for law enforcement. Combining the strongest components of each Region’s current law enforcement training would significantly improve the quality and the impact of the law enforcement training.
5. The DBHDS should maintain records and report to the Independent Reviewer the number of individuals with DD, other than ID, who are referred and served in each Region.
6. The DBHDS should maintain records that document more specific information about individuals who experience psychiatric hospitalizations in each Region. This information should include whether the hospitalizations were appropriate or were necessitated by the lack of community crisis stabilization and/or behavioral support services. It should also document the involvement of REACH staff, the duration of hospitalization, the number of individuals who experience multiple hospitalizations, and the number of individuals who are not allowed to return to their previous placement.
7. The Commonwealth should assess and determine the need for additional crisis stabilization programs. It should report within thirty days of the end of each quarter the:  number of individuals who exceed the 30-day stay  number of individuals on waiting lists for the crisis stabilization programs in each Region  progress in Regions III and IV to come into compliance with a crisis stabilization home of no more
than six beds in a community-based home
8. Regional Support Teams DBHDS should establish standards for the time needed for proper implementation of the CIM/CRC/RST process. The standards should identify and track the elements of a complete referral and the dates when the:  CRCs/CIMs received complete referral information and provided technical assistance  CRCs/CIMs forwarded the referral to the RST  RSTs forwarded the referral information to RST members to review the case

	
  

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 RST’s work with the PSTs to resolve barriers and to recommend additional steps was completed. DBHDS should determine whether a referral was submitted to an RST for each admission to any nursing facility, ICF, or setting with five or more individuals during CY 2015 and 2016. These records should be maintained and submitted quarterly to the IR within thirty-days after the second, third and fourth quarters of Fiscal Year 2016.
9. Transportation DMAS should develop a plan with measurable milestones and a timeline so it can ensure that the transportation services provided to individuals with ID/DD with HCBS waivers are of good quality, appropriate, available, accessible, and safe. DMAS maintain and submit quarterly progress reports to the Independent Reviewer and should begin within thirty-days after the fourth quarter of Fiscal Year 2016.
9. Quality Improvement Programs The Commonwealth’s Crisis Services, Transportation, Quality Service Reviews, Mortality Review, and Regional Support Teams should maintain records that they have implemented quality improvement programs to:  identify gaps in quality and effectiveness  develop plans to address and resolve them.  evaluate whether improvement initiatives achieve desired and expected outcomes, and  determine what subsequent improvements are considered and implemented.
The Commonwealth should document that these quality improvement programs monitor whether program performance complies with the requirements of the Agreement and that the Commonwealth takes corrective action, as needed.
10. Web-based Incident Reports The Commonwealth should improve the CHRIS reporting form so that data reported are more complete, accurate and reflects “direct reporting”. For example, information reported should include:  “direct reporting” i.e., a report of the incident as provided by the staff who witnessed, or first
became beware of an allegation of abuse or neglect, or who noticed a change in behavior, physical condition, injury, death  a separate set of check boxes for events or alleged events (falls, peer to peer aggression, missing person) and for results of the events (i.e. sprain, swelling, laceration), and for actions taken (contact emergency personnel, unexpected hospitalization, “unplanned evacuations”, )  any contact with contact with law enforcement, infections reportable to the Department of Public Health, reports of missing persons, and allegations of theft of individuals’ funds or property
11. Risk Triggers and Thresholds DBHDS should add to the triggers and thresholds the early indicators of the conditions that the Mortality Review Committee has identified that uniquely contribute to the deaths of individuals with ID/DD. The Commonwealth should identify the early indications of the increased likelihood that these conditions have developed: urinary track infection, constipation/bowel obstruction, aspiration pneumonia, decubitus ulcers, sepsis, seizures, falls, and dehydration.

	
  

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The Commonwealth should establish highly sensitive triggers for individuals who are over age forty-five and who are considered medically fragile based on their Support Intensity Scale (SIS) assessments. One trigger should be a negative change in health status. Such a change should trigger a reassessment by the appropriate health care professional. The mortality reviews have found that negative changes in health status frequently precede unexpected deaths.
12. Provider Training The Commonwealth should complete a plan to guide its work to ensure training for all staff who provide services under the Agreement. The training plan should:  define the service elements  identify the type of competency-based training required for each  determine how competency will be measured  identify the staff to be trained  specify the frequency with which retraining should occur and competency should be determined
13. Guidance and Training: Provider Investigations The Commonwealth should offer classroom training, as well as online training, including the equivalent of experiential-based learning, such as role-plays and discussion in the online training for both the Investigation Process training and the Root Cause Analysis training,
The Commonwealth should develop a complete set of standards for what constitutes a trained investigator, adequate investigations, and an adequate investigation report.
14. Quality Service Reviews (QSRs) The Commonwealth should identify areas for improvement and implement needed corrective actions prior to implementation of its second annual cycle of QSRs. The Commonwealth should answer questions related to whether its QSR contractor utilized processes and protocols that would provide reliable indicators of quality services. These questions include:  Were the standards used in its audit tools clearly defined?  Were the methodologies used to answer the questions in the audit tools clearly defined?  Were the data sources used to answer the audit tools questions identified?  Were the criteria used for determining compliance (i.e. met or not met) with the standards
identified?  What confidence interval is provided by the statistically significant sample for types of service?  Were the auditors’ qualifications sufficient to assess and evaluate the clinically driven indicators?
15. Mortality Reviews The MRC should review options and then implement the most promising improvement initiatives to:  gather more complete information  conclude mortality reviews in ninety days  ensure membership that includes an independent member (i.e. a family physician)  evaluate the impact of its completed initiatives  strengthen its recommended initiatives with residential, primary care and emergency room
providers to reduce mortality rates

	
  

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VI. APPENDICES

A.

INDIVIDUAL REVIEWS

B.

REGIONAL SUPPORT TEAMS AND TRANSPOTATION SERVICES

C.

CRISIS SERVICES REQUIREMENTS

D.

QUALITY AND RISK MANAGEMENT

E.

LIST OF ACRONYMS

	
  

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APPENDIX A
INDIVIDUAL SERVICE REVIEWS April 7, 2015 – October 6, 2015
Completed by: Donald Fletcher, Independent Reviewer/Team Leader
Elizabeth Jones, Team Leader Marisa Brown MSN Barbara Pilarcik RN Shirley Roth MSN

	
  

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Demographic Information

Sex

n

Male

16

Female

8

% 66.7% 33.3%

Age ranges

n

Under 21

1

21 to 30

0

31 to 40

1

41 to 50

5

51 to 60

10

61-70

4

71-80

3

Note: 70.9% (17 of 24) of the individuals were age 51 or older

Levels of Mobility

n

Ambulatory without support

11

Ambulatory with support

4

Uses wheelchair

9

Total assistance

0

% 4.2% 0.0% 4.2% 20.8% 41.7% 16.7% 12.5%
% 45.8% 16.7% 37.5% 0.0%

Relationship with Authorized Representative

n

Parent or Sibling

22

Public Guardian

2

% 91.7% 8.3%

Type of Residence ICF-ID
Group home Sponsored home
Family home

n

%

8

33.3%

13

54.2%

3

12.5%

0

0.0%

Highest Level of Communication

n

Spoken language, fully articulates without assistance

2

Limited spoken language, needs some staff support

4

Communication device

1

Gestures

15

Vocalizations, Facial Expressions, Other

2

% 8.3% 16.7% 4.2% 62.5% 8.4%

	
  

72	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 73 of 161 PageID# 6575 	
  

COMPARISON: Demographic information 80 individuals who moved from Training Centers during the third, fifth and seventh review periods

Twenty-eight 3rd period study

Gender
Age Ranges
Levels of Mobility Highest Level of Communication
Type of Residence

16 (57.1%) males 21 (75%) age fifty-one or older 13 (46.4%) use wheelchairs 19 (67.8%) use gestures 24 (85.7%) live in congregate residential programs

Relationship w/ 21 (75%)

Authorized

parent or sibling

Representative

Twenty-eight 5th period study
13 (46.4%) males

Twenty-four 7th period study
16 (66.7%) males

Totals Eighty individuals 3rd, 5th and 7th periods 45 (56.3%) males

22 (78.5%) age fifty-one or older 11 (39.3%) use wheelchairs 18 (64.3%) use gestures 26 (92.9%) live in congregate residential programs
24 85.7%) parent or sibling

17 (70.9%) age fifty-one or older 9 (37.5%) use wheelchairs 17 (70.8%) use gestures 21 (87.5%) live in congregate residential programs
22 (91.6%) parent or sibling

60 (75%) age fifty-one or older 33 (41.3%) use wheelchairs 54 (67.5%) use gestures 71 (88.8%) live in congregate residential programs 67 (83.8%) AR is his or her parent or sibling

Discharge Planning – positive outcomes

Item

n

Y

Did the individual and, if applicable, his/her

24

95.8%

Authorized Representative participate in discharge

planning?

Was the discharge plan updated within 30 days prior

24

100.0%

to the individual’s transition?

Did person-centered planning occur?

24

100.0%

Were essential supports described in the discharge

24

91.7%

plan?

Did the discharge plan include an assessment of the

24

100.0%

supports and services needed to live in most integrated

settings, regardless of whether such services were

currently available?

Was provider staff trained in the individual support

24

100.0%

plan protocols that were transferred to the community?

Does the discharge plan (including the Discharge Plan

24

95.8%

Memo) list the key contacts in the community,

including the licensing specialist, Human Rights

Officer, Community Resource Consultant and CSB

supports coordinator?

Did the Post-Move Monitor, Licensing Specialist, and

24

100.0%

Human Rights Officer conduct post-move monitoring

visits as required?

N 4.2%
0.0% 0.0% 8.3%
0.0%
0.0% 4.2%
0.0%

CND 0.0%
0.0% 0.0% 0.0%
0.0%
0.0% 0.0%
0.0%

	
  

73	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 74 of 161 PageID# 6576 	
  

Discharge Planning – positive outcomes

Item

n

Y

Were all medical practitioners identified before the

24

95.8%

individual moved, including primary care physician,

dentist and, as needed, psychiatrist, neurologist and

other specialists?

N 4.2%

CND 0.0%

Discharge Planning Items – areas of concern

Item

n

Y

Was it documented that the individual and, as

24

45.8%

applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals

currently living in the community and their families?

Was it documented that the individual, and, if

24

83.3%

applicable, his/her Authorized Representative, were

provided with information regarding community

options?

If a move to a residence serving five or more

12

0.0%

individuals was recommended, did the Personal

Support Team (PST) and, when necessary, the

Regional Support Team (RST) identify barriers to

placement in a more integrated setting?

If barriers to move to a more integrated setting were

0

identified above, were steps undertaken to resolve

such barriers?

Were all essential supports in place before the

24

87.5%

individual moved?

Was placement, with supports, in affordable housing,

24

33.3%

including rental or housing assistance, offered?

N 54.2% 16.7% 100.0%
12.5% 66.7%

CND 0.0% 0.0% 0.0%
0.0% 0.0%

Discharge Planning Items – areas of concern

TRENDS – 2013 – 2014 – 2015

3rd review period 2013

5th review period 2014

7th review period 2015

Was it documented that the individual and, as applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals currently living in the community and their

families?

14.3% (4 of 28)

64.3% (17 of 28)

50% (12 of 24)

Was placement, with supports, in affordable housing, including rental or housing assistance, offered?

0% (0 of 28)

0% (0 of 28)

17.4% (4 of 24)

Were all essential supports in place before the individual moved?

78.6%% (22 of 28)

71.4%% (20 of 28)

87.5% (21 of 24)

	
  

74	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 75 of 161 PageID# 6577 	
  

Below are the positive outcomes and areas of concern related the individuals’ healthcare.

Healthcare Items - positive outcomes

Item

n

Y

Did the individual have a physical examination

24

100.0%

within the last 12 months or is there a variance

approved by the physician?

Were the Primary Care Physician’s (PCP’s)

24

91.7%

recommendations addressed/implemented within

the time frame recommended by the PCP?

Were the medical specialist’s recommendations

23

95.7%

addressed/implemented within the time frame

recommended by the medical specialist?

If ordered by a physician, was there a current

12

91.7%

psychological assessment?

If ordered by a physician, was there a current

14

92.9%

speech and language assessment?

Is lab work completed as ordered by the physician?

24

100.0%

If applicable per the physician’s orders,

15

100.0%

Does the provider monitor fluid intake?

Does the provider monitor food intake?

19

100.0%

Does the provider monitor bowel movements

24

100.0%

Does the provider monitor weight fluctuations?

24

100.0%

Does the provider monitor seizures?

14

100.0%

Does the provider monitor positioning protocols?

10

100.0%

Does the provider monitor tube feedings?

3

100.0%

If applicable, is the dining plan followed?

21

95.2%

If applicable, is the positioning plan followed?

11

100.0%

Did the individual have a dental examination within

23

95.7%

the last 12 months or is there a variance approved

by the dentist?

Were the dentist’s recommendations implemented

22

90.9%

within the time frame recommended by the dentist?

Is there any evidence of administering excessive or

24

8.3%

unnecessary medication(s) (including psychotropic

medication?

If applicable, is there documentation that

caregivers/clinicians

Did a review of bowel movements?

23

100.0%

Made necessary changes, as appropriate?

12

100.0%

After a review of tube feeding, necessary

3

100.0%

changes were made, as appropriate?

N 0.0%
8.3%
4.3%
8.3% 7.1% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 4.8% 0.0% 4.3%
4.5% 91.7%
0.0% 0.0% 0.0%

CND 0.0%
0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
4.5% 0.0%
0.0% 0.0% 0.0%

	
  

75	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 76 of 161 PageID# 6578 	
  

COMPARISON Healthcare – positive outcomes improvement – 2013-2014-2015

3rd review period

5th review period

7th review period

2013

2014

2015

Did the individual have a dental examination within the last 12 months or is there a variance approved

by the dentist?

74.1%% (20 of 27)

96.4%% (27 of 28)

95.7% (22 of 23)

Does the provider monitor weight fluctuations, if applicable per the physician’s orders?

83.3% (20 of 24)

92.9% (26 of 28)

100% (24 of 24)

COMPARISON Healthcare – areas of concern – 2013-2014-2015

3rd review period

5th review period

7th review period

2013

2014

2015

If weight fluctuations occurred, were necessary changes made, as appropriate?

77.8% (14 of 18)

88.0% (22 of 25)

68.8% (11 of 16)

Is there documentation of the intended effects and side effects of the medication?

66.7% (8 of 12)

75.0% (9 of 12)

66.7% (6 of 9)

Healthcare Items – areas of concern

Item

n

Y

Were appointments with medical practitioners for

24

87.5%

essential supports scheduled for and, did they occur

within 30 days of discharge?

Are there needed assessments that were not

24

29.2%

recommended?

N 12.5%
70.8%

CND 0.0%
0.0%

Healthcare Items –Psychotropic Medications - areas of concern

Item

n

Y

N

If the individual receives psychotropic medication:

9

66.7% 33.3%

is there documentation of the intended effects and

side effects of the medication?

is there documentation that the individual and/or a

9

77.8% 22.2%

legal guardian have given informed consent for the

use of psychotropic medication(s)?

does the individual’s nurse or psychiatrist conduct

9

77.8% 22.2%

monitoring as indicated for the potential

development of tardive dyskinesia, or other side

effects of psychotropic medications, using a

standardized tool (e.g. AIMS) at baseline and at least

every 6 months thereafter)?

CND 0.0%
0.0%
0.0%

	
  

76	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 77 of 161 PageID# 6579 	
  

Below are the positive outcomes and areas of concern related the individuals’ support plans. Note: All items in the listed “Individual Support Plan Items – positive outcomes” were also found to have positive outcomes in the Independent Reviewer’s previous Report to the Court

Individual Support Plan Items – positive outcomes

Item

n

Y

Is the individual’s support plan current?

24

100.0%

Is there evidence of person-centered (i.e. individualized)

24

100.0%

planning?

Are essential supports listed?

24

91.7%

N 0.0% 0.0%
8.3%

Is the individual receiving supports identified in his/her

individual support plan?

Residential

24

100.0% 0.0%

Medical

24

100.0% 0.0%

Recreation

23

100.0% 0.0%

Mental Health

9

100.0% 0.0%

Transportation

22

100.0% 0.0%

Do the individual’s desired outcomes relate to his/her

24

87.5% 12.5%

talents, preferences and needs as identified in the

assessments and his/her individual support plan?

For individuals who require adaptive equipment, is staff

21

100.0% 0.0%

knowledgeable and able to assist the individual to use

the equipment?

Is staff assisting the individual to use the equipment as

21

100.0% 0.0%

prescribed?

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0%
0.0%

Individual Support Plan Items – areas of concern

Item

n

Y

Has the individual’s support plan been modified as

3

33.3%

necessary in response to a major event for the person, if

one has occurred?

Does the individual’s support plan have specific

24

37.5%

outcomes and support activities that lead to skill

development or other meaningful outcomes?

Does the individual’s support plan address barriers that

24

83.3%

may limit the achievement of the individual’s desired

outcomes?

If applicable, were employment goals and supports

20

10.0%

developed and discussed?

Does typical day include regular integrated

24

100.0%

activities?

N 66.7%
62.5%
16.7%
90.0% 0.0%

CND 0.0%
0.0%
0.0%
0.0% 0.0%

	
  

77	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 78 of 161 PageID# 6580 	
  

The 2012 to 2014 comparison indicates there has been significant progress with case managers review for individuals who qualify for monthly face-to-face visits.

Case Management – positive trend There is evidence of case management review, e.g. meeting with the individual face-to-face at least every 30 days, with at least one such visit every two months being in the individual’s place of residence.

1st review period 2012
46.9% (15 of 32)

3rd review period 2013
88.9% (24 of 27)

4th review period 2014
100% (19 of 19)

5th review period 2014
96.4% (27 of 28)

7th review period 2015
95.8% (23 0f 24)

Below are areas of concern related to the development of the individual support plans and integration outcomes of individuals in their communities.

Integration items – areas of concern

Item

n

Y

Do you live in a home in a home licensed for four or

24

41.7%

fewer individuals with disabilities and without other

such homes clustered on the same setting?

Were employment goals and supports developed and

20

10.0%

discussed?

If no, were integrated day opportunities offered?

20

5.0%

N 58.3%
90.0% 95.0%

CND 0.0%
0.0% 0.0%

Does typical day include regular integrated activities?

23

0.0% 100.0% 0.0%

Have you met your neighbors?

23

34.8% 65.2% 0.0%

COMPARISON – Most Integrated Setting The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.

1st review period 2012
46.9% (15 of 32)

3rd review period 2013
53.6% (15 of 28)

5th review period 2014
57.1% (16 of 28)

7th review period 2015
41.7% (10 of 24)

	
  

78	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 79 of 161 PageID# 6581 	
  
Below are positive outcomes and areas of concern in the residential programs where case managers monitor the implementation of support plans.

Residential Staff – positive outcomes Items

Item

n

Y

Is residential staff able to describe the individual’s likes

24

95.8%

and dislikes?

Is residential staff able to describe the individual’s health 24

100.0%

related needs and their role in ensuring that the needs

are met?

If a Residential provider’s home, is residential staff able

24

91.7%

to describe the individual’s talents/contributions and

what’s important to and important for the individual?

Is there evidence the staff has been trained on the desired 24

100.0%

outcome and support activities of the individual’s support

plan?

N 4.2% 0.0%
8.3%
0.0%

CND 0.0% 0.0%
0.0%
0.0%

Residential Environment Items – positive outcomes

Item

n

Y

N

Is the individual’s residence clean?

24

95.8% 4.2%

Are food and supplies adequate?

24

91.7% 8.3%

Does the individual appear well kempt?

24

91.7% 8.3%

Are services and supports available within a reasonable

24

100.0% 0.0%

distance from your home?

Do you have your own bedroom?

24

91.7% 8.3%

Do you have privacy in your home if you want it?

24

95.8% 4.2%

b. Has there been a Licensing Visit that checked that

24

95.8% 4.2%

smoke detectors were working, that fire extinguishers had

been inspected, and that other safety requirements had

been met?

CND 0.0% 0.0% 0.0% 0.0%
0.0% 0.0% 0.0%

Residential Environment Items – areas of concern

Item

n

Y

N

Is there evidence of personal décor in the individual’s

24 83.3% 16.7%

room and other personal space?

CND
0.0%

Note: all four individuals’ rooms without evidence of personal décor were in congregate homes of five or more, ICFs, or settings with more with one such home clustered on a setting.

	
  

79	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 80 of 161 PageID# 6582 	
  
APPENDIX B. TRANSPORTATION
and REGIONAL SUPPORT TEAMS REQUIREMENTS OF THE SETTLEMENT AGREEMENT
By: Ric Zaharia Ph.D.

	
  

80	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 81 of 161 PageID# 6583 	
  

	
   	
  
	
  
	
  
	
  
Report	
  to	
  the	
  Independent	
  Reviewer	
  

United	
  States	
  v.	
  Commonwealth	
  of	
  Virginia	
  

	
  

	
  

Transportation	
   	
  and	
  	
  
Regional	
  Support	
  Team	
   Requirements	
  of	
  the	
  Settlement	
  Agreement	
  

	
  

	
  

	
  

By	
   	
  
Ric	
  Zaharia,	
  Ph.D.,	
  FAAIDD	
   Vice-­‐President	
  
Consortium	
  on	
  Innovative	
  Practices	
  
	
  

	
  

	
  

	
  

	
  

81	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 82 of 161 PageID# 6584
	
  
	
   Introduction	
  
	
   The	
  Independent	
  Reviewer	
  for	
  the	
  US	
  v	
  Commonwealth	
  of	
  Virginia	
  Settlement	
   Agreement	
  requested	
  a	
  review	
  of	
  the	
  Transportation	
  and	
  Regional	
  Support	
  Team	
   (RST)	
  requirements	
  of	
  the	
  Agreement.	
  This	
  review	
  was	
  based	
  on	
  key	
  indicators	
  that	
   would	
  produce	
  a	
  baseline	
  assessment	
  of	
  these	
  requirements.	
  	
   	
   Non-­‐Emergency	
  Medical	
  Transportation	
  (NEMT)	
  in	
  Virginia	
  is	
  administered	
  by	
  DMAS	
   (Department	
  of	
  Medical	
  Assistance	
  Services)	
  through	
  a	
  brokerage	
  system	
  contracted	
   to	
  a	
  multi-­‐state	
  private	
  sector	
  contractor,	
  Logisticare.	
  Because	
  almost	
  all	
  but	
  	
  a	
  small	
   percentage	
  of	
  Waiver	
  users	
  depend	
  on	
  transportation	
  services	
  in	
  their	
  service	
  plans	
   (Individual	
  Service	
  Reviews,	
  2012-­‐2015),	
  the	
  effective	
  functioning	
  of	
  the	
  DMAS	
   transportation	
  brokerage	
  is	
  critical	
  to	
  the	
  goal	
  of	
  improving	
  the	
  lives	
  of	
  people	
  with	
   intellectual	
  and	
  developmental	
  disabilities	
  in	
  Virginia.	
  However,	
  this	
  is	
  in	
  the	
  context	
   that	
  DMAS	
  is	
  responsible	
  for	
  transportation	
  services	
  to	
  1.2	
  million	
  Virginians	
  who	
  are	
   eligible	
  for	
  Medicaid	
  and	
  for	
  over	
  4	
  million	
  trips	
  annually	
  by	
  those	
  Virginians	
  through	
   their	
  brokerage,	
  Logisticare.	
   	
   Many	
  important	
  aspects	
  of	
  transportation	
  are	
  not	
  part	
  of	
  this	
  review.	
  Effectiveness	
  of	
   incident	
  investigations,	
  successful	
  provider	
  implementation	
  of	
  corrective	
  action	
   plans,	
  and	
  the	
  management	
  of	
  substandard	
  or	
  poor	
  performing	
  providers	
  were	
  not	
   examined	
  in	
  this	
  review.	
  	
   	
   Logisticare	
  does	
  not	
  separate	
  out	
  individuals	
  in	
  the	
  ID/DD	
  Waivers	
  in	
  their	
  databases.	
   For	
  analysis	
  related	
  to	
  this	
  review	
  of	
  transportation	
  services	
  for	
  the	
  target	
   population,	
  with	
  DMAS	
  assistance,	
  Logisticare	
  was	
  eventually	
  able	
  to	
  and	
  did	
  sort	
   their	
  data	
  to	
  identify	
  which	
  complaints	
  were	
  made	
  by	
  or	
  on	
  behalf	
  of	
  individuals	
  with	
   ID/DD	
  waiver	
  services.	
  This	
  gives	
  encouragement	
  that	
  DMAS/Logisticare	
  have	
  the	
   records	
  needed	
  to	
  conduct	
  additional	
  Waiver	
  sub-­‐group	
  analysis.	
  Only	
  with	
   information	
  about	
  the	
  transportation	
  experiences	
  of	
  individuals	
  in	
  the	
  target	
   population	
  is	
  DMAS/Logisticare	
  able	
  to	
  undertake	
  quality	
  improvement	
  initiatives	
   that	
  may	
  be	
  needed	
  to	
  ensure	
  that	
  their	
  transportation	
  services	
  meet	
  the	
  needs	
  of	
   individuals	
  with	
  ID/D.	
   	
   Two	
  themes	
  in	
  the	
  Settlement	
  Agreement	
  guide	
  Regional	
  Support	
  Teams:	
  a)	
  diverting	
   individuals	
  from	
  nursing	
  homes,	
  ICF’s	
  and	
  other	
  larger	
  congregate	
  settings	
  (five+)	
   and	
  b)	
  ongoing	
  quality	
  improvements	
  in	
  discharge	
  planning	
  and	
  development	
  of	
   community-­‐based	
  services.	
  In	
  order	
  to	
  meet	
  the	
  expectations	
  of	
  the	
  Agreement,	
  RSTs	
   and	
  their	
  staff	
  need	
  to	
  operate	
  at	
  the	
  micro	
  level	
  of	
  individual	
  situations	
  and	
  then	
   generate	
  insights	
  and	
  actions	
  at	
  the	
  macro	
  level.	
   	
   	
   	
   	
   	
  

	
  

82	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 83 of 161 PageID# 6585 	
  

RSTs	
  have	
  gone	
  through	
  an	
  evolution	
  during	
  their	
  two	
  year	
  existence.	
  The	
  larger	
   system	
  (services	
  planning	
  teams,	
  providers,	
  CSBs,	
  etc.)	
  has	
  had	
  to	
  adapt	
  and	
  adjust	
  to	
   their	
  presence	
  in	
  the	
  service	
  planning	
  and	
  delivery	
  environment.	
  That	
  adjustment	
  is	
   not	
  yet	
  complete.	
  Beyond	
  the	
  Agreement	
  requirements	
  of	
  barrier	
  identification	
  and	
   resolution,	
  data	
  analytics	
  and	
  promoting	
  residential	
  settings	
  of	
  four	
  or	
  fewer,	
  the	
   RSTs	
  have	
  wrestled	
  with	
  the	
  operational	
  issue	
  of	
  receiving	
  referrals	
  with	
  sufficient	
   time	
  to	
  address	
  barriers	
  and	
  the	
  core	
  systemic	
  issues	
  of	
  inadequate	
  resources	
  and	
   insufficient	
  numbers	
  of	
  providers	
  willing	
  and	
  able	
  to	
  serve	
  individuals	
  with	
  more	
   challenging	
  needs	
  (i.e.	
  medical,	
  behavioral,	
  dually	
  diagnosed,	
  etc.)	
  in	
  smaller	
  more	
   integrated	
  settings.	
  

This	
  report	
  is	
  organized	
  into	
  five	
  sections	
  each	
  with	
  an	
  introductory	
  statement	
  of	
  the	
   requirements	
  of	
  the	
  Agreement,	
  a	
  description	
  of	
  the	
  methodology,	
  a	
  report	
  on	
  the	
   findings	
  from	
  this	
  evaluation,	
  and	
  recommendations	
  to	
  achieve	
  full	
  compliance;	
   suggestions	
  are	
  offered	
  where	
  an	
  area	
  might	
  be	
  improved.	
  	
  The	
  compliance	
  table	
  on	
   the	
  next	
  page	
  recaps	
  the	
  compliance	
  assessments	
  made	
  in	
  this	
  review.	
  

	
  

	
  

	
  

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Compliance	
  Table	
   	
  

Settlement	
  

Settlement	
  Agreement	
  Language	
  

Compliance	
  as	
  of	
   Page	
  

Agreement	
  

9/15/2015	
  

Section	
  

Section	
  

The	
  Commonwealth	
  shall	
  provide	
  transportation	
  to	
  individuals	
  receiving	
  HCBS	
  

Non-­‐Compliance	
  

7	
  

III.C.8.a	
  

waiver	
  services	
  in	
  the	
  target	
  population	
  in	
  accordance	
  with	
  the	
  Commonwealth’s	
  

	
  

HCBS	
  Waivers.	
  

Section	
   III.D.6	
  

Community	
  Living	
  Options	
   6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual's needs and informed choice and has been reviewed by the Region's Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team.

Non-­‐Compliance.	
   11	
  

Section	
  

Community Resource Consultants and Regional Support Teams

Compliance	
  

11	
  

III.E.1-­‐3	
  

1.	
  	
  The	
  Commonwealth	
  shall	
  utilize	
  Community	
  Resource	
  Consultant	
  (“CRC”)	
   positions	
  located	
  in	
  each	
  Region	
  to	
  provide	
  oversight	
  and	
  guidance	
  to	
  CSBs	
  and	
  

community	
  providers,	
  and	
  serve	
  as	
  a	
  liaison	
  between	
  the	
  CSB	
  case	
  managers	
  and	
  

DBHDS	
  Central	
  Office.	
  The	
  CRCs	
  shall	
  provide	
  on-­‐site,	
  electronic,	
  written,	
  and	
  

telephonic	
  technical	
  assistance	
  to	
  CSB	
  case	
  managers	
  and	
  private	
  providers	
  

regarding	
  person-­‐centered	
  planning,	
  the	
  Supports	
  Intensity	
  Scale,	
  and	
  

requirements	
  of	
  case	
  management	
  and	
  HCBS	
  Waivers.	
  The	
  CRC	
  shall	
  also	
  provide	
  

ongoing	
  technical	
  assistance	
  to	
  CSBs	
  and	
  community	
  providers	
  during	
  an	
  

individual’s	
  placement.	
  The	
  CRCs	
  shall	
  be	
  a	
  member	
  of	
  the	
  Regional	
  Support	
  Team	
  

in	
  the	
  appropriate	
  Region.	
  

2.	
  	
  The	
  CRC	
  may	
  consult	
  at	
  any	
  time	
  with	
  the	
  Regional	
  Support	
  Team.	
  Upon	
  referral	
   Non-­‐Compliance	
  

11	
  

to	
  it,	
  the	
  Regional	
  Support	
  Team	
  shall	
  work	
  with	
  the	
  Personal	
  Support	
  Team	
  

(“PST”)	
  and	
  CRC	
  to	
  review	
  the	
  case,	
  resolve	
  identified	
  barriers,	
  and	
  ensure	
  that	
  the	
  

placement	
  is	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
  the	
  individual’s	
  needs,	
  

consistent	
  with	
  the	
  individual’s	
  informed	
  choice.	
  The	
  Regional	
  Support	
  Team	
  shall	
  

have	
  the	
  authority	
  to	
  recommend	
  additional	
  steps	
  by	
  the	
  PST	
  and/or	
  CRC.	
  

3. The CRC shall refer cases to the Regional Support Teams for review, assistance in

Compliance	
  

11	
  

resolving barriers, or recommendations whenever…

Section	
  

	
  The	
  State	
  shall	
  ensure	
  that	
  information	
  about	
  barriers	
  to	
  discharge	
  from	
  involved	
  

Compliance	
  

13	
  

IV.B.14	
  

providers,	
  CSB	
  case	
  managers,	
  Regional	
  Support	
  Teams,	
  Community	
  Integration	
   Managers,	
  and	
  individuals’	
  ISPs	
  is	
  collected	
  from	
  the	
  Training	
  Centers	
  and	
  is	
  

aggregated	
  and	
  analyzed	
  for	
  ongoing	
  quality	
  improvement,	
  discharge	
  planning,	
  

and	
  development	
  of	
  community-­‐based	
  services.	
  

Section	
   IV.B.15	
  

	
  In	
  the	
  event	
  that	
  a	
  PST	
  makes	
  a	
  recommendation	
  to	
  maintain	
  placement	
  at	
  a	
  

Non-­‐Compliance	
   14	
  

Training	
  Center	
  or	
  to	
  place	
  an	
  individual	
  in	
  a	
  nursing	
  home	
  or	
  congregate	
  setting	
  

with	
  five	
  or	
  more	
  individuals,	
  the	
  decision	
  shall	
  be	
  documented,	
  and	
  the	
  PST	
  shall	
  

identify	
  the	
  barriers	
  to	
  placement	
  in	
  a	
  more	
  integrated	
  setting	
  and	
  describe	
  in	
  the	
  

discharge	
  plan	
  the	
  steps	
  the	
  team	
  will	
  take	
  to	
  address	
  the	
  barriers.	
  The	
  case	
  shall	
  be	
   referred	
  to	
  the	
  Community	
  Integration	
  Manager	
  and	
  Regional	
  Support	
  Team	
  in	
   accordance	
  with	
  Sections	
  IV.D.2.a	
  and	
  f	
  and	
  IV.D.3	
  below,	
  and	
  such	
  placements	
  shall	
   only	
  occur	
  as	
  permitted	
  by	
  Section	
  IV.C.6.	
  

Section	
  

The	
  Commonwealth	
  will	
  create	
  five	
  Regional	
  Support	
  Teams,	
  each	
  coordinated	
  by	
  

Compliance	
  

15	
  

IV.D.3	
  

CIM.	
  The	
  Regional	
  Support	
  Teams	
  shall	
  be	
  composed	
  of	
  professionals	
  with	
  expertise	
   in	
  serving	
  individuals	
  with	
  developmental	
  disabilities	
  in	
  the	
  community,	
  including	
  

individuals	
  with	
  complex	
  behavioral	
  and	
  medical	
  needs.	
  Upon	
  referral	
  to	
  it,	
  the	
  

Regional	
  Support	
  Team	
  shall	
  work	
  with	
  the	
  PST	
  and	
  CIM	
  to	
  review	
  the	
  case	
  and	
  

resolve	
  identified	
  barriers.	
  The	
  Regional	
  Support	
  Team	
  shall	
  have	
  the	
  authority	
  to	
  

recommend	
  additional	
  steps	
  by	
  the	
  PST	
  and/or	
  CIM.	
  The	
  CIM	
  may	
  consult	
  at	
  any	
  

time	
  with	
  the	
  Regional	
  Support	
  Teams	
  and	
  will	
  refer	
  cases	
  to	
  the	
  Regional	
  Support	
  

Teams	
  when:….	
  

Section	
   IX.C	
  	
  

	
  Requires	
  that	
  there	
  be	
  “…sufficient	
  records	
  to	
  document	
  that	
  the	
  requirements	
  of	
  the	
   Non-­‐Compliance	
   n.a.	
   Agreement	
  are	
  being	
  properly	
  implemented…”	
  

	
  

	
  

	
  

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1)	
  Transportation	
  Services	
  

	
  

III.C.8.a	
  

	
  

The	
  Commonwealth	
  shall	
  provide	
  transportation	
  to	
  individuals	
  receiving	
  HCBS	
  waiver	
  services	
  in	
  the	
  target	
  

population	
  in	
  accordance	
  with	
  the	
  Commonwealth’s	
  HCBS	
  Waivers.	
  

	
  

Methodology	
  

Reviewed	
  DMAS’s	
  quality	
  improvement	
  policies	
  and	
  processes	
  for	
  transportation.	
  

	
  	
   Reviewed	
  DMAS’s	
  data	
  collection	
  and	
  analysis	
  processes,	
  including	
  actions	
  to	
  

improve	
  the	
  quality,	
  availability,	
  accessibility,	
  and	
  safety	
  of	
  transportation	
  

services.	
  

	
  	
   Reviewed	
  relevant	
  work	
  group	
  minutes.	
  

	
  	
   Reviewed	
  transportation	
  complaints	
  log	
  for	
  ID/DD	
  (Intellectual	
  

Disability/Developmental	
  Disability)	
  members	
  in	
  the	
  Waiver.	
  

	
   Reviewed	
  response	
  patterns	
  to	
  transportation	
  questions	
  in	
  the	
  Independent	
  

Reviewer’s	
  Individual	
  Service	
  Reviews	
  (ISR).	
  

	
  	
   Reviewed	
  DMAS	
  transportation	
  policy.	
  

	
  	
   Reviewed	
  DMAS	
  contract	
  boilerplate,	
  terms	
  and	
  conditions	
  for	
  

contractors/sub-­‐contractors.	
  

	
   Interviewed	
  key	
  managers	
  at	
  Logisticare	
  (Echols,	
  Franklin,	
  Gaston).	
  

	
   Interviewed	
  DMAS	
  transportation	
  managers	
  (Bevan,	
  Cors,	
  Zieser).	
  

	
  

Findings	
  

The	
  DMAS	
  and	
  Logisticare	
  quality	
  improvement	
  processes	
  for	
  transportation	
  are	
  well	
  

established	
  for	
  the	
  general	
  population	
  of	
  Medicaid	
  transportation	
  users.	
  For	
  example,	
  after	
  

drivers	
  who	
  arrive	
  late	
  for	
  pickup,	
  No	
  Vehicle	
  Available	
  (NVA)	
  appears	
  to	
  be	
  the	
  most	
  

consistent	
  problem	
  discovered	
  statewide	
  by	
  Logisticare	
  processes.	
  Consequently,	
  Logisticare	
  

has	
  implemented	
  a	
  weekly	
  tracking	
  system	
  and	
  report	
  for	
  DMAS	
  showing	
  where	
  unfulfilled	
  

trip	
  requests	
  occur	
  due	
  to	
  NVA,	
  as	
  well	
  as	
  their	
  actions	
  to	
  redress	
  these	
  problems.	
  In	
  

addition,	
  Logisticare	
  provides	
  weekly	
  and	
  monthly	
  recap	
  reports	
  to	
  DMAS	
  on	
  all	
  operational	
  

problems	
  experienced	
  during	
  the	
  period	
  based	
  on	
  a	
  jointly	
  developed	
  implementation	
  plan.	
  

With	
  DMAS,	
  Logisticare	
  has	
  developed	
  Alternative	
  Transportation	
  approaches,	
  which	
  have	
  

attempted	
  to	
  ease	
  these	
  gaps:	
  mileage	
  reimbursement	
  to	
  group	
  homes	
  and	
  individuals,	
  

public	
  transit	
  bus	
  passes,	
  and	
  a	
  volunteer	
  driver	
  program.	
  However,	
  there	
  were	
  anecdotal	
  

reports	
  that	
  the	
  mileage	
  reimbursement	
  program	
  is	
  overly	
  complex	
  and	
  cumbersome	
  to	
  use.	
  

	
  	
  

The	
  quality	
  improvement	
  processes	
  for	
  transportation	
  services	
  for	
  the	
  target	
  population,	
  

however,	
  do	
  not	
  provide	
  information	
  that	
  documents	
  that	
  transportation	
  services	
  are	
  being	
  

properly	
  implemented	
  and,	
  therefore,	
  do	
  not	
  comply	
  with	
  the	
  Quality	
  and	
  Risk	
  Management	
  

provisions	
  of	
  Sections	
  V.B.	
  and	
  V.D.	
  of	
  the	
  Agreement.	
  This	
  includes	
  identifying	
  and	
  

addressing	
  risks	
  to	
  ID/DD	
  Waiver	
  users,	
  determining	
  the	
  sufficiency	
  and	
  quality	
  of	
  services	
  

to	
  ID/DD	
  Waiver	
  users,	
  and	
  collecting	
  and	
  evaluating	
  data	
  for	
  continuous	
  improvement	
  to	
  

ID/DD	
  Waiver	
  users.	
  	
  

	
  

Logisticare	
  was	
  able,	
  with	
  help	
  from	
  DMAS,	
  to	
  identify	
  12,867	
  complaints	
  from	
  ID/DD	
  

Waiver	
  users	
  through	
  their	
  Rider	
  Assist	
  line	
  for	
  the	
  FY	
  15	
  period.	
  By	
  comparison	
  DMAS	
  

reported	
  8,603	
  complaints	
  from	
  all	
  users	
  during	
  one	
  90-­‐day	
  period	
  in	
  CY15;	
  by	
  

	
  

85	
  

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extrapolation	
  this	
  is	
  annual	
  overall	
  complaint	
  rate	
  of	
  .9%	
  or	
  9	
  per	
  1,000	
  trips	
  (34,412	
   complaints	
  per	
  4,000,000	
  trips).	
  	
  These	
  data	
  further	
  suggest	
  that	
  complaints	
  from	
  the	
  ID/DD	
   Waiver	
  users	
  constitute	
  about	
  37%	
  (12,867	
  Waiver	
  complaints	
  versus	
  34,412	
  from	
  the	
   general	
  Medicaid	
  population)	
  of	
  the	
  total	
  complaints	
  received	
  by	
  Logisticare.	
  This	
  appears	
  to	
   represent	
  a	
  disproportionate	
  share	
  of	
  complaints	
  made	
  by	
  approximately	
  10,000	
  potential	
   ID/DD	
  Waiver	
  users	
  compared	
  with	
  the	
  overall	
  group	
  of	
  1.2	
  million	
  Medicaid	
  eligible	
  users.	
  	
  	
   	
   There	
  are	
  also	
  other	
  indicators	
  that	
  the	
  target	
  population	
  of	
  the	
  Agreement	
  may	
  have	
  a	
   disproportionately	
  higher	
  rate	
  of	
  complaints	
  about	
  the	
  DMAS/Logisticare	
  transportation	
   services.	
  Of	
  the	
  randomly	
  selected	
  161	
  Individual	
  Service	
  Reviews	
  conducted	
  2012-­‐2015	
  by	
   the	
  Independent	
  Reviewer	
  indicate	
  that	
  of	
  the	
  95%	
  of	
  Waiver	
  recipients	
  have	
  transportation	
   included	
  in	
  their	
  service	
  plans,	
  1	
  (14.3%)	
  in	
  7	
  individuals	
  reported	
  problems	
  with	
  their	
   transportation	
  services	
  no	
  matter	
  who	
  provided	
  it.	
  Of	
  those	
  who	
  used	
  Logisticare	
   subcontractors,	
  however,	
  rather	
  than	
  their	
  residential	
  provider	
  or	
  family,	
  6	
  of	
  10	
  (60%)	
   reported	
  problems	
  with	
  their	
  transportation.	
   	
   Recent	
  record	
  reviews	
  and	
  focus	
  groups	
  conducted	
  for	
  the	
  Independent	
  Reviewer	
  have	
   surfaced	
  frequent	
  anecdotal	
  reports	
  of	
  problems	
  with	
  DMAS/Logisticare	
  transportation	
  for	
   ID/DD	
  Waiver	
  users.	
  The	
  most	
  disruptive	
  transportation	
  problems	
  appear	
  to	
  occur	
  for	
   individuals	
  attending	
  day	
  or	
  work	
  programs	
  usually	
  five	
  days	
  a	
  week.	
  When	
  the	
  ‘ride’	
  is	
  not	
   there	
  on	
  time,	
  individuals	
  may	
  get	
  upset,	
  may	
  get	
  into	
  mischief,	
  or	
  may	
  cause	
  supervision	
   issues	
  for	
  parents	
  who	
  work	
  or	
  group	
  home	
  staff	
  who	
  might	
  be	
  scheduled	
  to	
  go	
  off	
  duty.	
  In	
   fact,	
  one	
  individual	
  was	
  cited	
  whose	
  psychiatric	
  placement	
  was	
  triggered,	
  in	
  part,	
  by	
   behavioral	
  difficulties	
  that	
  occurred	
  subsequent	
  to	
  ‘no	
  shows’	
  of	
  daily	
  transportation	
  to	
  a	
   day	
  program.	
  These	
  reports	
  may	
  also	
  point	
  out	
  a	
  higher	
  rate	
  of	
  problems	
  and	
  ones	
  that	
  are	
   unique	
  to	
  ID/DD	
  users.	
  	
  For	
  many	
  individuals	
  with	
  disabilities	
  the	
  regularization	
  and	
   predictability	
  of	
  their	
  daily	
  schedule	
  is	
  very	
  important.	
  After	
  DMAS	
  assisted	
  Logisticare	
  to	
   separate	
  out	
  the	
  FY	
  2015	
  complaints	
  from	
  ID/DD	
  users	
  for	
  this	
  review,	
  the	
  largest	
  portion	
  of	
   the	
  ID/DD	
  Waiver	
  complaints	
  reported	
  to	
  Logisticare	
  was	
  with	
  callers	
  who	
  had	
  a	
  problem	
   with	
  a	
  late	
  ride	
  (on	
  time	
  is	
  defined	
  as	
  15	
  minutes	
  before	
  or	
  15	
  minutes	
  after	
  the	
  reservation	
   time).	
  	
  	
   	
   Quality	
  implementation	
  by	
  DMAS/Logisticare	
  is	
  variable.	
  	
  For	
  example,	
  Logisticare	
  convenes	
   and	
  documents	
  stakeholder	
  advisory	
  committee	
  meetings	
  quarterly	
  in	
  each	
  Region	
  in	
  order	
   to	
  provide	
  a	
  venue	
  for	
  stakeholder	
  input.	
  However,	
  only	
  one	
  Region	
  appeared	
  to	
  have	
  user	
   or	
  personal	
  representatives	
  actively	
  involved	
  in	
  these	
  stakeholder	
  meetings	
  based	
  on	
  a	
   review	
  of	
  the	
  meeting	
  minutes.	
   	
   Operating	
  processes	
  are	
  in	
  place	
  to	
  monitor	
  individual	
  safety.	
  Both	
  entities	
  use	
  field	
   monitors	
  to	
  inspect	
  vehicles	
  and	
  drivers	
  under	
  contract	
  with	
  Logisticare.	
  Logisticare	
  uses	
   five	
  Field	
  Monitors	
  to	
  inspect	
  all	
  provider	
  vehicles	
  every	
  six	
  months;	
  DMAS	
  uses	
  three	
  Field	
   Monitors	
  to	
  randomly	
  inspect	
  all	
  vehicles.	
  Most	
  recently	
  these	
  Field	
  Monitors	
  have	
  inspected	
   an	
  average	
  rate	
  of	
  35	
  vehicles	
  each	
  week.	
  In	
  addition,	
  Logisticare	
  maintains	
  an	
   Accident/Injury	
  log	
  to	
  track	
  vehicular	
  accidents	
  and	
  user	
  injuries.	
  However,	
  no	
  analysis	
  was	
   available	
  that	
  demonstrated	
  that	
  the	
  ID/DD	
  Waiver	
  population	
  was	
  not	
  disproportionately	
   impacted	
  by	
  accidents	
  or	
  injuries.	
   	
  

	
  

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Logisticare	
  uses	
  a	
  Rider	
  Assist	
  section	
  to	
  handle	
  and	
  resolve	
  immediate	
  problems	
  with	
   individual	
  trips,	
  a	
  Quality	
  Assurance	
  section	
  to	
  follow-­‐up	
  and	
  assess	
  unresolved	
  individual	
   problems	
  with	
  transportation	
  trips,	
  and	
  Health	
  Care	
  Manager-­‐initiated	
  site	
  visits	
  and	
  other	
   interventions	
  to	
  try	
  to	
  develop	
  solutions	
  to	
  more	
  systemic	
  and	
  complex	
  individual	
  issues.	
  	
   	
   Finally,	
  Logisticare	
  has	
  the	
  option	
  of	
  accepting	
  or	
  rejecting	
  complaints	
  from	
  users.	
  These	
   rejected	
  complaints	
  do	
  not	
  appear	
  in	
  the	
  database	
  and	
  there	
  is	
  apparently	
  no	
  trending,	
   reporting	
  or	
  follow-­‐up	
  analysis	
  of	
  rejected	
  complaints	
  after	
  the	
  initial	
  rejection	
  decision.	
  	
   	
   Corrective	
  action	
  plans	
  have	
  been	
  used	
  with	
  two	
  transportation	
  contractors/subcontractors	
   to	
  address	
  non-­‐compliant	
  behavior	
  during	
  the	
  past	
  three	
  years.	
  There	
  are	
  some	
  indications	
   that	
  the	
  brokerage	
  is	
  reluctant	
  to	
  terminate	
  problem	
  providers	
  due	
  to	
  ongoing	
  shortages	
  of	
   providers	
  in	
  many	
  areas.	
  However,	
  a	
  monthly	
  Logisticare	
  performance	
  feedback	
  report	
   (“scorecard”)	
  is	
  used	
  with	
  all	
  providers	
  to	
  give	
  them	
  positive	
  and	
  negative	
  performance	
   information.	
  In	
  addition,	
  DMAS	
  exercises	
  its	
  sanction	
  option	
  (“liquidated	
  damages”)	
  by	
   reducing	
  billed	
  charges	
  from	
  Logisticare	
  for	
  reasons	
  such	
  as	
  no	
  show,	
  non-­‐compliant	
  vehicle,	
   etc.	
  These	
  “performance	
  penalties”	
  to	
  Logisticare	
  totaled	
  over	
  $1	
  million	
  in	
  FY	
  15.	
  Although	
   Logisticare	
  has	
  no	
  appeal	
  rights	
  on	
  these	
  sanctions,	
  DMAS	
  does	
  review	
  these	
  reductions	
  with	
   Logisticare	
  and	
  may	
  negotiate	
  specific	
  amounts	
  –	
  the	
  $1	
  million	
  in	
  FY	
  15	
  represents	
  the	
  final	
   amounts	
  after	
  all	
  negotiations.	
   	
   Logisticare	
  periodically	
  assesses	
  the	
  satisfaction	
  of	
  users	
  of	
  the	
  transportation	
  system	
  using	
   an	
  outside	
  vendor,	
  GreatBlue.	
  Most	
  recently	
  Logisticare	
  provided	
  a	
  sample	
  of	
  400	
  users	
  to	
   GreatBlue	
  (2015),	
  who	
  reported	
  that	
  through	
  telephone	
  interviews	
  92.7%	
  (370)	
  of	
   transportation	
  users	
  were	
  pleased	
  with	
  the	
  arrival	
  time	
  for	
  their	
  pickup.	
  A	
  revised	
   satisfaction	
  study	
  methodology	
  is	
  needed,	
  given	
  the	
  presence	
  of	
  8,603	
  complaints	
  reported	
   by	
  DMAS	
  for	
  one	
  quarter	
  from	
  all	
  transportation	
  users	
  in	
  the	
  Medicaid	
  general	
  population,	
   the	
  absence	
  of	
  a	
  stratified	
  sample	
  that	
  would	
  have	
  ensured	
  representation	
  of	
  all	
  user	
  groups,	
   and	
  the	
  potential	
  for	
  bias	
  in	
  a	
  Logisticare	
  provided	
  sample.	
  	
   	
   Logisticare’s	
  complaint	
  management	
  system	
  appears	
  to	
  be	
  effective	
  through	
  the	
  Rider	
  Assist	
   system.	
  	
  Their	
  website,	
  however,	
  does	
  not	
  advertise	
  the	
  Rider	
  Assist	
  telephone	
  number.	
  The	
   more	
  formal	
  complaint	
  system	
  is	
  administered	
  on	
  the	
  Logisticare	
  website	
  through	
  the	
   WeCare	
  tab	
  with	
  the	
  possibility	
  of	
  electronic	
  submission.	
  There	
  are	
  anecdotal	
  reports	
  that	
   ID/DD	
  Waiver	
  users	
  do	
  not	
  use,	
  are	
  unaware	
  of,	
  or	
  are	
  frustrated	
  by	
  the	
  Rider	
  Assist	
  line.	
   	
   Conclusion	
   The	
   Commonwealth	
   is	
   not	
   in	
   compliance	
   with	
   the	
   requirements	
   of	
   III.C.8.a.	
   as	
   to	
   ID/DD	
   Waiver	
  users.	
   	
   Recommendations	
  toward	
  Achieving	
  Full	
  Compliance	
   DMAS/Logisticare	
   should	
   separate	
   out	
   ID/DD	
   (Waiver	
   users)	
   in	
   its	
   quality	
   improvement	
   processes,	
   to	
   ensure	
   that	
   transportation	
   services	
   are	
   being	
   properly	
   implemented	
   for	
   the	
   members	
   of	
   the	
   target	
   population.	
   The	
   quality	
   improvement	
   processes	
   would	
   be	
   improved	
   by	
  including	
  the	
  following:	
   	
  

	
  

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DMAS/Logisticare	
   should	
   request	
   review	
   by	
   a	
   qualified	
   researcher/statistician	
   of	
   future	
   proposed	
   methodologies	
   for	
   assessing	
   user	
   satisfaction,	
   including	
   ensuring	
   ID/DD	
   Waiver	
   users	
  are	
  sampled.	
  	
   	
   DMAS	
   should	
   ask	
   Logisticare	
   to	
   encourage	
   more	
   users,	
   including	
   ID/DD	
   Waiver	
   users	
   or	
   their	
   representatives,	
   to	
   participate	
   in	
   the	
   Advisory	
   Board	
   process.	
   This	
   should	
   include	
   making	
  meetings	
  accessible,	
  attractive	
  and	
  convenient	
  for	
  their	
  attendance.	
  (“Nothing	
  about	
   me	
  without	
  me”.)	
   	
   DMAS	
   should	
   request	
   Logisticare	
   analyze	
   its	
   complaint	
   database,	
   its	
   Accident/Injury	
   database,	
  its	
  No	
  Vehicle	
  Available	
  (NVA),	
  etc.	
  by	
  ID/DD	
  Waiver	
  users.	
  Transportation	
  needs	
   are	
  not	
  uniform	
  in	
  the	
  Medicaid	
  population	
  and	
  population-­‐based	
  analyses	
  might	
  yield	
  new	
   data	
  leading	
  to	
  quality	
  improvements.	
  	
   	
   DMAS	
   should	
   request	
   that	
   Logisticare	
   periodically	
   sample	
   survey	
   transportation	
   users	
   to	
   identify	
   problems	
   for	
   the	
   subset	
   of	
   ID/DD	
   Waiver	
   users	
   who	
   have	
   complained	
   to	
   the	
   Rider	
   Assist	
  line	
  to	
  see	
  if	
  their	
  problem	
  continues	
  or	
  is	
  recurring.	
   	
   DMAS	
   should	
   request	
   that	
   Logisticare	
   conduct	
   focus	
   groups	
   with	
   the	
   ID/DD	
   Waiver	
   population,	
   in	
   order	
   to	
   identify	
   root	
   causes	
   for	
   their	
   over-­‐representation	
   in	
   the	
   complaint	
   database.	
  	
   	
   DMAS	
  should	
  request	
  that	
  Logisticare	
  increase	
  their	
  marketing	
  of	
  the	
  Rider	
  Assist	
  telephone	
   number	
  (e.g.	
  refrigerator	
  magnets,	
  business	
  cards),	
  particularly	
  to	
  the	
  ID/DD	
  Waiver	
  users.	
   	
   DMAS	
  should	
  ask	
  Logisticare	
  for	
  a	
  publicly	
  available	
  Network	
  Development	
  Plan	
  down	
  to	
  the	
   zip	
  code	
  level,	
  so	
  that	
  all	
  parties	
  agree	
  on	
  where	
  there	
  are	
  transportation	
  gaps.	
  Furthermore,	
   this	
   Plan	
   should	
   include	
   an	
   assessment	
   of	
   the	
   need	
   for	
   wheelchair	
   accessible	
   and	
   other	
   adapted	
   vehicles,	
   since	
   many	
   individuals	
   in	
   the	
   ID/DD	
   Waivers	
   require	
   these	
   specialized	
   services.	
   	
   DMAS	
  should	
  require	
  Logisticare	
  to	
  report	
  on	
  rejected	
  complaints.	
  	
  When	
  a	
  user	
  takes	
  the	
   time	
  to	
  file	
  a	
  formal	
  complaint,	
  the	
  service	
  delivery	
  system	
  should	
  utilize	
  that	
  information	
  to	
   examine	
  services	
  no	
  matter	
  its	
  adjudication	
  about	
  the	
  merit	
  of	
  the	
  complaint.	
  	
   	
   Suggestions	
  for	
  DMAS	
  Consideration	
   DMAS	
   should	
   consider	
   including	
   an	
   expectation	
   in	
   the	
   next	
   RFP	
   (Request	
   for	
   Proposal)	
   for	
   the	
   use	
   of	
   GPS	
   and	
   tablets	
   in	
   provider	
   vehicles.	
   Incentive	
   rates	
   for	
   individuals	
   whose	
   behavior	
  may	
  on	
  occasion	
  be	
  challenging	
  should	
  also	
  be	
  considered.	
   	
   DMAS	
  should	
  consider	
  a	
  re-­‐evaluation	
  of	
  the	
  mileage	
  reimbursement	
  program.	
  This	
  program	
   has	
  the	
  greatest	
  potential	
  for	
  relieving	
  stress	
  in	
  the	
  transportation	
  network	
  due	
  to	
  unreliable	
   drivers	
   and	
   unhappy	
   users.	
   Streamlining	
   the	
   process	
   does	
   not	
   imply	
   surrendering	
   accountability	
  expectations.	
   	
  
	
  

	
  

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2)	
  Regional	
  Support	
  Teams	
  –	
  Barrier	
  Resolution	
   	
  
III.D.6	
   Community	
  Living	
  Options	
   6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual's needs and informed choice and has been reviewed by the Region's Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team.
III.E.1-3 Community Resource Consultants and Regional Support Teams 1.	
  	
  The	
  Commonwealth	
  shall	
  utilize	
  Community	
  Resource	
  Consultant	
  (“CRC”)	
  positions	
  located	
  in	
  each	
  Region	
  to	
   provide	
  oversight	
  and	
  guidance	
  to	
  CSBs	
  and	
  community	
  providers,	
  and	
  serve	
  as	
  a	
  liaison	
  between	
  the	
  CSB	
  case	
   managers	
  and	
  DBHDS	
  Central	
  Office.	
  The	
  CRCs	
  shall	
  provide	
  on-­‐site,	
  electronic,	
  written,	
  and	
  telephonic	
  technical	
   assistance	
  to	
  CSB	
  case	
  managers	
  and	
  private	
  providers	
  regarding	
  person-­‐centered	
  planning,	
  the	
  Supports	
   Intensity	
  Scale,	
  and	
  requirements	
  of	
  case	
  management	
  and	
  HCBS	
  Waivers.	
  The	
  CRC	
  shall	
  also	
  provide	
  ongoing	
   technical	
  assistance	
  to	
  CSBs	
  and	
  community	
  providers	
  during	
  an	
  individual’s	
  placement.	
  The	
  CRCs	
  shall	
  be	
  a	
   member	
  of	
  the	
  Regional	
  Support	
  Team	
  in	
  the	
  appropriate	
  Region.	
   2.	
  	
  The	
  CRC	
  may	
  consult	
  at	
  any	
  time	
  with	
  the	
  Regional	
  Support	
  Team.	
  Upon	
  referral	
  to	
  it,	
  the	
  Regional	
  Support	
   Team	
  shall	
  work	
  with	
  the	
  Personal	
  Support	
  Team	
  (“PST”)	
  and	
  CRC	
  to	
  review	
  the	
  case,	
  resolve	
  identified	
  barriers,	
   and	
  ensure	
  that	
  the	
  placement	
  is	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
  the	
  individual’s	
  needs,	
  consistent	
  with	
   the	
  individual’s	
  informed	
  choice.	
  The	
  Regional	
  Support	
  Team	
  shall	
  have	
  the	
  authority	
  to	
  recommend	
  additional	
   steps	
  by	
  the	
  PST	
  and/or	
  CRC.	
   3.	
  	
  The	
  CRC	
  shall	
  refer	
  cases	
  to	
  the	
  Regional	
  Support	
  Teams	
  for	
  review,	
  assistance	
  in	
  resolving	
  barriers,	
  or	
   recommendations	
  whenever:	
  
a.	
  The	
  PST	
  is	
  having	
  difficulty	
  identifying	
  or	
  locating	
  a	
  particular	
  community	
  placement,	
  services	
  and	
   supports	
  for	
  an	
  individual	
  within	
  3	
  months	
  of	
  the	
  individual’s	
  receipt	
  of	
  HCBS	
  waiver	
  services.	
   b.	
  The	
  PST	
  recommends	
  and,	
  upon	
  his/her	
  review,	
  the	
  CRC	
  also	
  recommends	
  that	
  an	
  individual	
  residing	
  in	
   his	
  or	
  her	
  own	
  home,	
  his	
  or	
  family’s	
  home,	
  or	
  a	
  sponsored	
  residence	
  be	
  placed	
  in	
  a	
  congregate	
  setting	
  with	
   five	
  or	
  more	
  individuals.	
   c.	
  The	
  PST	
  recommends	
  and,	
  upon	
  his/her	
  review,	
  the	
  CRC	
  also	
  recommends	
  an	
  individual	
  residing	
  in	
  any	
   setting	
  be	
  placed	
  in	
  a	
  nursing	
  home	
  or	
  ICF.	
  	
  	
   d.	
  There	
  is	
  a	
  pattern	
  of	
  an	
  individual	
  repeatedly	
  being	
  removed	
  from	
  his	
  or	
  her	
  current	
  placement.	
  
	
   Methodology	
  
	
  	
   Reviewed	
  RST	
  operating	
  data	
  collection	
  and	
  analysis	
  system	
  to	
  improve	
  the	
   quality	
  and	
  effectiveness	
  of	
  RST	
  performance.	
  	
  
	
   Reviewed	
  the	
  Commonwealth	
  analysis	
  and	
  actions	
  taken	
  to	
  improve	
  the	
  RST	
   referral	
  process.	
  
	
  	
   Reviewed	
  a	
  sample	
  of	
  those	
  admitted	
  to	
  homes	
  of	
  five	
  or	
  more,	
  to	
  nursing	
   homes	
  or	
  to	
  ICFs	
  between	
  1/1/15	
  and	
  7/15/15.	
  
	
   Reviewed	
  data	
  on	
  individuals	
  placed	
  in	
  settings	
  of	
  4	
  or	
  fewer	
  during	
  FY15.	
   	
  	
   Reviewed	
  RST	
  policies	
  and	
  procedures.	
   	
  	
   Reviewed	
  RST	
  minutes	
  and	
  work	
  products.	
   	
  	
   Reviewed	
  the	
  pattern	
  of	
  responses	
  to	
  the	
  Monitoring	
  Questionnaire	
  from	
  the	
  
Independent	
  Reviewer’s	
  Individual	
  Service	
  Reviews.	
   	
   Reviewed	
  ID/DD	
  Waiver	
  QI	
  Strategies:	
  Waiver	
  Application,	
  Appendix	
  H.	
   	
  	
   Interviewed	
  DBHDS	
  leadership	
  responsible	
  for	
  RSTs	
  (Poe,	
  Rheinheimer,	
  
Balak).	
   	
  	
   Interviewed	
  one	
  Community	
  Resource	
  Consultant	
  (CRC)	
  from	
  each	
  Region.	
   	
   Telephone	
  interviewed	
  DBHDS	
  Director	
  of	
  Health	
  Services	
  (Adams).	
  

	
  

89	
  

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   Telephone	
  interviewed	
  a	
  sample	
  of	
  RST	
  members	
  from	
  across	
  the	
  regions	
  (five	
   picked	
  by	
  DBHDS,	
  five	
  picked	
  by	
  the	
  writer).	
  
	
   Findings	
   The	
  quality	
  improvement	
  processes	
  used	
  for	
  RSTs	
  are	
  still	
  in	
  a	
  developmental	
  phase.	
  The	
   early	
  years	
  focused	
  primarily	
  on	
  ensuring	
  ‘informed	
  choice’	
  and	
  secondarily	
  on	
  processing	
   referrals.	
  The	
  systems	
  now	
  appear	
  to	
  be	
  in	
  place	
  that	
  will	
  result	
  in	
  better	
  information	
  being	
   generated	
  regularly	
  for	
  quality	
  improvement.	
  For	
  example,	
  survey	
  polls	
  completed	
  in	
  May	
   2015	
  of	
  RST	
  members	
  yielded	
  useful	
  information	
  that	
  resulted	
  in	
  some	
  significant	
  changes	
   to	
  policy	
  and	
  practice	
  (urgent	
  called	
  meetings,	
  case	
  manager	
  presentations,	
  referral	
   materials	
  available	
  before	
  meetings,	
  etc.).	
  Policy	
  requires	
  this	
  survey	
  polling	
  to	
  be	
  taken	
  of	
   RST	
  members	
  every	
  eighteen	
  months,	
  so	
  that	
  the	
  next	
  survey	
  should	
  be	
  fall	
  2016.	
  	
  
	
   The	
  quality	
  of	
  the	
  operating	
  data	
  collection	
  and	
  analysis	
  system	
  to	
  determine	
  actions	
  to	
   improve	
  the	
  quality	
  and	
  effectiveness	
  of	
  RST	
  performance	
  is	
  maturing	
  with	
  the	
  recent	
   addition	
  of	
  resources.	
  DBHDS	
  acknowledges	
  that	
  data	
  collected	
  in	
  2013-­‐2014	
  may	
  have	
  been	
   undercounted	
  or	
  underreported,	
  so	
  that	
  trending	
  analyses	
  may	
  not	
  be	
  valid	
  at	
  this	
  time	
  (e.g.	
   are	
  referrals	
  increasing	
  or	
  decreasing?).	
  Again,	
  systems	
  appear	
  to	
  be	
  in	
  place	
  that	
  will	
  result	
   in	
  better	
  quality	
  data	
  being	
  generated	
  regularly	
  for	
  quality	
  improvement.	
  	
  For	
  example,	
  the	
   RST	
  Quarterly	
  Reports	
  are	
  beginning	
  to	
  illustrate	
  referral	
  patterns	
  over	
  the	
  fiscal	
  and	
   calendar	
  years;	
  if	
  hypotheses	
  can	
  be	
  confirmed	
  going	
  forward	
  that	
  referrals	
  to	
  RSTs	
   correlate	
  to	
  end	
  of	
  the	
  fiscal	
  year/beginning	
  of	
  the	
  fiscal	
  year	
  slot	
  allocations,	
  DBHDS	
  may	
  be	
   able	
  to	
  consider	
  modifying	
  some	
  processes	
  to	
  enhance	
  the	
  timeliness	
  of	
  RST	
  referrals.	
  	
  	
  
	
   The	
  performance	
  evaluation	
  format	
  for	
  Community	
  Resource	
  Consultants	
  (CRC)	
  is	
   consistent	
  with	
  assessment	
  formats	
  commonly	
  used	
  for	
  appraisal	
  of	
  state	
  employees.	
   However,	
  the	
  DBHDS	
  performance	
  appraisal	
  is	
  missing	
  the	
  CRC	
  Core	
  Responsibility	
  for	
   ‘ongoing	
  planning	
  and	
  development	
  of	
  community-­‐based	
  services’.	
  The	
  evaluation	
  form	
  for	
   CRCs	
  correctly	
  describes	
  their	
  role	
  at	
  the	
  macro	
  systems	
  level,	
  where	
  the	
  goal	
  is	
  to	
  get	
  the	
   job	
  done	
  through	
  others,	
  and	
  steers	
  them	
  away	
  from	
  the	
  super-­‐case	
  manager	
  role.	
  This	
  is	
  a	
   dilemma	
  DBHDS	
  will	
  confront	
  as	
  it	
  seeks	
  to	
  achieve	
  the	
  Agreement’s	
  requirements	
  for	
  the	
   RST	
  –	
  over	
  commitment	
  to	
  the	
  micro	
  role	
  and	
  sacrificing	
  systems	
  work	
  at	
  the	
  macro	
  level:	
   “Should	
  I	
  call	
  several	
  more	
  providers	
  to	
  encourage	
  consideration	
  of	
  an	
  individual’s	
   placement?”	
  or,	
  “Should	
  I	
  attend	
  a	
  provider	
  meeting	
  to	
  talk	
  up	
  expanding	
  more	
  behavioral	
   settings	
  in	
  our	
  region?”	
  The	
  former	
  is	
  an	
  intrusion	
  into	
  the	
  case	
  manager	
  role,	
  while	
  the	
   latter	
  goes	
  to	
  the	
  larger	
  issue	
  of	
  a	
  need	
  for	
  more	
  providers.	
   	
   Timeliness	
  and	
  thoroughness	
  of	
  RST	
  reviews	
  have	
  been	
  inconsistent	
  over	
  the	
  past	
  few	
  years.	
   They	
  appear	
  to	
  be	
  improving	
  for	
  many	
  individuals	
  living	
  in	
  the	
  community,	
  but	
  not	
  for	
   individuals	
  transitioning	
  from	
  the	
  training	
  centers	
  or	
  when	
  referrals	
  are	
  made	
  too	
  late	
  in	
  the	
   process,	
  such	
  as	
  with	
  emergency	
  placements.	
  One	
  improvement	
  has	
  been	
  that,	
  ‘urgent	
  called	
   telephonic	
  meetings’	
  of	
  the	
  RST	
  for	
  the	
  purposes	
  of	
  more	
  timely	
  review	
  of	
  referrals	
  were	
   recently	
  instituted	
  and	
  authorized	
  this	
  past	
  summer.	
  	
  	
   	
   For	
  individuals	
  planning	
  to	
  transition	
  from	
  the	
  Training	
  Centers	
  to	
  larger	
  congregate	
   settings,	
  referrals	
  to	
  the	
  RSTs	
  do	
  not	
  occur	
  until	
  there	
  is	
  no	
  time	
  to	
  address	
  barriers	
  to	
  living	
   in	
  a	
  more	
  integrated	
  setting.	
  The	
  most	
  recent	
  individual	
  service	
  review	
  study	
  of	
  twelve	
  (12)	
  

	
  

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individuals	
  who	
  moved	
  from	
  Training	
  Centers	
  to	
  congregate	
  residences	
  during	
  FY	
  15	
  found	
   that	
  referrals	
  to	
  the	
  RST	
  did	
  not	
  occur	
  when	
  the	
  Personal	
  Support	
  Team	
  (PST)	
  offered	
  a	
  list	
   of	
  residential	
  programs	
  (most	
  offered	
  only	
  congregate	
  residential	
  services).	
  After	
  the	
   individual/	
  AR	
  had	
  visited	
  and	
  selected	
  one	
  of	
  the	
  options	
  from	
  the	
  offered	
  list	
  (usually	
  a	
   congregate	
  setting),	
  then	
  the	
  PST	
  organized	
  a	
  schedule	
  of	
  trial	
  visits,	
  the	
  individual	
   completed	
  the	
  trial	
  visits,	
  and,	
  finally,	
  the	
  individual/AR	
  agreed	
  to	
  a	
  specific	
  transfer	
  date	
   and	
  transfer	
  logistics.	
  Only	
  then,	
  typically	
  a	
  few	
  weeks	
  before	
  the	
  transfer	
  was	
  to	
  occur,	
  did	
   these	
  twelve	
  (12)	
  individuals	
  	
  get	
  referred	
  by	
  the	
  PST	
  	
  to	
  the	
  RST	
  (for	
  instance,	
  one	
   individual’s	
  AR	
  signed	
  the	
  RST	
  notification	
  on	
  3/10/15	
  and	
  then	
  the	
  individual	
  moved	
  on	
   3/24/15).	
  In	
  practice,	
  the	
  process	
  functions	
  such	
  that	
  for	
  most	
  cases	
  there	
  is	
  no	
  chance	
  that	
   the	
  barriers	
  to	
  living	
  in	
  a	
  less	
  congregate	
  setting	
  could	
  be	
  addressed	
  or	
  resolved	
  by	
  the	
  RST.	
   	
   The	
  CRCs	
  and	
  the	
  RSTs	
  are	
  now	
  actively	
  involved	
  with	
  individuals	
  who	
  are	
  referred	
  to	
  large	
   congregate	
  skilled	
  nursing	
  facilities.	
  In	
  2014	
  DBHDS	
  and	
  DMAS	
  revamped	
  the	
  PASARR	
   process	
  into	
  an	
  ID/DD	
  directed	
  effort	
  to	
  divert	
  potential	
  placements	
  to	
  skilled	
  nursing	
   facilities	
  to	
  alternative	
  community-­‐based	
  alternatives.	
  	
  Processes	
  are	
  now	
  established	
  that	
   ensure	
  that	
  skilled	
  nursing	
  facilities	
  are	
  primarily	
  used	
  for	
  short-­‐term	
  convalescent	
  or	
  acute	
   care	
  activities.	
  	
   	
   CSB	
  referrals	
  to	
  the	
  RSTs	
  for	
  community	
  placements	
  are	
  not	
  yet	
  reliably	
  undergoing	
  RST	
   review	
  prior	
  to	
  placement.	
  Again,	
  the	
  RSTs	
  do	
  not	
  have	
  the	
  time	
  to	
  identify	
  and	
  address	
   barriers.	
  As	
  with	
  individuals	
  who	
  are	
  considering	
  transitions	
  from	
  Training	
  Centers,	
  	
   referrals	
  are	
  not	
  made	
  when	
  a	
  list	
  of	
  initial	
  options	
  are	
  first	
  offered	
  to	
  the	
  AR	
  or	
  individual,	
   but	
  rather	
  after	
  the	
  AR/individual	
  has	
  visited	
  and	
  chosen	
  an	
  option,	
  which	
  is	
  typically	
  the	
   larger	
  congregate	
  settings.	
  	
  This	
  process	
  defeats	
  the	
  intent	
  of	
  the	
  Agreement	
  requirement,	
   which	
  is	
  to	
  ensure	
  early	
  enough	
  presentation	
  such	
  that	
  the	
  benefits	
  of	
  four	
  or	
  less	
  settings	
   can	
  be	
  discussed	
  with	
  the	
  individual/AR.	
   	
   	
  Emergency	
  or	
  crisis	
  placements	
  are	
  clearly	
  not	
  undergoing	
  RST	
  review	
  prior	
  to	
  placement.	
   RST’s	
  do	
  not	
  always	
  have	
  enough	
  time	
  to	
  address	
  and	
  resolve	
  barriers	
  early	
  in	
  the	
   emergency	
  placement	
  decision-­‐making	
  process	
  so	
  that	
  technical	
  assistance	
  efforts	
  can	
  be	
   offered	
  to	
  case	
  managers,	
  individuals,	
  families,	
  etc.	
  The	
  insertion	
  of	
  an	
  RST	
  referral	
  in	
  the	
   middle	
  of	
  a	
  true	
  emergency	
  would	
  not	
  generally	
  provide	
  thoughtful	
  and	
  timely	
  barrier	
   identification	
  and	
  resolution.	
  Requiring	
  such	
  a	
  referral	
  may	
  also	
  undermine	
  the	
  ability	
  of	
   case	
  management	
  to	
  resolve	
  the	
  emergency	
  and,	
  therefore,	
  protect	
  the	
  individual’s	
  well	
   being.	
  The	
  development	
  of	
  the	
  3CT	
  procedure	
  (Critical	
  &	
  Complex	
  Consultation	
  Team)	
  and	
   its	
  implementation	
  to	
  address	
  the	
  most	
  challenging	
  cases	
  in	
  the	
  system	
  is	
  an	
  improvement	
   that	
  may	
  assist	
  with	
  these	
  and	
  other	
  situations.	
  	
   	
   CRCs	
  reported	
  positive	
  relationships	
  with	
  the	
  RSTs	
  including	
  availability	
  of	
  the	
  RSTs	
  to	
   consult	
  with	
  the	
  CRC	
  at	
  any	
  time.	
  	
  Interviews	
  with	
  RST	
  members	
  suggest	
  that	
  most	
  RSTs	
   function	
  as	
  effective	
  collaborative	
  entities	
  with	
  the	
  CRC.	
  RST	
  members	
  report	
  regular	
   networking	
  within	
  the	
  Team	
  to	
  find	
  innovative	
  barrier	
  resolutions	
  for	
  some	
  individual	
  cases.	
   	
   	
   	
  

	
  

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RST	
  members	
  were	
  unanimous	
  in	
  reporting	
  that	
  their	
  effectiveness	
  at	
  resolving	
  barriers	
  in	
   individual	
  cases	
  was	
  poor	
  initially	
  but	
  that	
  has	
  improved	
  somewhat	
  over	
  the	
  last	
  year	
  with	
   changes	
  to	
  the	
  RST	
  process,	
  except	
  in	
  cases	
  where	
  it	
  receives	
  referrals	
  too	
  late.	
  Late	
   involvement	
  in	
  the	
  decision-­‐making	
  process	
  about	
  placement	
  settings,	
  a	
  scarcity	
  of	
   residential	
  settings	
  of	
  four	
  or	
  fewer,	
  and	
  gaps	
  in	
  community	
  supports	
  (medical,	
  behavioral,	
   etc.)	
  were	
  the	
  most	
  frequently	
  mentioned	
  barriers	
  being	
  confronted	
  by	
  RSTs.	
  	
  The	
  Provider	
   Development	
  Section	
  at	
  DBHDS	
  generally	
  perceives	
  that	
  these	
  system	
  gaps/local	
  needs	
  are	
   well	
  known	
  from	
  the	
  CSB	
  level	
  up	
  to	
  the	
  state	
  level,	
  but	
  nowhere	
  is	
  there	
  a	
  documented	
   statewide/regional/local	
  identification	
  of	
  gaps/needs	
  and	
  the	
  actions	
  the	
  Provider	
   Development	
  Section	
  is	
  undertaking	
  to	
  address	
  these	
  gaps,	
  or	
  what	
  steps	
  DBHDS	
  plans	
  to	
   address	
  them.	
  (The	
  Quarterly	
  Report	
  issued	
  by	
  the	
  Provider	
  Development	
  Section	
   aggregates	
  resource	
  barriers	
  by	
  Regions	
  but	
  does	
  not	
  provide	
  the	
  detail	
  to	
  know	
  what	
  is	
   needed	
  at	
  the	
  CSB,	
  township	
  or	
  zip	
  code	
  level.)	
  	
  Along	
  with	
  the	
  new	
  rates	
  planned	
  for	
  in	
  the	
   Waiver	
  redesign,	
  these	
  plans	
  could	
  better	
  focus	
  CRC	
  efforts	
  on	
  provider	
  development,	
  as	
  well	
   as	
  being	
  used	
  by	
  local	
  officials	
  and	
  advocates	
  to	
  recruit	
  new	
  vendors	
  or	
  convince	
  existing	
   providers	
  to	
  expand.	
  
	
   Conclusion	
   DBHDS	
  is	
  not	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  III.D.6.	
   	
   DBHDS	
  is	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  III.E.1.	
   	
   DBHDS	
  is	
  not	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  III.E.2.	
   	
   DBHDS	
  is	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  III.E.3.	
   	
   Recommendations	
  toward	
  Achieving	
  Full	
  Compliance	
   	
  	
   DBHDS	
  should	
  revise	
  its	
  RST	
  referral	
  process	
  to	
  occur	
  when	
  the	
  PST	
  first	
  provides	
  a	
  selected	
   list	
   of	
   recommended	
   options	
   that	
   it	
   endorses	
   as	
   very	
   likely	
   to	
   meet	
   the	
   individual’s/AR	
   needs	
   and	
   preferences.	
   DBHDS	
   should	
   require	
   PSTs/case	
   managers	
   to	
   consult	
   with	
   a	
   CIM/CRC	
  and	
  make	
  a	
  referral	
  to	
  the	
  RST	
  when	
  any	
  residential	
  recommendation	
  is	
  made	
  for	
  a	
   congregate	
  facility	
  or	
  setting	
  with	
  five	
  or	
  more	
  individuals.	
   	
  	
   DBHDS	
   should	
   revise	
   Waiver	
   slot	
   allocation	
   processes	
   so	
   that	
   CRCs	
   are	
   “in	
   the	
   loop”	
   in	
   the	
   Individual	
   Service	
   Authorization	
   Request	
   (ISARs)	
   system	
   or	
   are	
   an	
   approval	
   stop	
   earlier	
   in	
   the	
  slot	
  allocation	
  process	
  before	
  a	
  CSB	
  can	
  place	
  a	
  named	
  individual	
  in	
  a	
  slot.	
  The	
  point	
  is	
  to	
   move	
   the	
   activation	
   of	
   the	
   CRC/RST	
   process	
   earlier	
   upstream,	
   so	
   that	
   technical	
   assistance	
   efforts	
  can	
  be	
  initiated	
  earlier	
  with	
  case	
  managers,	
  individuals,	
  families,	
  etc.	
   	
   	
   DBHDS	
   should	
   revise	
   its	
   approach	
   to	
   RST	
   review	
   of	
   true	
   emergency	
   placements	
   (i.e.	
   those	
   that	
   could	
   not	
   have	
   been	
   anticipated	
   and	
   threaten	
   the	
   individual’s	
   well	
   being	
   if	
   not	
   addressed	
  immediately).	
  By	
  their	
  nature	
  emergency	
  placements	
  need	
  to	
  move	
  quickly	
  due	
  to	
   pressures	
   from	
   law	
   enforcement,	
   provider	
   actions,	
   individual	
   safety,	
   etc.	
   An	
   alternative	
   approach	
  to	
  an	
  immediate	
  (and	
  likely	
  fruitless)	
  referral	
  to	
  the	
  RST	
  might	
  include	
  immediate	
   notification	
  of	
  the	
  CRC	
  and	
  designating	
  such	
  as	
  emergency	
  placement	
  that	
  do	
  not	
  go	
  through	
  

	
  

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the	
  RST	
  review	
  as	
  temporary	
  (e.g.,	
  90	
  days)	
  and	
  RSTs	
  working	
  assertively	
  with	
  CSBs	
  to	
  find	
  

appropriate	
  placements	
  during	
  the	
  temporary	
  period.	
  

	
  

DBHDS	
   should	
   request	
   that	
   RSTs	
   with	
   CRC	
   leadership	
   create	
   annual	
   Regional	
   Network	
  

Development	
   Plans	
   illustrating/describing	
   community	
   support	
   needs	
   down	
   to	
   zip	
   codes.	
  

This	
  will	
  contribute	
  to	
  ensuring	
  compliance	
  with	
  the	
  Agreement’s	
  requirement	
  (V.D.6.)	
  for	
  a	
  

public	
  annual	
  report	
  of	
  services	
  utilized	
  and	
  gaps	
  in	
  services.	
  	
  

	
  

Suggestions	
  for	
  DBHDS	
  Consideration	
  

DBHDS	
  should	
  continue	
  to	
  prioritize	
  training	
  and	
  technical	
  assistance	
  for	
  case	
  managers	
  and	
  

providers	
  about	
  the	
  system	
  goal	
  of	
  smaller	
  and	
  more	
  integrated	
  home	
  like	
  settings.	
  This	
  

should	
  include	
  educational	
  materials	
  as	
  to	
  why	
  more	
  integrated	
  settings	
  are	
  more	
  effective	
  

at	
  increasing	
  opportunities	
  to	
  participate	
  in	
  one’s	
  community	
  and	
  to	
  develop	
  a	
  network	
  of	
  

support.	
  

	
  

DBHDS	
  should	
  steer	
  the	
  role	
  of	
  the	
  CRC	
  away	
  from	
  super-­‐case	
  manager	
  or	
  crisis-­‐case	
  

manager,	
  which	
  appears	
  to	
  be	
  a	
  direction	
  some	
  of	
  their	
  roles	
  are	
  drifting.	
  If	
  crisis-­‐case	
  

managers	
  are	
  needed,	
  those	
  roles	
  should	
  be	
  established	
  within	
  the	
  case	
  manager	
  structure	
  

and	
  outside	
  the	
  CRC	
  and	
  the	
  RST	
  process.	
  

	
  

DBHDS’s	
  Office	
  of	
  Licensing	
  Services	
  (OLS)	
  should	
  examine	
  its	
  front	
  end	
  certification	
  

processes	
  to	
  determine	
  if	
  there	
  are	
  opportunities	
  to	
  fast	
  track	
  a)	
  existing	
  providers	
  who	
  

have	
  a	
  good	
  track	
  record	
  and	
  who	
  wish	
  to	
  expand	
  and	
  b)	
  out-­‐of-­‐state	
  providers	
  (with	
  good	
  

references	
  for	
  the	
  provision	
  of	
  quality	
  and	
  most	
  integrated	
  services)	
  who	
  hope	
  to	
  enter	
  the	
  

state.	
  The	
  addition	
  of	
  internal	
  accountability	
  timelines	
  to	
  the	
  OLS	
  Office	
  Protocol	
  may	
  also	
  

positively	
  impact	
  provider	
  recruitment.	
  

	
  

	
  

3)	
  Regional	
  Support	
  Teams	
  –	
  Data	
  Analytics	
  

	
  

IV.B.14	
  

	
  

The	
  State	
  shall	
  ensure	
  that	
  information	
  about	
  barriers	
  to	
  discharge	
  from	
  involved	
  providers,	
  CSB	
  case	
  	
  

managers,	
  Regional	
  Support	
  Teams,	
  Community	
  Integration	
  Managers,	
  and	
  individuals’	
  ISPs	
  is	
  collected	
  	
  

from	
  the	
  Training	
  Centers	
  and	
  is	
  aggregated	
  and	
  analyzed	
  for	
  ongoing	
  quality	
  improvement,	
  discharge	
  	
  

planning,	
  and	
  development	
  of	
  community-­‐based	
  services.	
  

	
  

Methodology	
  

	
  	
   Reviewed	
  the	
  operating	
  data	
  collection	
  and	
  analysis	
  system	
  used	
  for	
  quality	
  

improvement.	
  

	
  	
   Reviewed	
  data	
  reports	
  for	
  FY	
  13-­‐15.	
  

	
  	
   Interviewed	
  data	
  analysts	
  (Poe,	
  Kuhn,	
  Williams).	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

93	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 94 of 161 PageID# 6596 	
  

Findings	
   The	
  Commonwealth’s	
  quality	
  improvement	
  processes	
  for	
  the	
  RSTs	
  and	
  their	
  compliance	
   with	
  the	
  Quality	
  and	
  Risk	
  Management	
  provisions	
  (IV.B.	
  14-­‐15)	
  of	
  the	
  Agreement	
  are	
  in	
   place.	
  RSTs	
  have	
  devoted	
  most	
  of	
  their	
  attention	
  (and	
  frustration)	
  to	
  “informed	
  choice”	
  and	
   the	
  absence	
  of	
  needed	
  resources	
  in	
  local	
  community	
  based	
  services.	
  	
   	
   The	
  quality	
  of	
  the	
  data	
  collection	
  and	
  analysis	
  system	
  to	
  determine	
  recommendations	
  and	
   actions	
  to	
  elevate	
  the	
  quality	
  and	
  effectiveness	
  of	
  RST	
  performance	
  is	
  improving	
  as	
  the	
  RST	
   processes	
  mature.	
  For	
  example,	
  the	
  Aggregate	
  FY	
  15	
  RST	
  Report…	
  includes	
  the	
  data	
  on	
  final	
   options	
  selected	
  by	
  individuals	
  who	
  have	
  been	
  through	
  the	
  RST	
  process.	
  This	
  provides	
  the	
   RSTs	
  with	
  the	
  ability	
  to	
  evaluate	
  the	
  results	
  of	
  their	
  work	
  by	
  establishing	
  success	
   benchmarks.	
  However,	
  DBHDS	
  does	
  acknowledge	
  that	
  data	
  collected	
  in	
  2013-­‐2014	
  may	
  have	
   been	
  flawed,	
  so	
  that	
  historical	
  trend	
  analyses	
  may	
  not	
  be	
  valid	
  for	
  another	
  fiscal	
  year.	
  	
   	
   Trends	
  and	
  patterns	
  discovered	
  in	
  barrier	
  identification	
  and	
  case	
  resolutions	
  are	
  now	
   portrayed	
  in	
  the	
  Provider	
  Development	
  Section’s	
  Quarterly	
  Reports	
  and	
  the	
  annual	
   Aggregate	
  RST	
  Report.	
  Efforts	
  in	
  the	
  most	
  recent	
  reports	
  to	
  classify	
  cases	
  referred	
  to	
  RSTs	
   (success,	
  pending,	
  critical-­‐complex,	
  etc.)	
  are	
  on	
  the	
  right	
  track	
  and	
  will	
  permit	
  ongoing	
   evaluation	
  and	
  quality	
  improvements.	
   	
   Conclusion	
   The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  	
  	
  IV.B.14.	
   	
   Recommendations	
  toward	
  Achieving	
  Full	
  Compliance	
   None.	
   	
   Suggestions	
  for	
  DMAS	
  Consideration	
   DBHDS	
  should	
  consider	
  developing	
  separate	
  aggregate	
  reports	
  for	
  individuals	
  remaining	
  at	
  a	
   TC	
  and	
  for	
  individuals	
  from	
  community	
  based	
  setting	
   	
   	
  
	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
  

	
  

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4)	
  Regional	
  Support	
  Teams	
  –	
  Placements	
  at	
  TC	
  or	
  five/plus	
  Facility	
  

	
  

IV.B.15	
  

	
  

In	
  the	
  event	
  that	
  a	
  PST	
  makes	
  a	
  recommendation	
  to	
  maintain	
  placement	
  at	
  a	
  Training	
  Center	
  or	
  to	
  	
  

place	
  an	
  individual	
  in	
  a	
  nursing	
  home	
  or	
  congregate	
  setting	
  with	
  five	
  or	
  more	
  individuals,	
  the	
  decision	
  shall	
  	
  

be	
  documented,	
  and	
  the	
  PST	
  shall	
  identify	
  the	
  barriers	
  to	
  placement	
  in	
  a	
  more	
  integrated	
  setting	
  and	
  	
  

describe	
  in	
  the	
  discharge	
  plan	
  the	
  steps	
  the	
  team	
  will	
  take	
  to	
  address	
  the	
  barriers.	
  The	
  case	
  shall	
  be	
  referred	
  to	
  the	
  

Community	
  Integration	
  Manager	
  and	
  Regional	
  Support	
  Team	
  in	
  accordance	
  with	
  Sections	
  IV.D.2.a	
  and	
  f	
  and	
  

IV.D.3	
  below,	
  and	
  such	
  placements	
  shall	
  only	
  occur	
  as	
  permitted	
  by	
  Section	
  IV.C.6.	
  

	
  

Methodology	
  

	
  	
   Reviewed	
  a	
  sample	
  of	
  records	
  of	
  those	
  referred	
  to	
  RSTs	
  in	
  FY	
  15.	
  

	
  	
   Reviewed	
  RST	
  documents	
  for	
  those	
  remaining	
  at	
  a	
  TC	
  and	
  referred	
  to	
  RST	
  (as	
  

of	
  8/27/15).	
  

	
  

Findings	
  

CRCs	
  are	
  not	
  reliably	
  receiving	
  referrals	
  from	
  communities	
  with	
  sufficient	
  time,	
  so	
  that	
  the	
  

RSTs	
  have	
  time	
  to	
  recommend	
  steps	
  to	
  remove	
  barriers	
  before	
  an	
  individual	
  or	
  AR	
  

(Authorized	
  Representative)	
  chooses	
  a	
  facility	
  or	
  a	
  five	
  +	
  residential	
  setting.	
  Processes	
  have	
  

been	
  revised	
  to	
  ensure	
  quicker	
  RST	
  response	
  and	
  earlier	
  RST	
  referral,	
  such	
  as	
  the	
  

implementation	
  of	
  Urgent	
  Meetings	
  when	
  a	
  regularly	
  scheduled	
  RST	
  meeting	
  is	
  not	
  soon	
  

enough	
  to	
  offer	
  recommendations.	
  	
  However,	
  additional	
  process	
  revisions	
  are	
  needed	
  to	
  

ensure	
  a	
  100%	
  pre-­‐placement	
  RST	
  referral	
  for	
  community,	
  non-­‐crisis	
  situations.	
  

Additionally,	
  	
  the	
  consistent	
  delays	
  in	
  making	
  referrals	
  to	
  the	
  RSTs	
  for	
  individuals	
  

transitioning	
  from	
  Training	
  Centers	
  to	
  congregate	
  settings	
  of	
  five	
  or	
  more	
  requires	
  

procedural	
  and	
  guideline	
  revisions	
  to	
  ensure	
  timely	
  RST	
  referrals	
  for	
  Training	
  Center	
  

transitions.	
  

	
  

Individuals	
  who	
  remain	
  at	
  a	
  TC	
  are	
  clearly	
  identified	
  and	
  tracked.	
  At	
  NVTC	
  45	
  individuals	
  or	
  

ARs	
  have	
  selected	
  a	
  facility	
  or	
  setting	
  of	
  five+,	
  at	
  SWTC	
  31	
  individuals	
  have	
  been	
  unable	
  to	
  

locate	
  a	
  provider,	
  and	
  at	
  CVTC	
  24	
  individuals	
  have	
  been	
  unable	
  to	
  locate	
  a	
  provider.	
  RST	
  

minutes	
  clearly	
  record	
  the	
  widespread	
  resistance	
  of	
  ARs	
  to	
  more	
  integrated	
  options	
  and/or	
  

the	
  unresponsiveness	
  of	
  ARs	
  to	
  outreach	
  and	
  educational	
  efforts.	
  

	
  

Conclusion	
  

The	
  Commonwealth	
  is	
  not	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  	
  	
  IV.B.15.	
  

	
  

Recommendations	
  toward	
  Achieving	
  Full	
  Compliance	
  

See	
  recommendations	
  above	
  on	
  page	
  13	
  of	
  this	
  report	
  

	
  

DBHDS	
   should	
   identify	
   all	
   the	
   barriers	
   and	
   choices	
   made	
   by	
   those	
   remaining	
   at	
   a	
   TC	
   and	
  

create	
  a	
  master	
  plan	
  for	
  settings	
  and	
  resource	
  development	
  in	
  the	
  community	
  to	
  meet	
  their	
  

needs.	
  

	
  

Suggestions	
  for	
  DBHDS	
  Consideration	
  

DBHDS	
  should	
  consider	
  developing	
  a	
  tiered	
  protocol	
  for	
  use	
  by	
  CRCs,	
  community	
  integration	
  

managers,	
  and	
  case	
  managers	
  in	
  dealing	
  with	
  ARs	
  who	
  are	
  resistant	
  or	
  non-­‐responsive.	
  

	
  

	
  

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5)	
  Regional	
  Support	
  Teams	
  –	
  Structure	
  and	
  Process	
  

	
  

IV.D.3	
  

	
  

The	
  Commonwealth	
  will	
  create	
  five	
  Regional	
  Support	
  Teams,	
  each	
  coordinated	
  by	
  CIM.	
  The	
  Regional	
  Support	
  

Teams	
  shall	
  be	
  composed	
  of	
  professionals	
  with	
  expertise	
  in	
  serving	
  individuals	
  with	
  developmental	
  disabilities	
  in	
  

the	
  community,	
  including	
  individuals	
  with	
  complex	
  behavioral	
  and	
  medical	
  needs.	
  Upon	
  referral	
  to	
  it,	
  the	
  Regional	
  

Support	
  Team	
  shall	
  work	
  with	
  the	
  PST	
  and	
  CIM	
  to	
  review	
  the	
  case	
  and	
  resolve	
  identified	
  barriers.	
  The	
  Regional	
  

Support	
  Team	
  shall	
  have	
  the	
  authority	
  to	
  recommend	
  additional	
  steps	
  by	
  the	
  PST	
  and/or	
  CIM.	
  The	
  CIM	
  may	
  

consult	
  at	
  any	
  time	
  with	
  the	
  Regional	
  Support	
  Teams	
  and	
  will	
  refer	
  cases	
  to	
  the	
  Regional	
  Support	
  Teams	
  when:	
  

a.	
  The	
  CIM	
  is	
  unable,	
  within	
  2	
  weeks	
  of	
  the	
  PST’s	
  referral	
  to	
  the	
  CIM,	
  to	
  document	
  attainable	
  steps	
  that	
  

will	
  be	
  taken	
  to	
  resolve	
  any	
  barriers	
  to	
  community	
  placement	
  enumerated	
  in	
  Section	
  IV.D.2	
  above.	
  

b.	
  	
  A	
  PST	
  continues	
  to	
  recommend	
  placement	
  in	
  a	
  Training	
  Center	
  at	
  the	
  second	
  quarterly	
  review	
  

following	
  the	
  PST’s	
  recommendation	
  that	
  an	
  individual	
  remain	
  in	
  a	
  Training	
  Center	
  (Section	
  IV.D.2.f),	
  and	
  

at	
  all	
  subsequent	
  quarterly	
  reviews	
  that	
  maintain	
  the	
  same	
  recommendation.	
  This	
  paragraph	
  shall	
  not	
  

take	
  effect	
  until	
  two	
  years	
  after	
  the	
  effective	
  date	
  of	
  this	
  Agreement.	
  

c.	
  The	
  CIM	
  believes	
  external	
  review	
  is	
  needed	
  to	
  identify	
  additional	
  steps	
  that	
  can	
  be	
  taken	
  to	
  remove	
  

barriers	
  to	
  discharge.	
  

	
  

Methodology	
  

	
   Reviewed	
  membership	
  of	
  RSTs.	
  

	
   Telephone	
  interviewed	
  a	
  sample	
  of	
  RST	
  members	
  from	
  across	
  the	
  five	
  regions	
  

(five	
  picked	
  by	
  DBHDS,	
  five	
  picked	
  by	
  the	
  writer).	
  

	
  	
   Reviewed	
  a	
  sample	
  of	
  referrals	
  to	
  RSTs	
  from	
  the	
  period	
  1/1/15	
  to	
  7/15/15.	
  

	
   Reviewed	
  minutes	
  of	
  RST	
  meetings.	
  

	
  	
   Interviewed	
  two	
  CIMs	
  and	
  five	
  CRCs.	
  

	
  

Findings	
  

The	
  RST	
  membership	
  composition	
  and	
  expertise	
  in	
  each	
  Region	
  is	
  in	
  compliance	
  with	
  the	
  

Agreement,	
  except	
  for	
  where	
  a	
  resignation	
  or	
  vacancy	
  has	
  occurred.	
  There	
  is	
  some	
  indication	
  

that	
  attendance	
  is	
  irregular	
  for	
  some	
  members.	
  

	
  

RST	
  recommendations	
  are	
  captured	
  in	
  individual	
  referral	
  documents,	
  urgent	
  or	
  regular	
  RST	
  

meeting	
  minutes,	
  and	
  aggregated	
  data	
  reported	
  in	
  the	
  Provider	
  Development	
  Section’s	
  

Quarterly	
  Report.	
  

	
  

Cases	
  that	
  remain	
  at	
  a	
  TC	
  and	
  have	
  been	
  referred	
  to	
  RST	
  are	
  clearly	
  identified	
  and	
  followed	
  

by	
  the	
  RST	
  quarterly.	
  

	
  

Conclusion	
  

DBHDS	
  is	
  in	
  compliance	
  with	
  the	
  requirements	
  of	
  	
  	
  IV.D.3.	
  

	
  

Recommendations	
  toward	
  Achieving	
  Full	
  Compliance	
  

None.	
  

	
  

Suggestions	
  for	
  DBHDS	
  Consideration	
  

DBHDS	
  should	
  consider	
  an	
  annual	
  statewide	
  electronic	
  or	
  face-­‐to-­‐face	
  meeting	
  of	
  RST	
  

members	
  or	
  representatives	
  in	
  order	
  to	
  network	
  and	
  share	
  resources.	
  	
  

	
  

	
  

	
  

96	
  

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Summary	
  Conclusions	
   	
   The	
  Commonwealth	
  is	
  not	
  in	
  compliance	
  with	
  the	
  Settlement	
  Agreement’s	
  requirements	
  for	
   Transportation	
  services.	
  This	
  is	
  due	
  primarily	
  to	
  practice	
  of	
  not	
  including	
  ID/DD	
  Waiver	
   users	
  in	
  the	
  DMAS	
  and	
  Logisticare	
  data	
  analysis	
  and	
  quality	
  improvement	
  processes.	
  	
   	
   The	
  Commonwealth	
  is	
  not	
  in	
  compliance	
  with	
  the	
  RST	
  requirements	
  for	
  diversion	
  via	
  barrier	
   resolution	
  and	
  the	
  promotion	
  of	
  four	
  or	
  less	
  residential	
  settings.	
  The	
  latter	
  are	
  due	
  to	
  a)	
  late	
   RST	
  involvement	
  in	
  placements	
  originating	
  in	
  the	
  community	
  resulting	
  in	
  no	
  time	
  to	
  make	
   recommendations,	
  b)	
  gaps	
  in	
  the	
  needed	
  services	
  for	
  individuals	
  in	
  their	
  home	
  communities,	
   and	
  c)	
  AR	
  resistance	
  or	
  non-­‐responsiveness.	
  The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  RST	
   data	
  analytics	
  and	
  the	
  functioning	
  of	
  Regional	
  Support	
  Teams.	
  	
   	
   It	
  is	
  clear	
  that	
  the	
  implementation	
  of	
  the	
  RST	
  process	
  has	
  positively	
  impacted	
  the	
  system.	
   During	
  the	
  past	
  fiscal	
  year	
  34	
  individuals	
  reviewed	
  by	
  RSTs	
  were	
  placed	
  in	
  more	
  integrated	
   settings.	
  While	
  there	
  will	
  continue	
  to	
  be	
  dilemmas	
  for	
  the	
  system	
  managers	
  (accepting	
   congregate	
  settings	
  in	
  the	
  absence	
  of	
  more	
  integrated	
  settings),	
  the	
  Waiver	
  Redesign	
  gives	
   hope	
  that	
  the	
  entire	
  system	
  will	
  begin	
  to	
  shift	
  structurally	
  in	
  this	
  direction.	
  Until	
  it	
  is	
   implemented	
  DBHDS	
  will	
  be	
  caught	
  in	
  the	
  proverbial	
  bind,	
  that	
  there	
  are	
  too	
  few	
  good	
   options	
  for	
  “outs”	
  to	
  get	
  people	
  “out”	
  to.	
   	
  

	
  

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APPENDIX C CRISIS SERVICES REQUIREMENTS
By: Kathryn du Pree MPS

	
  

98	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 99 of 161 PageID# 6601
	
  
CRISIS	
  SERVICES	
  REVIEW	
  OF	
  THE	
  VIRGINIA	
  REACH	
  PROGRAM	
  FOR	
  THE	
   INDEPENDENT	
  REVIEWER	
  FOR	
  THE	
  COMMONWEALTH	
  OF	
  VIRGINIA	
  VS.	
   THE	
  US	
  DOJ	
  	
  
PREPARED	
  BY	
  KATHRYN	
  DU	
  PREE,	
  MPS	
   EXPERT	
  REVIEWER	
   	
   November	
  3,	
  2015	
  
	
   	
   	
   	
   TABLE	
  OF	
  CONTENTS	
   	
   Section	
  1:	
  Overview	
  of	
  the	
  Requirements	
  2	
   	
   Section	
  2:	
  Purpose	
  of	
  the	
  Review	
  2	
   	
   	
  Section	
  3:	
  Review	
  Process	
  3	
   	
   Section	
  4:	
  A	
  Statewide	
  Crisis	
  System	
  for	
  Individuals	
  with	
  ID	
  and	
  DD	
  -­‐3	
  	
  
Section	
  4A:	
  Review	
  of	
  the	
  Crisis	
  Services	
  Plan	
  to	
  Serve	
  Children	
  and	
  Adolescents-­‐	
  4	
  	
   	
   Section	
  4B:	
  REACH	
  Services	
  for	
  Adults-­‐	
  7	
   	
  	
   Section	
  4C:	
  Review	
  of	
  Individuals	
  Experiencing	
  Psychiatric	
  Hospitalization	
  11	
   	
   Section	
  5:	
  Elements	
  of	
  the	
  Crisis	
  Response	
  System-­‐	
  16	
   	
   Section	
  6:	
  Summary	
  -­‐28	
   	
  
Table	
  1:	
  REACH	
  Calls	
  and	
  Responses	
  -­‐8	
   Table	
  2:	
  Outcomes	
  for	
  Individuals	
  Using	
  REACH-­‐	
  9	
   Table	
  3:	
  Summary	
  of	
  Supports	
  for	
  Individuals	
  Using	
  REACH	
  that	
  were	
  Hospitalized-­‐	
  15	
   Table	
  4:	
  CEPP	
  and	
  Crisis	
  Prevention	
  Follow	
  Up-­‐20	
   	
   Appendix	
  1:	
  Summary	
  of	
  Individuals	
  receiving	
  REACH	
  –	
  30	
   Appendix	
  2:	
  Summary	
  of	
  Individuals	
  not	
  receiving	
  REACH-­‐	
  45	
   Appendix	
  3:	
  List	
  of	
  Names-­‐	
  54	
  
	
   	
   	
  

	
  

99	
  

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   SECTION	
  1:	
  OVERVIEW	
  OF	
  REQUIREMENTS	
   Donald	
  Fletcher,	
  the	
  Independent	
  Reviewer	
  has	
  contracted	
  with	
  Kathryn	
  du	
  Pree	
  as	
  the	
   Expert	
  Reviewer	
  to	
  perform	
  the	
  review	
  of	
  the	
  crisis	
  services	
  requirements	
  of	
  the	
  Settlement	
   Agreement	
  for	
  the	
  time	
  period	
  4/7/15-­‐	
  10/6/15.	
  The	
  review	
  will	
  determine	
  the	
   Commonwealth	
  of	
  Virginia’s	
  compliance	
  with	
  the	
  following	
  requirements:	
   The	
   Commonwealth	
  shall:	
  
	
  	
  	
  	
  	
  develop	
  a	
  statewide	
  crisis	
  system	
  for	
  individuals	
  with	
  ID	
  and	
  DD;	
  	
   	
  	
  	
  	
  	
  provide	
  timely	
  and	
  accessible	
  supports	
  to	
  individuals	
  who	
  are	
  experiencing	
  a	
  crisis;	
  	
   	
  	
  	
  	
  	
  provide	
  services	
  focused	
  on	
  crisis	
  prevention	
  and	
  proactive	
  planning	
  to	
  avoid	
  
potential	
  crises;	
  and	
  	
   	
  	
  	
  	
  	
  provide	
  in-­‐home	
  and	
  community-­‐based	
  crisis	
  services	
  to	
  resolve	
  crises	
  and	
  prevent	
  
the	
  removal	
  of	
  the	
  individual	
  from	
  his	
  or	
  her	
  current	
  setting	
  whenever	
  practicable.	
  	
   	
   This	
  will	
  be	
  the	
  sixth	
  review	
  of	
  crisis	
  services	
  and	
  prevention.	
  It	
  will	
  focus	
  on	
  the	
   recommendations	
  made	
  by	
  the	
  Independent	
  Reviewer	
  in	
  his	
  report	
  of	
  June	
  2015. 	
  	
  
SECTION	
  2:	
  PURPOSE	
  OF	
  THE	
  REVIEW	
   This	
  review	
  will	
  build	
  off	
  the	
  review	
  completed	
  last	
  spring	
  for	
  the	
  review	
  period	
  through	
   4/6/15	
  and	
  the	
  recommendations	
  the	
  Independent	
  Reviewer	
  made	
  in	
  his	
  last	
  Report	
  as	
  a	
   result	
  of	
  the	
  conclusions	
  and	
  findings	
  of	
  that	
  review.	
   	
  	
   It	
  will	
  focus	
  on	
  those	
  areas	
  that	
  were	
  not	
  in	
  compliance	
  and	
  the	
  Independent	
  Reviewer’s	
   related	
  recommendations.	
  This	
  focus	
  will	
  be	
  on:	
  
• The	
  Commonwealth’s	
  ability	
  to	
  provide	
  crisis	
  prevention	
  and	
  intervention	
  services	
  to	
   children	
  with	
  either	
  intellectual	
  or	
  developmental	
  disabilities.	
  The	
  DBHDS	
  was	
  still	
  in	
   the	
  planning	
  stages	
  last	
  during	
  the	
  Spring	
  2015	
  review	
  and	
  had	
  not	
  implemented	
   crisis	
  services	
  for	
  children	
  in	
  all	
  regions
• The	
  Commonwealth’s	
  plan	
  to	
  reach	
  out	
  to	
  law	
  enforcement	
  and	
  criminal	
  justice	
   personnel	
  to	
  link	
  individuals	
  with	
  intellectual	
  and	
  developmental	
  disabilities	
  with	
   crisis	
  intervention	
  services	
  to	
  prevent	
  unnecessary	
  arrests	
  or	
  incarceration	
  
• The	
  number	
  of	
  individuals	
  who	
  were	
  removed	
  from	
  their	
  homes	
  to	
  a	
  psychiatric	
   hospitalization,	
  the	
  involvement	
  of	
  REACH,	
  and	
  the	
  system’s	
  ability	
  to	
  respond	
  to	
  the	
   needs	
  of	
  these	
  individuals	
  to	
  effectively	
  transition	
  them	
  back	
  to	
  the	
  community	
  and	
  to	
   avoid	
  unnecessary	
  hospitalizations	
  
• The	
  status	
  of	
  locating	
  a	
  permanent	
  crisis	
  therapeutic	
  home	
  in	
  Region	
  IV	
   • The	
  quality	
  of	
  crisis	
  services	
  that	
  individuals	
  are	
  receiving	
  from	
  the	
  five	
  regional	
  
REACH	
  programs	
  
	
   	
   	
   	
   	
   	
  

	
  

100	
  

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   SECTION	
  3:	
  REVIEW	
  PROCESS	
   The	
  Expert	
  Reviewer	
  reviewed	
  relevant	
  documents	
  and	
  interviewed	
  key	
  administrative	
  staff	
   of	
  DBHDS,	
  REACH	
  administrators	
  and	
  stakeholders	
  to	
  provide	
  the	
  data	
  and	
  information	
   necessary	
  to	
  complete	
  this	
  review	
  and	
  to	
  determine	
  compliance	
  with	
  the	
  requirements	
  of	
   the	
  Settlement	
  Agreement.	
  	
  
Document	
  Reviewed:	
   1. The	
  Children’s	
  Crisis	
  Standards	
   2. Updates	
  on	
  Regional	
  Children’s	
  Crisis	
  Services	
  Development	
   3. REACH	
  Program	
  Standards	
   4. Psychiatric	
  Hospitalization	
  Report:	
  4/1/15-­‐6/30/15	
   5. State	
  Quarterly	
  REACH	
  reports	
  for	
  4/1/15-­‐6/30/15	
  and	
  7/1/15-­‐9/30/15	
   6. REACH	
  Quarterly	
  Report	
  Data	
  Summary-­‐Operational	
  Definitions	
   7. Work	
  Plan	
  for	
  Law	
  Enforcement	
  Outreach	
   8. FY16	
  Community	
  Services	
  Performance	
  Contract	
  Renewal	
  and	
  Revisions	
   	
   Interviews	
  with	
  DBHDS	
  and	
  REACH	
  staff:	
  I	
  interviewed	
  Heather	
  Norton	
  the	
  Director	
  of	
   Community	
  Supports	
  and	
  Services,	
  Michele	
  Ebright,	
  Behavioral	
  Psychologist,	
  the	
  Region	
  IV	
   ID/D	
  Director,	
  REACH	
  Director,	
  CTH	
  Coordinator,	
  REACH	
  Coordinators,	
  Behaviorist	
  and	
   Medical	
  Director;	
  the	
  Region	
  I	
  ID/D	
  Director,	
  REACH	
  Director,	
  CTH	
  Director,	
  Medical	
   Director,	
  Children’s	
  Coordinator,	
  REACH	
  Coordinators,	
  In-­‐home	
  Support	
  Coordinator,	
   Clinical	
  Director	
  and	
  START	
  Liaison.	
  	
  I	
  visited	
  the	
  CTHs	
  in	
  Region	
  IV	
  and	
  Region	
  I.	
  	
  	
  I	
   appreciate	
  the	
  time	
  that	
  everyone	
  gave	
  to	
  contributing	
  important	
  information	
  for	
  this	
   review.	
  	
   	
   Focus	
  Groups:	
  I	
  conducted	
  focus	
  groups	
  in	
  both	
  Regions	
  I	
  and	
  IV.	
  These	
  included	
  Emergency	
   Services	
  staff,	
  case	
  managers,	
  behaviorists,	
  providers,	
  and	
  advocates	
  from	
  the	
  ARC	
  of	
  VA	
  and	
   Autism	
  Society.	
  The	
  participants	
  were	
  very	
  candid	
  and	
  provided	
  a	
  richer	
  understanding	
  of	
   the	
  crisis	
  response	
  system.	
  
Individual	
  Reviews:	
  Twenty	
  individuals	
  were	
  randomly	
  selected	
  who	
  experienced	
  one	
  or	
   more	
  psychiatric	
  hospitalizations	
  between	
  January	
  and	
  June	
  2015.	
  Ten	
  individuals	
  who	
  used	
   REACH	
  services	
  and	
  ten	
  individuals	
  who	
  were	
  not	
  referred	
  to	
  REACH	
  were	
  included.	
  The	
   review	
  was	
  to	
  determine	
  the	
  quality	
  of	
  the	
  services	
  provided	
  to	
  them	
  by	
  both	
  REACH	
  and	
   other	
  service	
  providers.	
  It	
  was	
  also	
  to	
  determine	
  the	
  responsiveness	
  and	
  effectiveness	
  of	
  the	
   crisis	
  service	
  delivery	
  system	
  to	
  respond	
  to	
  crises	
  to	
  keep	
  individuals	
  from	
  experiencing	
   unnecessary	
  hospitalizations	
  and	
  to	
  provide	
  successful	
  transitions	
  and	
  support	
  for	
   individuals	
  post	
  hospitalization.	
  	
  	
  This	
  study	
  included	
  document	
  review	
  and	
  interviews	
  with	
   case	
  managers,	
  providers,	
  REACH	
  Coordinators,	
  behaviorists,	
  and	
  family	
  members.	
  	
  
	
   	
   	
   	
  

	
  

101	
  

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SECTION	
  4:	
  A	
  STATEWIDE	
  CRISIS	
  SYSTEM	
  FOR	
  INDIVIDUALS	
  WITH	
  ID	
  and	
  DD	
   The	
  Commonwealth	
  is	
  expected	
  to	
  provide	
  crisis	
  prevention	
  and	
  intervention	
  services	
  to	
   individuals	
  with	
  either	
  intellectual	
  or	
  developmental	
  disabilities	
  as	
  part	
  of	
  its	
  obligation	
   under	
  Section	
  III.6.a.	
  of	
  the	
  Settlement	
  Agreement	
  that	
  states:	
  	
  
The	
  Commonwealth	
  shall	
  develop	
  a	
  statewide	
  crisis	
  system	
  for	
  individuals	
  with	
  ID	
  and	
  DD.	
  The	
  crisis	
   system	
  shall:	
  
i. Provide	
  timely	
  and	
  accessible	
  support	
  to	
  individuals	
  who	
  are	
  experiencing	
  crises,	
  including	
   crises	
  due	
  to	
  behavioral	
  or	
  psychiatric	
  issues,	
  and	
  to	
  their	
  families;	
  	
  
ii. Provide	
  services	
  focused	
  on	
  crisis	
  prevention	
  and	
  proactive	
  planning	
  to	
  avoid	
  potential	
  crises;	
   and	
  	
  
iii. Provide	
  in-­‐home	
  and	
  community	
  –based	
  crisis	
  services	
  that	
  are	
  directed	
  at	
  resolving	
  crises	
  and	
   preventing	
  the	
  removal	
  of	
  the	
  individual	
  from	
  his	
  or	
  her	
  current	
  placement	
  whenever	
   practicable.	
  	
  
	
   A.	
  Review	
  Of	
  The	
  Status	
  Of	
  Crisis	
  Services	
  To	
  Serve	
  Children	
  And	
  Adolescents	
   	
   Children’s	
  Crisis	
  Services	
  Program	
  Standards:	
  I	
  have	
  reviewed	
  the	
  Program	
  Standards	
   that	
  have	
  been	
  finalized.	
  I	
  have	
  previously	
  reported	
  on	
  the	
  draft	
  standards	
  so	
  will	
  confine	
  my	
   report	
  to	
  changes	
  in	
  the	
  draft.	
  The	
  standards	
  parallel	
  the	
  REACH	
  Program	
  Standards	
  as	
  they	
   relate	
  to	
  service	
  and	
  response	
  requirements	
  of	
  the	
  Settlement	
  Agreement.	
  The	
  only	
   exclusionary	
  criteria	
  is	
  that	
  the	
  child	
  not	
  be	
  actively	
  abusing	
  substances	
  or	
  require	
  medical	
   detoxification.	
  They	
  must	
  meet	
  the	
  medical	
  necessity	
  criteria	
  as	
  defined	
  by	
  the	
  Department	
   of	
  Medical	
  Assistance	
  Services	
  (DMAS).	
  Staff	
  training	
  and	
  licensure	
  requirements	
  are	
   included.	
   	
   The	
  Navigators	
  link	
  children	
  and	
  families	
  to	
  community	
  resources.	
  The	
  Crisis	
  Responders	
   are	
  expected	
  to	
  respond	
  onsite	
  to	
  all	
  pre-­‐screenings	
  for	
  hospitalizations	
  and	
  to	
  remain	
  with	
   the	
  child	
  and	
  family	
  throughout	
  the	
  process	
  and	
  to	
  stay	
  involved	
  until	
  the	
  case	
  is	
  closed.	
   	
   The	
  Settlement	
  Agreement	
  requires	
  that	
  the	
  Commonwealth	
  provide	
  a	
  residential	
  setting	
  of	
   no	
  more	
  than	
  six	
  beds	
  that	
  can	
  provide	
  crisis	
  stabilization	
  not	
  to	
  exceed	
  thirty	
  days.	
  The	
   department’s	
  goal	
  to	
  support	
  children	
  in	
  their	
  homes	
  is	
  laudable.	
  However	
  the	
   Commonwealth	
  must	
  be	
  able	
  to	
  respond	
  timely	
  and	
  appropriately	
  when	
  a	
  child	
  needs	
  a	
   short	
  term	
  out	
  of	
  home	
  setting	
  for	
  crisis	
  stabilization.	
  The	
  Children’s	
  Developmental	
   Disability	
  Crisis	
  Services	
  Program	
  Standards	
  do	
  not	
  include	
  any	
  description	
  or	
  requirement	
   to	
  provide	
  out-­‐of-­‐home	
  crisis	
  stabilization	
  as	
  an	
  option	
  to	
  avoid	
  unnecessary	
   institutionalization.	
  	
   	
   Data	
  will	
  be	
  collected	
  by	
  each	
  region	
  and	
  will	
  include:	
  date	
  and	
  time	
  of	
  the	
  call;	
  basic	
   demographic	
  information;	
  call	
  source;	
  nature	
  of	
  the	
  crisis;	
  consultation;	
  and	
  summary	
  of	
   resolution.	
  	
  Data	
  also	
  needs	
  to	
  include	
  information	
  about	
  the	
  type	
  of	
  crisis	
  services	
  provided;	
   any	
  use	
  of	
  out-­‐of-­‐home	
  respite	
  or	
  inpatient	
  hospitalization	
  and	
  the	
  length	
  of	
  time	
  a	
  child	
  is	
   admitted;	
  and	
  information	
  about	
  the	
  child’s	
  placement	
  after	
  an	
  out-­‐of–home	
  crisis	
   intervention.	
  	
   	
   	
  

	
  

102	
  

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There	
  is	
  a	
  description	
  of	
  the	
  basic	
  training	
  topics	
  and	
  expectations	
  for	
  outreach	
  to	
  providers,	
   schools,	
  law	
  enforcement,	
  and	
  other	
  community	
  partners.	
  	
  The	
  training	
  topics	
  include	
   important	
  areas.	
  It	
  does	
  not	
  include,	
  however,	
  modules	
  on	
  person-­‐centered	
  planning,	
   transition	
  from	
  inpatient	
  settings,	
  or	
  cross-­‐system	
  comprehensive	
  planning.	
  	
  The	
  topics	
  list	
   also	
  does	
  not	
  include	
  training	
  for	
  CSB	
  ES	
  or	
  case	
  managers.	
  	
  DD	
  Case	
  Managers	
  will	
  also	
  need	
   to	
  be	
  trained	
  to	
  understand	
  how	
  to	
  access	
  these	
  services	
  for	
  the	
  children	
  they	
  support.	
  	
   	
   Each	
  region’s	
  Child	
  Navigator	
  is	
  responsible	
  to	
  develop	
  training	
  materials	
  and	
  conduct	
   workshops.	
  The	
  Navigator	
  is	
  also	
  responsible	
  for	
  outreach	
  and	
  to	
  follow	
  up	
  on	
  a	
  monthly	
   basis	
  for	
  the	
  first	
  six	
  months	
  after	
  initial	
  contact	
  for	
  a	
  child	
  referred	
  for	
  crisis	
  services.	
  I	
  still	
   question	
  whether	
  the	
  Navigator	
  will	
  have	
  sufficient	
  time	
  to	
  fulfill	
  all	
  of	
  the	
  responsibilities	
   assigned	
  to	
  this	
  position.	
  The	
  Regions	
  each	
  undertook	
  a	
  needs	
  assessment	
  last	
  year	
  but	
  data	
   sources	
  varied	
  considerably	
  so	
  it	
  is	
  difficult	
  to	
  know	
  the	
  number	
  of	
  individuals	
  who	
  will	
  need	
   and	
  access	
  these	
  services.	
  DBHDS	
  cannot	
  provide	
  data	
  yet	
  on	
  the	
  number	
  of	
  referrals	
  that	
   have	
  been	
  received	
  through	
  this	
  reporting	
  period.	
  It	
  is	
  concerning	
  that	
  most	
  regions	
  are	
   hiring	
  one	
  Navigator	
  while	
  Region	
  I	
  has	
  determined	
  the	
  need	
  to	
  hire	
  eight	
  Navigators,	
  one	
   for	
  each	
  CSB.	
   	
   Status	
  of	
  Children’s	
  Crisis	
  Services	
   	
   DBHDS	
  provided	
  a	
  status	
  report	
  for	
  each	
  region’s	
  children’s	
  crisis	
  program.	
  	
   	
   Region	
  I-­‐	
  This	
  region	
  has	
  planned	
  the	
  most	
  unique	
  approach	
  to	
  providing	
  crisis	
  services	
  to	
   children.	
  They	
  are	
  funding	
  a	
  Navigator	
  for	
  each	
  of	
  the	
  CSBs.	
  Three	
  of	
  the	
  eight	
  Navigators	
  has	
   been	
  hired	
  and	
  these	
  CSBs	
  are	
  providing	
  24/7	
  mobile	
  crisis	
  responses.	
  	
  Each	
  CSB	
  will	
   respond	
  to	
  individuals	
  in	
  its	
  catchment	
  area	
  rather	
  than	
  a	
  single	
  point	
  of	
  entry	
  for	
  the	
  region.	
   The	
  region	
  has	
  hired	
  a	
  Program	
  Director	
  who	
  will	
  be	
  responsible	
  for	
  overall	
  coordination	
   and	
  data	
  management.	
  She	
  has	
  established	
  the	
  data	
  collection	
  protocols	
  with	
  the	
  CSBs.	
  The	
   region	
  does	
  not	
  have	
  any	
  out	
  of	
  home	
  crisis	
  stabilization	
  capacity.	
   	
   Region	
  II-­‐	
  This	
  region	
  is	
  linking	
  its	
  Children’s	
  Regional	
  Crisis	
  Response	
  (CR-­‐2),	
  with	
  its	
   REACH	
  program.	
  	
  The	
  CR-­‐2	
  provides	
  the	
  initial	
  crisis	
  response.	
  It	
  has	
  been	
  in	
  operation	
  since	
   July	
  2014	
  but	
  has	
  not	
  provided	
  any	
  data.	
  Staff	
  hiring	
  is	
  underway	
  but	
  has	
  not	
  been	
   completed.	
  Region	
  II	
  plans	
  to	
  use	
  two	
  crisis	
  stabilization	
  beds	
  at	
  St.	
  Joseph’s	
  Villa	
  in	
   Richmond.	
  This	
  is	
  located	
  on	
  the	
  same	
  campus	
  as	
  the	
  existing	
  CTH	
  for	
  REACH	
  Region	
  IV.	
  The	
   Independent	
  Reviewer	
  has	
  deemed	
  this	
  former	
  institutional	
  site	
  as	
  not	
  community-­‐based	
   and	
  is	
  in	
  non-­‐compliance	
  with	
  the	
  crisis	
  stabilization	
  requirement	
  of	
  the	
  Agreement.	
  	
   	
   Region	
  III-­‐	
  This	
  region	
  is	
  extending	
  its	
  REACH	
  program	
  to	
  children	
  by	
  hiring	
  additional	
   clinicians	
  and	
  cross	
  training	
  existing	
  REACH	
  staff.	
  Region	
  III	
  has	
  had	
  an	
  operational	
   children’s	
  crisis	
  program	
  since	
  October	
  2014	
  with	
  a	
  single	
  point	
  of	
  entry.	
  I	
  reviewed	
  children	
   served	
  during	
  the	
  last	
  reporting	
  period.	
  There	
  is	
  currently	
  no	
  crisis	
  stabilization	
  unit,	
  but	
   Region	
  III	
  has	
  funding	
  and	
  plans	
  to	
  build	
  a	
  facility	
  operated	
  by	
  a	
  CSB.	
  	
   	
   	
  

	
  

103	
  

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Region	
  IV-­‐	
  This	
  region	
  is	
  also	
  expanding	
  its	
  REACH	
  program	
  to	
  children	
  by	
  hiring	
  additional	
   clinicians	
  and	
  cross-­‐training	
  REACH	
  staff.	
  It	
  has	
  been	
  in	
  operation	
  since	
  May	
  2015	
  but	
   reportedly	
  has	
  not	
  served	
  many	
  children.	
  It	
  too	
  has	
  a	
  single	
  point	
  of	
  entry.	
  Region	
  IV	
  will	
   fund	
  out-­‐of-­‐home	
  respite	
  and	
  also	
  plans	
  to	
  use	
  the	
  crisis	
  stabilization	
  unit	
  at	
  St.	
  Joseph’s	
  Villa	
   on	
  the	
  grounds	
  of	
  a	
  campus	
  location.	
  This	
  facility	
  has	
  already	
  been	
  determined	
  to	
  be	
  in	
  Non-­‐ compliance.	
   	
   Region	
  V-­‐	
  This	
  region	
  is	
  developing	
  its	
  program,	
  which	
  will	
  be	
  managed	
  by	
  Western	
   Tidewater	
  CSB.	
  This	
  region	
  plans	
  to	
  have	
  satellite	
  offices	
  to	
  improve	
  on-­‐site	
  response	
  time.	
  It	
   has	
  a	
  single	
  point	
  of	
  entry.	
  They	
  have	
  hired	
  three	
  of	
  the	
  five	
  crisis	
  specialists.	
  The	
  region	
  has	
   devoted	
  a	
  full-­‐time	
  staff	
  member	
  to	
  prevention	
  efforts.	
  The	
  program	
  has	
  a	
  link	
  to	
  a	
  Hospital’s	
   crisis	
  stabilization	
  unit	
  and	
  has	
  funding	
  for	
  crisis	
  respite	
  beds.	
  A	
  hospital	
  does	
  not	
  meet	
  the	
   requirements	
  of	
  the	
  Settlement	
  Agreement	
  for	
  community	
  settings	
  that	
  offer	
  out-­‐of-­‐home	
   crisis	
  stabilization.	
   	
   DBHDS	
  established	
  timelines	
  for	
  the	
  outcomes	
  of	
  the	
  Children’s	
  Crisis	
  Service	
  System.	
  The	
   department	
  anticipates	
  the	
  following:	
  
ü A	
  single	
  point	
  of	
  entry	
  in	
  each	
  region	
  by	
  July	
  2015	
   ü A	
  data	
  system	
  and	
  data	
  collection	
  by	
  July	
  2015	
   ü All	
  crisis	
  calls	
  responded	
  to	
  within	
  defined	
  standards	
  60%	
  of	
  the	
  time	
  by	
  December	
  
2015	
   ü All	
  crisis	
  calls	
  responded	
  to	
  within	
  the	
  defined	
  standards	
  80%	
  of	
  the	
  time	
  by	
  July	
  
2016	
   ü All	
  crisis	
  calls	
  responded	
  to	
  within	
  defined	
  standards	
  90%	
  of	
  the	
  time	
  by	
  December	
  
2016	
   ü Mobile	
  crisis	
  available	
  95%	
  of	
  the	
  time	
  by	
  December	
  2016	
   	
   	
  The	
  DBHDS	
  has	
  developed	
  a	
  comprehensive	
  set	
  of	
  standards	
  that	
  incorporate	
  the	
   recommendations	
  in	
  the	
  last	
  Crisis	
  Services	
  Review.	
   	
   The	
  DBHDS	
  has	
  set	
  timelines	
  for	
  two	
  major	
  outcomes	
  of	
  crisis	
  services:	
  response	
  time	
  and	
   the	
  availability	
  of	
  mobile	
  crisis	
  services.	
  All	
  regions	
  with	
  the	
  exception	
  of	
  Region	
  I	
  have	
  a	
   single	
  point	
  of	
  entry.	
  Region	
  I	
  is	
  implementing	
  a	
  different	
  approach	
  that	
  requires	
  each	
  CSB	
  to	
   provide	
  24/7	
  crisis	
  response	
  for	
  children	
  with	
  ID	
  and	
  DD.	
  There	
  was	
  no	
  data	
  submitted	
  by	
   DBHDS	
  for	
  children	
  in	
  this	
  reporting	
  period	
  so	
  I	
  cannot	
  determine	
  that	
  the	
  data	
  system	
  was	
   operable	
  starting	
  in	
  July	
  2015.	
  It	
  is	
  not	
  possible	
  to	
  confirm	
  that	
  the	
  regions	
  will	
  be	
  able	
  to	
   respond	
  to	
  60%	
  of	
  the	
  requests	
  for	
  crisis	
  intervention	
  by	
  December	
  2015.	
  Most	
  have	
   additional	
  staff	
  to	
  hire	
  and	
  none	
  have	
  evidence	
  of	
  or	
  plans	
  for	
  capacity	
  to	
  provide	
  out-­‐of-­‐ home	
  crisis	
  stabilization	
  in	
  community	
  settings	
  within	
  their	
  regions	
  when	
  this	
  is	
  needed.	
  The	
   development	
  of	
  the	
  team	
  approaches	
  with	
  a	
  focus	
  on	
  prevention	
  and	
  the	
  DBHDs’	
   commitment	
  to	
  consistent	
  standards	
  is	
  encouraging.	
  The	
  lack	
  of	
  standards	
  for	
  out-­‐of-­‐home	
   services	
  is	
  troubling.	
  The	
  plan	
  to	
  have	
  a	
  data	
  system	
  in	
  place	
  by	
  July	
  2015	
  and	
  no	
  data	
   available	
  through	
  September	
  2015	
  indicates	
  that	
  the	
  plan	
  to	
  achieve	
  compliance	
  by	
   December	
  2016	
  is	
  already	
  substantially	
  behind	
  schedule. 	
  	
  

	
  

104	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 105 of 161 PageID# 6607 	
  

B.	
  Reach	
  Services	
  For	
  Adults	
  

	
  	
  

1.	
  Program	
  Standards-­‐DBHDS	
  has	
  revised	
  its	
  REACH	
  Program	
  Standards	
  and	
  issued	
  them	
  

on	
  August	
  1,	
  2015.	
  I	
  have	
  reviewed	
  the	
  Program	
  Standards	
  in	
  previous	
  reports	
  so	
  I	
  will	
  

highlight	
  changes	
  that	
  have	
  been	
  made.	
  The	
  exclusionary	
  criteria	
  for	
  the	
  CTH	
  (Crisis	
  

Therapeutic	
  Homes)	
  program	
  have	
  been	
  narrowed	
  in	
  the	
  revised	
  standard.	
  Individuals	
  who	
  

currently	
  abuse	
  substances	
  or	
  require	
  a	
  medically	
  managed	
  detoxification	
  program	
  can	
  be	
  

excluded.	
  	
  Or	
  individuals	
  that	
  pose	
  a	
  serious	
  threat	
  to	
  others.	
  	
  REACH	
  is	
  expected	
  to	
  meet	
  

with	
  the	
  support	
  teams	
  to	
  develop	
  alternatives.	
  Individuals	
  are	
  no	
  longer	
  excluded	
  due	
  to	
  a	
  

lack	
  of	
  Case	
  Manager;	
  because	
  of	
  significant	
  physical	
  care	
  needs;	
  or	
  due	
  to	
  the	
  lack	
  of	
  a	
  

discharge	
  plan.	
  

	
  

The	
  Commonwealth	
  is	
  increasing	
  the	
  expectation	
  for	
  credentialed	
  staff	
  that	
  work	
  in	
  the	
  

REACH	
  programs	
  to	
  have	
  credentials.	
  Required	
  credentials	
  not	
  include	
  direct	
  experience	
  

with	
  individuals	
  with	
  ID	
  or	
  DD,	
  in	
  addition	
  to	
  college	
  degrees	
  and	
  licensing	
  as	
  applicable.	
  For	
  

some	
  positions	
  a	
  background	
  in	
  mental	
  health	
  and	
  appropriate	
  licensure	
  is	
  required.	
  These	
  

new	
  requirements	
  will	
  increase	
  the	
  competencies	
  of	
  the	
  individuals	
  providing	
  direct	
  crisis	
  

prevention	
  and	
  stabilization	
  support.	
  I	
  fully	
  support	
  the	
  DBHDS’	
  efforts	
  to	
  increase	
  the	
  

expertise	
  of	
  its	
  REACH	
  staff	
  in	
  both	
  ID/DD	
  and	
  mental	
  health.	
  

	
  

The	
  revised	
  DBHDS	
  standards	
  now	
  require	
  REACH	
  Coordinators	
  are	
  to	
  join	
  the	
  CSB	
  

Emergency	
  Services	
  (ES)	
  staff	
  for	
  all	
  on-­‐site	
  assessments	
  and	
  to	
  follow	
  all	
  individuals	
  

admitted	
  to	
  psychiatric	
  hospitals.	
  All	
  individuals	
  accepted	
  into	
  the	
  REACH	
  programs	
  must	
  

have	
  a	
  Crisis	
  Education	
  Prevention	
  Plan	
  (CEPP)	
  and	
  preventive	
  follow	
  up	
  services.	
  	
  Staff’s	
  

training	
  requirements	
  are	
  included	
  in	
  the	
  standards	
  and	
  a	
  program	
  quality	
  monitoring	
  and	
  

evaluation	
  process	
  has	
  been	
  designed	
  although	
  not	
  implemented	
  yet.	
  

	
  

2.	
  REACH	
  Services-­‐	
  the	
  data	
  from	
  two	
  quarters	
  included	
  in	
  this	
  review	
  period	
  includes	
  FY15	
  

Quarter	
  IV	
  (QIV-­‐15)	
  and	
  FY16	
  Quarter	
  I	
  (QI-­‐16).	
  Regions	
  received	
  a	
  total	
  of	
  323	
  referrals	
  in	
  

this	
  review	
  period	
  compared	
  with	
  a	
  total	
  of	
  272	
  during	
  the	
  previous	
  review	
  period.	
  	
  Region	
  

V	
  had	
  the	
  lowest	
  number	
  of	
  referrals	
  in	
  each	
  quarter.	
  The	
  Quarterly	
  Reports	
  do	
  not	
  

specifically	
  indicate	
  how	
  many	
  individuals	
  are	
  served	
  by	
  REACH	
  in	
  a	
  quarter	
  but	
  from	
  the	
  

data	
  on	
  dispositions	
  of	
  individuals	
  using	
  REACH	
  it	
  can	
  be	
  extrapolated	
  that	
  REACH	
  served	
  

495	
  individuals	
  during	
  the	
  reporting	
  period.	
  

Table	
  1-­‐	
  REACH	
  Calls	
  and	
  Responses	
  summarizes	
  the	
  call	
  information.	
  Overall	
  only	
  73%	
  of	
  

the	
  crisis	
  calls	
  received	
  a	
  face-­‐to-­‐face	
  response.	
  Regions	
  I	
  and	
  IV	
  responded	
  to	
  100%	
  of	
  the	
  

crisis	
  calls	
  with	
  staff	
  onsite	
  in	
  both	
  quarters.	
  	
  

	
  

Table	
  1	
  

	
  REACH	
  Calls	
  and	
  Responses	
  

Calls	
  

Quarter	
  IV	
  

Quarter	
  I	
  

Total	
  Calls	
  

1317	
  

Not	
  Reported	
  

Crisis	
  Calls	
  

293	
  

338	
  

Face	
  to	
  Face	
  Response	
  

214	
  

247	
  

%	
  of	
  Crisis	
  Calls	
  w/	
  Direct	
  Responses	
  	
  

73%	
  

73%	
  

	
  

105	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 106 of 161 PageID# 6608 	
  

	
  In	
  this	
  reporting	
  period,	
  Case	
  Managers	
  continue	
  to	
  make	
  the	
  majority	
  of	
  the	
  referrals	
   followed	
  by	
  families.	
  Emergency	
  Services	
  staff	
  made	
  between	
  5-­‐15%	
  of	
  the	
  referrals	
  in	
  QIV	
   and	
  between	
  9-­‐27%	
  of	
  the	
  referrals	
  in	
  QI.	
  ES	
  staff	
  did	
  not	
  make	
  any	
  referrals	
  in	
  Regions	
  IV	
  or	
   V	
  during	
  the	
  review	
  period.	
  There	
  are	
  few	
  data	
  that	
  demonstrate	
  that	
  individuals	
  with	
  DD	
   (i.e.	
  other	
  than	
  ID)	
  are	
  being	
  referred	
  to	
  REACH.	
  DD	
  Case	
  Managers	
  made	
  4%	
  of	
  the	
  referrals	
   in	
  Regions	
  II	
  and	
  IV	
  in	
  Quarter	
  IV.	
  There	
  were	
  no	
  referrals	
  from	
  a	
  DD	
  Case	
  Manager	
  during	
   Quarter	
  I.	
  	
   	
   DBHDS	
  no	
  longer	
  reports	
  on	
  the	
  disabilities	
  or	
  diagnoses	
  of	
  individuals	
  referred	
  to	
  REACH	
  so	
   there	
  was	
  no	
  data	
  to	
  indicate	
  how	
  many	
  individuals	
  with	
  DD	
  may	
  be	
  referred	
  from	
  another	
   referral	
  source.	
  During	
  the	
  previous	
  reporting	
  period	
  DBHDS	
  did	
  report	
  on	
  individuals	
  with	
   DD	
  but	
  included	
  those	
  individuals	
  with	
  both	
  ID	
  and	
  DD.	
  I	
  requested	
  that	
  this	
  data	
  be	
  broken	
   out	
  to	
  specify	
  individuals	
  referred	
  whose	
  primary	
  diagnosis	
  is	
  DD.	
  However,	
  after	
  discussion	
   this	
  information	
  was	
  added	
  to	
  the	
  Q1-­‐16	
  Report	
  and	
  the	
  QIV-­‐15	
  report	
  was	
  revised	
  and	
  re-­‐ issued.	
  	
  There	
  were	
  only	
  five	
  individuals	
  with	
  DD	
  referred	
  in	
  QIV-­‐15	
  and	
  only	
  three	
   individuals	
  with	
  DD	
  referred	
  in	
  QI-­‐16.	
  Data	
  did	
  indicate	
  that	
  no	
  one	
  with	
  DD	
  only	
  was	
   referred	
  in	
  either	
  quarter	
  in	
  Regions	
  II	
  or	
  V.	
  It	
  is	
  not	
  possible	
  to	
  make	
  a	
  determination	
  that	
   REACH	
  is	
  effectively	
  serving	
  individuals	
  with	
  DD	
  whether	
  they	
  are	
  on	
  the	
  DD	
  waiver,	
  the	
   waiting	
  list,	
  or	
  who	
  have	
  a	
  DD	
  diagnosis	
  and	
  are	
  not	
  involved	
  with	
  the	
  waiver	
  program.	
  	
   	
   Services	
  were	
  provided	
  as	
  follows	
  during	
  the	
  reporting	
  period:	
  
ü 327	
  adults	
  received	
  CTH	
  services	
  and	
  240	
  adults	
  received	
  Mobile	
  Crisis	
  Support	
  	
   ü 170	
  individuals	
  served	
  in	
  the	
  CTHs	
  required	
  crisis	
  stabilization	
  in	
  the	
  CTH	
  program	
   ü 157	
  individuals	
  served	
  in	
  the	
  CTHs	
  received	
  planned	
  respite	
  and	
  crisis	
  prevention	
  
support

Table 2- Outcomes for Individuals using REACH services shows the outcome for individuals

supported by a REACH program during the reporting period who were referred for a crisis and

received a face-to-face response from the REACH team.

	
  

Table	
  2	
  

	
  Outcomes	
  for	
  Individuals	
  Using	
  REACH	
  

Outcome	
  

QIV	
  

QI	
  

Total	
  

%	
  

Retain	
  Setting	
  

138	
  

134	
  

272	
  

55%	
  

Hospitalization:	
  	
  Psychiatric	
  

54	
  

55	
  

109	
  

22%	
  

Hospitalization:	
  Medical	
  

1	
  

1	
  

2	
  

>1%	
  

Jail	
  

1	
  

1	
  

2	
  

>1%	
  

CTH	
  

14	
  

22	
  

36	
  

7%	
  

Mobile	
  Support	
  

N/A	
  

72	
  

72	
  

15%	
  

Other	
  

2	
  

0	
  

2	
  

>1%	
  

Total	
  

210	
  

285	
  

495	
  

100%	
  

	
  

DBHDS	
  reports	
  on	
  the	
  outcomes	
  for	
  individuals	
  who	
  are	
  hospitalized	
  as	
  a	
  result	
  of	
  the	
  crisis	
  

and	
  what	
  involvements	
  REACH	
  has	
  with	
  them	
  prior	
  to	
  and	
  post	
  hospitalization.	
  DBHDS	
  is	
  to	
  

report	
  if	
  these	
  individuals	
  eventually	
  return	
  home	
  or	
  if	
  an	
  alternative	
  placement	
  needs	
  to	
  be	
  

located	
  for	
  them.	
  A	
  total	
  of	
  109	
  individuals	
  who	
  had	
  contact	
  with	
  REACH	
  were	
  reported	
  

admitted	
  to	
  psychiatric	
  hospitals.	
  However	
  an	
  Addendum	
  has	
  been	
  added	
  to	
  the	
  Quarterly	
  

	
  

106	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 107 of 161 PageID# 6609
	
  
Reports	
  starting	
  with	
  QIII-­‐15.	
  These	
  provide	
  different	
  data	
  regarding	
  psychiatric	
   hospitalizations	
  and	
  the	
  known	
  dispositions.	
  These	
  revised	
  data	
  indicate	
  the	
  DBHDS	
  is	
   aware	
  of	
  167	
  psychiatric	
  hospitalizations.	
  The	
  department	
  notes	
  that	
  the	
  data	
  may	
  not	
   reflect	
  the	
  total	
  number	
  of	
  hospitalizations	
  in	
  private	
  facilities.	
  	
   	
   The	
  report	
  contains	
  the	
  known	
  dispositions	
  for	
  156	
  of	
  the	
  167	
  individuals	
  but	
  this	
  includes	
   the	
  use	
  of	
  CTHs	
  and	
  MH	
  Crisis	
  Stabilization	
  Units	
  (CSU),	
  which	
  are	
  not	
  final	
  placements	
  for	
   individuals	
  and	
  therefore	
  may	
  duplicate	
  some	
  data.	
  Also	
  the	
  data	
  is	
  not	
  always	
  consistent	
  for	
   regions.	
  In	
  QI-­‐16	
  three	
  regions	
  do	
  not	
  know	
  the	
  disposition	
  of	
  all	
  of	
  the	
  individuals,	
  and	
  two	
   regions	
  over	
  report.	
  However	
  the	
  percentages	
  of	
  the	
  dispositions	
  is	
  constant	
  across	
  the	
  two	
   quarters.	
  The	
  following	
  dispositions	
  occurred:	
  
• 55-­‐56%	
  of	
  individuals	
  retained	
  the	
  original	
  home	
  or	
  group	
  home	
  placement	
   • 7%	
  were	
  able	
  to	
  move	
  to	
  a	
  new	
  appropriate	
  community	
  residential	
  setting	
   • 1-­‐7%	
  moved	
  in	
  with	
  a	
  family	
  member	
   • 16%	
  used	
  the	
  REACH	
  CTH	
  of	
  MH	
  CSU	
   	
   This	
  is	
  a	
  decrease	
  of	
  psychiatric	
  hospitalizations	
  over	
  the	
  last	
  reporting	
  period	
  of	
  216.	
  	
  This	
   may	
  not	
  be	
  a	
  true	
  reflection	
  of	
  the	
  number	
  of	
  hospitalizations	
  given	
  some	
  data	
   inconsistencies	
  and	
  without	
  full	
  reporting	
  from	
  private	
  hospitals.	
  The	
  majority	
  of	
  presenting	
   problems	
  noted	
  at	
  the	
  time	
  of	
  admission	
  to	
  REACH	
  across	
  both	
  quarters	
  include:	
  physical	
   aggression,	
  increase	
  in	
  mental	
  health	
  symptoms,	
  and	
  suicide	
  ideation,	
  followed	
  by	
  the	
  need	
   for	
  a	
  step	
  down	
  from	
  a	
  hospital	
  admission	
  and	
  the	
  family’s	
  need	
  for	
  support.	
  These	
  problems	
   often	
  lead	
  families	
  and	
  providers	
  to	
  access	
  the	
  police	
  and	
  ES	
  screening	
  which	
  may	
  lead	
  to	
  a	
   hospitalization	
  if	
  the	
  individual	
  is	
  deemed	
  to	
  present	
  a	
  safety	
  risk	
  to	
  him	
  or	
  others.	
  Many	
  of	
   the	
  individuals	
  reviewed	
  for	
  this	
  report	
  were	
  hospitalized	
  as	
  a	
  result	
  of	
  a	
  safety	
  risk	
  and	
  the	
   person’s	
  reluctance	
  to	
  agree	
  to	
  a	
  safety	
  contract,	
  which	
  is	
  required	
  before	
  a	
  return	
  to	
  the	
   community	
  from	
  a	
  hospital	
  screening	
  is	
  considered	
  viable.	
   	
   DBHDS	
  reports	
  that	
  the	
  REACH	
  program	
  remains	
  actively	
  involved	
  with	
  all	
  individuals	
  that	
   are	
  hospitalized	
  when	
  they	
  are	
  aware	
  of	
  the	
  hospitalization.	
  The	
  revised	
  REACH	
  standards	
   require	
  REACH	
  to	
  join	
  the	
  ES	
  staff	
  for	
  every	
  screening	
  and	
  stay	
  involved	
  with	
  everyone	
  who	
   is	
  hospitalized	
  as	
  a	
  result	
  of	
  the	
  screening.	
  REACH	
  staff	
  participates	
  in	
  the	
  admission,	
  attend	
   commitment	
  hearings,	
  attend	
  treatment	
  team	
  meetings,	
  visit	
  and	
  consult	
  with	
  the	
  treatment	
   team.	
  	
  However	
  the	
  data	
  in	
  the	
  Quarterly	
  Reports	
  indicate	
  that	
  REACH	
  is	
  not	
  aware	
  of	
  the	
   disposition	
  in	
  all	
  cases	
  yet	
  even	
  though	
  it	
  has	
  been	
  a	
  requirement	
  since	
  August	
  2015.	
  CSBs	
   need	
  to	
  make	
  REACH	
  aware	
  of	
  everyone	
  with	
  an	
  ID	
  or	
  DD	
  diagnosis	
  who	
  is	
  being	
  screened	
   for	
  hospital	
  admission	
  for	
  this	
  standard	
  to	
  be	
  met.	
  The	
  Commonwealth	
  is	
  exploring	
  ways	
  to	
   acquire	
  data	
  on	
  admissions	
  to	
  private	
  hospitals.	
  	
   	
   Training-­‐	
  The	
  REACH	
  programs	
  provide	
  training	
  to	
  stakeholders	
  every	
  quarter.	
  The	
   audiences	
  include	
  law	
  enforcement	
  personnel,	
  CSB	
  Case	
  Managers,	
  ES	
  workers,	
  and	
  other	
   community	
  partners.	
  During	
  the	
  reporting	
  period	
  a	
  total	
  of	
  1,860	
  individuals	
  were	
  trained	
   across	
  the	
  five	
  regions.	
  	
  This	
  is	
  a	
  substantial	
  increase	
  from	
  any	
  previous	
  reporting	
  period.	
   This	
  included	
  332	
  law	
  enforcement	
  officers,	
  396	
  CSB	
  Case	
  Managers	
  or	
  other	
  CSB	
  staff,	
  24	
  ES	
   staff,	
  125	
  hospital	
  staff,	
  and	
  583	
  noted	
  as	
  other.	
  There	
  continues	
  to	
  be	
  no	
  specific	
   information	
  to	
  determine	
  if	
  any	
  DD	
  Case	
  Managers	
  have	
  been	
  trained	
  although	
  training	
  

	
  

107	
  

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materials	
  are	
  now	
  available	
  on	
  the	
  website	
  and	
  required	
  for	
  new	
  DD	
  Case	
  Managers.	
  DBHDS	
   should	
  report	
  on	
  training	
  for	
  this	
  staff	
  category.	
  
Outreach	
  to	
  the	
  DD	
  Community-­‐	
  DBHDS	
  is	
  implementing	
  a	
  plan	
  to	
  reach	
  out	
  to	
  individuals	
   with	
  DD,	
  their	
  families	
  and	
  providers,	
  and	
  the	
  broader	
  community	
  serving	
  individuals	
  with	
   DD,	
  other	
  than	
  ID.	
  DD	
  Case	
  Managers	
  are	
  now	
  receiving	
  training	
  and	
  information	
  regarding	
   REACH	
  services.	
  Each	
  region	
  shares	
  its	
  brochure	
  with	
  all	
  case	
  managers.	
  	
  ES	
  staff	
  are	
  trained	
   to	
  understand	
  that	
  REACH	
  services	
  are	
  also	
  a	
  resource	
  for	
  individuals	
  with	
  DD.	
  DBHDS	
  is	
   enhancing	
  its	
  communication	
  with	
  state	
  and	
  private	
  mental	
  health	
  hospitals.	
  REACH	
  staff	
   present	
  to	
  statewide	
  and	
  local	
  conferences	
  to	
  educate	
  families	
  and	
  providers.	
  	
  DBHDS	
   continues	
  to	
  work	
  with	
  other	
  partners	
  including	
  Commonwealth	
  Autism	
  Service,	
  Virginia	
   Autism	
  Center	
  for	
  Excellence	
  and	
  the	
  Arc	
  of	
  Virginia	
  to	
  help	
  distribute	
  information	
  about	
  the	
   REACH	
  Program.	
  The	
  Virginia	
  211	
  site	
  was	
  updated	
  in	
  December	
  2014	
  to	
  include	
  current	
   information	
  about	
  the	
  REACH	
  crisis	
  services	
  and	
  its	
  availability	
  to	
  both	
  individuals	
  with	
  ID	
   or	
  DD.	
  No	
  additional	
  information	
  regarding	
  outreach	
  was	
  reviewed	
  during	
  this	
  reporting	
   period.	
  This	
  was	
  a	
  topic	
  of	
  the	
  two	
  focus	
  groups.	
  DD	
  Case	
  Managers	
  were	
  invited	
  but	
  none	
   attended	
  possibly	
  because	
  attendance	
  at	
  such	
  an	
  event	
  would	
  not	
  be	
  billable	
  for	
  them.	
   Individuals	
  who	
  advocate	
  or	
  work	
  in	
  the	
  DD	
  field	
  did	
  attend.	
  It	
  appears	
  outreach	
  to	
  the	
  DD	
   community	
  is	
  more	
  of	
  a	
  concern	
  in	
  Region	
  IV	
  than	
  in	
  Region	
  I	
  at	
  least	
  anecdotally.	
  	
   	
   Recommendations:	
  	
   	
   DBHDS	
  should	
  monitor	
  and	
  document	
  compliance	
  with	
  its	
  standards	
  and	
  expectations	
  and	
   take	
  corrective	
  action,	
  as	
  needed.	
  DBHDS	
  should	
  report	
  the	
  number	
  of	
  individuals	
  with	
  DD,	
   other	
  than	
  ID,	
  who	
  are	
  referred	
  and	
  served.	
  It	
  should	
  also	
  provide	
  more	
  specific	
  information	
   about	
  individuals	
  who	
  experience	
  psychiatric	
  hospitalizations.	
  This	
  should	
  include	
  whether	
   hospitalizations	
  were	
  appropriate	
  or	
  necessitated	
  by	
  the	
  lack	
  of	
  community	
  crisis	
  and	
   behavioral	
  support.	
  It	
  should	
  also	
  document	
  the	
  involvement	
  of	
  REACH	
  staff;	
  the	
  duration	
  of	
   hospitalization;	
  and	
  the	
  number	
  of	
  individuals	
  who	
  experience	
  repeated	
  hospitalizations.	
  	
   	
   DBHDS	
  should	
  determine	
  how	
  to	
  insure	
  existing	
  ES	
  staff;	
  ID	
  and	
  DD	
  Case	
  Managers	
  are	
  all	
   trained.	
  It	
  should	
  also	
  establish	
  expectations	
  for	
  the	
  ongoing	
  outreach	
  to	
  law	
  enforcement	
   personnel	
  in	
  each	
  REACH	
  area	
  to	
  expand	
  upon	
  the	
  training	
  module	
  and	
  to	
  develop	
   cooperative	
  working	
  relationships.	
  
C.	
  Reviews	
  of	
  Individuals	
  Experiencing	
  Psychiatric	
  Hospitalization	
  	
   	
   The	
  Independent	
  Reviewer	
  noted	
  an	
  increase	
  in	
  reported	
  psychiatric	
  hospitalizations	
  in	
  his	
   last	
  Report	
  to	
  the	
  Court	
  (June	
  2105).	
  	
  The	
  US	
  DOJ	
  conducted	
  individual	
  reviews	
  last	
  spring	
   and	
  expressed	
  many	
  concerns	
  about	
  the	
  crisis	
  system’s	
  responsiveness	
  and	
  ability	
  to	
  avoid	
   unnecessary	
  institutionalization.	
  This	
  review	
  focused	
  on	
  twenty	
  individuals	
  that	
  were	
   admitted	
  to	
  psychiatric	
  hospitals	
  between	
  January	
  and	
  June	
  2015.	
  	
  The	
  DBHDS	
  provided	
  a	
   list	
  of	
  all	
  individuals	
  with	
  an	
  ID	
  or	
  DD	
  diagnosis	
  who	
  experienced	
  one	
  or	
  more	
   hospitalizations	
  in	
  this	
  time	
  period.	
  Twenty	
  individuals	
  were	
  randomly	
  selected.	
  Ten	
  had	
   involvement	
  with	
  REACH	
  and	
  ten	
  did	
  not,	
  and	
  are	
  affiliated	
  with	
  either	
  Region	
  I	
  or	
  IV.	
   DBHDS	
  was	
  able	
  to	
  provide	
  records	
  and	
  contact	
  information	
  for	
  all	
  of	
  the	
  individuals	
  

	
  

108	
  

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affiliated	
  with	
  REACH	
  and	
  for	
  eight	
  of	
  the	
  ten	
  individuals	
  who	
  were	
  not	
  affiliated	
  with	
   REACH.	
   	
   The	
  goal	
  of	
  this	
  review	
  was	
  to	
  achieve	
  a	
  greater	
  understanding	
  of	
  what	
  leads	
  to	
  these	
   hospitalizations;	
  what	
  services	
  and	
  supports	
  are	
  available	
  to	
  the	
  individual	
  to	
  prevent	
  crises	
   and	
  successfully	
  live	
  in	
  the	
  community;	
  what	
  interventions	
  REACH	
  offers	
  and	
  the	
  impact	
  of	
   these	
  supports	
  to	
  address	
  crises	
  and	
  prevent	
  future	
  crises	
  that	
  lead	
  to	
  hospitalization	
  or	
  loss	
   of	
  ones	
  residential	
  provider.	
   	
   The	
  review	
  included:	
  REACH	
  and	
  CSB	
  document	
  review;	
  in-­‐person	
  meetings	
  with	
  the	
  REACH	
   Teams;	
  interviews	
  with	
  REACH	
  Coordinators;	
  and	
  telephone	
  interviews	
  with	
  Case	
  Managers	
   or	
  Discharge	
  planners	
  and	
  psychiatric	
  hospital	
  liaisons,	
  behavioral	
  specialists,	
  residential	
   providers	
  and	
  family	
  members	
  who	
  used	
  REACH.	
  There	
  were	
  only	
  two	
  of	
  the	
  twenty	
   individuals	
  that	
  had	
  a	
  current	
  behavioral	
  specialist.	
   	
   I	
  greatly	
  appreciate	
  the	
  time	
  that	
  various	
  staff	
  and	
  family	
  members	
  contributed	
  to	
  this	
   process	
  and	
  to	
  DBHDS	
  administrators	
  for	
  assisting	
  with	
  logistical	
  arrangements.	
  I	
  was	
  able	
   to	
  meet	
  with	
  many	
  members	
  of	
  the	
  REACH	
  Team	
  in	
  each	
  Region.	
  This	
  included	
  the	
  ID	
   Directors,	
  REACH	
  Coordinators,	
  CTH	
  Coordinators,	
  Clinical	
  Directors,	
  Psychiatrist	
  (same	
  for	
   both	
  regions),	
  and	
  the	
  REACH	
  Mobile	
  Support	
  Directors.	
  In	
  Region	
  I,	
  I	
  also	
  met	
  with	
  the	
   Children’s	
  Coordinator	
  and	
  START	
  liaison.	
   	
   Following	
  is	
  a	
  summary	
  of	
  findings	
  based	
  on	
  the	
  ten	
  individual	
  reviews.	
  The	
  Individual	
   Reviews	
  are	
  summarized	
  in	
  Appendix	
  1.	
  	
   	
   Summary	
  of	
  the	
  Individual	
  Reviews	
  Involving	
  REACH	
   	
   Screening	
  and	
  hospitalization-­‐REACH	
  is	
  generally	
  responding	
  to	
  crisis	
  requests	
  and	
   accompanying	
  the	
  ES	
  staff	
  to	
  pre-­‐screen.	
  Region	
  I	
  is	
  more	
  regularly	
  involved	
  than	
  Region	
  IV	
   in	
  providing	
  support	
  to	
  individuals	
  while	
  they	
  are	
  hospitalized.	
  	
  Four	
  of	
  the	
  individuals	
  that	
   were	
  hospitalized	
  had	
  medical	
  complications	
  that	
  contributed	
  or	
  led	
  to	
  their	
  hospitalization.	
   Three	
  of	
  the	
  individuals	
  are	
  still	
  hospitalized	
  at	
  the	
  time	
  of	
  this	
  report.	
  Only	
  one	
  of	
  these	
   three	
  individuals	
  had	
  a	
  provider	
  identified	
  and	
  a	
  discharge	
  plan.	
   	
   Mobile	
  Support-­‐	
  REACH	
  does	
  offer	
  Mobile	
  Support,	
  which	
  includes	
  in-­‐home	
  support.	
   Generally	
  the	
  providers	
  and/or	
  Case	
  Managers	
  did	
  not	
  deem	
  in-­‐home	
  support	
  effective	
  in	
   the	
  majority	
  of	
  situations.	
  In	
  some	
  cases	
  the	
  presence	
  of	
  the	
  REACH	
  staff	
  seemed	
  to	
  increase	
   the	
  individual’s	
  negative	
  behavior.	
  In	
  other	
  cases	
  the	
  REACH	
  staff	
  worked	
  alone	
  with	
  the	
   individual	
  rather	
  than	
  observe	
  staff	
  interactions	
  or	
  train	
  staff	
  in	
  new	
  techniques.	
  In	
  one	
  case	
   in	
  the	
  summary	
  below	
  I	
  indicate	
  mobile	
  support	
  was	
  offered	
  because	
  a	
  new	
  sponsored	
   provider	
  was	
  beginning	
  and	
  indicated	
  that	
  she	
  would	
  take	
  advantage	
  of	
  the	
  supports	
  that	
   REACH	
  had	
  developed.	
  	
  However	
  the	
  young	
  woman’s	
  previous	
  sponsored	
  provider	
  would	
   not	
  accept	
  REACH	
  in	
  -­‐home	
  supports	
  from	
  which	
  she	
  probably	
  would	
  have	
  benefitted.	
  	
   It	
  appears	
  from	
  this	
  small	
  sample	
  that	
  in-­‐home	
  support	
  is	
  a	
  less	
  effective	
  crisis	
  support	
  than	
   crisis	
  stabilization	
  and	
  prevention	
  in	
  the	
  CTH.	
  This	
  lack	
  of	
  effectiveness	
  may	
  be	
  in	
  part	
   because	
  all	
  of	
  the	
  individuals	
  in	
  this	
  review	
  exhibit	
  serious	
  behaviors	
  that	
  may	
  put	
  them	
  or	
   others	
  at	
  risk.	
  Providers	
  served	
  all	
  ten	
  of	
  the	
  individuals	
  and	
  none	
  were	
  home	
  with	
  their	
  

	
  

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family	
  at	
  the	
  time	
  crisis	
  supports	
  were	
  needed.	
  	
  Providers	
  reported	
  that	
  often	
  the	
  REACH	
   staff	
  did	
  not	
  offer	
  any	
  new	
  interventions	
  or	
  techniques	
  but	
  rather	
  replicated	
  what	
  the	
   provider	
  was	
  already	
  implementing	
  or	
  had	
  tried	
  before.	
  It	
  may	
  be	
  that	
  individuals	
  with	
   challenging	
  behaviors	
  require	
  greater	
  expertise	
  than	
  the	
  REACH	
  in-­‐home	
  staff	
  possess	
  to	
   address	
  the	
  needs	
  of	
  individuals	
  whose	
  quality	
  of	
  life	
  is	
  so	
  impacted	
  by	
  their	
  mental	
  health	
   needs.	
  REACH	
  requires	
  a	
  discharge-­‐planning	
  meeting	
  for	
  individuals	
  using	
  the	
  CTH.	
  There	
   does	
  not	
  appear	
  to	
  be	
  the	
  same	
  requirement	
  for	
  use	
  of	
  Mobile	
  Crisis	
  Support	
  for	
  providing	
   crisis	
  stabilization.	
  Although	
  most	
  REACH	
  Coordinators	
  stay	
  in	
  close	
  contact	
  with	
  the	
  Case	
   Managers	
  for	
  updates	
  there	
  is	
  no	
  formal	
  meeting	
  to	
  discuss	
  the	
  plan	
  for	
  mobile	
  supports	
  or	
   to	
  determine	
  its	
  success.	
  This	
  service	
  may	
  be	
  strengthened	
  if	
  there	
  was	
  more	
  formalized	
   discussion	
  with	
  the	
  provider	
  and	
  CM	
  and	
  feedback	
  on	
  the	
  success	
  of	
  the	
  mobile	
  supports.	
   Such	
  feedback	
  is	
  critical	
  to	
  determining	
  how	
  services	
  might	
  be	
  improved	
  in	
  the	
  future.	
   	
   CTH	
  Support-­‐	
  REACH	
  offers	
  significant	
  support	
  to	
  individuals	
  in	
  the	
  CTH.	
  The	
  crisis	
   stabilization	
  services	
  offered	
  by	
  CTHs	
  can	
  sometimes	
  divert	
  someone	
  from	
  a	
  hospital	
   admission	
  and	
  other	
  times	
  are	
  a	
  successful	
  step	
  down	
  program	
  while	
  the	
  provider	
  prepares	
   to	
  return	
  the	
  individual	
  or	
  a	
  new	
  provider	
  is	
  found.	
  The	
  CTH	
  program	
  success	
  seems	
  based	
   on	
  providing	
  comprehensive	
  assessment,	
  a	
  therapeutic	
  milieu	
  and	
  structured	
  activities	
  that	
   participants	
  usually	
  enjoy.	
  In	
  most	
  cases	
  reviewed,	
  the	
  CTH	
  developed	
  thoughtful	
   stabilization	
  plans	
  and	
  thorough	
  discharge	
  planning.	
  It	
  is	
  of	
  interest	
  that	
  the	
  CTH	
  team	
  often	
   recommends	
  that	
  the	
  provider	
  increase	
  the	
  structured	
  activities	
  for	
  the	
  individual,	
  address	
   down-­‐time	
  and	
  improve	
  the	
  transition	
  between	
  day	
  services	
  and	
  the	
  home.	
  Providers	
  and	
   Case	
  Managers	
  report	
  that	
  most	
  providers	
  do	
  not	
  offer	
  the	
  same	
  level	
  of	
  structure	
  available	
   in	
  the	
  CTH.	
  Yet,	
  this	
  is	
  frequently	
  the	
  core	
  of	
  what	
  the	
  individual	
  needs.	
  Part	
  of	
  the	
   ineffectiveness	
  of	
  the	
  Mobile	
  Supports	
  for	
  the	
  individuals	
  in	
  this	
  sample	
  may	
  be	
  the	
  result	
  of	
   this	
  incongruity.	
  REACH	
  staff	
  in	
  the	
  CTHs	
  sometimes	
  worked	
  individually	
  with	
  the	
  person	
  t	
   to	
  offer	
  greater	
  structure	
  and	
  meaningful	
  activity.	
  	
   	
   Linkages-­‐	
  REACH	
  is	
  designed	
  to	
  help	
  identify	
  the	
  service	
  and	
  support	
  gaps	
  for	
  individuals	
  in	
   crisis,	
  and	
  to	
  assist	
  the	
  team	
  to	
  secure	
  and	
  coordinate	
  these	
  resources.	
  Individuals	
  in	
  crisis	
   often	
  needed	
  providers	
  with	
  expertise	
  in	
  co-­‐occurring	
  conditions;	
  behavioral	
  supports;	
   counseling;	
  and	
  training	
  of	
  police	
  officers	
  with	
  whom	
  they	
  regularly	
  interact	
  as	
  a	
  result	
  of	
   elopement	
  or	
  aggression.	
  I	
  found	
  no	
  evidence	
  that	
  the	
  REACH	
  teams	
  provided	
  these	
  linkages	
   for	
  these	
  ten	
  individuals.	
  	
  These	
  linkages	
  are	
  critical	
  to	
  providing	
  crisis	
  prevention	
  in	
  the	
   future	
  for	
  individuals	
  that	
  experience	
  crises	
  especially	
  those	
  that	
  lead	
  to	
  hospitalization.	
   While	
  this	
  is	
  a	
  responsibility	
  of	
  the	
  REACH	
  program	
  it	
  cannot	
  be	
  accomplished	
  unless	
  these	
   resources	
  are	
  developed	
  and	
  available	
  in	
  Virginia.	
  There	
  is	
  a	
  lack	
  of	
  these	
  resources	
  and	
  it	
  is	
   incumbent	
  for	
  the	
  Commonwealth	
  to	
  continue	
  its	
  efforts	
  through	
  waiver	
  design,	
  rate	
   changes	
  and	
  capacity	
  building	
  to	
  create	
  these	
  supports	
  to	
  meet	
  the	
  existing	
  need.	
   	
   CEPP-­‐	
  the	
  revised	
  REACH	
  Program	
  Standards	
  require	
  the	
  REACH	
  teams	
  to	
  always	
  develop	
  a	
   Crisis	
  Education	
  and	
  Prevention	
  Plan,	
  as	
  of	
  August	
  2015.	
  Many	
  of	
  the	
  individuals	
  reviewed	
   for	
  this	
  study	
  did	
  not	
  have	
  this	
  comprehensive	
  plan,	
  however,	
  they	
  were	
  admitted	
  to	
  REACH	
   prior	
  to	
  August.	
  Many	
  did	
  have	
  crisis	
  assessments	
  and	
  stabilization	
  plans	
  developed	
  by	
  the	
   CTH	
  team.	
   	
  

	
  

110	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 111 of 161 PageID# 6613 	
  

Providers-­‐	
  Table	
  3	
  below	
  notes	
  whether	
  individuals	
  had	
  a	
  consistent	
  provider.	
  The	
  three	
   who	
  didn’t	
  moved	
  between	
  providers.	
  There	
  does	
  not	
  seem	
  to	
  be	
  a	
  protocol	
  or	
  requirement	
   that	
  a	
  provider	
  maintain	
  services	
  to	
  someone	
  until	
  a	
  new	
  provider	
  is	
  found	
  and	
  a	
  transition	
   is	
  planned	
  and	
  implemented.	
  Providers	
  seem	
  to	
  be	
  able	
  to	
  discharge	
  individuals	
  with	
  little	
   notice	
  and	
  without	
  any	
  team	
  meeting	
  to	
  determine	
  what	
  is	
  needed	
  to	
  maintain	
  the	
  individual	
   or	
  to	
  learn	
  from	
  the	
  experience	
  to	
  better	
  plan	
  for	
  the	
  individual	
  in	
  the	
  future.	
  The	
  practice	
  of	
   discharge	
  without	
  a	
  transition	
  harms	
  individuals	
  with	
  ID/DD.	
   	
   Behavioral	
  Support	
  Specialists	
  and	
  Plans	
  (BSP)-­‐	
  this	
  review	
  revealed	
  that	
  there	
  is	
  a	
  lack	
  of	
   behavioral	
  support	
  professionals	
  and	
  BCBAs	
  available	
  to	
  support	
  these	
  individuals.	
  These	
   gaps	
  were	
  described	
  during	
  the	
  Focus	
  Groups	
  held	
  in	
  Regions	
  I	
  and	
  IV.	
  DBHDS	
  is	
  planning	
  to	
   address	
  this	
  through	
  its	
  waiver	
  redesign	
  and	
  changes	
  to	
  the	
  rates.	
  This	
  will	
  be	
  critical	
  to	
  the	
   successful	
  implementation	
  of	
  the	
  community	
  crisis	
  system.	
   	
   Psychiatrists	
  (PSY)-­‐	
  everyone	
  in	
  this	
  review	
  had	
  a	
  Psychiatrist.	
  Many	
  are	
  available	
  through	
   the	
  CSBs.	
  REACH	
  does	
  coordinate	
  with	
  the	
  community	
  psychiatrists.	
  Regions	
  I	
  and	
  IV	
  have	
  a	
   psychiatrist	
  on	
  the	
  REACH	
  teams	
  who	
  helps	
  with	
  this	
  linkage.	
   I	
  do	
  not	
  include	
  a	
  column	
  about	
  Case	
  Managers	
  but	
  want	
  to	
  report	
  that	
  a	
  case	
  manager	
   followed	
  all	
  individuals.	
  In	
  the	
  majority	
  of	
  cases	
  the	
  CM	
  was	
  very	
  involved	
  and	
  had	
  good	
   communication	
  with	
  REACH.	
   	
   	
  
Table	
  3:	
  

Summary	
  of	
  Supports	
  for	
  Individuals	
  Receiving	
  REACH	
  Support	
  that	
  were	
  Hospitalized

	
  

Crisis Hospital Mobile

Response Support Support

CTH

CEPP

Linkage Provider BSP PSY Changed

1	
  

Yes

No

No

Yes

Yes

No

No

No Yes

2	
  

Yes

No

No

Yes

Yes

N/A

No

No Yes

3	
  

Yes

No

No

Yes

Yes

No

Yes

Yes Yes

4	
  

No

Yes

No

Yes

No

No

Yes

Yes Yes

5	
  

Yes

Yes

No

No

No

N/A

Yes

Yes Yes

6	
  

Yes

Yes

N/A

No

No

No

Yes

No Yes

7	
  

Yes

Yes

N/A

No

No

No

Yes

N/A Yes

8	
  

Yes

Yes

Yes

Yes

No

N/A

Yes

No Yes

9	
   N/A

N/A

N/A

N/A

N/A

N/A

Yes

N/A Yes

10	
   Yes

Yes

N/A

Yes

No

N/A

No

No N/A

%	
   89%

67%

17%

67%

33%

0%

70%

30% 100%

	
  

111	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 112 of 161 PageID# 6614 	
  

Summary	
  of	
  Individual	
  Reviews	
  for	
  Individuals	
  without	
  REACH	
  	
   DBHDS	
  provided	
  me	
  with	
  a	
  list	
  of	
  all	
  of	
  the	
  individuals’	
  known	
  to	
  the	
  department,	
   hospitalized	
  between	
  January-­‐June	
  2015	
  who	
  was	
  not	
  involved	
  with	
  REACH.	
  This	
  was	
  a	
  total	
   of	
  thirteen	
  individuals	
  in	
  Regions	
  I	
  and	
  IV.	
  DBHDS	
  was	
  able	
  to	
  provide	
  some	
  documentation	
   and	
  contact	
  information	
  for	
  eight	
  of	
  these	
  individuals.	
  The	
  summary	
  of	
  each	
  individual	
   review	
  is	
  in	
  Appendix	
  2.	
   	
   One	
  individual	
  has	
  no	
  diagnoses	
  of	
  ID	
  or	
  DD;	
  one	
  has	
  anecdotal	
  information	
  but	
  needs	
  to	
  be	
   tested;	
  two	
  have	
  borderline	
  ID	
  and	
  no	
  indication	
  of	
  a	
  DD;	
  and	
  one	
  individual	
  has	
  Asperger’s.	
   All	
  of	
  these	
  individuals	
  have	
  significant	
  mental	
  health	
  issues	
  and	
  have	
  interacted	
  with	
  the	
   mental	
  health	
  system	
  through	
  the	
  CSBs.	
  Six	
  of	
  the	
  eight	
  individuals	
  are	
  lacking	
  the	
  supports	
   they	
  need.	
  Effective	
  discharge	
  planning	
  is	
  not	
  evident	
  upon	
  their	
  releases	
  from	
  jail	
  or	
   discharge	
  from	
  hospitals.	
  A	
  discharge	
  planner	
  may	
  be	
  involved	
  that	
  offers	
  an	
  intake	
   appointment.	
  There	
  is	
  no	
  Case	
  Manager	
  assigned	
  until	
  that	
  occurs.	
  There	
  is	
  rarely	
  support	
  or	
   a	
  definite	
  plan	
  to	
  insure	
  the	
  individual	
  accesses	
  the	
  mental	
  health	
  system.	
  With	
  one	
   exception	
  these	
  individuals	
  have	
  not	
  been	
  referred	
  for	
  ID	
  case	
  management,	
  waiver	
  services	
   or	
  REACH.	
  	
  Individual	
  8	
  has	
  been	
  linked	
  and	
  will	
  be	
  transitioned	
  to	
  a	
  GH.	
  He	
  was	
  discharged	
   to	
  REACH	
  while	
  a	
  suitable	
  home	
  and	
  provider	
  are	
  located.	
  Individual	
  1	
  has	
  a	
  history	
  of	
  ID	
   services	
  but	
  there	
  has	
  not	
  been	
  any	
  attempt	
  to	
  re-­‐establish	
  this	
  connection.	
  Individual	
  4	
  is	
  an	
   example	
  of	
  one	
  individual	
  who	
  receives	
  appropriate	
  mental	
  health	
  supports	
  and	
  services	
   from	
  his	
  CSB.	
  	
   	
   The	
  Commonwealth	
  has	
  taken	
  a	
  positive	
  step	
  to	
  require	
  REACH	
  to	
  participate	
  in	
  all	
  pre-­‐ hospital	
  screenings.	
  The	
  success	
  of	
  this	
  involvement	
  is	
  predicated	
  on	
  the	
  CSB’s	
  realizing	
  the	
   presence	
  of	
  ID	
  or	
  DD	
  and	
  notifying	
  REACH.	
  Many	
  of	
  the	
  individuals	
  reviewed	
  for	
  this	
  report	
   were	
  hospitalized	
  for	
  assessments	
  of	
  competency	
  and	
  restoration	
  training.	
  CSB	
  ID	
  services	
   should	
  also	
  be	
  made	
  aware	
  of	
  these	
  individuals	
  to	
  insure	
  a	
  proactive	
  discharge	
  planning	
   process	
  is	
  initiated	
  at	
  the	
  time	
  of	
  admission	
  so	
  the	
  individual	
  has	
  a	
  transition	
  plan	
  that	
  can	
   assist	
  them	
  to	
  remain	
  in	
  the	
  community	
  one	
  they	
  are	
  released.	
  REACH	
  will	
  only	
  be	
  one	
   component	
  of	
  this	
  potential	
  success.	
  The	
  expertise	
  of	
  REACH	
  staff	
  can	
  contribute	
  to	
  the	
   planning	
  process	
  including	
  provider	
  training.	
  	
  These	
  individuals	
  will	
  only	
  be	
  maintained	
  in	
   the	
  community	
  with	
  well-­‐coordinated	
  services	
  from	
  both	
  the	
  ID	
  and	
  MH	
  systems.	
  The	
   approach	
  that	
  the	
  CSB	
  took	
  to	
  serve	
  Individual4	
  provides	
  an	
  example	
  of	
  the	
  necessity	
  to	
   include	
  effective	
  mental	
  health	
  supports	
  for	
  individuals	
  that	
  have	
  co-­‐occurring	
  conditions.	
   This	
  population	
  requires	
  the	
  expertise	
  of	
  both	
  mental	
  health	
  and	
  intellectual	
  disability	
   professionals.	
  

Conclusions:	
  The	
  DBHDS	
  is	
  not	
  in	
  compliance	
  with	
  Section	
  III.C.6i,	
  6.a.ii,	
  and	
  6.a.iii.	
  The	
   program	
  elements	
  are	
  in	
  place	
  for	
  adults	
  with	
  ID	
  and	
  the	
  REACH	
  teams	
  are	
  responding	
  to	
   crises	
  directly	
  more	
  of	
  the	
  time,	
  providing	
  mobile	
  supports,	
  and	
  offering	
  the	
  CTH	
  program	
   for	
  crisis	
  stabilization,	
  prevention	
  and	
  transition	
  from	
  hospitals.	
  The	
  REACH	
  program	
  needs	
   to	
  improve	
  its	
  mobile	
  supports	
  as	
  evidenced	
  by	
  the	
  review	
  of	
  ten	
  individuals	
  that	
  experience	
   multiple	
  hospitalizations.	
  	
   	
   	
  

	
  

112	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 113 of 161 PageID# 6615
	
  
	
   The	
  Commonwealth	
  also	
  needs	
  to	
  continue	
  to	
  address	
  its	
  systemic	
  improvements	
  if	
   individuals	
  are	
  to	
  stop	
  experiencing	
  multiple	
  and	
  unnecessary	
  hospitalizations.	
  REACH	
  is	
   one	
  part	
  of	
  the	
  system	
  that	
  provides	
  a	
  variety	
  of	
  temporary	
  crisis	
  supports.	
  REACH	
  must	
  be	
   complimented	
  by	
  a	
  strong,	
  well	
  trained	
  residential	
  and	
  day	
  provider	
  network	
  with	
  expertise	
   in	
  mental	
  health	
  and	
  behavioral	
  supports;	
  the	
  availability	
  of	
  mental	
  health	
  community	
   supports;	
  the	
  availability	
  of	
  behavioral	
  support	
  specialists;	
  psychiatric	
  settings	
  with	
   expertise	
  in	
  ID	
  and	
  DD;	
  and	
  effective	
  discharge	
  planning	
  for	
  individuals	
  that	
  are	
  hospitalized	
   or	
  incarcerated.	
  	
   	
   DBHDS	
  does	
  not	
  have	
  a	
  statewide	
  crisis	
  system	
  in	
  place	
  for	
  children	
  and	
  adolescents	
  who	
   experience	
  a	
  crisis;	
  nor	
  can	
  DBHDS	
  assure	
  that	
  it	
  is	
  reaching	
  all	
  of	
  the	
  individuals	
  with	
  DD	
   who	
  need	
  and	
  may	
  benefit	
  from	
  the	
  crisis	
  system.	
  	
  
SECTION	
  5:	
  ELEMENTS	
  OF	
  THE	
  CRISIS	
  RESPONSE	
  SYSTEM	
  	
  
6.b.	
  The	
  Crisis	
  system	
  shall	
  include	
  the	
  following	
  components:	
   i.	
  A.	
  Crisis	
  Point	
  of	
  Entry	
   The	
  Commonwealth	
  shall	
  utilize	
  existing	
  CSB	
  Emergency	
  Services,	
  including	
  existing	
  CSB	
   hotlines,	
  for	
  individuals	
  to	
  access	
  information	
  about	
  and	
  referrals	
  to	
  local	
  resources.	
  Such	
   hotlines	
  shall	
  be	
  operated	
  24	
  hours	
  per	
  day,	
  7	
  days	
  per	
  week	
  and	
  staffed	
  with	
  clinical	
   professionals	
  who	
  are	
  able	
  to	
  assess	
  crises	
  by	
  phone	
  and	
  assist	
  the	
  caller	
  in	
  identifying	
  and	
   connecting	
  with	
  local	
  services.	
  Where	
  necessary,	
  the	
  crisis	
  hotline	
  will	
  dispatch	
  at	
  least	
  one	
   mobile	
  crisis	
  team	
  member	
  who	
  is	
  adequately	
  trained	
  to	
  address	
  the	
  crisis.	
  	
  
In	
  all	
  Regions	
  REACH	
  continues	
  to	
  be	
  available	
  24	
  hours	
  each	
  day	
  to	
  respond	
  to	
  crises.	
  There	
   were	
  322	
  calls	
  to	
  REACH	
  included	
  in	
  the	
  data	
  the	
  DBHDS	
  provided	
  about	
  the	
  time	
  of	
  day	
   referrals	
  were	
  made	
  for	
  this	
  reporting	
  period.	
  This	
  is	
  a	
  significant	
  increase	
  over	
  the	
  204	
  calls	
   made	
  in	
  the	
  previous	
  reporting	
  period.	
  Only	
  15%	
  (21)	
  and	
  13%	
  	
  (23)	
  of	
  the	
  calls	
  respective	
   to	
  QIV-­‐15	
  and	
  QI-­‐16	
  were	
  received	
  outside	
  of	
  regular	
  business	
  hours.	
  This	
  continues	
  the	
   trend	
  from	
  previous	
  reporting	
  periods.	
  This	
  is	
  reviewed	
  in	
  greater	
  detail	
  earlier	
  in	
  this	
   report.	
   	
   Conclusion:	
  The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  Section	
  III.C.6.b.i.A.	
   	
   B.	
  By	
  June	
  30,	
  2012	
  the	
  Commonwealth	
  shall	
  train	
  CSB	
  Emergency	
  personnel	
  in	
  each	
  Health	
   Planning	
  Region	
  on	
  the	
  new	
  crisis	
  response	
  system	
  it	
  is	
  establishing,	
  how	
  to	
  make	
  referrals,	
  and	
   the	
  resources	
  that	
  are	
  available.	
  	
  
The	
  Regions	
  continue	
  to	
  train	
  CSB	
  ES	
  staff	
  and	
  report	
  on	
  this	
  quarterly.	
  During	
  this	
  reporting	
   period	
  only	
  three	
  regions	
  provided	
  training	
  to	
  CSB	
  ES	
  staff.	
  The	
  total	
  ES	
  staff	
  trained	
  during	
   this	
  reporting	
  period	
  was	
  twenty-­‐four	
  compared	
  to	
  sixty-­‐three	
  during	
  the	
  previous	
   reporting	
  period.	
  Region	
  I	
  did	
  not	
  train	
  any	
  ES	
  staff	
  during	
  period.	
  It	
  is	
  impossible	
  to	
  tell	
   what	
  these	
  numbers	
  reflect	
  since	
  there	
  is	
  no	
  data	
  as	
  to	
  how	
  many	
  ES	
  personnel	
  remain	
  in	
   need	
  of	
  training,	
  if	
  any.	
  	
  

	
  

113	
  

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The	
  Independent	
  Reviewer	
  requested	
  a	
  plan	
  from	
  DBHDS	
  by	
  June	
  30,	
  2014	
  to	
  specify	
  that	
  all	
   CSB	
  ES	
  personnel	
  will	
  be	
  trained	
  using	
  a	
  standardized	
  curriculum	
  and	
  this	
  training	
  will	
  be	
   tracked.	
  The	
  DBHDS	
  now	
  has	
  a	
  draft	
  of	
  the	
  training	
  but	
  it	
  has	
  not	
  been	
  finalized.	
  	
   	
   Conclusion:	
  The	
  Commonwealth	
  remains	
  in	
  compliance	
  with	
  Section	
  III.C.6.b.i.B	
  because	
  the	
   REACH	
  programs	
  continue	
  to	
  train	
  ES	
  staff.	
  DBHDS	
  has	
  not	
  fully	
  responded	
  to	
  the	
   Independent	
  Reviewer’s	
  requirement	
  to	
  develop	
  a	
  standardized	
  training	
  curriculum.	
  The	
   DBHDS	
  continues	
  to	
  be	
  unable	
  to	
  track	
  if	
  all	
  existing	
  ES	
  staffs	
  have	
  been	
  trained	
  but	
  REACH	
   staff	
  continues	
  to	
  make	
  training	
  available.	
  	
   	
   Recommendation:	
  All	
  regions	
  should	
  be	
  required	
  to	
  provide	
  this	
  training	
  unless	
  all	
  ES	
   employees	
  in	
  their	
  region	
  have	
  already	
  been	
  trained.	
  DBHDS	
  should	
  develop	
  a	
  tracking	
   mechanism	
  with	
  the	
  CSBs	
  to	
  document	
  the	
  staffs	
  that	
  are	
  trained	
  and	
  follow	
  up	
  with	
  any	
   who	
  is	
  not.	
  	
   	
   ii.	
  Mobile	
  Crisis	
  Teams	
   	
   A.	
  Mobile	
  crisis	
  team	
  members	
  adequately	
  trained	
  to	
  address	
  the	
  crisis	
  shall	
  respond	
  to	
   individuals	
  at	
  their	
  homes	
  and	
  in	
  other	
  community	
  settings	
  and	
  offer	
  timely	
  assessment,	
   services	
  support	
  and	
  treatment	
  to	
  de-­‐escalate	
  crises	
  without	
  removing	
  individuals	
  from	
  their	
   current	
  placement	
  whenever	
  possible.	
  	
  
The	
  National	
  Center	
  for	
  START	
  Services	
  at	
  UNH	
  continued	
  to	
  provide	
  training	
  to	
  the	
  REACH	
   staff	
  in	
  Regions	
  I	
  and	
  II.	
  	
  REACH	
  leaders	
  in	
  Regions	
  III,	
  IV	
  and	
  V	
  have	
  worked	
  together	
  to	
   develop	
  a	
  training	
  program	
  that	
  will	
  provide	
  similar	
  training	
  for	
  their	
  staffs.	
  DBHDS	
  has	
   reviewed	
  and	
  approved	
  the	
  curriculum	
  for	
  use	
  across	
  the	
  three	
  regions	
  as	
  reported	
  in	
  the	
   last	
  Crisis	
  Services	
  Report.	
  The	
  REACH	
  standards	
  require	
  comprehensive	
  staff	
  training	
  with	
   set	
  expectations	
  for	
  topics	
  to	
  be	
  addressed	
  within	
  30,	
  60	
  and	
  120	
  days	
  of	
  hire.	
  Staff	
  must	
   complete	
  and	
  pass	
  an	
  objective	
  comprehension	
  test.	
  Ongoing	
  training	
  is	
  required	
  and	
  each	
   staff	
  must	
  have	
  clinical	
  supervision,	
  shadowing,	
  observation,	
  conduct	
  a	
  case	
  presentation,	
   and	
  receive	
  feedback	
  on	
  the	
  development	
  of	
  Crisis	
  Education	
  and	
  Prevention	
  Plans	
  from	
  a	
   licensed	
  clinician.	
   	
   However,	
  it	
  is	
  not	
  evident	
  from	
  the	
  qualitative	
  review	
  of	
  the	
  ten	
  individuals	
  that	
  received	
   REACH	
  services	
  that	
  timely	
  assessment,	
  services	
  support	
  and	
  treatment	
  is	
  consistently	
   occurring	
  to	
  de-­‐escalate	
  crises	
  without	
  removing	
  individuals	
  from	
  their	
  current	
  placements.	
   Individuals	
  are	
  experiencing	
  multiple	
  hospitalizations	
  in	
  part	
  because	
  REACH	
  has	
  not	
  always	
   responded	
  directly	
  to	
  the	
  crisis	
  prior	
  to	
  August	
  2015;	
  the	
  CTH	
  was	
  not	
  always	
  available	
   when	
  it	
  was	
  appropriate	
  for	
  a	
  hospital	
  diversion;	
  there	
  was	
  no	
  alternative	
  to	
  the	
  hospital	
  for	
   individuals	
  who	
  may	
  continue	
  to	
  elope	
  from	
  their	
  residential	
  programs	
  or	
  REACH;	
  REACH	
   in-­‐home	
  supports	
  are	
  not	
  consistently	
  effective	
  in	
  changing	
  staff’s	
  interactions	
  with	
  the	
   individuals;	
  there	
  are	
  not	
  enough	
  highly	
  trained	
  waiver	
  providers	
  to	
  address	
  individuals’	
  co-­‐ occurring	
  conditions;	
  and	
  there	
  are	
  not	
  always	
  the	
  needed	
  community	
  mental	
  health	
  and	
   behavioral	
  resources	
  for	
  REACH	
  to	
  link	
  to	
  for	
  individuals	
  they	
  serve.	
   	
   Conclusion:	
  The	
  Commonwealth	
  is	
  in	
  non-­‐compliance	
  with	
  Section	
  6.b.ii.A.	
  	
  

	
  

114	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 115 of 161 PageID# 6617 	
  

It	
  has	
  developed	
  a	
  comprehensive	
  training	
  program	
  and	
  a	
  process	
  to	
  reinforce	
  learning	
   through	
  supervision,	
  team	
  meeting	
  discussions	
  and	
  peer	
  review.	
  However	
  this	
  has	
  not	
   resulted	
  in	
  the	
  expected	
  outcomes	
  of	
  this	
  provision	
  the	
  Settlement	
  Agreement.	
  This	
  finding	
   is	
  supported	
  by	
  the	
  qualitative	
  review	
  that	
  was	
  undertaken	
  during	
  this	
  review	
  period	
  to	
   expand	
  the	
  information	
  that	
  has	
  been	
  available	
  in	
  terms	
  of	
  quantitative	
  data	
  reporting. 	
   Recommendations:	
  The	
  REACH	
  programs	
  may	
  want	
  to	
  include	
  person-­‐centered	
  planning,	
   discharge	
  planning	
  and	
  family	
  training	
  in	
  its	
  training	
  programs.	
  DBHDS	
  should	
  report	
  in	
  the	
   future	
  about	
  the	
  number	
  of	
  REACH	
  staff	
  who	
  complete	
  and	
  pass	
  the	
  required	
  training.	
   Future	
  reviews	
  will	
  continue	
  to	
  evaluate	
  the	
  staffs’	
  ability	
  to	
  effectively	
  respond	
  to	
  crises	
  as	
  a	
   measure	
  of	
  the	
  success	
  of	
  the	
  program	
  and	
  its	
  staff	
  training	
  and	
  preparation.	
   	
  

B.	
  Mobile	
  crisis	
  teams	
  shall	
  assist	
  with	
  crisis	
  planning	
  and	
  identifying	
  strategies	
  for	
  preventing	
   future	
  crises	
  and	
  may	
  also	
  provide	
  enhanced	
  short-­‐term	
  capacity	
  within	
  an	
  individual’s	
  home	
   or	
  other	
  community	
  setting.	
  	
  

The	
  teams	
  continue	
  to	
  provide	
  response,	
  crisis	
  intervention	
  and	
  crisis	
  planning.	
  DBHDS	
   reported	
  providing	
  these	
  services	
  to	
  659	
  individuals	
  in	
  the	
  reporting	
  period:	
  329	
  individuals	
   in	
  QIV-­‐15	
  and	
  299	
  individuals	
  in	
  QI-­‐16.	
  These	
  numbers	
  are	
  extrapolated	
  from	
  the	
  quarterly	
   reports	
  that	
  list	
  service	
  type	
  by	
  three	
  categories:	
  Mobile	
  Crisis	
  Support;	
  Crisis	
  Stabilization-­‐ CTH;	
  and	
  Planned	
  Prevention-­‐CTH.	
  There	
  may	
  be	
  some	
  duplication	
  in	
  the	
  numbers,	
  if	
  some	
   individuals	
  received	
  more	
  than	
  one	
  of	
  these	
  services.	
  	
  This	
  is	
  a	
  small	
  decrease	
  from	
  the	
  673	
   individuals	
  that	
  received	
  these	
  services	
  during	
  the	
  previous	
  reporting	
  period.	
   	
   These	
  services	
  included	
  crisis	
  prevention,	
  crisis	
  intervention/prevention	
  planning,	
  crisis	
   stabilization,	
  medication	
  evaluation,	
  therapeutic	
  treatment	
  planning	
  and	
  follow	
  up.	
  	
  Once	
   again	
  more	
  of	
  these	
  services	
  were	
  provided	
  in	
  the	
  CTH	
  than	
  through	
  Mobile	
  Support:	
  324	
  in	
   the	
  CTH	
  program	
  versus	
  304	
  that	
  received	
  them	
  from	
  the	
  Mobile	
  Support	
  Team.	
  	
  There	
   numbers	
  are	
  not	
  an	
  unduplicated	
  count	
  of	
  individuals.	
  Some	
  individuals	
  are	
  likely	
  counted	
   more	
  than	
  once	
  since	
  some	
  individuals	
  receive	
  both	
  mobile	
  support	
  and	
  use	
  the	
  CTH	
   program.	
  	
   	
   The	
  REACH	
  Standards	
  now	
  require	
  that	
  all	
  individuals	
  receive	
  both	
  crisis	
  education	
   prevention	
  planning	
  and	
  crisis	
  prevention	
  follow	
  up.	
  The	
  planning	
  results	
  in	
  a	
  Crisis	
   Education	
  Prevention	
  Plan	
  (CEPP).	
  The	
  other	
  services	
  may	
  or	
  may	
  not	
  be	
  needed	
  depending	
   on	
  the	
  needs	
  of	
  the	
  individual.	
  The	
  REACH	
  programs	
  did	
  not	
  consistently	
  provide	
  these	
   required	
  elements	
  with	
  the	
  exception	
  of	
  Region	
  III	
  during	
  QIV-­‐15.	
  Region	
  III	
  reached	
  a	
  level	
   of	
  100%	
  for	
  the	
  CEPPs	
  during	
  QI-­‐16	
  and	
  for	
  the	
  crisis	
  prevention	
  follow	
  up	
  for	
  individuals	
   that	
  used	
  the	
  CTH	
  program	
  but	
  not	
  for	
  those	
  that	
  used	
  the	
  Mobile	
  Crisis	
  Support.	
   	
   The	
  revised	
  standards	
  were	
  in	
  effect	
  July	
  2015.	
  The	
  performance	
  of	
  the	
  regions	
  improved	
   during	
  this	
  quarter.	
  During	
  this	
  quarter	
  Regions	
  I,	
  II,	
  and	
  III,	
  achieved	
  100%	
  compliance	
  with	
   the	
  requirement	
  to	
  complete	
  a	
  CEPP	
  and	
  to	
  provide	
  crisis	
  prevention	
  follow-­‐up.	
  The	
  overall	
   statewide	
  level	
  of	
  achievement	
  is	
  not	
  in	
  compliance	
  because	
  of	
  the	
  lack	
  of	
  this	
  consistency	
  in	
   Regions	
  IV	
  and	
  V.	
  	
  Table	
  4	
  provides	
  a	
  summary	
  of	
  the	
  plans	
  and	
  follow	
  up	
  completed	
  and	
  the	
   level	
  of	
  compliance	
  by	
  quarter	
  and	
  overall	
  for	
  the	
  reporting	
  period.	
  

	
  

115	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 116 of 161 PageID# 6618 	
  

	
  

	
  

Table	
  4	
  

Crisis	
  Education	
  and	
  Prevention	
  Plans	
  and	
  Crisis	
  Prevention	
  Follow-­‐up	
  

Quarter	
  

Individuals	
  

CEPP	
  	
  

Percentage	
   Follow-­‐up	
   Percentage	
  

done	
  

done	
  

done	
  

done	
  

QIV-­‐15	
  

329	
  

188	
  

57%	
  

34	
  

10%	
  

QI-­‐16	
  

299	
  

189	
  

63%	
  

273	
  

91%	
  

Overall	
  

	
  

	
  

60%	
  

	
  

49%	
  

Compliance	
  

	
  

Conclusion:	
  The	
  Commonwealth	
  is	
  not	
  in	
  compliance	
  with	
  Section	
  6.b.ii.B.	
  The	
  REACH	
  

programs	
  did	
  not	
  consistently	
  develop	
  CEPPs,	
  or	
  provide	
  strategies	
  and	
  quality	
  follow-­‐up	
  

that	
  was	
  adequate	
  to	
  help	
  prevent	
  recurrences	
  of	
  crises	
  experienced	
  by	
  individuals	
  and	
  their	
  

families.	
  It	
  is	
  very	
  positive	
  that	
  REACH	
  is	
  now	
  required	
  to	
  complete	
  CEPPs	
  and	
  the	
  programs	
  

significantly	
  improved	
  follow	
  up	
  during	
  QI-­‐16.	
  

C.	
  Mobile	
  crisis	
  team	
  members	
  adequately	
  trained	
  to	
  address	
  the	
  crisis	
  shall	
  work	
  with	
  law	
   enforcement	
  personnel	
  to	
  respond	
  if	
  an	
  individual	
  comes	
  into	
  contact	
  with	
  law	
  enforcement	
  	
   	
   The	
  local	
  REACH	
  teams	
  continue	
  to	
  train	
  police	
  officers	
  through	
  the	
  Crisis	
  Intervention	
   Training	
  (CIT)	
  program.	
  During	
  the	
  first	
  quarter	
  of	
  this	
  review	
  period	
  167	
  officers	
  were	
   trained	
  and	
  165	
  were	
  trained	
  during	
  the	
  second	
  quarter	
  for	
  a	
  total	
  of	
  332	
  trained	
  police.	
  	
   This	
  is	
  an	
  increase	
  over	
  the	
  224	
  law	
  enforcement	
  staff	
  trained	
  during	
  the	
  previous	
  reporting	
   period.	
  This	
  training	
  was	
  provided	
  in	
  all	
  five	
  regions,	
  which	
  is	
  an	
  improvement	
  over	
  the	
  past	
   reporting	
  period	
  when	
  training	
  only	
  occurred	
  in	
  Regions	
  I,	
  III,	
  and	
  V.	
  	
  CIT	
  is	
  offered	
  to	
   approximately	
  20-­‐25%	
  of	
  police	
  officers.	
  Four	
  of	
  the	
  five	
  regions	
  are	
  part	
  of	
  the	
  training	
  for	
   two	
  CSB	
  areas	
  in	
  their	
  regions.	
  Region	
  V	
  is	
  part	
  of	
  CIT	
  training	
  in	
  three	
  of	
  the	
  CSBs.	
  No	
   REACH	
  program	
  is	
  offering	
  training	
  as	
  part	
  of	
  CIT	
  in	
  all	
  of	
  the	
  CSBs	
  in	
  their	
  catchment	
  areas.	
   DBHDS	
  reports	
  the	
  REACH	
  staff	
  does	
  also	
  reach	
  out	
  to	
  smaller	
  law	
  enforcement	
  entities.	
  	
   	
   I	
  reviewed	
  the	
  CIT	
  modules	
  on	
  ID	
  and	
  DD	
  and	
  the	
  REACH	
  program.	
  The	
  five	
  regional	
  training	
   modules	
  vary.	
  The	
  modules	
  provide	
  an	
  introduction	
  to	
  ID	
  and	
  DD	
  and	
  are	
  instructional	
  but	
   all	
  stress	
  different	
  disabilities.	
  Region	
  II	
  provides	
  an	
  excellent	
  overview	
  about	
  autism;	
   Region	
  IV	
  provides	
  a	
  brief	
  overview	
  to	
  many	
  rare	
  syndromes;	
  and	
  Region	
  V	
  includes	
   dementia.	
  The	
  Regions	
  vary	
  more	
  significantly	
  regarding	
  the	
  information	
  they	
  provide	
  about	
   REACH.	
  Two	
  regions	
  only	
  give	
  contact	
  information	
  and	
  two	
  give	
  short	
  descriptions.	
  Region	
  V	
   provides	
  the	
  most	
  comprehensive	
  description.	
  This	
  region	
  uses	
  the	
  module	
  developed	
  by	
   DBHDS.	
  	
   	
   It	
  was	
  instructive	
  to	
  learn	
  about	
  collaboration	
  with	
  local	
  police	
  involved	
  in	
  some	
  of	
  the	
  crisis	
   situations	
  the	
  ten	
  individuals	
  experienced	
  that	
  were	
  part	
  of	
  the	
  individual	
  reviews.	
  Providers	
   often	
  attempted	
  to	
  debrief	
  with	
  police	
  officers	
  or	
  approach	
  the	
  police	
  unit	
  to	
  talk	
  about	
   approaches	
  to	
  use	
  with	
  these	
  individuals	
  when	
  they	
  eloped	
  or	
  caused	
  property	
  destruction	
   outside	
  of	
  the	
  home.	
  These	
  efforts	
  were	
  not	
  always	
  successful	
  in	
  part	
  because	
  certain	
  units	
   have	
  so	
  many	
  police	
  and	
  it	
  is	
  not	
  always	
  the	
  same	
  responder.	
  There	
  was	
  not	
  evidence	
  that	
  

	
  

116	
  

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REACH	
  Coordinators	
  or	
  mobile	
  staff	
  attempted	
  to	
  work	
  with	
  law	
  enforcement	
  personnel	
  to	
   preemptively	
  discuss	
  individuals	
  who	
  were	
  prone	
  to	
  crises	
  or	
  to	
  debrief	
  with	
  police	
  officers	
   after	
  an	
  individual	
  crisis	
  to	
  determine	
  if	
  there	
  are	
  more	
  effective	
  ways	
  to	
  respond	
  in	
  the	
   future.	
  	
   	
   DBHDS	
  reported	
  during	
  the	
  last	
  reporting	
  period	
  that	
  an	
  online	
  training	
  module	
  was	
  to	
  be	
   made	
  available	
  to	
  police	
  officers	
  through	
  the	
  Department	
  of	
  Criminal	
  Justice	
  Services	
  (DCJS)	
   website	
  starting	
  in	
  July	
  2015.	
  This	
  had	
  not	
  occurred	
  at	
  the	
  time	
  of	
  this	
  report.	
  DBHDS	
  does	
   have	
  a	
  Law	
  Enforcement	
  Initiative	
  that	
  will	
  compliment	
  the	
  CIT	
  training	
  provided	
  in	
  the	
   regions.	
  They	
  are	
  collaborating	
  with	
  the	
  Commonwealth	
  Autism	
  (CA)	
  on	
  its	
  existing	
  autism	
   specific	
  training	
  initiative	
  and	
  with	
  DCJS.	
  Information	
  flyers	
  have	
  been	
  requested	
  for	
  Police	
   Chiefs	
  to	
  use	
  in	
  roll	
  call	
  and	
  training	
  of	
  new	
  recruits.	
  DBHDS	
  has	
  developed	
  a	
  flyer	
  on	
  REACH	
   and	
  Children’s	
  Crisis	
  Services	
  for	
  law	
  enforcement	
  that	
  is	
  on	
  the	
  DBHDS	
  website.	
  The	
   informational	
  flyer	
  has	
  been	
  distributed	
  to	
  Sherriff’s	
  and	
  will	
  be	
  distributed	
  to	
  Police	
  Chiefs,	
   Dispatchers	
  and	
  the	
  Police	
  Training	
  Academies	
  by	
  November	
  1,	
  2015.	
  The	
  DBHDS	
  plans	
  to	
   develop	
  a	
  comprehensive	
  training	
  program	
  to	
  include	
  REACH	
  contact	
  information,	
   introductory	
  training	
  on	
  ID	
  and	
  DD,	
  and	
  provide	
  options	
  for	
  police	
  officers’	
  responses	
  to	
   crises	
  with	
  individuals	
  with	
  ID	
  or	
  DD.	
  The	
  plan	
  includes	
  follow	
  up	
  with	
  CA	
  and	
  DCJS	
  in	
  March	
   2016	
  and	
  development	
  of	
  training	
  material	
  through	
  the	
  training	
  portal	
  in	
  July	
  2016.	
  The	
   numbers	
  of	
  individuals	
  using	
  the	
  training	
  will	
  not	
  be	
  monitored	
  until	
  July	
  2017.	
   	
   Conclusion:	
  The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  Section	
  6.b.ii.	
  C	
  since	
  many	
  officers	
   have	
  been	
  trained	
  in	
  this	
  reporting	
  period	
  and	
  the	
  DBHDS	
  has	
  made	
  some	
  information	
   available	
  to	
  law	
  enforcement	
  departments	
  through	
  its	
  website.	
  	
   	
   Recommendation:	
  Every	
  region	
  should	
  be	
  required	
  to	
  provide	
  training	
  until	
  the	
  training	
  is	
   available	
  to	
  all	
  law	
  enforcement	
  personnel	
  online.	
  	
   	
   DBHDS	
  should	
  facilitate	
  sharing	
  of	
  the	
  trainings	
  for	
  Law	
  Enforcement	
  used	
  in	
  different	
   regions.	
  A	
  single	
  effort	
  to	
  combine	
  what	
  each	
  Region	
  has	
  determined	
  is	
  its	
  strongest	
   component	
  into	
  a	
  single	
  training	
  for	
  law	
  enforcement	
  would	
  significantly	
  improve	
  the	
   quality	
  and	
  the	
  impact	
  of	
  the	
  training	
   	
   Suggestion:	
  Consideration	
  should	
  be	
  given	
  to	
  providing	
  more	
  information	
  about	
  REACH’s	
   direct	
  involvement	
  with	
  particular	
  individuals	
  to	
  law	
  enforcement,	
  especially	
  regarding	
   those	
  who	
  frequently	
  interact	
  with	
  law	
  enforcement	
  as	
  a	
  result	
  of	
  elopement,	
  aggression,	
   and	
  assault.	
  REACH	
  staff	
  will	
  not	
  necessarily	
  arrive	
  at	
  the	
  scene	
  of	
  the	
  crisis	
  while	
  the	
  law	
   enforcement	
  officers	
  are	
  involved	
  because	
  of	
  the	
  response	
  time	
  of	
  one	
  and	
  two	
  hours.	
   REACH	
  staff	
  should	
  make	
  contact	
  following	
  crisis	
  responses	
  either	
  independently	
  for	
   individuals	
  at	
  home	
  with	
  their	
  families	
  or	
  in	
  cooperation	
  with	
  waiver	
  providers.	
  	
  

	
  

117	
  

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D.	
  Mobile	
  crisis	
  teams	
  shall	
  be	
  available	
  24	
  hours,	
  7	
  days	
  per	
  week	
  to	
  respond	
  on-­‐site	
  to	
  crises.	
  	
  

As	
  reported	
  earlier	
  in	
  Section	
  4	
  the	
  REACH	
  Mobile	
  crisis	
  teams	
  are	
  available	
  around	
  the	
   clock	
  and	
  respond	
  at	
  off	
  hours.	
  There	
  were	
  260	
  mobile	
  assessments	
  performed	
  during	
  the	
   reporting	
  period	
  of	
  which	
  151	
  (58%)	
  were	
  conducted	
  in	
  individuals’	
  homes,	
  day	
  programs,	
   or	
  the	
  community	
  location	
  where	
  they	
  were	
  when	
  the	
  crisis	
  occurred.	
  	
  This	
  compares	
  to	
  56	
   %	
  of	
  the	
  assessments	
  being	
  performed	
  in	
  these	
  settings	
  during	
  the	
  previous	
  reporting	
   period.	
  Thirty-­‐eight	
  percent	
  of	
  the	
  individuals	
  were	
  assessed	
  in	
  the	
  hospital	
  or	
  ES/CSB,	
   compared	
  to	
  35%	
  last	
  reporting	
  period.	
  The	
  other	
  individuals	
  were	
  assessed	
  at	
  the	
  CTH	
   setting.	
  	
   	
   The	
  number	
  of	
  individuals	
  assessed	
  in	
  their	
  family	
  home	
  compared	
  to	
  a	
  residential	
  program	
   is	
  substantially	
  equal	
  (64	
  in	
  the	
  family	
  home	
  and	
  65	
  in	
  a	
  residential	
  program).	
  	
  This	
   continues	
  the	
  pattern	
  in	
  the	
  previous	
  period	
  and	
  may	
  indicate	
  that	
  providers	
  have	
  a	
  greater	
   understanding	
  of	
  the	
  benefits	
  of	
  the	
  REACH	
  program	
  and	
  are	
  seeking	
  the	
  expertise	
  of	
  the	
   REACH	
  staff.	
   	
   The	
  trend	
  of	
  referrals	
  being	
  made	
  during	
  normal	
  business	
  hours	
  continues.	
  REACH	
  received	
   a	
  total	
  of	
  322	
  referrals	
  during	
  the	
  reporting	
  period	
  of	
  which	
  not	
  all	
  require	
  an	
  assessment	
  or	
   onsite	
  response.	
  Forty-­‐four	
  of	
  these	
  calls	
  came	
  in	
  on	
  weekends	
  (14)	
  or	
  after	
  5	
  PM	
  weekdays	
   (30).	
  Eighty-­‐six	
  percent	
  of	
  all	
  of	
  the	
  calls	
  are	
  made	
  during	
  the	
  normal	
  workday.	
  	
  Neither	
   Regions	
  IV	
  nor	
  Region	
  V	
  received	
  calls	
  on	
  weekends	
  or	
  holidays.	
   	
   All	
  Regions	
  report	
  that	
  all	
  calls	
  are	
  answered	
  and	
  the	
  availability	
  of	
  a	
  REACH	
  Coordinator	
  is	
   maintained	
  continuously.	
  However,	
  there	
  were	
  anecdotal	
  reports	
  from	
  some	
  Case	
  Managers	
   and	
  CSBs	
  that	
  they	
  have	
  experienced	
  calls	
  not	
  answered	
  or	
  that	
  REACH	
  did	
  not	
  accompany	
   them	
  to	
  the	
  site.	
  One	
  CSB	
  provided	
  a	
  log	
  of	
  calls	
  to	
  REACH	
  since	
  4/15.	
  The	
  ES	
  had	
  screened	
   five	
  individuals	
  with	
  ID.	
  REACH	
  was	
  called	
  three	
  times	
  and	
  was	
  already	
  onsite	
  in	
  the	
  fourth	
   case;	
  the	
  ES	
  staff	
  neglected	
  to	
  contact	
  REACH	
  once.	
  The	
  ES	
  reported	
  that	
  REACH	
  did	
  not	
   respond	
  with	
  an	
  onsite	
  staff	
  in	
  two	
  situations.	
  However,	
  the	
  REACH	
  program	
  was	
  able	
  to	
   show	
  evidence	
  through	
  its	
  logs	
  that	
  a	
  joint	
  decision	
  was	
  made	
  in	
  these	
  cases	
  between	
  ES	
  and	
   REACH	
  staff	
  to	
  not	
  respond.	
  One	
  person	
  was	
  highly	
  dangerous	
  and	
  was	
  quickly	
  admitted;	
  the	
   other	
  was	
  sent	
  home	
  and	
  provided	
  with	
  information	
  to	
  contact	
  REACH	
  the	
  next	
  day.	
  

Conclusion:	
  The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  Section	
  III.C.6.b.ii.D.	
   	
   	
   E.	
  Mobile	
  crisis	
  teams	
  shall	
  provide	
  in-­‐home	
  crisis	
  support	
  for	
  a	
  period	
  of	
  up	
  to	
  three	
  days,	
  with	
   the	
  possibility	
  of	
  3	
  additional	
  days	
  	
  

DBHDS	
  collects	
  and	
  reports	
  data	
  on	
  the	
  amount	
  of	
  time	
  that	
  is	
  devoted	
  to	
  a	
  particular	
   individual.	
  Most	
  regions	
  provided	
  individuals	
  with	
  more	
  than	
  three	
  days	
  on	
  average	
  of	
  in-­‐ home	
  support	
  services	
  with	
  the	
  exception	
  of	
  Region	
  V	
  in	
  QIV	
  that	
  averaged	
  2	
  days	
  that	
  is	
  the	
   same	
  as	
  the	
  last	
  reporting	
  period.	
  Region	
  V	
  increased	
  to	
  7.5	
  days	
  in	
  QI.	
  	
   	
   	
   	
  

	
  

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   Regions	
  provided	
  community	
  based	
  crisis	
  services	
  as	
  follows:	
  
Region	
  I:	
  twenty-­‐four	
  individuals	
  for	
  an	
  average	
  of	
  seven	
  days	
  in	
  QIV	
   Thirty-­‐one	
  individuals	
  for	
  an	
  average	
  of	
  five	
  days	
  in	
  QI	
   Region	
  II:	
  twenty	
  individuals	
  for	
  an	
  average	
  of	
  four	
  days	
  in	
  QIV	
   Thirty-­‐one	
  individuals	
  for	
  an	
  average	
  of	
  three	
  days	
  in	
  QI	
   Region	
  III:	
  thirty-­‐six	
  individuals	
  for	
  an	
  average	
  of	
  eleven	
  days	
  in	
  QVI	
   Twenty-­‐four	
  individuals	
  for	
  an	
  average	
  of	
  nine	
  days	
  in	
  QI	
   Region	
  IV:	
  twenty-­‐seven	
  individuals	
  for	
  an	
  average	
  of	
  four	
  days	
  in	
  QIV	
   Thirty-­‐two	
  individuals	
  for	
  an	
  average	
  of	
  four	
  days	
  in	
  QI	
   Region	
  V:	
  thirteen	
  individuals	
  for	
  an	
  average	
  of	
  two	
  days	
  in	
  QIV	
   Forty-­‐three	
  individuals	
  for	
  an	
  average	
  of	
  7.5	
  days	
  in	
  QI	
   	
   	
  Regions	
  vary	
  in	
  the	
  number	
  of	
  individuals	
  served	
  and	
  the	
  total	
  numbers	
  of	
  days	
  of	
   community	
  based	
  crisis	
  services	
  but	
  had	
  becoming	
  more	
  similar	
  by	
  the	
  last	
  Quarter	
  (QI	
   FY16).	
  The	
  range	
  of	
  individuals	
  is	
  24	
  (Region	
  III)	
  –	
  43	
  (Region	
  V)	
  but	
  the	
  other	
  three	
  regions	
   served	
  either	
  31	
  or	
  32	
  individuals.	
  The	
  range	
  of	
  days	
  varies	
  from	
  1-­‐8	
  (Region	
  IV)	
  to	
  1-­‐19	
   (Region	
  V)	
  
Conclusion:	
  The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  the	
  requirement	
  of	
  Section	
   III.6.C.b.ii.E.	
  	
   	
   F.	
  By	
  June	
  30,	
  2012	
  the	
  Commonwealth	
  shall	
  have	
  at	
  least	
  one	
  mobile	
  crisis	
  teams	
  in	
  each	
   region	
  to	
  response	
  to	
  on-­‐site	
  crises	
  within	
  two	
  hours G.	
  By	
  June	
  30,	
  2013	
  the	
  Commonwealth	
  shall	
  have	
  at	
  least	
  two	
  mobile	
  crisis	
  teams	
  in	
  each	
   region	
  to	
  response	
  to	
  on-­‐site	
  crises	
  within	
  two	
  hours	
   H.	
  By	
  June	
  30,	
  2014	
  the	
  Commonwealth	
  shall	
  have	
  a	
  sufficient	
  number	
  of	
  mobile	
  crisis	
  teams	
  in	
   each	
  Region	
  to	
  respond	
  on	
  site	
  to	
  crises	
  as	
  follows:	
  in	
  urban	
  areas,	
  within	
  one	
  hour,	
  and	
  in	
  rural	
   areas,	
  within	
  two	
  hours,	
  as	
  measured	
  by	
  the	
  average	
  annual	
  response	
  time.	
  	
  
Regions	
  have	
  not	
  created	
  new	
  teams,	
  but	
  have	
  added	
  staff	
  to	
  the	
  existing	
  teams.	
  The	
  added	
   staff	
  has	
  not	
  resulted	
  in	
  sufficient	
  capacity	
  to	
  provide	
  the	
  needed	
  crisis	
  response	
  within	
  the	
   one-­‐	
  two	
  hours	
  as	
  required.	
  	
  Regions	
  II	
  and	
  IV	
  are	
  urban	
  areas	
  and	
  should	
  meet	
  the	
   expectation	
  of	
  responding	
  to	
  a	
  crisis	
  referral	
  within	
  one	
  hour.	
  	
   	
   There	
  were	
  214	
  onsite	
  responses	
  in	
  QIV	
  and	
  247	
  onsite	
  responses	
  in	
  QI	
  for	
  a	
  total	
  of	
  461	
   onsite	
  responses.	
  DBHDS	
  reported	
  on	
  the	
  response	
  time	
  for	
  all	
  of	
  these	
  responses.	
  Eleven	
   calls	
  in	
  QIV	
  and	
  sixteen	
  calls	
  in	
  QI	
  were	
  not	
  responded	
  to	
  in	
  the	
  required	
  time	
  period.	
  The	
   number	
  of	
  on-­‐time	
  responses	
  total	
  434.	
  The	
  state’s	
  records	
  indicate	
  that	
  it	
  responded	
  to	
   94%	
  of	
  crisis	
  calls	
  within	
  the	
  one	
  to	
  two	
  hours	
  required.	
  	
   	
   I	
  learned	
  during	
  the	
  course	
  of	
  the	
  last	
  review	
  that	
  the	
  regions	
  calculate	
  the	
  response	
  time	
   based	
  on	
  the	
  time	
  the	
  team	
  makes	
  the	
  decision	
  that	
  the	
  referral	
  requires	
  a	
  face-­‐to-­‐face	
   assessment	
  or	
  consultation.	
  For	
  the	
  first	
  half	
  of	
  this	
  review	
  period,	
  the	
  REACH	
  Data	
   Dictionary	
  still	
  defined	
  response	
  time	
  as	
  from	
  the	
  point	
  the	
  REACH	
  Coordinator	
  determines	
   an	
  onsite	
  response	
  is	
  needed.	
  The	
  DBHDS	
  administrators	
  have	
  assured	
  me	
  this	
  is	
  not	
  the	
  

	
  

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operational	
  definition	
  the	
  REACH	
  programs	
  use	
  and	
  are	
  changing	
  the	
  REACH	
  data	
  dictionary	
   to	
  define	
  response	
  time	
  as	
  the	
  time	
  between	
  the	
  time	
  the	
  call	
  is	
  received	
  and	
  the	
  time	
  the	
   REACH	
  staff	
  arrives	
  onsite.	
  The	
  purpose	
  of	
  establishing	
  required	
  timeframes	
  for	
  crisis	
   response	
  is	
  to	
  assist	
  families	
  and	
  providers	
  to	
  effectively	
  assist	
  a	
  person	
  in	
  a	
  crisis.	
  The	
   acceptable	
  timeframe	
  of	
  one	
  to	
  two	
  hours	
  is	
  already	
  causing	
  REACH	
  teams	
  to	
  recommend	
  to	
   families	
  that	
  they	
  first	
  call	
  the	
  police	
  or	
  the	
  CSB	
  ES	
  team	
  in	
  the	
  case	
  of	
  future	
  crises.	
  	
   	
   The	
  REACH	
  teams	
  reported	
  average	
  times	
  that	
  are	
  all	
  comply	
  with	
  the	
  on-­‐site	
  response	
   times:	
  in	
  urban	
  areas,	
  within	
  one	
  hour,	
  and	
  in	
  rural	
  areas,	
  within	
  two	
  hours,	
  as	
  measured	
  by	
   the	
  average	
  annual	
  response	
  time.	
  	
  

TABLE 5

Mobile Crisis Teams: Average On-site Response Time

Health Planning Region

Average response time

Average response time

4/1/15 - 6/30/15

7/1/15 – 9/30/15

I – northwest/central

60 minutes

60 minutes

II - northern

44 minutes

41 minutes

III - southwest

80 minutes

64 minutes

IV - greater Capitol

65 minutes

36 minutes

V - tidewater

38 minutes

63 minutes

	
  

The	
  Commonwealth	
  did	
  not	
  create	
  two	
  or	
  more	
  teams	
  in	
  each	
  region	
  as	
  the	
  Settlement	
  

Agreement	
  required.	
  Instead,	
  it	
  added	
  members	
  to	
  the	
  existing	
  team	
  in	
  each	
  region.	
  The	
  

Commonwealth	
  did	
  continue	
  to	
  address	
  the	
  systemic	
  issues	
  that	
  delay	
  responses	
  and	
  to	
  

improve	
  on-­‐site	
  response	
  times.	
  For	
  the	
  most	
  recent	
  two	
  quarters,	
  between	
  April	
  1,	
  2015	
  

and	
  September	
  30,	
  2015,	
  the	
  REACH	
  Teams	
  responded	
  to	
  434	
  (94%)	
  of	
  461	
  crisis	
  calls	
  

within	
  two	
  hours.	
  The	
  amount	
  of	
  time	
  that	
  the	
  twenty-­‐seven	
  (6%)	
  responses	
  exceeded	
  the	
  

two-­‐hour	
  standard	
  was	
  generally	
  minor.	
  The	
  two	
  primary	
  reasons	
  for	
  exceeding	
  the	
  time	
  

standard	
  was	
  usual	
  weather	
  or	
  traffic.	
  	
  The	
  improved	
  response	
  times	
  are	
  important	
  and	
  

significant.	
  Dependable	
  response	
  times	
  are	
  especially	
  important	
  to	
  the	
  individuals	
  and	
  

families	
  in	
  crisis.	
  They	
  are	
  significant	
  because	
  the	
  improved	
  response	
  times	
  indicate	
  that	
  the	
  

mobile	
  crisis	
  teams	
  have	
  substantially	
  resolved	
  the	
  systemic	
  issues	
  that	
  have	
  delayed	
  past	
  

responses.	
  The	
  REACH	
  mobile	
  crisis	
  teams	
  should	
  continue	
  their	
  efforts	
  to	
  improve	
  and	
  to	
  

sustain	
  timely	
  responses	
  to	
  all	
  crisis	
  calls.	
  

Conclusion:	
  	
   The	
  Commonwealth	
  remains	
  in	
  compliance	
  with	
  Sections	
  III.C.6.b.ii.G.	
  and	
  H.	
  	
  

	
  

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iii.	
  Crisis	
  Stabilization	
  programs	
   A.	
  Crisis	
  stabilization	
  programs	
  offer	
  a	
  short-­‐term	
  alternative	
  to	
  institutionalization	
  or	
   hospitalization	
  for	
  individuals	
  who	
  need	
  inpatient	
  stabilization	
  services.	
   B.	
  Crisis	
  stabilization	
  programs	
  shall	
  be	
  used	
  as	
  a	
  last	
  resort.	
  The	
  state	
  shall	
  ensure	
  that,	
  prior	
   to	
  transferring	
  an	
  individual	
  to	
  a	
  crisis	
  stabilization	
  program,	
  the	
  mobile	
  crisis	
  team,	
  in	
   collaboration	
  with	
  the	
  provider,	
  has	
  first	
  attempted	
  to	
  resolve	
  the	
  crisis	
  to	
  avoid	
  an	
  out-­‐of-­‐ home	
  placement,	
  and	
  if	
  that	
  is	
  not	
  possible,	
  has	
  then	
  attempted	
  to	
  locate	
  another	
  community-­‐ based	
  placement	
  that	
  could	
  serve	
  as	
  a	
  short-­‐term	
  placement.	
   C.	
  If	
  an	
  individual	
  receives	
  crisis	
  stabilization	
  services	
  in	
  a	
  community-­‐based	
  placement	
  instead	
   of	
  a	
  crisis	
  stabilization	
  unit,	
  the	
  individual	
  may	
  be	
  given	
  the	
  option	
  of	
  remaining	
  in	
  placement	
  if	
   the	
  provider	
  is	
  willing	
  to	
  serve	
  the	
  individual	
  and	
  the	
  provider	
  can	
  meet	
  the	
  needs	
  of	
  the	
   individual	
  as	
  determined	
  by	
  the	
  provider	
  and	
  the	
  individual’s	
  case	
  manager.	
   D.	
  Crisis	
  stabilization	
  programs	
  shall	
  have	
  no	
  more	
  than	
  6	
  beds	
  and	
  length	
  of	
  stay	
  shall	
  not	
   exceed	
  30	
  days.	
   G.	
  By	
  June	
  30,	
  2013	
  the	
  Commonwealth	
  shall	
  develop	
  an	
  additional	
  crisis	
  stabilization	
  program	
   in	
  each	
  region	
  as	
  determined	
  to	
  meet	
  the	
  needs	
  of	
  the	
  target	
  population	
  in	
  that	
  region.	
  	
  
All	
  regions	
  now	
  have	
  a	
  crisis	
  stabilization	
  program	
  providing	
  both	
  emergency	
  and	
  planned	
   respite.	
  All	
  Regions	
  have	
  six	
  beds	
  available.	
  Region	
  IV	
  remains	
  in	
  its	
  temporary	
  location.	
  	
   During	
  my	
  last	
  review,	
  I	
  visited	
  the	
  CTH	
  operated	
  by	
  Region	
  IV,	
  which	
  is	
  on	
  the	
  grounds	
  of	
  a	
   former	
  institution	
  that	
  is	
  outside	
  of	
  Richmond.	
  The	
  REACH	
  team	
  with	
  the	
  input	
  of	
  the	
  REACH	
   Regional	
  Advisory	
  Council	
  has	
  found	
  land	
  in	
  Chester.	
  The	
  plan	
  was	
  to	
  break	
  ground	
  in	
   September	
  and	
  open	
  by	
  March	
  2016.	
  DBHDS	
  reported	
  that	
  the	
  ground	
  breaking	
  was	
   10/15/15.	
  The	
  Region	
  still	
  hopes	
  to	
  transfer	
  the	
  CTH	
  to	
  the	
  new	
  location	
  by	
  March. 	
   The	
  Regional	
  Plans	
  to	
  provide	
  crisis	
  stabilization	
  beds	
  at	
  this	
  same	
  location	
  for	
  children	
  will	
   also	
  be	
  determined	
  in	
  Non-­‐compliance.	
   	
   There	
  were	
  a	
  total	
  of	
  327	
  visits	
  to	
  the	
  CTH	
  programs,	
  which	
  is	
  a	
  slight	
  increase	
  over	
  the	
   number	
  reported	
  during	
  the	
  last	
  reporting	
  period.	
  There	
  were	
  more	
  visits	
  for	
  crisis	
   stabilization	
  (170)	
  than	
  for	
  crisis	
  prevention	
  (158).	
  It	
  is	
  also	
  positive	
  that	
  DBHDS	
  continues	
   to	
  offer	
  planned	
  respite	
  in	
  the	
  REACH	
  Crisis	
  Stabilization	
  Units	
  for	
  individuals	
  at	
  risk	
  of	
   crises.	
  This	
  type	
  of	
  planned	
  respite	
  is	
  very	
  beneficial	
  to	
  families	
  who	
  continue	
  to	
  care	
  for	
   their	
  relative	
  at	
  home.	
  	
   	
   The	
  average	
  length	
  of	
  stay	
  continues	
  to	
  meet	
  the	
  requirement	
  that	
  stays	
  not	
  exceed	
  30	
  days.	
  	
   The	
  average	
  lengths	
  of	
  stay	
  are	
  as	
  follows:	
   	
  
• Prevention-­‐	
  4-­‐12	
  days	
  in	
  QIV	
  and	
  4-­‐8	
  days	
  in	
  QI	
   • Crisis	
  Stabilization-­‐	
  9-­‐19	
  days	
  in	
  QIV	
  and	
  10-­‐24	
  days	
  in	
  QI	
   	
   DBHDS	
  does	
  not	
  report	
  on	
  each	
  length	
  of	
  stay	
  but	
  did	
  indicate	
  as	
  an	
  example	
  that	
  four	
   individuals	
  remained	
  in	
  the	
  Region	
  II	
  CTH	
  at	
  the	
  time	
  of	
  the	
  QI-­‐16	
  report	
  and	
  they	
  exceeded	
   the	
  30-­‐day	
  requirement.	
  The	
  individuals	
  with	
  prolonged	
  stays	
  are	
  all	
  from	
  providers	
  that	
  

	
  

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indicated	
  an	
  inability	
  to	
  continue	
  to	
  serve	
  the	
  person,	
  not	
  from	
  families	
  refusing	
  to	
  have	
  their	
   loved	
  one	
  return	
  home.	
   	
   There	
  were	
  four	
  individuals	
  on	
  the	
  Waiting	
  List	
  in	
  Regions	
  III	
  (3)	
  and	
  V	
  (1)	
  in	
  QIV-­‐15	
  and	
   twelve	
  on	
  the	
  Waiting	
  List	
  in	
  QI-­‐16	
  including	
  Region	
  II	
  (4);	
  Region	
  IV	
  (5)	
  and	
  Region	
  V	
  (3).	
  	
   Region	
  III	
  continues	
  to	
  temporarily	
  operate	
  with	
  seven	
  beds	
  that	
  is	
  one	
  over	
  the	
  maximum	
   allowed	
  by	
  the	
  Settlement	
  Agreement.	
  	
   	
   The	
  data	
  does	
  not	
  indicate	
  if	
  these	
  individuals	
  need	
  it	
  for	
  emergency	
  support	
  or	
  planned	
   crisis	
  prevention.	
  These	
  numbers	
  may	
  also	
  underrepresent	
  the	
  need.	
  I	
  found	
  that	
  some	
  of	
   the	
  individuals	
  in	
  the	
  Individual	
  Reviews	
  could	
  not	
  go	
  to	
  the	
  CTH	
  every	
  time	
  it	
  was	
   considered	
  as	
  an	
  alternative	
  to	
  hospitalization.	
  Also	
  Case	
  Managers	
  at	
  the	
  Focus	
  Groups	
   stated	
  they	
  and	
  their	
  colleagues	
  have	
  stopped	
  referring	
  because	
  there	
  is	
  rarely	
  an	
  available	
   bed.	
  I	
  visited	
  the	
  Region	
  I	
  CTH.	
  Two	
  individuals	
  were	
  there	
  on	
  stays	
  of	
  longer	
  than	
  30	
  days	
   because	
  they	
  did	
  not	
  have	
  a	
  placement.	
  Thus	
  was	
  causing	
  behavioral	
  concerns	
  for	
  one	
  of	
  the	
   individuals	
  because	
  of	
  the	
  uncertainty	
  of	
  his	
  own	
  future	
  while	
  he	
  observed	
  others	
  leaving	
   the	
  CTH	
  to	
  return	
  home.	
   	
   The	
  DBHDS	
  has	
  required	
  the	
  REACH	
  programs	
  to	
  admit	
  individuals	
  who	
  do	
  not	
  have	
  a	
  firm	
   discharge	
  plan	
  to	
  ensure	
  that	
  crisis	
  stabilization	
  services	
  are	
  available	
  as	
  a	
  last	
  resort	
  to	
   avoid	
  unnecessary	
  institutionalization.	
  	
  These	
  individuals	
  are	
  in	
  great	
  need	
  for	
  this	
  last	
   resort,	
  in	
  part,	
  because	
  the	
  Commonwealth	
  allows	
  residential	
  service	
  providers	
  to	
  discharge	
   individuals	
  without	
  a	
  discharge	
  plan	
  or	
  alternative	
  home	
  setting.	
  The	
  Commonwealth	
  must	
   maintain	
  its	
  commitment	
  to	
  continue	
  to	
  meet	
  the	
  crisis	
  stabilization	
  needs	
  of	
  all	
  of	
  the	
  target	
   population	
  and	
  not	
  allow	
  the	
  needs	
  of	
  one	
  particular	
  group	
  to	
  negatively	
  impact	
  the	
  needs	
  of	
   others.	
  There	
  must	
  be	
  continued	
  review	
  of	
  the	
  plans	
  and	
  resources	
  for	
  individuals	
  that	
  need	
   a	
  new	
  home	
  so	
  that	
  the	
  crisis	
  stabilization	
  homes	
  do	
  not	
  become	
  emergency	
  residences	
  for	
   individuals	
  who	
  are	
  homeless.	
  The	
  outcome	
  of	
  prolonged	
  stays	
  is	
  not	
  always	
  in	
  these	
   individuals	
  best	
  interest	
  as	
  they	
  observe	
  others	
  leaving	
  the	
  CTH	
  after	
  shorter	
  visits.	
  Longer	
   use	
  of	
  the	
  CTH	
  precludes	
  others	
  that	
  need	
  this	
  resource	
  from	
  accessing	
  it	
  in	
  timely	
  manner.	
   	
   The	
  REACH	
  program	
  continues	
  to	
  provide	
  community–based	
  mobile	
  crisis	
  support	
  and	
   offers	
  it	
  as	
  the	
  first	
  alternative	
  when	
  appropriate.	
  	
  Mobile	
  crisis	
  timely	
  in-­‐home	
  support	
  was	
   provided	
  to	
  a	
  total	
  of	
  240	
  individuals	
  with	
  the	
  majority	
  of	
  these	
  individuals	
  (162),	
  receiving	
   this	
  stabilization	
  in	
  QIV-­‐15.	
  Some	
  of	
  these	
  individuals	
  still	
  required	
  psychiatric	
   hospitalization	
  as	
  has	
  been	
  noted	
  in	
  an	
  earlier	
  section.	
   	
   There	
  is	
  no	
  indication	
  that	
  any	
  other	
  community	
  placements	
  were	
  used	
  for	
  crisis	
   stabilization	
  during	
  the	
  reporting	
  period	
  for	
  individuals	
  who	
  could	
  not	
  remain	
  in	
  their	
  home	
   setting.	
  	
  Two	
  individuals	
  were	
  supported	
  in	
  the	
  MH	
  CSU	
  program.	
  The	
  Settlement	
  Agreement	
   requires	
  the	
  state	
  to	
  attempt	
  to	
  locate	
  another	
  community	
  alternative	
  before	
  using	
  the	
   REACH	
  Crisis	
  Stabilization	
  Unit.	
  REACH	
  teams	
  are	
  attempting	
  to	
  maintain	
  individuals	
  in	
  their	
   own	
  homes	
  with	
  supports	
  as	
  the	
  preferred	
  approach	
  to	
  stabilize	
  someone	
  who	
  is	
  in	
  crisis.	
  	
  

The	
  REACH	
  programs	
  are	
  not	
  currently	
  seeking	
  community	
  residential	
  vacancies	
  before	
   using	
  the	
  Crisis	
  Stabilization	
  Units.	
  In	
  my	
  professional	
  opinion	
  using	
  vacancies	
  in	
  community	
   residential	
  programs	
  is	
  not	
  a	
  best	
  practice.	
  	
  I	
  have	
  expressed	
  my	
  reasoning	
  in	
  previous	
  

	
  

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reports.	
  I	
  will	
  not	
  recommend	
  a	
  determination	
  of	
  compliance	
  regarding	
  this	
  provision	
  until	
   the	
  Parties	
  discuss	
  it	
  and	
  decide	
  if	
  they	
  want	
  to	
  maintain	
  it	
  as	
  a	
  requirement	
  of	
  the	
   Agreement.	
  I	
  continue	
  to	
  recommend	
  that	
  it	
  not	
  be	
  a	
  REACH	
  practice.	
  	
  
The	
  DBHDS	
  is	
  to	
  determine	
  if	
  there	
  is	
  a	
  need	
  for	
  additional	
  crisis	
  therapeutic	
  homes	
  to	
  meet	
   the	
  needs	
  of	
  individuals	
  in	
  the	
  target	
  population.	
  Based	
  on	
  past	
  reviews	
  of	
  the	
  average	
   number	
  of	
  beds	
  that	
  were	
  occupied	
  per	
  day	
  in	
  the	
  existing	
  programs,	
  I	
  previously	
   determined	
  that	
  additional	
  CTHs	
  might	
  not	
  be	
  needed	
  because	
  of	
  unused	
  capacity.	
  However,	
   this	
  more	
  in-­‐depth	
  qualitative	
  review	
  of	
  individuals	
  in	
  Region	
  I	
  and	
  IV	
  determined	
  that	
  it	
  is	
   common	
  for	
  there	
  not	
  to	
  be	
  sufficient	
  capacity	
  for	
  individuals	
  in	
  need.	
  During	
  the	
  previous	
   report	
  period	
  Region	
  III	
  discussed	
  adding	
  crisis	
  stabilization	
  beds	
  to	
  address	
  unmet	
  needs.	
   Case	
  Managers	
  reported	
  during	
  this	
  review	
  not	
  making	
  referrals	
  because	
  of	
  the	
  lack	
  of	
   availability.	
  This	
  lack	
  of	
  capacity	
  existed	
  when	
  policies	
  were	
  in	
  place	
  that	
  excluded	
   individuals	
  with	
  an	
  ID	
  or	
  DD	
  diagnosis	
  who	
  did	
  not	
  have	
  a	
  case	
  manager	
  or	
  were	
  evicted	
  by	
   residential	
  providers	
  without	
  a	
  discharge	
  plan	
  or	
  receiving	
  home.	
  With	
  the	
  current	
   placement	
  of	
  individuals	
  for	
  longer	
  periods	
  of	
  time;	
  the	
  continuation	
  of	
  waiting	
  lists	
  for	
  crisis	
   stabilization	
  beds;	
  the	
  unavailability	
  of	
  the	
  CTHs	
  as	
  a	
  step	
  down,	
  there	
  is	
  compelling	
   evidence	
  that	
  more	
  crisis	
  stabilization	
  beds	
  are	
  required	
  to	
  meet	
  the	
  needs	
  of	
  the	
  target	
   population.	
  The	
  Commonwealth	
  has	
  not	
  fulfilled	
  it	
  responsibility	
  to	
  assess	
  and	
  determine	
   whether	
  it	
  is	
  necessary	
  to	
  meet	
  the	
  needs	
  of	
  the	
  target	
  population.	
  
Conclusion:	
  The	
  Commonwealth	
  of	
  Virginia	
  is	
  in	
  compliance	
  with	
  Sections	
  III.C.6.b.iii.	
  A.,	
  B.	
   and	
  F.;	
  and	
  is	
  in	
  substantial	
  compliance	
  with	
  D	
  and	
  E.	
  	
   	
   The	
  Commonwealth	
  of	
  Virginia	
  is	
  in	
  non-­‐compliance	
  with	
  Sections	
  III.C.6.b.iii.G.	
   	
   I	
  will	
  not	
  make	
  a	
  determination	
  about	
  Section	
  III.C.6.b.iii.C	
  until	
  the	
  Parties	
  make	
  a	
  decision	
   about	
  the	
  practice	
  of	
  using	
  community	
  residential	
  resources	
  for	
  crisis	
  stabilization.	
  	
   	
   Recommendations:	
  	
  The	
  Commonwealth	
  should	
  study	
  the	
  need	
  for	
  additional	
  CTHs.	
  It	
   should	
  report	
  on	
  the	
  number	
  of	
  individuals	
  that	
  exceed	
  the	
  30-­‐day	
  stay	
  in	
  the	
  CTH.	
  It	
  should	
   indicate	
  the	
  impact	
  of	
  individuals	
  on	
  the	
  waiting	
  list	
  for	
  the	
  CTH.	
  It	
  should	
  report	
  on	
  Region	
   III’s	
  plan	
  to	
  bring	
  its	
  CTH	
  capacity	
  back	
  to	
  six	
  individuals.	
  

	
  

123	
  

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SECTION	
  6:	
  SUMMARY	
  	
  
The	
  Commonwealth	
  of	
  Virginia	
  continues	
  to	
  make	
  progress	
  to	
  implement	
  a	
  statewide	
  crisis	
  response	
   system	
  for	
  individuals	
  with	
  I/DD.	
  It	
  is	
  promising	
  that	
  DBHDS	
  has	
  finalized	
  its	
  REACH	
  Program	
   Standards	
  and	
  has	
  developed	
  Children’s	
  Developmental	
  Disability	
  Crisis	
  Services	
  Program	
  Standards.	
   The	
  REACH	
  Program	
  Standards	
  increase	
  the	
  requirements	
  for	
  MH	
  and	
  ID/DD	
  experience	
  for	
  staff	
  and	
   require	
  licensure	
  for	
  most	
  positions.	
  The	
  standards	
  also	
  reduce	
  the	
  exclusions	
  for	
  participation	
  in	
  the	
   CTH	
  Program	
  and	
  require	
  REACH	
  Staff	
  to	
  respond	
  onsite	
  to	
  crises	
  and	
  participate	
  in	
  all	
  screenings	
   for	
  hospital	
  admissions.	
  The	
  Children’s	
  Standards	
  are	
  thorough	
  and	
  comprehensive.	
  	
  
More individuals are utilizing REACH and there is an increase in training The issue of the actual response time to crises must be addressed to determine if the Commonwealth is meeting its obligation under the Settlement Agreement. The Commonwealth needs to analyze whether individuals with DD are getting appropriate access to REACH services.
There is better data regarding individuals that are psychiatrically hospitalized and the required involvement of REACH should be beneficial. However, there is a need to report more specifically on multiple hospitalizations and the reasons for admission. The review of the twenty individuals indicate the system still needs to develop and expand its capacity to effectively prevent unnecessary hospitalizations and reduce the multiple admissions individuals experience. This will only be accomplished with a sufficient number of well-trained and expert REACH staff and sufficient capacity of CTH programs. This however, is only one aspect of a service delivery system that can provide appropriate community supports for individuals with co-occurring conditions. Individuals need highly specialized providers with well- trained staff in sufficient numbers to provide the structure and programming individuals’ need. The story of Individual 7 in Addendum 1 demonstrates what a difference this makes in the life of an individual. These individuals also need behavioral supports and access to mental health supports. REACH will be ineffective if the other components of the system are not available. DBHDS’ plan to revise its waiver and rates is an essential initiative to expanding service options but alone will not create the service delivery system capacity individuals with co-occurring conditions need.
I conducted two Focus Groups during this review period. Fourteen individuals attended including providers, case managers, behavioral specialists, ES staff, autism and disability advocates, and disability rights professionals. They were asked to comment on the following issues:
• The existing elements of the community crisis services system • The capacity of the crisis services system to address the needs of individuals with ID and
DD • The availability of behavioral supports, family support, residential services and day
services for this population • The response to crises by ES and REACH staff and how they interface • The coordination of REACH services and the individual’s service planning team • The ways in which the crisis system can be enhanced
Concerns were expressed as to whether REACH has sufficient staff to serve all individuals referred; that there is an insufficient number of CTH settings and CSBs have often stopped referring because of this; that ES and REACH Coordination is inconsistent across CSBs ranging

	
  

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from very good to frustration at a lack of response or poor coordination with the team after using REACH; that there is a woeful lack of BCBAs and Professional Behavioral Support Specialists; there is a lack of individuals trained and a lack of services and supports to address the needs of the DD population; there is a lack of residential and day providers that can effectively address cooccurring conditions; there is a need to expand the training of police officers; and individuals need access to mental health supports including services to address substance use. Both groups expressed dissatisfaction with the psychiatric hospitalizations available to these populations because there is little expertise in these settings to address the unique needs of individuals with ID or DD. REACH was often complimented for specific work. The individuals at the Region IV Focus Group unanimously supported the changes to that program under its new REACH Director who assumed the role two years ago. These comments support my findings that the system needs to develop capacity at many levels for both REACH and the entire crisis support system to be effective and responsive. 	
   The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  the	
  following	
  Sections	
  of	
  the	
  Settlement	
   Agreement:	
  	
  
III.C.6.b.i.A	
   	
  III.C.6.b.i.B	
  	
   III.C.6.b.ii.C	
   III.C.6.b.ii.D	
   III.C.6.b.ii.E	
   III.C.6.b.iii.A	
   III.C.6.b.iii.B	
   III.C.6.iii.F	
   	
   The	
  Commonwealth	
  is	
  in	
  substantial	
  compliance	
  with	
  the	
  following	
  Sections	
  of	
  the	
   Settlement	
  Agreement:	
  	
   	
   III.C.6.b.iii.D	
  	
   III.C.6.iii.E	
   	
  
The	
  Commonwealth	
  is	
  in	
  non-­‐compliance	
  with	
  the	
  following	
  Sections	
  of	
  the	
  Settlement	
   Agreement:	
  	
  
III.C.6.a.i	
  	
   III.C.6a.ii	
  	
   III.C.6.a.iii	
  	
   III.C.6.b.ii.A	
   III.C.6.b.ii.B	
   III.C.6.b.ii.G	
   III.C.6.b.ii.H	
  

	
  

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APPENDIX D

	
  

	
  

QUALITY AND RISK MANAGEMENT

	
  

	
  

by: Maria Laurence

	
  

	
  

	
  

	
  

	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
  

	
  

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   INTRODUCTION	
   	
   The	
  Settlement	
  Agreement	
  requires	
  the	
  Commonwealth	
  to	
  develop	
  and	
  implement	
  a	
  Quality	
   and	
  Risk	
  Management	
  System	
  that	
  will	
  “identify	
  and	
  address	
  risks	
  of	
  harm;	
  ensure	
  the	
   sufficiency,	
  accessibility,	
  and	
  quality	
  of	
  services	
  to	
  meet	
  individuals’	
  needs	
  in	
  integrated	
   settings;	
  and	
  collect	
  and	
  evaluate	
  data	
  to	
  identify	
  and	
  respond	
  to	
  trends	
  to	
  ensure	
   continuous	
  quality	
  improvement.”	
  (V.A-­‐I.)	
   	
   At	
  the	
  request	
  of	
  the	
  Independent	
  Reviewer,	
  this	
  is	
  the	
  third	
  Report	
  prepared	
  to	
  assess	
  the	
   Commonwealth’s	
  progress	
  in	
  meeting	
  these	
  terms	
  of	
  the	
  Settlement	
  Agreement.	
  	
  (The	
  first	
   Report	
  was	
  issued	
  on	
  November	
  15,	
  2013;	
  the	
  second	
  Report	
  was	
  issued	
  on	
  November	
  15,	
   2014.	
  	
  References	
  are	
  made	
  to	
  previous	
  reports,	
  as	
  relevant	
  to	
  recent	
  findings.)	
   	
   This	
  Report	
  is	
  focused	
  on	
  seven	
  discrete	
  areas	
  of	
  Quality	
  and	
  Risk	
  Management:	
   	
   1) Risk	
  triggers	
  and	
  thresholds;	
  	
   2) The	
  web-­‐based	
  incident	
  reporting	
  system	
  and	
  reporting	
  protocol;	
  	
   3) Investigation	
  of	
  allegations	
  and	
  critical	
  incidents;	
  	
   4) Data	
  to	
  assess	
  and	
  improve	
  quality;	
  	
   5) Providers;	
   6) Statewide	
  Core	
  Competency-­‐Based	
  Training	
  Curriculum;	
  and	
  	
   7) Quality	
  Service	
  Reviews.	
  	
  	
   	
   The	
  assistance	
  given	
  throughout	
  the	
  review	
  period	
  by	
  the	
  Assistant	
  Commissioner	
  of	
  Quality	
   Management	
  and	
  Development	
  is	
  greatly	
  appreciated.	
  	
  In	
  addition,	
  a	
  number	
  of	
  other	
   Commonwealth	
  staff,	
  as	
  well	
  as	
  three	
  Regional	
  Quality	
  Council	
  (RQC)	
  members,	
  participated	
   in	
  interviews	
  and	
  provided	
  documentation.	
  	
  Their	
  candid	
  assessments	
  of	
  the	
  progress	
  made,	
   as	
  well	
  as	
  the	
  challenges	
  ahead,	
  were	
  very	
  helpful,	
  and	
  were	
  an	
  indication	
  of	
  their	
   commitment	
  to	
  future	
  progress.	
  	
  The	
  organizational	
  assistance	
  provided	
  by	
  the	
  Senior	
  DD	
   Administrative	
  and	
  Policy	
  Analyst	
  also	
  was	
  of	
  significant	
  help.	
  	
  	
   	
  
METHODOLOGY	
  
The	
  fact-­‐finding	
  for	
  this	
  Report	
  was	
  conducted	
  through	
  a	
  combination	
  of	
  interviews	
  and	
   document	
  review.	
  	
  Interviews	
  were	
  held	
  with	
  staff	
  from	
  the	
  Department	
  of	
  Behavioral	
   Health	
  and	
  Developmental	
  Services	
  (DBHDS),	
  as	
  well	
  as	
  with	
  representatives	
  from	
  the	
   provider	
  community	
  and	
  other	
  stakeholders.	
  	
  (Appendix	
  B	
  includes	
  a	
  list	
  of	
  the	
  individuals	
   interviewed	
  and	
  the	
  documents	
  reviewed.)	
  	
  Additionally,	
  the	
  Individual	
  Reviews	
  completed	
   by	
  the	
  Independent	
  Reviewer	
  and	
  his	
  consultants	
  provided	
  information	
  about	
  the	
  reporting	
   of	
  allegations	
  of	
  abuse	
  and	
  neglect.	
  	
  It	
  is	
  important	
  to	
  note	
  that	
  many	
  of	
  the	
  Commonwealth’s	
   initiatives	
  in	
  relation	
  to	
  the	
  Quality	
  and	
  Risk	
  Management	
  System	
  are	
  in	
  the	
  process	
  of	
   development	
  and	
  implementation.	
  	
  As	
  a	
  result,	
  a	
  number	
  of	
  draft	
  documents	
  formed	
  the	
   basis	
  for	
  this	
  Report.	
   	
  

	
  

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   FINDINGS	
  AND	
  RECOMMENDATIONS	
  
	
   For	
  each	
  of	
  the	
  seven	
  areas	
  reviewed,	
  the	
  language	
  from	
  the	
  Settlement	
  Agreement	
  is	
   provided	
  and	
  is	
  then	
  followed	
  by	
  a	
  summary	
  of	
  the	
  status	
  of	
  the	
  Commonwealth’s	
  efforts	
  and	
   highlights	
  of	
  the	
  accomplishments	
  to	
  date.	
  	
  Recommendations	
  are	
  offered	
  for	
  consideration,	
   as	
  appropriate.	
   	
  
The	
  Commonwealth	
  shall	
  require	
  that	
  all	
  Training	
  Centers,	
  CSBs	
  [Community	
  Services	
   Boards],	
  and	
  other	
  community	
  providers	
  of	
  residential	
  and	
  day	
  services	
  implement	
  risk	
   management	
  processes,	
  including	
  establishment	
  of	
  uniform	
  risk	
  triggers	
  and	
   thresholds,	
  that	
  enable	
  them	
  to	
  adequately	
  address	
  harms	
  and	
  risk	
  of	
  harm.	
  	
  Harm	
   includes	
  any	
  physical	
  injury,	
  whether	
  caused	
  by	
  abuse,	
  neglect,	
  or	
  accidental	
  causes.	
  
	
   A	
  goal	
  of	
  this	
  Review	
  was	
  to	
  determine	
  whether	
  the	
  Commonwealth	
  has	
  established	
  and	
   implemented	
  risk	
  triggers	
  and	
  thresholds	
  that	
  enable	
  it	
  to	
  adequately	
  identify	
  and	
  address	
   harms	
  and	
  risk	
  of	
  harms.	
   	
   The	
  Commonwealth	
  continues	
  to	
  revise	
  the	
  list	
  of	
  triggers	
  and	
  thresholds.	
  	
  At	
  the	
  time	
  of	
  the	
   last	
  review,	
  Commonwealth	
  staff	
  were	
  working	
  only	
  on	
  incident-­‐based	
  triggers	
  and	
   thresholds	
  (i.e.,	
  events	
  that	
  have	
  already	
  occurred).	
  	
  Since	
  then,	
  although	
  they	
  view	
  these	
  as	
   important,	
  they	
  are	
  expanding	
  their	
  thinking	
  to	
  ways	
  to	
  identify	
  the	
  potential	
  for	
  risk.	
  	
  For	
   example,	
  they	
  started	
  looking	
  at	
  annual	
  risk	
  assessment	
  triggers,	
  medical	
  triggers,	
  and	
   behavioral	
  triggers.	
  	
  They	
  also	
  began	
  looking	
  at	
  triggers	
  and	
  thresholds	
  from	
  a	
  provider,	
  as	
   well	
  as	
  an	
  individual,	
  perspective.	
  	
  These	
  are	
  positive	
  additions	
  that	
  address	
  some	
  of	
  the	
   concerns	
  identified	
  in	
  previous	
  Reports,	
  including	
  the	
  concern	
  that	
  most	
  of	
  the	
  triggers	
  and	
   thresholds	
  were	
  dependent	
  on	
  harm	
  actually	
  occurring.	
  	
  Now,	
  some	
  of	
  the	
  draft	
  annual	
  risk	
   assessment,	
  medical,	
  and	
  behavioral	
  triggers	
  and	
  thresholds	
  set	
  the	
  stage	
  to	
  proactively	
   address	
  risk.	
   	
   The	
  most	
  recent	
  draft	
  of	
  Triggers	
  and	
  Thresholds	
  identifies	
  the	
  domains	
  (e.g.,	
  restraint,	
   aggression,	
  mortality,	
  falls,	
  etc.),	
  the	
  measure	
  (e.g.,	
  restraint	
  use	
  annual	
  data,	
  restraint	
  use	
   with	
  injury,	
  etc.),	
  and	
  the	
  sub-­‐measure	
  (i.e.,	
  for	
  trends,	
  triggers,	
  and	
  thresholds).	
  	
  This	
   document	
  also	
  identifies	
  for	
  which	
  measures	
  and	
  sub-­‐measures	
  data	
  currently	
  are	
  available,	
   and	
  for	
  which	
  data	
  reports	
  are	
  still	
  needed.	
   	
   Although	
  some	
  triggers	
  and	
  thresholds	
  were	
  considered	
  final,	
  and	
  the	
  Commonwealth	
  had	
   begun	
  to	
  collect	
  some	
  data,	
  the	
  medical	
  and	
  behavioral	
  risk	
  triggers	
  and	
  thresholds	
  are	
  in	
  a	
   draft	
  stage.	
  	
  The	
  Mortality	
  Review	
  Committee	
  was	
  involved	
  in	
  the	
  development	
  of	
  the	
   medical	
  triggers.	
  	
  The	
  current	
  plan	
  is	
  to	
  finalize	
  them,	
  include	
  them	
  in	
  the	
  Individual	
  Support	
   Plan	
  (ISP)	
  format	
  to	
  move	
  interdisciplinary	
  teams	
  towards	
  thinking	
  about	
  individuals’	
  risks	
   and	
  planning	
  for	
  any	
  identified	
  risks,	
  begin	
  implementing	
  the	
  medical	
  triggers	
  for	
   individuals	
  transitioning	
  from	
  the	
  Training	
  Centers	
  to	
  the	
  community,	
  revise	
  the	
  licensing	
   regulations	
  to	
  require	
  providers	
  to	
  report	
  triggers	
  and	
  thresholds,	
  and	
  develop/revise	
  the	
   information	
  system	
  to	
  capture	
  this	
  information.	
  	
  Although	
  Commonwealth	
  staff	
  were	
  taking	
   some	
  reasonable	
  actions	
  to	
  collect	
  data,	
  the	
  need	
  for	
  revised	
  regulations	
  to	
  facilitate	
  data	
  

	
  

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collection	
  continues	
  to	
  be	
  an	
  obstacle	
  to	
  the	
  Commonwealth’s	
  full	
  implementation	
  of	
  these	
   provisions	
  of	
  the	
  Settlement	
  Agreement.	
   	
   Commonwealth	
  staff	
  made	
  progress	
  toward	
  creating	
  a	
  more	
  complete	
  list	
  of	
  triggers	
  and	
   thresholds.	
  	
  However,	
  concerns	
  continue	
  to	
  exist.	
  Therefore,	
  the	
  following	
  recommendations	
   are	
  offered:	
  
§ As	
  discussed	
  in	
  previous	
  reports,	
  definitions	
  for	
  some	
  terms	
  (e.g.,	
  fragile	
  skin,	
   frequent	
  diarrhea,	
  difficulty	
  swallowing,	
  etc.)	
  should	
  be	
  added	
  to	
  assist	
  in	
  data	
   reliability.	
  
§ The	
  Settlement	
  Agreement	
  provides	
  a	
  fairly	
  inclusive	
  definition	
  of	
  harm	
  (i.e.,	
  “Harm	
   includes	
  any	
  physical	
  injury,	
  whether	
  caused	
  by	
  abuse,	
  neglect,	
  or	
  accidental	
  causes”).	
  	
   Since	
  the	
  last	
  review,	
  the	
  Commonwealth	
  added	
  some	
  important	
  triggers	
  or	
   thresholds,	
  and	
  should	
  continue	
  to	
  identify	
  others.	
  	
  Now	
  that	
  data	
  collection	
  has	
   begun,	
  and	
  as	
  other	
  triggers	
  and	
  thresholds	
  are	
  finalized,	
  it	
  will	
  be	
  important	
  to	
   regularly	
  review	
  the	
  list	
  (e.g.,	
  semi-­‐annually),	
  as	
  part	
  of	
  an	
  ongoing	
  quality	
   improvement	
  cycle,	
  to	
  determine	
  if	
  others	
  should	
  be	
  added.	
  	
  	
  
§ The	
  Commonwealth	
  should	
  utilize	
  existing	
  data	
  from	
  its	
  mortality	
  review	
  process.	
   The	
  Mortality	
  Review	
  Committee	
  has	
  identified	
  eight	
  conditions	
  that	
  uniquely	
   contribute	
  to	
  the	
  deaths	
  of	
  individuals	
  with	
  ID/DD	
  (i.e.,	
  urinary	
  track	
  infection,	
   constipation/bowel	
  obstruction,	
  aspiration	
  pneumonia,	
  decubitus	
  ulcers,	
  sepsis,	
   seizures,	
  falls,	
  and	
  dehydration).	
  	
  As	
  Commonwealth	
  staff	
  recognized,	
  the	
  early	
   indicators	
  of	
  these	
  conditions	
  should	
  be	
  included	
  in	
  the	
  ISPs	
  and	
  on	
  lists	
  of	
  triggers	
   and	
  thresholds	
  for	
  individuals	
  with	
  ID/DD.	
  	
  Highly	
  sensitive	
  “triggers”	
  should	
  be	
   included	
  for	
  individuals	
  who	
  are	
  older	
  (i.e.	
  over	
  age	
  45)	
  and	
  who	
  are	
  considered	
   medically	
  fragile	
  based	
  on	
  their	
  Support	
  Intensity	
  Scale	
  (SIS)	
  assessments.	
  
§ The	
  Commonwealth	
  should	
  consider	
  triggers	
  or	
  thresholds	
  that	
  identify	
  deficits	
  in	
   staff	
  skills	
  or	
  knowledge,	
  or	
  in	
  residential	
  provider	
  support	
  systems.	
  	
  Often,	
  these	
  are	
   the	
  factors	
  that	
  put	
  individuals	
  most	
  at	
  risk.	
  	
  (One	
  example	
  would	
  be	
  neglect	
  findings	
   that	
  illustrate	
  repeated	
  failures	
  on	
  staff’s	
  part	
  to	
  meet	
  individuals’	
  needs.)	
  	
  	
  
§ As	
  noted	
  in	
  previous	
  Reports,	
  it	
  will	
  be	
  important	
  to	
  identify	
  mechanisms	
  to	
  gather	
   data	
  from	
  providers	
  not	
  licensed	
  by	
  DBHDS	
  to	
  provide	
  ID/DD	
  services	
  or	
  DBHDS-­‐ operated	
  Training	
  Centers,	
  including	
  nursing	
  homes,	
  private	
  Intermediate	
  Care	
   Facilities	
  for	
  Individuals	
  with	
  Intellectual	
  Disabilities	
  (ICF/IIDs),	
  and	
  private	
  homes.	
  	
  	
  
	
   Based	
  on	
  review	
  of	
  minutes,	
  thus	
  far,	
  the	
  role	
  of	
  the	
  Risk	
  Management	
  Review	
  Committee	
   largely	
  has	
  been	
  to	
  review	
  and	
  provide	
  recommendations	
  about	
  the	
  draft	
  lists	
  of	
  triggers	
  and	
   thresholds.	
  	
  Now	
  that	
  the	
  data	
  warehouse	
  allows	
  some	
  reports	
  to	
  be	
  run	
  of	
  existing	
  data,	
   plans	
  are	
  for	
  the	
  Committee	
  to	
  begin	
  reviewing	
  risk	
  trigger	
  and	
  threshold	
  data.	
  	
  If	
  not	
   already	
  occurring,	
  the	
  Risk	
  Management	
  Review	
  Committee	
  also	
  should	
  review	
  data,	
   recommendations,	
  and	
  Alerts	
  from	
  the	
  Mortality	
  Review	
  Committee	
  to	
  ensure	
  that	
  risk	
   triggers	
  and	
  thresholds	
  include	
  indicators	
  that	
  families	
  and	
  residential	
  provider	
  staff	
  might	
   observe	
  of	
  the	
  health	
  conditions	
  that	
  “more	
  commonly	
  cause	
  death	
  for	
  individuals	
  with	
   intellectual	
  disability.”	
   	
   In	
  terms	
  of	
  assisting	
  providers	
  to	
  implement	
  the	
  risk	
  triggers	
  and	
  thresholds,	
  the	
  DBHDS	
   website	
  includes	
  a	
  webinar	
  entitled	
  Risk	
  Management:	
  Monitoring	
  Risk	
  Using	
  Triggers	
  and	
   Thresholds	
  –	
  Part	
  1.	
  	
  It	
  provides	
  a	
  good	
  basic	
  description	
  of	
  the	
  use	
  of	
  risk	
  triggers	
  and	
  

	
  

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thresholds.	
  This	
  training,	
  however,	
  is	
  currently	
  optional	
  for	
  providers.	
  	
  The	
  presentation	
   references	
  risk	
  triggers	
  and	
  thresholds	
  that	
  DBHDS	
  has	
  already	
  published	
  on	
  the	
  website	
   and	
  indicates	
  that	
  further	
  training	
  will	
  be	
  provided.	
   	
   Commonwealth	
  staff	
  indicated	
  that	
  a	
  next	
  step	
  is	
  the	
  development	
  of	
  a	
  report	
  format	
  that	
   will	
  be	
  user-­‐friendly	
  for	
  providers.	
  	
  As	
  staff	
  identified,	
  it	
  will	
  be	
  important	
  to	
  identify	
  a	
  report	
   format	
  and	
  process	
  that	
  encourages	
  providers	
  to	
  continue	
  to	
  report.	
  	
  	
   	
   In	
  summary,	
  the	
  Commonwealth	
  continues	
  to	
  make	
  progress	
  in	
  building	
  a	
  more	
  complete	
   list	
  of	
  risk	
  triggers	
  and	
  thresholds,	
  and	
  des	
  working	
  to	
  develop	
  a	
  report	
  format	
  that	
  is	
  user-­‐ friendly.	
  	
  The	
  significant	
  challenge	
  continues	
  to	
  be	
  the	
  ability	
  of	
  the	
  Commonwealth	
  to	
  collect	
   data	
  on	
  a	
  complete	
  list	
  of	
  risk	
  triggers	
  and	
  thresholds.	
  	
  The	
  plan	
  to	
  expand	
  the	
  current	
   narrow	
  list	
  of	
  triggers	
  and	
  thresholds	
  on	
  which	
  data	
  is	
  available,	
  expand	
  the	
  provider	
  data	
   reporting	
  requirements	
  in	
  current	
  regulations,	
  as	
  well	
  as	
  to	
  use	
  existing	
  data	
  sources	
  more	
   effectively	
  (e.g.,	
  revise	
  the	
  ISP	
  format	
  to	
  include	
  goals/objectives	
  and/or	
  risk	
  assessment,	
   and	
  collect	
  data	
  through	
  the	
  ISP	
  development	
  and	
  implementation	
  process).	
  	
  These	
  activities	
   are	
  essential,	
  because	
  without	
  adequate	
  triggers	
  and	
  thresholds,	
  the	
  potential	
  for	
  harm	
  will	
   likely	
  not	
  be	
  caught	
  early	
  enough	
  to	
  prevent	
  actual	
  harm.	
  	
  The	
  Commonwealth	
  should	
   continue	
  to	
  identify	
  and/or	
  develop	
  relevant	
  sources	
  of	
  data	
  to	
  allow	
  expansion	
  of	
  the	
  list	
  of	
   relevant	
  risk	
  triggers	
  and	
  thresholds.	
  	
   	
  
The	
  Commonwealth	
  shall	
  have	
  and	
  implement	
  a	
  real	
  time,	
  web-­‐based	
  incident	
   reporting	
  system	
  and	
  reporting	
  protocol.	
  	
  The	
  protocol	
  shall	
  require	
  that	
  any	
  staff	
  of	
  a	
   Training	
  Center,	
  CSB,	
  or	
  community	
  provider	
  aware	
  of	
  any	
  suspected	
  or	
  alleged	
   incident	
  of	
  abuse	
  or	
  neglect	
  as	
  defined	
  by	
  Virginia	
  Code	
  §	
  37.2-­‐100	
  in	
  effect	
  on	
  the	
   effective	
  date	
  of	
  this	
  Agreement,	
  serious	
  injury	
  as	
  defined	
  by	
  12	
  VAC	
  35-­‐115-­‐30	
  in	
  effect	
   on	
  the	
  effective	
  date	
  of	
  this	
  Agreement,	
  or	
  deaths	
  directly	
  report	
  such	
  information	
  to	
   the	
  DBHDS	
  Assistant	
  Commissioner	
  for	
  Quality	
  Improvement	
  or	
  his	
  or	
  her	
  designee.	
  
	
   The	
  web-­‐based	
  incident	
  reporting	
  system	
  was	
  examined	
  in	
  order	
  to	
  determine	
  whether	
  the	
   Commonwealth	
  has	
  taken	
  sufficient	
  action	
  to	
  ensure:	
  
§ “Any	
  staff”	
  report	
  all	
  suspicions	
  or	
  allegations	
  of	
  abuse,	
  neglect,	
  serious	
  injuries	
  and	
   the	
  deaths	
  of	
  all	
  individuals	
  receiving	
  services	
  under	
  this	
  Agreement,	
  including	
   individuals	
  in	
  DD	
  services;	
  
§ Complete	
  a	
  comparison	
  between	
  reports	
  that	
  come	
  into	
  licensing	
  versus	
  the	
   Computerized	
  Human	
  Rights	
  Information	
  System	
  (CHRIS)	
  reports;	
  and	
  
§ Implement	
  appropriate	
  action	
  whenever	
  providers	
  do	
  not	
  report,	
  as	
  required,	
  within	
   24	
  hours,	
  and	
  maintain	
  related	
  data.	
  
	
   Since	
  his	
  last	
  Report,	
  the	
  Independent	
  Reviewer	
  determined	
  that	
  reporting	
  by	
  “any	
  staff”	
  of	
   all	
  suspicions	
  or	
  allegations	
  of	
  abuse,	
  neglect,	
  serious	
  injuries	
  and	
  deaths	
  means	
  reports	
  can	
   be	
  made	
  by	
  the	
  provider	
  staff	
  authorized	
  to	
  access	
  the	
  electronic	
  CHRIS	
  system	
  (It	
  is	
  not	
   required	
  that	
  the	
  staff	
  who	
  first	
  becomes	
  aware	
  of	
  an	
  incident	
  directly	
  enter	
  it	
  into	
  the	
  CHRIS	
   system).	
  	
  However,	
  for	
  compliance	
  to	
  be	
  achieved,	
  providers	
  must	
  have	
  systems	
  in	
  place	
  to	
   obtain	
  first-­‐hand	
  reports	
  from	
  any	
  staff	
  who	
  are	
  aware	
  of	
  allegations,	
  serious	
  injuries,	
  or	
   deaths	
  and	
  must	
  be	
  able	
  to	
  input	
  these	
  reports	
  verbatim	
  into	
  its	
  system.	
  	
  	
  

	
  

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   Based	
  on	
  discussions	
  with	
  DBHDS	
  staff,	
  as	
  well	
  as	
  the	
  Independent	
  Reviewer’s	
  analyses	
  of	
   CHRIS	
  reports	
  involving	
  individuals	
  who	
  moved	
  to	
  the	
  community	
  from	
  Training	
  Centers,	
  it	
   was	
  evident	
  that	
  providers,	
  although	
  using	
  the	
  CHRIS	
  system,	
  were	
  not	
  consistently	
   submitting	
  reports	
  in	
  “real-­‐time”	
  (i.e.	
  within	
  24hours).	
  	
  As	
  part	
  of	
  its	
  risk	
  management	
   training,	
  DBHDS	
  developed	
  a	
  sample	
  Internal	
  Incident	
  Report	
  form.	
  	
  However,	
  this	
  sample	
   form	
  does	
  not	
  include	
  a	
  “report	
  of	
  the	
  incident.”	
  	
  It	
  also	
  does	
  not	
  identify	
  the	
  reporter	
  who	
   directly	
  witnessed	
  the	
  incident	
  and/or	
  how	
  the	
  reporter	
  became	
  aware	
  of	
  the	
  incident.	
  	
  The	
   form	
  provides	
  check	
  boxes	
  “for	
  serious	
  injuries.”	
  	
  The	
  form	
  requests	
  that	
  all	
  applicable	
  boxes	
   be	
  checked.	
  	
  Some	
  of	
  the	
  check	
  boxes	
  are	
  for	
  events	
  (e.g.,	
  falls)	
  and	
  some	
  are	
  for	
  the	
  results	
   of	
  the	
  events	
  (e.g.,	
  sprains).	
  	
  There	
  is	
  a	
  space	
  for	
  “Injury	
  Description.”	
  	
  The	
  Independent	
   Reviewer	
  has	
  found	
  that	
  there	
  is	
  rarely	
  more	
  than	
  one	
  box	
  checked,	
  that	
  the	
  most	
  frequently	
   checked	
  box	
  is	
  “other,”	
  and	
  that	
  many	
  forms	
  are	
  submitted	
  with	
  no	
  boxes	
  checked	
  at	
  all.	
  	
  The	
   “Injury	
  Description”	
  section	
  is	
  rarely	
  completed	
  with	
  a	
  description	
  of	
  the	
  injury.	
  	
  Although	
   these	
  shortcomings	
  contribute	
  significantly	
  to	
  the	
  data	
  that	
  are	
  deficient,	
  the	
  form	
  has	
  not	
   been	
  modified	
  since	
  it	
  was	
  implemented	
  more	
  than	
  three	
  years	
  ago.	
  	
  It	
  is	
  recommended	
  that	
   DBHDS	
  make	
  these	
  additions/changes.	
  	
  	
   	
   The	
  Commonwealth	
  reports	
  that	
  it	
  has	
  begun	
  to	
  implement	
  steps	
  to	
  evaluate	
  and	
  increase,	
   as	
  necessary,	
  providers’	
  compliance	
  with	
  the	
  24-­‐hour	
  reporting	
  requirement.	
  	
  Specifically:	
  
§ To	
  facilitate	
  providers’	
  entry	
  of	
  information	
  into	
  CHRIS,	
  the	
  Commonwealth	
  relaxed	
   the	
  requirements	
  of	
  only	
  allowing	
  each	
  provider	
  to	
  have	
  two	
  staff	
  with	
  access	
  to	
   CHRIS.	
  	
  A	
  banner	
  on	
  the	
  CHRIS	
  web	
  portal	
  now	
  alerts	
  providers	
  that	
  the	
  systems	
   administrators	
  can	
  give	
  more	
  staff	
  access.	
  
§ A	
  reminder	
  of	
  the	
  24-­‐hour	
  requirement	
  was	
  included	
  on	
  the	
  CHRIS	
  system	
  portal.	
   § At	
  the	
  time	
  of	
  the	
  review,	
  DBHDS	
  staff	
  were	
  working	
  to	
  fix	
  a	
  problem	
  with	
  the	
  CHRIS	
  
system	
  that	
  only	
  allows	
  entry	
  of	
  the	
  date	
  of	
  discovery	
  of	
  an	
  incident,	
  but	
  not	
  the	
   specific	
  time	
  of	
  discovery.	
  	
  This	
  will	
  allow	
  easier	
  confirmation	
  of	
  timely	
  reporting.	
  	
   The	
  goal	
  is	
  to	
  proactively	
  run	
  reports	
  monthly,	
  and	
  to	
  notify	
  providers	
  of	
  instances	
  of	
   late	
  reporting.	
   § Reportedly,	
  when	
  Licensing	
  Specialists	
  identify	
  an	
  occurrence	
  that	
  is	
  not	
  in	
  CHRIS,	
   they	
  tell	
  the	
  provider	
  to	
  enter	
  it,	
  and	
  then	
  cite	
  them.	
  	
  Similarly,	
  if	
  the	
  Human	
  Rights	
   Specialists	
  identify	
  a	
  missing	
  report,	
  they	
  tell	
  the	
  provider	
  to	
  report	
  it.	
  	
  They	
  then	
   send	
  notification	
  to	
  Licensing,	
  who	
  has	
  the	
  ability	
  to	
  issue	
  a	
  citation.	
   § Case	
  Managers	
  frequently	
  submit	
  CHRIS	
  reports	
  after	
  becoming	
  aware	
  of	
  incidents	
   that	
  the	
  service	
  provider	
  did	
  not	
  report.	
  	
  However,	
  it	
  is	
  not	
  clear	
  whether	
  the	
  Office	
  of	
   Licensing	
  then	
  cites	
  the	
  service	
  provider.	
   § A	
  product	
  of	
  the	
  development	
  of	
  the	
  DBHDS	
  data	
  warehouse	
  and	
  the	
  creation	
  of	
   standard	
  reports	
  is	
  a	
  report	
  that	
  shows	
  repeat	
  citations	
  or	
  compliance	
  issues.	
  	
  DBHDS	
   staff	
  can	
  run	
  reports	
  by	
  provider,	
  region,	
  citation,	
  etc.	
  	
  At	
  the	
  time	
  of	
  this	
  review,	
  staff	
   were	
  just	
  beginning	
  to	
  generate	
  reports	
  identifying	
  providers	
  cited	
  for	
  the	
  failure	
  to	
   observe	
  the	
  regulation	
  requiring	
  24-­‐hour	
  reporting.	
  	
  It	
  is	
  intended	
  that	
  Licensing	
  will	
   generate	
  a	
  monthly	
  report	
  of	
  providers	
  who	
  were	
  late	
  in	
  reporting.	
  The	
  Licensing	
   Specialist	
  then	
  will	
  be	
  notified	
  for	
  follow-­‐up.	
  	
  On	
  August	
  28,	
  2015,	
  the	
  Acting	
  Director	
   of	
  the	
  Office	
  of	
  Licensing	
  sent	
  a	
  memo	
  to	
  all	
  licensing	
  staff	
  reminding	
  them	
  to	
  cite	
  the	
   regulations	
  that	
  require	
  24-­‐hour	
  reporting,	
  as	
  appropriate.	
  	
  The	
  memo	
  stated:	
   “…DBHDS	
  will	
  also	
  be	
  closely	
  monitoring	
  this	
  particular	
  area	
  in	
  the	
  near	
  future.	
  	
  

	
  

131	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 132 of 161 PageID# 6634 	
  

Towards	
  the	
  middle	
  or	
  end	
  of	
  September,	
  you	
  may	
  start	
  receiving	
  a	
  report	
  that	
   identifies	
  providers	
  who	
  reported	
  serious	
  incidents	
  and	
  deaths	
  outside	
  of	
  the	
  24-­‐hour	
   timeframe.	
  	
  You	
  may	
  be	
  required	
  to	
  reach	
  out	
  to	
  these	
  providers	
  and	
  assist	
  with	
   understanding	
  the	
  reason	
  for	
  their	
  noncompliance.	
  	
  As	
  you	
  know,	
  there	
  may	
  [be]	
   many	
  reasons	
  why	
  providers	
  may	
  not	
  be	
  able	
  to	
  report	
  in	
  the	
  CHRIS	
  database	
   including	
  the	
  need	
  for	
  technical	
  assistance	
  or	
  computer	
  system	
  failures,	
  which	
  is	
  not	
   the	
  provider’s	
  error.	
  	
  Licensing	
  Specialist	
  will	
  have	
  to	
  determine,	
  based	
  on	
  the	
   provider’s	
  response,	
  if	
  their	
  noncompliance	
  warrants	
  a	
  citation/corrective	
  action	
   plan,	
  letter	
  of	
  notice,	
  technical	
  assistance,	
  etc.…”	
  	
  When	
  a	
  lack	
  of	
  compliance	
  is	
  noted,	
   Licensing	
  staff	
  initially	
  would	
  provide	
  warnings	
  to	
  providers	
  for	
  a	
  grace	
  period	
  and	
   then	
  would	
  initiate	
  enforcement	
  actions,	
  if	
  the	
  provider	
  did	
  not	
  comply.	
  	
   § The	
  Regional	
  Quality	
  Councils	
  (RQCs)	
  and	
  the	
  Quality	
  Improvement	
  Committee	
  (QIC)	
   will	
  also	
  be	
  given	
  a	
  summary	
  of	
  the	
  regional	
  compliance	
  issues	
  as	
  it	
  relates	
  to	
  the	
  24-­‐ hour	
  reporting	
  requirement.	
  	
  	
   	
   CHRIS	
  is	
  a	
  legacy	
  system	
  requiring	
  ongoing	
  modifications	
  to	
  allow	
  its	
  integration	
  into	
  the	
   data	
  warehouse	
  and	
  other	
  systems,	
  and	
  to	
  ensure	
  that	
  the	
  data	
  in	
  the	
  CHRIS	
  system	
  are	
   complete	
  and	
  accurate.	
  	
  For	
  example,	
  DBHDS	
  staff	
  continue	
  to	
  change	
  the	
  fields	
  to	
  provide	
   some	
  checks	
  and	
  balances	
  on	
  data	
  reliability	
  (e.g.,	
  require	
  specific	
  formatting,	
  such	
  as	
  last	
   name,	
  first	
  name).	
  	
  	
  	
  	
  	
   	
   In	
  summary,	
  problems	
  continued	
  to	
  be	
  documented	
  with	
  meeting	
  the	
  requirements	
  for	
   direct	
  reporting	
  in	
  real	
  time,	
  but	
  the	
  Commonwealth	
  had	
  made	
  progress	
  in	
  developing	
   mechanisms	
  to	
  identify	
  and	
  address	
  late	
  reporting.	
  	
  As	
  noted	
  in	
  the	
  last	
  Report,	
  the	
   Commonwealth	
  developed	
  capacity	
  to	
  generate	
  reports	
  to	
  make	
  the	
  CHRIS	
  data	
  useful	
  on	
  a	
   statewide	
  level	
  and	
  to	
  inform	
  the	
  Regional	
  Quality	
  Councils	
  and	
  provider	
  agencies.	
  Further	
   progress	
  has	
  been	
  made	
  with	
  the	
  completion	
  of	
  the	
  data	
  warehouse	
  and	
  standard	
  and	
   customizable	
  report	
  formats.	
  	
  	
   	
   The	
  following	
  recommendations,	
  offered	
  in	
  the	
  previous	
  Report,	
  continue	
  to	
  apply:	
  	
   § Through	
  their	
  Quality	
  Improvement	
  systems,	
  Training	
  Centers,	
  CSBs,	
  and	
  community	
   providers	
  should	
  be	
  expected	
  to	
  implement	
  mechanisms	
  to	
  identify	
  incidents	
  or	
   allegations	
  that	
  should	
  have	
  been	
  reported,	
  but	
  were	
  not,	
  and	
  to	
  report	
  them	
   promptly	
  if/when	
  they	
  are	
  identified.	
  	
  Efforts	
  are	
  needed	
  to	
  ensure	
  all	
  allegations	
  of	
   abuse,	
  neglect,	
  and	
  exploitation,	
  serious	
  injuries,	
  and	
  deaths	
  are	
  reported,	
  including	
   for	
  individuals	
  in	
  the	
  DD	
  Waiver	
  system.	
  	
  	
   § The	
  Commonwealth	
  should	
  work	
  with	
  Training	
  Centers,	
  CSBs,	
  and	
  provider	
  agencies	
   to	
  develop	
  mechanisms	
  to	
  ensure	
  that	
  information	
  entered	
  into	
  CHRIS	
  reflects	
  “direct	
   reporting”	
  by	
  the	
  staff	
  first	
  aware	
  of	
  allegations	
  of	
  abuse	
  or	
  neglect,	
  serious	
  injuries,	
   or	
  deaths,	
  and	
  that	
  reports	
  are	
  submitted	
  in	
  real	
  time.	
  	
  	
   	
   Finally,	
  the	
  Settlement	
  Agreement	
  only	
  requires	
  the	
  web-­‐based	
  system	
  to	
  include	
  reports	
  of	
   abuse,	
  neglect,	
  and	
  exploitation,	
  serious	
  injuries,	
  and	
  deaths	
  as	
  defined	
  in	
  the	
   Commonwealth’s	
  regulations.	
  	
  However,	
  as	
  noted	
  elsewhere	
  in	
  this	
  Report,	
  these	
  regulatory	
   limitations	
  significantly	
  impact	
  the	
  Commonwealth’s	
  awareness	
  of	
  events	
  and,	
  therefore,	
   constrain	
  a	
  more	
  proactive	
  approach	
  to	
  incident	
  management.	
  	
  Some	
  of	
  these	
   events/incidents	
  may	
  be	
  indicators	
  of	
  increased	
  risk	
  of	
  harm.	
  	
  Other	
  categories	
  of	
  incidents	
  

	
  

132	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 133 of 161 PageID# 6635 	
  

reasonably	
  expected	
  to	
  be	
  reported	
  by	
  provider	
  agencies	
  include,	
  but	
  are	
  not	
  limited	
  to,	
   contact	
  with	
  law	
  enforcement	
  or	
  emergency	
  personnel;	
  unexpected	
  hospitalizations;	
  peer-­‐ to-­‐peer	
  aggression,	
  regardless	
  of	
  level	
  of	
  injury;	
  community	
  incidents	
  that	
  have	
  had	
  or	
  have	
   the	
  potential	
  to	
  negatively	
  impact	
  the	
  individual	
  or	
  provider;	
  unplanned	
  evacuations;	
   infections	
  reportable	
  to	
  the	
  Department	
  of	
  Public	
  Health;	
  missing	
  persons;	
  and	
  theft	
  of	
   individuals’	
  funds	
  or	
  property.	
  	
  	
   	
  
The	
  Commonwealth	
  shall	
  offer	
  guidance	
  and	
  training	
  to	
  providers	
  on	
  proactively	
   identifying	
  and	
  addressing	
  risks	
  of	
  harm,	
  conducting	
  root	
  cause	
  analysis,	
  and	
   developing	
  and	
  monitoring	
  corrective	
  actions.	
  	
  	
  
	
   The	
  actions	
  taken	
  to	
  complete	
  this	
  Report	
  were	
  designed	
  to	
  obtain	
  a	
  status	
  update	
  on	
  the	
   development	
  and	
  implementation	
  of	
  provider	
  agency	
  training	
  regarding	
  investigations	
  and	
   root	
  cause	
  analyses,	
  as	
  well	
  as	
  the	
  status	
  of	
  guidance	
  or	
  training	
  to	
  providers	
  on	
  proactively	
   identifying	
  risks	
  of	
  harm,	
  and	
  developing	
  and	
  monitoring	
  corrective	
  actions.	
   	
   Since	
  the	
  last	
  review,	
  Commonwealth	
  staff	
  revised	
  portions	
  of	
  the	
  draft	
  training	
  on	
   investigations,	
  published	
  webinars	
  on	
  the	
  DBHDS	
  website	
  for	
  two	
  of	
  the	
  seven	
  investigation	
   training	
  modules,	
  finalized	
  root	
  cause	
  analysis	
  training	
  and	
  published	
  it	
  on	
  the	
  DBHDS	
   website,	
  and	
  developed	
  and	
  published	
  the	
  initial	
  module	
  for	
  training	
  on	
  risk	
  assessment,	
  as	
   well	
  as	
  some	
  tools	
  and	
  templates	
  to	
  assist	
  providers	
  in	
  the	
  risk	
  assessment	
  and	
  corrective	
   action	
  processes.	
  	
  Beginning	
  on	
  June	
  22,	
  2015,	
  the	
  Commonwealth	
  began	
  to	
  roll	
  out	
  these	
   training	
  and	
  technical	
  assistance	
  options	
  for	
  providers.	
  	
  However,	
  it	
  remains	
  optional	
  for	
   providers	
  to	
  access	
  them.	
  It	
  is	
  not	
  part	
  of	
  the	
  Learning	
  Management	
  System	
  (LMS)	
  system	
   that	
  the	
  Commonwealth	
  uses	
  to	
  track	
  required	
  training.	
  	
  There	
  is	
  no	
  competency-­‐component	
   to	
  this	
  training.	
  	
  A	
  flier	
  inviting	
  providers	
  to	
  participate	
  was	
  widely	
  distributed.	
  	
  	
   	
   As	
  noted	
  in	
  the	
  previous	
  Report,	
  the	
  training	
  and	
  technical	
  assistance	
  materials	
  DBHDS	
   provided	
  demonstrated	
  considerable	
  thought	
  and	
  effort.	
  	
  The	
  webinars	
  outlining	
  the	
   procedures	
  for	
  root	
  cause	
  analysis	
  impart	
  excellent	
  information,	
  including	
  a	
  realistic	
   example	
  that	
  illustrates	
  the	
  root	
  cause	
  process	
  in	
  an	
  easy-­‐to-­‐understand	
  format.	
  	
  	
   	
   The	
  initial	
  risk-­‐assessment	
  training	
  module	
  also	
  provides	
  some	
  basic	
  information	
  in	
  an	
   easily	
  digestible	
  format.	
  	
  Resources	
  made	
  available	
  include	
  a	
  Risk	
  Management	
  Plan	
  with	
  the	
   following	
  attachments:	
  Incident	
  Reporting	
  Form,	
  Organizational	
  Risk	
  Assessment	
  Tool,	
  Risk	
   Reduction	
  Plan,	
  Status	
  Report,	
  Root	
  Cause	
  Analysis	
  Directions,	
  Root	
  Cause	
  Worksheet,	
  and	
   Mortality	
  Review	
  Worksheet.	
  	
  The	
  Commonwealth	
  also	
  is	
  making	
  available	
  documents	
  such	
   as	
  High	
  Risk	
  Areas	
  for	
  Provider	
  Focus,	
  which	
  identifies	
  common	
  medical	
  and	
  behavioral	
   health	
  issues	
  on	
  which	
  providers	
  should	
  focus;	
  and	
  Best	
  Practices	
  for	
  Risk	
  Management,	
   which	
  describes	
  many	
  of	
  the	
  basic	
  components	
  of	
  a	
  risk	
  management	
  system	
  (e.g.,	
  incident	
   management,	
  risk	
  assessments,	
  monitoring	
  and	
  analysis	
  of	
  key	
  program	
  components,	
  risk	
   triggers	
  and	
  thresholds,	
  mortality	
  review,	
  etc.).	
  	
  Commonwealth	
  staff	
  recognize	
  that	
   publishing	
  these	
  resources	
  on	
  the	
  DBHDS	
  website	
  is	
  a	
  first	
  step,	
  that	
  additional	
  training	
  and	
   technical	
  assistance	
  is	
  needed,	
  and	
  that	
  these	
  resources	
  will	
  not	
  strengthen	
  providers’	
  efforts	
   to	
  reduce	
  risks	
  if	
  they	
  are	
  not	
  used.	
   	
  

	
  

133	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 134 of 161 PageID# 6636
	
  
In	
  the	
  last	
  Report,	
  the	
  reviewer	
  noted	
  that	
  definitions	
  of	
  the	
  levels	
  of	
  risk	
  required	
  scrutiny.	
  	
   For	
  this	
  review,	
  it	
  was	
  positive	
  to	
  see	
  that	
  the	
  risk	
  matrix	
  included	
  in	
  the	
  presentation	
  “A	
   Simple	
  Approach	
  to	
  Risk	
  Assessment”	
  now	
  indicates	
  that	
  actions	
  involving	
  moderate-­‐risk	
   situations	
  should	
  be	
  taken	
  within	
  no	
  more	
  than	
  60	
  to	
  90	
  days	
  (i.e.,	
  as	
  opposed	
  to	
  no	
  later	
   than	
  the	
  next	
  Fiscal	
  Year),	
  and	
  that	
  any	
  high-­‐risk	
  situations	
  should	
  be	
  addressed	
  within	
  no	
   more	
  than	
  30	
  days	
  (i.e.,	
  as	
  opposed	
  to	
  within	
  no	
  more	
  than	
  six	
  months).	
  	
  Appropriately,	
   acute	
  and	
  extreme	
  risk	
  is	
  noted	
  to	
  require	
  immediate	
  action	
  (e.g.,	
  examples	
  would	
  be	
   individuals	
  with	
  significant	
  medical	
  complexities	
  who	
  have	
  recently	
  experienced	
  a	
  change	
  in	
   health	
  status	
  or	
  who	
  do	
  not	
  have	
  ISPs	
  that	
  identify	
  needed	
  supports	
  or	
  when	
  such	
  supports	
   are	
  not	
  consistently	
  implemented).	
  	
  With	
  regard	
  to	
  a	
  comment	
  in	
  the	
  previous	
  Report,	
  an	
   area	
  in	
  which	
  further	
  beneficial	
  clarification	
  now	
  has	
  been	
  provided	
  relates	
  to	
  expectations	
   for	
  coordinating	
  investigations	
  with	
  other	
  investigatory	
  agencies	
  when	
  a	
  crime	
  is	
  suspected	
   or	
  evidence	
  must	
  be	
  preserved	
  without	
  contamination.	
  	
   	
   Because	
  five	
  of	
  the	
  seven	
  webinars	
  for	
  investigations	
  are	
  still	
  works	
  in	
  progress,	
  the	
   reviewer	
  could	
  not	
  determine	
  whether,	
  as	
  a	
  whole,	
  they	
  will	
  provide	
  the	
  information	
   providers	
  need.	
  	
  For	
  example,	
  limited	
  information	
  is	
  included	
  regarding	
  the	
  conduct	
  of	
   interviews	
  (e.g.,	
  information	
  about	
  methods	
  for	
  taking	
  witness	
  statements	
  is	
  minimal).	
  	
   Similarly,	
  as	
  part	
  of	
  the	
  investigation	
  plan,	
  the	
  review	
  of	
  different	
  types	
  of	
  evidence	
  is	
  not	
   discussed	
  in	
  detail	
  (e.g.,	
  documentary	
  and	
  physical	
  evidence).	
  	
   	
   As	
  noted	
  in	
  the	
  last	
  Report,	
  the	
  investigation	
  and	
  root	
  cause	
  analysis	
  training	
  materials	
  do	
   not	
  reflect	
  as	
  broad	
  a	
  range	
  of	
  instructional	
  techniques	
  as	
  needed	
  to	
  ensure	
  reliability	
  and	
   competency	
  in	
  performance.	
  	
  For	
  example,	
  role	
  playing	
  the	
  various	
  interviewing	
  techniques	
   and	
  protocols	
  would	
  be	
  especially	
  important,	
  as	
  would	
  be	
  the	
  critical	
  review	
  of	
  samples	
  of	
   written	
  documentation.	
  	
  	
   	
   As	
  indicated	
  in	
  the	
  last	
  Report,	
  current	
  regulations	
  (12	
  VAC	
  35-­‐115-­‐50.D.3.e.,	
  page	
  11),	
  state	
   that	
  "The	
  director	
  shall	
  initiate	
  an	
  impartial	
  investigation	
  within	
  24	
  hours	
  of	
  receiving	
  a	
   report	
  of	
  potential	
  abuse	
  or	
  neglect.	
  The	
  investigation	
  shall	
  be	
  conducted	
  by	
  a	
  person	
  trained	
   to	
  do	
  investigations	
  and	
  who	
  is	
  not	
  involved	
  in	
  the	
  issues	
  under	
  investigation."	
  .	
   The	
  regulations,	
  however,	
  do	
  not	
  include	
  standards	
  for	
  investigator	
  training,	
  the	
   investigation	
  process,	
  or	
  investigation	
  reports.	
  	
  At	
  the	
  time	
  of	
  this	
  review,	
  although	
  some	
   training	
  is	
  being	
  implemented,	
  it	
  remains	
  optional	
  for	
  providers,	
  and	
  is	
  not	
  yet	
  competency-­‐ based.	
  	
  Commonwealth	
  staff	
  reported	
  that	
  new	
  regulations	
  that	
  are	
  in	
  the	
  Governor’s	
  office	
   for	
  review	
  hopefully	
  will	
  address	
  these	
  issues.	
   	
   Reportedly,	
  many	
  providers	
  have	
  been	
  asking	
  for	
  training	
  on	
  investigations.	
  	
  At	
  the	
  end	
  of	
   each	
  investigation	
  training	
  webinar,	
  contact	
  information	
  is	
  listed	
  for	
  the	
  Human	
  Rights	
   Advocates.	
  	
  They	
  can	
  mentor	
  community	
  providers	
  and/or	
  conduct	
  investigations	
   themselves.	
  	
  On	
  October	
  7,	
  2015,	
  all	
  Human	
  Rights	
  Advocates,	
  as	
  well	
  as	
  Licensing	
   Specialists,	
  were	
  scheduled	
  to	
  attend	
  an	
  investigations	
  training	
  that	
  the	
  internal	
  audit	
  team	
   was	
  conducting.	
  	
  Many	
  of	
  these	
  staff	
  also	
  had	
  completed	
  investigator	
  training	
  offered	
  to	
   Training	
  Center	
  investigators.	
   	
   	
  

	
  

134	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 135 of 161 PageID# 6637
	
  
In	
  addition	
  to	
  the	
  online	
  training,	
  Commonwealth	
  staff	
  recognize	
  the	
  need	
  for	
  “live”	
  training	
   opportunities	
  and	
  other	
  methodologies	
  for	
  assessing	
  the	
  competency	
  of	
  staff	
  completing	
  the	
   investigation	
  training.	
  	
  However,	
  developing	
  a	
  certification	
  process	
  for	
  investigators	
  similar	
   to	
  the	
  one	
  used	
  at	
  the	
  Training	
  Centers	
  would	
  take	
  time,	
  and	
  has	
  not	
  yet	
  begun.	
  	
  	
   	
   Although,	
  according	
  to	
  12	
  VAC	
  35	
  105-­‐400,	
  providers	
  are	
  expected	
  to	
  conduct	
  criminal	
   background	
  checks	
  (i.e.,	
  criminal	
  checks	
  and	
  checks	
  of	
  the	
  registry	
  of	
  child	
  abuse	
  and	
  neglect	
   maintained	
  by	
  the	
  Virginia	
  Department	
  of	
  Social	
  Services),	
  the	
  Commonwealth	
  does	
  not	
   currently	
  have	
  a	
  system	
  or	
  registry	
  to	
  allow	
  providers	
  to	
  determine	
  whether	
  or	
  not	
  an	
   applicant	
  had	
  substantiated	
  allegations	
  of	
  abuse,	
  neglect,	
  and/or	
  exploitation	
  against	
  a	
   vulnerable	
  adult.	
  	
  Similarly,	
  on	
  an	
  annual	
  basis,	
  providers	
  cannot	
  conduct	
  a	
  recheck	
  of	
   current	
  employees	
  to	
  determine	
  if	
  any	
  allegations	
  related	
  to	
  vulnerable	
  adults	
  had	
  been	
   confirmed	
  over	
  the	
  year	
  (e.g.,	
  in	
  another	
  job).	
  	
  As	
  a	
  result,	
  a	
  person	
  who	
  had	
  committed	
  acts	
   of	
  abuse,	
  neglect,	
  and/or	
  exploitation	
  easily	
  could	
  find	
  employment	
  with	
  another	
  provider.	
   This	
  places	
  vulnerable	
  individuals	
  at	
  significant	
  risk	
  of	
  harm.	
  	
  Providers	
  have	
  complained	
  to	
   the	
  Independent	
  Reviewer	
  of	
  not	
  being	
  provided	
  information	
  available	
  about	
  substantiated	
   abuse	
  and	
  neglect	
  that	
  could	
  help	
  them	
  avoid	
  hiring	
  staff	
  who	
  would	
  increase	
  the	
  risk	
  of	
   harm	
  to	
  the	
  individuals	
  they	
  serve,	
  especially	
  those	
  who	
  are	
  do	
  not	
  communicate	
  verbally	
   and	
  are	
  not	
  able	
  to	
  verbally	
  report	
  abuse	
  or	
  neglect.	
   	
   In	
  summary,	
  the	
  Commonwealth	
  made	
  progress	
  in	
  finalizing	
  the	
  root	
  cause	
  analysis	
   webinars,	
  as	
  well	
  as	
  two	
  of	
  seven	
  modules	
  of	
  investigation	
  training,	
  and	
  publishing	
  these	
   online.	
  	
  The	
  release	
  of	
  the	
  technical	
  assistance	
  materials	
  and	
  initial	
  module	
  on	
  risk	
  analysis	
   also	
  are	
  positive	
  steps	
  forward.	
  	
  However,	
  a	
  number	
  of	
  issues	
  should	
  be	
  addressed.	
  	
  The	
   following	
  recommendations	
  are	
  offered:	
  
§ As	
  the	
  DBHDS	
  Investigations	
  Process	
  training	
  and	
  related	
  guidelines	
  and	
  manual	
  are	
   finalized,	
  consideration	
  should	
  be	
  given	
  to	
  addressing	
  the	
  areas	
  identified	
  above	
  in	
   which	
  the	
  provision	
  of	
  additional	
  information	
  is	
  recommended.	
  	
  	
  
§ Although	
  “A	
  Simple	
  Approach	
  to	
  Risk	
  Assessment”	
  touches	
  on	
  this,	
  further	
  training	
   should	
  be	
  developed	
  and	
  implemented	
  related	
  to	
  the	
  development	
  of	
  corrective	
   action	
  plans	
  and	
  an	
  ongoing	
  quality	
  improvement	
  process	
  to	
  assess	
  their	
   effectiveness.	
  	
  Commonwealth	
  staff	
  indicated	
  this	
  is	
  part	
  of	
  the	
  plan.	
  	
  	
  
§ For	
  both	
  the	
  Investigation	
  Process	
  training	
  and	
  the	
  Root	
  Cause	
  Analysis	
  training,	
  the	
   Commonwealth	
  should	
  offer	
  classroom	
  training,	
  as	
  well	
  as	
  online	
  training,	
  including	
   the	
  equivalent	
  of	
  experiential-­‐based	
  learning,	
  such	
  as	
  role-­‐plays	
  and	
  discussion.	
  
§ The	
  current	
  investigation	
  training	
  modules	
  do	
  not	
  have	
  a	
  competency-­‐based	
   component.	
  	
  Given	
  the	
  specific	
  skills	
  required	
  to	
  conduct	
  thorough	
  investigations	
  and	
   to	
  write	
  reports	
  that	
  include	
  strong	
  bases	
  for	
  the	
  findings,	
  the	
  training	
  should	
  include	
   specific	
  competency-­‐based	
  components.	
  	
  These	
  should	
  include,	
  but	
  not	
  be	
  limited	
  to,	
   competencies	
  in	
  the	
  development	
  of	
  an	
  investigation	
  plan,	
  securing	
  evidence,	
   conducting	
  interviews,	
  interviewing	
  individuals	
  with	
  intellectual	
  disabilities,	
   reconciliation	
  of	
  evidence,	
  and	
  investigation	
  report	
  writing.	
  	
  	
  
§ It	
  will	
  be	
  important	
  to	
  define	
  standards	
  for	
  what	
  constitutes	
  a	
  “trained	
  investigator.”	
  	
   If	
  training	
  other	
  than	
  the	
  Commonwealth-­‐developed	
  training	
  will	
  be	
  acceptable,	
  the	
   requirements	
  for	
  such	
  training	
  should	
  be	
  defined.	
  

	
  

135	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 136 of 161 PageID# 6638
	
  
§ The	
  Commonwealth	
  should	
  develop	
  a	
  complete	
  set	
  of	
  standards	
  for	
  adequate	
   investigations	
  and	
  investigation	
  reports	
  for	
  use	
  by	
  Licensing	
  Specialists	
  and	
  Human	
   Rights	
  Advocates.	
  
§ A	
  system	
  should	
  be	
  developed	
  and	
  implemented	
  to	
  ensure	
  that	
  community	
  providers	
   do	
  not	
  hire	
  staff	
  confirmed	
  to	
  have	
  perpetrated	
  abuse,	
  neglect,	
  and	
  exploitation.	
  
	
  
1. The	
  Commonwealth’s	
  HCBS	
  [Home	
  and	
  Community-­‐Based	
  Services]	
  waivers	
  shall	
   operate	
  in	
  accordance	
  with	
  the	
  Commonwealth’s	
  CMS	
  [Centers	
  for	
  Medicare	
  and	
   Medicaid	
  Services]-­‐approved	
  waiver	
  quality	
  improvement	
  plan	
  to	
  ensure	
  the	
  needs	
   of	
  individuals	
  enrolled	
  in	
  a	
  waiver	
  are	
  met,	
  that	
  individuals	
  have	
  choice	
  in	
  all	
  aspects	
   of	
  their	
  selection	
  of	
  goals	
  and	
  supports,	
  and	
  that	
  there	
  are	
  effective	
  processes	
  in	
   place	
  to	
  monitor	
  participant	
  health	
  and	
  safety.	
  	
  The	
  plan	
  shall	
  include	
  evaluation	
  of	
   level	
  of	
  care;	
  development	
  and	
  monitoring	
  of	
  individual	
  service	
  plans;	
  assurance	
  of	
   qualified	
  providers;	
  identification,	
  response	
  and	
  prevention	
  of	
  occurrences	
  of	
  abuse,	
   neglect	
  and	
  exploitation;	
  administrative	
  oversight	
  of	
  all	
  waiver	
  functions	
  including	
   contracting;	
  and	
  financial	
  accountability.	
  	
  Review	
  of	
  data	
  shall	
  occur	
  at	
  the	
  local	
   and	
  state	
  levels	
  by	
  the	
  CBSs	
  and	
  DBHDS/DMAS,	
  respectively…	
  	
  	
  
2. The	
  Commonwealth	
  shall	
  collect	
  and	
  analyze	
  consistent,	
  reliable	
  data	
  to	
  improve	
   the	
  availability	
  and	
  accessibility	
  of	
  services	
  for	
  individuals	
  in	
  the	
  target	
  population	
   and	
  the	
  quality	
  of	
  services	
  offered	
  to	
  individuals	
  receiving	
  services	
  under	
  this	
   Agreement.	
  	
  The	
  Commonwealth	
  shall	
  use	
  data	
  to:	
   a. Identify	
  trends,	
  patterns,	
  strengths,	
  and	
  problems	
  at	
  the	
  individual,	
  service-­‐ delivery,	
  and	
  systemic	
  levels,	
  including,	
  but	
  not	
  limited	
  to,	
  quality	
  of	
  services,	
   service	
  gaps,	
  accessibility	
  of	
  services,	
  serving	
  individuals	
  with	
  complex	
  needs,	
   and	
  the	
  discharge	
  and	
  transition	
  planning	
  process;	
   b. Develop	
  preventative,	
  corrective,	
  and	
  improvement	
  measures	
  to	
  address	
   identified	
  problems;	
   c. Track	
  the	
  efficacy	
  of	
  preventative,	
  corrective,	
  and	
  improvement	
  measures;	
   and	
   d. Enhance	
  outreach,	
  education,	
  and	
  training.	
  
3. The	
  Commonwealth	
  shall	
  begin	
  collecting	
  and	
  analyzing	
  reliable	
  data	
  about	
   individuals	
  receiving	
  services	
  under	
  this	
  Agreement	
  selected	
  from	
  the	
  following	
   areas	
  in	
  State	
  Fiscal	
  Year	
  2012	
  and	
  will	
  ensure	
  reliable	
  data	
  is	
  collected	
  and	
   analyzed	
  from	
  each	
  of	
  these	
  areas	
  by	
  June	
  30,	
  2014.	
  	
  Multiple	
  types	
  of	
  sources	
  (e.g.,	
   providers,	
  case	
  managers,	
  licensing,	
  risk	
  management,	
  Quality	
  Service	
  Reviews)	
  can	
   provide	
  data	
  in	
  each	
  area,	
  though	
  any	
  individual	
  type	
  of	
  source	
  need	
  not	
  provide	
   data	
  in	
  every	
  area:	
   a. Safety	
  and	
  freedom	
  from	
  harm	
  (e.g.,	
  neglect	
  and	
  abuse,	
  injuries,	
  use	
  of	
   seclusion	
  or	
  restraints,	
  deaths,	
  effectiveness	
  of	
  corrective	
  actions,	
  licensing	
   violations);	
   b. Physical,	
  mental,	
  and	
  behavioral	
  health	
  and	
  well	
  being	
  (e.g.,	
  access	
  to	
  medial	
   care	
  (including	
  preventative	
  care),	
  timeliness	
  and	
  adequacy	
  of	
  interventions	
   (particularly	
  in	
  response	
  to	
  changes	
  in	
  status);	
   c. Avoiding	
  crises	
  (e.g.,	
  use	
  of	
  crisis	
  services,	
  admissions	
  to	
  emergency	
  rooms	
  or	
   hospitals,	
  admissions	
  to	
  Training	
  Centers	
  or	
  other	
  congregate	
  settings,	
   contact	
  with	
  criminal	
  justice	
  system);	
  	
  

	
  

136	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 137 of 161 PageID# 6639
	
  
d. Stability	
  (e.g.,	
  maintenance	
  of	
  chosen	
  living	
  arrangement,	
  change	
  in	
   providers,	
  work/other	
  day	
  program	
  stability);	
  
e. Choice	
  and	
  self-­‐determination	
  (e.g.,	
  service	
  plans	
  developed	
  through	
  person-­‐ centered	
  planning	
  process,	
  choice	
  of	
  services	
  and	
  providers,	
  individualized	
   goals,	
  self-­‐direction	
  of	
  services);	
  
f. Community	
  inclusion	
  (e.g.,	
  community	
  activities,	
  integrated	
  work	
   opportunities,	
  integrated	
  living	
  options,	
  educational	
  opportunities,	
   relationships	
  with	
  non-­‐paid	
  individuals);	
  
g. Access	
  to	
  services	
  (e.g.,	
  waitlists,	
  outreach	
  efforts,	
  identified	
  barriers,	
  service	
   gaps	
  and	
  delays,	
  adaptive	
  equipment,	
  transportation,	
  availability	
  of	
  services	
   geographically,	
  cultural	
  and	
  linguistic	
  competency);	
  and	
  
h. Provider	
  capacity	
  (e.g.,	
  caseloads,	
  training,	
  staff	
  turnover,	
  provider	
   competency)…	
  
5. 	
  The	
  Commonwealth	
  shall	
  implement	
  Regional	
  Quality	
  Councils	
  that	
  shall	
  be	
   responsible	
  for	
  assessing	
  relevant	
  data,	
  identifying	
  trends,	
  and	
  recommending	
   responsive	
  actions	
  in	
  their	
  respective	
  Regions	
  of	
  the	
  Commonwealth.	
   a. The	
  Councils	
  shall	
  include	
  individuals	
  experienced	
  in	
  data	
  analysis,	
   residential	
  and	
  other	
  providers,	
  CSBs,	
  individuals	
  receiving	
  services,	
  and	
   families,	
  and	
  may	
  include	
  other	
  relevant	
  stakeholders.	
   b. Each	
  Council	
  shall	
  meet	
  on	
  a	
  quarterly	
  basis	
  to	
  share	
  regional	
  data,	
  trends,	
   and	
  monitoring	
  efforts	
  and	
  plan	
  and	
  recommend	
  regional	
  quality	
   improvement	
  initiatives.	
  	
  The	
  work	
  of	
  the	
  Regional	
  Quality	
  Councils	
  shall	
  be	
   directed	
  by	
  a	
  DBHDS	
  quality	
  improvement	
  committee.	
  
6. 	
  At	
  least	
  annually,	
  the	
  Commonwealth	
  shall	
  report	
  publicly,	
  through	
  new	
  or	
  existing	
   mechanisms,	
  on	
  the	
  availability	
  (including	
  the	
  number	
  of	
  people	
  served	
  in	
  each	
  type	
   of	
  service	
  described	
  in	
  this	
  Agreement)	
  and	
  quality	
  of	
  supports	
  and	
  services	
  in	
  the	
   community	
  and	
  gaps	
  in	
  services,	
  and	
  shall	
  make	
  recommendations	
  for	
   improvements.	
  
	
   The	
  fact-­‐finding	
  for	
  this	
  Report	
  was	
  designed	
  to:	
  	
  
§ Obtain	
  a	
  status	
  of	
  the	
  Commonwealth’s	
  efforts	
  to	
  develop	
  a	
  Centers	
  for	
  Medicare	
  and	
   Medicaid	
  Services	
  (CMS)-­‐approved	
  QI	
  plan	
  to	
  determine	
  if	
  it	
  aligns	
  with	
  the	
   Settlement	
  Agreement,	
  including	
  how	
  it	
  applies	
  to	
  the	
  transition	
  plan	
  (what	
  are	
  the	
   indicators	
  of	
  successes	
  or	
  failures).	
  
§ Obtain	
  updates	
  on	
  the	
  Commonwealth’s	
  efforts	
  to	
  both	
  identify	
  the	
  data	
  to	
  be	
   collected	
  and	
  to	
  collect	
  valid	
  and	
  reliable	
  data	
  for	
  the	
  eight	
  domains	
  (i.e.,	
  as	
  listed	
  in	
   Section	
  V.D.3,	
  a	
  through	
  h).	
  	
  	
  
§ Determine	
  the	
  status	
  of	
  the	
  validity	
  of	
  the	
  measures	
  and	
  reliability	
  of	
  the	
  data	
  (V.D.2,	
   a	
  through	
  d)	
  and	
  the	
  status	
  of	
  data	
  analyses	
  (i.e.,	
  Section	
  V.D.4).	
  
§ Obtain	
  updates	
  on	
  the	
  status	
  of	
  the	
  Regional	
  Quality	
  Review	
  Councils	
  (V.D.5.a	
  and	
  b)	
   and	
  the	
  status	
  of	
  assessments	
  of	
  relevant	
  data,	
  review	
  of	
  trends,	
  and	
   recommendations.	
  
§ Determine	
  whether	
  the	
  Commonwealth	
  reported	
  publicly	
  on	
  the	
  availability,	
  quality,	
   and	
  gaps	
  in	
  services,	
  and	
  made	
  recommendations	
  for	
  improvement	
  (V.6).	
  
	
  

	
  

137	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 138 of 161 PageID# 6640 	
  

Based	
  on	
  interviews	
  with	
  Commonwealth	
  staff,	
  staff	
  at	
  DBHDS	
  are	
  working	
  collaboratively	
   to	
  develop	
  a	
  Quality	
  Improvement	
  Plan	
  for	
  inclusion	
  in	
  the	
  revised	
  Waiver	
  application.	
  	
   However,	
  the	
  draft	
  was	
  not	
  yet	
  available	
  for	
  this	
  consultant’s	
  review.	
  	
   	
   Since	
  the	
  last	
  review,	
  the	
  Commonwealth’s	
  took	
  significant	
  steps	
  forward	
  in	
  its	
  ability	
  to	
   collect	
  and	
  use	
  data	
  to	
  assess	
  and	
  improve	
  quality.	
  	
  These	
  steps	
  include	
  the	
  development	
  of	
   the	
  OneSource	
  Data	
  Warehouse	
  and	
  the	
  development	
  of	
  standard	
  reports	
  that	
  allow	
  users	
  to	
   pull	
  data	
  from	
  the	
  warehouse	
  in	
  a	
  usable	
  format.	
  	
  Staff	
  from	
  the	
  DBHDS	
  Office	
  of	
  Information	
   Services	
  and	
  Technology	
  and	
  the	
  Virginia	
  Information	
  Technologies	
  Agency	
  (VITA),	
  as	
  well	
   as	
  the	
  newly-­‐hired	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator	
  with	
  the	
  Division	
  of	
  Quality	
   Management	
  and	
  Development,	
  worked	
  together	
  to	
  pull	
  data	
  from	
  various	
  sources	
  into	
  the	
   warehouse,	
  clean	
  the	
  data,	
  and	
  develop	
  reports	
  so	
  that	
  the	
  data	
  could	
  be	
  easily	
  queried.	
  	
  Of	
   note,	
  shortly	
  prior	
  to	
  the	
  completion	
  of	
  this	
  report,	
  staff	
  responsible	
  for	
  the	
  data	
  warehouse,	
   who	
  previously	
  worked	
  with	
  the	
  Information	
  Services	
  and	
  Technology	
  Office,	
  were	
   transferred	
  to	
  the	
  Division	
  of	
  Quality	
  Management	
  and	
  Development.	
  	
   	
   Some	
  of	
  the	
  sources	
  of	
  data	
  included	
  in	
  the	
  warehouse	
  are:	
  case	
  management	
  data	
  from	
  the	
   CSBs	
  (i.e.,	
  CCS3	
  data,	
  which	
  includes	
  demographics,	
  services,	
  admission	
  and	
  discharge	
   information,	
  wellness	
  measures,	
  etc.);	
  CHRIS	
  data	
  (i.e.,	
  abuse/neglect	
  data	
  for	
  both	
   community	
  providers	
  and	
  Training	
  Centers,	
  and	
  serious	
  injuries	
  in	
  the	
  community);	
  Office	
  of	
   Licensing	
  data	
  (i.e.,	
  OLIS);	
  AVATAR	
  data	
  (e.g.,	
  billing	
  data,	
  etc.);	
  data	
  from	
  the	
  Intellectual	
   Disabilities	
  Online	
  System	
  (IDOLS)	
  (e.g.,	
  preauthorization	
  data	
  for	
  the	
  ID	
  Waiver,	
  services	
   requested	
  and	
  authorized,	
  interest	
  list	
  data,	
  etc.);	
  PAIRS	
  data	
  (i.e.,	
  serious	
  injury	
  and	
  death	
   data	
  for	
  the	
  Training	
  Centers);	
  crisis	
  intervention	
  and	
  jail	
  diversion	
  data,;	
  and	
  triggers	
  and	
   thresholds,	
  some	
  of	
  which	
  are	
  now	
  part	
  of	
  CHRIS.	
  	
  At	
  the	
  time	
  of	
  the	
  review,	
  seclusion	
  and	
   restraint	
  data	
  had	
  not	
  yet	
  been	
  incorporated,	
  but	
  was	
  expected	
  to	
  be	
  soon.	
  	
  In	
  addition,	
  for	
   purposes	
  of	
  the	
  data	
  warehouse,	
  individuals	
  in	
  the	
  “DOJ	
  population”	
  are	
  identified	
  by	
   whether	
  they	
  are	
  on	
  the	
  ID	
  or	
  Day	
  Support	
  Waivers	
  or	
  waitlist	
  or	
  are	
  in	
  a	
  Training	
  Center.	
  	
   Individuals	
  on	
  the	
  DD	
  Waiver,	
  in	
  private	
  ICFs/IID,	
  or	
  in	
  nursing	
  facilities	
  are	
  not	
  included	
  in	
   data	
  warehouse	
  reports	
  at	
  this	
  time.	
   	
   Although	
  Commonwealth	
  staff	
  recognize	
  that	
  additional	
  work	
  is	
  needed	
  to	
  organize	
  the	
  data	
   collected,	
  increase	
  the	
  scope	
  of	
  data	
  available,	
  as	
  well	
  as	
  to	
  ensure	
  its	
  reliability,	
  they	
  have	
   taken	
  some	
  initial	
  steps	
  to	
  ensure	
  the	
  data	
  in	
  the	
  warehouse	
  is	
  usable.	
  	
  For	
  example,	
  they:	
  	
  
§ Created	
  an	
  application	
  that	
  assigned	
  unique	
  identifiers	
  to	
  individuals,	
  so	
  that	
   individuals	
  could	
  be	
  matched	
  across	
  all	
  of	
  the	
  various	
  data	
  sources	
  and	
  reports	
  could	
   be	
  run	
  by	
  individual.	
  	
  	
  
§ Developed	
  a	
  mechanism	
  to	
  discern	
  events	
  within	
  the	
  incident	
  data.	
  	
  In	
  other	
  words,	
   one	
  event	
  might	
  generate	
  numerous	
  incident	
  reports	
  (e.g.,	
  from	
  the	
  residential	
   provider,	
  as	
  well	
  as	
  the	
  day/vocational	
  provider).	
  	
  It	
  is	
  important	
  to	
  have	
  the	
  ability	
   to	
  identify	
  how	
  many	
  events	
  occurred,	
  while	
  at	
  the	
  same	
  time	
  having	
  the	
  detail	
  of	
  the	
   various	
  reports.	
  	
  	
  
§ Are	
  developing	
  and	
  implementing	
  business	
  rules	
  to	
  identify	
  when	
  data	
  are	
  missing	
  or	
   incomplete.	
  	
  A	
  data	
  management	
  group	
  is	
  meeting	
  monthly.	
  	
  It	
  includes	
  programmatic	
   as	
  well	
  as	
  information	
  technology	
  staff.	
  	
  One	
  of	
  its	
  roles	
  is	
  to	
  review	
  data	
  and	
  identify	
   problems	
  (e.g.,	
  CSBs	
  who	
  are	
  not	
  extracting	
  data	
  correctly).	
  
	
  

	
  

138	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 139 of 161 PageID# 6641 	
  

The	
  development	
  of	
  the	
  data	
  warehouse	
  and	
  the	
  development	
  of	
  reports	
  was	
  a	
  significant	
   undertaking	
  with	
  some	
  immediate	
  and	
  other	
  long-­‐term	
  benefits.	
  	
  DBHDS	
  now	
  has	
  the	
  ability	
   to	
  share	
  data	
  amongst	
  offices	
  and	
  divisions	
  that	
  previously	
  existed	
  only	
  in	
  separate	
  siloes.	
  	
   The	
  addition	
  of	
  analytical	
  staff	
  and	
  information	
  technology	
  staff	
  to	
  the	
  Division	
  of	
  Quality	
   Management	
  and	
  Development	
  should	
  increase	
  DBHDS’	
  ability	
  to	
  use	
  data	
  to	
  influence	
   business	
  practices,	
  and	
  to	
  take	
  a	
  more	
  proactive	
  and	
  predictive	
  approach	
  with	
  the	
   protections,	
  services,	
  and	
  supports	
  it	
  offers	
  and	
  oversees.	
   	
   As	
  of	
  the	
  end	
  of	
  September	
  2015,	
  26	
  Data	
  Warehouse	
  Enterprise	
  Reports	
  were	
  in	
   production.	
  	
  The	
  following	
  list	
  provides	
  examples	
  of	
  the	
  types	
  of	
  reports	
  that	
  users	
  now	
  can	
   run	
  and	
  customize	
  (i.e.,	
  select	
  certain	
  parameters	
  to	
  run	
  a	
  query	
  of	
  the	
  data),	
  and	
  which	
  offer	
   improved	
  functionality	
  of	
  the	
  data	
  currently	
  available:	
  
§ Incidents	
  of	
  Abuse	
  Report	
  –	
  shows	
  numbers	
  of	
  substantiated	
  abuse	
  cases,	
  as	
  well	
  as	
   the	
  percent	
  per	
  the	
  Settlement	
  Agreement	
  target	
  population;	
  
§ Integrated	
  (Supported)	
  Employment	
  Opportunities	
  Report	
  -­‐	
  presents	
  the	
  percent	
  of	
   individuals	
  in	
  the	
  Settlement	
  Agreement	
  target	
  population	
  who	
  have	
  received	
   integrated	
  (supported)	
  employment	
  opportunities;	
  
§ Provider	
  Injury	
  Rate	
  -­‐	
  is	
  used	
  to	
  identify	
  providers	
  with	
  high	
  incidences	
  of	
  trigger	
   events	
  for	
  individuals	
  in	
  the	
  Settlement	
  Agreement	
  target	
  population.	
  	
  The	
  report	
   shows,	
  for	
  each	
  CSB	
  or	
  provider,	
  the	
  number	
  of	
  specific	
  trigger	
  events	
  (e.g.,	
   medication	
  event)	
  that	
  occurred	
  within	
  the	
  selected	
  and	
  prior	
  time	
  periods	
  and	
  the	
   rate	
  per	
  1,000	
  individuals	
  in	
  the	
  DOJ	
  population;	
  
§ Triggers	
  and	
  Thresholds	
  -­‐	
  lists	
  all	
  individuals	
  in	
  the	
  Settlement	
  Agreement	
  target	
   population	
  engaged	
  in	
  a	
  specific	
  event	
  (e.g.,	
  medication	
  event,	
  abuse)	
  and	
  the	
  number	
   of	
  events	
  per	
  individual.	
  	
  It	
  can	
  be	
  used	
  to	
  identify	
  individuals	
  with	
  high	
  incidences	
  of	
   trigger	
  events;	
  	
  
§ Changes	
  in	
  Service	
  Utilization	
  following	
  Discharge	
  from	
  Jail	
  Diversion	
  Program	
  -­‐	
  is	
   used	
  to	
  show	
  a	
  comparison	
  of	
  services	
  provided	
  by	
  CSBs	
  for	
  each	
  individual	
  pre-­‐ enrollment	
  and	
  post-­‐discharge	
  from	
  the	
  Jail	
  Diversion	
  program;	
  
§ Change	
  in	
  Service	
  Utilization	
  following	
  Crisis	
  Assessment	
  -­‐	
  is	
  used	
  to	
  show	
  a	
   comparison	
  of	
  services	
  provided	
  by	
  the	
  Community	
  Service	
  Boards	
  pre-­‐crisis	
   intervention	
  assessment	
  and	
  post-­‐assessment;	
  
§ Licensing	
  Regulation	
  Compliance	
  Report	
  -­‐	
  reports	
  on	
  providers	
  who	
  were	
  cited	
  for	
   selected	
  regulation(s)	
  within	
  the	
  selected	
  time	
  period	
  and	
  all	
  prior	
  citations	
  for	
  the	
   same	
  regulation	
  within	
  the	
  selected	
  look-­‐back	
  period.	
  	
  Data	
  can	
  be	
  aggregated	
  by	
   provider	
  or	
  by	
  regulation;	
  
§ Services	
  Needed	
  by	
  Individuals	
  on	
  Waiver	
  Waitlist	
  –	
  two	
  different	
  reports	
  provide	
   either	
  individual	
  or	
  summary	
  data,	
  including	
  information	
  about	
  services	
  needed;	
  and	
  
§ Death	
  and	
  Serious	
  Incident	
  Reporting	
  Time	
  Detail	
  -­‐	
  contains	
  details	
  of	
  report	
  times	
   related	
  to	
  incident	
  disclosures.	
  	
  The	
  report	
  is	
  organized	
  by	
  DBHDS	
  region	
  and	
   provider	
  organization.	
  	
  Days	
  from	
  discovery	
  to	
  notification	
  that	
  exceed	
  two	
  are	
   highlighted	
  in	
  red.	
  
	
   Commonwealth	
  staff	
  continue	
  to	
  refine	
  the	
  data	
  for	
  the	
  eight	
  domains.	
  	
  As	
  discussed	
  in	
   previous	
  Reports,	
  the	
  Commonwealth	
  was	
  collecting	
  data	
  for	
  one	
  or	
  more	
  measure	
  for	
  each	
   of	
  the	
  eight	
  domains,	
  but	
  further	
  definition	
  of	
  the	
  measures,	
  as	
  well	
  as	
  expansion	
  of	
  the	
   measures,	
  and	
  the	
  collection	
  of	
  reliable	
  data	
  will	
  be	
  needed.	
  	
  

	
  

139	
  

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   Since	
  the	
  last	
  review,	
  the	
  Commonwealth	
  has	
  undertaken	
  some	
  activities	
  to	
  move	
  towards	
   more	
  comprehensive	
  data	
  collection	
  and	
  use	
  in	
  the	
  eight	
  domains.	
  	
  Specifically,	
  the	
  Assistant	
   Commissioner	
  for	
  Quality	
  Management	
  and	
  Development	
  emphasized	
  the	
  need	
  for	
  the	
  eight	
   domains	
  to	
  be	
  prominent	
  in	
  the	
  data	
  warehouse	
  (for	
  which	
  a	
  document	
  identifies	
  data	
  in	
  the	
   warehouse	
  that	
  relate	
  to	
  six	
  of	
  the	
  eight	
  domains),	
  in	
  the	
  revised	
  ISP	
  format,	
  as	
  well	
  as	
  in	
  the	
   work	
  that	
  Delmarva	
  is	
  doing	
  with	
  the	
  Quality	
  Service	
  Reviews.	
  	
  An	
  initial	
  meeting	
  was	
  held	
   with	
  staff	
  throughout	
  the	
  DBHDS	
  organization.	
  	
  This	
  group	
  developed	
  concepts	
  for	
  what	
   should	
  be	
  included	
  in	
  the	
  eight	
  domains.	
  	
  A	
  smaller	
  group	
  now	
  will	
  meet	
  weekly.	
  	
  This	
   smaller	
  group	
  will	
  include	
  the	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator,	
  two	
  statisticians,	
  the	
   Case	
  Management	
  Coordinator	
  and	
  other	
  case	
  management	
  representatives,	
  a	
   representative	
  from	
  the	
  Division	
  of	
  Intellectual	
  Disabilities,	
  and	
  the	
  Community	
  Resource	
   Consultant,	
  who	
  is	
  the	
  architect	
  of	
  the	
  revised	
  ISP	
  format.	
   	
   In	
  addition,	
  in	
  January	
  2015,	
  a	
  workgroup	
  began	
  review	
  of	
  the	
  measures	
  included	
  on	
  the	
   Secretary’s	
  dashboard.	
  	
  As	
  noted	
  in	
  previous	
  reports,	
  questions	
  remained	
  about	
  the	
   reliability	
  of	
  the	
  data	
  case	
  managers	
  collect	
  related	
  to	
  individuals’	
  health	
  and	
  wellbeing.	
  	
   Through	
  a	
  slow	
  and	
  thoughtful	
  process,	
  the	
  workgroup	
  is	
  reviewing	
  each	
  of	
  the	
  measures,	
   and	
  is	
  attempting	
  to	
  identify	
  reliable	
  and	
  valid	
  measures.	
  	
   	
   Although	
  some	
  progress	
  has	
  been	
  made,	
  the	
  group	
  responsible	
  for	
  developing	
  the	
  additional	
   data	
  to	
  be	
  collected	
  and	
  used	
  for	
  the	
  eight	
  domains	
  should	
  incorporate	
  comments	
  from	
   previous	
  Reports.	
  	
  (Not	
  all	
  of	
  the	
  comments	
  from	
  the	
  previous	
  Reports	
  are	
  repeated	
  here,	
   but	
  should	
  be	
  referenced,	
  as	
  appropriate.)	
  	
  Briefly,	
  continuing	
  issues	
  of	
  concern	
  include:	
  
§ Comprehensiveness	
  of	
  Measures:	
  Although	
  the	
  current	
  measures	
  include	
  some	
   important	
  information,	
  they	
  do	
  not	
  yet	
  represent	
  a	
  full	
  listing	
  of	
  data	
  to	
  assess	
  and	
   improve	
  quality.	
  	
  As	
  discussed	
  in	
  further	
  detail	
  in	
  the	
  previous	
  Report,	
  only	
  limited	
   reliable	
  data	
  sources	
  are	
  available;	
  measures	
  that	
  should	
  have	
  been	
  considered	
  were	
   not.	
  	
  Suggestions	
  made	
  previously	
  include:	
  expanding	
  protection	
  from	
  harm	
   indicators	
  to	
  include	
  measures	
  related	
  to	
  unexpected	
  hospitalizations,	
   elopements/missing	
  persons,	
  law	
  enforcement	
  contacts/arrests,	
  etc.;	
  including	
   capacity	
  indicators	
  such	
  as	
  training	
  or	
  competencies	
  to	
  provide	
  services;	
  and	
   including	
  measures	
  that	
  represent	
  a	
  proactive	
  rather	
  than	
  a	
  reactive	
  approach.	
  	
  The	
   Commonwealth	
  should	
  continue	
  to	
  identify	
  and/or	
  develop	
  relevant	
  sources	
  of	
  data,	
   ensure	
  these	
  data	
  are	
  reliable,	
  and	
  expand	
  the	
  measures	
  to	
  assess	
  and	
  improve	
   quality.	
  
§ Complete	
  Data:	
  As	
  noted	
  above,	
  the	
  data	
  included	
  in	
  the	
  data	
  warehouse	
  did	
  not	
  yet	
   include	
  data	
  for	
  individuals	
  under	
  the	
  DD	
  Waiver,	
  or	
  for	
  individuals	
  in	
  nursing	
   facilities	
  and	
  private	
  ICF/IIDs.	
  
§ Measuring	
  Quality:	
  As	
  noted	
  previously,	
  the	
  quality	
  of	
  services	
  or	
  supports	
  should	
   be	
  targeted	
  for	
  measurement,	
  as	
  opposed	
  to	
  simply	
  measuring	
  the	
  presence	
  or	
   absence	
  of	
  supports.	
  	
  Examples	
  to	
  be	
  considered	
  include	
  the	
  numbers	
  of	
  individuals	
   using	
  crisis	
  services	
  or	
  the	
  numbers	
  of	
  individuals	
  in	
  supported	
  employment.	
  	
  Even	
   when	
  quality	
  is	
  reportedly	
  a	
  target	
  for	
  measurement	
  (e.g.,	
  extent	
  to	
  which	
  desired	
   health	
  and	
  well-­‐being	
  or	
  community	
  inclusion	
  outcomes	
  are	
  achieved),	
  the	
  measures	
   rely	
  on	
  the	
  individuals’	
  ISPs	
  and	
  case	
  managers’	
  assessment	
  of	
  progress	
  as	
  the	
  basis	
   to	
  determine	
  whether	
  or	
  not	
  individuals	
  are	
  achieving	
  these	
  quality	
  outcomes.	
  	
  The	
  

	
  

140	
  

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possibility	
  of	
  bias	
  in	
  the	
  case	
  managers’	
  reporting	
  of	
  goals,	
  achieved	
  in	
  the	
  ISP	
  that	
   they	
  authored,	
  should	
  be	
  assumed	
  and	
  addressed.	
  	
  As	
  noted	
  above,	
  improvement	
  in	
   case	
  management	
  measures	
  is	
  an	
  area	
  of	
  focus	
  for	
  a	
  workgroup.	
  	
  In	
  addition,	
  efforts	
   are	
  underway	
  to	
  improve	
  the	
  quality	
  of	
  ISPs.	
  	
  	
   § Definition	
  of	
  Terms:	
  Although	
  some	
  definitions	
  existed,	
  a	
  clear	
  set	
  of	
  definitions	
  for	
   the	
  measures	
  should	
  be	
  provided.	
   § Reliability	
  of	
  Data:	
  As	
  Commonwealth	
  staff	
  recognize,	
  they	
  continue	
  to	
  improve	
  the	
   reliability	
  of	
  the	
  data,	
  but	
  this	
  is	
  an	
  area	
  in	
  which	
  focused	
  efforts	
  continue	
  to	
  be	
   needed.	
  	
  	
   § Methodology	
  for	
  Data	
  Collection:	
  It	
  will	
  be	
  important	
  to	
  detail	
  the	
  methodology	
   used	
  to	
  collect	
  the	
  data	
  and	
  to	
  ensure	
  data	
  are	
  collected	
  the	
  same	
  way	
  each	
  time.	
  	
  	
   	
   In	
  summary,	
  Commonwealth	
  staff	
  reported	
  working	
  on	
  a	
  QI	
  Plan	
  for	
  inclusion	
  in	
  the	
  revised	
   Waiver.	
  	
  Significant	
  progress	
  was	
  made	
  in	
  the	
  development	
  of	
  a	
  data	
  warehouse,	
  as	
  well	
  as	
  in	
   a	
  series	
  of	
  standard	
  reports	
  to	
  allow	
  queries	
  of	
  existing	
  data.	
  	
  The	
  Commonwealth	
  made	
   limited	
  progress	
  in	
  expanding	
  the	
  identification	
  of	
  data	
  to	
  assess	
  and	
  improve	
  quality	
  and	
  in	
   ensuring	
  that	
  the	
  data	
  are	
  complete.	
  	
  However,	
  a	
  number	
  of	
  challenges	
  still	
  need	
  to	
  be	
   overcome.	
  	
  Previous	
  recommendations	
  related	
  to	
  these	
  efforts	
  remain	
  relevant,	
  including:	
   § The	
  Commonwealth	
  should	
  continue	
  to	
  identify	
  and/or	
  develop	
  relevant	
  sources	
  of	
   data.	
   § For	
  each	
  of	
  the	
  indicators	
  identified	
  for	
  the	
  Settlement	
  Agreement	
  domains,	
  in	
   addition	
  to	
  identifying	
  the	
  data	
  source,	
  definitions	
  and	
  methodologies	
  should	
  be	
   developed;	
  as	
  appropriate,	
  baselines	
  or	
  benchmarks	
  should	
  be	
  identified;	
  and	
  targets	
   or	
  goals	
  should	
  be	
  set.	
   § At	
  a	
  minimum,	
  and	
  as	
  appropriate	
  to	
  the	
  particular	
  indicator,	
  the	
  methodology	
   section	
  should	
  include	
  the	
  following:	
  1)	
  how	
  the	
  data	
  will	
  be	
  collected	
  (e.g.,	
  through	
  a	
   monitoring	
  tool,	
  through	
  review	
  of	
  records,	
  through	
  a	
  database,	
  through	
  review	
  of	
  the	
   implementation	
  of	
  individuals’	
  ISPs,	
  etc.);	
  2)	
  how	
  often	
  and	
  when	
  (e.g.,	
  end	
  of	
  the	
   month,	
  within	
  the	
  first	
  five	
  days	
  of	
  the	
  month	
  for	
  the	
  preceding	
  month,	
  etc.)	
  the	
  data	
   will	
  be	
  pulled;	
  3)	
  the	
  schedule	
  for	
  assessing	
  data	
  reliability	
  and	
  validity	
  and	
  who	
  will	
   be	
  responsible	
  for	
  this;	
  4)	
  what	
  subpopulation	
  or	
  percentage	
  of	
  the	
  population	
  will	
  be	
   included	
  in	
  the	
  sample	
  (e.g.,	
  100%	
  or	
  some	
  lesser	
  but	
  valid	
  sample);	
  5)	
  the	
  standards	
   that	
  will	
  be	
  applied	
  to	
  judge	
  conformance	
  with	
  the	
  measure;	
  6)	
  who	
  will	
  be	
   responsible	
  for	
  collecting	
  and/or	
  reporting	
  the	
  data;	
  7)	
  clear	
  formulas	
  for	
  calculating	
   the	
  indicator/measure,	
  including	
  how	
  the	
  “N”	
  and	
  “n”	
  will	
  be	
  determined,	
  and	
  what	
   mathematical	
  or	
  statistical	
  procedures	
  will	
  be	
  used	
  (i.e.,	
  this	
  might	
  be	
  included	
  in	
  the	
   definition	
  discussed	
  above);	
  and	
  8)	
  who	
  will	
  be	
  responsible	
  for	
  analyzing	
  the	
  data.	
   	
   Based	
  on	
  a	
  review	
  of	
  the	
  DBHDS	
  Quality	
  Improvement	
  Committee	
  minutes	
  for	
  the	
  months	
  of	
   October	
  2014	
  through	
  July	
  2015,	
  some	
  discussions	
  are	
  occurring	
  regarding	
  data;	
  basic	
   analyses	
  of	
  the	
  data	
  are	
  sometimes	
  referenced.	
  	
  As	
  noted	
  elsewhere	
  in	
  this	
  Report,	
  the	
   Quality	
  Improvement	
  Committee	
  continued	
  to	
  have	
  access	
  to	
  limited	
  data,	
  due	
  to	
  the	
   ongoing	
  development	
  of	
  data	
  sources	
  and	
  measures.	
  	
  It	
  was	
  positive	
  that,	
  at	
  times,	
  the	
   Quality	
  Improvement	
  Committee	
  identified	
  issues	
  with	
  data	
  (e.g.,	
  the	
  need	
  for	
  more	
   complete	
  data	
  related	
  to	
  mortalities,	
  especially	
  for	
  people	
  living	
  at	
  home,	
  or	
  the	
  need	
  to	
   ensure	
  providers	
  are	
  correctly	
  reporting	
  allegations	
  of	
  abuse)	
  and	
  discussed	
  mechanisms	
  to	
  

	
  

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correct	
  the	
  issues.	
  	
  Some	
  limited	
  in-­‐depth	
  analyses	
  have	
  been	
  completed	
  and	
  some	
  limited	
   actions	
  have	
  been	
  taken	
  to	
  address	
  trends	
  identified	
  and	
  implemented.	
  	
  For	
  example:	
  
§ In	
  July	
  2015,	
  “The	
  Committee	
  recommended	
  that	
  the	
  ISP	
  be	
  updated	
  to	
  include	
  a	
   review	
  of	
  the	
  medical	
  areas	
  recommended	
  by	
  the	
  Mortality	
  Review	
  Committee.”	
  	
   Based	
  on	
  discussions	
  with	
  Commonwealth	
  staff,	
  some	
  changes	
  occurred	
  to	
  the	
  ISP	
   format,	
  but	
  further	
  training	
  is	
  needed	
  to	
  improve	
  the	
  quality	
  of	
  ISPs,	
  particularly	
  with	
   regard	
  to	
  fully	
  capturing	
  individuals’	
  health	
  needs	
  and	
  related	
  goals/objectives	
  and	
   supports.	
  
§ The	
  Quality	
  Improvement	
  Committee	
  identified	
  peer-­‐to-­‐peer	
  aggression	
  as	
  an	
  issue	
   that	
  required	
  additional	
  investigation.	
  	
  The	
  providers	
  with	
  the	
  highest	
  numbers	
  of	
   incidents	
  were	
  identified,	
  and	
  it	
  appeared	
  follow-­‐up	
  was	
  occurring	
  with	
  the	
  provider	
   with	
  the	
  highest	
  number.	
  	
  It	
  remained	
  unclear,	
  though,	
  whether	
  a	
  thorough	
  analysis	
   was	
  completed,	
  or	
  if	
  potential	
  causes	
  and	
  solutions	
  were	
  identified	
  and	
  implemented.	
  	
   On	
  a	
  positive	
  note,	
  although	
  a	
  formal	
  response	
  had	
  not	
  yet	
  been	
  formulated,	
  staff	
   reported	
  that	
  Human	
  Rights	
  Specialists	
  now	
  were	
  better	
  informed	
  about	
  the	
  specific	
   individuals	
  involved	
  as	
  victims	
  or	
  aggressors	
  in	
  peer-­‐to-­‐peer	
  incidents.	
  	
  As	
  a	
  result	
  of	
   this	
  important	
  information,	
  follow-­‐up	
  now	
  could	
  occur.	
  
§ Data	
  related	
  to	
  employment	
  showed	
  the	
  need	
  for	
  improvement.	
  	
  The	
  Quality	
   Improvement	
  Committee	
  sought	
  recommendations	
  from	
  the	
  RQCs,	
  reviewed	
  the	
   resulting	
  recommendations,	
  and	
  agreed	
  upon	
  a	
  set	
  that	
  would	
  be	
  incorporated	
  into	
   the	
  employment	
  plan.	
  
	
   A	
  document	
  entitled	
  “Guidelines	
  for	
  the	
  Operation	
  of	
  Regional	
  Quality	
  Councils,”	
  dated	
   October	
  16,	
  2014,	
  sets	
  forth	
  the	
  function	
  and	
  structure	
  of	
  the	
  Regional	
  Quality	
  Councils,	
  as	
   well	
  as	
  membership	
  requirements	
  and	
  voting	
  rules.	
  	
  It	
  clearly	
  indicates	
  that	
  the	
  DBHDS	
   Quality	
  Improvement	
  Council	
  directs	
  the	
  work	
  of	
  the	
  Regional	
  Quality	
  Councils.	
   	
   DBHDS	
  staff	
  continue	
  to	
  work	
  to	
  ensure	
  broad	
  membership	
  on	
  the	
  Regional	
  Quality	
  Councils.	
  	
   Based	
  on	
  a	
  membership	
  list,	
  as	
  of	
  August	
  24,	
  2015,	
  all	
  Councils	
  include	
  staff	
  experienced	
  in	
   data	
  analysis,	
  residential	
  services	
  providers,	
  employment	
  services	
  providers,	
  day	
  support	
   providers,	
  ID	
  Case	
  Management	
  providers,	
  DD	
  Case	
  Management	
  providers,	
  other	
   Community	
  Services	
  Board	
  staff,	
  family	
  members,	
  individuals	
  served,	
  and	
  Community	
   Resource	
  Consultants.	
  	
  	
  	
  	
   	
   In	
  terms	
  of	
  the	
  Regional	
  Quality	
  Councils’	
  role	
  in	
  “assessing	
  relevant	
  data,	
  identifying	
  trends,	
   and	
  recommending	
  responsive	
  actions,”	
  since	
  the	
  last	
  review,	
  continued	
  progress	
  occurred,	
   but	
  the	
  Councils	
  need	
  to	
  continue	
  to	
  effectively	
  use	
  data	
  to	
  identify	
  areas	
  requiring	
   improvement	
  and	
  to	
  issue	
  recommendations.	
  	
  There	
  is	
  evidence	
  to	
  confirm	
  that	
  members	
  of	
   the	
  Division	
  of	
  Quality	
  Management	
  and	
  Development	
  regularly	
  support	
  the	
  Councils’	
   activities	
  and	
  that	
  the	
  Commonwealth	
  shares	
  the	
  data	
  that	
  are	
  currently	
  available.	
  	
  For	
   example,	
  in	
  recent	
  Council	
  meetings,	
  DBHDS	
  shared	
  Regional	
  Support	
  Team	
  data,	
   employment	
  data,	
  and	
  National	
  Core	
  Indicator	
  (NCI)	
  data.	
  	
  Regional	
  Quality	
  Councils	
  are	
   conducting	
  limited	
  analysis	
  of	
  the	
  data	
  shared.	
  	
  In	
  some	
  instances,	
  the	
  Regional	
  Quality	
   Councils	
  made	
  recommendations,	
  for	
  example,	
  related	
  to	
  employment,	
  and,	
  to	
  a	
  limited	
   extent,	
  the	
  need	
  to	
  expand	
  community	
  living	
  options	
  for	
  individuals	
  with	
  complex	
  medical	
   and/or	
  behavioral	
  needs.	
  	
  The	
  NCI	
  data	
  identified	
  potential	
  areas	
  of	
  need,	
  but	
  minutes	
   showed	
  limited	
  discussion	
  of	
  possible	
  trends	
  or	
  recommendations	
  for	
  improvements.	
  	
  

	
  

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   Based	
  on	
  discussions	
  with	
  members	
  of	
  three	
  different	
  Regional	
  Quality	
  Councils	
  (including	
  a	
   family	
  member	
  and	
  advocate,	
  an	
  executive	
  staff	
  person	
  from	
  a	
  residential	
  provider,	
  and	
  a	
   quality	
  improvement	
  director	
  from	
  a	
  case	
  management	
  agency),	
  the	
  meetings	
  are	
  efficient	
   and	
  Commonwealth	
  staff	
  provide	
  good	
  support.	
  	
  The	
  Councils	
  have	
  wide	
  membership,	
  which	
   helps	
  bring	
  different	
  perspectives	
  to	
  the	
  table,	
  including,	
  importantly,	
  the	
  individual	
  and	
   family	
  perspectives.	
  	
  Over	
  the	
  past	
  year,	
  the	
  Councils	
  have	
  increasingly	
  reviewed	
  data	
  (e.g.,	
   NCI,	
  employment,	
  mortality),	
  and	
  the	
  Councils	
  have	
  begun	
  to	
  provide	
  recommendations	
  on	
   some	
  topics.	
  	
  The	
  meetings	
  have	
  provided	
  a	
  focus	
  on	
  what	
  is	
  occurring	
  within	
  the	
  regions	
  on	
   certain	
  topics	
  (e.g.,	
  employment),	
  and	
  have	
  allowed	
  systemic	
  recommendations	
  to	
  be	
  offered	
   to	
  the	
  QIC.	
  	
  Another	
  benefit	
  that	
  has	
  been	
  articulated	
  is	
  a	
  greater	
  regional	
  focus	
  on	
  resolving	
   issues.	
  	
  However,	
  the	
  limited	
  data	
  available	
  to	
  both	
  investigate	
  topics	
  in	
  depth	
  as	
  well	
  as	
   across	
  topics	
  remains	
  a	
  continuing	
  challenge.	
  	
  Another	
  challenge	
  is	
  the	
  inability	
  to	
  drill	
  down	
   to	
  the	
  regional	
  level	
  with	
  some	
  existing	
  data	
  (e.g.,	
  NCI).	
  	
  Overall,	
  members	
  viewed	
  the	
   Regional	
  Quality	
  Councils	
  as	
  a	
  positive	
  addition,	
  but	
  recognize	
  that	
  more	
  growth	
  is	
  needed	
  to	
   fully	
  realize	
  their	
  potential.	
   	
   In	
  summary,	
  the	
  Quality	
  Improvement	
  Committee,	
  as	
  well	
  as	
  the	
  Regional	
  Quality	
  Councils,	
   are	
  using	
  some	
  of	
  the	
  data	
  currently	
  available,	
  are	
  conducting	
  limited	
  analyses	
  of	
  such	
  data,	
   and	
  are	
  beginning	
  to	
  use	
  such	
  analyses	
  to	
  determine	
  what,	
  if	
  any,	
  actions	
  should	
  be	
  taken.	
  	
   These	
  are	
  activities	
  that	
  should	
  increase	
  over	
  time,	
  particularly	
  as	
  more	
  data	
  becomes	
   available,	
  and	
  more	
  in-­‐depth	
  analyses	
  of	
  the	
  data	
  are	
  made	
  available	
  to	
  both	
  groups.	
   	
   On	
  October	
  6,	
  2015,	
  the	
  Senior	
  DD	
  Administrative	
  and	
  Policy	
  Analyst	
  sent	
  a	
  link	
  to	
  a	
  page	
  on	
   the	
  DBHDS	
  website	
  (i.e.,	
  http://www.dbhds.virginia.gov/individuals-­‐and-­‐ families/developmental-­‐disabilities/doj-­‐settlement-­‐agreement)	
  that	
  includes	
  a	
  tab	
  for	
  an	
   annual	
  report.	
  	
  In	
  the	
  cover	
  email,	
  the	
  Commonwealth	
  indicated	
  that	
  this	
  site	
  is	
  not	
  yet	
   complete,	
  but	
  includes	
  reports	
  targeted	
  to	
  a	
  variety	
  of	
  audiences	
  that	
  offer	
  information	
   regarding	
  demographics,	
  the	
  quality	
  and	
  quantity	
  of	
  supports,	
  and	
  makes	
  recommendations	
   for	
  improvements.	
  	
  The	
  intention	
  is	
  to	
  finalize	
  it,	
  and	
  then	
  update	
  it	
  semi-­‐annually.	
  	
  Based	
  on	
   a	
  review	
  of	
  the	
  site,	
  it	
  includes	
  valuable	
  information,	
  and	
  is	
  a	
  good	
  start	
  to	
  meeting	
  the	
   requirement	
  of	
  the	
  Settlement	
  Agreement.	
  	
  It	
  will	
  be	
  important	
  to	
  ensure	
  that	
  the	
  data	
   included	
  accurately	
  reflects	
  the	
  current	
  system,	
  as	
  well	
  as	
  unmet	
  needs.	
  	
  For	
  example,	
  the	
   information	
  does	
  not	
  identify	
  information	
  about	
  barriers	
  to	
  “most	
  integrated	
  housing”	
  from	
   the	
  Regional	
  Support	
  Teams;	
  gaps	
  in	
  the	
  transportation	
  service	
  availability,	
  quality	
  or	
  safety	
   for	
  individuals	
  with	
  ID	
  on	
  HCBS	
  waivers;	
  or	
  the	
  adequacy	
  of	
  crisis	
  services	
  for	
  adults	
  or	
   children,	
  or	
  whether	
  data	
  about	
  employment	
  is	
  complete.	
   	
   In	
  summary,	
  at	
  the	
  time	
  of	
  the	
  review,	
  the	
  Commonwealth	
  had	
  recently	
  developed	
  and	
   implemented	
  a	
  format	
  on	
  its	
  website	
  to	
  provide	
  the	
  “annual	
  report”	
  information	
  described	
  in	
   the	
  Settlement	
  Agreement.	
  	
  However,	
  the	
  website	
  was	
  not	
  yet	
  complete,	
  and	
  the	
   Commonwealth	
  considered	
  it	
  a	
  work	
  in	
  progress.	
  	
  This	
  will	
  require	
  further	
  review	
  in	
  the	
   future.	
   	
   	
   	
   	
  

	
  

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1. The	
  Commonwealth	
  shall	
  require	
  all	
  providers	
  (including	
  Training	
  Centers,	
  CSBs,	
   and	
  other	
  community	
  providers)	
  to	
  develop	
  and	
  implement	
  a	
  quality	
  improvement	
   (“QI”)	
  program,	
  including	
  root	
  cause	
  analyses,	
  that	
  is	
  sufficient	
  to	
  identify	
  and	
   address	
  significant	
  service	
  issues	
  and	
  is	
  consistent	
  with	
  the	
  requirements	
  of	
  the	
   DBHDS	
  Licensing	
  Regulations	
  at	
  12	
  VAC	
  35-­‐105-­‐620	
  in	
  effect	
  on	
  the	
  effective	
  date	
   of	
  this	
  Agreement	
  and	
  the	
  provisions	
  of	
  this	
  Agreement.	
  
2. Within	
  12	
  months	
  of	
  the	
  effective	
  date	
  of	
  this	
  Agreement,	
  the	
  Commonwealth	
  shall	
   develop	
  measures	
  that	
  CSBs	
  and	
  other	
  community	
  providers	
  are	
  required	
  to	
  report	
   to	
  DBHDS	
  on	
  a	
  regular	
  basis,	
  either	
  through	
  their	
  risk	
  management/critical	
   incident	
  reporting	
  requirements	
  or	
  through	
  their	
  QI	
  program.	
  	
  Reported	
  key	
   indicators	
  shall	
  capture	
  information	
  regarding	
  both	
  positive	
  and	
  negative	
   outcomes	
  for	
  both	
  health	
  and	
  safety	
  and	
  community	
  integration,	
  and	
  will	
  be	
   selected	
  from	
  the	
  relevant	
  domains	
  listed	
  in	
  Section	
  V.D.3	
  above.	
  	
  The	
  measures	
  will	
   be	
  monitored	
  and	
  reviewed	
  by	
  the	
  DBHDS	
  quality	
  improvement	
  committee,	
  with	
   input	
  from	
  the	
  Regional	
  Quality	
  Councils,	
  described	
  in	
  Section	
  V.D.5	
  above.	
  	
  The	
   DBHDS	
  quality	
  improvement	
  committee	
  will	
  assess	
  the	
  validity	
  of	
  each	
  measure	
  at	
   least	
  annually	
  and	
  update	
  measures	
  accordingly.	
  
3. The	
  Commonwealth	
  shall	
  use	
  Quality	
  Service	
  Reviews	
  and	
  other	
  mechanisms	
  to	
   assess	
  the	
  adequacy	
  of	
  providers’	
  quality	
  improvement	
  strategies	
  and	
  shall	
  provide	
   technical	
  assistance	
  and	
  other	
  oversight	
  to	
  providers	
  whose	
  quality	
  improvement	
   strategies	
  the	
  Commonwealth	
  determines	
  to	
  be	
  inadequate.	
  
	
   Goals	
  for	
  this	
  Review	
  included:	
  1)	
  determine	
  whether	
  or	
  not	
  the	
  Commonwealth’s	
  draft	
   expectations	
  for	
  CSBs	
  and	
  other	
  community	
  providers’	
  risk	
  management	
  and	
  quality	
   improvement	
  systems	
  will	
  lead	
  towards	
  compliance	
  (i.e.,	
  Section	
  V.E.1);	
  2)	
  per	
  Section	
  V.E.2,	
   determine	
  whether	
  the	
  Commonwealth	
  has	
  identified	
  measures	
  that	
  CSBs	
  and	
  community	
   providers	
  are	
  to	
  report,	
  including	
  both	
  negative	
  and	
  positive	
  indicators;	
  and	
  3)	
  determine	
   the	
  status	
  of	
  the	
  Commonwealth’s	
  implementation	
  of	
  Quality	
  Service	
  Reviews	
  (QSRs)	
  that	
   comply	
  with	
  the	
  requirements	
  of	
  the	
  Agreement	
  (i.e.,	
  Section	
  V.E.3).	
  	
   	
  	
   As	
  noted	
  in	
  the	
  last	
  Report,	
  the	
  Settlement	
  Agreement	
  establishes	
  the	
  requirement	
  for	
   providers	
  to	
  monitor	
  and	
  evaluate	
  service	
  quality;	
  it	
  references	
  the	
  DBHDS	
  Licensing	
   Regulations	
  at	
  12	
  VAC	
  35-­‐105-­‐620.	
  	
  Specifically,	
  the	
  regulations	
  require:	
  “The	
  provider	
  shall	
   implement	
  written	
  policies	
  and	
  procedures	
  to	
  monitor	
  and	
  evaluate	
  service	
  quality	
  and	
   effectiveness	
  on	
  a	
  systematic	
  and	
  ongoing	
  basis.	
  	
  Input	
  from	
  individuals	
  receiving	
  services	
   and	
  their	
  authorized	
  representatives,	
  if	
  applicable,	
  about	
  services	
  used	
  and	
  satisfaction	
  level	
   of	
  participation	
  in	
  the	
  direction	
  of	
  service	
  planning	
  shall	
  be	
  part	
  of	
  the	
  provider's	
  quality	
   assurance	
  system.	
  	
  The	
  provider	
  shall	
  implement	
  improvements,	
  when	
  indicated.”	
   	
   Beginning	
  with	
  Fiscal	
  Years	
  2015	
  and	
  2016,	
  the	
  Commonwealth	
  added	
  Quality	
  Improvement	
   program	
  requirements	
  to	
  the	
  draft	
  Performance	
  Contract	
  with	
  CSBs.	
  	
  Details	
  regarding	
  these	
   requirements	
  were	
  included	
  in	
  the	
  previous	
  Report.	
  	
   	
  

	
  

144	
  

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The	
  Commonwealth’s	
  oversight	
  of	
  community	
  providers’	
  Quality	
  Improvement	
  programs	
   remains	
  a	
  work	
  in	
  progress.	
  	
  Since	
  the	
  previous	
  review,	
  the	
  Commonwealth	
  conducted	
  a	
   survey	
  of	
  all	
  40	
  CSBs.	
  	
  As	
  expected,	
  CSBs	
  have	
  different	
  levels	
  of	
  sophistication	
  regarding	
   their	
  quality	
  improvement	
  processes.	
  	
  The	
  next	
  step	
  is	
  to	
  survey	
  a	
  sample	
  of	
  the	
  900	
   community	
  providers	
  to	
  ascertain	
  a	
  baseline	
  with	
  regard	
  to	
  quality	
  improvement	
  practices.	
   	
   These	
  activities	
  are	
  positive	
  first	
  steps	
  in	
  assisting	
  DBHDS	
  staff	
  to	
  determine	
  the	
  scope	
  and	
   type	
  of	
  technical	
  assistance	
  necessary	
  to	
  help	
  providers	
  comply	
  with	
  the	
  Settlement	
   Agreement.	
  	
  Once	
  the	
  Commonwealth	
  sets	
  clear	
  expectations	
  about	
  Quality	
  Improvement	
   processes,	
  now	
  targeted	
  for	
  completion	
  on	
  12/31/15,	
  and	
  provides	
  technical	
  assistance	
  and	
   guidance,	
  the	
  Office	
  of	
  Licensing	
  will	
  have	
  a	
  role	
  in	
  ensuring	
  that	
  providers	
  are	
  compliant.	
  	
  	
   	
   As	
  noted	
  in	
  the	
  sections	
  above,	
  the	
  Commonwealth	
  has	
  made	
  some	
  progress,	
  but	
  still	
  is	
  in	
   the	
  process	
  of	
  finalizing	
  drafts	
  of	
  the	
  data	
  it	
  intends	
  to	
  collect.	
  	
  Some	
  of	
  the	
  data	
  to	
  be	
   collected	
  by	
  providers	
  have	
  been	
  identified,	
  but,	
  in	
  order	
  to	
  address	
  the	
  requirements	
  of	
  the	
   Settlement	
  Agreement,	
  additional	
  data	
  will	
  likely	
  be	
  required.	
  In	
  some	
  cases,	
  the	
  reliability	
  of	
   the	
  data	
  requires	
  improvement.	
  	
  	
   	
   As	
  discussed	
  in	
  more	
  detail	
  above,	
  Regional	
  Quality	
  Councils	
  continue	
  to	
  meet	
  and	
  review	
   some	
  data.	
  	
  Similarly,	
  the	
  Commonwealth’s	
  Quality	
  Improvement	
  Committee	
  meets	
  regularly	
   and	
  uses	
  some	
  of	
  the	
  data	
  available	
  to	
  them.	
  	
  	
   	
   As	
  discussed	
  below,	
  the	
  Quality	
  Service	
  Review	
  process	
  has	
  been	
  initiated.	
  Results	
  from	
   these	
  reviews	
  will	
  offer	
  providers	
  another	
  source	
  of	
  information	
  about	
  the	
  quality	
  of	
  the	
   protections,	
  supports,	
  and	
  services	
  they	
  offer,	
  although	
  these	
  data	
  are	
  not	
  complete	
  or,	
  in	
   some	
  cases,	
  reliable.	
   	
   In	
  summary,	
  the	
  Commonwealth	
  remains	
  in	
  the	
  beginning	
  stages	
  of	
  developing	
  and	
   implementing	
  communication	
  mechanisms	
  to	
  convey	
  to	
  providers	
  their	
  responsibilities	
  for	
   maintaining	
  necessary	
  Quality	
  Improvement	
  processes	
  and	
  for	
  sharing	
  data	
  with	
  the	
   Commonwealth.	
  	
  Mechanisms	
  for	
  reviewing	
  provider	
  data,	
  such	
  as	
  the	
  Regional	
  Quality	
   Councils	
  and	
  the	
  Commonwealth’s	
  Quality	
  Improvement	
  Committee,	
  are	
  also	
  in	
  the	
   beginning	
  stages.	
  	
  Some	
  initial	
  analysis	
  of	
  data	
  is	
  occurring,	
  but	
  only	
  limited	
  data	
  are	
   available	
  to	
  inform	
  the	
  Committees’	
  decision-­‐making;	
  more	
  in-­‐depth	
  analyses	
  will	
  be	
  needed	
   over	
  time.	
  	
  The	
  following	
  recommendations	
  are	
  offered	
  for	
  the	
  Commonwealth’s	
   consideration:	
  
§ To	
  ensure	
  consistent	
  implementation	
  of	
  Quality	
  Improvement	
  programs	
  across	
   providers	
  and	
  the	
  collection	
  and	
  reporting	
  of	
  reliable	
  data,	
  the	
  Commonwealth	
  should	
   pursue	
  plans	
  to	
  offer	
  training	
  to	
  CSBs,	
  DD	
  Case	
  Management	
  agencies,	
  and	
  ICF,	
   nursing	
  facility	
  and	
  community	
  waiver-­‐funded	
  providers	
  on	
  the	
  Settlement	
   Agreement’s	
  quality	
  management	
  expectations.	
  
§ The	
  Office	
  of	
  Licensing	
  should	
  consider	
  developing	
  and	
  issuing	
  interpretive	
  guidance	
   to	
  further	
  define	
  how	
  it	
  will	
  assess	
  compliance	
  with	
  the	
  very	
  broad	
  requirements	
  for	
   Quality	
  Improvement	
  programs	
  articulated	
  in	
  12	
  VAC	
  35-­‐105-­‐620.	
  
	
   	
   	
  

	
  

145	
  

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   1. The	
  Commonwealth	
  shall	
  have	
  a	
  statewide	
  core	
  competency-­‐based	
  training	
  
curriculum	
  for	
  all	
  staff	
  who	
  provide	
  services	
  under	
  this	
  Agreement.	
  	
  The	
  training	
   shall	
  include	
  person-­‐centered	
  practices,	
  community	
  integration	
  and	
  self-­‐ determination	
  awareness,	
  and	
  required	
  elements	
  of	
  service	
  training.	
   2. The	
  Commonwealth	
  shall	
  ensure	
  that	
  the	
  statewide	
  training	
  program	
  includes	
   adequate	
  coaching	
  and	
  supervision	
  of	
  staff	
  trainees.	
  	
  Coaches	
  and	
  supervisors	
  must	
   have	
  demonstrated	
  competency	
  in	
  providing	
  the	
  services	
  they	
  are	
  coaching	
  and	
   supervising.	
  
	
   This	
  review	
  included	
  assessing	
  the	
  development	
  of	
  a	
  statewide	
  core	
  competency-­‐based	
   training	
  curriculum,	
  including	
  general	
  elements	
  and	
  person-­‐specific	
  service	
  elements,	
  as	
   well	
  as	
  coaching	
  and	
  supervision.	
  	
  Based	
  on	
  review	
  of	
  documents	
  and	
  the	
  report	
  of	
  the	
   Assistant	
  Commissioner	
  of	
  Quality	
  Management	
  and	
  Development,	
  the	
  Director	
  of	
  Provider	
   Development,	
  and	
  the	
  Case	
  Manager	
  Coordinator,	
  some	
  work	
  has	
  been	
  done,	
  but	
   significantly	
  more	
  work	
  still	
  is	
  needed.	
  	
  The	
  following	
  provides	
  a	
  status	
  of	
  training	
  efforts:	
  
§ As	
  noted	
  in	
  the	
  previous	
  Report,	
  the	
  Commonwealth	
  has	
  developed	
  a	
  basic	
   curriculum	
  for	
  case	
  managers,	
  with	
  more	
  modules	
  being	
  added.	
  	
  Training	
  materials	
   consist	
  of	
  eight	
  modules,	
  including	
  one	
  on	
  the	
  philosophy	
  of	
  employment	
  first	
  and	
   methods	
  for	
  navigating	
  the	
  employment	
  system.	
  	
  (The	
  Independent	
  Reviewer’s	
   consultant	
  on	
  case	
  management	
  has	
  commented	
  on	
  the	
  quality	
  of	
  these	
  modules.)	
  	
  In	
   addition,	
  modules	
  on	
  crisis	
  services	
  and	
  housing	
  are	
  in	
  the	
  stages	
  of	
  development	
  and	
   implementation.	
  	
  Although	
  a	
  competency	
  checklist/tool	
  exists	
  for	
  case	
  managers,	
  the	
   Case	
  Manager	
  Coordinator	
  recognizes	
  the	
  need	
  to	
  update/revise	
  it,	
  and	
  is	
  working	
   towards	
  an	
  improved	
  version.	
  
§ The	
  Commonwealth	
  is	
  developing	
  enhanced	
  case	
  management	
  tools,	
  which	
  will	
   include	
  risk	
  screening,	
  as	
  well	
  as	
  protocols	
  for	
  prevention	
  and	
  action.	
  	
  Competency-­‐ based	
  training	
  will	
  be	
  developed	
  to	
  correspond	
  with	
  these	
  tools.	
  
§ Ten	
  modules	
  also	
  are	
  used	
  for	
  targeted	
  case	
  management	
  services.	
  	
  However,	
  when	
  a	
   new	
  Waiver	
  is	
  approved,	
  these	
  modules	
  will	
  need	
  modification.	
  
§ In	
  late	
  2014	
  and	
  early	
  2015,	
  the	
  ISP	
  format	
  was	
  revised	
  (e.g.,	
  reportedly	
  to	
  add	
  health	
   goals/outcomes).	
  	
  Although	
  training	
  for	
  case	
  managers	
  on	
  the	
  revised	
  ISP	
  occurred,	
   Commonwealth	
  staff	
  recognize	
  the	
  need	
  to	
  develop	
  competency-­‐based	
  training	
  to	
   assist	
  in	
  the	
  development	
  of	
  higher	
  quality	
  ISPs.	
  	
  A	
  stated	
  goal	
  is	
  to	
  have	
  specialists	
  in	
   ISP	
  development	
  at	
  each	
  of	
  the	
  CSBs.	
  	
  At	
  the	
  time	
  of	
  the	
  review,	
  the	
  Commonwealth	
   had	
  begun	
  offering	
  six-­‐days	
  of	
  ISP	
  training	
  over	
  a	
  six-­‐week	
  period.	
  	
  However,	
  ISP	
   competencies	
  were	
  still	
  in	
  development.	
  
§ For	
  Waiver	
  services,	
  supervisors	
  are	
  required	
  to	
  complete	
  training	
  with	
  direct	
   support	
  professionals	
  (DSPs)	
  on	
  a	
  variety	
  of	
  topics	
  (e.g.,	
  introduction	
  to	
  intellectual	
   and	
  developmental	
  disabilities,	
  Waiver	
  services,	
  person-­‐centered	
  planning	
  principles	
   and	
  processes,	
  communication,	
  introduction	
  to	
  positive	
  behavior	
  supports,	
  etc.).	
  	
   Using	
  a	
  sign-­‐off	
  sheet,	
  supervisors	
  and	
  DSPs	
  certify	
  that	
  DSPs	
  have	
  successfully	
   completed	
  a	
  written	
  test	
  (with	
  a	
  score	
  of	
  80%	
  or	
  better)	
  prior	
  to	
  providing	
  ID	
  or	
  DD	
   Waiver	
  Services.	
  	
  Although	
  there	
  is	
  a	
  written	
  quiz,	
  confirmation	
  of	
  performance	
   competence	
  (i.e.,	
  ability	
  to	
  implement	
  skills	
  taught)	
  has	
  not	
  been	
  required.	
  	
   	
  

	
  

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Commonwealth	
  staff	
  reported	
  that	
  work	
  is	
  underway	
  to	
  enhance	
  the	
  content	
  of	
  the	
   current	
  DSP	
  training	
  (e.g.,	
  add	
  more	
  information	
  about	
  the	
  “fatal	
  five”	
  conditions	
  to	
   the	
  health	
  and	
  safety	
  section)	
  as	
  well	
  as	
  to	
  add	
  measures	
  of	
  skill-­‐	
  and	
  experience-­‐ based	
  competency	
  measures	
  to	
  the	
  knowledge-­‐based	
  competency	
  measures	
  already	
   in	
  place	
  through	
  the	
  written	
  test.	
  	
  Based	
  on	
  conversations	
  with	
  Commonwealth	
  staff,	
   it	
  is	
  evident	
  that	
  they	
  were	
  thinking	
  through	
  many	
  of	
  the	
  necessary	
  logistics,	
  such	
  as	
   who	
  should	
  assess	
  competency;	
  if	
  the	
  supervisor	
  continues	
  to	
  play	
  this	
  role,	
  how	
  the	
   supervisor’s	
  competence	
  as	
  well	
  as	
  his/her	
  ability	
  to	
  assess	
  a	
  staff	
  member’s	
   competence	
  will	
  be	
  assessed;	
  timelines	
  for	
  demonstrating	
  competency,	
  as	
  well	
  as	
  the	
   need	
  for	
  refresher	
  training	
  and	
  confirmation	
  of	
  competency;	
  and	
  checks	
  and	
  balances	
   to	
  ensure	
  staff	
  competency	
  (e.g.,	
  licensing	
  reviews,	
  integration	
  into	
  enhanced	
  case	
   management	
  tools,	
  and	
  QSR	
  reviews).	
   	
   As	
  part	
  of	
  the	
  curricula	
  development,	
  the	
  Commonwealth	
  has	
  begun	
  to	
  develop	
  some	
   competencies	
  that	
  need	
  to	
  be	
  determined,	
  and	
  shared	
  a	
  draft	
  document:	
  “Behavioral	
   Support	
  Competencies	
  for	
  Direct	
  Support	
  Providers	
  and	
  Professionals	
  in	
  Virginia.”	
  	
   The	
  goal	
  is	
  to	
  add	
  this	
  to	
  the	
  DSP	
  training.	
  	
  This	
  document	
  shows	
  a	
  significant	
  amount	
   of	
  thoughtful	
  work,	
  including	
  delineation	
  of	
  competencies	
  for	
  different	
  staff	
  [e.g.,	
   DSPs,	
  Qualified	
  Intellectual	
  Disabilities	
  Professionals	
  (QIDP)	
  and	
  Behavior	
   Interventionists].	
  	
  It	
  also	
  delineates	
  different	
  levels	
  of	
  training	
  (i.e.,	
  training	
  received,	
   staff	
  implemented	
  skills,	
  and	
  proficiency	
  determined).	
  	
  However,	
  concerns	
  are	
  noted,	
   including,	
  at	
  times,	
  a	
  lack	
  of	
  measurable	
  competencies,	
  numerous	
  competencies	
   included	
  in	
  one	
  standard/skill,	
  and	
  no	
  distinction	
  of	
  how	
  a	
  determination	
  would	
  be	
   made	
  as	
  to	
  when	
  a	
  staff	
  member	
  “implemented	
  skills”	
  and/or	
  showed	
  “proficiency.”	
  	
   In	
  finalizing	
  these	
  and	
  developing	
  other	
  competencies,	
  it	
  might	
  be	
  helpful	
  to	
  think	
  in	
   terms	
  of	
  various	
  types	
  or	
  levels	
  of	
  competency-­‐based	
  training,	
  including	
  knowledge-­‐ based	
  competency,	
  skills–based	
  competency,	
  and	
  ability-­‐	
  or	
  expertise-­‐based	
   competency.	
   § Other	
  training	
  currently	
  available	
  includes	
  training	
  offered	
  at	
  Provider	
  Roundtables,	
   and	
  case	
  management	
  meetings.	
  	
  Providers	
  also	
  can	
  currently	
  request	
  training	
   through	
  their	
  Community	
  Resource	
  Consultants	
  or	
  Licensing	
  or	
  auditing	
  staff	
  can	
   require	
  training	
  for	
  an	
  agency	
  (e.g.,	
  include	
  training	
  in	
  a	
  corrective	
  action	
  plan).	
   § As	
  discussed	
  in	
  more	
  detail	
  above,	
  Commonwealth	
  staff	
  developed,	
  and	
  were	
  in	
  the	
   process	
  of	
  implementing,	
  training	
  on	
  investigations.	
  	
  Webinars	
  also	
  were	
  available	
  on	
   topics	
  related	
  to	
  risk	
  management,	
  including:	
  Monitor	
  Risk	
  Using	
  Triggers	
  and	
   Thresholds,	
  and	
  Root	
  Cause	
  Analysis.	
  	
  Although	
  these	
  webinars	
  did	
  not	
  have	
  skill-­‐	
  or	
   ability/expertise-­‐based	
  competency	
  components,	
  they	
  were	
  available	
  to	
  providers	
   online.	
   	
   In	
  summary,	
  it	
  is	
  positive	
  that	
  the	
  Commonwealth	
  has	
  some	
  basic	
  training	
  in	
  place	
  for	
  case	
   managers	
  and	
  is	
  expanding	
  the	
  modules,	
  as	
  appropriate.	
  	
  In	
  addition,	
  the	
  Commonwealth	
  has	
   some	
  basic	
  training	
  in	
  place	
  for	
  direct	
  support	
  professionals	
  and	
  their	
  supervisors,	
  which	
   includes	
  a	
  knowledge-­‐based	
  test.	
  	
  Initial	
  efforts	
  are	
  underway	
  to	
  develop	
  some	
  competencies	
   for	
  case	
  management,	
  direct	
  support	
  professional,	
  QIDP,	
  and	
  behavior	
  support	
  staff.	
  	
  The	
   implementation	
  of	
  root-­‐cause	
  analysis	
  training	
  and	
  other	
  webinars	
  to	
  address	
  risk	
   management,	
  as	
  well	
  as	
  efforts	
  to	
  finalize	
  and	
  implement	
  investigation	
  training,	
  are	
   important	
  priorities.	
  

	
  

147	
  

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   It	
  is	
  important	
  that	
  next	
  steps	
  include	
  comprehensive	
  planning	
  for	
  statewide	
  core	
   competency-­‐based	
  training	
  for	
  all	
  staff	
  providing	
  services	
  under	
  the	
  Agreement,	
  including	
   general	
  elements	
  and	
  person-­‐specific	
  service	
  elements,	
  as	
  well	
  as	
  coaching	
  and	
  supervision.	
  	
   As	
  noted	
  in	
  the	
  previous	
  report,	
  this	
  continues	
  to	
  be	
  a	
  significant	
  undertaking.	
  	
  It	
  will	
  be	
   important	
  to:	
  1)	
  define	
  training	
  topics;	
  2)	
  identify	
  the	
  staff	
  to	
  be	
  trained;	
  3)	
  determine	
  how	
   competency	
  will	
  be	
  measured;	
  and	
  4)	
  specify	
  the	
  frequency	
  with	
  which	
  retraining	
  should	
   occur.	
  	
  The	
  Commonwealth	
  should	
  define,	
  for	
  each	
  topic,	
  the	
  type	
  of	
  competency-­‐based	
   training	
  required,	
  including,	
  for	
  example,	
  knowledge-­‐based	
  competency	
  (assessed	
  through	
  a	
   written	
  post-­‐test),	
  skills–based	
  competency	
  (assessed	
  through	
  classroom	
  demonstration),	
   and	
  ability-­‐	
  or	
  expertise-­‐based	
  competency	
  (assessed	
  through	
  on-­‐the-­‐job	
  observation).	
  	
  	
   	
  
1. The	
  Commonwealth	
  shall	
  use	
  Quality	
  Service	
  Reviews	
  (“QSRs”)	
  to	
  evaluate	
  the	
   quality	
  of	
  services	
  at	
  an	
  individual,	
  provider,	
  and	
  system-­‐wide	
  level	
  and	
  the	
  extent	
   to	
  which	
  services	
  are	
  provided	
  in	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
   individuals’	
  needs	
  and	
  choice.	
  	
  QSRs	
  shall	
  collect	
  information	
  through:	
   a. Face-­‐to	
  Face	
  interviews	
  of	
  the	
  individual,	
  relevant	
  professional	
  staff,	
  and	
   other	
  people	
  involved	
  in	
  the	
  individual’s	
  life;	
  and	
   b. Assessment,	
  informed	
  by	
  face-­‐to-­‐face	
  interviews,	
  of	
  treatment	
  records,	
   incident/injury	
  data,	
  key-­‐indicator	
  performance	
  data,	
  compliance	
  with	
  the	
   service	
  requirements	
  of	
  this	
  Agreement,	
  and	
  the	
  contractual	
  compliance	
  of	
   community	
  services	
  boards	
  and/or	
  community	
  providers.	
  
2. QSRs	
  shall	
  evaluate	
  whether	
  individuals’	
  needs	
  are	
  being	
  identified	
  and	
  met	
   through	
  person-­‐centered	
  planning	
  and	
  thinking	
  (including	
  building	
  on	
  the	
   individuals’	
  strengths,	
  preferences,	
  and	
  goals),	
  whether	
  services	
  are	
  being	
  provided	
   in	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
  the	
  individuals’	
  needs	
  and	
  consistent	
   with	
  their	
  informed	
  choice,	
  and	
  whether	
  individuals	
  are	
  having	
  opportunities	
  for	
   integration	
  in	
  all	
  aspects	
  of	
  their	
  lives	
  (e.g.,	
  living	
  arrangements,	
  work	
  and	
  other	
   day	
  activities,	
  access	
  to	
  community	
  services	
  and	
  activities,	
  and	
  opportunities	
  for	
   relationships	
  with	
  non-­‐paid	
  individuals).	
  	
  Information	
  from	
  the	
  QSRs	
  shall	
  be	
  used	
   to	
  improve	
  practice	
  and	
  the	
  quality	
  of	
  services	
  on	
  the	
  provider,	
  CSB,	
  and	
  system	
   wide	
  levels.	
  
3. The	
  Commonwealth	
  shall	
  ensure	
  those	
  conducting	
  QSRs	
  are	
  adequately	
  trained	
  and	
   a	
  reasonable	
  sample	
  of	
  look-­‐behind	
  QSRs	
  are	
  completed	
  to	
  validate	
  the	
  reliability	
  of	
   the	
  QSR	
  process.	
  
4. 	
  The	
  Commonwealth	
  shall	
  conduct	
  QSRs	
  annually	
  of	
  a	
  statistically	
  significant	
   sample	
  of	
  individuals	
  receiving	
  services	
  under	
  this	
  Agreement.	
  
	
   A	
  goal	
  of	
  the	
  Review	
  was	
  to	
  determine	
  the	
  adequacy	
  of	
  the	
  revised	
  QSR	
  process,	
  the	
  extent	
  to	
   which	
  it	
  aligns	
  with	
  the	
  Agreement,	
  and	
  the	
  status	
  of	
  its	
  implementation.	
  	
  This	
  includes	
   determining	
  the	
  adequacy	
  of	
  the	
  Commonwealth’s	
  process	
  for	
  selecting	
  a	
  statistically	
   significant	
  sample.	
   	
   In	
  the	
  initial	
  Report	
  (November	
  2013),	
  it	
  was	
  concluded	
  that	
  the	
  Commonwealth	
  made	
   progress	
  in	
  initiating	
  the	
  use	
  of	
  the	
  National	
  Core	
  Indicators	
  (NCI)	
  Survey	
  tools	
  to	
  collect	
   some	
  important	
  data.	
  	
  However,	
  these	
  surveys	
  are	
  not	
  consistent	
  with	
  all	
  of	
  the	
  

	
  

148	
  

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requirements	
  included	
  in	
  the	
  Settlement	
  Agreement	
  in	
  relation	
  to	
  Quality	
  Service	
  Reviews.	
  	
   Therefore,	
  it	
  was	
  recommended	
  that	
  the	
  Commonwealth	
  review	
  the	
  specific	
  requirements	
  in	
   the	
  Settlement	
  Agreement	
  for	
  the	
  Quality	
  Service	
  Reviews,	
  and	
  either	
  add	
  to	
  the	
  NCI	
  process	
   or	
  replace	
  it	
  with	
  an	
  alternative.	
  	
  In	
  response	
  to	
  this	
  recommendation,	
  the	
  Commonwealth	
   decided	
  to	
  supplement	
  the	
  NCI	
  process	
  by	
  contracting	
  with	
  a	
  Quality	
  Improvement	
   Organization	
  (QIO)-­‐like	
  entity.	
  	
  On	
  May	
  18,	
  2015,	
  the	
  Commonwealth’s	
  contract	
  with	
  the	
   Delmarva	
  Foundation	
  went	
  into	
  effect.	
   	
   In	
  addition,	
  the	
  NCI	
  surveys	
  for	
  2014	
  were	
  completed	
  with	
  generally	
  good	
  participation.	
  	
   Virginia	
  Commonwealth	
  University	
  issued	
  final	
  reports	
  in	
  March	
  2015.	
  	
  As	
  discussed	
  earlier	
   in	
  this	
  Report,	
  results	
  were	
  shared	
  with	
  Regional	
  Quality	
  Councils	
  and	
  the	
  QIC.	
   	
   The	
  contract	
  with	
  Delmarva	
  clearly	
  sets	
  forth	
  the	
  purpose	
  of	
  the	
  Quality	
  Service	
  Reviews	
  as	
   defined	
  in	
  Section	
  V.I.2	
  of	
  the	
  Settlement	
  Agreement.	
  	
  There	
  is	
  a	
  multi-­‐tiered	
  approach	
  to	
   conducting	
  the	
  Quality	
  Service	
  Reviews,	
  including:	
  
§ Conducting	
  Person-­‐Centered	
  Reviews	
  (PCRs)	
  of	
  a	
  statistically	
  significant	
  sample	
  of	
   individuals	
  receiving	
  services	
  and	
  supports	
  under	
  the	
  Settlement	
  Agreement.	
  	
  In	
   addition	
  to	
  reviewing	
  documents	
  related	
  to	
  the	
  individual’s	
  supports	
  and	
  services,	
  the	
   contractor	
  will	
  conduct	
  observations,	
  as	
  well	
  as	
  interviews,	
  with	
  the	
  individual,	
   family/others	
  involved	
  in	
  the	
  individual’s	
  life,	
  the	
  Service	
  Coordinator	
  and	
  other	
   relevant	
  professional	
  staff.	
  	
  The	
  contractor	
  will	
  provide	
  recommendations	
  to	
  improve	
   practice	
  and	
  service	
  quality	
  at	
  the	
  provider	
  level.	
  
§ Conducting	
  Provider	
  Quality	
  Reviews	
  (PQRs)	
  of	
  direct	
  service	
  and	
  support	
  providers	
   serving	
  the	
  individuals	
  selected	
  for	
  the	
  Person	
  Centered-­‐Reviews.	
  	
  The	
  contractor	
  will	
   conduct	
  reviews	
  of	
  critical	
  incident	
  data,	
  program	
  services,	
  policies	
  and	
  practices,	
   provider	
  performance,	
  compliance	
  data,	
  and	
  individual	
  outcome	
  data.	
  	
  National	
  Core	
   Indicator	
  results	
  also	
  will	
  be	
  reviewed.	
  	
  The	
  contractor	
  will	
  conduct	
  interviews	
  with	
   program	
  administrators/staff.	
  
§ Completing	
  Quality	
  Service	
  Review	
  Assessments	
  will	
  involve	
  reviews	
  at	
  the	
   Community	
  Services	
  Board,	
  regional,	
  and	
  statewide	
  levels,	
  including	
  results	
  of	
   Person-­‐Centered	
  Reviews,	
  Provider	
  Quality	
  Reviews,	
  key	
  performance	
  indicators,	
   individual	
  outcomes,	
  incident	
  data,	
  National	
  Core	
  Indicator	
  results,	
  and	
  service	
   system	
  compliance	
  with	
  contractual,	
  regulatory	
  and	
  Settlement	
  Agreement	
   requirements.	
  
§ Submission	
  of	
  Quality	
  Service	
  Review	
  Assessment	
  reports,	
  including	
  reports	
  on	
  the	
   Person-­‐Centered	
  Reviews	
  and	
  Provider	
  Quality	
  Reviews	
  for	
  individuals	
  in	
  the	
  sample,	
   as	
  well	
  as	
  assessment/analysis	
  of	
  the	
  systemic	
  data.	
  	
  The	
  contractor	
  will	
  provide	
   recommendations	
  to	
  DBHDS,	
  the	
  Commonwealth	
  Quality	
  Improvement	
  Committee,	
   and	
  the	
  Regional	
  Quality	
  Councils	
  for	
  improving	
  the	
  quality	
  of	
  services	
  and	
  practices	
   at	
  the	
  provider,	
  Community	
  Services	
  Board,	
  regional,	
  and	
  statewide	
  levels.	
  
	
   At	
  the	
  time	
  of	
  the	
  review,	
  implementation	
  of	
  the	
  QSR	
  process	
  had	
  just	
  begun.	
  	
  The	
  contract	
   required	
  Delmarva	
  to	
  complete	
  400	
  individual	
  and	
  family	
  interviews,	
  and	
  50	
  provider	
   reviews.	
  	
  The	
  sample	
  was	
  selected	
  using	
  a	
  regional	
  approach,	
  but	
  also	
  taking	
  into	
  account	
   certain	
  demographics	
  (e.g.,	
  service	
  type)	
  to	
  attempt	
  to	
  ensure	
  that	
  large	
  enough	
  numbers	
  of	
   individuals	
  are	
  surveyed	
  to	
  allow	
  statistically	
  valid	
  conclusions	
  to	
  be	
  drawn.	
  	
  One	
  concern	
   regarding	
  the	
  sample	
  is	
  the	
  small	
  number	
  of	
  providers	
  included	
  in	
  the	
  reviews	
  (i.e.,	
  50	
  out	
  of	
  

	
  

149	
  

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900).	
  	
  At	
  the	
  time	
  this	
  Report	
  was	
  being	
  written,	
  Delmarva	
  had	
  completed	
  approximately	
  20	
   to	
  30	
  individual	
  and	
  family	
  interviews	
  as	
  well	
  as	
  seven	
  provider	
  reviews.	
  	
  DBHDS	
  staff	
  are	
  in	
   the	
  process	
  of	
  reviewing	
  the	
  draft	
  reports.	
   	
   In	
  an	
  email	
  dated	
  8/5/15,	
  the	
  Independent	
  Reviewer	
  summarized	
  some	
  initial	
  comments	
   that	
  he	
  had	
  provided	
  verbally	
  on	
  the	
  draft	
  protocols/audit	
  tools	
  Delmarva	
  planned	
  to	
  use.	
  	
   Many	
  of	
  the	
  concerns	
  expressed	
  in	
  this	
  email	
  (e.g.,	
  lack	
  of	
  standards,	
  lack	
  of	
  definition	
  of	
   terms)	
  do	
  not	
  appear	
  to	
  have	
  been	
  addressed	
  in	
  the	
  versions	
  of	
  the	
  tools	
  provided	
  for	
  this	
   review.	
  	
  The	
  Independent	
  Reviewer	
  will	
  be	
  evaluating	
  all	
  of	
  the	
  tools	
  in	
  more	
  detail.	
  	
   However,	
  some	
  general	
  concerns	
  noted	
  as	
  a	
  result	
  of	
  an	
  initial	
  review	
  include:	
  
§ Lack	
  of	
  Definition	
  of	
  Standards/Terms	
  –	
  As	
  the	
  Independent	
  Reviewer	
  noted,	
  it	
  is	
   important	
  for	
  standards	
  to	
  be	
  well	
  defined	
  in	
  audit	
  tools	
  in	
  order	
  to	
  ensure	
  inter-­‐rater	
   reliability,	
  as	
  well	
  as	
  to	
  clearly	
  articulate	
  expectations	
  for	
  providers.	
  	
  Although	
  some	
   of	
  the	
  tools	
  include	
  a	
  column	
  entitled	
  “standards,”	
  these	
  often	
  consist	
  of	
  vague	
   statements	
  that	
  do	
  not	
  set	
  forth	
  specific	
  expectations	
  (e.g.,	
  “The	
  provider	
  completes	
   an	
  assessment	
  of	
  the	
  person’s	
  physical,	
  mental,	
  and	
  behavioral	
  health	
  and	
  well-­‐ being,”	
  or	
  “The	
  provider	
  has	
  safety	
  protocols	
  and	
  plans	
  needed	
  to	
  help	
  the	
  person	
   stay	
  safe”).	
  	
  Broad	
  statements	
  such	
  as	
  these	
  leave	
  open	
  the	
  possibility	
  of	
  varied	
   interpretation	
  by	
  both	
  auditors	
  and	
  providers.	
  	
  If	
  specific	
  licensing	
  regulations	
  or	
   policies	
  drive	
  the	
  expectations,	
  then	
  they	
  should	
  be	
  cited.	
  	
  If	
  not,	
  then,	
  clear	
  standards	
   should	
  be	
  set	
  forth.	
  
§ Lack	
  of	
  Definition	
  of	
  Methodology	
  –	
  Similarly,	
  the	
  audit	
  tools	
  do	
  not	
  consistently	
   identify	
  the	
  methodology	
  that	
  auditors	
  would	
  use	
  to	
  answer	
  questions.	
  	
  For	
  example,	
   at	
  times,	
  indicators	
  on	
  observation	
  tools	
  appear	
  to	
  require	
  additional	
  document	
   review	
  (e.g.,	
  “Does	
  the	
  provider/staff	
  provide	
  education	
  and	
  resources	
  to	
  the	
  person	
   related	
  to	
  available	
  and	
  current	
  community	
  activities?”	
  or	
  “Does	
  staff	
  educate	
  the	
   person	
  on	
  emergency	
  procedures?”).	
  	
  Record	
  review	
  audit	
  tools	
  do	
  not	
  identify	
  the	
   expected	
  data	
  source	
  (i.e.,	
  where	
  in	
  the	
  provider	
  records	
  would	
  one	
  expect	
  to	
  find	
  the	
   necessary	
  documentation).	
  
§ Lack	
  of	
  Criteria	
  for	
  Compliance	
  –	
  From	
  a	
  PowerPoint	
  presentation	
  on	
  the	
  DBHDS	
   website,	
  dated	
  9/30/15,	
  it	
  appears	
  the	
  contractor	
  will	
  provide	
  reports	
  that	
  indicate	
   whether	
  or	
  not	
  providers	
  have	
  “met”	
  or	
  “not	
  met”	
  requirements.	
  	
  However,	
  the	
  audit	
   tools	
  do	
  not	
  explain	
  how	
  this	
  will	
  be	
  determined.	
  	
  The	
  tools	
  generally	
  have	
  numerous	
   indicators,	
  and	
  some	
  tools	
  include	
  columns	
  with	
  “suggested	
  protocols”	
  and	
   “standards,”	
  but	
  no	
  explanation	
  is	
  provided	
  regarding	
  how	
  a	
  provider	
  will	
  “meet”	
  the	
   requirements.	
  	
  To	
  this	
  end,	
  the	
  Assistant	
  Commissioner	
  of	
  Quality	
  Management	
  and	
   Development	
  indicated	
  the	
  need	
  to	
  identify	
  key	
  indicator.	
  	
  This	
  is	
  a	
  topic	
  of	
  ongoing	
   discussion	
  in	
  the	
  weekly	
  meetings	
  DBHDS	
  holds	
  with	
  Delmarva.	
  
§ Scope	
  of	
  Review	
  without	
  Definition	
  of	
  Auditor	
  Qualifications	
  –	
  The	
  audit	
  tools	
   cover	
  a	
  wide	
  variety	
  of	
  topics,	
  including,	
  for	
  example,	
  healthcare	
  and	
  behavioral	
   supports.	
  	
  However,	
  it	
  is	
  unclear	
  who	
  will	
  be	
  assessing	
  these	
  clinically	
  driven	
   indicators.	
  	
  Judgments	
  about	
  behavior	
  support	
  plans,	
  adequate	
  nursing	
  care,	
   sufficient	
  medical	
  supports,	
  etc.	
  would	
  generally	
  require	
  an	
  auditor	
  with	
  specific	
   qualifications.	
  
	
   	
  

	
  

150	
  

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§ Missing	
  Components	
  –	
  Particularly	
  with	
  regard	
  to	
  clinical	
  services,	
  the	
  audit	
  tools	
  do	
   not	
  appear	
  to	
  comprehensively	
  address	
  services	
  and	
  supports	
  to	
  meet	
  individuals’	
   needs.	
  	
  For	
  example,	
  indicators	
  to	
  assess	
  the	
  quality	
  of	
  clinical	
  assessments,	
  as	
  well	
  as	
   service	
  provision,	
  are	
  not	
  evident.	
  
	
   On	
  a	
  positive	
  note,	
  Delmarva	
  has	
  set	
  up	
  a	
  web	
  portal	
  to	
  which	
  key	
  DBHDS	
  staff	
  have	
  access.	
  	
   As	
  individual	
  reviews	
  are	
  completed,	
  Delmarva	
  posts	
  them	
  on	
  the	
  website.	
  	
  This	
  allows	
   DBHDS	
  staff	
  to	
  follow-­‐up	
  as	
  needed.	
  	
  An	
  alert	
  system	
  has	
  been	
  established,	
  so	
  if	
  urgent	
   concerns	
  are	
  noted,	
  DBHDS	
  staff	
  can	
  take	
  immediate	
  action.	
  	
  Thus	
  far,	
  one	
  alert	
  was	
  issued	
   related	
  to	
  abuse/neglect.	
   	
   In	
  summary,	
  since	
  the	
  last	
  review,	
  the	
  Commonwealth	
  has	
  worked	
  steadily	
  to	
  modify	
  the	
   Quality	
  Service	
  Review	
  process	
  to	
  meet	
  the	
  requirements	
  of	
  the	
  Settlement	
  Agreement.	
  	
  The	
   contractor	
  the	
  Commonwealth	
  selected	
  recently	
  began	
  conducting	
  reviews.	
  	
  However,	
   additional	
  work	
  is	
  needed	
  to	
  improve	
  the	
  audit	
  tools	
  the	
  contractor	
  is	
  using.	
  	
  The	
   Commonwealth	
  continues	
  to	
  have	
  access	
  to	
  the	
  important	
  data	
  collected	
  through	
  the	
   National	
  Core	
  Indicator	
  surveys.	
   	
   	
  
CONCLUDING	
  COMMENTS	
   	
   In	
  conclusion,	
  the	
  Commonwealth	
  has	
  made	
  progress	
  with	
  regard	
  to	
  a	
  number	
  of	
  the	
   Settlement	
  Agreement	
  requirements	
  for	
  a	
  Quality	
  and	
  Risk	
  Management	
  system.	
  	
   Since	
  the	
  last	
  review,	
  some	
  of	
  the	
  needed	
  infrastructure	
  has	
  begun	
  to	
  take	
  shape	
  (e.g.,	
  the	
   development	
  of	
  a	
  data	
  warehouse,	
  the	
  completion	
  of	
  training	
  modules	
  and	
  technical	
   assistance	
  to	
  assist	
  in	
  improving	
  providers’	
  risk	
  and	
  quality	
  systems,	
  etc.).	
  	
  There	
  continues	
   to	
  be	
  support	
  within	
  DBHDS	
  for	
  developing	
  a	
  strong	
  quality	
  improvement	
  system.	
  	
  As	
  noted	
   in	
  previous	
  Reports,	
  the	
  system	
  is	
  being	
  built	
  from	
  the	
  ground	
  up	
  and	
  developing	
  the	
   infrastructure	
  for	
  a	
  solid	
  quality	
  improvement	
  system	
  is	
  labor	
  intensive.	
   	
   At	
  this	
  time,	
  however,	
  it	
  is	
  clear	
  that	
  significantly	
  more	
  work	
  is	
  required	
  for	
  substantial	
   compliance	
  to	
  be	
  achieved.	
  	
  A	
  number	
  of	
  challenges	
  remain.	
  	
  Sustained	
  efforts	
  in	
  both	
  the	
   development	
  of	
  the	
  basis	
  for	
  reliable	
  and	
  valid	
  data	
  and	
  in	
  the	
  implementation	
  of	
  staff	
   training	
  are	
  critical	
  to	
  successful	
  change.	
  	
  In	
  addition,	
  an	
  overarching	
  theme	
  continues	
  to	
  be	
   the	
  need	
  to	
  expand	
  the	
  scope	
  of	
  available	
  data	
  in	
  order	
  to	
  allow	
  comprehensive	
  and	
   meaningful	
  quality	
  improvement	
  and	
  risk	
  management	
  initiatives	
  to	
  occur.	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
  

	
  

151	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 152 of 161 PageID# 6654 	
  

Interviews	
  and	
  Documents	
  Reviewed	
  
	
  
Interviews:	
  	
   	
   § Dee	
  Keenan,	
  DBHDS,	
  Assistant	
  Commissioner,	
  QM&D	
   § Peggy	
  Balak,	
  DOJ	
  Settlement	
  Advisor	
   § Adrianne	
  Ferris,	
  Data	
  Steward	
  	
   § Jodi	
  Kuhn,	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator	
   § Carolyn	
  Lankford,	
  QI	
  Specialist	
   § Allen	
  Watts,	
  Director	
  of	
  the	
  Business	
  Analytics	
  Center	
  of	
  Excellence	
   § Marion	
  Greenfield,	
  DBHDS,	
  Director	
  of	
  Risk,	
  Quality,	
  and	
  Health	
  Information	
  
Management	
   § Denise	
  Dunn,	
  DBHDS,	
  Abuse	
  Neglect	
  Investigations	
  Manager	
  and	
  Chief	
  Privacy	
  Officer	
   § Gail	
  Rheinheimer,	
  Director	
  of	
  Provider	
  Development	
   § Challis	
  Smith,	
  Case	
  Manager	
  Coordinator	
   § Jack	
  Barber,	
  MD,	
  Medical	
  Director	
   § Cleopatra	
  Booker,	
  Acting	
  Director	
  of	
  Licensing	
   § Deb	
  Lochart,	
  Director	
  of	
  Human	
  Rights	
   § Susan	
  Rudolph,	
  Regional	
  Quality	
  Council	
  Member	
   § Mary	
  Jane	
  Sufficool,	
  Regional	
  Quality	
  Council	
  Member	
   § Heather	
  Rupe,	
  Regional	
  Quality	
  Council	
  Member	
  
	
  
Documents	
  Reviewed:	
   § 3rd	
  and	
  4th	
  Quarter	
  FY15	
  Regional	
  Support	
  Team	
  Reports	
  for	
  Regional	
  Quality	
  
Councils	
  (RQC)	
  and	
  Quality	
  Improvement	
  Committee	
   § Quality	
  Improvement	
  Committee	
  Minutes	
  and	
  handouts,	
  for	
  7/15/14,	
  10/16/14,	
  
1/15/15,	
  4/16/15,	
  and	
  7/16/15	
   § Sample	
  Regional	
  Quality	
  Council	
  Minutes,	
  and	
  draft	
  minutes	
  for	
  July	
  and	
  August	
  2015	
  
meetings	
   § Handouts	
  for	
  April/May	
  2015	
  RQC	
  meetings	
   § Data	
  Warehouse	
  Enterprise	
  Reports	
  in	
  Production	
  as	
  of	
  9/28/15	
   § DD	
  Waiver	
  Quality	
  Indicators	
   § Draft	
  DelMarva	
  Key	
  Performance	
  Indicators	
  (Criteria)	
  as	
  Related	
  to	
  the	
  Eight	
  
Domains	
   § Developmental	
  Disability	
  Waiver	
  Quality	
  Improvement	
  Strategies:	
  Appendix	
  H,	
  dated	
  
7/1/13	
   § ID	
  Waiver	
  Quality	
  Review	
  Measures:	
  7/1/14	
  –	
  6/30/15	
   § Day	
  Support	
  Waiver	
  Quality	
  Review	
  Measures:	
  	
  7/1/14	
  –	
  6/30/15	
   § Intellectual	
  Disability	
  Waiver	
  Quality	
  Improvement	
  Strategies:	
  Appendix	
  H,	
  dated	
  
7/1/14	
   § Licensing	
  Regulation	
  Compliance	
  sample	
  report,	
  for	
  period	
  6/1/14	
  to	
  5/30/15	
   § Employment	
  Targets,	
  6/26/16	
   § Graphs	
  from	
  January	
  to	
  February	
  2015	
  RQC	
  meetings	
   § Overview	
  of	
  DBHDS’	
  Data	
  Warehouse	
  as	
  a	
  Resource	
  for	
  Eight	
  Domains	
  Measurement,	
  
September	
  2015	
   § Email	
  from	
  Jae	
  Benz,	
  dated	
  10/6/15,	
  regarding	
  Response	
  to	
  VD6	
   § Recommendations	
  from	
  RCQs	
  regarding	
  Employment	
  for	
  the	
  First	
  Quarter	
  2015	
   § RQC	
  Presentation	
  on	
  Employment	
  

	
  

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§ RQC	
  Membership	
  List,	
  dated	
  8/24/15	
   § Training	
  Center	
  and	
  Community	
  Service	
  Board	
  Quality/Risk	
  Management	
  Report:	
  A	
  
Baseline	
  Review	
  of	
  Statewide	
  Quality/Risk	
  Management	
  Programs,	
  dated	
  6/15/15	
   § Waiver	
  Record	
  Review	
  Form	
  –	
  Survey	
  Monkey	
  for	
  FY15	
   § Memo	
  to	
  Private	
  Providers	
  regarding	
  System-­‐wide	
  Quality	
  Improvement,	
  dated	
  
7/10/15	
   § Risk	
  Management	
  Plan	
  Template,	
  with	
  attachments:	
  
o Internal	
  Incident	
  Reporting	
  Form	
   o Organizational	
  Risk	
  Assessment	
  Checklist	
   o Risk	
  Reduction	
  Plan	
   o Risk	
  Reduction	
  Status	
  Plan	
   o Root	
  Cause	
  Analysis	
  Directions	
   o Root	
  Cause	
  Analysis	
  Worksheet	
   o Mortality	
  Review	
  Worksheet	
   § DBHDS	
  Basics	
  of	
  Case	
  Management	
  Training	
  Curriculum	
   § Draft	
  Behavioral	
  Support	
  Competencies	
  for	
  Direct	
  Support	
  Professionals	
  in	
  Virginia	
  
Supporting	
  Individuals	
  with	
  Developmental	
  Disabilities,	
  developed	
  August	
  2015	
   § DBHDS	
  DSP	
  Provider	
  Training	
   § DSP	
  Orientation	
  Manual	
   § ISP	
  Training	
  Packet	
   § ISP	
  Training	
  Slides	
   § Quality	
  Service	
  Reviews	
  presentation,	
  dated	
  9/30/15	
   § DelMarva	
  Contract,	
  effective	
  5/18/15	
   § Delmarva	
  Foundation	
  audit	
  tools:	
  
o Administrative	
  Review	
  Policies	
  and	
  Procedures	
   o ISP	
  QA	
  Checklist	
   o Observation	
  Review	
  Checklist	
   o Provider	
  Record	
  Review	
  Guide	
   o Support	
  Coordinator	
  Record	
  Review	
  Tool	
   § Virginia	
  National	
  Core	
  Indicators	
  Project:	
  2014	
  Adult	
  Family	
  Survey	
  Report	
   § Virginia	
  National	
  Core	
  Indicators	
  Project:	
  2014	
  Child	
  Family	
  Survey	
  Report	
   § Interagency	
  Agreement	
  with	
  Virginia	
  Commonwealth	
  University,	
  effective	
  8/13/15	
   § Memo	
  to	
  CSB	
  Executive	
  Directors	
  and	
  CSB	
  ID	
  Directors	
  from	
  Dee	
  Keenan	
  re:	
  Quality	
  
Service	
  Reviews	
  and	
  National	
  Core	
  Indicators	
  Surveys,	
  dated	
  7/10/15	
   § Example	
  of	
  Statewide	
  CHRIS	
  Summary	
  Report	
   § Draft	
  24-­‐Hour	
  Reporting	
  Action	
  Plan	
  from	
  Licensing	
   § CHRIS	
  Consumer	
  Summary	
  Report	
   § CHRIS	
  Death/Injury	
  by	
  Date	
  Range	
  Reports	
   § Process	
  for	
  Enforcing	
  12VAC35-­‐105-­‐160.C.2	
  24-­‐Hour	
  Reporting	
  Requirement	
   § Memo	
  from	
  Cleopatra	
  Booker	
  to	
  Licensing	
  staff	
  regarding	
  24-­‐hour	
  reporting,	
  dated	
  
8/28/15	
   § Risk	
  Assessment:	
  A	
  Simple	
  Approach	
  for	
  Identifying	
  Risk	
   § High	
  Risk	
  Areas	
  for	
  Provider	
  Focus,	
  dated	
  6/5/15	
   § Risk	
  Management	
  Program	
  Best	
  Practices	
   § Risk	
  Management	
  Review	
  Committee	
  minutes,	
  for	
  meetings	
  on	
  4/2/15,	
  and	
  9/3/15	
  	
   § Risk	
  Triggers	
  and	
  Thresholds	
  Data	
  Summary	
  Providers	
  of	
  Intellectual	
  Disability	
  
Services,	
  dated	
  4/2/15	
  

	
  

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§ Event-­‐Based	
  Individual	
  Triggers	
  and	
  Thresholds	
  

§ Monitoring	
  Risk	
  Using	
  Triggers	
  and	
  Thresholds	
  –	
  Part	
  1	
   § Webinar:	
  Community	
  Abuse/Neglect	
  Investigation	
  Training	
  –	
  Part	
  1	
  and	
  Part	
  2	
  

§ Draft	
  Module	
  3	
  of	
  Community	
  Abuse/Neglect	
  Investigation	
  Training	
  	
  

§ Draft	
  Manual	
  on	
  Community	
  Abuse/Neglect	
  Investigations,	
  including	
  chapters:	
  

o Definitions,	
  Responsibilities,	
  and	
  Reporting	
  Requirements	
  

o Recognition	
  of	
  the	
  Event	
  

o Approach	
  to	
  Investigations:	
  Guidelines	
  for	
  Investigators	
  

o Development	
  and	
  Implementation	
  of	
  an	
  Investigation	
  Plan:	
  Interviews	
  and	
  

Statements	
  

§ Flyer	
  for	
  DBHDS	
  Risk	
  and	
  Quality	
  Management	
  Webinar	
  Series,	
  beginning	
  June	
  22,	
  

2015	
   § Webinar:	
  An	
  Introduction	
  to	
  Root	
  Cause	
  Analysis:	
  Answering	
  the	
  Question	
  “Why?”	
  

§ Root	
  Cause	
  Analysis:	
  Directions	
  for	
  Using	
  the	
  5	
  Whys	
  Approach	
  –	
  Part	
  1	
  and	
  Part	
  2	
  

§ Risk	
  Assessment:	
  A	
  Simple	
  Approach	
  for	
  Identifying	
  Risk,	
  dated	
  8/10/15	
  

§ DBHDS	
  Quality	
  Management	
  Plan,	
  dated	
  3/30/15,	
  revised	
  8/28/15	
  

	
  

	
  

	
  

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State	
  Health	
  Authority	
  Yardstick	
  	
  

Rating	
  Tool	
  

	
  

The	
  State	
  Health	
  Authority	
  Yardstick	
  (SHAY)	
  is	
  a	
  nationally	
  recognized	
  tool	
  developed	
  at	
  

Dartmouth	
  University	
  to	
  review	
  a	
  state’s	
  ability	
  to	
  plan,	
  develop,	
  monitor,	
  and	
  evaluate	
  

Evidence-­‐Based	
  Practices	
  (EBP)	
  regarding	
  systems	
  development	
  and	
  program	
  

implementation.	
  	
  It	
  provides	
  a	
  rating	
  scale	
  to	
  evaluate	
  and	
  determine	
  the	
  adequacy	
  of	
  the	
  

plan.	
  

	
  

1. EBP	
  Plan	
  

The	
  State	
  Mental	
  Health	
  Authority	
  (SMHA)	
  has	
  an	
  EBP	
  plan	
  to	
  address	
  the	
  following:	
  

	
  

Note:	
  The	
  plan	
  does	
  not	
  have	
  to	
  be	
  a	
  written	
  document,	
  or	
  if	
  written,	
  does	
  not	
  have	
  to	
  be	
  a	
  

distinct	
  document,	
  but	
  could	
  be	
  part	
  of	
  the	
  state’s	
  overall	
  strategic	
  plan.	
  	
  However,	
  if	
  not	
  

written	
  the	
  plan	
  must	
  be	
  common	
  knowledge	
  among	
  state	
  employees	
  (e.g.,	
  if	
  several	
  

different	
  staff	
  are	
  asked,	
  they	
  are	
  able	
  to	
  communicate	
  the	
  plan	
  clearly	
  and	
  consistently).	
  

	
  

	
  

1) A	
  defined	
  scope	
  for	
  initial	
  and	
  future	
  implementation	
  efforts;	
  

	
  

2) Strategy	
  for	
  outreach,	
  education,	
  and	
  consensus	
  building	
  among	
  providers	
  

and	
  other	
  stakeholders;	
  

	
  

3) Identification	
  of	
  partners	
  and	
  community	
  champions;	
  

	
  

4) Sources	
  of	
  funding;	
  

X	
  

5) Training	
  resources;	
  

	
  

6) Identification	
  of	
  policy	
  and	
  regulatory	
  levers	
  to	
  support	
  EBP;	
  

	
  

7) Role	
  of	
  other	
  state	
  agencies	
  in	
  supporting	
  and/or	
  implementing	
  the	
  EBP;	
  

	
  

8) Defines	
  how	
  EBP	
  interfaces	
  with	
  other	
  SMHA	
  priorities	
  and	
  supports	
  SMHA	
  

mission;	
  

	
  

9) Evaluation	
  for	
  implementation	
  and	
  outcomes	
  of	
  the	
  EBP;	
  and	
  

	
  

10) The	
  plan	
  is	
  a	
  written	
  document,	
  endorsed	
  by	
  the	
  SMHA.	
  

	
  

Score	
  

	
  

1) No	
  planning	
  activities	
  

X	
  

2) 1	
  –	
  three	
  components	
  of	
  planning	
  

	
  

3) 4	
  –	
  6	
  components	
  of	
  planning	
  

	
  

4) 7	
  –	
  9	
  components	
  

	
  

5) 10	
  components	
  

	
  

Evidence	
  Used	
  to	
  Justify	
  Rating:	
  

	
  

Pieces	
  of	
  a	
  plan	
  were	
  in	
  place,	
  and	
  as	
  discussed	
  in	
  detail	
  in	
  the	
  body	
  of	
  the	
  Report,	
  clearly	
  

planning	
  had	
  occurred	
  for	
  the	
  initial	
  phases	
  of	
  the	
  implementation	
  of	
  all	
  of	
  the	
  components	
  

of	
  the	
  quality	
  improvement	
  and	
  risk	
  management	
  components	
  included	
  in	
  this	
  review.	
  	
  

However,	
  many	
  of	
  the	
  future	
  implementation	
  efforts	
  remained	
  in	
  the	
  development	
  and	
  

	
  

155	
  

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planning	
  stages,	
  and	
  based	
  on	
  discussions	
  with	
  staff,	
  some	
  of	
  these	
  specific	
  plans	
  were	
  being	
  

implemented,	
  and	
  for	
  others,	
  more	
  planning	
  was	
  needed.	
  

	
  

Planning	
  certainly	
  was	
  occurring,	
  but	
  further	
  development	
  was	
  needed.	
  	
  This	
  was	
  to	
  be	
  

expected	
  in	
  a	
  system	
  that	
  had	
  only	
  some	
  pieces	
  of	
  a	
  quality	
  assurance/improvement	
  system	
  

in	
  place	
  when	
  the	
  Settlement	
  Agreement	
  was	
  approved.	
  

	
  

4.	
  	
  Training:	
  Ongoing	
  consultation	
  and	
  technical	
  support	
  

Is	
  there	
  ongoing	
  training,	
  supervision	
  and	
  consultation	
  for	
  the	
  program	
  leader	
  and	
  clinical	
  

staff	
  to	
  support	
  implementation	
  of	
  the	
  EBP	
  and	
  clinical	
  skills?	
  

	
  

Note:	
  If	
  there	
  is	
  variability	
  among	
  sites,	
  then	
  calculate/estimate	
  the	
  average	
  visits	
  per	
  site.	
  

	
  

1) Initial	
  didactic	
  training	
  in	
  the	
  EBP	
  provided	
  to	
  clinicians	
  (e.g.,	
  one	
  to	
  five	
  days	
  

intensive	
  training);	
  

	
   2) Initial	
  agency	
  consultation	
  re:	
  implementation	
  strategies,	
  policies	
  and	
  

procedures,	
  etc.	
  	
  (e.g.,	
  one	
  –	
  three	
  meetings	
  with	
  leadership	
  prior	
  to	
  

implementation	
  or	
  during	
  initial	
  training);	
  

	
   3) Ongoing	
  training	
  for	
  practitioners	
  to	
  reinforce	
  application	
  of	
  EBP	
  and	
  address	
  

emergent	
  practice	
  difficulties	
  until	
  they	
  are	
  competent	
  in	
  the	
  practice	
  

(minimum	
  of	
  three	
  months,	
  e.g.,	
  monthly	
  x	
  12	
  months);	
  

	
   4) On	
  site	
  supervision	
  for	
  practitioners,	
  including	
  observation	
  of	
  trainees’	
  

clinical	
  work	
  and	
  routines	
  in	
  their	
  work	
  setting,	
  and	
  feedback	
  on	
  practice.	
  	
  

Videoconferencing	
  that	
  includes	
  clients	
  can	
  substitute	
  for	
  onsite	
  work	
  

(minimum	
  of	
  three	
  supervision	
  meetings	
  or	
  sessions	
  for	
  each	
  trainee,	
  e.g.,	
  

monthly	
  x	
  12	
  months);	
  and	
  

	
   5) Ongoing	
  administrative	
  consultation	
  for	
  program	
  administrators	
  until	
  the	
  

practice	
  is	
  incorporated	
  into	
  routine	
  workflow,	
  policies	
  and	
  procedures	
  at	
  the	
  

agency	
  (minimum	
  of	
  three	
  months,	
  e.g.,	
  monthly	
  x	
  12	
  months).	
  

	
  

Score	
  

X	
  

1) 0-­‐1	
  components	
  

	
   2) 2	
  components	
  

	
   3) 3	
  components	
  

	
   4) 4	
  components	
  

	
   5) 5	
  components	
  

	
  

Evidence	
  Used	
  to	
  Justify	
  Rating:	
  

	
  

As	
  noted	
  in	
  the	
  body	
  of	
  this	
  Report,	
  the	
  development	
  and	
  implementation	
  of	
  training	
  

components	
  necessary	
  for	
  successful	
  implementation	
  of	
  the	
  Settlement	
  Agreement	
  (e.g.,	
  

investigations	
  training,	
  etc.)	
  remained	
  in	
  the	
  planning	
  or	
  early	
  implementation	
  stages.	
  

	
  

	
  

	
  

	
  

	
  

	
  

156	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 157 of 161 PageID# 6659 	
  

	
  

	
  

	
  

9.	
  	
  SMHA	
  Leadership:	
  Central	
  Office	
  EBP	
  Leader	
  

There	
  is	
  an	
  identified	
  EBP	
  leader	
  (or	
  coordinating	
  team)	
  that	
  is	
  characterized	
  by	
  the	
  

following:	
  

	
  

X	
  

1) EBP	
  leader	
  has	
  adequate	
  dedicated	
  time	
  for	
  EBP	
  implementation	
  (minimum	
  

10%),	
  and	
  time	
  is	
  protected	
  from	
  distractions,	
  conflicting	
  priorities,	
  and	
  

crises;	
  

X	
  

2) There	
  is	
  evidence	
  that	
  the	
  EBP	
  leader	
  has	
  necessary	
  authority	
  to	
  run	
  the	
  

implementation;	
  

X	
  

3) There	
  is	
  evidence	
  that	
  EBP	
  leader	
  has	
  good	
  relationships	
  with	
  community	
  

programs;	
  and	
  

X	
  

4) Is	
  viewed	
  as	
  an	
  effective	
  leader	
  (influence,	
  authority,	
  persistence,	
  knows	
  how	
  

to	
  get	
  things	
  done)	
  for	
  the	
  EBP,	
  and	
  can	
  cite	
  examples	
  of	
  overcoming	
  

implementation	
  barriers	
  or	
  establishing	
  new	
  EBP	
  supports.	
  

	
  

Score:	
  

	
   1) No	
  EBP	
  leader	
  

	
   2) 1	
  component	
  

	
   3) 2	
  components	
  

	
   4) 3	
  components	
  

X	
  

5) All	
  4	
  components	
  

	
  

Evidence	
  Used	
  to	
  Justify	
  Rating:	
  

	
  

At	
  the	
  time	
  of	
  the	
  review,	
  the	
  DBHDS	
  Assistant	
  Commissioner	
  of	
  QM&D	
  had	
  been	
  in	
  her	
  

position	
  for	
  approximately	
  a	
  year,	
  but	
  had	
  worked	
  in	
  the	
  intellectual/developmental	
  system	
  

in	
  the	
  community	
  for	
  years.	
  	
  As	
  the	
  former	
  Director	
  of	
  Case	
  Management,	
  she	
  had	
  developed	
  

important	
  relationships	
  with	
  many	
  stakeholders.	
  

	
  

The	
  DBHDS	
  Assistant	
  Commissioner	
  of	
  QM&D	
  had	
  oversight	
  of	
  the	
  various	
  components	
  of	
  

quality	
  improvement	
  efforts.	
  	
  Her	
  full-­‐time	
  responsibilities	
  related	
  to	
  these	
  implementation	
  

efforts.	
  	
  She	
  appeared	
  to	
  be	
  well	
  respected	
  by	
  team	
  members.	
  	
  	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

157	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 158 of 161 PageID# 6660 	
  

	
  

	
  

	
  

11.	
  	
  Policies	
  and	
  Regulations:	
  SMHA	
  

The	
  SMHA	
  has	
  reviewed	
  its	
  own	
  regulations,	
  policies	
  and	
  procedures	
  to	
  identify	
  and	
  remove	
  

or	
  mitigate	
  any	
  barriers	
  to	
  EBP	
  implementation,	
  and	
  has	
  introduced	
  new	
  key	
  regulations	
  as	
  

necessary	
  to	
  support	
  and	
  promote	
  the	
  EBP.	
  

	
  

Score:	
  

	
   1) Virtually	
  all	
  policies	
  and	
  regulations	
  impacting	
  the	
  EBP	
  act	
  as	
  barriers;	
  

X	
  

2) On	
  balance,	
  policies	
  that	
  create	
  barriers	
  outweigh	
  policies	
  that	
  

support/promote	
  the	
  EBP;	
  

	
   3) Policies	
  that	
  support/promote	
  the	
  EBP	
  are	
  approximately	
  equally	
  balanced	
  

by	
  policies	
  that	
  create	
  barriers;	
  

	
   4) On	
  balance,	
  policies	
  that	
  support/promote	
  the	
  EBP	
  outweigh	
  policies	
  that	
  

create	
  barriers;	
  and	
  

	
   5) Virtually	
  all	
  policies	
  and	
  regulations	
  impacting	
  the	
  EBP	
  support/promote	
  the	
  

EBP.	
  

	
  

	
  

Evidence	
  Used	
  to	
  Justify	
  Rating:	
  

	
  

Although	
  the	
  policies/regulations	
  in	
  place	
  provided	
  some	
  of	
  the	
  basic	
  structures	
  necessary	
  

to	
  implement	
  quality	
  improvement	
  efforts	
  (e.g.,	
  providers	
  were	
  required	
  to	
  report	
  some	
  

incidents,	
  conduct	
  investigations,	
  etc.),	
  as	
  detailed	
  in	
  the	
  body	
  of	
  this	
  Report,	
  current	
  

regulations	
  did	
  not	
  support	
  full	
  implementation	
  of	
  the	
  requirements	
  of	
  the	
  Settlement	
  

Agreement.	
  	
  Examples	
  in	
  the	
  previous	
  Report	
  remain	
  relevant.	
  

	
  

12.	
  	
  Policies	
  and	
  Regulations:	
  SMHA	
  EBP	
  Program	
  Standards	
  

The	
  SMHA	
  has	
  developed	
  and	
  implemented	
  EBP	
  standards	
  consistent	
  with	
  the	
  EBP	
  model	
  

with	
  the	
  following	
  components:	
  

	
  

	
  

1) Explicit	
  EBP	
  program	
  standards	
  and	
  expectations,	
  consonant	
  with	
  all	
  EBP	
  

principles	
  and	
  fidelity	
  components,	
  for	
  delivery	
  of	
  EBP	
  services.	
  	
  (Note:	
  

fidelity	
  scale	
  may	
  be	
  considered	
  EBP	
  program	
  standards,	
  e.g.,	
  contract	
  

requires	
  fidelity	
  assessment	
  with	
  performance	
  expectation);	
  

X	
  

2) SMHA	
  has	
  incorporated	
  EBP	
  standards	
  into	
  contracts,	
  criteria	
  for	
  grant	
  

awards,	
  licensing,	
  certification,	
  accreditation	
  processes	
  and/or	
  other	
  

mechanisms;	
  

	
  

3) Monitors	
  whether	
  EBP	
  standards	
  have	
  been	
  met;	
  and	
  

X	
  

4) Defines	
  explicit	
  consequences	
  if	
  EBP	
  standards	
  not	
  met	
  (e.g.,	
  contracts	
  

require	
  delivery	
  of	
  model	
  supported	
  employment	
  services;	
  contract	
  penalties	
  

or	
  non-­‐renewal	
  if	
  standards	
  not	
  met;	
  or	
  licensing/accreditation	
  standards	
  if	
  

not	
  met	
  result	
  in	
  consequences	
  for	
  program	
  license).	
  

	
  

	
  

	
  

158	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 159 of 161 PageID# 6661 	
  

	
  

	
  

	
  

Score:	
   	
  

Not	
  Rated	
  

	
  

1) No	
  components	
  (e.g.,	
  no	
  standards	
  and	
  not	
  using	
  available	
  mechanisms	
  at	
  this	
  

time)	
  

	
  

2) 1	
  component	
  

X	
  

3) 2	
  components	
  

	
  

4) 3	
  components	
  

	
  

5) 4	
  components	
  

	
  

Evidence	
  Used	
  to	
  Justify	
  Rating:	
  

	
  

Based	
  on	
  review	
  of	
  the	
  CSB	
  contract,	
  requirements	
  were	
  included	
  in	
  relation	
  to	
  quality	
  

improvement	
  efforts.	
  	
  At	
  this	
  juncture,	
  formal	
  assessment	
  of	
  adherence	
  to	
  the	
  requirements	
  

was	
  not	
  occurring,	
  but	
  the	
  intent	
  appeared	
  to	
  be	
  to	
  incorporate	
  such	
  assessment	
  in	
  future	
  

licensing	
  activities,	
  as	
  well	
  as	
  in	
  less	
  formal	
  review	
  of	
  CSBs.

	
  

159	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 160 of 161 PageID# 6662 	
  
APPENDIX E. LIST OF ACRONYMS

AR AT CAP CHRIS CIL CIM CIT CM CMS CRC CSB CSB ES CTH CVTC DARS DD DSPs DMAS DBHDS DOJ DS ECM EDCD EPSDT ESO FRC GH GSE HCBS HPR HR/OHR ICF ID IFDDS IFSP IR ISE ISP LIHTC MRC NVTC

Authorized Representative Assistive Technology Corrective Action Plan Computerized Human Rights Information System Center for Independent Living Community Integration Managers Crisis Intervention Training Case Manager Center for Medicaid Services Community Resource Consultants Community Services Board Community Services Board Emergency Services Crisis Therapeutic Home Central Virginia Training Center Department of Rehabilitation and Aging Services Developmental Disabilities Direct Support Professions Department of Medical Assistance Services Department of Behavioral Health and Developmental Services Department of Justice, United States Day Support Services Enhanced Case Management Elderly or Disabled with Consumer Directed Services Early and Periodic Screening Diagnosis and Treatment Employment Service Organization Family Resource Consultant Group Home Group Supported Employment Home and Community Based Services Health Planning Region Office of Human Rights Intermediate Care Facility Intellectual Disabilities Individual and Family Developmental Disabilities Supports Individual and Family Support Program Independent Reviewer Individual Supported Employment Individual Supports Plan Low Income Housing Tax Credit Mortality Review Committee Northern Virginia Training Center

	
  

160	
  

Case 3:12-cv-00059-JAG Document 204 Filed 12/06/15 Page 161 of 161 PageID# 6663 	
  

ODS OLS PCP POC PMM PST QI QIC QSR RAC REACH RST RQC SA SC SELN AG SEVTC SIS SW SRH START SVTC SWVTC TC WDAC

Office of Developmental Services Office of Licensure Services Primary Care Physician Plan of Care Post-Move Monitoring Personal Support Team Quality Improvement Quality Improvement Committee Quality Service Reviews Regional Advisory Council for REACH Regional Education, Assessment, Crisis Services, Habilitation Regional Support Team Regional Quality Council Settlement Agreement US v. VA 3:12 CV 059 Support Coordinator Supported Employment Leadership Network, Advisory Group Southeastern Virginia Training Center Supports Intensity Scale Sheltered Work Sponsored Residential Home Systemic Therapeutic Assessment Respite and Treatment Southside Virginia Training Center Southwestern Virginia Training Center Training Center Waiver Design Advisory Group

	
  

	
  

161	
  

 </s> Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 1 of 212 PageID# 6691
REPORT OF THE INDEPENDENT REVIEWER
 ON COMPLIANCE
 WITH THE

SETTLEMENT AGREEMENT
 UNITED STATES v. COMMONWEALTH OF VIRGINIA

United States District Court for
 Eastern District of Virginia

Civil Action No. 3:12 CV 059
 October 7, 2015 - April 6, 2016

Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
June 6, 2016

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 2 of 212 PageID# 6692
TABLE OF CONTENTS

I. EXECUTIVE SUMMARY…………………………….………………………………3
II. SUMMARY OF COMPLIANCE: ……………………………..……………………..8

Section III. Serving Individuals with ID/DD in the most integrated settings........8
 Section IV. Discharge Planning and Transition from Training Centers…...........20
 Section V. Quality and Risk Management………...……………………..……..28
 Section VI. Independent Reviewer……………………………….....…..……….35
 Section IX. Implementation……………………………………………………...35

III. DISCUSSION OF COMPLIANCE FINDINGS……………………………………36
A. Methodology……………………………………………………………….…36 B. Compliance Findings………………………………………………………....37

1. Providing Waivers……………………………………………….37 2. Transition of Children from Nursing Homes and Large ICFs ………..39
 3. Individual and Family Support Program…………………….……..43
 4. Case Management……………………………………………….46 5. Crisis Services……………………………………………….......52
 6. Behavioral Capacity……………………………………………..59
 7. Integrated Day Opportunities / Supported Employment……………..61
 8. Independent Living Options………………………………………67 9. Licensing and Investigations………..…….………………………69 IV. CONCLUSION……………………………………………………………………….73
V RECOMMENDATIONS…………………………………………………………….75
VI. APPENDICES……………………………………………………....………………..78

A. Individual Review Study………………………………………………..79
 B. Individual and Family Support Program……………………………….89 C. Case Management……………………...……………………………. 108
 D. Crisis Services………………………………………………….……. 128
 E. Integrated Day Activities and Supported Employment………………166 F. Independent Housing…………………………………………………196 G. Licensing and Investigations…………………………………………..199
 H. List of Acronyms……………….……………………………….……..211


!

ii
!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 3 of 212 PageID# 6693
!
I. EXECUTIVE SUMMARY

This is the Independent Reviewer’s eighth report on the status of compliance with the Settlement Agreement (Agreement) between the parties to the Agreement: the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This report documents and discusses the Commonwealth’s efforts and the status of its progress and compliance during the review period from October 7, 2015 to April 6, 2016.
The Independent Reviewer has previously described how the Commonwealth’s Home and Community-Based Services (HCBS) waiver programs and its regulations impede compliance with the Agreement. For more than three years, the Commonwealth’s primary strategy to come into compliance has been to redesign its HCBS waiver programs. The Commonwealth’s goals for the redesign are “to provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” During this review period, Virginia’s General Assembly approved, the redesign and most of the funds sought for its implementation. This represents a positive and essential step in the Commonwealth’s strategy. The Commonwealth also recognizes that it must revise its regulations to achieve compliance. These revisions, however, have not yet occurred.
Now, the Commonwealth can move forward with the next phase of its strategy to come into compliance: implementation of the redesigned HCBS waiver programs. Orchestrating the implementation is a very complex undertaking. Successful efforts will involve the coordination of multiple state agencies, hundreds of service providers and case managers, and thousands of individuals and families who depend on waiver-funded services for their every day well-being.
It is the considered opinion of the Independent Reviewer that the Commonwealth must develop significant new provider capacity to achieve its goals and compliance. It now has far too few service providers and qualified professionals with the expertise and experience to provide services to all individuals with intense needs or with Autism Spectrum Disorders or to provide services in integrated settings.
Since 2012, many of the Commonwealth’s service providers have been engaged in implementing Agreement’s provisions. These providers have made essential contributions to positive outcomes for members of the target population. During the interviews conducted throughout this review period, however, stakeholders at all levels and in all geographic areas, identified the lack of adequate provider capacity as a major concern.
The existing HCBS waiver programs created financial incentives to provide services for more individuals in larger congregate settings. Sufficient payment rates have not been available to provide community-based services for individuals with intense service needs or for individuals who live in their own homes or family homes. For example, low payment rates have resulted in too few nurses with the experience and expertise to meet the needs of all the children and adults with ID/DD waiver-funded services. To develop community-based services for individuals with intense needs who transition from Training Centers to live in the community, DBHDS has developed interim stopgap measures, “bridge funds” and “exceptional rate” allowances, to supplement the inadequate HCBS waiver payment rates. The lack of adequate provider capacity, however, remains a major impediment to the development of the services and supports, and the systems that are needed by

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 4 of 212 PageID# 6694
! Virginians and that are required by the Agreement and by the Center for Medicare and Medicaid Services’ (CMS) “final rule” which governs HCBS waiver programs.

The Commonwealth has begun several initiatives to increase provider capacity. It successfully utilized a Request for Proposal (RFP) process to solicit bids and competition to develop new homes for four or fewer disabled housemates who transitioned from living in Training Centers. Other Commonwealth initiatives include:

! supporting the conversion of day support programs in segregated congregate centers to
integrated community activities; ! developing more integrated residential and day activities options and building additional
behavioral support capacity in southwest Virginia for at least sixty individual, and ! expanding the number of qualified behavioral support professional staff in several areas of the
Commonwealth and on the REACH crisis services teams.

These are very positive initiatives. However, the Independent Reviewer has concluded that the
 currently planned initiatives should be considered only initial steps toward meeting the need. During
 interviews, program staff and their managers, as well as case managers and their supervisors,
 concurred that much more provider capacity is needed. From the Independent Reviewer’s own
 professional experience, a strong provider system is the key element in the development of support
 services that meet the needs of individuals who live in their own or family homes.


During this review period, the individual services review exploratory study found that children with
 ID/DD are being raised in medical facilities rather than in the most integrated settings appropriate
 to meet their needs. These children rarely experience interactions with typical children of their age. 
 The study found that institutional settings typically plan to discharge the children when the
 institutions will no longer be paid to support them rather than when they are ready for discharge to 
 a more appropriate community-based setting.


The implementation of the Commonwealth’s redesigned HCBS waiver programs is the first major
 restructuring of the service system since Virginia joined the CMS program in the early 1990s. The 
 redesign of the HCBS waiver programs has included changes to:


! eligibility criteria, 
 ! service definitions and expectations, 
 ! payment rates, 
 ! service limits, and 
 ! cost caps. 


Management of the transitions required by the redesigned waiver programs will involve the
 coordination of many elements of the system undergoing simultaneous change. Service providers
 will restructure their program and business models to work effectively under the redesigned waiver
 programs. The DBHDS and DMAS managers of the HCBS waiver programs will restructure
 administrative and data management processes. Administrative changes will occur in record 
 keeping, program documentation and reporting, data management, billing and computer systems. 


Case managers, the hub of the system for individuals and families, will be at the center of many of 
 the changes. They will need to develop new expertise and knowledge to incorporate these changes


!

4!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 5 of 212 PageID# 6695
! into discussions and service planning with individuals, their families and services providers. There is a broad consensus that a major investment in building the knowledge and expertise of case managers is critical. For example, to offer independent community living options, case managers will require new or expanded knowledge and understanding of the local housing market, the landlords who are willing to partner, and the service providers who can arrange for dependable wrap-around services for individuals who will live in their own homes.

Some of Virginia’s service providers are already involved in major change initiatives. These initiatives include the development of a statewide crisis service system for children and adults; the expansion of supported employment opportunities; the creation of integrated day programs; the development of capacity to serve more individuals with intense needs; and the provision of wraparound services to support individuals with ID/DD who live in their own of their family homes.

Service providers will not only change program and business models, they will also change the human resource policies and practices required to deliver such models. Staff training, staff supervision, staff turnover, emergency back-up, and quality assurance will take on more critical dimensions when the individuals served live in sites throughout a community, rather than in clustered group settings.

The Commonwealth’s redesigned waiver programs and improved payment rates will encourage and facilitate changes. These transitions, however, will take time. They also will involve identifying and resolving the obstacles, and the inevitable unanticipated consequences, that result when complex systems are modified.
It is the Independent Reviewer’s considered opinion that a well functioning quality improvement program is essential for every program and for every service during periods of significant change. Through quality improvement programs program and service managers monitor whether the implementation of planned change achieves the desired results. If not, in the next phase of the quality improvement program cycle managers decide what additional steps are needed to achieve the desired outcomes. Through quality improvement program managers identify obstacles early in the change process, determine how to address and resolve them, continue to monitor results, implement refinements, and enforce needed corrective actions.
At the regional and state levels, an effective Quality and Risk Management system is always important, but is especially so during periods of significant change. The Commonwealth continues to build its Quality and Risk Management system. It has taken a major step forward by creating its Data Warehouse. This is a connect-the-dots system. It allows information from disparate sources to be merged and analyzed. The data reports that now are possible provide the Commonwealth with improved ability to identify trends and patterns by service type, by provider, and by Region. The overall effort to build an effective Quality and Risk Management system at DBHDS, however, continues to be impeded by its regulations. The Commonwealth reports that it has drafted revisions and is reviewing them now to ensure that the revised regulations will allow the Commonwealth to comply with the requirements of the Agreement.

During this review period, the Commonwealth and DOJ have successfully negotiated outcometimelines for several categories of provisions of the Agreement, which lacked specificity, due dates and measurable outcomes. The categories are: Integrated Day Activities and Supported Employment and Crisis Services for Children and Adults. The parties are currently negotiating

!

5!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 6 of 212 PageID# 6696
! outcome timelines for Quality, Individuals in Nursing Facilities and ICFs, Individuals with Complex Medical and Behavioral Needs, and Integrated Housing Options.
During the eighth review period, it was determined that the Commonwealth has not made significant progress on the Agreement’s provisions related to providing more integrated day and residential programs for individuals in the community. However, the Commonwealth’s staff and stakeholders have engaged in concerted and collaborative efforts. They have planned and implemented initiatives and made important progress in several areas.
During this review period, the Commonwealth:
! improved real time reporting of incidents; ! provided rental subsidies to allow many more individuals to live in their own apartments; ! established a data warehouse, a foundational element in its quality management system; ! reached out to individuals with DD, other than ID, to help connect them to crisis services; ! made significant progress developing a crisis service system for children; and ! collected reliable point-in-time data for all individuals with ID/DD in supported
employment.
These successes have not all resulted in determinations of compliance, but they are accomplishments of key milestones. Significantly, between October 13, 2011 and April 11, 2016, the Commonwealth helped 552 individuals transition to live in the community from its Training Centers. The census of the Training Centers decreased during this period to 376 residents.
In summary, during the eighth review period, the Independent Reviewer determined the Commonwealth to be in compliance, substantial compliance or non-compliance with the provisions listed below.
Maintained Ratings of Compliance:
! created HCBS waiver slots; 
 ! increased frequency of case management and licensing oversight; 
 ! implemented discharge planning and transition services for individuals residing in Training

Centers; ! developed elements of a statewide crisis services system for adults with intellectual and
developmental disabilities; ! responded on-site and on time to crises (mobile crisis teams); ! developed and updated Virginia’s Plan to increase Independent Living; and ! offered choices of service providers.
Gained Ratings of Compliance:
! providers reported incidents within 24 hours;
 ! improved employment data collection; 
 ! Regional Quality Councils reviewed employment targets; and
 ! facilitated increased access to subsidized independent living options.


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Lost Rating of Substantial Compliance:
! inadequate community-based capacity to support individuals with intense behavioral needs ! stays in each Region’s crisis stabilization program in excess of 30 days are not allowed
Retained Ratings of Non-Compliance:
! insufficient opportunities for individuals with ID/DD to live in most integrated settings; ! lack of discharge and transition plans for children to move from nursing facilities and large
ICFs to community homes; ! lack of a statewide crisis service system for children and adolescents; ! lack of effective in-home mobile crisis supports; ! lack of integrated day activities and supported employment; ! insufficient number of subsidized community living opportunities; and ! an individual support planning process that is inadequately focused on helping individuals to
learn new skills, to become more self-sufficient, and to become more integrated into their communities.
The following “Summary of Compliance” table provides a rating of compliance and an explanatory comment for each provision. The “Discussion of Compliance Findings” section includes additional information to explain the compliance ratings, as do the consultant reports, which are included in the Appendix. The Independent Reviewer’s recommendations are included at the end of this report.
During the next review period, the Independent Reviewer will prioritize monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: Quality and Risk Management provisions (other than the case management, licensing, and provider training provisions); Supported Employment; Regional Support Teams; Safety in the Community; Mortality Review; and an Individual Services Review study of individuals discharged from Training Centers during Fiscal Year 2016 to live in community-based homes in Regions I, II and III.
Throughout the recent review period, the Commonwealth’s staff have been accessible, forthright, and responsive. Attorneys from the Department of Justice gathered information that has been helpful to effective implementation of the Agreement. They continue to work collaboratively with the Commonwealth in negotiating outcomes and timelines for achieving the provisions of the Agreement. Overall, the willingness of both parties to openly and regularly discuss implementation issues and any concerns about progress towards shared goals has been important and productive. The involvement and contributions of the advocates and other stakeholders has been vitally important to the progress that the Commonwealth has made; their meaningful participation will continue to be critically necessary. The Independent Reviewer greatly appreciates the assistance that was generously given by the individuals at the center of this Agreement and their families, their case managers and their service providers. They produced documents, helped to arrange interviews with staff and family members, and facilitated site visits to homes and programs.

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II. SUMMARY OF COMPLIANCE

Settlement Agreement Reference
III
III.C.1.a.i-v
III.C.1.b.i-v

Provision

Rating

Serving Individuals with Developmental Disabilities In the
Most Integrated Setting

Compliance ratings for the fifth, sixth, and seventh review periods are presented as:
6th period 7th period
8th period

The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the target population in the Training Centers to transition to the community …

Compliance Compliance

Compliance

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community, individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 275 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

Non Compliance
Non Compliance
Non Compliance

Comments
Comments include examples to explain the ratings and status. The Findings Section and attached consultant reports include additional explanatory information. The Commonwealth created 555 waiver slots during FY 2012 -2016, the minimum number required for individuals to transition from Training Centers. An additional 90 waiver slots, the minimum required for FY 2017, have been funded and await certification.
The Commonwealth created 1500 waiver slots between FY 2012 and FY 2016, 250 more than the1250 required. An additional 300 slots, the minimum required for FY 2017, await certification. This meets the quantitative requirements of this provision. Its plan to transition children living in nursing facilities will be evident in the spring of 2017.

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Settlement Agreement Reference
III.C.1.c.i-v

Provision
The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs

III.C.2.a-b

The Commonwealth shall create an Individual and Family Support Program (IFSP) for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2015, a minimum of 1000 individuals will be supported.

III.C.5.a

The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

III.C.5.b.
III.C.5.b.i.
! ! !

For the purpose of this agreement, case management shall mean:
Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance

The Commonwealth created 600 waiver slots between FY 2012 and FY 2016 for individuals with DD, other than ID, 350 more than required. 275 slots, 250 more than the minimum required for FY 2017, await certification. The Commonwealth expects that results from implementing its plan to transition children living in nursing facilities will be evident in the tenth period. The Commonwealth met the quantitative requirement by supporting 2,084 individuals in FY 2016. The Commonwealth is redesigning its current IFSP, in part, because it does not include a comprehensive and coordinated set of strategies. � 25 (100%) of the individuals reviewed in the case management study had case managers and had current Individual Support Plans. DBHDS reports that 88-89% of individuals received case management services.

Non Compliance
Non Compliance
Non Compliance

The substantive changes in the ISP process and the training of case managers have resulted in progress. The case management study, however, found a high
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Settlement Agreement Reference

Provision
are individualized, person-centered, and meet the individual’s needs.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

Monitoring the ISP to make timely additional referrals, service changes, and amendments III.C.5.b.iii to the plans as needed.

III.C.5.c

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

level of discrepancies in 2 (50%) of the 4 CSBs studied. DBHDS monitoring confirms that 1 (25%) of the 4 CSBs has consistently performed below expected standards. See comment immediately above.

Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance

See comment regarding III.C.5.b.i.
The Independent Reviewer did not find evidence that case managers provided direct services, other than case management. The required term is included in the “FY 2016 CSB Performance Contract.” The case management study found that case managers had offered choices of providers.

The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
III.C.5.d

Non Compliance
Non Compliance
Non Compliance

The DBHDS regulations and licensing monitoring protocols do not align with the Agreement’s requirements. The Commonwealth’s monitoring reviews have not identified discrepancies that were found during the case management study.

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Settlement Agreement Reference

Provision
The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall:

i. Provide timely and accessible support …

ii. Provide services focused on crisis III.C.6.a.i-iii prevention and proactive planning …
iii. Provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual …

III.C.6.b.i.A

The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

III.C.6.b.i.B

By June 30, 2012, the Commonwealth shall train CSB Emergency Services (ES) personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely assessment, services, support, and treatment to de-escalate crises without removing III.C.6.b.ii.A. individuals from their current placement whenever possible.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Non
Compliance Non
Compliance

The Commonwealth has developed the required elements of a crisis system for adults with ID/DD. DBHDS is still developing its statewide children’s crisis system. Additional funds are available in FY 2017. New initiatives to further improve crisis services will occur during the next six months. DBHDS expects to achieve compliance for children’s crisis services in the tenth review period. CSB Emergency Services are utilized for adults with ID/DD. REACH hotlines are operated 24 hours per day, 7 days per week for adults with ID/DD. REACH continues to train CSB ES staff. DBHDS has developed a standardized curriculum. New ES staff and case managers were required to be trained. Now all such staff are so required. The Commonwealth’s training program was previously found to be inadequate for team members to respond with effective assessments or good quality in-home supports in many cases. DBHDS has not provided information that demonstrates compliance.

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Settlement Agreement Reference
III.C.6.b.ii.B

Provision
Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.
III.C.6.b.ii.C

Mobile crisis teams shall be available 24 hours per day, 7 days per week and to III.C.6.b.ii.D respond on-site to crises.

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

III.C.6.b.ii.G

By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.

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Rating

Comments

(Compliance Non
Compliance Non
Compliance
Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Compliance
Compliance
Non Compliance Compliance
Compliance

REACH programs did not provide effective prevention plans, treatment strategies, or in-home supports. Although DBHDS now requires crisis prevention plans to be completed for every individual referred, these are not being completed consistently. During the review period, REACH trained law enforcement personnel in all five Regions. In total, 395 police were trained during the eighth review period. This is an increase over the 339 and 224 trained during the sixth and seventh periods. DBHDS is contracting with an Autism organization to train police during the next period. REACH Mobile crisis teams are available around the clock and respond at off-hours adults with ID/DD. All Regions provided adults with ID/DD with more than an average of three days in-home support services during the second half of the review period. The Commonwealth did not create new teams. Instead, it added staff to the existing REACH crisis teams, which achieved responses within the required time for � 529 (95.7%) of 553
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Settlement Agreement Reference

Provision

By June 30, 2014, the Commonwealth shall

have a sufficient number of mobile crisis

teams in each Region to respond on site to

III.C.6.b.ii.H

crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as

measured by the average annual response

time.

Crisis Stabilization programs offer a short-

term alternative to institutionalization or

III.C.6.b.iii.A.

hospitalization for individuals who need inpatient stabilization services

Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first III.C.6.b.iii.B. attempted to resolve the crisis to avoid an out-of-home placement and, if that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement.
Crisis stabilization programs shall have no more than six beds and lengths of stay shall III.C.6.b.iii.D. not exceed 30 days.

With the exception of the Pathways Program

at SWVTC … crisis stabilization programs

shall not be located on the grounds of the

Training Centers or hospitals with inpatient

III.C.6.b.iii.E.

psychiatric beds. By July 1, 2015, the Pathways Program at SWVTC will cease

providing crisis stabilization services and shall

be replaced by off-site crisis stabilization

programs with sufficient capacity to meet the

needs of the target population in that Region.

By June 30, 2012, the Commonwealth shall

develop one crisis stabilization program in

III.C.6.b.iii.F. each Region.

Rating

Comments

Non Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Substantial Compliance
Non Compliance
Substantial Compliance Substantial Compliance
Non Compliance

calls. Late crisis calls generally involved minor amounts of time. The Commonwealth reported average response times within one hour in urban areas and within two hours in rural areas. See comment immediately above. All Regions continue to have crisis stabilization programs that are providing short-term alternatives for adults with ID/DD. For adults with ID/DD admitted to the programs, crisis stabilization programs continue to be used as a last resort. For these individuals, teams attempted to resolve crises and avoid out-of home placements.
There are credible reports of stays that exceed 30 days in each Region’s program. These are explicitly not allowed. The Commonwealth does not have sufficient community-based crisis stabilization service capacity to meet the needs of the target population in the Region.

Compliance Compliance
Compliance

Each Region developed and currently maintains a crisis stabilization program for adults with ID/DD.

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Settlement Agreement Reference

Provision
By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.

III.C.6.b.iii.G.

III.C.7.a

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.

III.C.7.b

The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy… (3) employment services and goals must be developed and discussed at least annually through a person centered planning process and included in the ISP.

III.C.7.b.i.

Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreation opportunities, and other integrated day activities.

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Rating

Comments

Compliance Non
Compliance Non
Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The Commonwealth has not determined whether it is necessary to develop additional “crisis stabilization programs” for adults with ID/DD in each Region. Stakeholders in each Region report a lack of availability and access to crisis stabilization services for adults. This is an overarching provision. Compliance will not be achieved until the sub-provisions of integrated day, including supported employment are in compliance. The case management study found that discussions of employment occurred for a sample of 23 adults. Most discussions, however, did not involve the development of goals toward employment. The ISP teams subsequently recommended Day Support services for 22 (96%) of the adults. Most were not offered regular integrated activities or activities that engage in seeking employment. The Commonwealth developed a plan for Supported Employment. Its written plan to increase integrated day activities is not comprehensive. It lacks plans to provide guidance re: building CE into the ISP process,
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Settlement Agreement Reference

Provision

Provide regional training on the Employment First policy and strategies through the Commonwealth.
III.C.7.b.i.A.
Establish, for individuals receiving services through the HCBS waivers, annual baseline information regarding:
III.C.7.b.i. B.1.

III.C.7.b.i. B.1.a.

The number of individuals who are receiving supported employment.

III.C.7.b.i. B.1.b.

The length of time individuals maintain employment in integrated work settings.

III.C.7.b.i. B.1.c.

Amount of earnings from supported employment;

III.C.7.b.i. B.1.d.
III.C.7.b.i. B.1.e.

The number of individuals in pre-vocational services.
The length-of-time individuals remain in prevocational services.

Rating

Comments

Compliance
Compliance
Compliance
Non Compliance
Non Compliance Compliance
Non Compliance
Non Compliance Compliance
Non Compliance
Non Compliance Compliance Compliance Compliance Compliance Compliance Compliance Compliance

training case managers, and an assessment of the extent additional provider capacity may be needed. DBHDS continued to provide regional training on the Employment First policy and strategies. Trainings were provided to service providers, family members, CSB staff, advocates, provider staff and transition teachers and supervisors.
The Commonwealth has significantly improved its method of collecting data. Data reported include a 93% return rate from ESO providers and 100% from DARS. It can now report the number of individuals, length of time, and earnings as required in III.C.7.b.i.B.1.a, b, c, d, and e below. See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.

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Settlement Agreement Reference
III.C.7.b.i. B.2.a.
III.C.7.b.i. B.2.b
III.C.7.c.

Provision Targets to meaningfully increase: the number of individuals who enroll in supported employment each year.
The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.
Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
(Compliance) Non
Compliance Compliance
Compliance Non
Compliance
Compliance

The Commonwealth has set, and compliance is rated based on, the targets being set to meaningfully increase the number of individuals receiving services through the waivers and on making substantial progress toward achieving the targets. There has been very little progress. The 7/1/14 baseline number for Individual Supported Employment was 204. As of 12/31/15, there were 211 individuals employed in ISE. The Commonwealth has improved data collection. Its goal that 85% of individuals will hold their jobs for at least twelve months has been exceeded. 88% have worked at their job for one year or more in ISE and 91% have held their jobs for one year or more in GSE. The RQCs met during the first two quarters of FY 2106. They consulted with the DBHDS Employment staff, both members of the SELN. The RQCs reviewed quarterly the number of individuals employed and the number who remain in integrated employment for twelve months.

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Settlement Agreement Reference
III.C.7.d
III.C.8.a.
III.C.8.b.
III.D.1.

Provision
The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.
The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.

Rating

Comments

Compliance Non
Compliance Compliance
Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The RQCs reviewed the employment targets and the State’s progress for FY 2015. The RQCs discussed and endorsed the future FY 2016 – 2019 targets A review found that DMAS /Logisticare do not know whether transportation services for the target population are of good quality. Several sources indicate a higher level of complaints from this population. The Commonwealth will not revise its guidelines until after implementing its redesigned waivers. The existing guidelines (“Just the Facts”) do not include information regarding how and where to apply and how to obtain services for individuals / families who are on the waitlists or for others seeking services. This is an overarching provision of the Agreement related to serving individuals in the most integrated setting. The need for more settings of four or fewer, especially for individuals with intense needs, will not be resolved until implementation of the redesigned waivers.

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Settlement Agreement Reference
III.D.2.

Provision
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources.

III.D.3.

Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.

III.D.3.a. III.D.3.b.i-ii

The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ... The plan will establish for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
(Non Compliance
Non Compliance Compliance
Compliance Compliance
Compliance

The Commonwealth facilitated an impressive additional 91 adults to live in homes of their own. This is 6%of the goal to provide 1,523 more adults their own
home by 2021. To achieve compliance requires sustaining a higher rate of facilitating adults to move into their own homes.
The Commonwealth developed a plan, created strategies to improve access, and provided rental subsidies to an additional 91 individuals. A DBHDS housing service coordinator developed and updated the plan with these representatives and with others.

Compliance Compliance
Compliance

The Commonwealth estimated the number of individuals who would choose independent living options through FY 2015. It again revised its Housing Plan with new strategies and recommendations.

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Settlement Agreement Reference
III.D.4
III.D.5
III.D.6
III.D.7
III.E.1

Provision
Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii.
Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.
No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant (CRC) and, under circumstances described in Section III.E below, the Regional Support Team (RST). The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team ...

Rating

Comments

Compliance Compliance
Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance Non
Compliance
Non Compliance

The Commonwealth established the one-time fund, distributed funds, and demonstrated viability of providing rental assistance. The individuals who received these one-time funds have now been provided permanent rental assistance. Documents reviewed did not indicate that the family-to-family and peer programs were active and creating pairings for individuals served in sponsored homes or congregate settings. Individuals were placed in settings of five or more, in nursing facilities or in ICFs without the review of the CRC or the Regional Support Teams.

Compliance Compliance
Compliance
Compliance Compliance
Compliance

The Commonwealth included this term in the performance contracts, developed and provided training to case managers and implemented an ISP form with education about less restrictive options. Community Resource Consultants (CRCs) are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

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Settlement Agreement Reference
III.E.2
III.E.3.a-d
IV
IV.

Provision The CRC may consult at any time with the Regional Support Team (RST). Upon referral to it, the RST shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The RST shall have the authority to recommend additional steps by the PST and/or CRC. The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met).
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance
Compliance ratings for the fifth, sixth, seventh and 8th review periods are presented as:
(5th period) 6th period
7th period 8th period
(Compliance)
Compliance

PSTs did not submit some referrals as required. Individuals moved to settings of five or more, to nursing facilities or to ICFs, without the CRCs submitting referrals, or submitting with sufficient lead-time for the RSTs to fulfill their responsibilities or to utilize their authority. DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly.
Note: The Independent Reviewer gathered information about individuals who transitioned from Training Centers and rated compliance during the 5th and 7th review periods. He will do so again during the 9th review period.
The comments below are from the period when the compliance rating was determined. The Commonwealth developed and implemented discharge planning and transition processes prior to July 2012. It made subsequent improvements in response to concerns the IR identified.

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Settlement Agreement Reference
IV.A

Provision
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.

IV.B.3. IV.B.4. IV.B.5. IV.B.5.a.

Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).
The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan will be developed within 30 days prior to discharge. Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;

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Rating
(Non Compliance)
Non Compliance
(Compliance) Compliance
(Non Compliance)
Non Compliance
(Compliance)
Compliance
(Compliance) Compliance

Comments
The Commonwealth has not implemented its strategy to come into compliance. Most integrated residential and day options are often not available for individuals with intense needs. The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision. The discharge plans reviewed were well organized and documented. Discharge plan goals did not include measurable outcomes that lead to skill development and increased self-sufficiency. The Commonwealth acknowledges its inability to provide integrated day services until it implements its redesigned waivers. The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision and that the discharge plans are well documented. DBHDS tracks and reports that all residents of Training Centers have discharge plans. The documentation of information provided was present in the discharge records ☐ for 75 (91.5%) of the 82 individuals studied during three review periods.
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Settlement Agreement Reference
IV.B.5.b.
IV.B.5.c.

Provision
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes; Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;

IV.B.5.d. IV.B.5.e.

Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes;
Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.

Such barriers shall not include the individual’s IV.B.5.e.i. disability or the severity of the disability.

IV.B.5.e.ii.

For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.

IV.B.6

Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.

IV.B.7
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Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.

Rating
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance)
Compliance
(Compliance) Compliance
(Compliance) Compliance (Compliance) Compliance
(Non Compliance)
Non Compliance
(Compliance) Compliance

Comments
The discharge plans included this information. ☐ for 50 (98.0%) of 51 individuals studied during the fifth and seventh review period, the discharge records included these assessments. The PSTs select and list specific providers that can provide identified supports and services.
The CIMs and Regional Support Teams document barriers on the data collection sheet. The severity of the disability has not been a barrier in the discharge plans. DBHDS has identified the factors that led to readmission and has implemented steps to support individuals with intensive needs.
The Individual Services Review Study found that the discharge plans lacked recommendations for how individuals can be best served. They did not include skill development to increase self-sufficiency or integrated day opportunities. DBHDS is implementing improvements.
The Commonwealth’s discharge plans indicate that individuals with complex needs can live in integrated settings.
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Settlement Agreement Reference
IV.B.9.

Provision
In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options.

IV.B.9.a.

The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.

IV.B.9.b. IV.B.9.c.

PSTs and the CSB case manager shall coordinate with the … community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities.
PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.

Rating
(Compliance)
Compliance
(Compliance) Compliance
(Non Compliance)
Non Compliance
(Compliance)
Compliance

Comments
The Individual Services Review studies during the fifth and seventh review periods found that ☐ 52 (100%) of individuals and their ARs were provided with information regarding community options and had the opportunity to discuss them with the PST.
Discharge records included evidence that the Commonwealth had offered a choice of providers.
Reviews found that of the individuals studied ☐11 (45.8%) of 24 individuals and their ARs did not have an opportunity to speak with individuals currently living in their communities and their family members. DBHDS sent packets of information to ARs. Of 61 referrals at CVTC and NVTC, one family and two peer mentor pairings occurred.
PST’s and case managers assisted individuals and their Authorized Representative. Providers were identified and engaged; and provider staff were trained in support plan protocols that were transferred to the community.

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Settlement Agreement Reference
IV.B.11.
IV.B.11.a.
IV.B.11.b.

Provision
The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.
In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meetings and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the personcentered tools and skills. Coaches … will have regular and structured sessions and personcentered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers.

Rating
(Compliance) Compliance (Compliance) Compliance (Compliance)
Compliance

Comments
During the fifth and seventh review periods, the reviews found that ☐ 48 (92.3%) of 52 individuals /Authorized Representatives who transitioned from Training Centers were provided with information regarding community options.
The Independent Reviewer confirmed that training has been provided via regular orientation, monthly and ad hoc events at all Training Centers, and via ongoing information sharing.
The Independent Reviewer confirmed that staff receive required person-centered training during orientation and annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors. An extensive list of trainings was provided and attendance is well documented.

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Settlement Agreement Reference
IV.B.14
IV.C.1

Provision
In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.
Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.

IV.C.2

Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

Rating
(Non Compliance)
Non Compliance
(Compliance)
Compliance
(Compliance) Compliance

Comments
See Comment for IV.D.3.
The Independent Reviewer found that the residential provider staff for ☐ 51 (98.1%) of 52 individuals participated in the pre-move ISP meeting and were trained in the support plan protocols. During the fifth and seventh period, the Independent Reviewer found that ☐ 49 (94.2%) of 52 individuals had moved within 6 weeks, or reasons were documented and new time frames developed.

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Settlement Agreement Reference
IV.C.3

Provision
The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct postmove monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring (PMM) Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.

IV.C.4

The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.

IV.C.5

The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge.

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Rating
(Non Compliance) Compliance
Compliance
(Compliance) Compliance
(Non Compliance)
Non Compliance

Comments
The Independent Reviewer determined the Commonwealth’s PMM process is well organized. It functions with increased frequency during the first weeks after transitions. ☐ for 52 (100%) individuals PMM visits occurred. The monitors had been trained and utilized monitoring checklists. During the sixth review period, the Commonwealth completed a look-behind process with a significant sample size. The lookbehind process was maintained during the seventh period. The Individual Services Review studies during the third, fifth and seventh review periods found that ☐ for 52 (96.3%) of 54 individuals, the Commonwealth updated discharge plans within 30 days prior to discharge. The Individual Review studies found that essential supports were not in place prior to discharge for 8 (28.6%) of 28 individuals in the fifth and for 3 (12.5%) of 24 individuals in the seventh review periods. For the fifty-two individuals in the two groups: ☐ 8 (15.4%) did not have out-of-home day opportunities identified or provided, ☐ 3 (5.8%) did not have
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Settlement Agreement Reference

Provision

IV.C.6

No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.

Rating
(Compliance) Compliance

Comments
behavioral or medical supports identified or provided. The discharge records reviewed in the third and fifth review periods indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.

IV.C.7

The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.

IV.D.1 IV.D.2.a

The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.
CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals;

(Compliance)
Compliance
(Compliance)
Compliance (Compliance) Compliance

The Independent Reviewer confirmed that documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans. Community Integration Managers are working at each Training Center. CIMs have reviewed PST recommendations for individuals to be transferred to a nursing home or congregate settings of five or more individuals.

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Settlement Agreement Reference
IV.D.3
IV.D.4.
V.
V.B.

Provision

Rating

Comments

The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.
The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed.
Quality and Risk Management
The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.

(Non Compliance)
Non Compliance
(Compliance) Compliance
Compliance ratings for the fifth, sixth, and seventh review periods are presented as:
(5th period) 6th period
7th period 8th period
(Non Compliance)
Non Compliance

The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The Independent Reviewer found, during the seventh period, that ☐ for 0 (0.0%) of 12 individuals referred to the RST, there was sufficient time to work with the PST and CIM to resolve identified barriers. The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ. For the Quality provisions without due dates, the Independent Reviewer prioritized monitoring, gathered information, and determined compliance during the 5th and 7th review periods. He will do so again during the 9th review period.
The comments below are from the period when the compliance rating was determined. This is an overarching provision of the Agreement. Compliance will not be achieved until the subprovisions in the Quality section are determined to be in compliance.

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Settlement Agreement Reference
V.C.1
V.C.2
V.C.3
V.C.4
V.C.5
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Provision
The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.
The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The …mortality review team … shall have at least one member with the clinical experience to conduct mortality re who is otherwise independent of the State. Within ninety days of a death, the mortality review team shall: (a) review, or document the unavailability of: (i)

Rating

Comments

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non
Compliance)
Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth has improved its draft list of risk triggers by including risks of harm in addition to harm that has occurred. It has not completed or implemented the lists and draft annual risk assessment. It has not changed regulations to allow collection of required data. DBHDS implemented a web-based incident reporting system. Providers now report 90% of incidents within one day of the event. The Commonwealth established a reporting and investigative process. The DBHDS Office of Human Rights (OHR) investigations do not align with the requirements of the Agreement. The Commonwealth has completed some training modules. Other progress has been made with root cause analysis and training on risk assessment. Available trainings are incomplete, not adequate to ensure reliability, and not competency based. A Mortality Review Committee (MRC) completed reviews of unexpected and unexplained deaths. Recommendations occurred and some positive systemic steps have been taken to reduce mortalities. The MRC

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Settlement Agreement Reference
V.C.6

Provision
medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual’s death; … (b) interview, as warranted, any persons having information regarding the individual’s care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems … and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.

V.D.1

The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers. Review of data shall occur at the local and State levels by the CSBs and DMAS/DBHDS, respectively.

V.D.2.a-d

The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.

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Rating
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

Comments
did not include a member independent of the State; most mortality reviews were not completed in 90 days; and a quality improvement assessment has not been completed to determine whether initiatives have addressed problems or to determine other actions to reduce mortality rates.
DBHDS cannot effectively use available mechanisms to sanction providers, beyond use of Corrective Action Plans. DBHDS reports that provisional licenses are being issued for repeat offenders. This is an overarching provision requiring effective quality improvement processes at the local and State levels. Compliance will not be achieved until the quality improvement subprovisions are in compliance. The lack of consistently collected, complete and reliable data has not allowed effective review at the local and State levels. Only limited analysis occurred. The Commonwealth has taken steps to improve collection and use of data, to develop reports and to share data among staff and divisions. Implementation of the Data Warehouse is an important
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Settlement Agreement Reference

Provision

V.D.3.a-h

The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data are collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):

V.D.4
V.D.5 V.D.5.a V.D.5.b

The Commonwealth shall collect and analyze data from available sources, including the risk management system described in V.C. above, those sources described in Sections V.E-G and I below (e.g. providers, case managers, Quality Service Reviews, and licensing), Quality Service Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.
The Commonwealth shall implement Regional Quality Councils (RQCs) that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.
The Councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
Each Council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.

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Rating
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non Compliance) Compliance
Compliance
(Non Compliance)
Non Compliance

Comments
accomplishment. Significant work remains to increase and organize the data and to ensure its reliability. The Commonwealth began collecting data in FY 2012. Data collection for some measures began June 30, 2014. For other measures, it has not begun. Case management and ISP data are not complete or reliable. Data about individuals with DD services and private ICFs are not included. This is an overarching provision. It will be in non-compliance until reliable data are provided from all the sources listed and cited by reference in V.C. and in V.E-G.
The RQCs had limited and unreliable data. The RQCs completed limited analysis and discussion of trends or recommendations.
The five Regional Quality Councils now include all the required members.
The RQCs met quarterly and had limited discussion of trends. Data available were not complete or reliable. The DBHDS Quality Improvement
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Settlement Agreement Reference
V.D.6
V.E.1
V.E.2
V.E.3
V.F.1
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Provision

Rating

Comments

At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement. The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis that is sufficient to identify and address significant issues.
Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.
The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.

(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Non
Compliance)
Non Compliance
(Non Compliance)
Non Compliance
(Compliance) Compliance
Compliance
Compliance

Committee directed the RQCs work.
The Commonwealth has begun to compile and has posted on its website: information toward creating and publicly reporting. The Commonwealth has surveyed all CSBs and will survey a sample of providers to ascertain a baseline regarding existing quality improvement practices. It has targeted 12/31/2015 to set clear expectations about QI processes for providers. The Commonwealth requires providers to report deaths, serious injuries and allegations of abuse and neglect. DBHDS plans to require reporting through the risk management and provider QI programs. The Commonwealth began to implement the QSR process. It plans to use the results to improve quality of services on the provider, CSB, and system wide levels and to provide technical assistance. The case management study found that 24 (96%) of the 25 were in compliance with the required frequency of visits. DBHDS has identified data that frequency and type of case manager visit are inconsistent and, in some CSBs, consistently below target.
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Settlement Agreement Reference
V.F.2
V.F.3.a-f
V.F.4
V.F.5
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Provision
At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs…. Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in V.D.3.

Rating

Comments

(Non Compliance)
Non Compliance
Non Compliance
Non Compliance

The case management study found that 19 (83%) of 23 individuals reviewed were recommended for day support programs. They were not offered services in integrated settings appropriate to their needs. Of these 19, 3(15.8%) were not offered services consistent with the individuals’ strengths and preferences.

(Compliance)
Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance

The case management study found that 24 (96%) of the 25 were in compliance with the required frequency of visits. All received monthly face-to-face meetings as required. In the ISR study the case managers of the 3 (100%) children who were eligible for enhanced case management were visited at the required frequency.
DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards relative to case manager contacts.

(Non Compliance)
Non Compliance
Non Compliance
Non Compliance

DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards, including case manager contacts.

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Settlement Agreement Reference
V.F.6
V.G.1 V.G.2.a-f
V.G.3
V.H.1
V.H.2

Provision

Rating

Comments

The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of selfdetermination and person-centeredness.
The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ...
Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.
The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training. The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.

(Compliance) Compliance
Compliance
(Compliance) Compliance Compliance
(Compliance)
Compliance Compliance
(Non
Compliance) Non
Compliance Non
Compliance
(Non Compliance)
Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination. DBHDS completed 434 unannounced licensing inspection visits between 4/1/15 and 9/30/15. DBHDS has maintained a licensing inspection process with more frequent inspections.
The DBHDS Licensing regulations and protocol do not align with the Agreement’s specific requirements.
The Commonwealth has not created a plan to:
� develop the
curriculum to train staff in the required elements of service for the individuals.
Same as V.E.1 immediately Above.

V.I.1.a-b

The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.

(Non Compliance)
Non Compliance

The Commonwealth has worked to modify the Quality Service Review process to meet the requirements of the Agreement. Compliance will be achieved when results are used to improve quality.

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Settlement Agreement Reference
V.I.2
V.I.3

Provision
QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting
The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.

Rating
(Non Compliance)

Comments
Same comment as V.I.1. immediately above.

Non Compliance
(Non Compliance)
Non Compliance

Same comment as V.I.1.

V.I.4
VI
VI.D.
IX
IX.C.

The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the , … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

(Non Compliance)
Non Compliance

Same comment as V.I.1.

(Compliance) Compliance
Compliance
Compliance

The DHBDS promptly reports to the IR. The IR, in collaboration with a nurse and independent consultants, completes his review and issues his Report to the Court and the parties. DBHDS has established an internal working group to review and follow-up on the IR’s recommendations.

(Non Compliance)
Non Compliance
Non Compliance
Non Compliance

The Independent Reviewer has determined that the Commonwealth did not maintain sufficient records to document proper implementation of the provisions including: monitoring mechanism for case management, records of who is receiving enhanced case management, and crisis services.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. The following provisions are related to internal operations of Training Centers and were not monitored: Sections III.C.9, IV.B.1,
IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-c. The independent Reviewer will not monitor Section
III.C.6.b.iii.C. until the parties decide whether this provision will be retained.

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III. DISCUSSION OF COMPLIANCE FINDINGS

A. Methodology:

The Independent Reviewer and his independent consultants monitored the Commonwealth’s
compliance with the requirements of the Agreement in several ways: ! by reviewing data and documentation produced by the Commonwealth in response to requests
by the Independent Reviewer, independent consultants, and the Department of Justice (DOJ); ! by discussing progress and challenges in regularly scheduled parties’ meetings and in work
sessions with Commonwealth officials; ! by examining and evaluating documentation of supports provided to individuals and their
families; ! by interviewing individuals and/or their families, providers, and other stakeholders; and ! by visiting sites, including individuals’ homes, nursing facilities and large ICF/IDDs,
community-based crisis, residential, day and other programs.

During this eighth review period, the Independent Reviewer prioritized the following areas for review

and evaluation:
 ! Transition of Children from Nursing Homes and Large ICFs (Individual Services Review);
 ! Individual and Family Support Program;
 ! Case Management;
 ! Crisis Services for Children and Adults;
 ! Behavioral Supports Capacity;
 ! Integrated Day Opportunities / Supported Employment;
 ! Independent Living Options; and
 ! Licensing and Investigations.


Seven independent consultants were retained to conduct the reviews and evaluations of these areas.
 For each study the Commonwealth was requested to provide all records that document that the 
 related requirements of the Agreement are being properly implemented. Information that is not
 provided by the Commonwealth for the studies is not considered in the findings, conclusions, and 
 determinations of compliance.


For the eighth time, the Independent Reviewer utilized his Individual Services Review study process
 and Monitoring Questionnaire to evaluate the status of services for a selected sample of individuals. By
 utilizing the same questions over several review periods, for different subgroups and in different
 geographic areas, the Independent Reviewer has identified findings that include positive outcomes, 
 and areas of concern. By reviewing these findings, the Independent Reviewer has identified and 
 reported themes. 


For this report, the Individual Services Review study was focused on the status of discharge planning
 and transition services for children who reside in large facilities and of services for “like” children who 
 live in community-based settings. Twenty-five children were selected randomly from the list of 
 children with ID or DD diagnoses. Eighteen of these children reside at one of four facilities: the 
 Commonwealth’s two largest nursing facilities and two largest Intermediate Care Facilities for children
 with ID/DD. Seven “like” children, who had lived in large facilities or who were diverted from
 admission and who receive community-based ID waiver funded services were also included in the


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! review. All twenty-five children live in three of Virginia’s five Health Planning Regions: Region II (northern Virginia), Region IV (greater Capitol area), or Region V (Virginia peninsula).
This was an exploratory study. The selected sample was not large enough to provide sufficient confidence that the findings will generalize to all similarly situated children. However, the randomly selected sample is sufficient to identify positive outcomes and areas of concern for further study.
The other studies completed by the Independent Reviewer’s consultants for this report examined the status of the Commonwealth’s compliance with specific prioritized provisions that were targeted for review and evaluation. The Independent Reviewer shared the planned scope, methodology, site visits, document review, and interviews with the Commonwealth and requested its suggested refinements. The Independent Reviewer also asked the Commonwealth to provide the measurable outcomes that it has established and to identify the records that it maintains to demonstrate proper implementation of the provisions that are the focus of each study.
The Independent Reviewer’s consultants then reviewed the status of program development to ascertain whether the Commonwealth’s initiatives had been implemented sufficiently for measurable results to be evident. The consultants conducted interviews with selected officials, staff at the State and local levels, workgroup members, providers, families of individuals served and other stakeholders. To determine the ratings of compliance, the Independent Reviewer considered information provided prior to April 30, 2016. This included the findings and conclusions from the consultant’s topical studies, the Individual Services Review study, and other sources. The Independent Reviewer’s compliance ratings are best understood by reviewing the comments in the Summary of Compliance table, the Findings section of this report, and the consultant reports included in the Appendix.
Most of the provisions in the Discharge Planning and Transition and the Quality and Risk Management sections of the Agreement were closely studied during the fifth and the seventh review periods. The compliance ratings for many provisions in these sections were not expected to change substantially during the eighth review period. They will be studied during the ninth review period. The Independent Reviewer will rate compliance in his next Report to the Court.
Finally, as required, the Independent Reviewer submitted this Report to the parties in draft form for their comments. The Independent Reviewer considered any comments before finalizing and submitting this eighth Report to the Court.
B. Compliance Findings
1. Providing Home and Community Based Services (HCBS) Waivers
The U.S. Center for Medicare and Medicaid Services operates the Home- and Community-Based 1915(c) waiver program. The funding from the Home- and Community-Based Services (HCBS) waiver provides support services in the community as an alternative to receiving services in an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID). Individuals with ID/DD may receive HCBS waiver-funded services once they are awarded a waiver slot. The Commonwealth joined the HCBS waiver program in the early 1990s.

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! The Commonwealth had created a total of 2455 new waiver slots, 400 more than were required by the Agreement, prior to this reporting period. During its recent session, the General Assembly approved an additional 200 waiver slots to be awarded to individuals with DD, other than ID, prior to the end of Fiscal Year 2016. The Commonwealth created these additional waiver slots as part of the redesign of its HCBS waiver programs. Under the existing program, the Commonwealth has awarded waiver slots for individuals with DD, other than ID, based on chronology, i.e. when an individual’s name was added to the waitlist, rather than on the intensity of the individual’s needs. By creating the additional 200 waiver slots during Fiscal Year 2016, the next 200 individuals, those closest to the front of the chronological wait list, will be awarded slots soon. The Commonwealth’s switch to a policy of awarding slots based on intensity, as part of the redesigned HCBS waiver, which will be effective on July 1, 2016, might otherwise have deprived these 200 individuals from receiving waiver slots after they have waited for many years.
The Commonwealth creates HCBS waiver slots to enable individuals with ID/DD to receive waiverfunded services in the community. Waiver-funded services allow some individuals to continue to live in their communities. They also allow children and adults to transition from living in nursing facilities and publicly and privately operated large Intermediate Care Facilities (ICFs). Training Centers are large state-operated ICFs. Significantly, between October 13, 2011 and April 11, 2016, the Commonwealth helped 552 individuals transition to live in the community from the Training Centers. The census in the Training Centers had decreased to 376 residents.
The Independent Reviewer’s Individual Services Review Studies have consistently found that waiver slots provide individuals and families with critical supports that significantly improve their quality of life. For these individuals, access to waiver-funded services is vital to their good health, personal growth, safety, and for the prevention of unnecessary institutionalization. That said, the Commonwealth’s existing HCBS waiver programs have been confusing and difficult to manage for families, especially for those who receive in-home services. The waiver program definitions and rates have also created financial incentives for service providers to develop large congregate day and residential settings that perpetuated grouping individuals with ID/DD together and separating them from their communities, rather than meeting their needs in the most appropriate integrated setting. The Commonwealth’s goals in redesigning its wavier programs are “to provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” The Commonwealth also anticipates that these incentives will result in community-based program options that decrease demand for crisis intervention and institutional level care.
The Commonwealth is in compliance with Section III.C.1.a.i-v.

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! 2. Discharge Planning for Children Living in Nursing Facilities and Large ICFs
DBHDS has begun to implement a plan to facilitate the transition of children with ID/DD who live in nursing facilities to integrated community-based settings. A plan for children who have similar needs, but live in large ICFs, has not been completed. The Commonwealth reports that the initiatives underway for children who reside in institutional settings are currently specific to each individual’s setting. It is exploring steps to merge these initiatives into a more comprehensive and cohesive single set of strategies. In its responses to the Independent Reviewer’s recommendation in the previous Report to the Court, the Commonwealth has committed to:
! identify all children with ID/DD who are in the process of being admitted to or who currently reside in institutional settings,
! determine their service needs, and ! assist with the development of and transition to community-based settings with needed support
services.
DBHDS has established a structure to screen children suspected of having an intellectual or developmental disability prior to admission to a nursing facility. To ensure that appropriate services are offered in the most integrated setting, DBHDS now maintains a single point of entry to nursing facilities. As reported previously, the Commonwealth has prioritized diverting children away from admissions to nursing facilities to alternative community-based services that meet their needs. DBHDS performs the Preadmission Screening and Resident Review (PASRR), a federal requirement applicable to all individuals referred to nursing facilities who are suspected of having an ID or DD. The PASRR helps to ensure that children are not inappropriately placed in nursing homes. In addition, DBHDS has initiated a Resident Review process for all identified individuals currently in nursing facilities. Through the Resident Review process, DBHDS:
! determines whether the nursing facility admission remains appropriate based on medical/nursing needs and the functional limitations of the individual,
! identifies barriers to discharge from the nursing facility, and ! identifies services and supports that the individual needs to transition to the
community.
It is the intent of the Agreement that individuals with HCBS waiver slots will be offered communitybased supports of good quality, which are designed to promote skill development, self-sufficiency and community integration. To overcome barriers to discharge and to access needed communitybased supports, DBHDS has implemented a new process to connect each child with the appropriate Community Services Board (CSB) and to facilitate a referral to the Regional Support Team (RST), if needed. The Commonwealth reports that it has completed 396 PASRR II reviews and 360 Resident Reviews of children and adults with ID/DD.
The Commonwealth and the DOJ are working together to develop, by June 30, 2016, outcome timelines with performance indicators to address the issues of children living in long-term nursing facilities and large private ICFs. As of March 9, 2016, the Commonwealth reported that forty-nine children under age twenty-two with ID/DD were long-term residents of nursing facilities. The Independent Reviewer has not verified that this number captures all the children living in such facilities. The Commonwealth projects that implementation of its plans to transition children from

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nursing facilities and large ICFs will be evident during the spring of 2017, which is during the tenth

review period.

!

A.

Individual Services Review Study: Children in nursing facilities and larger ICFs and “like”

children living in community settings.

During the eighth review period, the Independent Reviewer designed an exploratory Individual Services Review Study to learn about the services provided to children with ID/DD who live in nursing facilities and large ICFs and the services to children with similar needs who live in the community. The Commonwealth provided a December 31, 2015, list of the 301 children (under age 22) who had received Medicaid-funded services while living in such facilities. Stakeholders assert that the list provided does not include other children with DD who also live at these or similar institutions, but are not listed because the facilities bill the Commonwealth for the provision of medical services and do not indicate that the children have a DD diagnosis.

The Independent Reviewer randomly selected four to six children at each of the four largest facilities in the Commonwealth; two are nursing facilities and two are large ICFs. A total of eighteen children were selected from the 196 children with ID/DD living in these four facilities. These facilities are located in three of Virginia’s five Health Planning Regions (II - northern Virginia, IV - greater Capitol area, and V - Virginia peninsula). Seven children with similar needs were selected who live in homes; four live with their families and three live in group-homes. All seven of these children have ID waiverfunded services in these same three Regions.

The sample size of eighteen out of 196 children living in four facilities and seven out of an unknown number of children with similar needs who live in community-based settings is too small to give a sufficient degree of confidence that the study’s findings will generalize to all similarly situated children. The sample size is sufficient, however, to identify positive outcomes and areas of concern, which should be studied further.

Although there were individual exceptions, the study found the themes listed below:

1. The families supporting their children with disabilities at home were very
 committed to ensuring that they would grow up as part of their family and their 
 community.


These four families were each struggling to secure needed services. These included behavior supports; in-home nursing and personal care staff assistance; and needed safety and sensory equipment. Requests for the equipment had been repeatedly denied.

2. The eighteen children who live in medical facilities received health care
 assessments, examinations and monitoring more frequently as ordered by a
 physician. These occurred less frequently for the seven children who live in 
 community homes.


Examples are below. See Appendix A for further details of positive outcomes and areas of concern.

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Health Care item There was a current clinical assessment, if ordered by a physician. Clinical therapy recommendations (OT, PT, S/L, psychology, nutrition) were implemented or staff were actively engaged in scheduling appointments. Examinations and lab work were completed as ordered by a physician The individual’s provider monitored health care per the physicians’ orders, and clinical professionals monitored side effects if the individual received psychotropic medications

Large facilities 100% 98.6%
92.3% 97.6%

Community homes 73.7% 52.0%
87.5% 75.0%

3. The children living in facilities had virtually no opportunities to interact with similar age children who did not have disabilities or for community integration.
The children who lived in community homes had more, but still too few, such opportunities. The children living in facilities rarely left the institutional settings, except for attendance at school. When they went into the community, they did so as part of a group of children, all of whom had disabilities. Almost all children in the study attended schools, or sections of schools, that were segregated from children without disabilities. For the children living in community homes, the lack of available integrated after school activities, nursing services, positive behavioral supports, and other services significantly limited the community integration opportunities. Neither group of children had Individual Support Plans/Plans of Care with measurable outcome goals that promoted the development of skills to increase self-sufficiency or that led to increased opportunities for integration.

4. There was a lack of discharge planning for the children who were living in private institutional settings.
Without effective discharge planning, these children were not offered “services … provided in the most integrated setting appropriate to meet their needs.” Without active discharge and transition planning, these children will not make progress toward achieving the Agreement’s goals of community integration and self-determination. Although there were exceptions, the discharge date for most children living in the large facilities was the day before they turned age twenty-one; the day before the facility would no longer be paid to support the child.

5. Children living in the community with waiver slots lacked adequate services. Case Managers for the children living at home and those living in group-homes were not able to resolve the issues associated with inadequate services. Examples of the inadequate services that were not resolved, included the inability to secure needed behavioral supports, in-home nursing services, personal care staff, nutritional assessments, and needed safety and sensory equipment.

6. Children living in both large facilities and community homes lacked available and accessible behavioral support services that meet their needs.
The Study found that there were inadequate behavior supports available and in place for the children who lived in the large facilities and for the children who lived in community homes. In both settings, there were weaknesses found in the monitoring of the side effects and health consequences of psychotropic medications.

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7. Children living in the community homes were not able to access crisis services or out-of-home crisis stabilization programs in each Region.
The Agreement required that these services be in place as of July 1, 2012, so that all individuals with an ID or DD diagnosis who experience crises are provided timely and accessible supports directed at resolving the crisis and at preventing the removal of the individual from his or her home. It also required that by July, 1, 2013, the Commonwealth develop an additional crisis stabilization program in each Region as determined necessary … to meet the needs of the children and adults in that Region. These programs provide a community-based, out-of-home last option alternative to institutionalization.
Although these positive outcomes and areas of concern will not generalize to all children who live in large facilities or in community homes, they are consistent with findings from previous Individual Services Review Studies.
The Independent Reviewer has provided the Individual Services Review reports to the Commonwealth so that it will examine the issues identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with each individual’s direct service provider(s) and case manager and, by September 30, 2016, to provide updates on the actions taken and the results in regards to the issues identified for each.
Selected tables with the Individual Services Review Study’s findings are attached (Appendix A). The Independent Reviewer has separated findings from the Study into tables focusing on positive outcomes and areas of concern. The findings from the Study are also cited in the comments in the Summary of Compliance table. Some comments cite patterns from multiple Studies.
Conclusion: From Fiscal Year 2012 through Fiscal Year 2016, the Commonwealth created 1500 waiver slots for individuals with ID and 600 waiver slots for individuals with DD, other than ID. The Commonwealth created these slots to provide services in the most integrated setting appropriate to the individuals’ needs and to prevent the institutionalization of individuals in the target population. The Commonwealth also created slots to transition children who live in nursing facilities and privately operated large ICFs to community-based settings.
During these five Fiscal Years, the Commonwealth created 600 more slots than the Agreement requires. The Commonwealth has met the quantitative requirements for these provisions. Through this review period, however, the Commonwealth has not developed or implemented a plan to transition individuals under 22 years of age from large ICFs and has not implemented its transition plans for children living in nursing facilities.
The Commonwealth, therefore, is in non-compliance with Section III.C.1.b.i.-v. and III.C.1.c.i.-v.

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3. Individual and Family Support Program
Following an independent study one year ago, the Independent Reviewer determined that the Commonwealth’s Individual and Family Support Program (IFSP) did not include a comprehensive and coordinated set of strategies to ensure access to person and family-centered resources and supports, as required by the Agreement. DBHDS reported that it had established a task force to redesign the program to address the issues that contributed to a determination of non-compliance. DBHDS informed the Independent Reviewer that its redesigned IFSP would not be in place during this review period. With that caveat in mind, during this review period, the Independent Reviewer retained the same independent consultant to determine:
! whether the Commonwealth’s existing IFSP had achieved the quantitative measure of compliance by supporting 1000 individuals/families during Fiscal Year 2016,
! whether the Commonwealth had made changes to improve the functioning of the existing IFSP, and
! whether the Commonwealth’s plan to redesign the model of the program, if implemented effectively, could lead to a determination of compliance.
During the last year, DBHDS has engaged in many activities to enhance the effective operation of its current IFSP funding process and to redesign its approach to provide a comprehensive and coordinated set of strategies. It has engaged the New Individual and Family Design Advisory Committee (NIDAC) while completing much of the redesign work.
A. Current IFSP Funding Process
DBHDS made changes to the IFSP for the Fiscal Year 2016 funding period. These changes were based on the lessons learned from previous funding periods, from internal discussions and from stakeholder feedback. As a result of its analysis, DBHDS:
! reduced the maximum amount for funding per person from $3,000 to $1,000 (this step ensured that available funds would be provided for more individuals);
! reverted to one application and funding period, such had existed during the first two years of the Program;
! hired two temporary staff to assist with managing the flow of IFSP applications, decisions and issuance of funds; and

! streamlined the IFSP application form, and
 ! updated the IFSP Guidelines in August 2015 to reflect these changes.

In addition, a line was added to the application for an applicant e-mail address. This allowed IFSP staff to communicate more effectively with families regarding their applications; and
Overall, these modifications alleviated the backlogs that had occurred in previous funding periods. As of March 31, 2016, DBHDS was still accepting applications. It had not found it necessary to deny any applications due to funding constraints. These results reflected significant program improvements in timeliness and responsiveness and, therefore, much less stakeholder frustration. During the first nine months of Fiscal Year 2016, DBHDS provided funds to support 2,084

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! individuals and families. This was significantly more than the 1000 that the Agreement requires, however, funding awards provided were substantially less than in previous years.

B. Re-Design of the IFSP

Since the independent consultant’s previous report on the status of the IFSP, DBHDS has continued to engage stakeholders in the planning for the IFSP re-design. DBHDS responded, in part, to that report’s recommendation to implement a formalized and ongoing avenue for stakeholder input to help to guide the evolution of the IFSP. As part of its redesign process, DBHDS formed an advisory committee (i.e. NIDAC). Stakeholder participation was solicited from individuals on waitlists and their families. Representatives from advocacy organizations, although not voting members, attended and participated in the discussions. It was commendable that DBHDS had engaged stakeholders in its efforts to re-design its IFSP.

DBHDS charged the NIDAC planning workgroup with providing assistance with an IFSP design that would place significant decision-making power in the hands of the individuals and families being served. NIDAC was to provide feedback for DBHDS to consider as it developed a viable work plan for creating a comprehensive and coordinated family support system. The planning effort included three meetings of NIDAC between July and October 2015 and a meeting in March 2016. DBHDS provided, and the participants reviewed, information about individual and family support programs that were organized around the principle of an individual- and family-led regional organizational structure. (In other states, this approach involved creating regional non-profit organizations.) DBHDS also tapped the Service Corps of Retired Executives (SCORE) to bring in experienced business people to advise NIDAC members on the process of incorporating and operating 501(c)(3) organizations. All those interviewed considered the participation of SCORE representatives as very helpful to the process.

DBHDS presented a proposed program model to the planning workgroup. The model would place significant decision-making authority in the hands of the individuals and families being served. New nonprofit regional organizations would be established with governing boards whose membership would be at least a majority of individuals and families eligible to be served by the IFSP. These local organizations would have decision-making authority over the distribution of the IFSP funds by establishing the criteria for funding awards. Other roles would include working within their communities to coordinate other existing resources and developing additional financial and in-kind support. The Governor requested funding from the General Assembly for five new positions to facilitate the work of these proposed regional organizations. Being empowered with decisionmaking authority is consistent with the principles of individual and family support and has been successful in other states’ programs. In March, the NIDAC learned that the General Assembly had approved only one of the five positions that were planned to support the five regional organizations. DBHDS presented NIDAC with two options for moving forward. After considering the reduction in planned staff, NIDAC ultimately identified two additional alternatives to consider. One option would use a portion of the IFSP funds, which have been used solely for direct support of individuals and families, to cover the cost of the administrative positions that the General Assembly decided not to fund.

During the consultant’s review, many NIDAC members, advocacy representatives and other

stakeholders expressed two concerns with the current plans. First, the regional individual- and family-run organizations, as envisioned, would have responsibilities for fund raising and

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! coordinating supports in addition to establishing policies related to the use of individual and family support funds. Many expressed concern that their available time and energies were often consumed with managing their own and their family members’ extraordinary needs. Second, many questioned whether it would be more effective for Virginia to use existing nonprofit agencies to host the proposed regional organizations, rather that creating new regional organizations.

At this time, however, despite the IFSP planning efforts underway, a determination as to the likelihood of compliance with the qualitative requirements of the Agreement is not possible. The Commonwealth has not yet laid out a clear plan that is likely to lead to compliance with any of these requirements. The Commonwealth’s proposed design still lacks specificity. The plan has been presented largely in very broad strokes. The plan also lacks significant stakeholder support. The planning process itself, while commendable in its intent, has not been as robust as necessary to achieve a well laid out plan. Many critical details have not yet been addressed. Most NIDAC members and interested attendees who were interviewed also expressed opinions that supported this finding. At the time of this study, the planning process was still ongoing.

Overall, the new IFSP, as currently planned, does not include adequate design or program evaluation strategies to be able to achieve the overall goal of a comprehensive and coordinated set of strategies. These strategies must be formulated to ensure that families, who are assisting family members with intellectual or developmental disabilities (ID/DD), or individuals with ID/DD, who live independently, have access to person-centered and family-centered resources, supports, services and other assistance.

The IFSP planning process has not yet resulted in the development of a comprehensive strategic plan. The planning process has not been sufficiently robust. NIDAC members participated in only three meetings before they were expected to decide on the individual and family support program model. DBHDS has made a sincere effort to expand its stakeholder engagement in this initiative. The concerns and skepticism expressed by stakeholders, however, have not been adequately addressed.

C. Individuals Who Are Most At Risk Of Institutionalization

The planning process for the IFSP has not yet addressed the Commonwealth’s previous single criterion determination that those “most at-risk for institutionalization” included every individual on the HCBS waitlists. This broad definition is consistent with one of the primary tenets of the traditional individual and family support programs. This tenet emphasizes that all individuals with intellectual and developmental disabilities and their families need and deserve supports; they should not have to prove they are somehow more deserving than someone else. As reported previously, most families expressed a level of discomfort with receiving financial supports while knowing that others had much more intense needs.

DBHDS has since drafted a proposed revision to the Administrative Code that would expand the single criterion definition. The draft criterion, which has not yet been formally submitted, has been rewritten to include every individual who is eligible to be on the HCBS waiver waitlists. DBHDS staff opine that including all individuals who are eligible might slow the rate of growth of the number of individuals who are on the waitlists. Some believe that the requirement to be on the waitlist to

receive IFSP funds was a factor that contributed to the rapid growth of the waitlists. As noted in the 2015 study, the “DD” waitlist grew forty-three percent, from 1,300 to 1,885, between June 2013

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 and April 2015. According to DBHDS staff, this waitlist has continued to grow at a pace of about forty new people per month. It was not yet clear how the overall waiver re-design would impact the size and growth rate of the waiver waitlists.
The NIDAC re-design proceedings have not yet addressed the “most at risk of institutionalization” definition. Nor was the process for making this determination discussed at the stakeholder meetings. As previously recommended, this fundamental element of the IFSP should be examined, through a truly inclusive strategic planning process, including weighing its potential impact and benefits. While it is not always possible to predict unexpected outcomes, a careful strategic planning process should fully address proposed rule changes prior to promulgation.
The Independent Reviewer commends DBHDS for its efforts to re-evaluate its approach to individual and family supports and for making interim programmatic modifications. These changes eased the application flow and the funding logjams from previous years.
The Commonwealth is in non-compliance with the qualitative requirements of Section III.C.2, as defined in Section II.D. The Commonwealth fulfilled the quantitative requirement to support at least 1000 individuals during 2016.
In summary, in order to develop a useful quality improvement system for the Individual and Family Support Program, it will be necessary for DBHDS to develop a set of both outcome and performance indicators that will allow it to determine whether or not a goal is achieved and then to analyze why or why not. DBHDS should construct its data collection methodologies with this in mind.
4. Case Management
Case management is the hub of the service system for individuals and families. It is their most important single resource, especially when assessments, additional service or changes in their services and supports are warranted.
It is the case manager who assembles the Individual Support Team to develop the support plan for the individual; to assist the individual and family to gain access to needed services; and to monitor service delivery and to make service changes as needed. The central importance of the case manager to the individual and family, and to the Commonwealth’s ability to achieve the goals of the Settlement Agreement, is the reason the Agreement includes provisions to ensure that:
! case managers do not have a conflict of interest; ! individuals and families have a choice of, and can change, case managers; ! case managers observe and assess whether each individual’s support services are properly
implemented, address risks, are in the most integrated setting appropriate to the individual’s needs, report and document any identified concern, and, as necessary, assemble the ISP team to address the concern and to document its resolution; ! there is a licensing process that assesses the adequacy of individualized supports; and ! the Commonwealth establishes a mechanism to monitor the delivery of case management services to ensure that they comply with performance standards.

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! The Independent Reviewer retained a team of independent consultants to evaluate the Commonwealth’s compliance with the case management provisions. This study also included the review of status of compliance with the provisions that govern how the Commonwealth monitors case management to ensure compliance with regulatory and quality standards. The independent consultants’ report Case Management and Licensing Requirements is attached at Appendix C.

A. Case Management

In February 2016, the Office of Licensure Services (OLS) revised its Office Protocol, which guides Licensing Specialists in their conduct of the overall work of Licensing. The latest version continues the improvements to the 2015 version, vis-à-vis areas to be assessed (Section V.D.3) and monthly follow-up on Corrective Action Plans (CAPs) until conditions are corrected.

DBHDS is in non-compliance with the requirements of Section V.F.2. This determination is based on three cases where Employment First was not effectively implemented; evidence that several case managers were not sufficiently trained and did not have access to needed specialized consultation; evidence that case managers were not adequately monitored for Agreement requirements; and evidence that four CSBs were not submitting data to DBHDS regarding the performance of their case managers.

B. Case Management Availability and Face-to-Face Meetings:

The Independent Reviewer’s consultants found that the Commonwealth’s Data Dashboard is a viable accountability tool for tracking the delivery of case management services. That is, the data gathered details of the number, the type, and the frequency of visits, but not the quality of the case management services. There continues to be concerns with the reliability of data provided by CSBs. The Individual Services Review Study also found that seven individuals (100%) who were randomly selected had an ISP and had documentation of the required face-to-face case management review.

Therefore, the Commonwealth is in compliance with the requirements of Sections V.F.1. and V.F.3. This rating is based on the findings of the twenty-five cases reviewed in this study and multiple Individual Services Review studies, all of which indicated that the frequency and type of required visits had been achieved. The DBHDS data regarding frequency of face-to-face visits indicates that these visits may not be occurring with the frequency required. These data, however, have previously been found to be underreported and unreliable. The frequency of visits should be carefully reviewed in the next independent study to verify that visits occur at the required frequency.

C. Case Management Effectiveness

The independent consultants completed a discrepancy analysis of the effectiveness of case management services for twenty-five individuals. Twenty-one of the individuals were receiving ID waiver funded services. Four were receiving DD waiver funded services. The sample size of four (10%) of the forty CSBs is not sufficient to give a high degree of confidence that the study’s findings will generalize to all CSBs. The 10% sample size is sufficient, however, to identify positive outcomes and areas of concern, which should be studied further.

The consultants conducted a discrepancy analysis of the services for randomly selected cases in four CSBs’ catchment areas. (The methodology and details of the study are attached to this report at Appendix C.) The findings of the analysis were based on a review of the case records, case manager

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! interviews, face-to-face individual interviews, including caregivers and Authorized Representatives, as feasible or as appropriate. The discrepancy analysis found that rates of discrepancies suggested that the effectiveness of case management services in two of the four CSBs (50%) warrant further examination to determine the systemic deficiencies and the corrective actions that are needed. One CSB has been below DBHDS performance targets for multiple consecutive quarters.
The Agreement lists three major functions of case management: assembling teams, assisting individuals in accessing services and needed supports, and monitoring implementation of the ISP and making changes as needed. In this sample, the consultants observed that when events or changes suggested that substantive modifications were needed to the Individual Service Plan, case managers were generally hesitant to assemble team members in between annual meetings. This reluctance appeared to stem from logistical inconvenience for participants and the lack of enthusiasm for ‘one more meeting.’ This finding is consistent with the findings of previous Individual Services Review studies.
The consultants found the following four most frequent challenges to case management effectiveness:
! ensuring that ISP outcomes are changed when necessary; ! ensuring that needed referrals are made in a timely and complete manner; ! ensuring that all essential supports are included in the ISP; and ! ensuring that the individual is supported to access needed services.
The independent consultants found that at each CSB case management performance has been monitored as follows:
! HCBS Waiver program audits for DMAS; ! DBHDS Internal Auditors’ Operational Reviews; and ! local CSB supervisory monitoring strategy or tool.
The HCBS Waiver program audits include a paper review only. DBHDS reports that the Internal Auditors’ Operational Reviews occur only an average of once every eight to nine years for all CSBs. (Four to five of the forty CSBs are reviewed annually.) The consultants determined that the local CSB supervisory monitoring tools vary in frequency of administration. These local CSB tools do not examine in a uniform manner the content of case management actions for timeliness or for quality. The consultants concluded that local CSB supervisory auditing does not appear to consistently identify or to address cases with deficiencies. The consultants also identified that cases with deficiencies were present in each CSB.
The consultants also found evidence of improved case management effectiveness. The discrepancy analysis found positive indicators in two of the four CSBs (50%) and for the four individuals receiving DD waiver funded services. The consultants determined that the frequency of discrepancies in these cases “represent very close to acceptable rates of difference from the desired outcomes, based on differing caseload sizes, length of service of case managers, etc.”
The Commonwealth’s efforts to improve the effectiveness of case management and the individual service planning process has resulted in progress toward achieving compliance with the requirements of III.C.5.b. The presence of discrepancies in this sample of cases, however, is such that one entire CSB is not meeting measurable target cut-offs. Since two of the four selected CSBs

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! (50%) are experiencing frequent quality performance problems, it is likely that many other CSBs may also be experiencing similar performance problems delivering case management services.

If two of the four selected CSBs (50%) are experiencing frequent quality performance problems, then approximately twenty (50%) of the CSBs statewide may be experiencing similar performance problems delivering case management services. The Data Dashboard reports indicate that one of these two CSBs has been ‘below target’ and has had problems reaching the DBHDSs target of eighty-five percent on its July-August-Sept-Oct 2015 reporting cycle measurements of face-to-face case management.

The Commonwealth is in compliance with the requirements of Section III.C.5.a. Each individual had a case manager and a current ISP. The Individual Services Review study found that all seven individuals who received ID waiver-funded services had a case manager and a current ISP.

DBHDS is in non-compliance with the requirements of Section III.C.5.b.i-iii. However, the case management study found that progress has been made. The study found discrepancies in a significant percent of the cases reviewed in two of the four CSBs studied (50%). The discrepancies included case managers not doing the following when needed: changing ISP outcomes; making referrals; listing all essential supports in the ISP; and supporting the individual to access needed services. The sample of cases reviewed indicated that an entire CSB is not meeting performance target cut-offs.

DBHDS is in compliance with the requirements of Section III.C.5.c. The documentation reviewed and responses to inquiries indicated that case managers had offered choices of providers.

DBHDS is in non-compliance with the requirements of Section III.C.5.d. The Commonwealth does not have an effective mechanism to monitor compliance with performance standards for case management. The Operational Reviews occur an average of only once every eight to nine years for each CSB. The OLS effort to tighten scrutiny of CSB case management has been terminated.

The Commonwealth is in non-compliance with Section IX.C. It does not maintain sufficient records to demonstrate that the provisions of the Agreement are being properly implemented.

D. Least Restrictive

Of the twenty-five individuals whose services were reviewed in the case management study, fifteen individuals did not live with their families. Eleven of fifteen individuals (73%) lived in settings of five or more individuals with a disability. Only one individual had a CRC referral package on file with the Regional Support Team. A second individual, who had moved to a setting with five or more individuals within the last year, did not have a CRC referral package on file with the Regional Support Team. The remaining nine individuals had been placed in their residential settings more than eighteen months ago, prior to when the Regional Support Team process became fully functional. None of these individuals had been referred to the RST subsequently, after the process became fully operational, to determine whether the obstacles to a more integrated setting had been identified and could be resolved and whether a more integrated setting was available to be offered.

The consultants’ reviews found that for twenty-one of the twenty-five individuals’ records (84%) that case managers had provided education about less restrictive services. The case managers for each of

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! the eleven individuals who lived in settings of five or more individuals had discussed less restrictive options with them and their Authorized Representatives.
DBHDS is in non-compliance with the requirements of Section III.D.1. It does not serve individuals in the most integrated setting appropriate to their needs. The Commonwealth is commended for discussing with the Regional Quality Councils the barriers to individuals living in the most integrated settings and the very large need for group home settings of four or fewer, especially for individuals with intense needs and in some geographic areas. There is broad agreement that achieving compliance with this overarching provision will not occur under the existing waiver programs because the rate structure could not support the cost of four-bed homes.
DBHDS is not in compliance with the requirements of Section III.D.6. The case management study found that the Regional Support Teams were not used to determine the obstacles to living in a more integrated setting for the eleven individuals who lived in settings with five or more individuals. The Individual Services Review study found that of the two individuals who were moved to communitybased settings of five or more individuals since the Regional Support Team were in place, only one had been referred to them.
DBHDS is in compliance with the requirements of Section III.D. 7. Case managers continued to offer education about less restrictive community options on at least an annual basis to individuals living outside their own or their family home.
E. A Mechanism To Monitor Compliance With Performance Standards
The DBHDS Licensing regulations align generally with the case management expectations in the Agreement. They do not align specifically as to the case management expectations detailed in the Agreement regarding regular face to face meetings with the individual being served; enhanced visit frequency; identifying risks to the individual; offering choice among providers; assembling professionals and non-professionals who provide supports, etc. DBHDS takes the position that other non-licensing mechanisms of quality improvement address these issues. These other mechanisms include the DBHDS HCBS Waiver program audits and the DBHDS Internal Auditors’ Operational Reviews, which are described above. The Quality Service Reviews (QSR), which were being conducted during this review period, will be an additional monitoring mechanism. Since beginning to conduct the QSR’s in 2015, DBHDS has discontinued its use of the OLS Supports Efficiency Checklist, which it had initiated as a nine-month pilot program to tighten scrutiny of case management effectiveness. DBHDS also discontinued its '360 degree' quality improvement process, which its quality management division had implemented to improve case management effectiveness.
In addition, the OLS Guidance for Selected Licensing Requirements (February 2015) details the evidence expected by Licensing for compliance with its regulations governing case management. These requirements, however, appear to be solely reliant on case manager interviews and documentation review. This approach overlooks an examination of individual needs, supports, and outcomes. For example, 12VAC35-105-675 requires that: “The provider shall review the ISP at least every three months from the date of the implementation of the ISP or whenever there is a revised assessment ...The provider shall update the goals, objectives and strategies contained in the ISP, if indicated, and implement any updates made.” This regulation generally includes the case manager, but when OLS reviews only the case management record, and not the experience and status of the individual,

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! there is no way to specifically test the case manager’s fulfillment of the requirement “...to make timely additional referrals, service changes, and amendments to the plans as needed (Section III.C.5.b).”
During 2015, there were more than 100 investigations/inquiries into complaints about sixteen CSBs. Only one of these investigations resulted in a corrective action plan. The implication is that, in a review of 100 case management records, no documentation deficiencies were identified. Based on the independent consultants’ study at least two of four CSBs (50%) performed significantly below DBHDS performance targets (20 - 23% discrepancies), specifically on case management performance items. These performance concerns should have resulted in one or more OLS citations for case management.
The Internal Auditors’ Operational Reviews specific to case management align with the Agreement. Only a few Operational Reviews are conducted in a year (five were issued in 2015). Given the rate at which the quality of case management services can improve or decline and the frequency of change in case management practice (e.g. a new ISP was rolled out before two of these reviews and after three of these reviews), an Operational Review on an average of every eight or nine years can only be a supplement to the needed and required case management monitoring function.
The Quality Service Review (QSR) templates for the Support Coordinator Interview and the Support Coordinator Record Review align generally with Agreement domains (V.D.3). These templates should help surface case management issues at the CSB level. The challenge will be to reliably assess case manager performance and then to translate shortcomings identified in QSRs into formal follow-up and corrective actions by OLS or some other entity. The Agreement requires that the product of these Reviews be used to “improve practice and the quality of services.” The consultant studies have found (and OLS’s experience confirms) that many problematic providers will ignore or give short shrift to this type of feedback unless they are held to a plan of action and specific follow-up.
OLS does not regularly compile the results of its licensing reviews into a report on trends related to compliance patterns across CSBs. The Data Warehouse capability that now exists within DBHDS gives OLS a tremendous ability to assess the health of the system vis-à-vis CSB performance.
The Commonwealth is in non-compliance with Section III.C.5.d., the requirement to have a mechanism to monitor CSB compliance with performance standards.
DBHDS is in non-compliance with the requirements of Section III.V.F.4. DBHDS does not yet have evidence at the policy level that it has reliable mechanism(s) to assess CSB compliance with their performance standards regarding case manager contacts. For October 2015, four CSBs (25%) did not report data on the number, type and frequency of contacts. Only sixteen of the twenty-one names (76.2%) provided for the case management study were correctly identified as having received enhanced case management.

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5. Crisis services

The Independent Reviewer has prioritized monitoring the development of the required statewide Crisis Services system during each of the eight review periods. For Virginians with a diagnosis of ID or DD a quality crisis services system is essential to prevent unnecessary institutionalization; this is the central purpose of the Agreement. During this review period, the Independent Reviewer engaged an expert consultant to complete a review of the status of crisis services development for children and the effectiveness of crisis services for adults with ID/DD.

The Agreement requires the Commonwealth to:

• develop a statewide crisis system for individuals with ID/DD; • provide timely and accessible supports to individuals who are experiencing a crisis; • provide services focused on crisis prevention and proactive planning to avoid potential
crises; and
• provide in-home and community-based crisis services to resolve crises and to prevent the removal of the individual from his or her current setting whenever practicable.

During this review period, the Independent Reviewer engaged an expert consultant to review the status of crisis services in order to answer the following questions:

• Has the Commonwealth sustained previously achieved compliance with its elements of its statewide crisis system for adults with ID?
• Has the development of crisis services for children achieved the planned milestones? • Has the Commonwealth actively reached out to children and adults with DD, other than
ID, to their families, and to their community organizations?
• What is the status of implementation of the recommendations included in the Independent Reviewer and independent consultants’ previous reports to the Court?

The Commonwealth developed crisis services for adults first. That development was a major undertaking. The crisis system was developed in collaboration with the CSB, which served individuals with ID, but not necessarily adults with DD, other than ID. To recognize the Commonwealth’s accomplishments of funding and developing the elements of the crisis service system, the Independent Reviewer has determined compliance with the elements of the statewide crisis services solely on the services for adults with ID. For the overarching crisis service system provisions, the Independent Reviewer has determined compliance based on whether the Commonwealth is providing an effective crisis service system for both children and adults who have a diagnosis of either ID or DD, other than ID.

The Commonwealth began developing its crisis services system for children well after the June 30, 2012 due dates in the Agreement. By December 2016, the Commonwealth now projects that mobile crisis teams for children will provide on-site mobile crisis team responses twenty-four hours per day, seven days a week, within one or two hours, as required in all Regions of the Commonwealth. A timely response to crisis calls is an essential precursor to providing crisis intervention services.

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 Therefore, during the tenth review period, a year from now, the Independent Reviewer will begin to determine compliance for all the crisis services’ provisions, based on their availability and effectiveness, for the entire target population of children and adults with either ID or DD, other than ID.

A. The Status Of Crisis Services To Serve Children And Adolescents

DBHDS established the following timelines for achieving the developmental milestones of its statewide Children’s Crisis Service System:

• a single point of entry in each region is in effect by July 2015; • a data system and data collection are implemented by July 2015; and • all crisis calls are responded to within defined standards 60% of the time by December 2015,
80% by July 2016, and 95% by December 2016.

The number of reported referrals to children’s crisis service programs increased from 97 to 108 from the first half of the review period through its second half. The pattern of times of day and days of the week for reported referral calls, however, is similar to the pattern for the established adult crisis programs. The number of referrals ranged dramatically between Regions, from forty-three in one Region to seven in another. This number of referrals does not include information from two Regions’ REACH programs. Each was unable to report the number of referrals during one half of the review period. In addition, other Regions’ referral data did not align between reports. These statewide data, therefore, cannot be considered complete or reliable.

Of the referrals reported, a significantly higher percentage (88%) have been children with DD, other than ID, compared with 12% of the referrals for adult crisis services. DBHDS gives credit for reaching a higher percentage of children than adults with DD, other than ID, to direct referrals from schools and referrals from the families of students who were made aware by their schools of the availability of crisis supports. All outreach by the REACH programs to the schools will positively impact the knowledge of families of students with any intellectual or developmental disability.

The REACH mobile crisis staff responded onsite within the average required response times required by the Agreement. Response time data were not provided for the first half of the review period. For the second half, however, only two of sixty-four (3.1%) onsite responses were later than the standard of one hour in Regions II and IV and of two hours in Regions I, III and V. The data reported were incomplete. The required responses varied disproportionately between Regions. One Region reported that there were no crisis calls for three months. Two Regions reported always arriving within the required response time, but there were inconsistencies in the data. Region I’s crisis system for children is not organized to respond to crisis calls after normal working hours and on weekends.

Mobile Crisis Services for Children

During this review period, mobile crisis services for children served an increased number of children.

The number increased 11.3% from 97 served during the first half of the review period to 108 during

the second half. The data indicate that a higher percentage of these children returned to their homes

after receiving crisis services and did not need further crisis supports. This may be an indication of

increased program effectiveness. During the second half of the review period, four Regions reported

providing more than the required average of three days of support per child. The crisis education

prevention plans (CEPP), which are required for all children served, were not provided to some

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 children. Data were incomplete for the first half of the review period. One Region was not able to report what types of services it had provided.
Crisis Stabilization Programs/Crisis Therapeutic Homes for Children
The Children’s REACH programs do not have crisis stabilization homes, now called crisis therapeutic homes (CTHs), in any of the Regions. Such programs are required by the Agreement. DBHDS plans to issue an RFP by May 1, 2016 to develop community-based, out-of-home crisis respite services during Fiscal Year 2017. During the Fall of 2016, the Commonwealth plans to determine the capacity that it will need to provide children and adolescents with community-based “last resort” alternatives to avoid unnecessary institutionalization.
DBHDS has developed seven performance criteria for its expectations for the statewide Children’s Crisis Services system. Data reporting will begin during the next review period. DBHDS projects that the regional programs will meet expectations as of December 2016, during the tenth review period.
Preventing Unnecessary Institutionalization of Children
The REACH staff participated in pre-admission screenings for twenty-six of the sixty-three children with ID/DD (41.3%) who were known to have been admitted to psychiatric hospitals during the reporting period. This increased percentage reflects REACH being better informed of the potential admissions. REACH was not notified of the preadmission process for thirty-seven of the psychiatric admissions (58.7%). The Commonwealth acknowledges that it is not aware when children and adolescents with ID/DD are screened for admission to private psychiatric facilities, how many are admitted, the length of their stays, or their disposition when discharged. The Commonwealth cannot fulfill the Agreement’s central purpose of preventing unnecessary institutionalization when it is not notified of potential admissions to public and private psychiatric facilities. The impact of not being notified and of not being able to prevent unnecessary institutionalization was highlighted by the Office of the State Inspector General’s (OSIG) recent investigation of conditions at Virginia’s only state operated psychiatric facility for children and adolescents. The OSIG reported that, “children and adolescents with ID/DD and ASD (Autism Spectrum Disorders) are the fastest growing specialty population being admitted to the Commonwealth Center for Children and Adolescents, accounting for approximately 27% of the total admissions.”
B. Crisis Services for Adults
Outreach and Services To Adults With DD, Other Than ID, And The DD Community
On January 12, 2016, DBHDS sent a letter to all individuals, who are either receiving DD waiverfunded services or are on the waitlist, and their families. DBHDS reported that this letter and the actions described below are parts of DBHDS’s implementation of a plan to reach out to individuals with DD, their families, providers and the broader community serving individuals with DD, other than ID. The letter:
! explained the availability of REACH crisis services for children; ! provided an internet link to REACH information on the DBHDS website; and ! described how to access REACH services in each Region.

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! DD Case Managers are now receiving training and information regarding REACH services. CSB Emergency Services staff have received training to help them understand that REACH services are also a resource for individuals with DD. REACH staff have presented at statewide and local conferences to educate families and providers. DBHDS has enhanced its communication with stateoperated and private mental health hospitals. DBHDS continues to work with other partners including Commonwealth Autism Service, Virginia Autism Center for Excellence and the Arc of Virginia to help distribute information about the REACH Programs.

During this review period, there was a significant increase in the percentage of individuals served who had DD, other than ID. In previous periods, only five percent of those served had DD, other than ID. During the first half of this review period this increased to ten percent of all served. During the second half of the review period, thirteen percent of the individuals served had DD, other than ID

Mobile Crisis Team Availability

REACH Mobile crisis teams were again found to be available and to respond twenty-four hours per day, seven days per week. All Regions’ mobile crisis teams coordinate with CSB hotlines.

Sufficient Number Of Mobile Crisis Teams To Provide Timely On-Site Response To Crisis Calls

To increase capacity to provide timely response, staff have been added to the existing REACH Teams; new teams were not created. The added staff have resulted in sufficient capacity to provide onsite crisis responses for adults within the one and two hour requirements. Regions II and IV are urban areas and, therefore, must respond to crisis calls within one hour. Across all Regions, the mobile crisis teams arrived onsite within the required times for 529 of the 553 responses (93.7%).

The Commonwealth is in compliance with Sections III.C.6.b.ii.G. and III.C.6.b.ii.H.

Availability of In-home Supports
The five Regional REACH programs vary in the number of individuals who receive in-home services and in the total number of days of community-based crisis services that are provided. For the reporting period, the average number of days of provided in-home support exceeded three days. Each Region provided an average of three days or more during the second half of the period.

The Commonwealth is in compliance with Sections III.C.6.b.ii.D. and III.C.6.b.ii.E.

Effectiveness of Mobile Crisis Team Services

As reported previously, the Commonwealth has developed a comprehensive training program for mobile crisis staff. The training program includes a process to reinforce learning through supervision, team meeting discussions and peer review. The Independent Reviewer’s qualitative review during the previous reporting period found that the mobile crisis services provided, however, were considered not effective. More expertise was required for effective support of individuals who are at risk of institutionalization. That review also found that REACH staff had not assisted individuals’ support teams to identify and to secure the resources needed (e.g., providers with expertise in co-occurring conditions; behavioral support services; counseling, etc.). The REACH

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 teams had not provided Crisis Education Prevention Plans (CEPP) for many of the individuals who were studied.
At that time, DBHDS established the following standards to improve the quality of REACH crisis services for adults:
! increased educational and experience qualifications for crisis services staff; ! mobile crisis services staff will join the CSB ES staff for all on-site assessments; ! the provision of Crisis Education Prevention Plans and preventive follow-up services; and ! crisis staff to follow all individuals admitted to psychiatric hospitals.
The study during this review period found that two Regions had consistently implemented the standards that all individuals receive both Crisis Education Prevention Planning (CEPP) and crisis prevention follow up services. Two other Regions, however, did not provide CEPPs to many individuals. One Region provided prevention follow-up services to only ten percent of its participants. Another Region’s REACH crisis services did not provide prevention follow-up services.
From the data provided during this review period, it appears that REACH services for adults are providing improved prevention support. During this reporting period, eighty-four percent of the individuals who received mobile crisis services maintained their residential setting. Another five percent of the individuals moved to a new appropriate community setting. Another four percent used out-of-home crisis stabilization services, but their final dispositions were not reported.
DBHDS reported completing case studies and quality reviews of the crisis services provided during this review period. The Commonwealth did not provide the results of these quarterly quality reviews to the Independent Reviewer’s consultant for consideration. Without qualitative data available, it is not possible to determine the effectiveness of the services and supports provided and not possible to determine that compliance has been achieved.
The Commonwealth is in non-compliance with Sections III.C.6.b.ii.A. and B.
REACH Training of CSB Emergency Services staff, case managers and other stakeholders
The crisis services staff of the five regional REACH programs provided training to more than 2,000 individuals during this review period. The Regions continue to train CSB Emergency Services staff and to report on this quarterly. The Commonwealth reported that 101 Emergency Services staff were trained statewide. This is a significant increase from the two previous reporting periods. The REACH training is in addition to all new Emergency Services staff completing the standardized on-line curriculum. Previously, DBHDS required that all new case managers and CSB Emergency Services staff receive training using the DBHDS on-line material. On March 4, 2016, DBHDS required that all existing staff be trained by June 4, 2016, and that all newly hired staff be trained within thirty days of being hired.
During the review period, REACH provided training to 395 law enforcement officers. This is an increase over the 332 and 224 officers who were trained during the previous two reporting periods. DBHDS has made additional information available to law enforcement departments through its website. It has also retained Commonwealth Autism to provide more comprehensive training directly

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! to law enforcement personnel in the future. The independent consultant’s study did not assess the effectiveness of the mobile crisis teams’ work with law enforcement personnel.
The amount of training that REACH provided during this period is impressive. There are, however, significant disparities in the trainings provided between Regions. For example, in one Region 96.8% (121 of 125) individuals trained were hospital staff. Although 307 family and other caregivers received training statewide, one Region did not train any caregivers. Two Regions trained far fewer law enforcement officers.
The Commonwealth remains in compliance with Sections III.C.6.b.i.B.and III.C.6.b.ii.C.
Crisis Stabilization Programs
All five Regions continue to provide out-of- home crisis stabilization programs (which DBHDS calls Crisis Therapeutic Homes) for adults, as required. During the eighth review period, these programs:
! complied with the Agreement’s prescribed purposes: to provide a short–term alternative and “last resort” option to avoid unnecessary institutionalization;
! served individuals with more significant needs by eliminating previous exclusions due to homelessness or for medical and physical care needs; and
! provided needed crisis stabilization services for 297 adults with ID/DD.
DBHDS eliminated the requirement that only individuals with a confirmed discharge plan could be served. It is also positive that the crisis stabilization programs are used for planned respite for individuals who are at risk of crises and to facilitate the return of individuals from psychiatric hospitalizations to the community. In each Region, the policy to allow individuals without a home address to be served has resulted in at lease one or more individuals to remain longer than the Agreement’s explicit limit of thirty-day stays. The reasons for longer stays appear to be inadequate community-based provider capacity to support individuals with challenging behaviors and the lack of residential services under the existing DD waiver program. Stays of more than thirty days, which are longer than needed to stabilize the crisis, undermines the previously reported effectiveness and the programs’ availability for other individuals who are in crisis. The Commonwealth has not provided information for this review of the specific number and lengths of stay that exceeded thirty days, although, this information was requested in the consultant’s previous report and specifically not allowed by the Agreement.
One Region will soon move its Crisis Stabilization program to a community-based setting. Another Region’s program has seven beds. This is one more than is allowed by the Agreement, but the bed is rarely used. This Region is implementing a plan to develop a new crisis stabilization home that will comply with the six-bed maximum. The new home will be available during the next review period.
There are waiting lists for access to all of the crisis stabilization homes. Case managers and stakeholders report that referrals to these programs are not made for individuals who need them because of the lack of availability. The Region with the longest waiting list for its Crisis Therapeutic Home has individuals remaining longer that the maximum allowed thirty-day stays; these extended stays are for individuals who do not have an alternative home setting.

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! To regain a rating of compliance, the Commonwealth must limit the use of its crisis stabilization homes to planned respite to prevent crises and to stabilize individuals in crisis. These program settings for not designed as emergency housing of individuals who are homeless.

Despite the waiting lists and feedback from case managers regarding unmet needs, the Commonwealth has not yet determined whether additional crisis stabilization programs are necessary in each Region to meet the needs of the individuals who are eligible for crisis services in that Region.

During the tenth review period, the Independent Reviewer will determine compliance for crisis stabilization provisions based on whether the Commonwealth has effectively implemented the crisis stabilization services for children and adolescents.

In summary, the elements of a statewide crisis service system are in place for adults with ID. The REACH programs for adults are now serving a significantly increased number of Individuals with DD, other than ID. For adults, a Crisis Stabilization program operates in each region and complies with the Agreement’s prescribed purposes: to provide a short–term alternative and “last resort option” to avoid unnecessary institutionalization. Compelling evidence indicates that the capacity of these services is not sufficient for adults. The Commonwealth has determined that the existing Crisis Stabilization programs are not sufficient to meet the needs of the target population. It has not yet determined, however, whether additional capacity is needed in each Region to meet the needs of the target population in that Region. It has not, therefore, developed an additional Crisis Stabilization program in each Region. For children, the Crisis Stabilization programs, have not yet been developed. The Commonwealth has made considerable progress during the past year with the development of the other elements of crisis services programs for children. The Commonwealth has not yet, however, demonstrated that these elements are in place and fully functioning for children with ID or DD. Referral and call data indicate that DBHDS’s outreach to individuals, families and the DD community has informed them of the availability of the REACH crisis services. Children and adolescents are using and benefitting from these services. The REACH performance data that demonstrate whether the crisis services elements are fully functioning for children and adolescents, however, are incomplete and inconsistent.

Overall, the REACH teams are directly responding to crises more often. They are providing mobile supports and they are offering the Community Therapeutic Home programs to adults for crisis stabilization, prevention, and transitions from hospitals. Most individuals with whom REACH is involved are supported to stay in their existing setting.

The Commonwealth’s records and data that are available cannot substantiate that services are sufficient to prevent unnecessary hospitalizations. Nearly twenty percent of adults and children who were referred to REACH were hospitalized after the initial mobile crisis assessment. The data do not include sufficient information as to whether all of these admissions were clinically necessary or whether children and adults remained hospitalized past when they were ready for discharge due to a lack of sufficient, appropriate and effective community resources. The Office of the State Inspector General (OSIG) has recently completed two reports regarding the admission to state operated psychiatric facilities of individuals with ID/DD and co-occurring behavioral health conditions. Both reports found a substantial increase in the number of individuals with ID/DD admitted. During 2015, there was an eighty-one percent increase in the admission of adults with ID/DD, including Autism Spectrum Disorders, to state operated adult psychiatric institutions and to the Hiram Davis Medical Center. During 2015, fifty-five children with these diagnoses were admitted to

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! Commonwealth’s only state operated psychiatric facility for children. Both reports found that these facilities do not have the capacity to adequately protect, or to provide needed services, to these members of the target population. For individuals with ID/DD receiving services in these facilities, the OSIG also reported:
! a lack of needed specialized services, ! many disadvantages to providing services in these settings, and ! the inability to discharge when individuals are ready due to limited community-based capacity
to support these individuals.
Therefore, in summary, based on the above findings, it has been determined that the Commonwealth is:
! in non-compliance with Section III.C.6.a.i-iii.; ! in compliance with Section III.C.6.b.iii.A.,B., and F.; ! in substantial compliance with Section III.C.6.b.iii.D.; and ! in non-compliance with Section III.C.6.b.iii.C. and G.
The independent consultant’s report (Appendix D) includes a detailed description of the review process, the information gathered, findings, analysis, conclusions and recommendations.
6. Behavioral Capacity
During this period, the Independent Reviewer’s consultant studied the sufficiency of the
 Commonwealth’s behavioral support services for individuals with ID/DD. In her previous
 qualitative review of the REACH crisis services, she reported that the temporary crisis services
 provided by REACH could be effective only if they are part of a continuum of effective community
 based supports and services for individuals with co-occurring conditions or intense behaviors. 
 DBHDS acknowledges that the Commonwealth does not have the capacity to meet these
 individuals’ needs and reported that it is taking the steps described below.

On July 15, 2015, the Commonwealth issued an RFP to develop residential homes and other
 community-based services for at least sixty individuals with ID/DD and intense behaviors and/or
 mental health issues. This new capacity will be targeted to meet the needs of fifty-five individuals
 who have these needs and who will be transitioning from the Southwest Virginia Training Center
 (SWVTC). DBHDS estimates that 200 more individuals with similar needs also live in Region III. It
 appears clear, therefore, that the additional capacity to serve “at least sixty individuals” will not be
 sufficient to meet the needs of the 255 individuals that DBHDS estimates need these services in the
 region. For the individuals with behavioral challenges who will be served, DBHDS expects to 
 develop a comprehensive set of services and supports that include: 

! residential and day services appropriate to individual needs; 
 ! in-home crisis supports and out-of-home crisis stabilization; 
 ! step-down crisis stabilization from mental health facilities, large ICFs, and jails; 
 ! cross-system crisis prevention and intervention planning; and 
 ! specialized staff. 


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! Staff will include Board Certified Behavior Analysts (BCBAs) and certified Behavioral Support Professionals (BSPs). In response to the RFP, DBHDS expected to make awards to the selected provider during this eighth review period, but had not done so as of April 29, 2016. DBHDS has funding available and is considering issuing a similar RFP during Fiscal Year 2017 to develop additional capacity to provide needed behavioral support services in Region II.

DBHDS has implemented initiatives to expand the number of staff who are certified BSPs in Region III and throughout the regional REACH programs statewide. A BSP training program is scheduled to begin in May 2016 for twenty-two professional staff. Changes have been made in the structure of the program to increase the percentage of staff who will complete the training and become certified. BSP training has been funded for the staff of the REACH Children and Adult crisis service programs. To attract more BCBA trained professionals to serve individuals with ID or DD who have behavioral challenges and who experience crises, the Commonwealth redesigned waiver programs have established a higher differential pay rate for BCBAs. DBHDS defined behavioral support competencies for direct support and clinical staff. These were issued in August 2015. Competencies are defined for two levels of staff: qualified DD professionals and behavior interventionists. There is an extensive list of competencies to assist staff to more successfully plan, assess. and deliver support services for individuals with behavioral challenges.

The Commonwealth’s community-based service system needs to develop significant additional capacity for the entire crisis support system to be effective and responsive and to meet the needs of individuals with intense behavioral needs. The Commonwealth does not have sufficient communitybased crisis stabilization service capacity to meet the needs of the target population in the Regions.

The Commonwealth is in non-compliance with Section III.C.6.b.iii.E

Focus group participants expressed concerns about the limited capacity throughout the service system. The areas of limited capacity include the insufficient number of Crisis Stabilization programs; the woeful lack of behavioral support professionals; and the shortage of residential, day, and respite providers. Participants expressed dissatisfaction with psychiatric hospital services that are available to individuals with ID/DD. Many participants reported that these facilities have little expertise to address the unique needs of either adults or children with ID/DD. Due to the lack of available capacity, children frequently are admitted to psychiatric hospitals far away from their families and natural support networks. The OSIG reported that at the eleven percent of the adults who were ready but waiting for discharge from state operated psychiatric facilities had ID/DD.

While REACH crisis services were often complimented for specific work in Region III, participants in the two focus groups, and others who were interviewed, openly acknowledge both the fragmentation of the system for children and the lack of adequate resources for both children and adults who experience crises. Their experiences with and opinions about the existing crisis services echo those of the OSIG’s recent report:

“Virginia lacks a system of adequate community-based services and supports, and appropriate settings to serve children and adolescents with ID, DD, ASD and forensic involvement. Until adequate programs are operational in the community, CCCA will continue to face challenges with bed capacity and possession of the staffing and programmatic resources necessary to provide quality services to diverse populations.”

The Commonwealth is in non-compliance with Section III.C.6.b.iii.G.!

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7. Integrated Day Opportunities and Supported Employment

A. Integrated Day Opportunities

The Agreement seeks to provide services in the most integrated setting appropriate to meet the needs of those served. The Commonwealth’s system of waiver-funded day services largely governs how and where adults with ID waiver-funded services live their days, at least their weekdays. The structure and expectations of day services ultimately determine whether what these individuals do is meaningful; whether they have the opportunities to seek work; and whether they have regular opportunities to interact with non-disabled individuals in their communities. This is why the overarching requirement of the day services section of the Agreement is:

“To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.”

The Commonwealth recognizes that the service definitions and pay rates of its existing HCBS waiver programs created strong incentives to provide day services in larger congregate centers rather than to provide more integrated opportunities. After three years of planning, the General Assembly has approved the redesign of Virginia’s Home and Community-Based Services waiver programs. The substantial changes requested of the General Assembly were designed, in part, to help the Commonwealth to come into compliance with the Agreement and with the Center for Medicare and Medicaid Services’ Final Rule for HCBS ID/DD waiver programs.

During this review period, with rare exceptions, the providers of HCBS waiver-funded programs still did not offer integrated day activities to individuals who are not employed.

B. The Employment First Policy

The Commonwealth has maintained its membership in the national State Employment Leadership Network (SELN). It issued an Employment First Policy in 2012. The Commonwealth included a term in the CSB performance contract that requires application of this policy. DBHDS has an Employment Services Coordinator position, which was filled from the beginning of the Agreement until January 2016. DBHDS is currently recruiting to fill the position.

The Agreement requires the Commonwealth to ensure that individuals in the target population are offered employment as the first day service option. The Agreement and the policy require that:

“Employment goals are developed and discussed at lease annually through a person-centered process and included in the ISP.”

The independent consultant found that in a small sample of ISPs reviewed “there was no indication that CSBs are in compliance … regarding employment planning for members of the target population or with the requirement to include employment related or readiness goals.”

The independent consultant who completed the case management study found that the discussions of employment had occurred for a randomly selected sample of twenty-three adults, but rarely

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! included the discussion of goals toward employment. The ISP teams for these adults subsequently recommended Day Support services for twenty-two of the adults (96%). None were offered regular integrated activities or activities that engage them in seeking employment services. These recommendations are consistent with perpetuating a day service system in which individuals with ID and DD are congregated in large groups and served in segregated rather than integrated settings.
The Commonwealth and the CSBs are not meeting the requirement to have employment goals included in the employment discussion during the individual planning process.
The Commonwealth is in non-compliance with Section III.C.7.b.
C. The Employment Implementation Plan
The Employment First Plan for FY2016-2018 was revised on December 29, 2015. The revisions to the plan lack specificity, do not report progress toward reaching the earlier plan’s goals, do not include the action plan for implementation, and do not include the involvement of the Regional Quality Councils.
D. Integrated Day Activity Plan
The Agreement required the Commonwealth to develop an implementation plan, by September 6, 2012, to increase integrated day opportunities. The Commonwealth submitted an Employment First Plan, not a plan to increase day services in integrated settings for individuals in the target population who were not employed. The Independent Reviewer directed DBHDS to develop a plan by March 31, 2014. The Independent Reviewer asked the Commonwealth to describe its approach to create integrated day activity capacity throughout its provider community and to ensure that individuals in the target population will be able to participate in these integrated activities as the foundation of their day services. During the current review period, DBHDS submitted the revised “Community Engagement Plan FY2016-FY2018” on December 29, 2015.
The Commonwealth has planned and implemented some steps that should lead to increased integrated day opportunities including supported employment. The Commonwealth’s redesigned HCBS waiver programs include a definition for integrated day activities, which DBHDS now refers to as Community Engagement. DBHDS has also added new service definitions related to providing integrated day services. Each includes a service definition, a list of allowable activities, and pay rates. The definitions are clear and the allowable activities are extensive. This effort should, over time, further the availability and success of integrated day activities. DBHDS has created the Community Engagement Advisory Group (CEAG) with broad stakeholder membership to provide advice regarding how to increase integrated day activities.
With the input of the Community Engagement Advisory Group, DBHDS drafted a comprehensive Community Inclusion Policy. This policy sets the direction and clarifies the values of community inclusion for all individuals with ID/DD, regardless of the severity of their disability. The policy promotes the use of natural supports and opportunities at naturally occurring times rather than to limit activities to weekdays and daytimes. This policy, if effectively and broadly implemented, should lead to an increase in integrated day services and to positive outcomes for individuals.

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! The DBHDS and the CEAG have developed a robust definition of Integrated Day Activities, which it now calls Community Engagement. These definitions are used to describe this service type in the redesigned HCBS waiver program. This definition of integrated day activities assures that the activities are meaningful. It also assures activities are available at times so an individual will be able to have an active, community-based daily routine. Integrated Day Activities will include community education or training and recreation and volunteer activities. The definition is outcome focused. Integrated day activities must be offered in the community, facilitate the development of meaningful relationships with typical individuals, and facilitate community inclusion. Transportation, which is included, will be a key element to successfully offering these services. The Independent Reviewer commends DBHDS for developing this comprehensive definition of integrated day activities.

The plan to develop integrated day activities, however, is not a sufficiently comprehensive implementation plan. The written plan lacks essential elements. Community Engagement is a newly defined service in the redesigned HCBS waiver programs. For individuals to be provided such services they must be included in the individual’s ISP. Case managers will assemble the ISP team members to develop the ISP. Yet, the plan did not describe training for case managers. The development of an ISP requires a person-centered planning process. The plan did not include specifics about how to build community engagement into the person-centered planning process. The existing providers of day services typically offer day support programs in large congregate centers. Many providers have invested financially in these large buildings and have created a human resource structure to provide services in them. The plan did not include an assessment to determine the additional provider capacity that will be needed or the action steps to reach out to existing day service providers. It did not include a description of efforts to build provider capacity; it projects that incentives to provide the integrated day services will be developed in July of 2017. The Commonwealth states that, although its written plan does not describe these activities, that many of the elements that are not described are being, and will be, addressed. The Commonwealth did not provide this additional information to the independent consultant during her review. This information is not, therefore, included in the consultant’s report, and was generally not included in determining the status of the Commonwealth’s planning and implementation efforts.

Several initiatives to shift day services toward integrated activities are well underway:

• Pay rates have been developed for community engagement, community coaching, and community guides. They have been approved to be effective on July 1, 2016.
• DBHDS issued an RFP for Community Engagement on July 9, 2015, to assist two providers serving at least 100 individuals to convert from center-based programs to Community Engagement. The grants were to be awarded by the end of the review period, but the awards have been delayed.
• Some provider agencies report having started to increase community-integrated activities for individuals who are currently in the center-based programs.
• Providers have identified areas where there is momentum that will further the development of Community Engagement services and that will address the obstacles that need to be resolved. These providers have applauded the responsiveness of DBHDS staff and the quality of the support that these staff have provided.

The plan has established objectives in several areas. The CEAG is to work with Regions to identify additional providers of Community Engagement by March 31, 2016 and to work with stakeholders

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! to determine how to create incentives by July 1, 2017. Fact sheets have been developed for providers, families and individuals concerning the general importance of Community Engagement. The CEAG is scheduled to develop a training curriculum, detailing how to involve individuals in Community Engagement, by June 1, 2016. The CEAG plans to collect information on best practices and to identify these practices for providers.
Some of the actions needed to implement goals are on track; some are partially on track; and some have not yet been implemented. The timelines for completing these actions range from June 30, 2016 to June 30, 2017. As of April 19, 2016, the Employment First Advisory Group has drafted quality outcome measures.
At this time, although there are promising initiatives underway, the Commonwealth remains in non-compliance with Sections III.C.7.a. and III.C.7.b.i .
E. Training
DBHDS continued to provide education to other state agencies. In this quarter, the Department’s staff provided technical assistance to DMAS staff and formal training to DARS and DBHDS staff about currently allowable employment services under the HCBS waivers.
DBHDS also provided regional training on the Employment First policy and strategies. During the first half of this review period, DBHDS trained 165 family members, CSB staff, advocates, provider staff, transition teachers and supervisors. During the second half of the review period, DBHDS provided regional training to five new potential providers and technical assistance to four service providers. The training sub-group of the Employment First Advisory Group (formerly, and as described in the Agreement, the SELN Advisory Group) had drafted training materials for case managers and had developed a fact sheet on workplace assistance.
DBHDS is in compliance with Section III.C7.b.i.A.
F. Data Collection
DBHDS worked with the SELN and in partnership with the Virginia Department for Aging and Rehabilitative Services (DARS) to refine its approach to data collection. The Commonwealth made progress collecting data by gathering it from Employment Service Organizations (ESOs) and DARS. It also gathered more detailed data about individuals who are employed and who are in sheltered work. The Commonwealth has vastly improved its data collection since October 2014. The Commonwealth acknowledged that the data reported during earlier review periods, prior to the spring of 2015, had been faulty and incomplete. Since beginning to collect these data, the response rate from ESOs has increased from forty-four percent in October 2014 to ninety-three percent in December 2015. Data to be gathered were expanded to include information about members of the target population who receive employment services funded by DARS. It is helpful that DBHDS has been able to increase the accuracy and comprehensiveness of the employment data regarding the number of individuals with disabilities who are employed.

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! The data collected showed a substantial increase in certain areas. This change is understood to be a result of earlier incomplete and faulty data.
The Commonwealth has continued to obtain more comprehensive data. In its semi-annual report on employment, the Commonwealth included statewide data and analysis, goal setting for Individual Employment, summaries, and recommendations. These data are from points in time in June 2015 and in December 2015, respectively. While representing points in time, these reports can be compared on a semi-annual basis. Such comparisons over multiple years allow stakeholders and reviewers to note trends in progress or areas of regression or stagnation.
G. Average length of time at current job
The Commonwealth’s December 2015 report is the first in which detailed information is reported distinctly for Individual Supported Employment, Group Supported Employment, and Sheltered Work. The average length of time for individuals with ID at their current jobs through Individual Supported Employment is six years, with a range of zero to thirty-two!years. Individuals with DD in Individual Supported Employment worked an average of three years. Further details are included in the independent consultant’s report (Appendix E).
The Commonwealth expects that eighty-five percent of individuals will hold their jobs for at least twelve months. The Commonwealth has exceeded this expectation. Eight-eight percent of the individuals have worked at their jobs for one year or more in Individual Supported Employment and ninety-one percent of the individuals have held their jobs for one year or more in Group Supported Employment.
H. Earnings from Supported Employment
DBHDS collected information regarding wages and earnings (see Appendix E, pages 180-182 for details). Its data reflect information from ninety-three percent of all providers and eighty-nine percent of the providers who offer HCBS waiver funded services. The collected information also includes all of the data from DARS. This is significantly improved from previous data collection. DBHDS can now report on earnings and on the length of time individuals have been employed. It is positive that more individuals were employed in December 2015 than were in June 2015. There were 272 additional individuals engaged in Individual Supported Employment. Fewer individuals received Group Supported Employment. The sum total of individuals in supported employment increased by one hundred and fifty-four individuals.
It is very positive to have data that include all individuals with ID and DD who are employed, rather than data that are limited to only those individuals who are employed using HCBS waiver funded services. DBHDS now has more accurate information related to employment about both the ID and DD populations. It is encouraging that more individuals are employed and earning wages. However, it is a concern that more individuals are receiving pre-vocational services, which are typically provided in large congregate settings and which typically do not include regular activities in integrated community settings.
DBHDS is in compliance with Section III.C.7.b.i.B.1.a, b, c, d, and e

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I. Setting and Achieving Employment Targets

The Commonwealth continues to use the goals it developed in March 2014 for the number of individuals who will be receiving Individual Supported Employment through HCBS waiver-funded services. The Commonwealth established a baseline of 204 individuals in Individual Supported Employment as of July 1, 2014. At that time, there were 677 individuals receiving wavier-funded Group Supported Employment. On December 31, 2015, the Commonwealth reported that 211 individuals who were receiving HCBS waiver-funded services were employed in Individual Supported Employment. (ISE) The number of individuals employed in ISE was approximately thirty-seven percent (37.1%) of the Commonwealth’s target of 568 individuals as of July 1, 2015 and less than twenty-three percent (22.6%) of the target of 932 that was set for July 1, 2016.

The Commonwealth has revised its overall target for employment to include all of the eligible individuals with ID or DD and all of the employment options available through either DBHDS or DARS. To establish its target, DBHDS used the national average that twenty-five percent of individuals with ID and DD participate in employment services. By using the national average, the Commonwealth has significantly increased the overall targets for this larger group from 1661 to 3660 individuals by Fiscal Year 2019. The Commonwealth is on track to reach this target. As of December 2015, 3036 individuals are in either Independent Supported Employment or Group Supported Employment.

J.

Individuals in Supported Employment

The Commonwealth’s current goal is for eighty-five percent of the total number of individuals who

are in Independent Supported Employment to remain employed for twelve or more months. As

noted earlier, the Commonwealth has surpassed this expectation. Because the Commonwealth

could not previously report accurately, it is not possible to know whether exceeding this target

reflects recent progress.

The Commonwealth is falling far short of its employment targets for the number of individuals who receive HCBS waiver-funded services. It is making significant progress towards its targets for employment that includes all individuals with ID/DD who are receiving DARS and other funding sources.

Building the capacity of service providers will be critical to the success of meeting these targets. Provider capacity seems especially critical in Regions I, III and IV. These Regions, especially Region III, still provide a preponderance of services in large sheltered work congregate settings.

The Commonwealth is in non-compliance with Section III.C.7.b.i.B.2.a and is in compliance with Section III.C.7.b.i.B.2.b.

K. Regional Quality Councils

The Regional Quality Councils (RQCs) met quarterly during the first half of Fiscal Year 2016. The five RQCs each reviewed the number of individuals to be employed in 2015 and the length of time individuals maintained employment. The RQC’s also reviewed the state’s achievement in reaching these targets and the targets for Fiscal Years 2016 to 2019. The RQCs were also informed of the supplemental targets set for individuals’ ISP teams to discuss employment options and to set

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! employment goals. All five Regions discussed the targets for the number of individuals employed and the barriers. All RQCs voted in favor of the multi-year target plan.
After Fiscal Year 2015 ended the five RQCs reviewed the number of individuals who are employed, the employment data regarding the target to maintain employment for twelve months, and the employment targets for future years. They voted to maintain the existing targets.
DBHDS is in compliance with Sections III.C.7.c or III.C.7.d

8. Community Living Options

The Independent Reviewer retained the same independent consultant who previously reviewed the status of Virginia’s Plan to Increase Independent Living Options in November of 2013 and again in November of 2014. This consultant’s previous reports are in the Appendices of the Individual Reviewer’s third and fifth Reports to the Court. These Reports are posted under the Settlement Agreement tab of the DBHDS website.

The Commonwealth has again made significant progress with some of its housing initiatives. During this review period, there was progress documented in the desired outcome of providing individuals with a “home of one’s own” with needed supports and services in place. Eighteen months ago, the Commonwealth was “making changes in its systems to move toward …” providing subsidized housing. At that time, the changes primarily involved work on readiness activities and aspirational goals that might offer actual subsidized housing in two to three years. Since July of 2015, ninety-one more adults with ID/DD are now living in their own homes with rental assistance and are receiving in-home support services. In addition, the Commonwealth is commended for providing permanent rental assistance vouchers to the individuals who had previously received temporary rental assistance through the Commonwealth’s Rental Choice VA program.

The consultant’s review found that the Commonwealth had achieved positive outcomes. With an increase of ninety-one individuals living in their own homes, the Commonwealth is now supporting 434 target population members to live in homes of their own. The Commonwealth is ahead of its milestone goal that 393 adults in the I/DD system would be living in independent housing by June 2016. In addition, the Commonwealth has already exceeded its goal to create 126 new independent housing options by June 2017. This was achieved because of the ability and willingness of Virginia’s Housing Development Authority (VDHA) and local Public Housing Authorities to designate 200 rent subsidies to provide housing options for the target population within an up-and-running state program. The VDHA also made adjustments to the Low Income Housing Tax Credit Program (LIHTC) to provide incentives for developers to offer subsidized rental units to individuals with ID/DD. DBHDS projects that these incentives contributed to developers being awarded tax credits for specific projects. These projects have the capability of yielding forty to seventy-five units, some of which will be ADA accessible for individuals with mobility impairments, in two to three years.

The Commonwealth has also begun several initiatives that will likely improve its ability to increase the pace at which it will be able to provide future independent living options. These include creating Housing Specialists for each Region, providing flexible funding to help individuals obtain and maintain housing; issuing an RFP to develop three model approaches, and providing on-line and training resources for case managers.

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! During the consultant’s review of the status of the housing plan, he met with state housing and service officials and with local housing and service advocates. In almost every discussion, these officials and stakeholders identified the limited existing provider capacity to provide scattered site support services as a key systemic obstacle. Without this concern being addressed and resolved, most questioned the Commonwealth’s ability to achieve future independent housing goals.
It is the consultant’s and the Independent Reviewer’s opinion that a strong provider system is the key element in the development of an array of integrated scattered site residential options. The Commonwealth has facilitated an additional ninety-one individuals to live in independent housing during the past nine months. This represents impressive progress, now reaching 434 individuals. The Commonwealth’s goal is that 1,866 adults in the ID/DD system will live in homes of their own. This goal was established by applying the current national average for the number of adults with I/DD who live in their own homes, which is approximately ten percent of individuals with I/DD identified by state I/DD agencies. There were 343 adults with ID/DD living in such housing when the initiatives began. Through March 2016, the Commonwealth had facilitated ninety-one additional adults with a home of their own. This is 6.0% of the goal of an additional 1523 required to reach the goal of 1,866 adults with a subsidized home of their own by June 2021. Accomplishing this goal will require independent housing to be provided to an additional twenty-four individuals during each of the next sixty months compared with providing fewer than ten per month during the previous year.
There appears to be a consensus that, as DBHDS and the CSBs move to rapidly expand the independent housing program, the most significant barriers to progress will be the limited existing capacity of Virginia’s service providers and the knowledge and preparation of case managers. Providing quality scattered site supports requires that providers develop and implement new program and business models. Staff turnover, staff training, staff supervision, emergency back up, and quality assurance take on more critical dimensions when the individuals served live in scattered sites. The development of new and additional provider capacity is critical to the Commonwealth’s ability to sustain progress. The extent of the organizational changes that are needed, however, is more akin to developing a new industry to support scattered site housing for people with intellectual and developmental disabilities. The Commonwealth’s HCBS waiver has provided incentives to provide congregate residential settings for individuals with average needs. As a result, while there are hundreds of ID and DD providers, there is a significant shortage of providers who serve individuals with intense medical and behavioral needs and service providers who provide supports to individuals in integrated settings.
The central role of the case manager is the second significant obstacle to sustaining an increased rate of providing independent housing. The case managers are very familiar with the historic and current default option of referring adults with ID to congregate residential options. In certain parts of Virginia, there is also good familiarity with the sponsored home option. To facilitate an adult with ID to live in his or her own home requires that case managers develop a new understanding of the providers that can “wrap services around” an individual who does not live in a provider owned group home. The service components to support an individual in independent housing are different from those required in congregate residential programs. In addition to arranging wrap around services, case managers will also need to understand both the local housing market and the landlords who are willing to partner with the program.

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! DBHDS has collaborated effectively with sister state agencies and with other organizations to achieve significant progress. With the commitment of the Commonwealth’s housing agencies to set aside immediately available housing vouchers for members of the target population, DBHDS’s housing team has facilitated coordination with local housing officials, landlords, in-home service providers, and case managers to coordinate the availability of subsidized housing with needed support services. The Commonwealth has successfully facilitated new subsidized housing and provided permanent rental assistance for those who participated in the one-time funded Rental Choice program.

The Independent Reviewer commends the Commonwealth for the achievement of the initial six percent of its independent housing outcome goal. The Commonwealth has taken steps, and has planned additional steps, that will likely increase the rate it facilitates the provision of independent housing units. To achieve compliance and accomplish its Independent Community Living Options goals, the Commonwealth must demonstrate that it can reach and maintain a higher pace of facilitating adults to move into homes of their own with rent subsidies and with needed supports. This will require that the Commonwealth address and resolve the current systemic obstacles to progress. These include provider capacity and case management, and doing so under the redesigned HCBS waivers.

The Commonwealth is in compliance with Sections III.D.3., III.D.3a, III.D.3bi-ii., and III.D.4.

The Commonwealth is in non-compliance with Section III.D.2. 9. Licensing and Investigations

The Commonwealth’s primary system for regulating the conduct of service provider agencies is the Offices of Licensure Services (OLS) and Human Rights (OHR). The effective functioning of OLS and OHR in accordance with the requirements of the Agreement, therefore, is critical to the goal of improving the lives of people with intellectual and developmental disabilities in Virginia. The OLS system is also the primary compliance mechanism for Community Service Board (CSB) performance under their contracts with the Commonwealth for the Case Management function. To accomplish the case management monitoring responsibilities outlined in the Agreement, however, DBHDS implemented supplemental non-licensing strategies.

An independent consultant was retained to study the licensing and investigation provisions of the Agreement. The consultant’s review assessed the quality of OHR and provider investigations of allegations of abuse and neglect and the effectiveness of the relationship between OLS and OHR. These two Offices operate in tandem to identify and address abuse and neglect. The review also assessed the coordination between DBHDS and DSS/APS/CPS (Department of Social Services/Adult Protective Services/Child Protective Services) when APS/CPS investigates allegations of abuse and neglect of individuals who live in settings funded by DBHDS. The review also evaluated DBHDS licensing and other strategies to ensure that case management services are of good quality, meet individuals’ needs, and help each individual achieve positive outcomes.

DBHDS has taken a significant step forward in its development of a Data Warehouse, a central repository of data and data analytics from one or more disparate sources. Evidence of the capabilities of the Data Warehouse is present in data reports received for this review of OLS/OHR review.

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! A. Provider Licensing

DBHDS licensing regulations align generally, but not specifically, with the expectations in the Agreement. The DBHDS licensing protocols (checklists) align generally with the licensing regulations. Licensing Specialists interview staff and clients to assess both whether actual services have been provided and whether the expectations of the licensing regulations and the Agreement have been achieved. The interview process, however, is still unstructured. The lack of structure to these interviews leads to wide variation in what Licensing Specialists examine.

OLS revised its Office Protocol, which guides Licensing Specialists in their conduct of the overall work of Licensing, during this review period. The revised protocol continues the improvements to the 2015 version, in terms of the areas to be assessed (Section V.D.3) and the required monthly follow-up on Corrective Action Plans (CAPs) until the cited conditions are corrected.

OLS has completed a number of other improvement initiatives. It completed a business-mapping process, implemented enhanced training opportunities, and generated analytics from the Data Warehouse. OLS revised and streamlined its complaint process with the addition of a fillable form suitable for emailing in to DBHDS (although it is difficult to find on the webpage). During 2015, twenty-one ID provider agencies had officially closed one or more licensed but underused or underperforming sites.

OLS sustained its practice of providing increased frequency of unannounced and more frequent licensing inspections.

The review of a sample of ad hoc OLS investigations suggests that Licensing Specialists give appropriate attention to detail and to fact gathering. Investigations that reveal regulatory compliance problems may evolve into Corrective Action Plan requirements of the provider. If so, Licensing Specialists verify and follow-up within forty-five days. In a study of case management services, the independent consultant found that too few investigations find regulatory violations (e.g. 100 reviews of case management records without identifying even one documentation deficiency).

During 2015, OLS placed only one ID provider on provisional status. This is fewer than the seven placed on provisional status in 2014. Further, one provider, who had been placed on provisional status for six months in 2014, received critical reviews in December 2015 and in January 2016 for a number of repeat citations. This provider was also cited for “systemic non-compliance.” As of March 2016, this provider was not placed on provisional status and further sanctions had not been applied. Another service provider, already on provisional status, was cited for numerous financial irregularities (e.g. issuing checks for staff payroll while knowingly having insufficient funds, etc.). There were no additional consequences beyond another CAP. This provider was removed from provisional status soon after these citations, but was subsequently cited for repeat violations. Following these latter citations, this provider was not placed on provisional status, was not otherwise sanctioned, and is not listed on the roster of “closed” agencies. Individuals with ID/DD are put at increased risk when providers are not required to correct deficiencies.

Although OLS has not regularly compiled the results of licensing reviews, reported trends or analyzed patterns across providers, it now has access to the information to do so. Information to complete such reports is now accessible through the Data Warehouse. Detecting and reporting patterns and frequencies in the results of licensing reviews across Regions, agencies and services will

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!
 help ensure that system improvements are discovered. It will also become a continuing source of information for the identification of needed guidance instructions, alerts, trainings, etc.
B. Rules and Regulations for Licensing Providers
The Independent Reviewer has reported frequently that where the Commonwealth’s Licensing regulations do not align specifically with the Agreement, they impede its ability to comply with many provisions of the Agreement. The Independent Reviewer reported in his second Report to the Court that the Commonwealth’s:
“regulations are reported to set low standards, to be broadly written, to be too vague to be effectively enforced, and to have not kept up with changes in the field of practice.”
The Commonwealth has acknowledged the need to revise its regulations to comply with the Agreement. The Independent Reviewer’s consultant reviewed the draft revisions, which DBHDS proposed in June 11, 2015. The Commonwealth reports that it is revising these draft regulations further to ensure that the revisions address all issues associated with the effective implementation of the Quality and Risk Management provisions of the Agreement.
As reported previously and as detailed in the consultant’s attached report (Appendix G), OLS appears to have the necessary regulatory tools to require improvements among substandard providers and to eliminate substandard providers who have demonstrated an inability or refusal to improve their services. The use of provisional status with only one provider and the notable and continued failure to use the other half dozen sanction tools suggest that an increased emphasis on the enforcement of regulations is necessary.
Based on this review of OLS, DBHDS does not have evidence at the policy level that OLS is identifying systemic patterns of compliance problems with the Agreement, including its “data and assessments” across the eight domains at Section V.D.3.
The Commonwealth continues to be in compliance with Section V.G.1. and 2.
 The Commonwealth is in non-compliance with the requirements of Section V.G.3.

C. Abuse and Neglect Investigations
OHR receives all initial reports of abuse or neglect in community settings through the CHRIS (Computerized Human Rights Information System) electronic incident reporting system. OHR then triages what type of investigation of abuse and neglect is warranted. DBHDS expects investigation of all substantive allegations. Some incidents may be forwarded to OLS for their investigation or for a joint investigation. Providers complete the largest share of these investigations. OHR reviews these investigations to confirm details and to identify if any components are missing before closing the reports. Summaries of the provider investigations are then entered into the Abuse Allegation Report (AAR) database. This electronic AAR database is not always complete. OHR has implemented quality improvements. Resources and additional strategies have been established. These include assignment of a quality improvement staffer who will audit both the electronic AAR database and samples of provider reports. These changes hold promise to positively impact OHR records. OHR is currently dependent on the quality of the AAR database to identify needed systemic

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! improvements. The usefulness of the AAR database is also dependent on the integrity of providers for the content of investigation reports and for the extent of the investigations.

The Independent Reviewer’s consultant reviewed twenty-seven investigation reports that were jointly completed by OLS and OHR in 2015. The consultant found that OHR may forward incidents to OLS for investigation of allegations of abuse and neglect. OLS is authorized by Virginia’s statute to determine violations of regulations and to require that providers implement Corrective Action Plans. The independent consultant found an apparently effective collaboration between OLS and OHR at the field and at the policy level.

OHR added a new quarterly sampling process to its Protocols, Procedures and Practices Manual. Through this process, OHR and OHR field staff will “look behind” a ten percent sample of closed provider investigations. OHR will compare their timeliness and content to OHR expectations. OHR expects that this “look behind” review process will identify areas where training or follow-up assistance is warranted in order to improve the investigative results that providers report to OHR. This is a positive quality improvement step for OHR. This step should result in actions taken that improve outcomes.

OLS cited twenty ID providers during 2015 for “late reporting” (i.e. longer than 24 hours); six of these providers (30%) had been cited for “late reporting” during the previous three years. Beyond Corrective Action Plans, there appear to have been no enforcement actions taken as a result of these repeat citations. However, the Independent Reviewer has found an improvement in timely reporting through his review of CHRIS reports for individuals who have moved from Training Centers. In addition, during FY 2014, fifty-eight provider agencies were cited for late reporting, suggesting a systemic improvement in timely reporting. DBHDS monitors and reports on the timeline for submissions. DBHDS documented that service providers submitted ninety percent of CHRIS reports within the requisite twenty-four hours following a reportable incident.

The consultant’s review determined that the investigation linkages between DBHDS and DSS appear healthy and continuous. DSS Adult/Child Protective Services accepted forty-seven investigations from OLS/OHR. Providers are consistently reminded by OLS and OHR to fulfill their obligations to report all incidents of potential abuse or neglect to DSS Adult or Child Protective Services. Communication was found to have occurred between these entities. A lack of communication, although it may occur in some individual cases, does not appear to be a systemic issue affecting the functioning of DBHDS.

Some OLS investigations of the deaths have not been completed in a timely manner and have not always included a review of the ISP and the case manager’s notes. This indicates that death reviews may be incomplete and may overlook significant events surrounding an individual’s death.

DBHDS has significantly improved timely reporting through its CHRIS electronic web-based incident reporting system.

DBHDS is in compliance with Section V.C.2.

DBHDS is moving toward, but remains in non-compliance with the investigational requirements at Section V.C.3. Progress is evident in improved timely reporting and in OLS monitoring implementation of CAPs. OLS investigations (except investigations into the deaths of individuals

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!
 who have moved from Training Centers) have also shown improved attention to detail, fact gathering and the development of related Corrective Action Plans. However, OLS is still not taking appropriate follow-up actions when a provider fails to implement Corrective Action Plans.
DBHDS has achieved compliance with Section V.C.2. regarding “timely reporting.”
DBHDS is in non-compliance with the requirements of Section V.C.6. to “take appropriate action”
when action is needed beyond Corrective Action Plans.

IV. CONCLUSION
!
The Independent Reviewer reported previously to the Court that the Commonwealth would 

remain in non-compliance with many of the core provisions of the Agreement until it:
 ! effectively implemented its primary strategy to come into compliance and 
 ! revised its regulations to align specifically with the requirements of the Agreement. 


The Commonwealth’s primary strategy is the redesign of its HCBS waiver programs. During this review period, the General Assembly approved the redesigned HCBS waiver programs and most of the additional funds requested to implement the redesign. Implementation is an immense undertaking. It will require broad systemic, service and program changes. It will also require the development of new provider capacity and program development throughout the state. ! The Commonwealth recognizes that revisions to its regulations are required. Revisions are needed to make further progress toward achieving compliance with many of the Agreement’s provisions. These include provisions related to quality management, risk management, data to assess and improve quality, quality improvement programs, provider investigations, competency-based training, case management, and licensing. These areas are central to achieving the overarching quality and risk management systems and the quality outcomes described in the Agreement. Well functioning quality and risk management systems and programs are especially critical during periods of change. Beginning in the next review period and continuing for at least the next two years, new programs will be developed, recently developed programs will be refined, and existing programs will be restructured to operate in accordance with the redesigned HCBS waiver programs and to achieve compliance with the provisions of the Agreement. It is essential that the Commonwealth revise its regulations as soon as possible, so that they align specifically with the requirements of the Agreement. Doing so will allow the Commonwealth and providers, throughout the period of implementation of the redesigned waiver program, to collect data, to identify and to address areas of concern, unintended consequences and risks of harm.

It is the considered opinion of the Independent Reviewer that the Commonwealth has far too few

service providers and qualified professionals available to meet the needs of the target population.

Almost all stakeholders, at all levels of the system and in all geographic areas, identify the lack of

adequate provider capacity as a major obstacle. The Commonwealth needs to significantly increase

the number of providers with the expertise and experience to provide services to individuals with

intense behavioral and medical needs, to individuals with Autism Spectrum Disorders, or to provide

such services in integrated settings. The Commonwealth recognizes the need to build new provider

capacity and to facilitate the conversion of existing provider capacity. It has taken important steps,

and plans to take additional steps, to develop additional capacity to serve individuals with intense

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! behavioral and those with medical needs in the community. The planned initiative will also expand its ability to serve individuals in community-based living arrangements and day activity programs in integrated settings. These plans, however, are currently targeted to specific geographic areas and to only a small percent of the current providers. Building sufficient provider capacity is one of the Commonwealth’s most significant challenges as it implements the redesigned waiver programs.
Two recent studies by the Office of the State Inspector General underscored the consequences of the lack of adequate community-based services for individual with behavioral needs. These studies documented increased admissions of children and adults with intellectual and developmental disabilities to state operated psychiatric facilities. The OSIG reports include descriptions of the disadvantages of individual with ID/DD receiving services in these facilities and that many individuals who are ready for discharge from them cannot be transitioned to community-based services because needed programs are not available.
During the eighth review period, the Commonwealth through its lead agencies, DBHDS and DMAS, and their sister agencies has maintained compliance with provisions that it had previously achieved. It received a new rating of compliance with requirement for timely reporting of incidents by providers, for improved employment data collection and review, and for facilitating access to subsidized independent living options. It lost a compliance rating as a result of the first qualitative review of the Commonwealth’s capacity to meet the needs of individuals with intense behavioral needs and for stays in it Crisis Stabilization programs in each Region that exceed the thirty-day maximum allowed. It continued to be in non-compliance with many provisions. These include discharge planning and transition of children from private institutional settings (nursing facilities and large ICF/IDDs), the lack of sufficient community integration opportunities in day services and living options, the lack of ISPs that promote skill development and increased self sufficiency, the lack of sufficient community-based Crisis Stabilization programs for adults and children in each region, and the lack of a fully functioning statewide crisis services system for children.
The Commonwealth and the Department of Justice have successfully negotiated four outcome timelines provisions, which, as written in the Agreement, lacked specificity, measurable outcomes and due dates. The categories are: Integrated Day Activities, Supported Employment, and Crisis Services for Children and Adults. The parties are currently negotiating outcome timelines for several additional topic areas of the Agreement. These included children who are now being raised in nursing facilities and large Intermediate Care Facilities, Quality and Risk Management, integrated housing, and supports for individuals with intense behavioral and medical needs.
The Commonwealth’s leaders are pleased to have the opportunity to begin implementation of its redesigned HCBS waiver programs during the upcoming ninth review period. Furthermore, they express strong commitment to the implementation of new services, of system reforms, and of initiatives to develop the capacity needed to achieve compliance. To achieve desired outcomes, the Commonwealth must coordinate and manage a major system reform. A immense effort will be required at all levels of the system and in all geographic areas. The Commonwealth’s regulations should be revised as soon as possible. Only with a fully developed quality and risk management system will the Commonwealth fulfill the requirements of the Agreement and its promises to all Virginians, especially those with intellectual and developmental disabilities and their families.

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!

V. RECOMMENDATIONS

The Independent Reviewer’s recommendations to the Commonwealth are listed below. The Independent Reviewer requests a report regarding the Commonwealth’s actions to address these recommendations and the status of implementation by September 30, 2016. The Commonwealth should also consider the recommendations and suggestions included in the consultants’ reports included in the Appendix. The Independent Reviewer will study the implementation and impact of these recommendations during the tenth review period (October 7, 2016 –April 6, 2017).
Transition of Children from Nursing Facilities and Large ICFs
1. The Commonwealth should ensure that the CSB case manager, Community Resource Consultant, and Regional Support Teams are involved ! before the non-emergency long-term admission of a child or adult with ID/DD to a nursing facility, large ICF, or other medical care facility, and ! during each individual’s stay to actively participate in the development of discharge and transitions plans to integrated settings that are appropriate to meet the individual and consistent with the individual’s/Authorized Representative’s informed choice. The Commonwealth’s process should ensure the identification, documentation, and resolution of barriers to placements in appropriate integrated community-based setting.
Individual and Family Supports Program
2. The Commonwealth should develop an overall strategic plan, with a clear vision and mission, for its individual and family supports program. The basis of the strategic plan should be a thorough assessment of needs, resources, and opportunities. The Commonwealth should develop the plan with individuals and families, who will be at the center of comprehensiveness and coordination. The plan should include indicators of expected performance and outcomes related to access, comprehensiveness and coordination of individual and family supports.
Case Management
2. DBHDS staff should evaluate and supplement the orientation and training of CSB and private case managers in order to effectively implement the redesigned waiver programs. Case managers should be taught: to assist individuals and families to understand new service models and to recommend providers who are willing, able, and available to provided integrated day activities, integrated housing, and wrap-around services for in-home and independent community living options.
3. DBHDS should enhance its systems to monitor and to improve CSB case management performance to ensure compliance with the Commonwealth’s standards and with the requirements of the Agreement. The monitoring methods used should include tools so that the Commonwealth can hold CSBs and private case managers accountable for acceptable performance. For the CSB supervisory record audits, DBHDS should establish standards and a model tool that address timeliness, format, and quality of content.

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!
 4. The Commonwealth should develop measurable criteria for the ISP goals related to Health
and Well Being, Community Inclusion, Skill Development, and Choice and Selfdetermination.
Crisis Services and Behavioral Capacity
5. The Commonwealth should assess and determine the need for additional crisis stabilization programs for children and for adults in each Region. The Commonwealth should report quarterly to the Independent Reviewer the number of individuals whose stays exceeded the Agreement’s 30-day stay maximum. Discharge planning should begin upon admission for any individual admitted without an identified place of residence for discharge. The Commonwealth should provide to the Independent Reviewer a discharge record and a current discharge and transition plan within two weeks for any individual whose stay exceeds 30 days. The discharge plan should document the barriers, including the availability of emergency housing, that prevents the individual from timely transition to an integrated setting appropriate to the individual’s needs.
6. The Commonwealth should establish statewide expectations for the REACH crisis services training of family members, other caregivers, and law enforcement officers. DBHDS should report how it monitors this training, including that conducted for all CSB Case Managers, Emergency Services staff and REACH staff who complete and pass the required training.
7. DBHDS should report the findings of its quarterly crisis services qualitative reviews and its analysis of whether the Commonwealth’s performance indicators for the qualitative aspects of this provisions have been achieved.
8. DBHDS should assess and determine the need to develop additional community-based provider capacity to deliver needed behavioral support services in each Region. This assessment should include the capacity and geographic distribution needed to prevent unnecessary admissions of children and adults to both public and private psychiatric facilities. It should also determine the capacity needed to ensure that individuals with ID/DD, including Autism Spectrum Disorders, are able to be discharged to integrated community-based settings when they are ready to transition to the community. The behavioral supports should be available to provide needed in-home support and community residential options throughout all five Regions, and should meet accepted professional standards and the Commonwealth’s behavioral competencies.
Integrated Day Activities
9. The Commonwealth should establish baseline data, develop targets for the number and distribution of providers, and performance indicators for the provisions of Integrated Day Activities. The Commonwealth should implement a statewide training plan with the assistance of the Community Engagement Advisory Group.

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! Supported Employment
10. The Commonwealth should require all Employment Service Organizations to provide employment data for the individuals with ID/DD whom these organizations support.
11. The Commonwealth should establish performance indicators for the effective implementation of its Employment First Policy by CSBs. These indicators should allow the determination of whether “employment services and goals were developed and discussed at least annually through a person-centered planning process and included in ISPs”. The Commonwealth should identify how it will ensure that CSB’s consistently submit reliable data that will allow the Commonwealth to determine whether the qualitative aspects of the Employment First Policy are being effectively implemented.
Provider Capacity
12. DBHDS should assess, determine the need for, and identify the priority program and clinical areas for further development of provider capacity. The Commonwealth should specifically determine the additional provider capacity needed to serve individuals with intense medical needs and to provide such services in integrated settings including in-home services.
Licensing and Investigations
13. The Commonwealth should create a supplement to the Office of Licensure Services case management checklist to operationalize the expectations of the Agreement. This supplement should be outcome-focused (versus documentation-focused) and specifically include probes of: identifying risks to the individual, offering choice among providers, assembling professionals and non-professionals who provide supports, monitoring to make timely referrals (especially regarding changes in health status), and modifying the ISP when needed.!
! ! ! ! ! ! ! ! ! ! ! !

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I. APPENDICES
A. INDIVIDUAL SERVICES REVIEWS B. INDIVIDUAL AND FAMILY SUPPORT PROGRAM C. CASE MANAGEMENT D. CRISIS SERVICES REQUIREMENTS E. INTEGRATED DAY ACTIVITIES - SUPPORTED EMPLOYMENT F. INDEPENDENT HOUSING G. LICENSING AND INVESTIGATIONS H. LIST OF ACRPONYMS

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 79 of 212 PageID# 6769
APPENDIX A.

INDIVIDUAL SERVICES REVIEWS

October 7, 2015 - April 6, 2016

Completed by:
 Donald Fletcher, Independent Reviewer/Team Leader

Elizabeth Jones, Team Leader
 Marisa Brown RN, MSN
 Barbara Pilarcik RN

!
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! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 80 of 212 PageID# 6770
Demographic Information

Sex Male Female

n

%

17

68.0%

8

32.0%

Age ranges Under!3 3!to!6 7!to!12 13!to!18 19!to!21

n

%

3

12.0%

1

4.0%

3

12.0%

14

56.0%

4

16.0%

Levels of Mobility

n

Carried!by!adult

1

Crawls

1

Walks!without!support!

8

Walks!with!support

4

Total!assistance!with!walking

0

Uses!wheelchair

11

Confined!to!bed

0

% 4.0% 4.0% 32.0% 16.0% 0.0% 44.0% 0.0%

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! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 81 of 212 PageID# 6771

Relationship with Authorized

n

Representative

Parent or Sibling

22

Public Guardian

2

%
91.7% 8.3%

Type of Residence

n

%

Own/family!home

4

16.0%

Sponsored!home

0

0.0%

Supported!apartment

0

0.0%

Group!home

3

12.0%

Psychiatric!facility

0

0.0%

Nursing!facility

10

40.0%

Rehabilitation!facility

0

0.0%

Large!ICF/ID!

8!

32.0%!

Highest Level of Communication

n

Spoken!language,!fully!articulates!

without!assistance

3

Limited!spoken!language,!needs!

some!staff!support

1

Communication!device

0

Gestures

7

Vocalizations

11

Facial!expressions

3

Other

0

%
12.0%
4.0% 0.0% 28.0% 44.0% 12.0% 0.0%

!
 !
 !

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 82 of 212 PageID# 6772

Individual)Support)Plan)–)POSITIVE)OUTCOMES)

)Individual)Support)Plan)

Large)Facility)Sample)

Item)

n)

Y)

N)

CND!

Is!the!Individual’s!Support!Plan/Plan!of!Care/!

18! 100%! 0.0%! 0.0%!

Individual!Program!Plan!current?!!

Is!there!evidence!of!personZcentered!(i.e.!

18! 100%! 0.0%! 0.0%!

individualized)!planning!in!the!development!of!the!

Individual’s!Support!Plan/Plan!of!Care/Individual!

Program!Plan?!!!!

Is!the!support!staff!present,!knowledgeable!and!able! 17! 100%! 0.0%! 0.0%!

to!assist!the!individual!to!use!the!adaptive!

equipment?!

Is!the!individual!receiving!supports/specialized!

!

!

!

!

services!identified!in!his/her!Individual!Support!

Plan/Plan!of!Care/Individual!Program!Plan?)!

!!!!!!!!!Medical!

18! 100%! 0.0%! 0.0%!

!!!!!!!!!Psychiatry!

4! 100%! 0.0%! 0.0%!

Is!there!evidence!the!family!or!support!person!has! 18! 100%! 0.0%! 0.0%!

been!trained!on!the!desired!outcome!and!support!

activities!of!the!Individual’s!Support!Plan/Plan!of!

Care/Individual!Program!Plan?!

If!a!Residential!provider’s!home,!nursing!home!or! 18! 94.4%! 5.6%! 0.0%!

ICF/IID,!is!residential!staff!able!to!describe!the!

individual’s!likes!and!dislikes?!!!!

Is!residential!staff!able!to!describe!the!individual’s! 18! 100%! 0.0%! 0.0%!

health!related!needs!and!their!role!in!ensuring!that!

the!needs!are!met?!

Community)Home)Sample)

n) Y)

N) CND)

7! 100%! 0.0%! 0.0%!

7! 85.7%! 14.3%! 0.0%!

3! 100%! 0.0%! 0.0%!

!

!

!

!

7! 100%! 0.0%! 0.0%! 4! 100%! 0.0%! 0.0%! 7! 100%! 0.0%! 0.0%!

3! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%!

!
 !
 !

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 83 of 212 PageID# 6773

Individual)Support)Plan)–)AREAS)OF)CONCERN)

)Individual)Support)Plan)

Large)Facility)Sample)

Item)

n)

Y)

N)

CND!

d.!If!an!ICF/IID!or!nursing!home!placement,!is!there! 18! 5.6%! 94.4%! 0.0%!

evidence!of!discharge!planning?!!

Does!the!Individual’s!Support!Plan/Plan!of!

18! 5.6%! 94.4%! 0.0%!

Care/Individual!Program!Plan!have!specific!and!

measurable!outcomes!and!support!activities?!

Is!the!individual!receiving!supports/specialized!

!

!

!

!

services!identified!in!his/her!Individual!Support! Plan/Plan!of!Care/Individual!Program!Plan?)! !!!!!!!!!!!!Dental! !!!!!!!!!!!!Behavioral!Supports!

!

!

!

!

!

!

!

!

16! 75.0%! 25.0%! 0.0%!

8! 62.5%! 37.5%! 0.0%!

INTEGRATAION)ITEMS)

!

!

!

!

Was!it!documented!that!the!individual!and,!as!

18! 0.0%! 100%! 0.0%!

applicable,!his/her!Authorized!Representative,!were!

facilitated!to!have!conversations!and!meetings!with!

individuals!currently!living!in!the!community!and!

their!families?!

If!applicable,!were!employment!goals!and!supports! 5! 0.0%! 100%! 0.0%! developed!and!discussed?!!

If!no,!were!integrated!day!opportunities!offered!

5! 0.0%! 100%! 0.0%!

Regardless!of!age,!does!typical!day!include!regular! integrated!activities!

17! 0.0%! 100%! 0.0%!

Do!you!have!ongoing!opportunities!to!interact!

17! 17.6%! 58.8%! 23.5%!

socially!or!build!friendships!with!other!individuals!

who!are!not!paid!to!serve!you?!

If!not!living!with!your!family,!have!you!met!your!

18! 0.0%! 100%! 0.0%!

neighbors?!

If!not!living!with!your!family,!do!you!have! opportunities!to!meet!your!neighbors!

18! 0.0%! 100%! 0.0%!

If!living!in!a!congregate!setting!with!a!group!of!

17! 100%! 0.0%! 0.0%!

individuals!with!disabilities,!do!you!go!into!the!

community!primarily!with!your!housemates!as!a!

group?!

!


!


!

Community)Home)Sample)

n)

Y)

N)

CND)

0!

!

!

!

7! 14.3%! 85.7%! 0.0%!

!

!

!

!

!

!

!

!

!

!

!

!

7! 71.4%! 28.6%! 0.0%!

5! 20.0%! 80.0%! 0.0%!

!

!

!

!

3! 0.0%! 100%! 0.0%!

3! 0.0%! 100%! 0.0%! 3! 0.0%! 100%! 0.0%! 6! 33.3%! 66.7%! 0.0%! 7! 28.6%! 28.6%! 42.9%!
4! 50.0%! 50.0%! 0.0%! 4! 75.0%! 25.0%! 0.0%! 3! 100%! 0.0%! 0.0%!

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 84 of 212 PageID# 6774

Individual)Support)Plan)–)AREAS)OF)CONCERN)

)Individual)Support)Plan)

Large)Facility)Sample)

Item)

n)

Y)

N)

CND!

Do!you!belong!to!any!community!clubs!or!

17! 0.0%! 100%! 0.0%!

organizations?)!

Do!you!participate!in!integrated!community!

17! 0.0%! 100%! 0.0%!

volunteer!activities?!

Do!you!participate!in!integrated!community!

17! 5.9%! 94.1%! 0.0%!

recreational!activities?!

Do!you!participate!in!grocery!shopping?!

17! 0.0%! 100%! 0.0%!

Do!you!participate!in!buying!your!clothes?)!

17! 29.4%! 70.6%! 0.0%!

BEHAVIOR)ITEMS)

)

)

)

)

Does!the!individual!engage!in!any!behaviors!(e.g.,!

18! 22.2%! 77.8%! 0.0%!

selfZinjury,!aggression,!property!destruction,!pica,!

elopement,!etc.)!that!could!result!in!injury!to!self!or!

others?!

Does!the!individual!engage!in!behaviors!(e.g.,!

18! 5.6%! 94.4%! 0.0%!

screaming,!tantrums,!etc.)!that!disrupt!the!

environment?!

Does!the!individual!engage!in!behaviors!that!impede! 18! 5.6%! 94.4%! 0.0%!

his/her!ability!to!access!a!wide!range!of!

environments!(e.g.,!public!markets,!restaurants,!

etc.)?!

Does!the!individual!engage!in!behaviors!that!impede! 18! 0.0%! 100.0 0.0%!

his/her!ability!to!learn!new!skills!or!generalize!

%!

already!learned!skills?!

Does!the!individual!engage!in!behaviors!that!

18! 11.1%! 88.9%! 0.0%!

negatively!impact!his/her!quality!of!life!and!greater!

independence?!

If!Yes,!is!there!a!written!plan!to!address!the!

2! 50.0%! 50.0%! 0.0%!

behavior?!

!

!

!

!

!

!

!

!
 !
 !

Community)Home)Sample)

n)

Y)

N)

CND)

7! 0.0%! 100%! 0.0%!

7! 0.0%! 100%! 0.0%!

7! 14.3%! 85.7%! 0.0%!

7! 57.1%! 42.9%! 0.0%!

7! 42.9%! 57.1%! 0.0%!

)

)

)

)

7! 71.4%! 28.6%! 0.0%!

7! 57.1%! 42.9%! 0.0%! 7! 42.9%! 57.1%! 0.0%!

7! 57.1%! 42.9%! 0.0%! 7! 57.1%! 42.9%! 0.0%! 4! 0.0%! 100%! 0.0%!

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 85 of 212 PageID# 6775

Individual)Support)Plan)–)Comparisons)

)

POSITIVE)OUTCOMES)

)Individual)Support)Plan)

Large)Facility)Sample)

Item)

n)

Y)

N)

CND!

Does!the!individual!require!adaptive!equipment?!

18! 88.9%! 11.1%! 0.0%!

If!yes,!is!the!equipment!available?!

16! 100%! 0.0%!

!

If!no,!has!it!been!ordered?!

0!

!

!

!

If!available,!is!the!equipment!in!good!repair!and!

16! 100%! 0.0%!

!

functioning!properly?!

Is!the!individual!receiving!supports/specialized!

!

!

!

!

services!identified!in!his/her!Individual!Support!

Plan/Plan!of!Care/Individual!Program!Plan?)!

!!!!!!!!!!!!!!!!Residential!

18! 100%! 0.0%! 0.0%!

!!!!!!!!!!!!!!!!Health!

18! 100%! 0.0%! 0.0%!

Is!the!individual!refusing!any!of!the!above!supports?!!! 18! 0.0%! 100%! 0.0%!

If!yes,!is!the!team!addressing!this!issue?!

0!

!

!

!

Do!you!have!problems!with!transportation?!

18! 0.0%! 100%! 0.0%!

AREAS)OF)CONCERN)

Community)Home)Sample)

n) Y)

N) CND)

7! 57.1%! 42.9%! 0.0%!

4! 50.0%! 50.0%! 0.0%!

2! 0.0%! 50.0%! 50.0%!

4! 75.0%! 25.0%! 0.0%!

!

!

!

!

7! 71.4%! 28.6%! 0.0%! 6! 50.0%! 50.0%! 0.0%! 7! 42.9%! 57.1%! 0.0%! 3! 0.0%! 100%! 0.0%! 7! 28.6%! 71.4%! 0.0%!

Individual)Support)Plan)–)Comparisons)

)

AREAS)OF)CONCERN))

)Individual)Support)Plan)

Large)Facility)Sample)

Item)

n)

Y)

N)

CND!

Is!the!individual!receiving!supports/specialized! services!identified!in!his/her!Individual!Support! Plan/Plan!of!Care/Individual!Program!Plan?)! !!!!!!!!!!!!!!Recreation!

!

!

!

!

18! 66.7%! 33.3%! 0.0%!

Is!residential!staff!able!to!describe!the!individual’s! 18!

talents/contributions,!preferences!and!weaknesses?!!

Within!the!last!quarter,!have!you!participated!in!

17!

community!outings!on!a!consistent!weekly!basis?!!!

72.2%! 27.8%! 29.4%! 70.6%!

0.0%! 0.0%!

POSITIVE)OUTCOMES)

Community)Home)Sample)

n) Y)

N) CND)

!

!

!

!

7! 100%! 0.0%! 0.0%! 3! 100%! 0.0%! 0.0%!
7! 85.7%! 14.3%! 0.0%!

!
 !
 !

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 86 of 212 PageID# 6776

Health)Care)–)POSITIVE)OUTCOMES)

Health)Care)

Large)Facility)Sample)

Item)

n)

Did!the!individual!have!a!physical!examination!

18!

within!the!last!12!months!or!is!there!a!variance!

approved!by!the!physician?!

If!ordered!by!a!physician,!was!there!a!current!

16!

physical!therapy!assessment?!!

If!ordered!by!a!physician,!was!there!a!current!

11!

speech!and!language!assessment?!

Is!lab!work!completed!as!ordered!by!the!physician?! 18!

Does!the!provider!monitor!fluid!intake,!if!applicable! 18!

per!the!physician’s!orders?!

Does!the!provider!monitor!food!intake,!if!applicable! 8!

per!the!physician’s!orders?!

Does!the!provider!monitor!tube!feedings,!if!

12!

applicable!per!the!physician’s!orders?!

Does!the!provider!monitor!seizures,!if!applicable!

13!

per!the!physician’s!orders?!

Does!the!provider!monitor!weight!fluctuations,!if!

18!

applicable!per!the!physician’s!orders?!

Does!the!provider!monitor!bowel!movements,!if!

18!

applicable!per!the!physician’s!orders?!

Y) 100%!
100%! 100%! 100%! 100%! 100%! 100%! 100%! 100%! 100%!

N) 0.0%!
0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%!

CND! 0.0%!
0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%!

Community)Home)Sample)

n)

Y)

N) CND)

7! 100%! 0.0%! 0.0%!

2! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%! 3! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%! 2! 100%! 0.0%! 0.0%! 4! 100%! 0.0%! 0.0%! 3! 100%! 0.0%! 0.0%!

!
 !
 !

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 87 of 212 PageID# 6777

Health)Care)–)AREAS)OF)CONCERN)

Health)Care)

Large)Facility)Sample)

Item)

n)

Did!the!individual!have!a!dental!examination!within! 16!

the!last!12!months!or!is!there!a!variance!approved!

by!the!dentist?!!!

Are!there!needed!assessments!that!were!not!

18!

recommended?!

If!ordered!by!a!physician,!was!there!a!current!

16!

nutritional!assessment?!

Were!the!medical!specialist’s!recommendations!

16!

addressed/implemented!within!the!time!frame!

recommended!by!the!medical!specialist?!

If!the!individual!receive!psychotropic!medication?!

!

Is!there!documentation!of!the!intended!effects! 9!

and!side!effects!of!the!medication?!

Is!there!documentation!that!the!individual!

9!

and/or!a!legal!guardian!have!given!informed!

consent!for!the!use!of!psychotropic!

medication(s)?!

Does!the!individual’s!nurse!or!psychiatrist!

6!

conduct!monitoring!as!indicated!for!the!

potential!development!of!tardive!dyskinesia,!or!

other!side!effects!of!psychotropic!medications,!

using!a!standardized!tool!(e.g.!AIMS)!at!baseline!

and!at!least!every!6!months!thereafter)?!

Is!there!documentation!of!the!intended!effects! 9!

and!side!effects!of!the!medication?!

Y)

N)

75.0%! 25.0%!

11.1%! 88.9%! 87.5%! 12.5%! 87.5%! 12.5%!

!

!

66.7%! 33.3%!

66.7%! 33.3%!

66.7%! 33.3%!

66.7%! 33.3%!

CND! 0.0%! 0.0%! 0.0%! 0.0%!
! 0.0%! 0.0%!
0.0%!
0.0%!

Community)Home)Sample)

n)

Y)

N) CND)

7! 71.4%! 28.6%! 0.0%!

7! 57.1%! 42.9%! 0.0%! 2! 0.0%! 100%! 0.0%! 5! 60.0%! 40.0%! 0.0%!

!

!

!

!

4! 50.0%! 50.0%! 0.0%!

4! 50.0%! 50.0%! 0.0%!

3! 33.3%! 66.7%! 0.0%!

4! 50.0%! 50.0%! 0.0%!

!
 !
 !

! Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 88 of 212 PageID# 6778

Health)Care)–)Comparisons)

Health)Care)

Large)Facility)Sample)

)

POSITIVE)OUTCOMES)

Item)
If!ordered!by!a!physician,!was!there!a!current! occupational!therapy!assessment?! If!ordered!by!a!physician,!was!there!a!current! psychological!assessment?! Are!clinical!therapy!recommendations!(OT,!PT,!S/L,! psychology,!nutrition)!implemented!or!is!staff! actively!engaged!in!scheduling!appointments?! !!!!!!!!!OT!! !!!!!!!!!PT!! !!!!!!!!!Speech/Language!! !!!!!!!!!Nutrition! !!!!!!!!!Psychology!! Were!the!Attending!or!Primary!Care!Physician’s! (PCP’s)!recommendations!addressed/implemented! within!the!time!frame!recommended!by!the! Attending!Physician!or!PCP?! Is!there!evidence!of!a!nourishing!and!healthy!diet?! If!receiving!psychotropic!medication,!do!the! individual’s!clinical!professionals!conduct! monitoring!for!digestive!disorders!that!are!often! side!effects!of!psychotropic!medication(s),!e.g.,! constipation,!GERD,!hydration!issues,!etc.?! Is!there!any!evidence!of!administering!excessive!or! unnecessary!medication(s),including!psychotropic! medication?!

n)

Y)

N)

15! 100%! 0.0%!

7! 100%! 0.0%!

!

!

!

11! 100%! 0.0%! 12! 91.7%! 8.3%! 8! 100%! 0.0%! 18! 100%! 0.0%! 8! 100%! 0.0%! 18! 100%! 0.0%!

18! 100%! 0.0%! 9! 100%! 0.0%!

18! 0.0%! 100%!

CND! 0.0%! 0.0%!
!
0.0%! 0.0%! 0.0%! 0.0%! 0.0%! 0.0%!
0.0%! 0.0%!
0.0%!

Community)Home)Sample)

AREAS)OF)CONCERN)

n)

Y)

N) CND)

3! 66.7%! 33.3%! 0.0%!

6! 66.7%! 33.3%! 0.0%!

!

!

!

!

4! 75.0%! 25.0%! 0.0%! 3! 66.7%! 33.3%! 0.0%! 4! 75.0%! 25.0%! 0.0%! 4! 25.0%! 75.0%! 0.0%! 5! 40.0%! 60.0%! 0.0%! 5! 60.0%! 40.0%! 0.0%!

7! 85.7%! 14.3%! 0.0%! 4! 25.0%! 75.0%! 0.0%!

7! 14.3%! 85.7%! 0.0%!

!
 !
 !

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 89 of 212 PageID# 6779 !

APPENDIX B.

INDIVIDUAL AND FAMILY SUPPORT PROGRAM
 By: Rebecca Wright MSW, LCSW


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 90 of 212 PageID# 6780
!
! ! ! !
! ! ! Report!to!the!Independent!Reviewer!! United'States'v.'Commonwealth'of'Virginia'
 ! ! ! ! INDIVIDUAL!AND!FAMILY!SUPPORTS! ! ! ! ! By! ! Rebecca!Wright,!MSW,!LCSW! Consortium!on!Innovative!Practices! ! ! ! ! ! ! ! April!20,!2015! !

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 91 of 212 PageID# 6781 !

!
 EXECUTIVE!SUMMARY!


The! Settlement! Agreement! in! U.S.! v.! Commonwealth! of! Virginia! requires! the! Commonwealth! to! create!an!Individual!and!Family!Support!program!(hereinafter!IFSP)!for!individuals!with!ID/DD! whom! the! Commonwealth! determines! to! be! the! most! at! risk! of! institutionalization.! The! Independent!Reviewer’s!sixth!Report!to!the!Court,!dated!June!6,!2015,!found!the!Commonwealth! had!not!met!the!qualitative!requirements!for!the!IFSP.!He!reported!that!1)!the!Commonwealth‘s! individual!and!family!support!program!did!not!include!a!comprehensive!and!coordinated!set!of! strategies! to! ensure! access! to! person! and! familyUcentered! resources! and! supports,! as! required! by!the!program’s!definition!in!Section!II.D.,!and!2)!the!Commonwealth’s!determination!of!who!is! most! at! risk! of! institutionalization! was! based! on! a! single! very! broad! criterion! and! did! not! prioritize! between! individuals! on! the! urgent! and! nonUurgent! waitlists! or! those! with! greater! or! more!urgent!needs.!This!reviewer!documented!in!the!IFSP!study,!included!with!the!Independent! Reviewer’s! sixth! Report! (June! 6,! 2015)! that! the! Department! of! Behavioral! Health! and! Developmental!Services!(DBHDS)!had!acknowledged!its!awareness!of!the!issues!that!resulted!in! the!nonUcompliance!ratings.!At!that!time,!DBHDS!reported!that!its!Director!of!Administrative!and! Community! Operations! was! leading! a! task! force! to! address! many! of! them.! ! The! sixth! report! included! recommendations! to! DBHDS! for! its! consideration! as! it! developed! strategies! that! may! lead!to!compliance.!!These!included:!

1. Develop! and! implement! a! formalized! and! ongoing! avenue! for! stakeholder! input! to! help! to! guide! the! evolution! of! individual! and! family! support! program! as! a! personU! and! familyU centered!comprehensive!and!coordinated!set!of!strategies!in!the!Commonwealth,!and!of!the! IFSP!in!particular!as!a!part!of!that!overall!set!of!strategies.!!
2. An!overall!strategic!plan!for!individual!and!family!supports!should!be!developed!through!an! inclusive!stakeholder!planning!process.!!!
3. The! definition! of! “most! at! risk! for! institutionalization”! should! be! fully! explored! with! stakeholders!in!the!process!of!strategic!planning.!!
4. The!roles!of!case!management!should!be!examined.!Expectations!of!case!managers!should!be! clearly!defined!as!they!relate!to!facilitating!access!to!individual!and!family!supports! and! to! the! IFSP! in! particular.! ! Case! managers! should! ensure! coordination! with! other! services! and! supports!for!individuals!on!the!ID!and!IFSDD!waiting!lists.!!
5. !DBHDS!should!develop!and!disseminate!an!individualU!and!familyUfriendly!guide!to!the!IFSP! and! the! application! process.! The! guide! should! provide! a! level! of! detail,! accuracy! and! accessibility! to! be! effectively! used! by! individuals! in! the! target! population! and! their! families! to! access! the! correct! point! of! entry! to! needed! services.! ! The! guide! should! be! updated! as! programmatic!modifications!occur!that!might!affect!eligibility,!dates,!supports!available,!etc.! ! !

!

91!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 92 of 212 PageID# 6782
!
6. Guidelines! that! DBHDS! publishes! for! families! seeking! services! should! be! designed! to! assist! individuals/families:!who!are!not!yet!aware!of!how!to!seek!HCBS!waiver!services,!who!have! applied!for!services,!and!whose!names!are!on!waitlists.!The!DBHDS!guidelines!should!also!be! for!those!who!have!been!awarded!a!waiver!slot!and!their!families.!
7. The!Commonwealth!should!include!the!agencies!that!an!individual/family!is!likely!to!contact! initially! when! a! child! is! first! diagnosed! with! a! significant! disability! or! when! an! individual! is! new! to! the! Commonwealth.! These! include! agencies! such! as! hospital! neonatal! intensive! care! units,!pediatrician!organizations,!and!public!school!special!education!programs.!
8. DBHDS!should!identify!indicators!to!adequately!assess!performance!and!outcomes!related!to! access,! comprehensiveness! and! coordination! of! individual! and! family! supports.! ! It! should! also! develop! measures! of! the! impact! on! the! risk! of! institutionalization! and! the! capacity! for! collection!and!analysis!of!the!needed!data.!!! !
For!the!Report!to!the!Court,!due!June!6,!2016,!the!Independent!Reviewer’s!monitoring!priorities! again!included!studying!the!Commonwealth’s!compliance!with!the!qualitative!aspects!of!its!IFSP.!! DBHDS! informed! the! Independent! Reviewer! that! its! IFSP! would! not! be! completed! during! this! review!period.!This!study,!therefore,!focused!primarily!on!whether!the!IFSP!under!development! is! designed! and! planned! to! include! requisite! elements! that! address! the! related! Agreement! criteria.! The! study! findings! and! recommendations! from! the! Independent! Reviewer’s! sixth! Report,! as! outlined! above,! served! as! a! basis! for! evaluating! progress! achieved! since! that! time! as! well! as! the! potential! efficacy! of! the! planned! IFSP! toward! achieving! future! compliance.! ! In! addition,! the! study! evaluated! whether! the! Commonwealth! has! complied! with! the! quantitative! requirement!to!support!a!minimum!of!1000!individuals!during!Fiscal!Year!2016.!!This!study!also! reports! the! substantive! modifications! that! DBHDS! has! made! to! the! current! IFSP! on! an! interim! basis!and!any!related!outcomes.!!
Over! the! last! year,! DBHDS! has! engaged! in! a! number! of! activities! for! the! purposes! of! both! enhancing! its! current! IFSP! funding! process! and! reUdesigning! its! approach! to! providing! a! comprehensive!and!coordinated!set!of!strategies,!as!the!Settlement!Agreement!requires.!Much!of! the! latter! work! has! been! done! under! the! auspices! of! the! New! Individual! and! Family! Design!
Advisory! Committee! (NIDAC.)! ! ! At! this! time,! however,! a! determination! as! to! the! likelihood! of!
compliance! with! the! qualitative! requirements! of! the! Settlement! Agreement! is! not! yet! possible.! The!Commonwealth!had!not!yet!laid!out!a!clear!plan!that!is!likely!to!lead!to!compliance!with!any! of! these! requirements.! The! Commonwealth’s! proposed! design! lacks! specificity.! The! plan! has! been!presented!largely!in!very!broad!strokes.!The!plan!still!lacks!significant!stakeholder!support.!! The!planning!process!itself,!while!commendable!in!its!intent,!has!not!been!as!robust!as!necessary! to! achieve! a! wellUlaid! out! plan.! Many! critical! details! have! not! yet! been! addressed.! Most! NIDAC! members! and! interested! attendees! who! were! interviewed! also! expressed! opinions! that! supported!this!finding.!!At!the!time!of!this!study,!the!planning!process!was!still!ongoing.!

!

92!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 93 of 212 PageID# 6783 !


Overall,! the! new! IFSP,! as! currently! planned,! does! not! include! adequate! design! or! program! evaluation!strategies!to!be!able!to!achieve!the!overall!goal!of!a!comprehensive!and!coordinated! set! of! strategies! to! ensure! that! families! who! are! assisting! family! members! with! intellectual! or! developmental! disabilities! (“ID/DD”)! or! individuals! with! ID/DD! who! live! independently! have! access! to! personUcentered! and! familyUcentered! resources,! supports,! services! and! other! assistance.! ! The! NIDAC! planning! workgroup! that! was! charged! to! assist! with! this! design! was! presented!with!a!model!that!would!place!significant!decisionUmaking!power!in!the!hands!of!the! individuals! and! families! being! served.! The! model! utilizes! regional! organizations! with! advisory! boards! comprised! of! at! least! a! majority! of! individuals! and! families! being! served.! ! The! primary! roles! of! these! regional! organizations! would! be! to! set! funding! criteria,! to! work! within! their! communities! to! coordinate! other! existing! resources,! and! to! develop! additional! financial! and! inU kind! support.! ! DBHDS! has! also! requested! funding! above! and! beyond! the! IFSP! allocation! to! provide!for!staffing!for!each!region.!!At!the!time!of!this!report,!there!remained!many!unresolved! issues!as!to!how!this!model!would!be!implemented,!and,!to!some!extent,!whether!it!would!be!an! effective! approach! for! Commonwealth.! For! example,! while! DBHDS! staff! indicated! that! the! proposed! regional! organizations! would! make! local! decisions! regarding! criteria! for! determining! who!is!“most!at!risk!for!institutionalization”.!!NIDAC!members!indicated!that!this!responsibility! had!not!yet!been!discussed.!!!

It! was! commendable! that! DBHDS! had! engaged! stakeholders! in! its! efforts! to! reUdesign! its! IFSP.!! DBHDS! staff! are! enthusiastic! about! the! future! of! individual! and! family! supports! in! the! Commonwealth! and! are! eager! to! put! a! more! “familyUfriendly”! model! in! place.! ! While! it! is! important! to! maintain! momentum! toward! developing! an! approach! that! would! achieve! a! comprehensive!and!coordinated!set!of!strategies,!a!significant!amount!of!work!remains.!DBHDS! must! continue! to! engage! stakeholders! in! a! broad! and! meaningful! conversation! about! what! approach!will!work!well!within!Virginia’s!service!system!and!unique!circumstances.!!There!is!no! need!to!“reinvent!the!wheel,”!as!several!DBHDS!staff!suggested.!There!is!much!to!learn!from!the! experiences!of!other!states.!DBHDS!should!be!cautious,!however,!not!to!be!overUreliant!on!other! states’!experiences!as!a!means!for!ensuring!solutions!for!Virginia’s!circumstances.!!!

There! were! two! themes! that! emerged! from! stakeholder! interviews! related! to! this! point.! In! the! first,! NIDAC! members! almost! universally! expressed! concern! that! individuals! and! families! were! being! asked! to! take! on! additional! responsibilities! for! fundUraising! and! coordination! when! their! time!and!energies!were!so!often!consumed!with!managing!their!own!and!their!family!members! extraordinary! needs.! ! The! intent! to! empower! individuals! and! families! with! decisionUmaking! authority!is!admirable.!Being!empowered!with!decisionUmaking!authority!is!consistent!with!the! principles! of! individual! and! family! support! and! has! been! successful! in! other! programs.! The! question!remains,!however,!whether!the!individuals!and!families!in!the!Commonwealth!believe! that! this! approach! will! be! effective! for! them! in! their! circumstances! or! for! Virginia’s.! ! Many! reported! a! second! theme.! Rather! than! creating! new! regional! organizations,! as! was! done! in! the!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 94 of 212 PageID# 6784 !
other! states’,! would! it! be! more! effective! for! Virginia,! to! use! existing! nonprofit! agencies! to! host! the! proposed! regional! organizations?! ! ! DBHDS! staff! expressed! strong! negative! opinions! about! whether! such! an! approach! was! wise.! ! Getting! to! the! “right”! answer! will! require! a! careful! examination!of!the!advantages!and!disadvantages.!!!
Overall,! additional! planning! and! deliberation! with! stakeholders! are! needed! to! effectively! address! the! requirements! of! the! Settlement! Agreement.! ! DBHDS! should! continue! a! strategic! planning! process.! It! is! important! that! this! process! results! in! a! clear! plan! that! addresses! the! requirements!of!the!Settlement!Agreement!with!goals,!objectives!and!timelines!as!well!as!with!a! set! of! planned! outcome! and! performance! measurement! indicators! and! data! collection! methodology.!!!
I. PURPOSE!OF!THE!REVIEW!
The! purpose! of! this! review! was! to! make! a! determination! as! to! the! compliance! status! of! the! qualitative! requirements! of! the! Settlement! Agreement! as! they! pertain! to! individual! and! family! supports.!!These!requirements!are!as!follows:!
Section! II.D:! Individual) and) family) supports) are) defined) as) a) comprehensive) and) coordinated) set) of) strategies) that) are) designed) to) ensure) that) families) who) are) assisting) family) members) with) intellectual) or) developmental) disabilities) (“ID/DD”)) or) individuals) with) ID/DD) who) live) independently) have) access) to) person>centered) and) family>centered) resources,) supports,) services) and) other) assistance.) Individual) and) family) supports) are) targeted) to) individuals) not) already) receiving) services) under) HCBS) waivers,) as) defined) in) Section)II.C.) The) family) supports) provided) under) this) Agreement) shall) not) supplant) or) in) any) way) limit) the) availability) of) services) provided) through) the) Elderly) or) Disabled) with) Consumer) Direction) (“EDCD”)) waiver,) Early) and) Periodic) Screening,) Diagnosis) and) Treatment) (“EPSDT”),)or)similar)programs.) ) Section!III.C.2:!!The)Commonwealth)shall)create)an)individual)and)family)support)program) for)individuals)with)ID/DD)whom)the)Commonwealth)determines)to)be)most)at)risk)of) institutionalization…)
Section!III.C.8.b:!The)Commonwealth)shall)publish)guidelines)for)families)seeking) intellectual)and)developmental)disability)services)on)how)and)where)to)apply)for)and)obtain) services.)The)guidelines)will)be)updated)annually)and)will)be)provided)to)appropriate) agencies)for)use)in)directing)individuals)in)the)target)population)to)the)correct)point)of) entry)to)access)services.)

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! The!study!analyzed!whether!the!design!of!the!IFSP!proposed!by!DBHDS!and!its!implementation,! in! combination! with! other! available! individual! and! family! supports,! could! be! reasonably! expected!to!fulfill!the!requirements!of!the!Settlement!Agreement.!The!analysis!was!based!on!the! following!ten!criteria:!
1. Will!the!design!of!the!planned!IFSP!and!other!family!supports!to!be!provided!under!the! Agreement!result!in!a!set!of!strategies!that!can!be!considered!comprehensive!in!nature?!
2. Will! the! planned! design! for! individual! and! family! supports! to! be! provided! under! the! agreement!result!in!coordination!with!other!services!and!supports!for!which!a!family!or! individual!may!be!eligible?!
3. Will!the!planned!design!for!individual!and!family!supports!adequately!facilitate!access!to! personUcentered!and!familyUcentered!resources,!supports,!services!and!other!assistance?!!
4. Will!the!design!of!the!planned!IFSP!provide!a!clear!and!sound!definition!of!“most!at!risk!of! institutionalization,”! including! whether! the! definition! has! been! refined! to! reflect! the! priority!of!supports!to!those!at!greatest!risk?!
5. Will!the!design!of!the!planned!IFSP!provide!a!clear!and!logical!process?!Will!the!process! include! prioritization! criteria,! for! determining! which! individuals! may! be! considered! “most! at! risk! of! institutionalization,”! and,! if! so,! whether! the! process! and! prioritization! criteria! will! be! implemented! in! a! manner! that! is! designed! to! address! the! risks! of! individuals!who!are!most!at!risk!of!institutionalization?!
6. Will! the! design! of! the! planned! IFSP! define! a! performance! and! outcome! measurement! strategy?! ! Will! the! plan! include! the! methodology! for! data! collection! and! record! maintenance! that! are! sufficient! to! determine! whether! the! planned! IFSP! fulfills! the! Commonwealth’s!obligations!under!the!Agreement?!
7. Will!the!design!of!the!planned!IFSP!include!sufficient!strategies!to!publish!guidelines!that! are! sufficient,! in! terms! of! detail,! accuracy! and! accessibility?! ! Will! they! guide! individuals! with! developmental! disabilities! and! their! families,! to! an! available! and! correct! point! of! entry!to!access!services?!
8. Will!the!design!of!the!planned!IFSP!include!sufficient!strategies!to!publish!IFSP!guidelines! as!required!and!update!them!as!needed!and!at!least!annually?!
9. Will!the!design!of!the!planned!IFSP!include!sufficient!strategies!to!undertake!appropriate! outreach!and!dissemination!processes!to!ensure!individuals!and!families!will!have!access! to!the!guidelines!on!a!timely!basis?!
10. Will! the! design! of! the! planned! IFSP! include! sufficient! strategies! to! provide! appropriate! agencies!with!the!guidelines!on!a!timely!basis?!
! ! ! ! !

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!

II. STUDY!METHODOLOGY!!

!

In! order! to! ascertain! the! status! of! compliance! for! each! of! the! criteria,! the! study! methodology!

included! document! review,! DBHDS! staff! interviews,! stakeholder! interviews,! and! review! and!

analysis!of!available!data.!!

!

The! document! review! process! included! requests! made! to! DBHDS! for! any! NIDAC! minutes,!

reports! and! any! other! work! product! related! to! the! design! of! the! IFSP;! any! needs! assessment,!

data! or! information! used! in! the! design! of! the! IFSP;! any! strategic! planning! document(s)! that!

define! a! set! of! milestones! to! be! achieved! toward! statewide! implementation! and! projected!

timeframes;!a!detailed!description!of!the!organizational!structure!of!the!proposed!regional!IFSP!

(e.g.,! membership,! support! staff,! funding! formula! and! mechanism,! etc.);! any! finalized! or! draft!

policies!and!procedures;!any!finalized!or!draft!versions!of!any!indicators,!tools,!processes!and/or!

any!quality!improvement!strategies!to!be!used!to!assess!whether!programmatic!outcomes!have!

achieved! desired! and! expected! outcomes;! a! description! of! DBHDS’! strategy! for! formalized!

stakeholder! input! in! the! development! and! implementation! of! the! planned! IFSP! and!

documentation! of! any! related! stakeholder! input! activities! that! have! been! held! or! are! planned;!

and!any!work!product!related!to!the!development!and!dissemination!of!the!guidelines!and!other!

outreach!strategies.!!A!full!list!of!documents!reviewed!may!be!found!in!Appendix!A.!

!

The! data! review! included! requests! for! data! collected! by! DBHDS! regarding! the! geographic!

distribution! of! IFSP! funds;! current! Wait! List! data;! other! services! and! supports! received! by!

individuals!and!families!making!application!for!IFSP;!applications!made!and!applications!funded!

by! individuals! living! independently! vs.! applications! made! and! applications! funded! by! families;!

the!categories!of!services!and!supports!requested!and!funded;!number!of!applications!received,!

approved! and! denied;! for! denied! applications,! data! regarding! reasons! for! denial;! number! of!

applications! pended! and! data! regarding! reasons! for! pended! status;! number! of! applications!

received,! approved! and! denied;! Draft! Quarterly! IFSP! report! for! period! ending! 3/31/16.! A!

complete!list!of!data!provided!and!reviewed!is!included!in!Appendix!A.!

!

The!expert!consultant!interviewed!DBHDS!staff!involved!in!the!development,!design!of!the!IFSP,!

DBHDS! staff! responsible! for! dayUtoUday! administration! of! the! IFSP,! and! stakeholders!

participating! in! the! NIDAC.! The! stakeholders! included! individuals! and! families! as! well! as!

representatives!of!advocacy!organizations!and!service!organizations.!!To!gain!some!assessment!

of! broader! stakeholder! knowledge! of! the! IFSP! design! under! discussion,! the! expert! consultant!

also!completed!group!interviews!with!attendees!at!several!Focus!Group!meetings!that!were!held!

for! the! purpose! of! evaluating! case! management! effectiveness.! ! These! meetings! included! case!

manager!supervisors,!U!case!managers!and!representatives!of!provider!agencies,!respectively.!!A!

full!list!of!individuals!interviewed!is!included!in!Appendix!B.!

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!

III. FINDINGS!

!

Over! the! last! year,! DBHDS! has! engaged! in! a! number! of! activities! to! enhance! its! current! IFSP!


funding!process!and!to!reUdesign!its!approach.!The!goal!for!the!redesign!activities!is!to!provide!a!


comprehensive! and! coordinated! set! of! strategies,! as! the! Settlement! Agreement! requires.! ! ! To!


provide!context!for!the!compliance!findings,!these!activities!are!summarized!below.!!!


!


Current! IFSP! Funding! Process:! DBHDS!reported!that!it!made!changes!to!the!FY!2016!funding!


period! based! on! lessons! learned! during! previous! funding! periods,! internal! discussions! and!


stakeholder!feedback.!!These!changes!included:!


!!


1. Reduced! the! maximum! amount! for! funding! per! person! from! $3,000! to! $1,000.! This! step!

ensured!that!available!funds!would!be!provided!for!more!individuals.!

2. Reverted!back!to!one!application!and!funding!period,!which!had!existed!during!the!first!two!

years!of!the!IFSP!Program.!!!

3. Hired! two! temporary! staff! to! assist! with! managing! the! flow! of! IFSP! applications,! decisions!

and!issuance!of!funds.!

4. Streamlined!the!IFSP!application!form.!In!addition,!a!line!was!added!for!an!applicant!eUmail!

address.! This! allowed! IFSP! staff! to! communicate! more! effectively! with! families! regarding!

their!applications.!

5. Updated!the!IFSP!Guidelines!in!August!2015!to!reflect!these!changes.!!

!

Overall,! the! modifications! that! DBHDS! made! alleviated! the! backlogs! that! had! occurred! in!

previous!funding!periods.!DBHDS!was!still!accepting!applications!as!of!March!31,!2016,!and!had!

not! found! it! necessary! to! deny! any! applications! due! to! funding! constraints.! These! results!

reflected! significant! improvements! in! timeliness! and! responsiveness,! and! therefore,! much! less!

stakeholder! frustration! with! the! program.! ! DBHDS! had! served! 2,084! individuals! and! families!

during!FY!2016,!through!March!31,!2016.!

!

IFSP! ReTDesign:! Since! this! expert’s! previous! report! on! the! status! of! the! IFSP,! DBHDS! has!

continued! to! engage! stakeholders! in! the! planning! for! the! IFSP! reUdesign.! ! DBHDS! responded,! in!

part,! to! that! report’s! recommendation! to! implement! a! formalized! and! ongoing! avenue! for!

stakeholder! input! to! help! to! guide! the! evolution! of! the! individual! and! family! support! program.!

DBHDS! formed! an! advisory! committee! (i.e.! NIDAC).! ! Stakeholder! participation! was! solicited!

from! individuals! on! waitlists! and! their! families.! ! Representatives! from! advocacy! organizations,!

although! not! voting! members,! attended! and! participated! in! the! discussions.! ! NIDAC! was! to!

provide! feedback! for! DBHDS! to! consider! as! it! developed! a! viable! work! plan! for! creating! a!

comprehensive!family!support!system!for!the!Commonwealth.!!

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!

The!first!NIDAC!meeting!was!held!in!July!2015.!Meetings!in!August!and!October!2015!followed!it.! The!group!had!met!once!this!far!in!2016,!on!March!23.!!Attendance!has!been!somewhat!sporadic! among!members.!Participants!have!been!provided!with!information!about!individual!and!family! support!programs!in!other!states!that!were!organized!around!the!principle!of!an!individualU!and! familyUled!regional!organizational!structure.!Specifically,!these!states!included!Alabama,!Indiana,! North! Carolina! and! Tennessee.! NIDAC! proceedings! included! review! of! the! various! models.! This! included! a! presentation! from! a! representative! of! the! North! Carolina! program.! ! DBHDS! also! tapped!the!Service!Corps!of!Retired!Executives!(SCORE)!to!bring!in!experienced!business!people! to! advise! NIDAC! members! on! the! process! of! incorporating! and! operating! 501(c)(3)! organizations.!!All!those!interviewed!considered!the!participation!of!SCORE!representatives! as! very!helpful!to!the!process.!!! ! DBHDS! presented! a! proposed! program! model! to! the! planning! workgroup.! The! model! would! place! significant! decisionUmaking! authority! in! the! hands! of! the! individuals! and! families! being! served.!Nonprofit!regional!organizations!with!governing!boards!whose!membership!would!be!at! least!a!majority!of!individuals!and!families!eligible!to!be!served!by!the!IFSP.!!The!primary!roles!of! these!regional!organizations!would!be!to!set!funding!criteria,!to!work!within!their!communities! to! coordinate! other! existing! resources! and! to! develop! additional! financial! and! inUkind! support.!! The! development! of! a! related! statewide! organization! was! also! discussed.! A! statewide! organization!would!either!provide!a!venue!for!the!regional!organizations!to!come!together!or!a! strong! centralized! entity! that! would! set! key! policies! and! oversee! activities.! ! DBHDS! proposed! and! the! Governor! requested! funding! from! the! General! Assembly! for! five! new! positions! to! facilitate!the!work!of!these!regional!organizations.!! ! At! the! March! 23,! 2016! meeting,! the! NIDAC! membership! was! asked! to! decide! whether! to! move! forward!with!either!a!decentralized!or!a!centralized!model.!!The!membership!reviewed!a!list!of! pros!and!cons!that!had!been!compiled!by!a!smaller!group!of!the!members,!with!the!assistance!of! SCORE.! ! DBHDS! reported! that! only! one! of! the! five! requested! staff! positions! had! not! been! approved!by!the!General!Assembly.!!Given!concerns!expressed!in!the!ensuing!discussion,!DBHDS! suggested!a!third!option,!“passUthrough”.!This!third!option!would!include!five!staff!to!be!hired!by! DBHDS,!one!to!work!in!each!region.!It!would!not!include!initiating!the!formal!development!of!the! regional! entities,! at! least! for! some! undetermined! period! of! time.! A! job! description! for! these! positions! had! not! yet! been! developed,! but! it! was! envisioned! the! staff! would! both! manage! applications! regionally! and! work! to! develop! local! resources.! ! The! advantage! of! this! approach! was!described!as!being!able!to!start!very!quickly.!!In!the!end,!however,!the!NIDAC!membership! agreed! upon! a! fourth! option.! This! option! would! involve! beginning! with! the! “pass! through”! approach,! and! then! transition! to! the! centralized! model! over! the! next! year.! ! This! option! would! require!a!portion!of!the!IFSP!allocation!to!fund!the!positions!in!each!region.!It!remains!uncertain! whether!this!option!is!feasible!because!DBHDS!staff!indicated!that!it!was!not!yet!clear!whether!it! would!be!possible!to!use!IFSP!funds!to!support!these!positions.! !

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Before! and! after! the! March! 23,! 2016,! meeting,! the! NIDAC! members! and! the! representatives! of! advocacy! organizations! who! attended! the! NIDAC! planning! meetings,! expressed! considerable! concerns.!!Most!expressed!the!opinion!that!the!planning!process!did!not!provide!for!enough!time! to!thoroughly!explore!and!consider!the!options!being!considered.!Many!of!the!NIDAC!members! were! not! thoroughly! familiar! with! the! Settlement! Agreement! requirements! for! the! Individual! and!Family!Support!Program.!A!major!theme!of!concern!expressed!by!the!NIDAC!members!was! whether! families! and! individuals! would! want! to! take! on! additional! responsibilities! for! fundU raising! and! coordination! in! their! respective! regions.! ! Their! time! and! energies! are! so! often! consumed!with!managing!their!own!extraordinary!needs!and/or!those!of!their!family!members.!! The! second! theme! was! whether! it! made! more! sense,! for! Virginia,! to! use! existing! nonprofit! agencies!to!host!the!proposed!regional!entities!rather!than!to!create!new!ones!as!occurred!in!the! other!states’!models.!!! !
Compliance!Findings!for!Section!II.D! !

Individual) and) family) supports) are) defined) as) a) comprehensive) and) coordinated) set)

of) strategies) that) are) designed) to) ensure) that) families) who) are) assisting) family)

members) with) intellectual) or) developmental) disabilities) (“ID/DD”)) or) individuals)

with) ID/DD) who) live) independently) have) access) to) person>centered) and) family>

centered) resources,) supports,) services) and) other) assistance.) Individual) and) family)

supports) are) targeted) to) individuals) not) already) receiving) services) under) HCBS)

waivers,)as)defined)in)Section)II.C.)

The)family)supports)provided)under)this)Agreement)shall)not)supplant)or)in)any)way)

limit) the) availability) of) services) provided) through) the) Elderly) or) Disabled) with)

Consumer) Direction) (“EDCD”)) waiver,) Early) and) Periodic) Screening,) Diagnosis) and)

Treatment)(“EPSDT”),)or)similar)programs.)
!
 Compliance!Finding:!DBHDS!is!not!yet!in!compliance!with!this!section.!!
 !
 Compliance!Indicators:!
 !
 1. Will! the! design! and! implementation! of! the! IFSP! and! other! individual! and! family!
supports! provided! under! the! Agreement! result! in! a! set! of! strategies! that! can! be! considered!comprehensive!in!nature?! ! This!consultant’s!2015!study!noted!that!funding!through!the!IFSP!should!be!viewed!as!only!one!

component!of!a!comprehensive!individual!and!family!support!program.!Additional!components!

include:! other! financial! resources,! peer! supports,! family! to! family! support,! information! and!

referral,! etc.! At! that! time,! there! were! few! concrete! strategies! in! the! design! of! the! IFSP! to!

complement,! or! to! coordinate! with,! other! available! supports.! A! needs! assessment! of! individual!

and!family!supports!available!statewide!had!not!been!completed.!Goals,!objectives!and!timelines!

had!not!been!developed!to!ensure!the!required!comprehensive!and!coordinated!set!of!strategies.!!

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The! previous! report! recommended! that! an! overall! strategic! plan! for! individual! and! family!
 supports!should!be!developed!through!an!inclusive!stakeholder!planning!process.!
 !
 As! described! above,! the! NIDAC! planning! process! has! not! been! sufficiently! robust! or! inclusive.!
 The!path!forward!has!been!painted!for!the!most!part!in!broad!strokes.!!Based!on!interviews!with!
 DBHDS! staff! and! stakeholders! and! on! the! review! of! planning! documentation! reviewed,! the!
 primary!responsibility!in!the!reUdesigned!IFSP!would!lie!with!the!five!regional!organizations!that!
 would! be! developed.! These! regional! organizations! would! be! charged! with! ensuring! a!
 comprehensive! set! of! strategies,! with! coordinating! with! other! services! and! supports,! and! with!
 facilitating! access.! ! They! would! also! be! charged! with! developing! additional! resources! in! their!
 communities! beyond! the! IFSP! funding.! This! responsibility! is! only! described! in! a! broad! and!
 generalized! statement! of! intent! at! this! point.! ! Additional! planning! and! deliberation! is! needed.!
 This! is! particularly! important! because! the! stakeholders! interviewed! frequently! expressed!
 reservations!about!the!ability!or!willingness!of!individuals!and!families!to!take!on!this!task.!!
 !
 2. Will! the! planned! design! for! individual! and! family! supports! to! be! provided! under! the!
agreement!result!in!coordination!with!other!services!and!supports!for!which!a!family! or!individual!may!be!eligible?! ! Previous! findings! indicated! that,! from! a! systemic! perspective,! coordination! with! other! services! and!supports!had!not!yet!been!fully!realized!for!individuals!on!HCBS!waitlists!and!their!families.!! In! particular,! the! role! of! case! management! in! facilitating! this! access! and! coordination! of! these! supports!had!not!been!adequately!examined.!!Facilitation!of!this!sort!remains!a!critical!element! to! a! comprehensive! and! coordinated! system.! To! date,! the! planning! process! has! not! addressed! how! the! regional! organizational! structure! would! facilitate! access! to! and! coordination! with! case! managers.! The! regional! entities,! however,! would! be! charged! with! the! responsibility! for! coordinating! individual! and! family! supports! with! other! supports! and! services.! ! Additional! planning!and!deliberation!are!needed.! ! The!previous!study!found!that!the!existing!IFSP!staffing!resources!were!not!sufficient!to!support! the!identification!of!other!available!resources!and!the!coordination!with!other!agencies!for!each! applicant.!!Since!then,!DBHDS!hired!two!temporary!staff!to!assist!with!managing!the!flow!of!IFSP! applications,! decisions! and! issuance! of! funds.! This! step,! however,! did! not! increase! capacity! to! coordinate!with!other!services!and!supports!for!which!a!family!or!individual!may!be!eligible.!!It! remains!unclear!how!the!proposed!state!and!regional!organizations!might!utilize!staffing!in!this! regard.! A! final! decision! had! not! been! made! regarding! the! availability! of! staff! positions.! A! single! staff!position!was!approved!in!the!most!recent!budget.!A!job!description,!however,!have!not!yet! been!developed.!!In!the!best!of!circumstances,!a!single!staff!person!per!region!will!not!meet!the! need! to! assist! individuals! and! their! families! on! the! waitlists! to! identify! and! to! access! other! services!and!supports!for!which!they!may!be!eligible.!

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!

3. Will!the!planned!design!for!individual!and!family!supports!adequately!facilitate!access!

to! personTcentered! and! familyTcentered! resources,! supports,! services! and! other!

assistance?!!

! The! previous! study! found! that! systemic! coordination! of! personUcentered! and! familyUcentered!

resources,! supports! and! services! was! not! available! to! individuals! on! the! waitlists! and! their!

families.! ! This! was! due! to! a! number! of! factors.! These! include! a! lack! of! case! management!

involvement!as!well!as!other!design!and!implementation!aspects!of!the!IFSP.!!

!

The! proposed! state! and! regional! IFSP! organizations! would! have! responsibility! for! coordination!

and!access,!as!described!in!IFSP!reUdesign!documentation!and!in!staff!interviews.!!As!described!

above,!this!does!not!appear!to!be!feasible.!The!resources!have!not!yet!been!identified!to!support!

the! IFSP,! to! adequately! facilitate! access! to! personUcentered! and! familyUcentered! resources,!

supports,!services!and!other!assistance.!!The!proposed!reUdesign!does!envision!that!the!regional!

nonUprofit! organizations! will! develop! local! resources! and! linkages.! This! is! only! a! broad! and!

generalized! statement! of! intent.! The! NIDAC! stakeholders! expressed! doubts! about! whether! this!

aspect!of!the!role!of!the!local!organizations!was!feasible!or!even!desirable.!!Additional!planning!

and!deliberation!is!needed!in!this!area.!!!

!

The!previous!study!found!the!number!of!IFSP!applications!and!the!average!request!amount!had!

grown!as!individuals!and!families!had!become!more!aware!of!the!program.!When!combined!with!

other! design! features,! this! had! led! to! increased! denials,! a! lack! of! timeliness,! and! an! overall!

increased! level! of! frustration! with! the! program.! ! Changes! made! during! the! current! FY! 2016!

funding!period!have!been!very!effective!in!addressing!these!issues.!!The!changes!have!eliminated!

denials! in! this! round! and! have! greatly! enhanced! the! timeliness! of! DBHDS’! responsiveness.!!

Through!March!31,!2016,!there!had!been!2,084!applications!approved!and!a!total!of!$1,964,620!

distributed.!These!included!975!approvals!from!individuals/families!on!the!Urgent!waitlist,!570!

from! the! NonUUrgent! waitlist,! and! 539! from! the! IFSDD! waitlist.! ! DBHDS! was! still! working! to!

ensure! individuals! and! families! were! aware! of! ongoing! funds! availability! and! actively!
encouraging!new!applications.!!!

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Compliance!Findings!for!Section!III.C.2.! !
The) Commonwealth) shall) create) an) individual) and) family) support) program) for) individuals) with) ID/DD) whom) the) Commonwealth) determines) to) be) most) at) risk) of) institutionalization…) ! Compliance!Finding:!DBHDS!is!not!yet!in!compliance!with!this!section.!! ! Compliance!Indicators:! ! 4. Will! the! design! of! the! planned! IFSP! provide! a! clear! and! sound! definition! of! “most! at! risk! of! institutionalization,”! including! whether! the! definition! has! been! refined! to! reflect!the!priority!of!supports!to!those!at!greatest!risk?!
As! reported! in! the! 2015! study,! DBHDS! determined! the! broadest! possible! definition! of! those!
 “most! at! risk! for! institutionalization”.! ! Every! person! who! is! on! either! the! ID! or! IFSDD! waiver!
 waitlist!was!determined!to!be!“most!atUrisk!for!institutionalization”.!This!definition!made!every!
 individual!on!a!waiver!wait!list!eligible!to!receive!a!monetary!award!under!the!IFSP.!!This!broad!
 definition! is! consistent! with! one! of! the! primary! tenets! of! the! traditional! individual! and! family!
 support! programs! that! all! individuals! with! intellectual! and! developmental! disabilities! and! their!
 families! need! and! deserve! supports.! They! should! not! have! to! prove! they! are! somehow! more!
 deserving!than!someone!else.!!While!most!stakeholders!appeared!at!that!time!to!agree!with!this!
 general! principle,! the! philosophical! and! practical! bases! for! the! Commonwealth’s! determination!
 decision! had! not! been! well! documented! or! communicated.! Stakeholders,! the! individuals! and!
 families! who! might! apply! for! IFSP! funds,! did! not! have! ongoing! input! in! the! discussion.! As!
 reported! previously,! most! expressed! a! level! of! discomfort! with! receiving! financial! supports!
 knowing! that! others! had! much! more! intense! needs.! ! The! 2015! study! recommended! that! the!
 definition! of! “most! at! risk! for! institutionalization”! be! fully! explored! with! stakeholders! in! the!
 process! of! strategic! planning,! including! whether! it! reflected! the! priority! of! supports! to! those! at!
 greatest!risk.!!This!has!not!yet!occurred.!!

DBHDS! had! drafted! a! proposed! revision! to! the! Administrative! Code! that! would! expand! the!
 definition!to!include!anyone!who!is!eligible!for!the!ID!or!IFSDD!waiver!waitlist,!but!this!had!not!
 yet! been! formally! submitted.! ! For! purposes! of! the! IFSP,! this! rule! revision! could! potentially!
 remove! a! barrier! for! individuals! and! families! who! are! eligible! for! a! waitlist,! but! who! would!
 prefer!not!to!enroll.!!It!is!not!clear!whether!“eligibility”!for!the!wait!list!alone!would!remove!an!
 extra! step! in! the! application! process! and,! as! eligibility! determination! would! still! be! needed! to!
 access!individual!and!family!support!funding.!!!
 !
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If! implemented,! revising! this! eligibility! criterion! might! slow! the! rate! of! growth! in! that! waitlist.! Some! believe! that! the! requirement! to! being! on! the! waitlist! was! a! prerequisite! to! receive! IFSP! funds!was!a!factor!that!contributed!to!rapid!growth!of!the!waitlists.!!As!noted!in!the!2015!study,! the! DD! waitlist! grew! 43%,! from! 1,300! to! 1,885,! between! June! 2013! and! April! 2015.! ! According! DBHDS!staff,!the!waitlist!has!continued!to!grow!at!a!pace!of!about!40!new!people!per!month.!It! was! not! yet! clear! how! the! overall! waiver! reUdesign! would! impact! the! size! and! growth! rate! of! waiver!waitlists.!!!

The! NIDAC! reUdesign! proceedings! have! not! yet! addressed! the! “most! at! risk! of! institutionalization”! definition.! Nor! was! this! determination! discussed! at! the! stakeholder! meetings.! ! This! fundamental! element! of! the! IFSP! should! be! examined,! as! previously! recommended,! through! a! truly! inclusive! strategic! planning! process,! including! weighing! its! potential!impact!and!benefits.!!While!it!is!not!always!possible!to!predict!unexpected!outcomes,!a! careful! strategic! planning! process! should! fully! address! proposed! rule! changes! prior! to! promulgation.!!

5. Will! the! design! of! the! planned! IFSP! provide! a! clear! and! logical! process,! including! prioritization! criteria,! for! determining! which! individuals! may! be! considered! “most! at! risk! of! institutionalization,”! and,! if! so,! whether! the! process! and! prioritization! criteria! will!be!implemented!in!an!manner!that!is!designed!to!address!the!risks!of!individuals! who!are!most!at!risk!of!institutionalization?!
!
 As!reported!in!the!2015!study,!the!Administrative!Code!related!to!the!IFSP!(§37.2U203)!and!the!
 IFSP! Guidelines,! updated! February! 2014,! did! not! provide! any! prioritization! criteria! for!
 determining! which! individuals! may! be! most! at! risk! for! institutionalization! beyond! the!
 requirement! for! being! on! either! the! ID! or! IFSDD! waiver! waitlist.! ! No! assessment! of! the! level! of!
 need!or!the!current!status!as!it!relates!to!imminent!risk!of!institutionalization!was!completed!in!
 the! application! review! process.! ! Instead,! the! Code! and! Guidelines! stipulated! only! that!
 applications!submitted!by!individuals!and!families!will!be!considered!on!a!first!comeUfirst!served!
 basis.!At!that!time,!there!was!an!almost!universal!uneasiness!among!stakeholder!interviewees!as!
 to!whether!the!design!of!the!IFSP,!particularly!with!a!first! comeUfirst!served!approach,!may!be!
 inherently!unfair!to!those!who!need!it!the!most.!,!DBHDS!has!drafted!a!proposed!revision!to!the!
 Administrative! Code! that! would! remove! the! first! comeUfirst! served! requirement,! however,! this!
 change! has! not! yet! been! approved.! ! This! could! be! a! very! positive! step,! but! there! must! be! an!
 alternative!methodology!to!prioritize!how!limited!funding!will!be!distributed.!!!
 !
 The! NIDAC! reUdesign! proceedings! had! not! yet! addressed! any! “most! at! risk! of!
 institutionalization”! prioritization! criteria.! ! According! to! interviews! with! IFSP! staff,! and! the!
 documentation! reviewed,! DBHDS! anticipates! that! the! regional! organizations! will! have! some!
 leeway!to!make!local!decisions!in!this!area,!but!this!remains!undefined.!!It!has!also!not!yet!been!


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determined! what! authority! the! planned! statewide! organization! will! have! or! how! that! authority!


will! be! shared! with! regional! organizations.! A! draft! of! proposed! administrative! rule! changes!


indicated! only! that! the! “council(s),! in! consultation! with! the! department,! will! develop! and! post!


criteria! for! providing! supports! through! the! Family! Support! Program.”! ! Some! NIDAC! members!


interviewed! questioned! whether! allowing! prioritization! criteria! to! vary! from! region! to! region!


would!create!additional!inequities.!A!methodology!has!not!yet!been!defined!to!identify!whether!
 such!potential!inequities!may,!in!fact,!occur!or!what!minimum!standards!may!apply!to!safeguard!


against!them.!!!
 !


DBHDS!had!made!some!modifications!to!its!current!IFSP!processes!to!ease!the!funding!backlogs,!
 to!improve!timely!responses!and!to!make!it!possible!to!serve!more!individuals.!!These!included!


reducing!the!maximum!amount!for!funding!per!person!from!$3,000!to!$1,000,!thereby!ensuring!
 that!funds!would!be!available!for!more!individuals.!The!application!period!also!reverted!back!to!


one!onUgoing!funding!period.!!!


!


6. Will!the!design!of!the!planned!IFSP!define!a!performance!and!outcome!measurement!

strategy,! including! data! collection! and! record! maintenance! methodologies,! sufficient!

to!determine!whether!the!planned!IFSP!fulfills!the!Commonwealth’s!obligations!under!

the!Agreement?!

!

At! the! time! of! the! 2015! study,! DBHDS! has! not! developed! outcome,! performance! or! satisfaction!


indicators.!No!data!were!collected!that!related!to!IFSP!performance,!impact!or!satisfaction.!!The!


study! recommended! that! DBHDS! identify! indicators! to! adequately! assess! performance! and!


outcomes! related! to! access,! comprehensiveness! and! coordination! of! individual! and! family!


supports.! ! Recommendations! were! also! made! to! determine! the! impact! on! the! risk! of!


institutionalization!and!to!develop!capacity!for!collection!and!analysis!of!the!needed!data.!!This!


current! review! found! that! the! NIDAC! reUdesign! proceedings! had! not! yet! addressed! a!


performance! and! outcome! measurement! strategy.! DBHDS! staff! reported! that! performance! and!


outcome!indicators!had!not!yet!been!developed.!!


!


DBHDS! did! distribute! a! baseline! satisfaction! survey! in! June! 2015! to! all! applicants! from! the!


second!funding!period!of!2015.!A!followUup!survey!is!scheduled!for!June!2016.!!Survey!responses!


were!received!from!233!people.!!Of!these,!57.41%!indicated!they!were!very!satisfied!or!satisfied,!


while!a!34.26%!were!dissatisfied!or!very!dissatisfied.!!There!was!no!analysis!provided!as!to!the!


reasons! for! the! satisfaction! vs.! dissatisfaction.! Such! an! analysis! might! have! been! very! useful!


when! determining! needed! program! quality! improvement.! ! DBHDS! did! collect! comments! from!


individual! respondents! Common! themes! included! the! need! for! additional! funding,! the! need! for!
 timeliness!in!reviewing!applications!and!responding!to!applicants!and!their!families,!and!issues!


with! the! application! process.! A! review! of! the! comments! for! this! study! found! concerns! about!


funding!prioritization!were!reported!with!some!frequency.!!In!order!to!develop!a!useful!quality!


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improvement! system! for! individual! and! family! support,! it! will! be! necessary! for! DBHDS! to!
 develop! a! set! of! both! outcome! and! performance! indicators! that! will! allow! it! to! determine! not!
 only! whether! a! goal! is! achieved,! but! also! to! allow! it! to! analyze! why! or! why! not.! ! As! it! works! to!
 complete!a!followUup!survey!and/or!additional!satisfaction!evaluations,!DBHDS!should!construct!
 its!data!collection!methodologies!with!that!in!mind.!
 !
 DBHDS!continues!to!use!a!database!that!has!been!functional!since!late!CY2014.!!This!allows!the!
 IFSP!office!to!present!some!data!related!to!disbursement!of!the!IFSP!funds.!These!data,!however,!
 have! not! yet! been! analyzed! to! any! significant! degree! for! quality! improvement.! ! The! IFSP!
 program! staff! are! currently! working! with! DBHDS’s! IT! staff! to! ensure! the! database! will!
 accommodate!regional!data!and!to!convert!it!to!a!webUbased!platform.!
 !

Compliance!Findings!for!Section!III.C.8.b.! !
The) Commonwealth) shall) publish) guidelines) for) families) seeking) intellectual) and)
developmental)disability)services)on)how)and)where)to)apply)for)and)obtain)services.)
The) guidelines) will) be) updated) annually) and) will) be) provided) to) appropriate)
agencies)for)use)in)directing)individuals)in)the)target)population)to)the)correct)point)
of)entry)to)access)services.) ! Compliance!Finding:!DBHDS!is!not!yet!in!compliance!with!this!section.!! ! Compliance!Indicators:! ! 7. Will! the! design! of! the! planned! IFSP! include! sufficient! strategies! to! publish!
guidelines! that! are! sufficient,! in! terms! of! detail,! accuracy! and! accessibility! to! the! population,! to! be! effectively! used! to! direct! individuals! in! the! target! population! to! the!correct!point!of!entry!to!access!services?! 8. Will! the! design! of! the! planned! IFSP! include! sufficient! strategies! to! publish! IFSP! guidelines!as!required!and!update!them!as!needed,!at!least!annually?! 9. Will! the! design! of! the! planned! IFSP! include! sufficient! strategies! to! undertake! appropriate! outreach! and! dissemination! processes! to! ensure! individuals! and! families!will!have!access!to!the!guidelines!on!a!timely!basis?! 10. Will! the! design! of! the! planned! IFSP! include! sufficient! strategies! to! provide! appropriate!agencies!with!the!guidelines!on!a!timely!basis?! ! As! described! above,! DBHDS! made! some! modifications! to! its! IFSP! guidelines! in! August! 2015! to! clarify!changes!made!to!the!funding!process.!This!was!a!positive!step.!!Otherwise,!DBHDS!further! acknowledged! that! the! Indicators! 7,! 8,! 9! and! 10! had! not! yet! been! addressed! in! the! ongoing! reU design!planning!process.!!As!with!other!requirements!and!indicators,!sufficient!information!and! documentation!were!not!yet!available!to!assess!whether!the!design!of!the!planned!IFSP!included!

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sufficient! strategies! to! undertake! appropriate! outreach! and! dissemination! processes.! These!


processes! include,! but! are! not! limited! to,! publishing! guidelines.! ! Given! the! uncertainties!


surrounding! the! eventual! IFSP! structure,! there! was! not! yet! a! clear! plan! that! described! the!


various! roles! and! responsibilities! related! to! outreach! and! dissemination! among! DBHDS,! a!


centralized!state!organization!and/or!regional!councils.!!!


!

V. CONCLUSIONS!AND!RECOMMENDATIONS!

!


DBHDS! is! to! be! commended! for! its! efforts! to! reUevaluate! its! approach! to! individual! and! family!


supports.! It! is! also! commended! for! making! interim! programmatic! changes! that! eased! the!


application!flow!and!funding!logjams!from!previous!years.!!!


!


The! following! recommendations! are! offered! as! steps! toward! achieving! compliance! with! the!


individual! and! family! support! requirements! of! the! Settlement! Agreement.! Some! of! these!


recommendations!remain!the!same!as!those!included!in!the!previous!report.!!


!


1. An! overall! strategic! plan! for! individual! and! family! supports! should! be! developed.! ! An! effective!strategic!plan!will!include!a!clear!vision!and!mission!that!is!developed!with!a!broad!

stakeholder! consensus.! ! It! should! be! based! on! a! thorough! assessment! of! needs! and! of!

resources,!and!include!clear!goals!and!objectives.!!It!should!also!include!a!work!plan,!just!as!

the! stated! purpose! of! the! NIDAC! indicated! that! it! was! created! to! achieve.! ! While! DBHDS! is!

eager!to!move!forward!with!a!new!approach,!it!will!be!worth!the!time!it!takes!to!develop!a!

detailed!plan.!!!!!!

2. DBHDS!should!identify!indicators!needed!to!adequately!assess!performance!and!outcomes! related! to! access,! comprehensiveness! and! coordination! of! individual! and! family! supports,!

and!its!impact!on!the!risk!of!institutionalization.!DBHDS!should!develop!the!capacity!for!the!

collection! and! the! analysis! of! the! needed! data.! ! Such! indicators! must! reflect! the! broader!

definition! of! comprehensiveness! and! coordination.! In! order! to! develop! a! useful! quality!

improvement! system! for! individual! and! family! support,! it! will! be! necessary! for! DBHDS! to!

develop! a! set! of! both! outcome! and! performance! indicators! that! will! allow! it! to! determine!

not! only! whether! a! goal! is! achieved! or! not,! but! also! allow! it! to! analyze! why! or! why! not.!! DBHDS!should!construct!its!data!collection!methodologies!with!that!in!mind.!

!
 Additional! suggestions! the! Commonwealth! may! wish! to! consider! as! it! moves! forward! with! this!


initiative!include:!


!


1. Several!stakeholders!interviewed!suggested!that!an!experienced!facilitator/planner!be!engaged!

to!help!guide!the!IFSP!planning!process.!!This!may!be!a!worthwhile!path!to!consider!in!terms!of!

both!expediting!the!development!of!a!comprehensive!plan!and!of!engaging!stakeholders!in!a!

frank!and!fully!objective!conversation!about!what!will!work!best!for!Virginia.

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!

APPENDIX A: DOCUMENTS/DATA REVIEWED 1. Indiana Individual and Family Support Code 2. Tennessee Selections from Family Support Guidelines 2015 3. Letter for 7-16 stakeholders meeting 4. NIDAC members contact information sheet January 2016 5. NIDAC members contact information sheet January 2016 6. Minutes from NIDAC Meeting 07 16 2015 7. NIDAC Minutes 8 19 2015 8. NIDAC Meeting Minutes 10.5.2015 9. IFSP NIDAC Meeting PowerPoint October 5th 2015 10. Introduction letter to NIDAC from Besty MacMichael from North Carolina September 2015 11. First In Families Overview 12. North Carolina First In Families Statewide Aggregate Report 2014-2015 Q4 and EOY 13. Draft-Proposal for the New Design of Virginia's IFSP Beginning FY 2017 2 5 16 14. Ch230 Draft Emergency IFSP Regulations 1-23 15. Report on the progress of the New Design of the IFSP February 2016 16. Introduction to survey letter June 2015 17. Improvements made for existing IFSP Program 18. DBHDS IFSP Family Stakeholders Meeting PowerPoint July 16 2015 19. June 2015 IFSP Survey Results 20. Individual and Family Support Program Data through March 31st 2015 FY 2016 (003) 21. NIDAC Minutes from Meeting on March 23rd (2016) 22. Individual and Family Support Program Guidelines Updated August 15, 2015 23. DDS FY 2016 IFSP Application August 2015 24. DDS FY2016 DIRECTIONS for IFSP application
APPENDIX B: INTERVIEWS & STAKEHOLDER INPUT
1. Peggy Balak, DBHDS DOJ Settlement Agreement Advisor 2. Beverly Rollins, DBHDS Director of Administrative and Community Operations 3. Jae Benz, DBHDS Senior DD Administrative & Policy Analyst 4. Bob Villa, DBHDS IFSP Program Manager 5. Roxie Lyons, DBHDS IFSP Staff 6. Sandra Brown, DBHDS IFSP Staff 7. Sam Pinero, DBHDS DD Program Manager 8. *Candace Kuhn, Parent 9. *Lily Kuhn, Self-Advocate 10. *Nita Williams, Parent 11. *Geoffrey Federmeier, Parent 12. *Joy Spenser, Parent 13. *Deborah Hunley, Parent 14. *Jackie Hampton, Parent 15. Jamie Liban, Arc of Virginia 16. ‡Dana Yarbrough, Partnership for People with Disabilities, Family to Family, Parent
* NIDAC member ‡ Participated in NIDAC proceedings
Other Stakeholder Input: 1. Case Manager Focus Group 2. CSB Supervisors and ID/DD Directors Focus Group
3. Residential and Day Program Managers Focus Group

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 !
APPENDIX C CASE MANAGEMMENT REQUIREMENTS
by: Ric Zaharia, Ph.D.

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!


Report!to!the!Independent!Reviewer!


United'States'v.'Commonwealth'of'Virginia'

!


!


Case!Management!!

Requirements!!


!


By!


!

Ric!Zaharia,!Ph.D.! &!

Rebecca!Wright,!MSW,!LCSW!

!

!

!

April!30,!2016!

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 !

Introduction

The Independent Reviewer for the US v Commonwealth of Virginia Settlement Agreement (SA) requested a follow-up to our October 2014 review of the Case Management requirements of the Agreement. This review was based on onsite interviews, document reviews and focus groups to assess key indicators and progress towards compliance. The documents reviewed included those provided by the Commonwealth that it determined demonstrated its progress toward achieving compliance.

For this review we focused on four CSBs (Community Service Boards) from three Health Planning Regions. The Independent Reviewer selected these CSBs based on regional representation and size of the general population. For each CSB, the review included: a) a qualitative review of a selected sample of at least six individual records with case manager interviews, and b) a follow-up assessment of the six individual’s well-being via a face-to-face visit and interviews with caregivers and authorized representatives (ARs), where appropriate or feasible.

Our approach yielded a sample of twenty-five (25) cases, with a subsample of twenty-one (21) cases from the ID (Intellectual Disabilities) Waiver. The sub-sample cases were selected from a list of individuals who the Commonwealth reported were receiving CSB ‘enhanced case management’. The ‘enhanced case management’ criterion for the selection of individuals for this study was prioritized because such cases require greater scrutiny and more intensive monitoring by case managers. The lists of individuals provided, however, had not been recently updated and were not all current. Changes in their eligibility for enhanced case management status since when the list was previously updated resulted in only sixteen (1) of the twenty-one (21) individuals from the ID Waiver receiving enhanced case management services at the time of our review.

This review did include one of the six individuals who were selected for the sample in each of the CSBs from the DD (Developmental Disabilities) Waiver and who were receiving DD case management services. The DD Wavier case management program is to be integrated with the CSBs as part of The Commonwealth’s HCBS Waiver redesign plan. If approved, the integration of separate ID and DD case management systems is planned for implementation during Fiscal Year 2017.

We then conducted a discrepancy analysis to determine what gaps existed between the individual’s assessed needs and ISP goals, as documented in the case management system reports and documents, and the services and supports actually being provided. We defined a discrepancy as a difference between ‘what is’ based on the case manager record review and interview and ‘what should be’ based on our evaluation of the individual, their situation and other data (minor differences were discounted, since we were examining only significant differences that impact the individual’s well being).

We also evaluated whether there are needed assessments that had not been requested and whether the requirements of the Settlement Agreement have been met. We utilized an adapted version of the Department’s voluntary Enhanced Case Management monitoring tool (July 2013) to conduct our assessment. The adaptations were made so that our evaluation was more comprehensive and covered all relevant requirements of the Settlement. The adaptations included queries from the focused studies completed by other consultants to the Independent Reviewer and from the Individual Service Review studies.

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We also conducted Services Effectiveness focus groups in three CSBs during our visit. One focus group included case managers. A second focus group included CSB case management supervisors, ID Directors, etc. The third focus group included residential and day staff managers from the CSB area. We invited representatives from DD agencies to attend each group.
The design of these focus groups was in collaboration with the Virginia Association of Community Services Boards (VACSB) in order to enlist their support in recruiting the relevant agency staff, with DBHDS in order to provide sanction to the effort, and with advocacy groups to ensure family and individual representation. We invited ten to sixteen (10-16) staff for each group, expecting five to eight (5-8) staff would actually attend. The Services Effectiveness theme of each focus group was, “What is working and what is not working for individuals in getting the services and supports they need?”
The onsite work involved in this project extended from February 21 until March 4, 2016. The Compliance Table on the following page recaps our conclusions about DBHDS success at complying with the selected elements of the Settlement Agreement.

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SA Section
III.C.5.a Case Management III.C.5.b Case Management
III.C.5.c Case Management III.C.5.d Case Management Section III.D.1 Community Living Options Section III.D.2 Community Living Options
Section III.D.6 Community Living Options
Section III.D.7 Community Living Options Section III.C.7.a Case Management Section III.C.7.b. Case Management
Section V.A.
V.F.1 Case Management
V.F.2 Case Management V.F.3 Case Management
V.F.4 Case Management V.F.5 Observation & Assessment
Section IX.C Implementation

Compliance!Table! !
Settlement Agreement Language
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management. b. For the purposes of this agreement, case management shall mean: i. Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs; ii. Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and iii. Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or ….. the provision of such services. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
1. The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.

Rating Compliance Non-Compliance
Compliance Non-compliance Non-Compliance

Page 7 7
7 7 9

2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own

Not Determined

9

home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting

appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the

Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or

housing assistance and bridge funding through all existing sources, including local, State, or federal affordable housing or

rental assistance programs (tenant-based or project-based) and the fund described in Section III.D.4 below.

6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s choice and has been reviewed by the Region’s

Non-compliance 9

Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support

Team.

7.The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers

Compliance

9

to continue to offer education about less restrictive community options on at least an annual basis to any individuals

living outside their own home or family’s home (and, if relevant, to their authorized representative or guardian.

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services Non-Compliance 11
under this Agreement with integrated day opportunities, including supported employment.

.....The Commonwealth shall establish a state policy on Employment First for the target population and include a term Non-Compliance 11
in the CSB Performance Contract requiring application of this policy. The Employment First policy shall, at a

minimum, be based on the following principles: (1) individual supported employment in integrated work settings is the

first and priority service option for individuals with intellectual or developmental disabilities receiving day program or

employment services from or funded by the Commonwealth; (2) the goal of employment services is to support individuals

in integrated work settings where they are paid minimum or competitive wages; and (3) employment services and goals

must be developed and discussed at least annually through a person-centered planning process and included in ISPs.

To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals’ Non-Compliance 11
needs, and help individuals achieve positive outcomes, including avoidance of harms, stable community living, and

increased integration, independence, and self-determination in all life domains (e.g., community living, employment,

education, recreation, healthcare, and relationships)…

1.For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall

Compliance

11

meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as

dictated by the individual’s needs.

.

2. At these face-to-face meetings, the case manager shall…

Non-Compliance 11

3. Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s

Compliance

12

place of residence

Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect Non-Compliance 12
reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.

Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the Non-Compliance 14
individual, and the case manager’s observations and assessments, shall be reported to the Commonwealth for its review

and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes

for both health and safety and community integration, and will be selected from the relevant domains listed in Section

V.D.3 above.

Requires that there be “…sufficient records to document that the requirements of the Agreement are being properly Non-Compliance 14
implemented…”

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1. Case Management Effectiveness

Settlement Requirement:

I.A.


The Parties intend that the goals of community integration, self-determination, and quality services will be achieved.


III.C.5.a-d.


5. Case Management


a. The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.


b. For the purposes of this Agreement, case management shall mean:


i.

Assembling professionals and non-professionals who provide individualized supports, as well as the individual being

served and other persons important to the individual being served, who through their combined expertise and

involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the

individual’s needs.

ii.

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional,

therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP; and

iii.

Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.

c. Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are

not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a

provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice

service providers from which the individual may receive approved waiver services and to present practicable options of service providers based

on the preferences of the individual, including both CSB and non-CSB providers.

d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

Methodology: ● Reviewed ‘Commissioner’s Data Dashboard’; ● Reviewed case management monitoring at the CSB level; ● Reviewed completed performance evaluations of CSBs from 2015, including reports from
the Office of Licensing Services (OLS) and the Internal Auditor. ● Conducted discrepancy analyses of 25 randomly selected cases in four CSBs based on a
review of the case record, case manager interview, face-to-face individual interviews, including caregivers, ARs as feasible or as appropriate.

Findings: The authors conducted discrepancy audits of twenty-five (25) cases over a two-week period in February and March 2016. The Independent Reviewer selected a diverse sample of four CSBs based on population size and regional representation. The questions from the Case Management Review Tool that we used are included as part of Attachment A.

Sixteen (64%) of the twenty-five cases reviewed received enhanced case management. Fifteen (60%) were males. The average age in the sample was 39 years with a range of 15-67 years; twentythree ((92%) were over age eighteen. Eleven (73%) of the fifteen individuals who were not living with their families lived in settings of five or more.

The SA lists three major functions of case management: assembling teams, assisting individuals in accessing services and needed supports, and monitoring implementation of the ISP and making changes as needed. We observed in this sample, when events or changes suggested substantive changes were needed to the ISP, that case managers were generally hesitant to assemble team members in between annual meetings. This reluctance appeared to stem from logistical inconvenience and the lack of enthusiasm for ‘one more meeting’. Our discrepancy analysis, in fact, suggested that the top four challenges faced by case managers were:

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Changed ISP outcomes when needed Made needed referrals Listed all needed, essential supports in ISP Supported the individual to access needed services

(Item #29, 14 discrepancies) (Item #30, 13 discrepancies) (Item #3, 11 discrepancies) (Item #15, 11 discrepancies)

The DBHDS Data Dashboard uses a compliance rating to compare performance. Using the Dashboard approach, we compared the four CSB’s cases and the DD Waiver cases along the DBHDS continuum of ‘meeting targets’ (for this table set at 90%), ‘approaching targets’ (for this table set at 80-89%), and ‘below target’ (79% or less). Table 1 displays the results using the total number of non-discrepancy ratings for all the individuals (numerator) against the total number of all items across individuals for that CSB (denominator). We regard the variations among the top three ratings (Region I, II, and DD Waiver) as minor and believe they represent very close to acceptable rates of difference from the desired outcome, based on differing caseload sizes, length of service of case managers, etc. Two (50%) of the four CSBs, however, warrant further examination by DBHDS to determine the systemic deficiencies and the needed corrective actions.

Table 1
 Compliance Rates Based on Discrepancy Analyses


Area

70%

80%

90%

100%

DD Waiver

87%

Region II CSB

87%

Region I CSB

90%

Region IVa CSB

77%

Region IVb CSB

80%

□ 5% below target

□ approaching target

□ □ meet/exceeds target

When we inquired whether case managers offered a choice among service providers, we found 100% compliance with this expectation.
We verified by observation and documentation that each CSB has its own locally developed monitoring strategy or tool, participates in the Department’s HCBS Waiver program audits of case management services, and undergoes Operational Reviews as scheduled (four to five CSBs are completed annually; an average of once every 8-9 years). Local monitoring tools vary in frequency of administration and whether the content of case management actions are examined for timeliness or quality. Local supervisory auditing does not appear (based on documentation that was provided for our review) to consistently identify or address cases with deficiencies, which we identified as present in each CSB.

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The DBHDS Office of Licensing Service’s (OLS’s) efforts to tighten its scrutiny of case management services using the Supports Efficiency Checklist (see our separate assessment of OLS case management reviews) was terminated last year with the implementation of the Quality Service Reviews, which are currently being conducted by a national consulting firm.
Conclusions DBHDS is in compliance with the requirements of III.C.5.a. Each individual had a case manager and a current ISP.
DBHDS has made progress toward achieving compliance with the requirements of III.C.5.b. The presence of discrepancies in this sample of cases, however, is such that an entire CSB is not meeting target cut-offs. If two (50%) of the four selected CSBs are experiencing frequent quality performance problems, then 20 +/- (50%) of the CSBs statewide may be experiencing similar performance problems delivering case management services. The Data Dashboard reports indicate that one of these two CSBs has been ‘below target’ and had problems reaching the DBHDSs target of 85% on its July-August-Sept-Oct 2015 reporting cycle measurements of face-to-face case management.
DBHDS is in compliance with the requirements of III.C.5.c. The documentation reviewed and responses to inquiries indicated that case managers had offered choices of providers.
DBHDS is not in compliance with the requirements of III.C.5.d, a mechanism to monitor compliance with performance standards for case management. The Operational Reviews occur an average of only once every eight to nine years for each CSB and the OLS effort to tighten scrutiny of CSB case management has been terminated. Consequently, Section IX.C. also remains out of compliance
Recommendations to achieve compliance: DBHDS should establish standards and a model tool for the CSB supervisory record audits. The standards should address timeliness, format, and quality of content. The Case Management Performance Checks for CSBs tool that is used in the Operational Reviews is an example of a good starting place. In its model tool DBHDS should consider outlining steps to follow to correct individual case manager performance and systemic causes of discrepancies.
DBHDS should continue planned case management training efforts.

DBHDS should enhance its systems to monitor and to improve CSB case management
 performance to ensure compliance with the Commonwealth’s standards and the requirements of
 the Settlement Agreement. The monitoring methods that are used should include tools so that
 CSB’s can be held accountable for acceptable performance.

Suggestions for Departmental consideration:
 DBHDS/OLS should consider convening a case management supervisory group to discuss how
 case management performance can be better measured and to establish the parameters of
 enhanced scrutiny of case management requirements.


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2. Least Restrictive
Settlement Requirement: Section III.D.1-2 and III.D.5-7 Community Living Options 1. The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice
and needs. 2. The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased
apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources, including local, State, or federal affordable housing or rental assistance programs (tenant-based or project-based) and the fund described in Section III.D.4 below. 6. No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s choice and has been reviewed by the Region’s Community Resource Consultant and, under circumstances described in Section III.E below, by the Regional Support Team. 7. The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home (and, if relevant, to their authorized representative or guardian).
Methodology: ● Evaluated at least six randomly selected cases in each of four CSBs from three (60%) of
Virginia’s five Health Planning Regions, as identified by the Independent Reviewer. The review included case record review, case manager interview, face-to-face individual interviews, including caregivers, ARs, etc., as appropriate. ● Examined referrals on file with Community Resource Consultant/Regional Support Team (CRC/RST) for the individuals included in the review.
Findings: Among the eleven individuals who live in settings of five or more, only one had a CRC referral package on file with the RST. A second individual who had moved to a setting with five or more within the last year did not have a CRC referral package on file with the RST. The remaining nine individuals had been placed in their residential settings more than eighteen (18) months ago, prior to when the RST process became fully functioning. None had been subsequently referred to the RST, after they became fully operational, to determine whether the obstacles to a more integrated setting had been identified and could be resolved and whether a more integrated setting was available to be offered.
When we examined whether case managers had provided education about less restrictive services (Item #14), we found discrepancies in four (16%) in the twenty-five cases; in other words for 84% of the cases this expectation was fulfilled. The case managers for each of the eleven individuals living in settings with five or more individuals had discussed less restrictive options with them/AR.
We observed only one case in the sample where we would challenge the decision to not refer an individual for housing subsidies or provide information about housing assistance. However, this one case is not sufficient to make a judgment about this provision.

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Conclusions DBHDS is not in compliance with the requirements of III.D.1., serving individuals in the most integrated setting.
DBHDS compliance with the requirements of III.D.2., is not determined from this project.

DBHDS is not in compliance with the requirements of III.D.6., a review by the RST.

DBHDS is in compliance with the requirements of III.D.7.

Recommendations to achieve compliance:
 DBHDS should substantially increase the availability of providers (including private sector case
 management) to ensure the reality of choice and the availability of more integrated settings. The
 free exercise of choice is often constricted by the lack of options.


3. Case Management Services

Settlement Requirement:
 Section III.C.7.a.


To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this


Agreement with integrated day opportunities, including supported employment.
 Section III.C.7.b. 
 .....The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB
 Performance Contract requiring application of this policy. The Employment First policy shall, at a minimum, be based on the following
 principles: (1) individual supported employment in integrated work settings is the first and priority service option for individuals with
 intellectual or developmental disabilities receiving day program or employment services from or funded by the Commonwealth; (2) the goal of
 employment services is to support individuals in integrated work settings where they are paid minimum or competitive wages; and (3)
 employment services and goals must be developed and discussed at least annually through a person-centered planning process and included in
 ISPs.
 Section V.A.
 To ensure that all services for individuals receiving services under this Agreement are of good quality, meet individuals’ needs, and help
 individuals achieve positive outcomes, including avoidance of harms, stable community living, and increased integration, independence, and 
 self-determination in all life domains (e.g., community living, employment, education, recreation, healthcare, and relationships)…
 Section V.F.1-4.
 F. Case Management

1.

For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the

individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the

individual’s needs.

2.

At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for

previously unidentified risks, injuries needs, or other changes in status; assess the status of previously identified risks, injuries,

needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains

appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs. If any of these observations or

assessments identifies an unidentified or inadequately addressed risk, injury, need, or change in status; a deficiency in the

individual’s support plan or its implementation; or a discrepancy between the implementation of supports and services and the

individual’s strengths and preferences, then the case manager shall report and document the issue, convene the individual’s service

planning team to address it, and document its resolution.

3.

Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-

face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any

individuals who:

a. Receive services from providers having conditional or provisional licenses;

b. Have more intensive behavioral or medical needs as defined by the Supports Intensity Scale (“SIS”) category representing the

highest level of risk to individuals;

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c. Have an interruption of service greater than 30 days;

d. Encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period;

e. Have transitioned from a Training Center within the previous 12 months; or

f. Reside in congregate settings of 5 or more individuals.

4.

Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable

data from the case managers on the number, type, and frequency of case manager contacts with the individual.

Methodology: ● Reviewed ‘Commissioner’s Data Dashboard’; ● Reviewed case management monitoring at the CSB level; ● Reviewed completed performance evaluations of CSBs from the previous year, including
OLS and Internal Auditor reports; ● Evaluate at least six randomly selected cases in each of four CSBs; review will include case
record review, case manager interview, face-to-face individual interviews, including
caregivers, ARs, etc., as appropriate.

Findings: During the development of the list of cases for this study, CSBs reported to DBHDS that their database had not been updated. This resulted in some individuals who were correctly listed as receiving enhanced case management a year ago were no longer be receiving such enhanced services. As a result, only sixteen (76.2%) of the randomly selected sample of twenty-one (21) cases were still required to be receiving enhanced case management at the time of this study, although twenty-one individuals had received enhanced case management previously qualified when they did qualify. In consultation with the Independent Reviewer, the decision was made to proceed with six (29%) of the cases not receiving enhanced case management services. This decision was made because of the limited sample size in some CSBs. This decision resulted in the sample that was reviewed having a wider range of characteristics.

We found no appreciable difference in the compliance rate between the services provided for the individuals who received enhanced case management and those who received non-enhanced case management. We found that CSBs in some cases have approached the two groups comparably, often visiting those receiving non-enhanced case management at the same frequency. The study found that twenty-four (96%) of the twenty-five cases were in compliance with the required frequency of visits.

The four reviewed DD cases had an average overall compliance rate of 87% with a range of 7797%. This compares favorably with the overall compliance rate of 84% of the entire sample of
 twenty-five cases. We found a tendency among DD case managers to be more oriented to action,
 flexibility, advocacy, and natural supports. Individuals or ARs described DD case manager
 behavior that was timely and responsive (customer oriented), that articulated their needs and 
 supports to others (ally and spokesperson), and that used community and existing community
 supports to meet individual needs (fixer). They are not well oriented to documentation systems,
 electronic health records, and the interdisciplinary nature of team conduct. We found that there is
 no established plan for the integration of DD case managers into the CSB service delivery system.


Based on the data submitted by CSBs on any given month only between ten and fifteen (25% 38%) CSBs met the Data Dashboard targets set by DBHDS for the number, type, and frequency of case manager visits. These data indicate that for any given month between twenty-five and

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thirty (63-75%) of CSBs are sub-par on this measure. The DBHDS data indicate that a significant
 number of individuals do not appear to receive the frequency or type of visit agreed to in the
 Settlement. Moreover, comparing Data Dashboard performance between October 2014 and 
 October 2015, eighteen of nineteen (95%) underperforming CSBs currently are doing worse on 
 frequency of face-to-face case management visits than they were a year ago. On in-home case
 management visits nine (53%) of seventeen underperforming CSBs are doing worse than they
 were a year ago. Most disturbing is that four (25%) CSBs did not report data for October 2015 on
 either of these measures.

The mitigation process that DBHDS recently adopted for quality improvement in case
 management data and measures looks promising. The outline of Operational Guidelines for a
 planned case management manual (expected October 2016) also looks like a positive step forward 
 for the field. This tool will require organized tables of content, indexes, and electronic availability.

We identified several case managers who were not sufficiently trained. Case managers also did not
 have access to needed specialized consultation in making case management decisions related to
 individuals on their caseload with clinical complexity and intense needs.

Conclusions
 DBHDS is not in compliance with the requirements of III.C.7.a., integrated day opportunities,
 including supported employment.

DBHDS is not in compliance with the requirements of III.C.7.b. because we believe three cases (13%) reflect on the lack of effective implementation of the Employment First initiative at the ISP Team level, particularly for individuals with more significant disabilities. Employment or “seeking” employment goals were also frequently not part of the employment discussions for the other cases reviewed.
DBHDS is not in compliance with V.A., all services are of good quality.
DBHDS is in compliance with the requirements of V.F.1.
DBHDS is not in compliance with the requirements of V.F.2. based on three cases where Employment First was not effectively implemented, several case managers who were not sufficiently trained and did not have access to needed specialized consultation, case managers not adequately monitored for SA requirements, and four CSBs not submitting data to DBHDS regarding the performance of their case managers.
DBHDS is in compliance with the requirements of V.F.3. This rating is based on the findings of the twenty-five cases reviewed in this study and multiple Individual Services Review studies, all of which indicated that the frequency of required visits had been achieved. The DBHDS data regarding frequency of face-to-face visits indicates that these visits may not be occurring with the frequency required. These data, however, have previously been found to be under-reported and unreliable. The frequency of visits should be carefully reviewed in the next independent study to verify that visits occur at the required frequency.

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DBHDS is not currently in compliance with the requirements of V.F.4. DBHDS does not yet have evidence at the policy level that it has reliable mechanism/s to assess CSB compliance with their performance standards relative to case manager contacts.
Recommendations to achieve compliance: DBHDS should substantially increase the availability of providers (including private sector case management) to ensure the reality of choice and the availability of more integrated settings. The planned expansion of a Health Supports Network and expanded resources for crisis services are positive steps forward.
DBHDS should require that CSBs achieving less than 50% on the case management Data
 Dashboard measures provide a ‘data entry improvement plan’; CSBs achieving less than 90%
 should provide a ‘case management performance improvement plan.’

Suggestions for Departmental consideration:
 DBHDS should consider conducting an annual refresh of the enhanced case management
 database, above and beyond the monthly, voluntary ‘survey monkey’ update.

DBHDS should consider developing a transition plan and a communication plan for the successful assimilation of DD case managers into the CSB service delivery system. A successful assimilation will provide for optimal choice making for individuals and their AR’s.
DBHDS should consider emphasizing case manager training by increasing training and human resources over the next year. The volume of training needed should be cross-walked with the availability of Community Resource Consultants who are expected to do the training and with central office planners who are expected to lead the design and implementation of new rounds of training.
DBHDS should also consider accelerating the work on the Case Management Manual to coincide with the planned merger of DD case managers into the ID waiver system.
DBHDS should consider adopting statewide the practice of Region 10. They have embedded action steps including convening team members and notifying involved parties, into the electronic boilerplate of the case manager note. This prompts the case manager not just to record, but to act when plan changes are warranted.
DBHDS should consider specialized competency certification above and beyond the basics for serving individuals with autism, with behavioral health challenges, with medical complications, etc.
DBHDS should consider offering training opportunities to providers of day support programs around meaningful, integrated day opportunities.

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4. Observation & Assessment Database
Settlement Requirement: V.F.5. 5. Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observations and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration, and will be selected from the relevant domains listed in Section V.D.3 above.
Methodology: ● Reviewed ‘Commissioner’s Data Dashboard’ as updated; ● Reviewed other observation and assessment databases and data collection tools; ● Reviewed twenty-one (21) Individual Service Plans and data reported to DBHDS
regarding goals achievement, including interview with respective case managers. ● Reviewed training outline and PowerPoint for the new ISP (PC ISP April 2015).
Findings: The five goals (Health and Well Being, Community Inclusion, Choice and Self Determination, Living Arrangement and Day Activity), which the Commonwealth selected to represent the key indicators of positive and negative outcomes, represent a good faith attempt to comply with the SA requirement at Section V.D.3. The Living Arrangement and Day Activity measures have some usefulness because of their criterion reference to ‘stability’. However, as we have previously reported, a halo effect exists when case managers report on their own outcome data with no verification process or criterion reference. This effect is aggravated when implementation is unclear and left ambiguous, so that “professional” judgment replaces measurable criteria. The potential biased reporting that can result from the halo effect is more easily exaggerated when goals/outcomes are not written in measurable terms and when there are not baseline measures of skill levels, independence or integration.
In fact, we were generally disappointed with the quality of most of the ‘measurable outcomes’ throughout the ISPs. Using the most generous interpretation of compliance and crediting any element of measurement of any kind, we found 19% of the outcome measures as non-compliant on measurable outcomes. Even OLS’s nine-month pilot of the Supports Efficiency Checklist showed a widespread conclusion of ‘no verifiable data’ at the provider level to support the ‘measurable outcomes’ on which they were working. The Commonwealth is in the first year of a new ISP process/format; hopefully measurable outcomes will improve in quality over time, since case managers will generate measurable outcomes consistently if they follow the guidance provided to them in their ISP training.
Many case managers understand that giving the “Met” rating meant ‘Achieved’, but most do not understand that the next step is to end that outcome (PC ISP Q&A, 6.15.15). These problems and the fact that most case managers admit their confusion about how to complete these goal questions, makes their reporting on the Data Dashboard non-functional.

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The Living Arrangement measure, the Day Activity measure, the In- home measure, and the Faceto-Face visits have usefulness on the Data Dashboard because they are criterion referenced, are
 verifiable, and are therefore functional. However, the issue here is, as we have suggested before,
 the follow-up with the respective CSB. For the four CSBs that we reviewed for this project, the
 DBHDS Data Dashboard rated one CSB as consistently ‘below target’ for 3 consecutive months
 (July, August, September 2015), one CSB as consistently ‘exceeded target’ for the same three
 consecutive months, and the other two as ‘approaching target’ or ‘below target’ for the same 3
 consecutive months.

DBHDS has made a huge leap forward in its development of a Data Warehouse, a central repository of data and data analysis from one or more different sources. The evidence of the capabilities of this new capacity is in data reports received for the OLS/OHR review project. Case management data managed through the Data Warehouse should also begin to produce information that is useful in meeting the expectations of the SA.
Conclusions DBHDS is not currently in compliance with the requirements of V.F.5 and IX.C. DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards, including case manager contacts. DBHDS does not yet maintain sufficient records to demonstrate the proper implementation of these provisions.
Recommendations to achieve compliance: Measurable criteria should be developed for the goals Health and Well Being, Community Inclusion, and Choice and Self-determination. For example, see the MH definition for employment on the data dashboard; not only is the terminology content useful but the goal itself lends itself to stretching the ID system to meet SA goals.
DBHDS should require that CSB’s achieving less than 50% on all Data Dashboard measures
 provide a ‘data entry improvement plan’; CSBs achieving less than 90% should provide a ‘case
 management performance improvement plan.’

Suggestions for Departmental consideration:
 DBHDS should consider requiring all DD managers and policy staff to undergo training in the
 Data Warehouse.

DBHDS may want to evaluate the wording used in the ISPs and in the ISP training: ‘meaningful outcomes with measurable goals’ may clarify matters for case managers.

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5. Focus Group Observations

As a part of this review we held a series of three focus groups in February and March 2016. The theme of each focus group was “What is working and what is not working for individuals in getting the services and supports they need?” Focus groups were targeted respectively to 1) case managers, 2) CSB supervisors and ID/DD Directors and 3) residential and day program managers from one Region. Invitations were sent to twelve to sixteen (12-16) staff for each group, anticipating that six to eight (6-8) staff would be able to attend.

Each group was asked broad questions that were intended to stimulate open and frank discussion about the ability of the system to identify, arrange and then deliver the needed services to people with intellectual and developmental disabilities. In the focus group meetings, each two hours in length, discussion was both robust and far ranging. The proceedings for each are detailed below.

In keeping with focus group ground rules, which assured the freedom to speak openly, the findings are reported in the aggregate and in the form of relevant key themes that emerged. These themes were reviewed with the group at the conclusion of each meeting to assure they represented the discussion accurately.

Two themes were common across all focus groups and are presented here as context: 1. There was a general acknowledgement that the Commonwealth was in the midst of a vast
systems change effort and that some time would be needed for some of these changes to play out before they would achieve desired results. 2. There was a great deal of uncertainty about the pending roll-out of the Waiver Re-Design and what that would mean for the system and for the role of case management, both for ID as well as DD populations.
The Residential and Day Program Managers Focus Group included five managers; DD managers of services were invited but none attended. The discussion was far-ranging and touched on many systemic issues that were not always obviously related to case management per se, but were conceptualized by the attendees as affecting the very foundation of systemic effectiveness. Key Themes:

! The most frequent theme expressed by this group was the lack of system “agility” or ability to respond with appropriate speed to routine needs, much less emerging needs that are likely to become crises if unattended.
! The next most frequent theme was the lack of a clear path for accessing services that was also sufficiently streamlined.
! The system of case management was considered to be one key factor in this lack of agility. Related concerns included: ! Case managers don’t have sufficient authority to take action and are not empowered to make decisions, but all service authorizations must flow through them. This was seen as creating a considerable bottleneck. ! Case managers were characterized as ‘receptionists, couriers or messengers’ who primarily made referrals. Their roles in planning and monitoring the delivery of services received little recognition by providers of service.

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! Likewise, case managers were sometimes viewed as somewhat removed and not always as familiar with families of the people being served. There was a consensus that provider program managers and social workers were the “real” case managers. It was noted this was not universal and depended on the individual case manager to a degree. Some providers found regularly scheduled group meetings with case managers helpful.
! Case managers had varying levels of competence and the adequacy of training provided to them was questioned. There was concern many case managers were not well acquainted with various services and supports outside of those which are Medicaid-funded.
! Freedom of choice of case managers was described as an illusion as it appeared individuals were often steered in the direction of those with openings on their caseloads.
! Despite these concerns, there was also a consensus that the case management system was not broken. It was noted that the foundational relationship was good, but the functionality needed to be overhauled. In particular, there needed to be a much stronger focus on outcomes for individuals and adherence to performance measures for case managers. Privatization was seen as an option preferred by some.
! Meeting attendees overwhelmingly agreed that the systems of oversight and monitoring were duplicative and burdensome as were the requirements for documentation, resulting in a negative impact on the entire system of services as a whole. These requirements also specifically affected how case managers did their jobs, causing their time and attention to be focused more on paperwork than outcomes for people. It was recommended that the duplicity of oversight be eliminated and that one standardized system of documentation be implemented.

The Case Manager Focus Group included six ID case managers, serving individuals in both rural and urban settings; DD case managers were also invited but none attended. Key Themes:

! Timeliness of services initiation varied fairly widely, depending on individuals’ geographic

locations as well as the type of service sought. In particular, case managers indicated that initiation of residential services often took longer due in part to the need to explore residential options before making a selection. Delay of service initiation was related to the dearth of

available residential options in their area. This was particularly true for those with more intense

needs and for settings that were more integrated. ! The prior authorization process was also seen as a barrier to timely service initiation. The
prior authorization process that was reported to be lengthy, to require considerable

documentation, and to result in frequent denials. ! Freedom of choice of service providers was viewed as somewhat of an illusion where the

provider base was particularly limited. ! Freedom of choice of case managers was also seen as somewhat illusory, particularly in the
rural areas. Most, but not all, however, reported offering such choice if the individual

expressed any dissatisfaction.

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! There was a consensus that there were some safeguards in place toward offering conflict-free case management, but that complete separation of case management and service provision would be better.
! There was a lack of clarity about the purposes of the Regional Support Team (RST and the Community Resource Coordinator (CRC). There were varied opinions of their usefulness as a resource at this time. The referral and application processes for these resources sometimes led to responses that were focused on whether a form was filled out correctly rather than on responsiveness to the situation that needed to be addressed. There was a general acknowledgement that these processes were fairly new and still evolving.
! Also viewed as new and evolving, the ISP process was generally seen in a favorable light and as much more person-centered. Case Managers indicated it was taking some additional time to prepare for a Shared Planning session, but it was generally agreed this was a worthwhile investment. Most reported that individuals being served liked the new process, although parents and guardians had not adjusted as well to the change and may need some additional outreach. Case managers also wished providers had more training in the process and suggested that such training be mandatory.
! Case Managers struggled with their lack of authority to address concerns with provider implementation of the ISP and related quality of care. Each case manager reported working to keep avenues open for bringing such issues to the attention of provider management staff. They called team meetings and engaged guardians, however, they did not feel that these efforts were always effective. When case managers were not able to resolve the situation by these means, then they relied on reporting to the DBHDS Office of Licensure Services or, when appropriate, Adult Protective Services.
! Caseload acuities and size, perennial issues for most systems, were also raised in the discussion but did not appear to be top concerns.
! Case Managers reported examples of creative and positive practices. Senior Case Manager position has been developed that provides oversight, training and technical assistance for rural case management staff. The Capacity Symposiums have been held in some areas that have present projected service needs data and real estate market information to potential new residential providers.
The CSB Supervisors and ID/DD Directors Focus Group included seven staff, including one representing an agency providing DD case management. Key Themes:

! The impact of limited resources on services effectiveness was the most frequently reported

concern. Limited resources included the following:

! There is limited waiver slot availability.

! There is a lack of mental health and behavioral supports for individuals with ID.

REACH Crisis Stabilization home has been a significant help as a step-down resource

after psychiatric hospitalization. It is not equipped, however, for the severity of need in

some cases. It also doesn’t have sufficient capacity to meet the needs of the number of

people who would benefit from the service. With the limited number of REACH staff

per region, consultative services are also limited in availability. Supports related to the

prescribing, use, and monitoring/adjusting of psychotropic medications were also

reported as a need in several areas.

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! More and more individuals served are requiring 24-hour nursing services and/or may receive enteral (tube) feedings. There is a lack of residential, day and in-home providers, however, who have the staff and experience to meet these needs. Focus Group attendees were very supportive of the concept of having regional nurseconsultants to assist providers and case managers to adequately monitor and address health care and medical needs.
! While OT, PT and Speech services are still ostensibly available as in-home waiver services and for therapeutic consults, these providers are increasingly scarce.
! The ISP process received mixed reviews. Participants reported that frequent and ongoing changes in the ISP process and ongoing modifications to each CSB’s electronic health record. Both resulted in increased frustration and more work for case managers. The new process was seen as having potential, but additional training across the system was needed to make that potential a reality. There was also a cautionary note expressed that getting the details of the forms right should not take precedence over true person-centeredness.
! There was a consensus that case managers would benefit from additional training, particularly in facilitation skills to support the person-centered planning process. It was noted some such training has been provided.
! It was hoped that a formal roll-out plan for the integration of the currently separate ID and DD case management systems, including guidance documents, materials and instructions, would be forthcoming.
! The five major effectiveness measures built into the ISP were considered to be somewhat ambiguous. Training is needed to define not only their purpose, but a standardized process by which a case manager could better evaluate how well those measures were being met.
! The CSBs all had quality monitoring systems for case management quality and effectiveness that included varying levels of document review and trending; some also provided training based on the results of those trends. Each agency also had its own QA tools, but some felt it would be helpful to have a standardized tool for use statewide.
! The Commonwealth’s monitoring of service provider quality was completed largely by DMAS and by the DBHDS Office of Licensing. Providers, however, could also be referred to Community Resource Consultants (CRC). With the growing number of providers there was concern that the current monitoring system might not be sufficient. It was recommended that at least there should be an increased number of CRCs.
! There was some discussion that not all providers of DD case management would choose to continue to offer that service under the Waiver Re-Design, but might choose to provide service facilitation instead. How this might impact the overall case management system remains to be seen.
Suggestions for Departmental consideration: DBHDS should consider additional strategies to communicate change activities to the service delivery system, such as a Facebook page for “DBHDS Change” or email blasts to a DBHDS listserv to notify DBHDS users of activities that are underway. Current strategies are passive and represent communication that may be satisfactory during normal periods. More active approaches that allow interaction and the pushing of information out are warranted as the Department enters a period of Waiver redesign, rate changes, procedural modifications, etc.

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DBHDS should consider welcoming the private case management sector into the larger ID system. DD case managers tend to be more oriented to action, to flexibility, to advocacy, and to the use of natural supports. Their weaknesses in documentation systems, electronic health records, and the interdisciplinary team process, can be overcome with training and technical assistance. The positive impacts of a private case management system as an alternative to the public case management systems are significant: more options for families and individuals, more outlets for the case management of challenging cases, and efficiencies in job performance.

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Attachment A
Case management Review Tool Items
1 Has the individual’s Individual Support Plan/Plan of Care (ISP) been modified as necessary or in response to major events?
2 Does the ISP have specific and measurable outcomes? 3 Are all essential supports and services listed in the ISP? 4 Are there any changes in status to previously identified risks, (losing current housing, losing placement due to challenging
behavioral needs)? 5 Any recent medical appointments, any changes in medications, or any concerns with physical health in past 3 months?
Choking, constipation, falls, etc.? 6 Do any of these issues warrant convening a team meeting to consider changes to the ISP? 7 Any assessments completed in the past year? 8 If yes, were the results (risks, injuries, change in status) incorporated in the ISP by the team? 9 Any recent issues of safety, freedom from harm, abuse, use of seclusion or restraints? 10 If yes, were these addressed by the CM and the team? 11 Is the individual satisfied with major services? 12 If no, is action being implemented to resolve his/her concerns? 13 Does the individual have interests in any additional services, supports or activities? 14 Did the case manager/support coordinator provide information/ education to the individual or AR in the last ISP
about less restrictive services? 15 Has the CM supported the individual in accessing needed services in the ISP? 16 Has the CM visited the individual as required during the past three months? (Every 30 days if enhanced CM, including
one every other visit in their home, every 90 days if not enhanced.) 17 Was the individual offered choice among providers, including case managers, in the last annual ISP meeting? 18 Did the team discuss supported employment/employment services in the last annual ISP? 19 If yes, were employment goals and supports developed/updated and discussed in the last ISP? 20 If yes, did the case manager take necessary steps to support the individual towards employment? 21 Is the individual making progress on the employment goals in the ISP 22 Were there any behavioral crises or emergencies in the past year? 23 If yes, was the case manager involved and coordinating communication between provider, AR, REACH, individual? 24 If yes, did the case manager coordinate a team meeting? 25 If yes, did everyone attend who was needed? 26 Are supports and services consistent with the individual’s choices, preferences, and with self-determination? 27 Is a team meeting needed? When it will occur? 28 If yes, will those attending include the most important individuals? 29 Are there any ISP outcome changes that are needed? 30 Any needed referrals? 31 Is the individual following a special diet? 32 Does the individual appear to need an assessment (or reassessment) for a special diet? 33 Does the individual require an adapted environment or equipment? 34 If yes, are these monitored and being implemented? 35 Are services and supports being provided in the most integrated setting appropriate to the individual’s needs? 36 Are there goals/outcomes for which there is no progress and which the CM and the team have not attended to? 37 f appropriate, has the individual been provided referrals and support to acquire subsidized housing, rental assistance
or bridge funding?

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APPENDIX D CRISIS SERVICES REQUIREMENTS
By: Kathryn du Pree MPS

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CRISIS!SERVICES!REVIEW!OF!THE!VIRGINIA!REACH!PROGRAM!FOR!THE! INDEPENDENT!REVIEWER!FOR!THE!COMMONWEALTH!OF!VIRGINIA!VS.!THE! US!DOJ!!
PREPARED'BY'KATHRYN'DU'PREE,'MPS'
 EXPERT'REVIEWER'
 '
 May'6,'2016'

'
 ' TABLE!OF!CONTENTS!
 !
 Section!1:!Overview!of!the!RequirementsT!2!
 !
 Section!2:!Purpose!of!the!ReviewT!2!
 !
 !Section!3:!Review!ProcessT!3!
 !
 Section!4:!A!Statewide!Crisis!System!for!Individuals!with!ID!and!DDT!4!

Section!4A:!Review!of!the!Crisis!Services!Plan!to!Serve!Children!and!AdolescentsT!4!!
 !
 Section!4B:!REACH!Services!for!AdultsT!13!
 !!
 !
 Section!5:!Elements!of!the!Crisis!Response!SystemT!23!
 !
 Section!6:!Summary!T32!
 !

Table!1:!Total!Referrals!for!ChildrenT5!
 Table!2:!Disposition!at!Time!of!the!Crisis!AssessmentT8!
 Table!3:!Disposition!at!the!Completion!of!Mobile!SupportsT!8!
 Table!4:!REACH!Crisis!ResponsesT13!
 Table!5:!Outcomes!for!Individuals!After!the!REACH!AssessmentT14!
 Table!6:!Outcomes!for!Individuals!Using!REACH!ServicesT!15!
 Table!7:!CEPP!and!Crisis!Prevention!Follow!UpT26!
 Table!8T!Summary!of!Compliance!T34!
 !
 Appendix!1:!Summary!of!Focus!Groups!in!Region!IIIT35!

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SECTION!1:!OVERVIEW!OF!REQUIREMENTS! Donald!Fletcher,!the!Independent!Reviewer!has!contracted!with!Kathryn!du!Pree!as!the!Expert! Reviewer!to!perform!the!review!of!the!crisis!services!requirements!of!the!Settlement!Agreement.! The!review,!which!is!for!the!time!period!10/7/15U4/6/16,!will!determine!the!Commonwealth!of! Virginia’s!compliance!with!the!following!requirements:! The!Commonwealth!shall:!
"!!!!!develop!a!statewide!crisis!system!for!individuals!with!ID!and!DD,!! "!!!!!provide!timely!and!accessible!supports!to!individuals!who!are!experiencing!a!crisis,!! "!!!!!provide!services!focused!on!crisis!prevention!and!proactive!planning!to!avoid!potential!
crises,!and!! "!!!!!provide!inUhome!and!communityUbased!crisis!services!to!resolve!crises!and!to!prevent!
the!removal!of!the!individual!from!his!or!her!current!setting!whenever!practicable.!! ! This,!the!seventh!review!of!crisis!services!and!prevention,!will!focus!on!the!recommendations! made!by!the!Independent!Reviewer!in!his!report!of!June!2015. !!
SECTION!2:!PURPOSE!OF!THE!REVIEW! This!review!will!build!off!of!the!review!completed!in!the!fall!of!2015!for!the!review!period!
 4/7/15!through!10/6/15.!It!will!also!report!on!the!status!of!the!recommendations!that!the!
 Independent!Reviewer!made!in!his!last!Report!that!resulted!from!the!conclusions,!findings!and!
 ratings!of!compliance!of!that!review.!!
 !
 For!this!review,!the!ratings!of!compliance!for!the!overarching!crisis!services!provisions!
 (III.C.6.a.iUiii)!will!be!based!on!the!status!of!development!and!operations!of!crisis!services!for!
 children!and!adolescents!as!well!as!for!adults.!The!remaining!crisis!services!provisions!will!be!
 rated!based!only!on!the!crisis!services!for!adults!with!ID/DD.!The!crisis!services!for!children!are!
 being!developed!and!refined.!The!Commonwealth!does!not!expect!its!crisis!services!for!children!
 and!adolescents!with!ID/DD!to!reach!its!performance!milestones!and!compliance!until!after!the!
 next!reporting!period.!The!Independent!Reviewer!will!begin!including!the!crisis!services!for!
 children!into!the!reported!compliance!ratings!for!all!crisis!services!provisions!for!the!Report!to!
 the!Court!for!the!tenth!reporting!period.!!
 !!
 The!focus!of!this!review!will!be!on!those!areas!that!were!determined!previously!not!to!be!in!
 compliance!for!adults,!on!all!crisis!services!provisions!for!children,!and!on!the!Independent!
 Reviewer’s!related!recommendations.!This!focus!will!be!on:!!

• The!Commonwealth’s!ability!to!provide!crisis!prevention!and!intervention!services!to! children!with!either!intellectual!or!developmental!disabilities,!including!providing!out!of! home!crisis!stabilization!services.!The!DBHDS!was!in!the!beginning!phase!of! implementing!these!services!across!all!five!regions!at!the!time!of!the!review!in!the!fall!of! 2015.
! !

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• The!Commonwealth’s!plan!to!reach!out!to!law!enforcement!and!criminal!justice! personnel!to!effectively!work!with!individuals!with!intellectual!and!developmental! disabilities!to!address!crises!and!crisis!intervention!services!to!prevent!unnecessary! arrests!or!incarceration.
! • A!review!of!the!DBHDS!data!for!psychiatric!hospitalizations!for!children!and!for!adults

• The!capacity!of!the!system!to!provide!the!full!range!of!behavioral!supports!that!are! needed!by!this!population

• The!quality!of!crisis!services!that!individuals!are!receiving!from!the!five!regional!REACH! programs! !
 !

SECTION!3:!REVIEW!PROCESS!
 The!Expert!Reviewer!reviewed!relevant!documents!and!interviewed!key!administrative!staff!of! DBHDS,!REACH!administrators!and!stakeholders!to!provide!the!data!and!information!necessary! to!complete!this!review!and!to!determine!compliance!with!the!requirements!of!the!Settlement! Agreement.!The!documents!reviewed!included!those!provided!by!the!Commonwealth!that!it! determined!demonstrated!its!progress!toward!achieving!compliance.!

Document'Reviewed:! 1. State!Children’s!REACH!Quarterly!Report:!IIFY16! 2. State!Children’s!REACH!Quarterly!Report:!IIIFY16! 3. State!Adult!REACH!Quarterly!Report:!IIFY16! 4. State!Adult!REACH!Quarterly!Report:!IIIFY16! 5. Psychiatric!Hospitalization!Report!for!Adults:!7/1/14U6/30/15!! 6. Psychiatric!Hospitalization!Report!for!Children:!7/1/14U6/30/15!! 7. Scope!of!Work!Design!for!Law!Enforcement!Training!! 8. DBHDS!REACH!Training!DirectiveU!3/4/16!! 9. DBHDS!Family!LetterU1/12/16!! 10. DBHDS!RFP!to!develop!services!for!individuals!with!behavioral!challenges!and/or!mental!
health!needsU!7/15!! 11. Performance!Indicators!for!Children’s!Crisis!Services! 12. Behavioral!Support!Competencies!for!Direct!Support!Providers!and!Professionals!in!
Virginia!Supporting!Individuals!with!Developmental!DisabilitiesU!8/15! 13. Letter!from!the!disability!Law!Center!of!Virginia!to!Interim!Commissioner!Dr.!Jack!
BarberU!3/24/16! 14. Office!of!the!State!Inspector!General!Unannounced!Inspection!at!Commonwealth!Center!
for!Children!and!Adolescents!(CCCA)U!6/29/15!
 !
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Interviews'with'DBHDS'and'REACH'staff:!I!interviewed!Heather!Norton,!Director,!Community!
 Support!Services,!Michele!Ebright,!Behavioral!Psychologist,!Lucy!McClandish,!Region!III!ID/D!
 Director!at!New!River!Valley!CSB,!Denise!Hall,!REACH!Director!for!Region!III,!Karen!Adams,!
 Assistant!Director!REACH!Region!III,!James!Vann,!REACH!Director!Region!I,!and!Amanda!
 Cunningham,!Children’s!Coordinator!REACH!Region!I.!I!also!spoke!with!Jamie!Liban,!Executive!
 Director!of!the!Arc!of!Virginia,!Shane!Ashby,!ID/D!Director!at!Mt.!Rogers!CSB!and!the!Director!of!
 Case!Management!there.!I!appreciate!the!time!that!everyone!gave!to!contributing!important!
 information!for!this!review.!!
 '
 Focus'Groups:!I!conducted!two!focus!groups!in!Region!III,!one!in!Marion!and!one!in!Roanoke.!
 The!focus!groups!included!CSB!Emergency!Services!staff,!case!managers,!behaviorists,!providers,!
 parents!and!guardians.!Advocates!were!invited!but!were!unable!to!attend.!The!participants!were!
 very!candid!and!provided!a!richer!understanding!of!the!crisis!response!system.!I!want!to!thank!
 Lucy!McClandish!and!Denise!Hall!for!their!efforts!to!coordinate!these!events!and!to!arrange!for!
 suitable!meeting!space.!


SECTION!4:!A!STATEWIDE!CRISIS!SYSTEM!FOR!INDIVIDUALS!WITH!ID!and!DD! The!Commonwealth!is!expected!to!provide!crisis!prevention!and!intervention!services!to! children!and!adults!with!either!intellectual!or!developmental!disabilities.!This!responsibility!is! described!in!Section!III.6.a!of!the!Settlement!Agreement:!!

)
The)Commonwealth)shall)develop)a)statewide)crisis)system)for)individuals)with)ID)and)DD.)The)crisis)system)
shall:)
i. Provide)timely)and)accessible)support)to)individuals)who)are)experiencing)crises,)including)crises)
due)to)behavioral)or)psychiatric)issues,)and)to)their)families;))
ii. Provide)services)focused)on)crisis)prevention)and)proactive)planning)to)avoid)potential)crises;)and))
iii. Provide)in>home)and)community)–based)crisis)services)that)are)directed)at)resolving)crises)and)
preventing)the)removal)of)the)individual)from)his)or)her)current)placement)whenever)practicable.))
) A.!Review!Of!The!Status!Of!Crisis!Services!To!Serve!Children!And!Adolescents! ! DBHDS!established!timelines!for!the!outcomes!of!the!Children’s!Crisis!Service!System.!The! department!anticipates!the!following:!
• A!single!point!of!entry!in!each!region!is!in!effect!by!July!2015! • A!data!system!and!data!collection!is!implemented!by!July!2015! • All!crisis!calls!are!responded!to!within!defined!standards!60%!of!the!time!by!
December!2015! • All!crisis!calls!are!responded!to!within!the!defined!standards!80%!of!the!time!by!July!
2016! • All!crisis!calls!are!responded!to!within!defined!standards!95%!of!the!time!by!
December!2016! ! ! ! !

!

133!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 134 of 212 PageID# 6824 !

The!information!provided!below!is!from!the!two!Children’s!REACH!Quarterly!Reports!that!


DBHDS!provided!for!Quarters!II!and!III!FY16.!


!


REACH!ReferralsU!The!Children’s!REACH!Programs!received!ninetyUseven!referrals!in!QII!and!


108!in!QIII.!In!QII!43!(44%)!of!the!97!referrals!were!made!in!Region!V.!Of!these,!33!(77%)!of!43!


were!nonUcrises!referrals.!The!number!of!referrals!during!QII!in!the!other!regions!ranged!from!


11U17.!There!was!an!overall!11.3%!increase!in!referrals,!from!97!to!108,!during!QIII.!During!this!


third!quarter,!39!(36%)!of!the!108!referrals!occurred!in!Region!I.!Region!II!had!the!fewest!


referrals!in!both!quarters,!12!and!7,!respectively.!The!number!and!percentage!of!crisis!versus!


nonUcrisis!calls!increased!from!38!(39.2%)!during!QII!to!70!(64.8%)!in!QIII.!Families!and!CSB!


Case!Managers!are!the!primary!source!of!referrals.!CSB!ES!staff,!schools,!hospitals!or!other!


providers!made!fewer!referrals.!!


!


Table'1'summarizes!the!referrals!across!both!quarters.!
 !


Table'1:'Total'Children’s'Referral'Calls'

!

Call! RIT! RIT RIIT RIIT RIIIT RIIIT RIVT RIVT RVT RVT Total!

Type! QII! QIII! QII! QIII! QII! QIII! QII! QIII! QII! QIII!

Crisis! 11! 28! 2! 0! 11! 19! 4! 12! 10! 11! 108!

NonT

0! 11! 10! 7! 6! 2! 10! 4! 33! 14! 151!

Crisis!

Total! 11! 39! 12! 7! 17! 21! 14! 16! 43! 25! 205!

!


Time!of!ReferralU!REACH!tracks!the!time!and!dates!of!referral!calls.!This!is!presented!in!a!


different!chart!and!the!numbers!do!not!match!the!numbers!in!the!Referral!Breakdown!by!Type,!


which!reflects!the!total!referral!activity.!Region!II,!however,!could!not!produce!the!data!on!time!


of!call!for!QII.!Region!I!cannot!produce!these!data!on!time!of!call!for!QIII.!Data!are!available!for!


187!of!the!referrals.!This!difference!is!not!only!caused!by!the!lack!of!reporting!by!Regions!I!and!II!


but!because!the!other!three!regions!data!do!not!align!for!QII!and!the!data!for!Regions!IIII!and!V!


do!not!align!for!QIII.!All!of!these!regions!report!more!calls!in!the!Time!of!Referral!Table!than!they!


report!in!the!Referral!Breakdown!Table.!Of!the!referral!calls,!72%!were!received!during!normal!


work!hours!on!Monday!through!Friday,!whereas,!9%!were!received!on!weekends!or!holidays!


and!19%!were!received!after!5PM!on!weekdays.!This!pattern!of!referral!calls!is!a!similar!for!


adult!with!ID/DD.!DBHDS!needs!to!align!its!reports!to!be!consistent!and!accurate.!


!


Referrals!for!Individuals!with!ID!and!DDU!The!Children’s!REACH!Program!is!serving!a!high!


percentage!of!individuals!with!developmental!disabilities,!other!than!Intellectual!disabilities,!


versus!individuals!with!intellectual!disabilities.!These!data!are!broken!out!by!three!categories:!


intellectual!disability!only;!ID!and!DD;!and!a!developmental!disability!only.!During!QII!49!(46%)!


46%!of!the!individuals!served!had!a!developmental!disability!only.!In!QIII!this!increased!to!64!


(59%)!of!the!individuals!referred.!!The!number!of!individuals!served!by!disability!type!matched!


the!total!number!of!referrals!in!QIII.!The!number!of!individuals!reported!by!disability!groups!in!


QII!was!nine!more!(106)!than!the!number!of!referrals!(97).!Only!20%!of!children!and!


adolescents!served!by!REACH!across!the!two!quarters!were!reported!to!have!an!intellectual!


!

134!


!


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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 135 of 212 PageID# 6825 !


disability!only,!compared!to!88%!for!adults!over!the!reporting!period.!DBHDS!credits!this!


difference!between!the!referrals!to!the!children’s!and!adult!programs!in!large!part!as!a!result!of!


direct!referrals!from!schools!and!schools!making!the!families!of!students!they!serve!aware!of!


this!crisis!support.!Since!the!schools!serve!both!disability!groups!all!outreach!by!the!REACH!


programs!to!the!schools!will!positively!impact!the!knowledge!of!families!of!students!with!any!


intellectual!or!developmental!disability.!


!


Response!TimeU!REACH!staff!responded!to!referrals!that!required!an!onsite!response!within!the!


required!time!on!average!across!all!regions!in!both!quarters.!(Note)Region)II)did)not)report)any)
 crisis)calls)in)QIII,)only)calls)that)were)considered)non>crisis.)!However,!DBHDS!did!not!report!on!


actual!response!time!for!QII.!Only!two!(3.1%)!of!sixtyUfour!onsite!responses!were!later!than!the!


standard!of!one!hour!in!Regions!II!and!IV!and!two!hours!in!Regions!I,!III!and!V!in!QIII.!This!


expectation!has!been!met!97%!of!the!time!but!only!reflects!half!of!the!reporting!period.!Also!


Region!I!does!not!have!the!capacity!to!respond!to!calls!for!children!after!hours!or!on!weekends.!


Region!I!relies!instead!on!the!ES!staff!within!each!CSB!area!to!respond.!This!does!not!meet!the!


expectations!of!the!Settlement!Agreement.!DBHDS!is!working!with!this!program!and!the!regional!


CSBs!to!correct!it.!


!


Of!interest!is!that!most,!but!not!all,!regions!respond!onsite!to!every!crisis!call.!Regions!I!and!IV!


appear!to!respond!to!all!crisis!calls!with!an!onsite!response.!It!is!somewhat!difficult,!however,!to!


ascertain!the!actual!number!of!crisis!calls!because!the!numbers!on!the!Summary!of!Call!Data!and!


the!Referral!Breakdown!by!type!do!not!match.!


!


The!location!of!the!mobile!assessments!is!also!included!in!the!data!provided.!The!majority!of!the!


104!assessments!were!done!in!family!homes!totaling!42!(40%).!The!next!most!common!location!


for!assessments!was!CSB!ES!settings!where!29!(28%)!were!done.!!Twenty!Usix!(25%)occurred!in!


hospital/ER!settings.!Of!note!is!that!only!one!of!these!assessments!by!REACH!was!done!at!a!


CSB/ES!in!QII!but!that!this!increased!to!twentyUeight!during!QIII.!This!increase!meant!that!


CSB/ES!locations!surpassed!hospitals/ERs!as!the!second!most!common!location!for!assessments!


during!QIII.!!


!


The!fact!that!twentyUsix!were!conducted!in!hospital!settings!indicates!that!REACH!is!being!


notified!more!frequently!of!preUadmission!screenings!by!CSB!ES!staff.!DBHDS!reports,!however,!


that!there!were!sixtyUthree!admissions!to!psychiatric!hospitals!during!the!reporting!period.!


Although,!the!crisis!services!requirements!for!children!are!intended!to!ensure!services!are!


provided!in!communityUbased!settings,!and!to!avoid!unnecessary!institutionalization!for!any!


child!or!adolescent!with!an!ID!or!DD!diagnosis,!REACH!programs!were!involved!with!fewer!than!


half!of!the!individuals!who!were!admitted!to!psychiatric!institutions.!REACH!was!either!only!


informed!of,!or!only!joined!ES!staff!for!63!(41%)!of!these!admissions.!Without!being!notified,!


crisis!stabilization!services!that!are!designed!to!provide!a!last!resort!alternative!could!not!fulfill!


this!responsibility.!


!


Mobile!Crisis!ServicesU!There!were!ninetyUseven!referrals!in!QII.!Of!these!referrals,!thirty!Ueight!


(39.2%)!received!mobile!crisis!services.!In!QIII!this!increased!to!seventyUeight!(72.2%)!of!the!


108!individuals!who!were!referred!received!mobile!crisis!services.!The!number!in!QII!matches!


the!number!of!crisis!calls.!In!QIII,!seventyUeight!were!reported!to!have!received!crisis!services!


!

135!


!


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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 136 of 212 PageID# 6826 !


versus!the!seventy!crisis!calls!received.!QIII!mobile!crisis!response!data!might!include!


individuals!who!were!already!enrolled!in!REACH!from!a!previous!time!period!that!required!


mobile!crisis!services.!!


!


DBHDS!reports!on!the!disposition!at!both!the!time!of!the!crisis!assessment!and!at!the!completion!


of!the!mobile!support!services.!Of!the!individuals!assessed!by!REACH!29!(21%)!were!


hospitalized!or!placed!in!residential!treatment!at!the!conclusion!of!the!assessment.!More!than!


half!of!the!individuals!were!able!to!remain!with!their!families!without!mobile!supports!and!a!


total!of!105!(77%)!stayed!home!after!the!assessment,!including!the!34!(25%)!whom!needed!


mobile!crisis!support.!This!indicates!that!they!may!have!been!seeking!preventative!crisis!


support.!Region!IV!is!the!only!region!that!offered!an!out!of!home!communityUbased!crisis!


stabilization/last!resort!alternative!for!children!with!ID/DD.!!


!


The!report!on!the!disposition!for!individuals!at!the!completion!of!mobile!crisis!supports!shows!a!


significant!increase!in!the!number!of!children!who!were!able!to!remain!living!in!their!home.!It!is!


positive!that!96!(80%)!of!the!120!of!children!and!adolescents!remained!living!at!their!homes!


after!receiving!mobile!crisis!services!and!did!not!need!further!mobile!crisis!supports.!An!


additional!13!(12%)!remained!living!in!their!homes!with!the!provision!of!additional!crisis!


support!services.!Only!eleven!(9%)!of!the!120!of!children!who!received!REACH!crisis!services!


during!the!period!reviewed!were!hospitalized!for!psychiatric!support!or!placed!in!residential!


treatment!at!the!end!of!mobile!supports!being!provided.!This!may!be!evidence!of!the!


effectiveness!of!a!newly!established!program.!!DBHDS!should!report!on!what!mobile!supports!


continue!at!the!end!of!mobile!supports!being!completed!and!report!this!information!in!all!future!


quarters.!


!!


!Table'2!illustrates!the!disposition!at!the!time!of!assessment!across!both!quarters.!


!Table'3!illustrates!the!disposition!at!the!end!of!mobile!support!services,!only!for!QII.!!


!This!data!was!not!reported!in!QIII.!


!


Table'2:'Disposition'at'the'Time'of'Crisis'AssessmentU'10/1/15U3/31/16'

!

Region Psychiatric Residential Community Home with Home

Total

Admission Treatment Crisis Unit Mobile

without

Supports Mobile

Supports

I

3

1

9

38

51

II*

1

1

3

7

12

III

7

3

13

23

IV

4

4

15

7

30

V

12

Total

27

2

4

6

22

4

34

71

138

*Region)II)did)not)report)this)data)in)QIII.))

)Table)2)has)data)for)only)half)of)the)review)period)

) '

!

136!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 137 of 212 PageID# 6827 !

'


Table'3:'Disposition'at'the'Completion'of'Mobile'SupportsU'10/1/15U12/31/15'


!

Region

Psychiatric Residential Home with

Home

Total

Admission Treatment

Mobile

without

Supports

Mobile

Supports

I

3

1

9

39

52

II

1

2

3

13

19

III

1

1

4

6

IV

24

24

V

3

16

19

Total

8

3

13

96

120

Number of Days of Mobile Support- REACH is expected to provide three days of mobile crisis support on average for children and adolescents. During QII three of the regions exceeded this threshold. Region II could not report and Region V provided an average of 2.3 days. During QIII the four regions that reported averaged between 4 and 6 days. All exceeded the three-day average. Region II can still not report this data.

The Children’s REACH program is sending clinicians to homes, schools and other settings where children spend most of their time. Doing this is to help children who exhibit challenging behaviors to develop and to practice coping skills and to help parents, teachers and other caregivers to work effectively with the individuals. The Children’s REACH programs have begun to report on the types of services offered to children who receive Mobile Crisis Support. The data reported, however, is not complete and, in some instances, appears to be incorrect. The data align with the other charts that show the numbers of children who have received mobile supports in only two regions (Regions III and IV). Region I reports two more children than appear in the other charts, Region II cannot report. Region V reports serving fourteen more children (11 compared to 25). Regions III reported that it provided all of types of services to all of the children who received mobile supports in QIII. The QII report on Children’s crisis services did not include this data element.

The mobile crisis support services include: comprehensive evaluation, crisis education prevention plan (CEPP), consultation, prevention follow-up, and family/provider training. The CEPP and prevention follow-up are required for all REACH participants. This service, however, was not provided to all individuals in Regions I, IV or V. Region II was not able to report what types of services it provided.

Training- Children’s REACH staff have provided extensive training during the reporting period. The following groups have been trained:
• Law Enforcement- 46 • CSB employees- 558 • Family members and residential staff- 132 • ES staff- 113 • Hospital staff- 11 • Other community partners- 117

!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 138 of 212 PageID# 6828 !


During QIII Region V had a special training initiative for parents to address issues facing adolescents as they go through puberty. Region III led a series of systems change trainings that involved a total of 294 individuals that are not reflected in the totals above.
Crisis Stabilization Programs/Crisis Therapeutic Homes- The Children’s REACH programs do not have crisis stabilization homes, now called crisis therapeutic homes (CTH) in any of the regions. Such programs are required by the Settlement Agreement, DBHDS plans to issue an RFP by May 1, 2016 to develop out-of-home crisis respite services during FY17. There is funding available to develop two homes, or to develop an alternative approach to crisis stabilization model, such as therapeutic host/sponsor homes. DBHDS is finishing its review of psychiatric hospitalizations for both children and adults with ID and DD. The staff plans to use these data to determine the capacity that will need for children and adolescents, and whether additional CTH’s are needed for adults. DBHDS will provide this report to the Independent Reviewer and Expert Reviewer by the fall of 2016.
Psychiatric Admissions- DBHDS reports on a total of sixty-three psychiatric hospitalizations that were known to Children’s REACH programs during the reporting period. Forty -eight (76.2%) of the sixty-three individuals returned home. Two of the children were placed in foster care, two were placed in congregate residential programs, six were admitted to residential treatment facilities, and five children continued to be hospitalized. Of those hospitalized, eleven (17%) of sixty-three were not able to return home or to be placed with community residential supports. The sixty- three is a significantly larger number than the thirty-five individuals that REACH reported being involved with who were admitted to psychiatric hospitals, as reported in Tables 2 and 3. This difference is an indication that the Children’s REACH programs are not yet meeting all children and adolescents who are screened for admission to a psychiatric facility, and are not becoming involved with all children with ID/DD once they are admitted to psychiatric institutions. It would help these children avoid future unnecessary hospitalization for these children and their families to have the support of the REACH programs, especially once the children return to their families’ homes or to foster care.
DBHDS provided raw data on the admissions of children and adolescents to psychiatric facilities that occurred between 7/1/14 and 6/30/15. This is prior to both the current review period and to the full implementation of Children’s REACH services. It provides a baseline of information, however, to compare future psychiatric admissions data since the children’s crisis services have been made available. All of the admissions were to the Commonwealth Center for Children and Adolescents (CCCA). It is the only state operated psychiatric facility available for children and adolescents in Virginia. DBHDS acknowledges that it does not have information regarding hospitalizations for children that occur in private psychiatric hospitals. This makes it impossible for the Commonwealth to know whether its services to help children avoid unnecessary institutionalizations are available and effective.
There were 134 children and adolescents admitted to the only state operated psychiatric facility for children during FY15. These Children ranged from 3 to 17 years of age. Of these children, twenty five (18.7%) were ten years of age or younger at the time of admission. Forty -four (33.6%) of them were between the ages of 11-14. All the children had been discharged by 6/30/15. Twenty- seven (20.1%) of them had a stay longer than thirty days. Dispositions occurred as follows:

!

138!


!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 139 of 212 PageID# 6829
!

• 1 went to jail who was age 17 • 31(23%) went to mental health treatment centers • 4 went to specialized foster care • 85(63%) returned home
Of the individuals that were placed in residential treatment: • 3 were 7 years old • 2 were 8 years old • 2 were 9 years old • 4 were 10 years old
There is no information regarding the transition for any of the individuals that were placed in residential treatment. It is not possible, therefore, to determine whether these were short term or longterm placements.
The Virginia Office of the State Inspector General (OIG) issued a report dated 1/12/16 of an unannounced visit made to CCCA on 6/29/15. The purpose of the visit was to review the quality of the services, make policy and operational recommendations, and assess the impact of the Safety Net Law (37.2.809.1[B]). The review considered all children placed at CCCA, not just those with ID or DD. The State Inspector General made one major finding:
1. Virginia lacks a system of adequate community-based services and supports, and appropriate settings to serve children and adolescents with ID, DD, ASD and forensic involvement. Until adequate programs are operational in the community, CCCA will continue to face challenges with bed capacity and possession of the staffing and programmatic resources necessary to provide quality services to diverse populations.
The State Inspector General report includes the following two recommendations: 1. The General Assembly (GA) should approve funding for the development of community based children and adolescents treatment programs including crisis services, and integrate treatment for children and adolescents with co-occurring conditions and that are forensically involved. DBHDS should publish a plan with targeted outcomes, dates and responsible parties. The report does note that the GA provided $4.5 million starting in FY13 and added $4.65 million in FY16.
2. DBHDS and the State Board of Behavioral Health and Developmental Disabilities in collaboration with CSBs and the Virginia Hospital and Healthcare Association should develop short term alternatives to settings for children and adolescents and these alternative settings should be fully funded and operational.
The report notes “children and adolescents with ID/DD and ASD are the fastest growing specialty population being admitted to CCCA accounting for approximately 27% of the total admissions.” The OIG report also highlights that CCCA has difficulty meeting the needs of children who are medically complex. Of the overall population at CCCA,

!

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!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 140 of 212 PageID# 6830
!

twenty-five (25%) are readmitted within one year. The OIG reported that a similar number (63%) of children with ID/DD and the general population went home. A higher percent of children with ID/DD (23%) compared to the percent (17%) for the overall population went to residential treatment facilities.
The OIG report highlights the current need for Children’s REACH services and supports; for the DBHDS’s current efforts to develop community based therapeutic respite; and for the analysis of psychiatric admission data to determine the amount of out of home crisis support for children that will be needed. It is apparent that the two crisis therapeutic homes for children and adolescents that are planned and funded for FY17 will be insufficient. Children with ID and DD will not have communitybased alternatives to institutionalization for up to fifteen months until these new services are available. It also points to the need for a broad range of community based treatment services for this population, of which REACH crisis prevention and stabilization services will only be a part.
The Commonwealth’s federally required advocacy entity disAbility Law Center (dLC) sent a letter to Dr. Barber, Interim Commissioner DBHDS dated March 24, 2016. The staff of the dLC expresses their concerns about the inadequacies of the behavioral supports in the community to prevent unnecessary psychiatric hospitalizations and speak against the use of the Training Centers for temporary placements for individuals in crisis. They find the community fragmented in its responses to these individuals. While the dLC is concerned for all individuals with ID or DD that experience unnecessary hospitalizations, they are particularly concerned about the plight of children and adolescents. Their concerns echo those of the OIG, Focus Group attendees, and the Independent and Expert Reviewers.
Recommendations- DBHDS should respond to the State Inspector General’s recommendations to develop a range of community-based supports for children with ID and DD. It should develop an implementation plan that includes the development of out of home crisis stabilization services and the expansion of community based behavioral supports. These supports should include sufficient capacity to provide needed in-home support and community residential options in all five regions. DBHDS should report how it plans to meet the needs of children for out-of-home crisis stabilization until the two homes are fully operational. It should also report what will be done to address the needs of individuals who cannot be supported with these twelve beds.
Performance Indicators for Children’s Crisis Services- DBHDS has developed seven performance indicators for Children’s REACH services. These include expectations for:
• a plan to track the use of crisis stabilization beds and the disposition of those served; • the creation respite beds as a preventative strategy; • quarterly reviews of the regional programs’ adherence to standards and clinical reviews; • annual quality reviews of psychiatric hospitalizations and the involvement of REACH crisis
services programs; • a retrospective review of psychiatric hospitalizations during FY15; • the development and implementation of improvement plans to address identified areas of
improvement; and • data collection regarding individuals who come into contact with law enforcement.

!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 141 of 212 PageID# 6831 !

DBHDS will report quarterly for the adherence to performance contracts and for clinical reviews. Data collection was scheduled to begin in January 2016. Data about law enforcement interaction was to be available for the quarter January through March 2016. This review was completed before these data were scheduled to be available. The remaining performance expectations will be reported between June and December 2016.

DBHDS did not provide information from the quarterly reviews of the five regional REACH programs. This will be useful information to have for future Expert Reviews including the clinical reviews of case studies. DBHDS did report the interaction with law enforcement for both children and adults. There were nine calls to the Children’s REACH programs that involved law enforcement during QIII. A total of seven children were involved. Two of the children were involved with law enforcement twice each. REACH programs were involved in all of these situations. Six of the calls were resolved so that the child remained in the community. Two children were admitted to the state operated CCCA. There are no data for one of the children.

B.!Reach!Services!For!Adults!

!

!REACH'ReferralsU!the!data!from!two!quarters!FY16!Quarter!II!(QII)!and!FY16!Quarter!III!(QIII)!

were!reviewed!for!this!study.!Regions!received!a!total!of!383!referrals!of!adults!with!ID/DD!

during!this!period.!This!compared!with!a!total!of!353!during!the!previous!review!period.!!Region!

V!continues!to!have!the!lowest!number!of!the!referrals,!44!referrals!(11%).!!Region!III!accounts!

for!127!(33%)!of!the!referrals.!The!Quarterly!Reports!do!not!specify!how!many!individuals!are!

served!by!REACH!in!a!quarter.!!The!data!on!dispositions!of!individuals!who!have!used!REACH!

services,!however,!can!be!extrapolated.!REACH!served!545!individuals!during!the!period.!As!

with!referrals,!more!individuals!were!also!served!than!in!the!previous!reporting!period.!

!

Table'4U'REACH'Calls'and'Responses!summarizes!the!call!information.!Overall!only!551!(73%)!

of!the!749!crisis!calls!received!a!faceUtoUface!response.!Regions!I!and!IV!responded!with!an!on!

site!face!to!face!staff!response!to!100%!of!the!crisis!calls!during!QII.!All!regions,!except!Region!V,!

responded!with!100%!onUsite!faceUtoUface!responses!to!all!crisis!calls!during!QIII.!Region!V!had!

the!more!of!crisis!calls!(122)!that!the!other!regions!during!QIII.!Region!V,!however,!only!

responded!to!only!41!(33.6%)!of!them!onsite.!There!was!no!explanation!provided!for!this!

disparity.!The!majority!of!the!calls,!68%!during!QII!and!71%!during!QIII,!were!for!nonUcrisis!

prevention!or!for!a!brief!information!consultation.!This!is!an!indication!of!the!positive!crisis!

prevention!outcomes!for!some!of!the!REACH!crisis!services.!

'

Table'4U'REACH'Calls'and'Responses!

Calls!

Quarter!II!

Quarter!III!

Total!Calls!

1097!

1298!

Crisis!Calls!

351!

398!

Face!to!Face!Response!

234!

317!

%!of!Crisis!Calls!w/!Direct!Response!!

67%!

80%!

!

During!this!reporting!period,!Case!Managers!continued!to!make!the!highest!number!of!referrals!

to!REACH.!!Community!Service!Board!ES!staff!combined!with!hospitals!were!the!two!next!most!

frequent!referral!sources.!Case!Managers!were!the!referring!source!for!22U74%!and!32U83%!of!

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the!referrals!in!the!two!quarters!respectively.!In!both!quarters!they!are!by!far!the!primary!
 referral!source!in!Region!V!where!there!were!no!referrals!made!by!the!CSB!ES!programs.!!
 Emergency!Services!staff!made!between!13U24%!of!the!referrals!during!QII!statewide,!but!none!
 came!from!Regions!IV!or!V.!During!QIII!between!6U24%!of!the!referrals!came!from!the!CSB!ES!
 programs,!but!again!no!such!referrals!came!for!the!CSB!ES!programs!in!Region!V.!DBHDS!should!
 learn!how!and!whether!REACH!is!appropriately!involved!in!hospital!screenings!Region!in!V!
 where!so!few!or!no!referrals!are!made!by!these!region’s!CSB!ES!programs.!Region!IV’s!ES!staff!
 make!the!referrals!through!the!CM’s!so!the!referrals!show!up!under!Case!Managers!rather!than!
 ES!staff.!
 !
 Statewide!crisis!services!were!provided!as!follows!during!the!reporting!period:!

# 299!adults!received!Crisis!Stabilization/CTH!services!and!305!adults!received!Mobile! Crisis!Support!!
# 153!individuals!served!required!crisis!stabilization!in!the!CTH!program! # 149!individuals!served!in!the!CTHs!received!planned!respite!and!crisis!prevention!
support Approximately the same number of individuals access mobile crisis support as access the crisis
stabilization/CTH program.

The following two tables provide information on the first dispositions for individuals. Table 5 
 provides the dispositions after the individuals’ initial assessments by REACH. Table 6 lists the
 dispositions after the individuals received either mobile or crisis stabilization/CTH services from
 REACH. In both cases the majority of individuals, a total of 753 (67%) retained their residential
 setting after the assessment. A higher percent (20%) of individuals were hospitalized after the
 assessment. A much smaller percent (6%) of the individuals who received REACH services were
 hospitalized. 


No one needed continued mobile crisis support after receiving REACH services (Table 6), yet 84% of these individuals retained their setting. This is an indication of the effectiveness of REACH mobile supports and its CTH program.

Table 5- Outcomes for Individuals after the REACH assessment shows the outcome for individuals

at the completion of the crisis assessment during the reporting period.

!

Table'5U'Outcomes'for'Individuals'after'the'REACH'Assessment'!

Outcome!

QII!

QIII! Total!

%!

Retain!Setting!

153!

148!

301!

51%!

Hospitalization:!!Psychiatric!

45!

76!

121!

20%!

Hospitalization:!Medical!

2!

4!

6!

1%!

Jail!

0!

1!

1!

<1%!

Crisis!Stabilization!(CTH)*)!

26!

39!

65!

11%!

Mobile!Support!

53!

41!

94!

16%!

New!Group!Home!

1!

2!

3!

<1%!

Total!

280!

311!

591!

100%!

!

*!includes)Community)Crisis)Stabilization)Unit)admissions))

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Table 6- Outcomes for Individuals using REACH Services shows the outcome for individuals supported by a REACH program during the reporting period. !

Table'6U'Outcomes'for'Individuals'Using'REACH'Services!

Outcome!

QII!

QIII!

Total!

%!

Retain!Setting! Hospitalization:!!Psychiatric! Hospitalization:!Medical!

243!

209!

452!

84%!

14!

17!

31!

6%!

!2!

0!

2!

<1%!

Jail!

0!

2!

2!

<1%!

CTH! New!Residence! Training!Center! Other!! Total!

14!

10!

24!

4%!

0!

25!

25!

5%!

0!

1!

1!

<1%!

0!

1!

1!

<1%!

273!

265!

538!

100%!

!
 Psychiatric'hospitalizationsTDBHDS!provides!an!addendum!to!its!quarterly!report.!The!
 addendum!reports!additional!data)on!the!outcomes!for!individuals!who!are!hospitalized!as!a!
 result!of!the!crisis.!They!also!report!whether!these!are!new!or!active!cases.!DBHDS!is!to!report!
 whether!these!individuals!eventually!return!home!or!whether!an!alternative!placement!needs!to!
 be!located.!A!total!of!fiftyUnine!individuals!who!had!contact!with!REACH!were!reported!admitted!
 to!psychiatric!hospitals!in!Tables)5)and)6.!The!addenda!provide!different!data!regarding!
 psychiatric!hospitalizations!and!the!known!dispositions.!These!data!indicate!that!DBHDS!is!
 aware!of!229!psychiatric!hospitalizations!of!individuals!with!ID/DD.!This!is!thirteen!more!than!
 during!the!previous!reporting!period.!The!department!notes!that!these!data!do!not!reflect,!and!
 that!it!does!not!know,!the!total!number!of!individuals!with!ID/DD!who!are!admitted!to!private!
 psychiatric!institutions.!!
 !
 The!DBHDS!report!contains!the!known!dispositions!for!more!than!the!known!number!of!
 individuals.!This!is!confusing!but!may!be!the!result!of!more!than!one!admission!for!some!
 individuals.!In!QII!one!region!does!not!know!the!disposition!of!all!of!the!individuals,!while!two!
 regions!report!more!dispositions!than!individuals.!!In!QIII!one!region!does!not!know!the!


dispositions!of!all!individuals!and!one!region!over!reports.!The!following!dispositions!occurred:!


• 62%)of)individuals)retained)the)original)placement)or)moved)with)family)

• 14%)remained)hospitalized) • 9%)used)the)REACH)Crisis)Stabilization/CTH)) • 7%)were)able)to)move)to)a)new)appropriate)community)residential)setting)or)to)an)Assisted)

Living)Facility)(ALF)) • 6%)were)in)an)“Other”)category)that)included)jail)for)2)individuals)and)for)short)term)

respite)situations)
• <1%)were)placed)at)a)Training)Center) Outcomes!were!not!positive!or!were!only!temporary!for!31%!of!the!individuals!hospitalized.!

This!is!the!first!time!that!an!individual’s!disposition!when!discharged!from!psychiatric!hospital! has!been!a!Training!Center.! !

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This!is!not!the!total!number!of!hospitalizations!of!individuals!with!ID!and!DD.!!There!are!data!
 inconsistencies!and!there!is!not!reporting!from!private!hospitals.!!
 !
 DBHDS!reports!that!the!REACH!program!remains!actively!involved!with!all!individuals!who!are!
 hospitalized!when!they!are!aware!of!the!hospitalization.!The!revised!REACH!standards!require!
 REACH!to!join!the!ES!staff!for!every!screening!and!stay!involved!with!everyone!who!is!
 hospitalized!as!a!result!of!the!screening.!REACH!staff!participates!in!the!admission,!attends!
 commitment!hearings,!attends!treatment!team!meetings,!visits,!and!consults!with!the!treatment!
 team.!The!data!in!the!Quarterly!Reports,!however,!for!the!individuals!with!whom!REACH!is!
 involved,!indicate!that!REACH!is!not!involved!with!everyone!who!they!know!is!hospitalized.!
 There!is!a!vastly!larger!number!of!individuals!reported!in!the!addenda!with!no!indication!or!
 explanation!of!REACH!involvement!with!the!additional!individuals!who!are!hospitalized!but!who!
 are!not!referred!to!in!the!body!of!the!quarterly!reports.!!The!inconsistency!in!data!reporting!was!
 raised!in!the!last!Expert!Reviewer’s!report.!The!inconsistency,!which!continues,!was!not!
 explained!in!either!of!the!quarterly!reports!reviewed!for!this!period.!The!inconsistency!should!
 be!explained.!
 !
 Recommendations:!DBHDS!should!ensure!that!every!individual!with!an!ID/DD!who!REACH!or!
 DBHDS!knows!was!admitted!to!a!psychiatric!hospital!is!engaged!with!REACH!staff!during!their!
 hospitalization.!!
 !
 TrainingUDBHDS!requires!all!Case!Managers!and!CSB!Emergency!Services!staff!to!be!trained!
 about!REACH!Crisis!Services.!DBHDS!is!requiring!all!existing!staff!to!be!trained!by!June!4,!2016!
 and!all!newly!hired!staff!to!be!trained!within!thirty!days!of!hire.!Chief!Deputy!Commissioner!
 Kathy!Drumwright!sent!correspondence!to!all!Executive!Directors,!Developmental!Disability!
 Directors,!and!Emergency!Services!Directors!on!March!4,!2016!informing!them!of!this!
 requirement.!The!REACH!module!is!available!through!the!DBHDS!Knowledge!Center.!
 !
 The!quarterly!reports!for!QII!and!QIII!document!that!the!REACH!Adult!Programs!continue!to!
 provide!extensive!training!to!a!range!of!stakeholders.!The!five!regional!REACH!programs!trained!
 more!than!2,000!individuals!during!the!reporting!period.!This!included:!

• Law)Enforcement>)395) • CSB)employees>)571) • ES)staff>111) • Family)and)other)caregivers>307) • Hospital)staff>125) • Other)community)partners>)617)
 )
 The!numbers!of!staff!who!were!trained!in!various!groups!differ!across!the!regions.!Regions!II!
 and!III!trained!the!fewest!law!enforcement!personnel.!Region!IV!did!not!train!any!ES!workers!or!
 family!or!other!caregivers.!!Region!V!did!not!train!any!family!or!other!caregivers.!Region!I’s!
 training!of!hospital!staff!accounted!for!121!of!the!125!who!were!trained.!!
 !
 !
 !


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!

RecommendationsT!The!amount!of!training!completed!by!REACH!staff!is!impressive.!It!remains!
 concerning,!however,!that!the!DBHDS!does!not!establish!expectations!for!training,!report!on,!
 analyze,!or!explain!the!extreme!variances!across!regions!in!some!of!the!training!by!stakeholder!
 groups.!DBHDS!now!requires!CSB!Case!Managers!and!ES!staff!to!be!trained.!They!use!the!DBHDS!
 online!material!available.!DBHDS!has!developed!a!new!training!initiative!for!law!enforcement!
 personnel,!which!is!described!later!in!this!report.!It!would!be!helpful!for!DBHDS!to!establish!
 statewide!expectations!for!the!training!of!family!members!and!other!caregivers.!

Outreach!to!the!DD!CommunityU!DBHDS!is!implementing!a!plan!to!reach!out!to!individuals!
 with!DD,!their!families,!providers,!and!the!broader!community!serving!individuals!with!DD,!
 other!than!ID.!DD!Case!Managers!are!now!receiving!training!and!information!regarding!REACH!
 services.!!ES!staff!is!trained!to!understand!that!REACH!services!are!also!a!resource!for!
 individuals!with!DD.!DBHDS!reports!that!it!has!enhanced!its!communication!with!stateUoperated!
 and!private!mental!health!hospitals.!To!educate!families!and!providers!REACH!staff!have!
 presented!at!statewide!and!local!conferences.!!DBHDS!continues!to!work!with!other!partners!
 including!Commonwealth!Autism!Service,!Virginia!Autism!Center!for!Excellence,!and!the!Arc!of!
 Virginia!to!help!distribute!information!about!the!REACH!Programs.!This!was!a!topic!of!the!two!
 focus!groups!that!this!reviewer!conducted!in!Region!III.!DD!Case!Managers!were!invited!but!
 none!attended!possibly!because!attendance!at!such!an!event!would!not!be!billable!for!them.!!
 !
 The!individuals!who!attended!the!Focus!Groups!did!not!generally!differentiate!between!
 individuals!with!ID!and!those!with!DD,!other!than!ID,!in!terms!of!access!to!appropriate!
 behavioral!supports.!!The!exception!is!that!the!current!list!of!DD!waiver!funded!services!does!not!
 include!24!hour!supervised!residential!settings.!!
 !
 Heather!Norton,!Director!of!Community!Support!Services!did!send!a!letter!on!January!12,!2016!
 to!all!individuals,!who!are!on!the!either!DD!waiver!or!the!waiting!list,!and!their!families!that!
 explained!the!availability!of!REACH!services.!The!letter!provides!a!link!to!REACH!information!on!
 the!DBHDS!website.!This!information!is!descriptive!and!provides!information!about!accessing!
 REACH!services!in!all!five!regions.!
 !
 Serving!individuals!with!developmental!disabilitiesUThe!REACH!programs!reported!serving!
 more!individuals!with!DD,!other!that!ID,!than!has!been!reported!during!past!review!periods.!
 Sixteen!individuals!were!served!in!QII,!which!represents!10%!of!the!population.!An!even!greater!
 number!was!served!in!QIII:!twentyUeight!individuals!with!DD!only.!This!represents!13%!of!the!
 REACH!population.!The!percentages!of!individuals!with!only!a!DD!who!have!been!served!by!
 REACH!have!been!5%!or!less!in!previous!reporting!periods.!This!appears!to!be!evidence!of!
 greater!outreach!to!the!DD!community.!Ms.!Norton’s!letter!in!January!may!have!in!part!led!to!the!
 increase!during!QIII.!
 !


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Building Behavioral CapacityT!I!noted!in!the!previous!Crisis!Services!Requirements!Report!that!
 REACH!crisis!services!programs!can!only!be!effective!if!they!are!part!of!a!continuum!of!
 communityUbased!supports!and!services!for!individuals!with!coUoccurring!conditions!or!
 challenging!behaviors.!During!the!current!review!period!and!for!this!report,!I!reviewed!the!
 adequacy!of!existing!behavioral!supports!to!meet!the!needs!of!individuals!in!the!target!
 population.!!
 !
 On July 15, 2015 DBHDS issued a Request For Proposals (RFP) to develop residential homes for Individuals with ID/DD and Challenging Behaviors and/or Mental Health Issues. Responses were due on July 24, 2015. The RFP was developed to help the Commonwealth to build the capacity to effectively address the needs of individuals who demonstrate challenging behaviors and/or mental health issues. The new capacity is being specifically targeted to meet the needs of individuals who will be transitioning from the Southwest Virginia Training Center (SWVTC). DBHDS reports that approximately fifty-five individuals who live at the SWVTC have these needs. The RFP also includes an estimate of 200 more individuals with similar needs who also live in Region III. DBHDS seeks to select at least one provider, and up to three, who will develop community service options for the individuals moving from the SWVTC and to increase the community capacity in Region III for individuals that will need a similar service. DBHDS proposes the development of residential options that include small homes, sponsor homes, and supervised apartments. Homes will ideally serve no more than four individuals, although, an exception can be made to serve five individuals in one home. DBHDS is asking for the selected provider(s) to commit to giving preference to the following individuals transitioning over a ten-year period:

• Residents of SWVTC • Residents of other training centers • Residents of mental health facilities • Individuals who are incarcerated • Residents of large ICF-IIDs or out-of-state facilities • Individuals that would otherwise be placed in one of the options listed above
DBHDS expects a comprehensive set of services and supports for individuals with behavioral challenges and/or mental health needs. These services and supports include: residential and day services appropriate to individual needs; in-home crisis supports and out-of-home crisis stabilization; step-down crisis stabilization from MH facilities, large ICFs, and jails; cross-system crisis prevention and intervention planning; and specialized staff. Staff will include BCBAs and certified Behavioral Support Professionals (BSPs).

DBHDS expects to have up to four residential settings developed by August 2016 to provide community-based residential support for individuals with challenging behaviors. DBHDS expected to make these awards before this review period ended but had not done so as of April 29, 2016. The funding is available and DBHDS plans to award funding to three or four providers. These providers

will be able to partner with REACH programs, as needed. They are expected, however, to hire and train staff with greater levels of behavioral competencies who will effectively address the needs of its participants without relying on REACH crisis services. Since the awards have not been made, I was not able to review the provider proposals to understand how they propose to secure the services of BCBA’s and BSPs.

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DBHDS reports that providers in Region IV have a higher level of behavioral competency and capacity. This is supported to some extent by anecdotal information form Regions I and III. Some individuals who use the Region I and III crisis stabilization/CTH programs end up being referred to and accepted by waiver providers in the Region IV catchment area. DBHDS has funding to issue a similar RFP in Region II to develop these behavioral supports during FY17. The last phase of this provider capacity building initiative may be to develop similar capacity in Regions I and V.
DBHDS is expanding the number of staff who are qualified BSPs in Region III and throughout the REACH program statewide. In May 2016, Mt. Rogers is scheduled to start training and will offer it to twenty-two professionals. It was reported at both the Fall 2015 and Spring 2016 Focus Groups that very few individuals complete the training and become certified. This is in part due to the extensive plan that is required of, but not completed by most, trainees until after the classroom training is finished. Many find it difficult to complete this requirement while attending to the responsibilities of their current jobs. DBHDS is trying to address this by having the creation of the plan be incorporated into the training process. This will give participants more dedicated time to complete the plan. This change would also result in staff being certified based on their demonstrated knowledge when the training is completed. When the second phase of certification process occurs after the completion of the plan, then the staff will be certified and able to begin mentoring others.
DBHDS has funded BSP training for staff of the REACH Children’s and Adult’s Programs. It is expected that each REACH Coordinator and Navigator will be certified within two years. Training will begin for four staff of the REACH Region III program during the summer of 2016. Other regions will each send to the BSP certification training between two and four staff from either the adult or children’s programs. REACH staff will be given sufficient time to have their portfolio/plans completed.
The Commonwealth has established a differential pay rate for BCBAs. The new pay rates that will take effect when the new HCBS waiver is implemented in July 2016. DBHDS believes that the higher pay rate will attract more BCBAs trained professionals to serve individuals with ID or DD who have behavioral challenges and experience crises.
DBHDS defined behavioral support competencies for direct support staff and for professionals. These were issued in August 2015. Competencies are defined for two levels for professionals: qualified DD professionals and behavior interventionists. There is an extensive list of competencies to assist staff to more successfully plan, assess and deliver support services for individuals with behavioral challenges. The document stresses the engagement of individuals with developmental disabilities participating in the individual service planning process. The department has also developed a Skill Competencies Professional Development Tracker to help providers monitor the professional development of staff working with people with ID and DD. It is to illustrate evolving skills, abilities, abilities and progress toward proficiency in each competency area. It is to be used by staff to gauge one’s own progress, by supervisors to document professional development, or by organizations to document training and development offer professional opportunities. It tracks training received, the demonstration of skills implemented, and the determination of the proficiency. Proficiency is demonstrated by successfully completing college course work; conference and workshop attendance; involvement in professional

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development activities; receiving coaching, mentoring or technical assistance by a skilled professional; observed practice of the skill area; and demonstration of the skill.

Interviews and Focus Groups in Region III- The Independent Reviewer asked me to focus part of this review to determine the Commonwealth’s current capacity to meet the needs of individuals with behavioral challenges and to enhance our understanding of the Commonwealth’s needs and efforts to building its capacity to meet the behavioral needs of the individuals served. The last review included a more specific analysis of services in Regions I and IV. That review included focus groups and a review of records of randomly selected individuals who had been admitted for psychiatric hospitalizations.

During March 2016, or this review, I conducted focus groups in Marion and Roanoke. I also met with and interviewed Region III REACH managers, the ID/DD Directors from Mt. Rogers and New River Valley CSBs, and the Case Management Director from Mt. Rogers. I also visited both the existing crisis stabilization home/ CTH and the new home under construction.

The Focus Groups were asked about the existing capacity of the community service system to support individuals with ID/DD; the quality of REACH services; the interface of REACH with both CSB Emergency Services (ES) staff and CSB case managers; and the recommendations that would improve the existing system. Case Managers, ES and hospital discharge screeners, CSB Directors, and parents attended. Attachment 1 includes information gathered through these discussions.

Twelve individuals attended including case managers, ES staff, parents, CSB administrators and disability rights professionals. They were asked to comment on the following issues:

• The existing elements of the community crisis services system • The capacity of the crisis services system to address the needs of individuals with ID and DD • The availability of behavioral supports, family support, residential services and day services
for this population • The responses to crises by ES and REACH staff and how they interface • The coordination of REACH services and the individual’s service planning team • The ways in which the crisis system can be enhanced

The focus group participants expressed concerns were about the limited capacity of many aspects of the community service system. The areas of limited capacity to meet existing needs includes the insufficient number of crisis stabilization/CTH settings; the woeful lack of BCBAs and Professional Behavioral Specialists; the lack residential options in the DD waiver; and a shortage of residential and day providers that can effectively address behavioral challenges and co-occurring conditions. Both focus groups expressed dissatisfaction with the services at the psychiatric hospitalizations that are available to individuals with ID and DD. These facilities were reported to have little expertise to address the unique needs of individuals with ID or DD including adults and children. Children cannot remain close to home when they are admitted to hospitals that are often far away. REACH was often complimented for specific work. These comments support the findings of the Office of the Inspector General, the findings in this report, and the system building efforts of DBHDS. The Commonwealth’s service system needs to develop significant additional capacity for the entire crisis support system to be effective and responsive and to meet the needs of individuals with behavioral challenges.

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What were particularly heartening were the overwhelmingly positive comments and examples of experiences with the Region III Adult and Children’s REACH programs. REACH is known for working in collaboration with the CSBs and service providers. The REACH programs were reported to communicate and coordinate well with Case Managers, to be responsive to ES staff requests for their participation in hospital screening, and with linking individuals and their families to community resources. No participants in the focus groups expressed any concerns about the REACH program’s effectiveness or with the efforts of the REACH staff.

My interviews with the leaders of the Region III REACH program provided some insight about the positive reaction community stakeholders have about the REACH program. This is only one of two REACH program in the state that serves both adults and children under the direction of one REACH Director. The other program is in Region IV. The REACH Coordinators in Region III are QMHPs with a four-year college degree and at least one year of clinical crisis experience. The program seeks to work with providers and schools as equal partners. Providers are generally receptive to REACH training and technical assistance. The Director uses a case study and peer review process to build staff’s crisis planning and implementation abilities. The Assistant Director is a Master’s Level behavioral professional. The program works collaboratively with the existing community system with a focus is on prevention. The staff acknowledges the fragmentation of the system for children and the lack of adequate resources for both children and adults that experience crises. Region III has modeled its crisis service for children on those that have been successful for adults. The REACH program sponsored systems change training for the region within this reporting period.

Conclusions:''The!DBHDS!is!not!in!compliance!with!Section)III.C.6.a.i,)or)6.a.ii)or)6.a.iii.)The! program!elements!are!in!place!for!adults!with!ID,!now!for!those!with!DD!but!not!fully!for! children!with!ID!or!DD.!Data!is!not!robust!yet!for!children!so!these!determinations!cannot!be! made.!The!REACH!teams!are!responding!to!crises!directly!more!of!the!time,!providing!mobile! supports,!and!offering!the!CTH!program!for!crisis!stabilization,!prevention!and!transition!from! hospitals.!Most!individuals!are!supported!to!stay!in!their!existing!setting.!! ! DBHDS!is!not!in!compliance!with!6.a.iii.!The!data!available!cannot!substantiate!that!services!are! sufficient!to!prevent!unnecessary!hospitalizations.!Almost!20!%!of!adults!and!children!referred! to!REACH!were!hospitalized!after!the!initial!mobile!crisis!assessment.!The!data!does!not!include! sufficient!information!as!to!whether!all!of!these!were!clinically!necessary!or!may!have!resulted! in!hospital!stays!past!stabilization!due!to!a!lack!of!appropriate!and!effective!community! resources.!When!reviewing!the!other!report!for!adults!with!psychiatric!admissions,!32%!had! poor!outcomes!that!did!not!include!permanent!effective!supports!and!services!in!community! settings.!! ! The!Commonwealth!also!needs!to!continue!its!systemic!improvements!if!individuals!are!to!stop! experiencing!multiple!and!unnecessary!hospitalizations.!REACH!is!one!part!of!the!system!that! provides!a!variety!of!temporary!crisis!supports.!REACH!must!be!complimented!by!a!strong,!well! trained!residential!and!day!provider!network!that!has!expertise!in!providing!effective!mental! health!and!behavioral!supports;!the!availability!of!mental!health!community!supports;!the! availability!of!behavioral!support!specialists;!psychiatric!settings!with!expertise!in!ID!and!DD;! and!effective!discharge!planning!for!individuals!who!are!hospitalized!or!incarcerated.!!

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!
 DBHDS!does!not!have!a!statewide!crisis!system!in!place!for!children!and!adolescents!who!
 experience!a!crisis!since!it!does!not!have!out!of!home!crisis!stabilization.!
 !


SECTION!5:!ELEMENTS!OF!THE!CRISIS!RESPONSE!SYSTEM!!

6.b.)The)Crisis)system)shall)include)the)following)components:)
 i.)A.)Crisis)Point)of)Entry)
 The)Commonwealth)shall)utilize)existing)CSB)Emergency)Services,)including)existing)CSB)hotlines,)
 for)individuals)to)access)information)about)and)referrals)to)local)resources.)Such)hotlines)shall)be)
 operated)24)hours)per)day,)7)days)per)week)and)staffed)with)clinical)professionals)who)are)able)to)
 assess)crises)by)phone)and)assist)the)caller)in)identifying)and)connecting)with)local)services.)Where)
 necessary,)the)crisis)hotline)will)dispatch)at)least)one)mobile)crisis)team)member)who)is)adequately)
 trained)to)address)the)crisis.))


The!REACH!programs!in!all!Regions!continue!to!be!available!24!hours!each!day!and!to!respond!
 to!crises.!There!were!410!calls!to!REACH!reported!in!the!data!the!DBHDS!provided!about!the!
 time!of!day!referrals!were!made!for!this!reporting!period.!This!varies!from!the!383!referrals!
 although!the!higher!number!of!calls!may!reflect!more!calls!from!one!individual.!Only!18%!of!the!
 calls!were!received!outside!of!regular!business!hours.!This!continues!the!trend!from!previous!
 reporting!period.!The!type!of!call!is!reviewed!in!greater!detail!earlier!in!this!report.!
 !
 Conclusion:!The!Commonwealth!is!in!compliance!with!Section)III.C.6.b.i.A.)
 )
 B.)By)June)30,)2012)the)Commonwealth)shall)train)CSB)Emergency)personnel)in)each)Health)
 Planning)Region)on)the)new)crisis)response)system)it)is)establishing,)how)to)make)referrals,)and)the)
 resources)that)are)available.))


!The!Regions!continue!to!train!CSB!ES!staff!and!report!on!this!quarterly.!During!this!reporting!
 period!four!regions!provided!training!to!CSB!ES!staff;!Region!IV!as!noted!earlier!did!not.!The!
 total!ES!staff!trained!during!this!reporting!period!was!101!which!is!significantly!higher!than!
 either!of!the!two!previous!reporting!periods!in!which!twentyUfour!and!sixtyUthree!ES!staff!was!
 trained.!DBHDS!requires!ES!staff!to!take!the!online!training!so!it!appears!this!training!is!
 supplemental.!
 !
 Conclusion:'The!Commonwealth!remains!in!compliance!with)Section)III.C.6.b.i.B)because!the!
 REACH!programs!continue!to!train!ES!staff!and!a!standardized!curriculum!has!been!developed!
 that!is!required!of!all!ES!staff.!!
 !
 Recommendation:'DBHDS!should!report!as!to!how!it!monitors!that!all!ES!staff!complete!the!
 online!training.!


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ii.)Mobile)Crisis)Teams)
 )
 A.)Mobile)crisis)team)members)adequately)trained)to)address)the)crisis)shall)respond)to)individuals)
 at)their)homes)and)in)other)community)settings)and)offer)timely)assessment,)services)support)and)
 treatment)to)de>escalate)crises)without)removing)individuals)from)their)current)placement)
 whenever)possible.))

The!National!Center!for!START!Services!at!UNH!continued!to!provide!training!to!the!REACH!staff! in!Regions!I!and!II.!!REACH!leaders!in!Regions!III,!IV!and!V!have!worked!together!to!develop!a! training!program!that!will!provide!similar!training!for!their!staffs.!DBHDS!has!reviewed!and! approved!the!curriculum!for!use!across!the!three!regions!as!reported!in!the!last!Crisis!Services! Report.!The!REACH!standards!require!comprehensive!staff!training!with!set!expectations!for! topics!to!be!addressed!within!30,!60!and!120!days!of!hire.!Staff!must!complete!and!pass!an! objective!comprehension!test.!Ongoing!training!is!required!and!each!staff!must!have!clinical! supervision,!shadowing,!observation,!conduct!a!case!presentation,!and!receive!feedback!on!the! development!of!Crisis!Education!and!Prevention!Plans!from!a!licensed!clinician.!DBHDS!does!not! provide!information!on!the!numbers!of!REACH!staff!that!take!the!training.!The!qualitative! clinical!reviews!that!DBHDS!is!conducting!were!not!provided!to!the!Expert!Reviewer.!!DBHDS! also!did!not!provide!information!as!to!whether!all!Regions!are!meeting!the!program!standards.! Absent!individual!reviews!in!this!review,!it!is!not!possible!to!comment!thoroughly!on!the! effectiveness!of!REACH!interventions.! ! From!the!data!in!the!Quarterly!Reports!it!appears!that!REACH!services!for!adults!are!providing! significant!preventative!support.!The!majority!of!individuals!who!receive!mobile!crisis!services! are!maintained!in!their!home!settings!as!is!evidenced!in!Table!6.!In!this!reporting!period!84%! maintained!their!residential!setting!and!5%!moved!to!a!new!appropriate!community!setting.! Another!4%!used!the!CTH,!but!their!final!disposition!is!unknown.!However!there!is!no! qualitative!data!to!support!the!type!of!services!and!supports!the!mobile!crisis!teams!offer!which! would!help!determine!the!effectiveness.! ! Conclusion:)The!Commonwealth!is!not!in!compliance!with!Section!6.b.ii.A.!In!the!absence!of!
 other!data!it!is!not!possible!to!determine!that!compliance!has!been!achieved.!This!reporting!
 period!did!not!include!any!qualitative!case!reviews.!DBHDS!reported!it!is!doing!quality!reviews!
 on!a!quarterly!basis!that!include!case!studies.!None!of!this!information!was!shared!with!me.!Also,!
 no!data!on!training!of!REACH!staff!was!included.!It!is!not!possible!to!make!any!qualitative!
 judgment!as!a!result!)
 !
 Recommendations:!DBHDS!should!report!in!the!future!about!the!number!of!REACH!staff!that!
 complete!and!pass!the!required!training.!DBHDS!should!also!report!on!the!findings!of!its!
 quarterly!qualitative!reviews!and!its!analysis!that!the!Commonwealth’s!performance!standards!
 for!the!qualitative!aspects!of!this!provision!have!been!achieved.!


B.)Mobile)crisis)teams)shall)assist)with)crisis)planning)and)identifying)strategies)for)preventing) future)crises)and)may)also)provide)enhanced)short>term)capacity)within)an)individual’s)home)or) other)community)setting.))

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The!teams!continue!to!provide!response,!crisis!intervention!and!crisis!planning.!DBHDS!reported!


providing!these!services!to!223!individuals!in!QII!and!281!individuals!in!QIII;!504!individuals!in!


the!reporting!period.!This!is!significantly!lower!than!last!reporting!period!when!659!individuals!


received!services.!These!numbers!are!extrapolated!from!the!quarterly!reports!that!list!service!


type!by!three!categories:!Mobile!Crisis!Support;!Crisis!StabilizationUCTH;!and!Planned!


PreventionUCTH.!There!may!be!some!duplication!in!the!numbers,!if!some!individuals!received!


more!than!one!of!these!services.!!


!


These!services!included!crisis!prevention,!crisis!intervention/prevention!planning,!crisis!


stabilization,!medication!evaluation,!therapeutic!treatment!planning!and!follow!up.!!Reversing!


previous!review!periods,!more!of!these!services!were!provided!to!315!individuals!through!


Mobile!Crisis!Support!than!the!299!individuals!served!through!the!crisis!stabilization/CTH!


programs.!There!numbers!are!not!an!unduplicated!count!of!individuals.!Some!individuals!are!


likely!counted!more!than!once!since!some!individuals!receive!both!mobile!support!and!use!the!


CTH!program.!!


!


The!REACH!Standards!now!require!that!all!individuals!receive!both!crisis!education!prevention!


planning!and!crisis!prevention!follow!up!services.!The!planning!results!in!a!Crisis!Education!


Prevention!Plan!(CEPP)!for!an!individual.!The!other!services!may!or!may!not!be!needed!


depending!on!the!needs!of!the!individual.!The!REACH!programs!in!Regions!I!and!II!did!


consistently!provide!these!required!elements!throughout!the!review!period!in!both!the!mobile!


support!program!and!the!crisis!stabilization/CTH!programs.!Regions!IV!and!V!were!particularly!


low!in!the!number!of!CEPPs!completed!in!both!settings.!Region!IV!provided!prevention!follow!up!


to!10%!of!its!participants!in!all!settings.!Region!V!did!not!provide!prevention!followUup!services.!


!


The!revised!standards!were!in!effect!July!2015.!The!performance!of!the!regions!improved!during!


this!quarter.!During!this!quarter!Regions!I!and!III!achieved!100%!compliance!with!the!


requirement!to!complete!a!CEPP!and!to!provide!crisis!prevention!followUup.!Region!II!has!not!


complied!with!the!requirement!to!provide!consultations!for!prevention!followUup.!The!overall!


statewide!level!of!achievement!is!not!in!compliance!because!of!the!lack!of!this!consistency!in!


Regions!II,!IV!and!V.!!Neither!Regions!II!nor!IV!reports!providing!any!prevention!followUup!


services!during!QIII.!!Table!6!provides!a!summary!of!the!plans!and!followUup!completed!and!the!


level!of!compliance!by!quarter!and!for!the!overall!reporting!period.!


!


Table'7'

Crisis'Education'and'Prevention'Plans'and'Crisis'Prevention'FollowUup!

Quarter!

Number!of! CEPP!done! Percentage! FollowUup! Percentage!

Individuals!

of!CEPP!

done!

of!followTup!

done!

done!

QII!

323!

231!

71%!

296!

92%!

QIII!

281!

202!

72%!

101!

36%!

Overall'

!

!

72%!

!

66%!

Compliance'

!

!

152!

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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 153 of 212 PageID# 6843
!
Conclusion:'The!Commonwealth!is!not!in!compliance!with!Section)6.b.ii.B.)The!REACH!programs! are!not!consistently!developing!CEPPs.!They!are!also!not!providing!strategies!and!quality!followU up!that!is!adequate!to!help!prevent!recurrences!of!crises!experienced!by!individuals!and!their! families.!It!is!very!positive!that!REACH!programs!are!now!required!to!complete!CEPPs.!The! REACH!programs!significantly!improved!followUup!during!QII!in!both!areas!but!this!was!not! sustained!for!prevention!followUup!in!QIII.!

C.)Mobile)crisis)team)members)adequately)trained)to)address)the)crisis)shall)work)with)law)
 enforcement)personnel)to)respond)if)an)individual)comes)into)contact)with)law)enforcement))
 )
 The!local!REACH!teams!continue!to!train!police!officers!through!the!Crisis!Intervention!Training!
 (CTH)!program.!During!the!QIIFY16!of!this!review!period!159!officers!were!trained!and!236!
 were!trained!during!QIIIFY16!for!a!total!of!395!trained!police!officers!compared!to!339!in!the!
 last!reporting!period.!!
 !This!training!was!provided!in!all!five!regions,!although!Region!III!trained!only!four!officers!and!
 Region!II!trained!only!22.!!
 !
 DBHDS!is!contracting!with!Commonwealth!Autism!to!provide!training!to!law!enforcement!
 personnel!between!2/29/16U6/30/16.!The!training!will!provide!an!overview!of!intellectual!and!
 developmental!disabilities.!Commonwealth!Autism!will!provide!twelve!twoUhour!sessions!over!
 the!four!months.!The!organization!will!also!provide!access!to!webUbased!training!modules!for!
 one!year!(7/1/16U6/30/17)!as!follows:!

• Module!1U!Overview!of!Developmental!Disabilities! • Module!2U!Understanding!Behaviors!Associated!with!Developmental!Disabilities! • Module!3U!Response!Strategies!for!Calls!Involving!Individuals!with!Developmental!
Disabilities! ! There!is!also!a!brief!description!of!REACH!Services!and!contacts!for!law!enforcement!on!the! DBHDS!website.! ! DBHDS!can!also!report!on!individuals!who!had!interaction!with!law!enforcement!during!their! crisis.!During!QIII!sixtyUtwo!adults!engaged!with!law!enforcement.!REACH!was!involved!in!all!of! these!calls.!
• 23)stayed)in)the)community) • 5)were)admitted)to)the)CTH) • 2)were)admitted)to)a)correctional)facility) • 3)were)hospitalized)for)medical)reasons) • 27)were)admitted)to)psychiatric)hospitals) • 4)had)other)dispositions)
 )
 These!are!good!data!for!DBHDS!to!now!be!able!to!report.!Having!more!inUdepth!information!on!
 the!reasons!for!the!hospitalizations!will!be!helpful!in!the!future.!
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!

Conclusion:'The!Commonwealth!is!in!compliance!with!Section)6.b.ii.)C)since!many!officers!have!
 been!trained!in!this!reporting!period.!DBHDS!has!made!some!information!available!to!law!
 enforcement!departments!through!its!website!and!has!retained!Commonwealth!Autism!to!
 provide!more!comprehensive!training!directly.!This!training!will!also!be!available!in!the!future!
 to!new!law!enforcement!personnel.!
 !


D.)Mobile)crisis)teams)shall)be)available)24)hours,)7)days)per)week)to)respond)on>site)to)crises.))
As!reported!earlier!in!Section!4,!the!REACH!Mobile!crisis!teams!are!available!around!the!clock! and!respond!at!offUhours.!There!were!553!mobile!assessments!completed!during!this!reporting! period,!a!significant!increase!compared!to!the!260!mobile!assessments!performed!during!the! previous!reporting!period.!The!assessments!conducted!in!individuals’!homes,!day!programs,!or! another!community!location!where!the!crisis!occurred!totaled!43.5%!of!all!the!assessments.!This! is!lower!than!the!previous!two!reporting!periods.!!However,!47%!were!performed!at!either!a! hospital/ER!setting!(42%)!or!at!an!ES/CSB!(5%)!location.!This!is!higher!than!either!of!the! previous!reporting!periods!(35%!and!38%).!This!is!an!indication!that!the!DBHDS!requirement! that!REACH!participate!in!all!hospital!screenings!is!being!met.!!Other!individuals!were!assessed! at!the!CTH!setting!(6%)!with!the!majority!being!assessed!there!in!Region!II!(22!of!35!individuals! statewide).!Nine!individuals!were!assessed!at!jails,!police!stations!or!nursing!homes.! ! The!number!of!individuals!who!were!assessed!in!their!families’!homes!compared!to!residential!
 program!settings!continues!to!be!substantially!equal!(109!in!the!family!home!and!119!in!a!
 residential!program).!!This!continues!the!pattern!found!in!the!previous!periods.!This!steady!
 engagement!by!residential!providers!with!the!REACH!programs!may!reflect!a!greater!
 understanding!of!the!benefits!of!the!REACH!crisis!services!and!the!expertise!of!the!REACH!staff.!
 !
 The!trend!of!referrals!being!made!primarily!during!normal!business!hours!continues.!REACH!
 received!a!total!of!383!referrals!during!the!reporting!period!which!not!all!require!an!assessment!
 or!onsite!response.!SeventyUsix!of!these!calls!came!either!on!weekends!(21)!or!after!5!PM!
 weekdays!(55).!!This!compares!with!fortyUfour!calls!in!the!previous!reporting!period.!EightyU
 three!percent!of!all!of!the!calls!were!made!during!the!normal!workday!hours.!!Unlike!the!
 previous!reporting!period!all!regions!received!calls!on!weekends!or!holidays.!
 !
 Conclusion:!The!Commonwealth!is!in!compliance!with!Section)III.C.6.b.ii.D.)
 '
 !
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E.)Mobile)crisis)teams)shall)provide)in>home)crisis)support)for)a)period)of)up)to)three)days,)with)the) possibility)of)3)additional)days))
DBHDS!collects!and!reports!data!on!the!amount!of!time!that!is!devoted!to!a!particular!individual.!
 Most!regions!provided!individuals!with!more!than!three!days!on!average!of!inUhome!support!
 services!with!the!exception!of!Regions!I!and!V!in!QII!that!averaged!1.8!and!2.4!days!respectively.!
 Both!were!above!three!days!on!average!in!QIII!with!Region!V!increased!to!21.1!days.!It!may!be!
 that!some!individuals!needed!fewer!days!than!three!for!unique!reasons!including!waiting!for!a!
 bed!at!the!CTH,!or!for!discharge!from!a!CTH.!Other!regions!provide!more!than!an!average!of!
 three!days.!It!is!documented,!therefore,!that!individuals!can!get!an!additional!three!days!of!
 support!if!needed,!and!possibly!more.!
 !
 Regions!vary!in!the!number!of!individuals!served!and!the!total!numbers!of!days!of!communityU
 based!crisis!services!provided.!The!range!of!individuals!served!was!28!in!Region!III!and!40!in!
 Region!V!during!QII!and!13!in!Region!III!and!40!in!Region!IV!during!QIII.!

Conclusion:'The!Commonwealth!is!in!compliance!with!the!requirement!of!Section)III.6.C.b.ii.E.))

G.)By)June)30,)2013)the)Commonwealth)shall)have)at)least)two)mobile)crisis)teams)in)each)region)to) response)to)on>site)crises)within)two)hours) H.)By)June)30,)2014)the)Commonwealth)shall)have)a)sufficient)number)of)mobile)crisis)teams)in) each)Region)to)respond)on)site)to)crises)as)follows:)in)urban)areas,)within)one)hour,)and)in)rural) areas,)within)two)hours,)as)measured)by)the)average)annual)response)time.))
Regions!have!not!created!new!teams,!but!have!added!staff!to!the!existing!teams.!The!added!staff!
 has!resulted!in!sufficient!capacity!to!provide!the!needed!crisis!response!within!the!one!and!two!
 hours!as!required.!!Regions!II!and!IV!are!urban!areas!and!are!expected!respond!to!a!crisis!
 referral!within!one!hour.!!
 !
 There!were!234!onsite!responses!in!QII!and!319!onsite!responses!in!QIII!for!a!total!of!553!onsite!
 responses.!DBHDS!reported!on!the!response!time!for!all!but!two!of!these!responses.!This!is!a!
 major!improvement.!!Eighteen!calls!in!QII!and!twentyUfour!calls!in!QIII!were!not!responded!to!in!
 the!required!time!period.!The!state’s!records!indicate!that!it!responded!to!92%!of!crisis!calls!
 within!two!hours.!Reasons!for!delays!usually!had!to!do!with!traffic.!
 !
 Conclusion:!The!Commonwealth!achieved!compliance!with!Section)III.C.6.b.ii.G.)and!Section)
 III.C.6.b.ii.H!!
 !
 Recommendation:!!DBHDS!should!address!and!resolve!the!lack!of!an!onUcall!response!for!
 children!in!crisis!in!Region!I!


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iii.)Crisis)Stabilization)programs) A.)Crisis)stabilization)programs)offer)a)short>term)alternative)to)institutionalization)or) hospitalization)for)individuals)who)need)inpatient)stabilization)services.) B.)Crisis)stabilization)programs)shall)be)used)as)a)last)resort.)The)state)shall)ensure)that,)prior)to) transferring)an)individual)to)a)crisis)stabilization)program,)the)mobile)crisis)team,)in)collaboration) with)the)provider,)has)first)attempted)to)resolve)the)crisis)to)avoid)an)out>of>home)placement,)and)if) that)is)not)possible,)has)then)attempted)to)locate)another)community>based)placement)that)could) serve)as)a)short>term)placement.) C.)If)an)individual)receives)crisis)stabilization)services)in)a)community>based)placement)instead)of)a) crisis)stabilization)unit,)the)individual)may)be)given)the)option)of)remaining)in)placement)if)the) provider)is)willing)to)serve)the)individual)and)the)provider)can)meet)the)needs)of)the)individual)as) determined)by)the)provider)and)the)individual’s)case)manager.) D.)Crisis)stabilization)programs)shall)have)no)more)than)6)beds)and)length)of)stay)shall)not)exceed) 30)days.) G.)By)June)30,)2013)the)Commonwealth)shall)develop)an)additional)crisis)stabilization)program)in) each)region)as)determined)to)meet)the)needs)of)the)target)population)in)that)region.))

All!regions!now!have!a!crisis!stabilization!program!providing!both!emergency!and!planned!
 respite.!All!Regions!have!six!beds!available.!!Region!IV!remains!in!its!temporary!location.!!DBHDS!
 reported!that!the!ground!breaking!was!10/15/15.!The!Region!hoped!to!transfer!the!CTH!to!the!
 new!location!in!March!2016!but!it!is!now!delayed!until!July!2016.!The!Region!III!CTH!has!seven!
 beds,!which!exceeds!the!limits!allowed!by!the!Agreement.!!
 !
 There!were!a!total!of!297!visits!to!the!CTH!crisis!stabilization!programs.!This!is!a!slight!decrease!
 over!the!number!reported!during!the!last!reporting!period!(327).!There!were!slightly!more!visits!
 for!crisis!stabilization!(151)!than!for!crisis!prevention!(146).!It!is!very!positive!that!DBHDS!
 continues!to!offer!planned!respite!in!the!REACH!Crisis!Stabilization!Units!for!individuals!at!risk!
 of!crises.!Almost!half!of!the!individuals!use!it!for!this!purpose.!This!type!of!planned!respite!is!
 very!beneficial!to!families!who!continue!to!care!for!their!relatives!at!home.!!
 !
 The!average!length!of!stay!continues!to!meet!the!requirement!that!stays!not!exceed!30!days.!!The!
 average!lengths!of!stay!are!as!follows:!
 !

• Prevention>)4>18)days)in)QII)and)4>20)days)in)QIII) • Crisis)Stabilization>)14>29)days)in)QII)and)12>19)days)in)QIII) ! Although,!requested!to!do!so!in!my!previous!report,!DBHDS!does!not!report!on!each!length!of! stay!for!individuals!whose!stays!exceeded!the!Agreement’s!explicit!cap!of!thirty!days!or!provide! the!reasons!why.!There!are!credible!reports,!however,!that!one!or!more!individuals!in!each! Region!stayed!longer!that!the!cap!of!30!days.! ! ! ! ! !

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! There!were!five!individuals!on!the!Waiting!List!in!Regions!I!(4)!and!II!(1)!in!QII!and!fifteen!on!the! Waiting!List!in!QII!including!Region!I!(11);!Region!II!(2),!Region!III!(1)!and!Region!IV!(1).!!Region! III!continues!to!temporarily!operate!with!seven!beds,!!one!more!than!the!maximum!allowed!by! the!Settlement!Agreement.!The!Region!reports!there!are!rarely!seven!individuals!present.!I! visited!the!new!site!and!crisis!stabilization!home,!which!is!under!construction.!It!has!a!very! suitable!design!and!location.!The!home!is!expected!to!be!open!before!this!summer.!Region!I’s! larger!waiting!list!is!not!surprising.!The!REACH!Director!reported!that!individuals!are!still! remaining!in!the!CTH!for!greater!than!thirty!days!because!of!lack!of!community!residential! placement!opportunities.! ! The!DBHDS!continues!to!require!the!REACH!programs!to!admit!individuals!who!do!not!have!a! firm!discharge!plan!to!ensure!that!crisis!stabilization!services!are!available!as!a!last!resort!to! avoid!unnecessary!institutionalization.!!These!individuals!are!in!great!need!for!this!last!resort! alternative!to!institutionalization.!The!need!for!a!last!resort!is!increased!because!the! Commonwealth!allows!residential!service!providers!to!discharge!individuals!without!a! discharge!plan!to!an!alternative!home!setting.!The!Commonwealth!must!maintain!its! commitment!to!continue!to!meet!the!crisis!stabilization!needs!of!all!of!the!target!population!and! not!allow!the!needs!of!one!particular!group!to!negatively!impact!the!needs!of!others.!There!must! be!continued!review!of!the!plans!and!resources!for!individuals!who!need!a!new!home!so!that!the! crisis!stabilization!homes!do!not!become!emergency!residences!for!individuals!who!are! homeless.!The!outcome!of!prolonged!stays!is!not!always!in!these!individuals!best!interest!as!they! observe!others!leaving!the!CTH!after!shorter!visits.!Longer!use!of!the!CTH!precludes!others!that! need!this!resource!from!accessing!it!in!timely!manner.! ! The!REACH!program!continues!to!provide!community–based!mobile!crisis!support!and!offers!it! as!the!first!alternative!when!appropriate.!!Mobile!crisis!timely!inUhome!support!was!provided!to! a!total!of!323!individuals.!Some!of!these!individuals!still!required!psychiatric!hospitalization!as! has!been!noted!in!an!earlier!section.! ! There!is!no!indication!that!any!other!community!placements!were!used!for!crisis!stabilization! during!the!reporting!period!for!individuals!who!could!not!remain!in!their!home!setting.!!Two! individuals!were!supported!in!the!MH!Crisis!Stabilization!program.!The!Settlement!Agreement! requires!the!Commonwealth!to!attempt!to!locate!another!community!alternative!before!using! the!REACH!Crisis!Stabilization!Unit.!REACH!teams!are!attempting!to!maintain!individuals!in!their! own!homes!with!supports!as!the!preferred!approach!to!stabilize!someone!who!is!in!crisis.!!
The!REACH!programs!are!not!currently!seeking!community!residential!vacancies!before!using! the!Crisis!Stabilization!Units.!In!my!professional!opinion!using!vacancies!in!community! residential!programs!is!not!a!best!practice.!!I!have!expressed!my!reasoning!in!previous!reports.!I! will!not!recommend!a!determination!of!compliance!regarding!this!provision!until!the!Parties! discuss!it!and!decide!if!they!want!to!maintain!it!as!a!requirement!of!the!Agreement.!I!continue!to! recommend!that!it!not!be!a!REACH!practice.!!

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!

The!DBHDS!is!to!determine!if!there!is!a!need!for!additional!crisis!therapeutic!homes!to!meet!the!
 needs!of!individuals!in!the!target!population.!Based!on!past!reviews!of!the!average!number!of!
 beds!that!were!occupied!per!day!in!the!existing!programs,!I!previously!determined!that!
 additional!CTHs!might!not!be!needed!because!of!unused!capacity.!The!more!inUdepth!qualitative!
 review!of!individuals!in!Region!I!and!IV!during!the!last!reporting!period,!however,!determined!
 that!it!is!common!for!there!not!to!be!sufficient!capacity!for!individuals!in!need.!!During!the!last!
 review!period!Case!Managers!reported!not!making!referrals!because!of!the!lack!of!availability.!
 Individuals!at!the!focus!groups!in!Region!III!in!this!reporting!period!agreed!that!more!crisis!
 stabilization/CTH!homes!are!needed,!as!are!locked!communityUbased!settings!for!crisis!
 stabilization.!With!the!number!of!psychiatric!hospitalizations!and!the!reports!of!stakeholders!
 about!a!lack!of!capacity!of!community!services,!especially!to!support!individuals!whose!needs!
 are!considered!to!severe!to!be!addressed!in!the!CTH,!the!feedback!is!compelling!that!more!crisis!
 stabilization!beds!are!required!to!meet!the!needs!of!the!target!population.!Stakeholders!that!
 participated!in!other!Focus!Groups!conducted!in!other!parts!of!Virginia!to!gather!input!about!
 case!management!services,!agreed.!There!was!consensus!of!the!need!for!more!community!
 REACH!resources,!greater!behavioral!support!capacity!in!the!community,!and!crisis!stabilization!
 settings!that!could!keep!people!in!the!community!securely.!The!Commonwealth!has!not!fulfilled!
 the!responsibility!to!assess!and!determine!whether!it!is!necessary!to!add!crisis!stabilization!
 programs!to!meet!the!needs!of!the!target!population.!The!Commonwealth!plans,!however,!to!
 complete!an!analysis!by!June!2016.!

Conclusion:'The!Commonwealth!of!Virginia!is!in!compliance!with!Sections!III.C.6.b.iii.!A!or!B.!It!is!
 in!substantial!compliance!with!D.!!
 !
 The!Commonwealth!of!Virginia!is!in!nonUcompliance!with!Sections!III.C.6.b.iii.D.!and!G.!In!each!
 Region!one!or!more!individuals!stayed!longer!that!the!explicit!thirtyUday!cap.!The!
 Commonwealth!has!also!not!yet!assessed!the!need!for!additional!crisis!stabilization!settings!for!
 adults.!During!the!tenth!reporting!period!the!rating!for!this!provision!will!include!a!
 determination!of!whether!the!Commonwealth!has!effectively!implemented!the!crisis!
 stabilization!services!for!children!and!adolescents.!
 !
 I!will!not!make!a!determination!about!Section!III.C.6.b.iii.C!until!the!Parties!make!a!decision!
 about!the!practice!of!using!community!residential!resources!for!crisis!stabilization.!!
 !
 RecommendationsUThe!Commonwealth!should!use!the!data!from!its!analysis!to!determine!if!
 additional!CTHs!and!it!needs!community!locked!settings!as!an!alternative!to!psychiatric!
 hospitals!for!some!individuals!with!ID/DD.!I!reiterate!that!it!should!report!on!the!number!of!
 individuals!that!exceed!the!30Uday!stay!in!the!CTH!and!should!evaluate!the!impact!of!using!the!
 CTH!as!emergency!housing!has!on!individuals!on!the!waiting!list!for!the!out!of!home!crisis!
 stabilization!services.!


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!
SECTION!6:!SUMMARY!!
The!Commonwealth!of!Virginia!continues!to!make!progress!to!implement!a!statewide!crisis! response!system!for!individuals!with!I/DD.!During!this!reporting!period,!DBHDS!made! significant!effort!to!address!previous!recommendations!and!enhance!community!capacity.!It!is! promising!that!DBHDS!implemented!the!Children’s!REACH!program!successfully,!although!these! services!have!not!yet!achieved!full!compliance.!It!will!be!interesting!to!determine!how!effective! the!various!organizational!models!are!for!children’s!crisis!services,!which!differ!between!regions! more!significantly!than!do!the!Adult!REACH!programs.!!
More individuals are utilizing REACH and there is an increase in training in the adult program and training being conducted by the children’s programs. There have been significant efforts during this reporting period to set training expectations for Case Managers and ES staff; create a comprehensive training series for law enforcement personnel, and to ramp up training by the Children’s REACH programs.
DBHDS has made information about REACH more available to DD consumers and their families and is starting to serve more adults with DD. The number of children with DD that were supported by REACH during this reporting period is noteworthy.
There is better data regarding individuals that are psychiatrically hospitalized and the required involvement of REACH should be beneficial. However, there continues to be a need to report more specifically on multiple hospitalizations and the reasons for admission. The data provided does not allow any conclusions to be drawn about the necessity of these hospitalizations or how many were driven by a lack of community resources. It is positive that DBHDS is reviewing and analyzing admission data for both children and adults to make determinations about the additional need for community crisis stabilization settings. DBHDS should also determine if there is a need for more secure community stabilization settings than the REACH CTHs and if the development of these alternatives may reduce hospitalizations.
Individuals need highly specialized providers with well- trained staff in sufficient numbers to provide the structure and programming individuals’ need. DBHDS is planning and implementing many initiatives to build community capacity to address the needs of individuals with co-occurring conditions or behavioral challenges including its RFP in Region III as the first area to fund the expansion of providers with expertise to better serve this population. Its other efforts to increase rates for BCBA’s, expand training of BSPs, and articulate behavioral competencies will also strengthen the community service capacity.

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Table 8- Summary of Compliance Ratings

SA Section III.C.6.a.i III.C.6.a.ii III.C.6.a.iii III.C.6.b.i.A III.C.6.b.i.B III.C.6.b.ii.A III.C.6.b.ii.B III.C.6.b.ii.C III.C.6.b.ii.D III.C.6.b.ii.E III.C.6.b.ii.G III.C.6.b.ii.H III.C.6.b.iii.A III.C.6.b.iii.B III.C.6.b.iii.D
III.C.6.b.iii.E III.C.b.6.iii.F III.C.b.6.iii.G

Rating Non Compliance Non Compliance Non Compliance Compliance Compliance Non-Compliance Non-Compliance Compliance Compliance Compliance Compliance Compliance Compliance Compliance Non-Compliance
Compliance Compliance Non-Compliance

Comment

Status

Sustained Sustained

RIII still has 7 beds. One or more individuals has stayed for more than 30 days in each Region.
The Commonwealth has not completed an analysis and determination of the need for additional crisis stabilization programs

Sustained Sustained Sustained Achieved Achieved Sustained Sustained Not Sustained
Sustained Sustained

) ) ) ) ) ) )
! ! !


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)
) )

ATTACHMENT!1T!SUMMARIES!of!FOCUS!GROUP!DISCUSSIONS!!!!!!!!!!!!!!!!!!!!!!!
 !

A.!VA!REGION!3!ROANOKE!FOCUS!GROUP!3/31/2016!

Attendees:!BRBH!(2),!Piedmont!CSB!(1),!REACH!(1)!
 !
 Positives!about!Region!III’s!behavioral!supports:!

• Outpatient!Services! • REACH!has!office!space!in!all!CSB’s! • Blue!RidgeU!REACH!Hotline,!24!hour!crisis!line,!inUpatient!stabilization!unit!(16),!and!can!
be!accessed!by!ID/DD,!Support!Coordinator!is!Gatekeeper!for!WRAP! • PiedmontU!MH!Skill!building!(carve!out!service)!with!families!and!for!independent!living!
are!all!supplied!by!private!providers!who!are!certified!and!paid!by!DMAS.!Training!is! similar!to!CSB’s!
• Piedmont!ID!CM’s!have!met!with!DD!CM’s! • InUhome!Supports! • Residential,!Day,!Host!Homes/Sponsored!Homes!&!GH’s! • ICF! • Psychiatry! • BCBA!Quality! • PBS!Quality! • Psychiatric!Quality! • REACH!will!serve!an!individual!who!is!without!a!place!to!go!when!other!regions!would!
not.!
• One!REACH!staff!member!becoming!PBS!certified!as!Facilitator! • Blue!RidgeU!always!responds!immediately!and!thus!has!kept!individuals!out!of!hospitals.!
Will!meet!at!the!home!or!hospital!in!crisis!which!will!divert!the!hospitalization!
 ! 
 !Positives!for!Children!that!need!behavioral!and!crisis!supports:!
• Therapeutic!day!in!home!by!CSB!or!private!provider! • Piedmont!&!Blue!RidgeU!CM’s!assigned!to!schools! • Private!Providers!also!have!links!to!schools! • After!school!program!by!private!providers! • Intensive!in!home!support!by!providers,!case!management!and!crisis!services! • Blue!RidgeU!has!their!own!child!psychiatrist!but!not!FT! • REACH!serving!in!the!community! • CTH!serves!individuals!with!seizures,!diabetes!(does!not!serve!with!GUtube;!does!not!have!
24!hour!nursing)! !
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! ! Negatives!about!the!region’s!behavioral!support!capacity:!
• Only!4!providers!for!individuals!with!significant!behavioral!challenges! • !Fewer!than!four!providers!for!individuals!with!medical!needs! • Very!few!specialized!GH’s/providers! • PiedmontU!average!caseload!for!CM’s!is!32!! • More!availability!of!community!services!for!ID!than!DD! • BCBA!shortageU!demand!far!outpacing!resources!
!
Negatives!about!the!region’s!behavioral!supports!for!children:! • Capacity!issuesU!Psychiatry!and!PBS! • Difficulty!placing!children!with!medical!needs! • GH!providers!just!pop!up!with!no!experience!Uwhere!is!oversight?!!
!
REACH!Coordination:!
• PiedmontU!ES!counselors’!part!of!protocol.!Work!with!REACH!to!find!least!restrictive! option.!REACH!provides!education!to!ES!staff!and!attends!all!crisis!meetings!and!CSB! meetings!
• REACH!has!trained!new!GH!provider!staff!and!has!collaborated!where!needed!for!
 training,!plan!and!transition!

• REACHU!staff!are!extremely!knowledgeable!and!involved! • CEPP!very!detailed!and!comprehensive!and!easy!to!follow,!distributed!widely,!training!
provided!to!all!and!is!reviewed!and!modified!in!timely!fashion! • PiedmontU!when!asking!for!CTH,!d/c!planning!starts!immediately! • When!individual!has!a!need!for!behavior!plan!a!facilitator!is!put!in!place!before!leaving!
the!TC!

! 

Enhancements/Recommendations:!
• Expand!REACHUregion!is!11,000!square!miles!and!includes!11!CSB’S! • Add!at!least!one!more!CTH! • ID/DD!as!more!TC’s!close!further!expansion!will!be!required!to!accommodate!the!

demand!for!crisis!services!

• PBS!–more!needed! • BCBA’sU!more!needed! • Day!SupportUmore!for!individuals!with!behavioral!challenges/coUoccurring!conditions! • Training! • Specialized!providers!for!medically!fragile!and!significant!behaviorally!challenging!

individuals!

• !Franklin/Martinsville!Hospital!CIT!training! • New!training!academy! • Have!REACH!training!built!into!CIT!consistently! • CTH!build!rapport!with!Roanoke!Chief!of!Police,!do!so!with!other!police!departments! • RoanokeU!meet!in!home!to!make!recommendation!for!diversion!from!ES!screening,!others!
should!do!this!

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• Need!more!homes!for!children!with!challenging!behavioral!needs! • RoanokeUonly!one!BCBA!in!area!but!is!very!goodU!need!to!clone!her!!
 !

) B.!!VA!REGION!3!FOCUS!GROUP!MARION!(3/30/2016)! Attendees:!Highlands!CSB!(3),!DTGC!Guardianship!(2),!Highlands!Community!Services!(1),!SWV! MHI!(1),!REACH!(2)! ! Positives!about!the!region’s!behavioral!support!capacity:!
• Residential,!Day!and!Host!Home! • Consultative!Services!(PBS,!OT,!ST,!PT)! • Nursing,!Respite! • Supported!Employment! • !Agency!Directed!PA! • !Personal!PA! • Good!Psychiatrist!for!ID/DD! • Using!TeleUPsychiatry!(10)! • PCP!considering!role!of!medication!prescribing!and!management! • REACH!crisis!response!in!Mt.!Rogers!area! • REACH!arrives!quickly!to!Court!Commitment!Hearings! • Mt.!Rogers!uses!Life!Coach!and!Mentor!in!some!places! • Highlands!staff!joins!all!call!which!ES!notifies!them!about!screenings! • REACH!providing!behavior!driven!Safety!Training!(MANDT)!for!families!in!home.!
Applying!also!to!individuals!with!Autism!
• A!report!of!CM’s!having!Adult!caseloads!of!20!Community!and!15!SWTC!(adults)!and!the! Children!CM’s!having!caseload!of!26!
! Positives!about!the!region’s!support!for!children!that!need!behavioral!and!crisis!support:!
• Safety!Care!Training! • In!Home!Crisis! • WRAP!around!services,!REACH,!school!program,!life!skills!training!with!Saturday!9U2!and!
summer!program! • Safety!Zone! • Clinic!(Neuro,!Seizure!and!Medication)! • Good!Psychiatrist!(2)!great!response!(Highlands)! • REACH!response!to!crisis!(within!2!hours)! • REACH!very!engaged!throughout!crisis!and!coordination! • Staff!with!child!at!medical!appointments!for!advocacy!purpose!
 !
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! ! Negatives!about!the!region’s!behavioral!support!capacity:!
• CBS!Giles!CountyU!only!1!of!the!119!BCBAs!serves!this!area! • Highlands:!referrals!to!DD!CM’s!but!CM’s!do!not!return!calls! • DD!CM’s!do!not!join!regular!support!groups! • 1U2!year!waiting!list!for!behavioral!consult!! • ES!sending!individuals!to!hospitals!not!CTH!because!CTH!cannot!offer!a!secure!setting! • State!hospitals!keeping!individuals!and!not!diverting!to!CTH! • Individuals!experiencing!longer!stays!in!hospitals!due!to!no!availability!of!REACH!beds!! • Waiting!List!for!REACH!CTH! • Individuals!experiencing!significant!behavior!not!receiving!services!(reluctance!to!serve!
could!be!a!factor;!supply/demand!and!experience!of!consultant!provider)!
• Far!SW!section!of!region!lacking!PBS!certified!consultants! • Many!on!MH!side!not!receiving!services! • MH!support!comes!from!CSB!MH!side:!only!2!CM’s!on!DD!side! • !DD!waiver!waiting!list! • ES!teams!with!per!diem!staff!are!not!always!aware!of!the!requirement!to!notify!REACH!of!
screenings!
• Too!few!residential!providers!for!individuals!with!coUoccurring!dx! • Very!few!on!DD!Waiver! • Crisis!service!system!within!CSB’s!needs!professionals!trained!to!serve!the!ID/DD!

population!
 • No!step!down!available!to!individuals!experiencing!court!commitment! • Approximately!3!month!wait!for!face!to!face!with!a!psychiatrist!(however!teleUpsychiatry!
is!appropriately!filling!this!gapUsee!research!on!why!development!of!methodology!for! rural!areas)! • High!staff!turnover!in!Mt.!Rogers!area!(1/shift/month)! • No!separation!of!child!and!adult!staffing!and!assessments!in!Mt.!Rogers!area!!! • Mt.!Rogers!U!one!individual!with!DD!hospitalized!3!times!to!3!different!hospitals!since! January.!Difficult!to!coordinate!REACH!involvement!
• Region!has!poor!work!force!to!draw!from!(only!15%!of!population!are!college!graduates)! • Individual!still!hospitalized!due!to!serious!behavioral!challenges! • !Sometimes!can!only!find!providers!in!the!Richmond!area! • VA!still!has!large!number!of!Board!and!Care!homes.!Hundreds!still!exist!even!with!
reduction!over!past!five!years.!Region!3!has!116!B&D!Homes.!This!funding!could!support! ID/MH!supported!living!
• ExampleU18!year!old!individual!with!ID!aged!out!and!needed!behavior!supports!ended!up! having!to!go!to!an!ALF,!sometimes!only!option!to!receive!food,!Medicaid!and!medication.! Typically!for!individuals!with!behavior!challenges!state!hospital!is!either!only!choice!or! first!option!chosen!by!ES!
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!
! ! !Negatives!about!the!behavioral!and!crisis!support!for!children!
• Very!few!residential!providers!for!children!experiencing!significant!behavioral!issues.! Most!providers!are!out!of!the!area/region.!
• HighlandsUchildren!in!and!out!of!crisis!mostly!due!to!above!bullet!! • No!respite! • If!hospitalization!is!required!it!is!5.5!hours!away!from!parts!of!SW!VA!(CCCA!is!only!state!
psychiatric!facility!for!children!in!state)! • TDO!to!Stanton!Hospital/CCCA!(2.5!hours!away)! • Schools!have!track!record!of!sending!children!to!residential!treatment!schools!
 !
 REACH!Coordination:! • Involved! • Always!at!meetings! • Provides!very!good!information! • Provides!in!home!supports! • In!home!training!provided! • Parent!extremely!positive!about!the!Children’s!REACH!program!
 !
 Enhancements/Recommendations:! • ChildrenU!more!GH’s,!some!behavior!specific,!another!REACH!CTH! • A!home!with!a!continuation!of!care!component!that!can!be!secure/locked!as!an!
alternative!to!hospitalization! • Additional!funding!for!community!services! • Highlands!has!a!large!autism!program!but!nothing!comparable!on!DD!side!! • Additional!education!(Judicial,!Law!Enforcement!and!Community)! • Additional!training!for!crisis!staff! • Additional!crisis!workers! • PBS!training!is!challenging!and!takes!a!long!time!to!complete,!staff!need!support!and!time!
to!complete!all!requirements

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APPENDIX E

INTEGRATED DAY ACTIVITES AND SUPPORTED EMPLOYMENT
 By: Kathryn du Pree MPS

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! ! 2015!REVIEW!OF!THE!EMPLOYMENT!SERVICES!REQUIREMENTS! OF!THE!US!v!COMMONWEALTH!OF!VIRGINIA’S!SETTLEMENT! AGREEEMENT! ! ! ! REVIEW!PERIOD:!OCTOBER!7,2015–!APRIL!6,!2016! ! ! ! SUBMITTED!TO!DONALD!FLETCHER! INDEPENDENT!REVIEWER! ! ! ! ! BY:!KATHRYN!DU!PREE,!MPS! EXPERT!REVIEWER! May!6,!2016! ! ! TABLE!OF!CONTENTS!
Section!I:!!Overview!of!Requirements! ! ! ! !!!3! Section!II:!Purpose!of!the!Review! ! ! ! ! !!!4! Section!III:!The!Review!Process! ! ! ! ! !!!5! Section!IV:!The!Employment!Implementation!Plan!!!!!!!!!!!!!!!5! Section!V:!Setting!the!Employment!Targets! ! ! 18! Section!VI:!The!Plan!for!Increasing!Opportunities!for!Integrated!Day! Activities! ! ! ! ! ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!21! Section!VII:!Review!of!the!SELN!and!the!Inclusion!of!Employment!in!the! PersonTCentered!ISP!Planning!Process!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!27! Section!VIII:!Regional!Quality!Councils! ! ! ! !32! Section!IX:!Summary! ! ! ! ! ! ! !33!

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!

Graph!1:!Type!of!Work!Setting!by!Funding!Source!June!2015!! !

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11!

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Graph!2:!Type!of!Work!Setting!by!Funding!Source!December!2015!! !

12!

Graph!3:!Type!of!Work!Setting!by!Disability!December!2015!! !

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13'

Graph!4:!Average!Hourly!Wages!by!Employment!Type!December!2105!! !

15!

Graph!5:!Number!of!Individuals!Earning!Above!and!Below!Minimum!Wage!! 16!

Table!1:!Statewide!Distribution!of!Wages!December!2015!!

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Table!2:!Employment!Targets!for!FY!15T19!!

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Graph!6:!Type!of!Work!by!HPR!December!2015!! !

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19!

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Table!3:!Summary!of!Compliance!! !

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33!

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I.!!OVERVIEW!OF!REQUIREMENTS!

Donald!Fletcher,!the!Independent!Reviewer!has!contracted!with!Kathryn!du!Pree!as!the!

Expert!Consultant!to!perform!the!review!of!the!employment!services!requirements!of!the!

Settlement!Agreement!for!the!time!period!10/7/15!–!4/6/16.!The!review!will!determine!

the!Commonwealth!of!Virginia’s!compliance!with!the!following!requirements:!

7.a.)To)the)greatest)extent)practicable)the)Commonwealth)shall)provide)individuals)in)the)

target)population)receiving)services)under)this)agreement)with)integrated)day)

opportunities,)including)supported)employment.)))

7.b.)The)Commonwealth)shall)maintain)its)membership)in)the)State)Employment)

Leadership)Network)(SELN))established)by)NASDDDS;)establish)state)policy)on)

Employment)First)for)the)target)population)and)include)a)term)in)the)CSB)Performance)

Contract)requiring)application)of)this)policy;)[use])the)principles)of)employment)first)

include)offering)employment)as)the)first)and)priority)service)option;)providing)integrated)

work)settings)that)pay)individuals)minimum)wage;)discussing)and)developing)employment)

options)with)individuals)through)the)person>)centered)planning)process)at)least)annually;)

and)employ)at)least)one)employment)services)coordinator)to)monitor)the)implementation)

of)employment)first)practices.)

7.b.i.)Within)180)days)the)Commonwealth)shall)develop)an)employment)implementation)

plan)to)increase)integrated)day)opportunities)for)individuals)in)the)target)population)

including)supported)employment,)community)volunteer)activities,)and)other)integrated)

day)activities.)The)plan)shall:))

A. Provide)regional)training)on)the)Employment)First)policy)and)strategies)

throughout)the)Commonwealth;)and)

B. Establish,)for)individuals)receiving)services)through)the)HCBS)waivers:))

1. Annual)baseline)information)regarding:))

a. The)number)of)individuals)receiving)supported)employment;))

b. The)length)of)time)people)maintain)employment)in)integrated)work)settings;)

c. The)amount)of)earnings)from)supported)employment;))

d. )The)number)of)individuals)in)pre>vocational)services)as)defined)in)12)VAC)30>120>211)

in)effect)on)the)effective)date)of)this)Agreement;)and))

e. )The)lengths)of)time)individuals)remain)in)pre>vocational)services)

2. Targets)to)meaningfully)increase:)

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)a.))The)number)of)individuals)who)enroll)in)supported)employment)in)each)year;)and))
b.)The)number)of)individuals)who)remain)employed)in)integrated)work)settings)at)least)12)
months)after)the)start)of)supported)employment) III.C.7.c Regional Quality Councils, described in Section V.D.5 below, shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly to the Regional Quality Councils and the Quality Management system by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to take additional measures to further enhance these services.

III.C.7.d The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN ) ! ! II.!PURPOSE!OF!THE!REVIEW! This!review!will!build!off!the!review!completed!last!fall!by!the!Independent!Reviewer!for! the!review!period!4/7/15!through!10/6/15!and!the!recommendations!the!Independent! Reviewer!made!in!his!last!Report!as!a!result!of!the!conclusions!and!findings!of!that!review! of!Employment!Services.!At!that!time!the!Independent!Reviewer!was!concerned!about!the! underUreporting!of!ESO’s!and!the!lack!of!comprehensive!data!about!the!reporting!areas;!the! lack!of!implementation!of!the!plan!to!offer!integrated!day!activities!other!than!employment;! and!the!lack!of!meaningful!involvement!of!the!Regional!Quality!Councils!(RQCs)!in!the! review!of!the!employment!targets.!! This!review!will!cover!all!areas!of!compliance!to!make!sure!the!Commonwealth!has! sustained!compliance!in!areas!achieved!during!the!previous!reporting!period.!It!will!focus! on!those!areas!that!were!not!in!compliance!and!the!Independent!Reviewer’s!related! recommendations.!This!focus!will!be!on:!!
• The!Commonwealth’s!ability!to!meet!the!targets!it!set!and!the!progress!toward! achieving!the!FY!2016!targets!for!the!number!of!people!in!supported!employment,! those!who!remain!for!at!least!twelve!months,!and!the!average!earnings!for!those!in! supported!employment,!
• The!refinement!of!the!implementation!plan!to!increase!integrated!day!activities!for! members!of!the!target!population!including!the!strategies,!goals,!action!plans,! interim!milestones,!resources,!responsibilities,!and!a!timeline!for!statewide! implementation,!
• The!continued!involvement!of!the!SELN!in!developing!the!plan!and!in!reviewing!the! status!of!its!implementation,!and! The!expectation!that!individuals!in!the!target!population!are!offered!employment!as! the!first!option!by!Case!Managers!and!their!teams!during!the!individual!planning! process!in!which!they!discuss!and!develop!employment!goals.! ! ! ! ! ! !

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III.!REVIEW!PROCESS! I!reviewed!relevant!documents!and!interviewed!key!administrative!staff!of!DBHDS!and! members!of!the!SELN!to!provide!the!data!and!information!necessary!to!complete!this! review!and!determine!compliance!with!the!requirements!of!the!Settlement!Agreement.! Initially!a!kickoff!meeting!was!held!in!January!2016!with!the!Independent!Reviewer,!the! Expert!Reviewer,!Heather!Norton,!Peggy!Balak,!and!Jae!Benz!to!review!the!process!and!to! clarify!any!components!before!initiating!the!review.! Document'Review:!Documents!reviewed!include:!
1. VA!DBHDS!Employment!First!Plan:!FY2016U2016:!Goals,!Strategies,!and!Action!
 Items:!December!2015,!updated!April!2016!

2. DBHDS!Semiannual!Report!on!Employment:!October!21,!2015!! 3. DBHDS!Semiannual!report!on!Employment:!April!8,!2016! 4. Employment!and!Integrated!Service!Definitions!Draft!(not!dated)!! 5. RFP!to!Implement!the!IDA/Community!Engagement!Plan! 6. SELN!Work!Group!meeting!minutes!relevant!to!the!areas!of!focus!for!this!review.!The!
SELN!now!includes!two!advisory!groups:!the!Employment!First!Advisory!Group! (EFAG)!and!the!Community!Engagement!Advisory!Group!(CEAG)U!meetings!from! October!2015UApril!2016! 7. Regional!Quality!Council!meeting!minutes!and!recommendations!for!implementing! Employment!FirstU!The!two!quarterly!meetings!occurred!during!July!and!December! 2015! 8. Community!Engagement!ReportUDecember!29,!2015!

! Interviews:!The!Expert!Reviewer!interviewed!members!of!the!SELN;!Connie!Cochran,! Assistant!Commissioner!for!Developmental!Services,!and!Heather!Norton,!Director!of! Community!Support!Services,!DBHDS;!employment!staff!at!New!River!Valley!CSB;!the! Medicaid!Quality!Coordinator!at!Goodwill!of!Roanoke,!and!two!ARC!Directors!involved!in! community!engagement!initiatives!from!the!Arc!of!Southside!and!the! Harrisburg/Rockingham!Arc.! ! ! IV.!THE!EMPLOYMENT!IMPLEMENTATION!PLAN!
7.b.i.A.)Within)180)days)the)Commonwealth)shall)develop)an)employment)implementation)plan)
to)increase)integrated)day)opportunities)for)individuals)in)the)target)population,)including)
supported)employment,)community)volunteer)and)recreational)activities,)and)other)integrated)
day)activities.)The)plan)shall:)
A.)Provide)regional)training)on)the)Employment)First)policy)and)strategies)throughout)the)
Commonwealth:)
) Review!of!Virginia’s!Plan!to!Increase!Employment!First!Plan:!FY!2016TFY2018T!Goals,! Strategies,!and!Action!Items.! DBHDS!with!the!input!of!the!Employment!First!Advisory!Group!(formerly!the!SELN! Advisory!Committee)!has!revised!the!FY13UFY15!plan!to!increase!employment! opportunities.!I!was!provided!with!the!Status!Report!as!of!12/31/15.!The!Plan!includes!five! goal!areas!each!of!which!has!subUgoals.!

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!

Goal'1:!Align!licensing,!certification,!accreditation,!data!collection,!and!other!activities!

between!state!agencies!that!facilitate!employment!for!individuals!with!disabilities.! !

Status:!!The!DBHDS,!DARS!and!DOE!efforts!continue!to!be!in!the!planning!stages.!There!is!

still!now!a!Memorandum!of!Understanding!between!DBHDS,!DMHAS,!DARS,!and!VDOE.!The!

goals!for!the!Interagency!Workgroup!and!the!identification!of!interagency!projects!will!not! be!accomplished!until!June!2017.!No!specific!projects!are!identified.!The!training! curriculum!regarding!allowable!employment!activities!under!the!HCBS!waiver!programs!

was!completed!and!training!was!provided!to!DMAS!and!DBHDS!staff!including!Community! Resource!Consultants.!There!is!no!further!mention!of!the!interagency!project!that!was!

proposed!in!the!spring!of!2015.!This!proposal!was!to!use!a!DOE!funded!position!as!an! Employment!Specialist!in!the!northern!Virginia!area!to!assist!schools!and!ESOs!to!plan!for!

transition!or!whether!DBHDS!is!appropriating!four!positions!to!DARS!to!expand!this! initiative!to!other!parts!of!the!state.!Also!stalled,!are!the!discussions!among!the!three!state! agencies!to!undertake!an!initiative!in!a!rural!part!of!Virginia.!The!purpose!of!the!initiative!

was!to!improve!employment!opportunities!for!individuals!upon!high!school!graduation!

appears.!DBHDS!did!transfer!four!positions!to!DARS!to!expand!the!availability!of! employment!specialists,!but!these!are!not!funded!positions.!DARS!will!need!to!allocate! funding!to!use!the!positions.!A!current!alternative!being!considered!is!whether!DBHDS!is!

appropriating!four!positions!to!DARS!to!expand!this!initiative!to!other!parts!of!the!state.! Accreditation!of!ESOs!is!still!in!the!discussion!phase.!!

DBHDS!has!made!progress!on!its!data!collection!by!using!data!from!the!ESOs!and!DARS.! ESOs!will!be!provided!this!information!for!its!participants!in!the!data!survey!and!will!only!

need!to!add!the!data!for!individuals!who!receive!waiver!or!other!funding.!DBHDS!continues! to!provide!education!to!other!state!agencies.!This!quarter!the!department’s!staff!provided!

technical!assistance!to!DMAS!staff!and!formal!training!to!DARS!and!DBHDS!staff!about!

currently!allowable!employment!services!under!the!HCBS!waivers.! !

Goal'2:!Education!and!training!of!stakeholders,!providers!and!state!agency!staff.!

!

Status:!The!Employment!Action!Plan!lists!a!number!of!activities!to!occur!between!3/31/16!
and!6/30/16.!These!include:! !!!!$!!!!developing!information!and!tools!for!families!and!selfUadvocates;!! !!!!$!!!!creating!a!process!map!for!families!of!school!children;!! !!!!$!!!!writing!training!fact!sheet!about!benefits;!and!! !!!!$!!!!identifying!local!advocacy!groups!and!family!resource!networks.!!

!

The!Commonwealth!has!not!made!progress!on!the!subUgoal!in!the!Employment!Action!Plan! (Spring!2014)!to!reach!out!to!businesses.!The!outreach!goal!was!to!educate!and!increase!

awareness!of!employing!individuals!with!disabilities.!Contacts!with!local!advocacy!groups! and!family!resource!networks!to!schedule!presentations!are!projected!for!6/30/17.!There!is!

an!ongoing!goal!of!posting!information!on!the!Employment!First!website.!There!are!also! initiatives!to!support!and!train!employers!that,!at!the!time!of!this!review!were!scheduled!to!

occur!between!3/1/16!and!5/20/16.!!As!of!4/19/16!the!EFAG!training!subUgroup!had!

drafted!training!materials!for!Case!Managers!and!had!developed!a!fact!sheet!on!workplace!

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assistance.!Regional!training!that!was!provided!between!January!and!March!included!


training!five!new!potential!providers!and!training!in!Martinsville!on!Employment!First.!!


Technical!assistance!was!also!provided!to!four!service!providers!
 !


Goal'3:!Service!delivery!system!that!supports!and!incentivizes!integrated!communityUbased!


employment.!!


!

Status:!The!Action!Plan!lists:!
 !!!!$!!!!developing!regional!strategies;!!!
 !!!!$!!!!creating!process!maps!to!avoid!employment!disruptions;!!
 !!!!$!!!!using!data!to!drive!future!employment!decisions;!!
 !!!!$!!!!identifying!service!delivery!gaps;!creating!practice!standards;!and!!
 !!!!$!!!!developing!mechanisms!to!use!existing!quality!indicators.!!


!
 The!timelines!for!completing!these!actions!range!from!6/30/16U6/30/17.!As!of!4/19/16!the!
 EFAG!has!drafted!quality!outcome!measures.!


!


Goal'4:!Financing!and!contracting!methods!within!and!across!agencies!to!support!
 communityUbased!employment!service!delivery.!
 !


Status:!This!goal!is!no!longer!referenced!and!appears!to!have!been!discontinued!with!no!
 explanation.!!


!
 Goal'4'(previously)Goal)5):!Virginia!will!have!a!system!wide!data!collection!and!performance!
 measurement!system!and!procedures!for!employment!data!for!people!in!supported!
 employment.!
 !


Status:!!This!Goal!previously!included!an!indicator!to!have!the!SELN!AG!and!Regional!
 Quality!Councils!(RQC)!review!the!employment!data!and!targets!quarterly.!This!


recommended!action!has!been!removed!from!the!Goal!and!Strategies!in!terms!of!the!RQC!
 role!because!it!is!an!overall!expectation!of!the!SA.!This!goal!still!includes!efforts!to!develop!


data!gathering!tools,!to!undertake!data!analysis,!to!analyze!provider!capacity!and!to!develop!
 a!plan!to!increase!capacity.!The!dates!for!completion!are!between!6/30/16!and!9/1/16.)!
 !!


Goal'5!(formerly!Goal!6):!Virginia’s!Employment!First!Advisory!Group!will!have!a!


formalized!structure!with!clearly!defined!roles!and!responsibilities!for!members.!
 !
 Status:!The!Employment!First!Advisory!Group!has!added!the!responsibility!to!develop!a!


selfUevaluation!tool!to!determine!the!group’s!efficiency,!effectiveness,!and!diversity!in!
 stakeholder!input.!


!
 Conclusion'and'Recommendations:!DBHDS!is!in!compliance!with!provision!7.b.i.A.!It!
 provides!regional!training!on!the!Employment!First!policy!and!strategies.!!DBHDS!
 submitted!a!report!for!the!Quarter!2!of!2016!(10/15U12/15).!Approximately!165!family!


members,!CSB!staff,!advocates,!provider!staff!and!transition!teachers!and!supervisors!were!


trained.!Training!continued!with!providers!through!March!2016!as!noted!above.!I!continue!


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to!recommend,!however,!that!the!Commonwealth!determine!how!best!this!information!can!
 be!shared!with!families!and!to!report!in!the!future!on!its!outreach!to!this!group!specifically.!
 DBHDS!does!plan!to!engage!youth!and!families!through!youth!and!family!summits!
 throughout!the!next!year.!The!purpose!of!these!engagements!is!to!continue!to!hear!from!
 these!stakeholders!even!though!their!representation!on!the!SELN!will!be!reduced,!as!will!all!
 other!groups.!The!DBHDS!should!include!summaries!of!these!summits!and!the!number!of!
 individuals!who!attend!during!future!reporting!periods.!DBHDS!continues!to!make!progress!
 implementing!its!employment!implementation!action!plan.!Outreach!should!include!specific!
 strategies!to!reach!the!DD!community.!
 !
 The!Employment!First!Plan!for!FY2016U2018!was!revised!December!29,!2015.!The!Plan!is!
 disappointing!in!both!its!lack!of!specificity!and!the!lack!of!progress!reported!toward!
 reaching!the!plan’s!goals.!The!format!of!the!plan!should!be!modified!to!provide!actual!
 updated!information!and!specifics!regarding!implementation.!The!current!report!does!not!
 include!any!specificity!as!to!how!actions!will!be!implemented!or!what!has!been!
 accomplished!to!date!to!achieve!them.!The!plan!does!not!include!the!involvement!of!the!
 RQCs!and!does!not!describe!the!accomplishments!during!the!prior!6U12!months.!Doing!so!
 would!be!a!good!step!toward!providing!greater!specificity!and!accountability.!
 !
 7.b.i.B.1.a>e:)The)Commonwealth)is)to)develop)an)employment)implementation)plan)to)
 increase)integrated)day)opportunities)for)individuals)in)the)target)population)including)
 supported)employment,)community)volunteer)activities,)and)other)integrated)day)activities.)
 The)plan)shall)establish,)for)individuals)receiving)services)through)the)HCBS)waivers:!
 Annual)baseline)information)regarding:))
 )

a.)The)number)of)individuals)receiving)supported)employment;))
b.)The)length)of)time)people)maintain)employment)in)integrated)work)settings;))
c.)The)amount)of)earning)from)supported)employment;)
d.))The)number)of)individuals)in)pre>vocational)services;)and)) e.)The)lengths)of)time)individuals)remain)in)pre>vocational)services.! !
 DBHDS!has!changed!the!data!source!and!the!data!that!it!is!collecting!about!individuals!who!
 are!employed!and!those!who!are!in!sheltered!work.!DBHDS!has!vastly!improved!its!data!
 collection!since!October!2014.!It!has!continued!to!obtain!more!comprehensive!data.!DBHDS!
 shared!its!second!and!third!Semiannual!Reports!on!Employment!dated!October!21,!2015!
 and!April!8,!2016!respectively.!!These!reports!include!statewide!data!and!analysis;!goal!
 setting!for!Individual!Employment;!and!summaries!and!recommendations.!They!cover!
 points!in!time!in!June!2015!and!in!December!2015!respectively.!While!representing!points!
 in!time,!these!reports!can!be!compared!on!a!semiannual!basis.!These!comparisons!over!
 multiple!years!allow!stakeholders!and!reviewers!to!note!trends!in!progress!or!areas!of!
 regression!or!stagnation.!
 !
 !
 !
 !


!

173!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 174 of 212 PageID# 6864 !

DBHDS!has!worked!in!partnership!with!the!Department!for!Aging!and!Rehabilitative!
 Services!(DARS)!to!refine!its!data!collection!methodology!and!analysis.!DBHDS!continued!to!


collect!data!from!employment!providers!that!were!identified!using!Medicaid!Home!and!
 Community!Based!Services!waiver!billing!data.!!
 !


The!Commonwealth!acknowledged!that!the!data!that!I!have!reviewed!during!earlier!review!


periods,!prior!to!the!spring!of!2015!have!been!faulty.!It!did!not!address!all!of!the!
 requirements!of!the!Settlement!Agreement.!It!could!not!account!for!individuals!entering!
 and!temporarily!leaving!employment!so!may!have!over!or!underreported!both!data!


elements.!Most!notably!it!did!not!include!wage!data!or!the!number!of!hours!individuals!
 work.!The!DBHDS!worked!with!the!SELN,!now!the!Employment!First!Advisory!Group!


(EFAG),!to!determine!an!approach!to!regularly!collect!more!accurate!data.!!DBHDS!does!not!
 have!its!own!database!for!individuals!who!participate!in!employment!services!through!the!


HCBS!waivers.!DARS!does!have!employment!data!for!individuals!it!funds.!The!EFAG!advised!
 the!department!to!collect!this!data!directly!from!the!Employment!Service!Organizations!
 (ESO).!!


!


The!first!full!survey!was!sent!out!in!October!2014.!DBHDS!had!a!response!rate!of!44%.!The!
 second!survey!covering!the!reporting!period!through!the!end!of!fiscal!year!2015!(FY!2015),!
 received!a!much!higher!return!rate.!DBHDS!report!that!95%,!fiftyUseven!of!the!sixty!ESO!


providers!responded!to!the!survey.!ThirtyUthree!of!the!thirtyUsix!ESOs!that!are!waiver!
 service!providers!responded!for!a!92%!response!rate.!!There!was!no!missing!data!for!


Individual!Supported!Employment!(ISE).!Data!was!not!received!for!105!individuals!in!
 Group!Supported!Employment!(GSE)!in!the!second!reporting!period!and!was!missing!for!


111!in!the!third!reporting!period.!The!data!for!the!third!semiannual!report!(through!
 December!2015)!were!returned!by!56!(93%)!of!sixty!providers.!!Of!this!number!32(89%)!of!
 the!thirtyUsix!waiver!providers!responded.!One!fewer!provider!responded!in!the!third!


semiannual!reporting!period!than!did!in!the!second.!This!compares!very!positively,!
 however,!with!the!44%!response!rate!from!the!February!2015!Semiannual!Report.!DBHDS!


credits!this!success!to!the!extensive!efforts!of!the!ESOs,!DARS!and!the!data!subcommittee!of!
 the!EFAG.!The!analysis!and!data!in!this!report!are!based!on!the!data!DBHDS!received!


through!the!end!of!FY15!and!the!first!two!quarters!of!FY16.!However,!since!my!analysis!
 DBHDS!reports!recently!receiving!data!from!one!additional!provider.!This!reduces!the!


number!to!ninetyUfive!individuals!with!missing!data.!


!


DBHDS!also!gathered!data!from!a!second!source!for!both!Employment!Reports.!DBHDS!
 used!its!data!sharing!agreement!with!DARS!to!gather!data!regarding!individuals!with!


developmental!disabilities!who!receive!Extended!Employment!Services!(EES)!and!Long!


Term!Employment!Support!Services!(LTESS).!These!employment!services!are!funded!by!
 DARS.!


!
 !


!
 !


!


!


!

174
!

!
 !


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 175 of 212 PageID# 6865 !

!
 Statewide!Data!AnalysisUThe!data!in!Graph!1!below!for!June!2015!indicates!that!1,853!
 individuals!are!in!Individual!Supported!Employment!services!and!1,029!are!in!Group!
 Supported!Employment!services.!!Additionally,!951!people!are!receiving!services!in!
 sheltered!workshops.!!Individuals!in!sheltered!workshops!are!not!counted!toward!the!
 DBHDS!employment!targets.!!These!numbers!change!in!the!report!through!December!2015!!
 (depicted!in!Graph!2)!as!follows:!!
 !

• 272!more!individuals!are!employed!in!ISE! • 118!fewer!individuals!are!employed!in!GSE! • 231!more!individuals!are!in!sheltered!work! • !

2000! 1800!

Graph!1:Type!of!Work!Setting!by!Funding!SourceT!June!2015! !
1853!

1600! 1400!

1406!

1200!

1000!

800!

560! 600!
400!

400!

200!

153! 212!

195! 80!

24!17!

0!

Waiver!

EES!

LTESS!

1029! 951!

263!244!

109!

102!

35! 33!

Other! No!funding! total! Identiried!

Sheltered*! GSE! ISE!
!

! !
DBHDS!reports:!“This)data)indicates)that)2,882)people)are)employed)with)supports)

from)individual)supported)employment)and)group)supported)employment.))DBHDS)

data)indicates)that)19.69%)percent)of)people)with)ID/DD)are)employed.))This)is)an)

increase)from)the)10%)that)was)reported)in)the)February)2015)Semiannual)Report.))

DBHDS)does)not)think)that)this)is)a)true)9.69%)increase)of)people)being)employed)but)

instead)a)function)of)the)refinement)of)the)data)collection,)and)a)more)accurate)

projection)of)the)involvement)of)individuals)in)employment.)“)

) ! ! !

!

175!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 176 of 212 PageID# 6866 !

Graph!2:!Type!of!Work!Setting!by!Funding!SourceTDecember!2015) )

2500!

2125!

2000!

1500!

1284!

1182!

Sheltered*!

1000! 559!492!

911!

GSE!

622!

ISE!

500!

326!329!

211! 213!

40! 8! 84!50!

0!

Waiver!

EES!

LTESS!

Other!

total!

!

! DBHDS!reports:!“This)data)indicates)that)3036)people)are)employed)with)supports)

from)individual)supported)employment)and)group)supported)employment.))Our)data)

indicates)that)20.02%)percent)of)people)with)ID/DD)are)employed.))) !
 It!is!helpful!that!DBHDS!has!been!able!to!increase!the!accuracy!and!comprehensiveness!of!
 the!employment!data!in!terms!of!the!overall!number!of!individuals!with!disabilities!that!are!
 employed.!!DBHDS!continues,!as!it!should,!to!report!on!both!the!number!of!individuals!
 employed!in!ISE!or!GSE.!The!long!Uterm!goal!of!the!Settlement!Agreement,!however,!is!to!
 have!individuals!employed!through!ISE!and!eventually!competitive!employment.!Overall!
 70%!of!the!individuals!employed!in!December!2015!in!either!ISE!or!GSE!are!employed!in!
 ISE.!Sixty!(60%)!of!these!individuals!are!in!ISE!through!LTESS!funded!by!DARS.!This!
 compares!to!75%!in!the!previous!reporting!period.!Only!30%!of!the!individuals!in!HCBS!
 waiver!funded!employment!services!are!in!ISE.!!There!was!an!increase,!however,!of!58!
 (27%)!individuals!in!ISE!from!June!2015!to!December!2015.!The!DBHDS!reported!that!there!
 is!a!need!to!increase!the!employment!capacity!of!the!HCBS!waivers!overall!and!that!the!
 Employment!First!Advisory!Group’s!Policy!Subgroup!is!analyzing!this!issue.!!
 !
 The!most!significant!increase!in!the!number!of!individuals!employed!between!the!two!
 reporting!periods!was!in!the!“Other”!category.!The!increase!of!378!more!individuals!was!
 155%!more!than!the!244!reported!in!June.!There!are!substantially!more!individuals!in!ISE!


who!are!funded!by!“other”!than!there!are!funded!through!the!HCBS!waivers.!
 !
 It!is!of!some!concern!that!the!number!of!individuals!in!sheltered!work!increased!both!for!
 those!who!are!funded!by!the!waivers!and!overall.!The!number!increase!in!those!with!
 waiverUfunded!services!was!151,!a!27%!increase!from!June!to!December!2015.!This!is!
 concerning!at!a!time!when!DBHDS!is!working!to!prepare!providers!to!no!longer!offer!preU


vocational!services!as!part!of!the!waiver!redesign!that!will!become!effective!July!2016.!!


!

176
!

!


!


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 177 of 212 PageID# 6867 !

Sheltered!work!settings!are!most!prevalent!in!Health!Planning!Regions!(HPRs)!I,!III!and!IV.!
 In!Region!III!64%!of!individuals!in!SW,!GSE!or!ISE!are!in!SW.!DBHDS,!the!Employment!First!
 Advisory!Group,!and!the!RQC’s!should!analyze!this!and!determine!whether!additional!effort!
 is!needed!to!ensure!appropriate!and!timely!transitions!to!employment!and!community!
 engagement!for!these!individuals.!
 Graph!3!shows!the!employment!involvement!of!individuals!by!disability!group.!
 !

Graph!3:!Type!of!Work!Setting!by!DisabilityT!December!2015!

3500! 3000!

3036!

2500!

2290!

2125!

2000!

Sheltered*!

1500!

1413!

1000! 974!877!

500!

0! ID!

6957! 29!

1182! 911!

196! 34!
DD!

12! 0! 17!17! No!Diagnosis!

Total!

GSE! ISE! Total! Employed!
!

! DBHDS!reports:!“The)data)in)the)graph)above)compares)employment)settings)by)disability.)

When)this)data)is)compared)against)the)target)population)(people)on)the)waiting)list)and)

people)on)the)waiver),)an)interesting)backdrop)emerges.))Of)the)13,545)individuals)with)ID)in)

the)target)population,)2,290)(17%))are)employed)an)increase)from)the)last)report)of)1%.))Of)

the)1,463)individuals)with)DD)in)the)target)population,)729)(49%))are)employed)this)is)a)2)

percent)reduction)but)it)should)be)noted)the)target)population)increased)by)134,)while)the)

number)employed)only)increased)by)38.)“) !
 !A!further!analysis!of!the!data!of!individuals!that!have!ISE,!which!is!the!goal!of!the!
 Settlement!Agreement,!provides!less!evidences!of!progress.!Of!the!2290!individuals!with!ID!
 who!are!employed,!1413!are!in!ISE.!This!is!only!10%!of!the!ID!target!population,!which!is!
 13,545!individuals.!!Of!the!729!individuals!with!DD!95%!are!involved!in!ISE,!which!is!
 noteworthy.!!The!DBHDS!needs!to!focus!on!increasing!individualized!employment!
 especially!for!individual!who!are!in!the!HCBS!waiver!funded!programs!and!particularly!for!
 the!individuals!with!ID.!
 !
 !


!

177!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 178 of 212 PageID# 6868 !

Average!hours!workedU!Individuals!who!have!an!ID!worked!an!average!of!21!hours!per!
 week!in!both!the!second!and!third!reporting!periods.!This!is!a!2!Uhour!increase!from!the!19U
 hour!average!that!was!reported!in!Spring!2015.!Individuals!who!have!a!DD!worked!an!
 average!of!20!hours!per!week!in!the!second!reporting!period.!This!increased!to!an!average!
 of!22!hours!per!week!in!the!third!reporting!period.!
 !
 The!range!of!“average!hours!worked”!for!individuals!with!DD!is!21!hours!per!week!in!
 Regions!I,!III!and!V,!to!25!hours!per!week!in!Region!II.!All!regions!have!reported!an!increase!
 in!the!average!number!of!hours!worked.!!The!average!hours!worked!per!week!for!
 individuals!with!ID!ranged!from!18!in!Regions!I!and!IV!up!to!25!hours!per!week!in!Region!II!
 in!the!second!reporting!period.!There!was!a!decrease!from!the!second!reporting!period!for!
 some!regions,!but!an!increase!in!Region!II.!This!information!is!aggregated!for!ISE,!GSE!and!
 SW.!!Individuals!across!all!the!regions!work!between!2U40!hours!per!week.!DBHDS!does!not!
 report!on!whether!individuals!are!working!the!number!of!hours!they!want!to!be!employed.!
 Many!of!the!individuals!may!be!underemployed.!!
 !
 Average!length!of!time!at!current!jobU!the!average!length!of!time!for!individuals!with!ID!
 at!their!current!jobs!through!ISE!is!six!years.!Individuals!with!DD!in!ISE!worked!an!average!
 of!three!years.!Individuals!in!ISE!have!had!their!jobs!for!periods!ranging!from!0!to!32!years.!
 This!range!included!262!individuals!who!started!their!jobs!within!the!last!year!and!468!who!
 have!held!their!jobs!for!more!than!one!year.!The!December!2015!report!is!the!first!report!in!
 which!this!detailed!information!is!reported!distinctly!for!ISE,!GSE!and!SW.!The!average!
 length!of!time!individuals!have!had!their!current!GSE!job!is!seven!years!for!individuals!with!
 ID!and!five!years!for!individuals!with!DD.!In!GSE,!123!individuals!have!held!their!jobs!for!
 one!year!and!703!have!held!them!for!more!than!two!years.!The!expectation!is!that!85%!of!
 individuals!will!hold!their!jobs!for!at!least!twelve!months.!The!Commonwealth!has!exceeded!
 this!expectation.!EightUeight!(88%)!have!worked!at!their!job!for!one!year!or!more!in!ISE!and!
 91%!have!held!their!jobs!for!one!year!or!more!in!GSE.!
 !
 This!information!was!also!reported!in!June!2015!specifically!for!individuals!who!are!in!ISE!
 but!not!reported!by!disability!group.!!Individuals!in!the!waivers!on!average!have!a!longer!
 period!of!time!holding!one!job.!This!report!breaks!these!data!down!by!program/funding!
 source:!

• HCBS)Waiver>)5)year)average) • EES>)4)year)average) • LTESS>)4)year)average) • Other>)3)year)average)

) Earnings!from!supported!employmentU!DBHDS!collected!information!regarding!wages! and!earnings.!The!two!tables!below!depict!the!data!in!terms!of!the!average!hourly!wages! and!the!number!of!individuals!that!earn!above!or!below!minimum!wage.!All!but!four! individuals!in!ISE!earn!at!least!minimum!wage.!!However!41%!of!individuals!in!GSE!earn! below!minimum!wage.!The!difference!in!the!average!wage!between!individuals!with!ID!and! DD!varies!the!least!for!individuals!in!ISE!($.31!per!hour).!The!following!graphs!and!table! illustrate!the!wage!information.!

!

178!

!

!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 179 of 212 PageID# 6869 !

Graph!4:!Average!Hourly!Wage!by!Employment!Type/DisabilityTDecember!2015! !


$10.00! $9.00! $8.00!

$8.92!$9.23!

$7.70!

$7.00!

$6.22!

$6.00!

$5.00!

$4.59!

ID!

$4.00!

DD! $3.19!

$3.00!

$2.00!

$1.00!

$0.00!

ISE!

GSE!

Sheltered!

!

!

DBHDS!reports:!The)chart)above)depicts)average)hourly)wage)based)on)type)of)employment.))

Persons)in)individual)supported)employment)average)above)minimum)wage.))Individuals)with)

intellectual)disability)average)below)minimum)wage)in)group)supported)employment)while)

individuals)with)developmental)disabilities)average)above)minimum)wage.))Both)individuals)with)

intellectual)and)developmental)disabilities)average)below)minimum)wage)in)sheltered) employment.!
!

Graph!5:!Number!of!Individuals!Earning!Above!and!Below!Minimum!WageTDecember! !

2000! 1800!

1849!

1600! 1400! 1200! 1000!

1197!


1358!


980!

971!

878!

!2015
! ! !

800!

692!


600! 505!
400!
200! 4!
0! ISE!

538!
 374!330!

208!

GSE!

43!
711! 14! SW!

Total!


Below!Minimum! Minimum!Wage! Above!Minimum! Total!At!or!Above!Minimu m!
! 179!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 180 of 212 PageID# 6870 !

Table!1:Statewide!Distribution!of!Wages!December!2015!

ID/DD! Lowest!hourly!wage! Highest!hourly!wage!

Sheltered*!

$0.13!

$13.05!

GSE!

$0.20!

$20.70!

ISE!

$2.31!

$21.47!

!


!


!Individual!EmploymentU!In!June!2015,!1847!individuals!were!in!ISE,!of!whom!1229!


(66.5%)!have!an!ID!and!618!(33.5%)!have!a!DD.!in!December!2015,!2125!individuals!were!


in!ISE,!of!whom!1413!(66.5%)!have!an!ID!and!695(32.7%)!have!a!DD.!The!17!(0.8%)!


remaining!individuals!in!ISE!have!no!diagnosis.!This!is!a!far!more!significant!number!of!


individuals!than!have!been!previously!reported.!The!data!sources!have!become!more!robust!


and!the!rate!of!response!has!increased!dramatically!from!the!ESOs.!These!data!includes!only!


people!who!are!actually!working!and!being!paid.!!


!


Group!Supported!EmploymentU!In!June!2015!1029!individuals!were!in!GSE,!of!whom!959!


(93.2%)!have!an!ID!and!63!(6.1%)!have!a!DD.!In!December!2015,!these!numbers!decreased!


to!877!(96.3%)!and!34!(3.7%),!respectively.!!!


!


PreTVocational!ServicesU!In!June!2015,!951!individuals!were!receiving!PreUvocational!


services.!Six!months!later,!in!December!2015,!the!number!of!individuals!in!preUvoc!services!


had!increased!by!231!to1182!individuals.!This!includes!974!(82.4%)!individuals!with!ID!


and!196!(16.6%)!individuals!with!DD.!An!additional!12!(0.1%)!individuals!are!in!preU


vocational!who!do!not!have!a!diagnosis.!This!represents!a!significant!(24.3%)!increase!


between!June!and!December!of!2015.!Previously,!and!only!in!its!June!2015!report,!DBHDS!


reported!on!the!average!length!of!time!individuals!remained!in!preUvocational!services.!In!


the!HCBS!waiver!funded!services,!there!are!758!of!whom!691!(91%)!have!been!in!preU


vocation!for!12!months.!Half!of!these!individuals!have!been!in!preUvocational!programs!for!


over!42!months!demonstrating!little!transition!to!employment.!DBHDS!should!continue!to!


report!these!data!semiannually.!DBHDS!reports!that!the!change!in!number!is!more!likely!


related!to!better!reporting!than!to!an!actual!increase!in!participants!in!preUvocation.!


!


Conclusion'and'Recommendations:!The!DBHDS!is!in!compliance!with)7.b.i.B.1.a,)b,)c,)d,)and)


e.)Its!data!reflects!information!from!93%!of!all!providers!and!89%!of!the!providers!who!


offer!HCBS!waiver!funded!services.!It!also!includes!100%!data!from!DARS.)This!is!


significantly!improved!from!previous!data!collection.!DBHDS!can!now!report!on!earnings!


and!the!length!of!time!individuals!have!been!employed.!It!is!positive!that!more!individuals!


were!employed!in!December!2015!than!were!in!June!2015.!There!were!272!additional!


individuals!were!engaged!in!ISE.!!Fewer!individuals!received!GSE;!so!the!overall!increase!in!


the!number!of!individuals!in!supported!employment!overall!was.!!


It!is!extremely!positive!to!have!data!that!includes!all!individuals!with!ID!and!DD!who!are!


employed!rather!data!limited!to!only!those!individuals!who!are!employed!using!HCBS!


waiver!funded!services.!DBHDS!now!has!more!accurate!information!about!both!the!ID!and!


DD!populations!related!to!employment.!It!is!encouraging!that!more!individuals!are!


employed!and!earning!wages.!It!is!a!concern!that!more!individuals!are!receiving!preU


!

180!


!


!


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 181 of 212 PageID# 6871 !

vocational!services,!which!are!typically!provided!in!large!congregate!settings!that!do!not!


include!activities!in!integrated!community!settings.!!


!


I!applaud!the!efforts!that!DBHDS!has!made!to!collect!and!report!more!accurate!data.!The!


inclusion!of!the!DARS!data!has!made!the!data!much!more!robust!and!accurate.!It!remains!a!


concern,!however,!that!the!department!is!relying!on!the!ESOs!to!report!and!that!this!


reporting!continues!to!be!voluntary.!These!data!are!not!complete!unless!DBHDS!requires!


reporting!and!achieves!100%!compliance.!DBHDS!needs!to!require!all!ESOs!to!provide!


employment!data.!!


!


The!Parties!should!decide!what!if!any!outcomes!are!expected!and!required!in!the!following!


areas:!the!amount!of!earnings;!the!number!of!individuals!in!preUvocational!services;!and!the!


length!of!time!individuals!are!in!preUvocational!services.!Currently!the!Agreement!only!


requires!that!DBHDS!report!accurately!on!these!data!elements.!


!


!


!


V.!SETTING!EMPLOYMENT!TARGETS!

Sections)7.i.B.2.a)and)b.)require)the)Commonwealth)to)set)targets)to)meaningfully)increase)the)


number)of)individuals)who)enroll)in)supported)employment)in)each)year)and)the)number)of)
 individuals)who)remain)employed)in)integrated)work)settings)at)least)12)months)after)the)
 start)of)supported)employment.)))


)
 The!targets!depicted!in!Table'2!are!for!the!total!number!of!individuals!in!ISE!for!each!of!the!

next!five!fiscal!years.!

'

'

Table'2:''EMPLOYMENT'TARGETS'FOR'FY15'–'FY19'

!

FY! ISE!

Total!in!

%!in!ISE!at! %!in!ISE!by! ISE!Total! Increase!

Total! Day/EmployT start!of!FY! end!of!FY! End!of!FY! in!Base!

Start!of! ment!

%!

FY!

Services!

15!

204!

7292!

2.79%!

7.79%!

568!

5%!

16!

568!

7292!

7.79%!

12.79%!

932!

5%!

17!

932!

7292!

12.79%! 17.79%!

1297!

5%!

18! 1297!

7292!

17.79%! 22.79%!

1661!

5%!

19! 1661!

7292!

22.79%! 27.79%!

2026!

5%!

!

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 '
 Increasing'the'number'of'individuals'in'IE:!The!targets!in!Table'2'reflect!the!targets!set!
 by!the!DBHDS!in!March!2014.!The!Commonwealth!is!continuing!to!use!these!goals!for!the!
 number!of!individuals!who!are!receiving!ISE!HCBS!waiver!funded!services.!These!targets!
 were!based!in!the!information!available!from!the!HCBS!waiver!data.!!The!Semiannual!
 Employment!Report!for!2015!includes!data!that!only!153!individuals!with!HCBS!waivers!
 are!employed!in!ISE,!but!that!232!participate!in!ISE.!DBHDS!reports!that!the!target!goals!are!
 based!on!the!number!of!individuals!who!participate!in!ISE!versus!the!number!that!are!
 actually!employed.!!The!December!2015!report!indicates!that!211!individuals!are!
 participating!in!ISE!who!have!HCBS!waiver!slots!who!are!employed.!A!section!within!the!
 semiUannual!report!that!uses!DMAS!data!indicates!that!231!individuals!who!receive!ID!and!
 DD!waiver!funded!services!are!in!ISE.!This!number!counts!individuals,!however,!who!
 previously!discontinued!service!and!joined!back!in!during!the!quarter.!The!number!of!232!
 individuals!in!June!2015!and!231!in!December!of!2015!are!both!from!the!DMAS!ISE!report.!
 The!Commonwealth’s!FY!2015!goal!for!the!number!of!employed!individuals!with!ID!and!DD!
 was!568!individuals.!The!goal!for!FY!2016!increased!to!932.!!The!target!for!FY15!was!not!
 met.!DBHDS!does!not!appear!to!be!on!track!to!meet!the!target!of!932!individuals!with!
 ID/DD!in!ISE!by!the!end!of!FY16.!DMAS!reported!that!the!number!of!individuals!in!ISE!did!
 not!vary!between!June!and!December!2015.!It!is!encouraging!that!the!number!of!individuals!
 actually!employed!increased!from!153!to!211!during!that!same!time!period.!
 !
 The!DBHDS!has!revised!its!overall!target!for!employment!to!include!all!of!the!eligible!
 individuals!with!ID!or!DD!and!all!of!the!employment!options!available!through!DBHDS!or!
 DARS.!To!establish!its!target,!DBHDS!used!the!national!average!that!25%!of!individuals!with!
 ID!and!DD!who!participate!in!employment!services.!DBHDS!includes!the!number!of!adults!
 now!on!the!HCBS!waivers!(11,000)!and!those!on!the!waiting!list!(3,640),!many!of!whom!
 may!be!receiving!DARS!services,!to!determine!the!universe!seeking!employment.!DBHDS!
 worked!with!the!EFAG!to!revise!the!employment!targets!of!individuals!with!ID!and!DD!who!
 will!be!employed.!The!target!is!increased!significantly!from!the!previous!target!of!1661!to!
 3660!individuals!by!FY19.!Individuals!in!both!ISE!and!GSE,!who!are!working!and!earning!at!
 least!minimum!wage,!will!also!be!counted!toward!achieving!this!target.!!
 !
 The!Commonwealth!is!on!track!to!reach!this!target.!As!of!December!2015,!3036!individuals!
 are!in!either!ISE!or!GSE.!Graph!6!below!depicts!the!distribution!of!individuals!by!work!
 setting!by!HPR.!


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Graph!6:Type!of!Work!Setting!by!Health!Planning!RegionsTDecember!2015

600!

570!

533! 509!

500!

400!

377!

326! 308!

300! 263!

343! 279!

200!

158! 168!

164!

Sheltered*! Group! Individual!

93!

100!

44!

55!

2!

23! 3!


0!

HPR!I! HPR!II! HPR!III! HPR!IV! HPR!V! No!Data!


!

!


The!graph!above!indicates!clear!variations!in!work!settings!throughout!the!


Commonwealth’s!five!Health!Planning!Regions.!!Three!of!the!five!regions,!Regions!I,!III!and!


IV,!have!a!significant!percentage!of!individuals!who!are!receiving!Sheltered!Work!services,!


which!are!typically!provided!in!large!congregate!facilities.!In!Region!III,!64%!of!individuals!


with!ID!or!DD!are!in!such!“sheltered!work”!settings.!The!DBHDS,!EFAG!and!the!RQC’s!should!


analyze!these!data!and!determine!the!necessary!actions!to!change!this!balance!so!that!more!


individuals!have!the!opportunity!to!work!in!integrated!settings.!


!


Individuals!in!Supported!Employment!The!Commonwealth’s!current!goal!is!to!reach!


85%!of!the!total!number!of!individuals!who!are!in!ISE!to!remain!employed!for!12!or!more!


months.!As!noted!earlier,!the!Commonwealth!has!surpassed!this!expectation.!!Because!the!


Commonwealth!could!not!previously!report!accurately,!it!is!difficult!to!know!whether!this!


reflects!recent!progress.!!


!


Conclusions'and'Recommendations:!the!Commonwealth!is!not!in!compliance!with!Section)


7.b.i.B.2.a)and!is!in!compliance!with)7.b.i.B.2.b.))


)


In!terms!of!meeting!its!targets,!the!Commonwealth!is!falling!woefully!short!for!its!targets!


for!individuals!in!the!waiver!programs,!but!it!is!making!significant!progress!towards!its!


overall!targets!for!employment!including!all!DARS!and!other!funding!sources.!!


!


The!Commonwealth!is!reporting!that!many!more!individuals!are!employed.!It!can!now!


report!on!individuals!with!ID!and!DD!separately.!I!suggest!it!develop!separate!targets!for!


each!of!these!groups!and!continue!its!new!practice!of!reporting!on!each!group!separately.!


The!DBHDS!should!also!determine!its!targets!separately!for!individuals!in!ISE!and!for!those!


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in!GSE!to!insure!its!decision!to!pursue!an!Employment!First!Policy!is!implemented!as!
 intended.!!Currently,!of!the!individuals!with!ID!who!are!employed,!57%!are!in!ISE!and!43%!
 are!in!GSE.!!Of!the!individuals!with!DD,!however,!74%!percent!are!in!ISE!and!only!26%!are!
 in!GSE.!DBHDS!should!not!reduce!the!percentages!of!individuals!that!it!expects!should!be!
 independently!employed!when!it!sets!its!new!targets!for!GSE!and!ISE.!
 !
 In!order!for!the!Commonwealth!to!reach!these!targets!for!individuals!in!the!HCBS!waivers!
 the!DBHDS!will!need!to!concentrate!its!efforts!on!completing!its!waiver!redesign!plan!to!
 address!employment!service!definitions!and!revise!its!rate!structure,!focus!on!building!
 provider!capacity.!Provider!capacity!is!going!to!be!critical!to!the!success!of!meeting!these!
 targets.!Provider!capacity!seems!critical!to!Region!I,!III!and!IV!that!still!have!a!
 preponderance!of!sheltered!work!settings,!especially!Region!III.!
 !
 !I!continue!to!recommend!that!the!Commonwealth!further!refine!these!targets!by!indicating!
 the!number!of!individuals!it!hopes!to!provide!ISE!to!from!the!following!groups:!individuals!
 currently!participating!in!GSE!or!preUvocational!programs;!individuals!in!the!target!
 population!who!are!leaving!the!Training!Centers;!and!individuals!in!the!target!population!
 who!become!waiver!participants!during!the!implementation!of!the!Settlement!Agreement.!!I!
 am!pleased!that!the!EFAG!has!also!made!this!recommendation.!Creating!these!subUgroups!
 with!specific!goals!for!increased!employment!for!each!will!assist!DBHDS!to!set!measurable!
 and!achievable!goals!within!the!overall!target!and!make!the!undertaking!more!manageable!
 and!strategic.!Realistic!and!successful!marketing!and!training!approaches!to!target!these!
 specific!groups!can!be!developed!through!discussions!between!the!DBHDS!and!the!EFAG!to!
 reach!out!to!families,!Case!Managers,!CSBs,!Training!Center!staff,!and!ESOs!to!assist!the!
 DBHDS!to!achieve!its!overall!targets!in!each!of!the!next!five!fiscal!years.!
 !
 VI.!The!Plan!for!Increasing!Opportunities!for!Integrated!Day!Activities! ! 7.a.)To)the)greatest)extent)practicable)the)Commonwealth)shall)provide)individuals)in)the)
 target)population)receiving)services)under)this)agreement)with)integrated)day)opportunities,)
 including)supported)employment.)
 )
 Waiver!Redesign:!The!Commonwealth!is!continuing!its!planning!efforts!to!redesign!its!
 waivers!serving!individuals!with!ID!and!DD!is!undertaking!a!significant!redesign!of!its!HCBS!
 waivers.!The!redesigned!HCBS!waivers!include!a!definition!for!integrated!day!activities,!
 which!DBHDS!now!refers!to!as!Community!Engagement.!The!Commonwealth!submitted!its!
 HCBS!waiver!amendments!to!CMS!in!March!2016.!At!the!time!of!this!review,!the!
 Commonwealth!is!awaiting!approval!to!begin!implementation!in!July!2016.!The!General!
 Assembly!has!delayed!the!implementation!of!the!Community!Guide/Peer!Mentoring!service!
 has!been!delayed!until!2017.!The!Commonwealth’s!General!Assembly!also!delayed!
 implementation!of!two!employment!related!services!until!2017:!benefits!planning!and!nonU
 medical!transportation.!!
 !
 !
 !


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Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 185 of 212 PageID# 6875 !

Integrated!Day!Activity!Plan:!The!DBHDS!is!required!to!provide!integrated!day!activities,! including!supported!employment!for!the!target!population.!The!Settlement!Agreement! states:!To)the)greatest)extent)practicable,)the)Commonwealth)shall)provide)individuals)in)the)

target)population)receiving)services)under)the)Agreement)with)integrated)day)opportunities,)

including)supported)employment.) ! )Since!the!Commonwealth!of!Virginia!entered!into!the!Settlement!Agreement!with!the!US! DOJ,!DBHDS!has!focused!its!work!and!activities!on!increasing!employment!opportunities!for! individuals!with!ID!and!DD.!With!rare!exception!providers!in!Virginia!still!do!not!offer! individuals!who!are!not!employed!other!types!of!integrated!day!activities.!DBHDS!was! directed!by!the!Independent!Reviewer!to!develop!a!plan!by!March!31,!2014!to!describe!its! approach!to!create!integrated!day!activity!capacity!throughout!its!provider!community!and! ensure!that!individuals!in!the!target!population!can!participate!in!these!integrated!activities! as!the!foundation!of!their!day!programs.!During!this!review!period,!DBHDS!submitted!the! revised!Community!Engagement!Plan!FY2016UFY2018!on!December!29,!2015.! ! DBHDS!has!added!new!service!definitions!to!its!waiverUfunded!services.!These!include:! community!coaching,!community!engagement,!community!guide!services,!peer!mentor! support!services,!and!group!day!services.!Each!includes!a!service!definition,!a!list!of! allowable!activities,!and!pay!rates.!Community!coaching!provides!for!individual!one!to!one! support!to!assist!individuals!engage!in!community!activities!and!to!access!public! transportation.!Community!engagement!helps!individuals!develop!or!enhance!skills!to!be! more!independent!and!to!engage!in!community!activities!including!education!and!training,! retirement!or!volunteer!activities.!The!focus!of!these!newly!defined!services!is!on! relationship!building!and!using!natural!supports.!Community!Guide!Services!provide! assistance!to!persons!brokering!community!resources!and!assess!interests.!!Peer!support! services!allow!an!individual!with!a!disability!who!are!trained!mentors!to!assist!empowering! the!individual!to!access!community!living.!Group!day!services!include!skill!building!or! supports!in!the!areas!of!selfUhelp,!community!integration,!employability!and!adaptive!skills.! All!of!the!new!services!include!a!detailed!list!of!allowable!activities.!The!definitions!are!clear! and!the!allowable!activities!are!extensive.!This!effort!should,!over!time,!further!the! availability!and!success!of!integrated!day!activities.! ! Definitions!have!also!been!included!for!supported!employment,!including!individual!and! group!supported!employment!with!allowable!activities!and!rates!for!GSE.!ISE!is!negotiated.! Workplace!assistance!service!has!been!added!to!the!list!of!employment!services.!It!provides! supports!to!individuals!who!need!more!than!the!typical!funded!amount!of!job!coach! services!to!stabilize!their!employment.! ! DBHDS,!with!the!input!of!the!CEAG,!drafted!a!comprehensive!Community!Inclusion!Policy.!It! set!this!direction!and!clarifies!the!values!of!Community!Inclusion!for!all!individuals!with! intellectual!and!developmental!disabilities,!regardless!of!the!severity.!The!policy!supports! the!use!of!natural!supports!and!promotes!opportunities!occurring!at!naturally!occurring! times!to!not!limit!individuals!to!offerings!available!only!weekdays!and!daytime.!It!requires! that!the!individuals!be!involved!in!the!planning!and!selection!process.!The!policy!also! identifies!the!types!of!activities!that!are!included:!community!education!or!training,!

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retirement!activities,!and!volunteer!activities.!The!Community!Inclusion!policy,!if!
 implemented!effectively,!should!build!positive!behavior,!interpersonal!competence,!
 independence,!employability!and!personal!choice.!The!policy!requires!the!involvement!of!
 both!the!DBHDS!and!the!CSBs:!
 !
 !!!!$!!!!to!establish!outcomes!with!specific!percentage!goals;!!
 !!!!$!!!!to!identify!strategies!to!address!barriers;!!
 !!!!$!!!!to!expand!capacity!of!providers;!!
 !!!!$!!!!to!collaborate!with!the!State!Department!of!Education!(and!schools!to!promote!

transition!planning;!and!! !!!!$!!!!to!conduct!a!statewide!education!campaign!about!Community!Engagement.!! ! Implementation!requires!DBHDS!to!provide!training!and!consultation;!to!work!with!DMAS! to!incorporate!these!services!in!the!waivers;!to!continue!the!role!of!the!CEAG;!to!develop!an! implementation!plan;!and!to!maintain!membership!in!the!SELN.!! ! The!DBHDS!has!also!drafted!answers!to!frequently!asked!questions!about!community! engagement,!community!coaching!and!the!availability!of!transportation!for!community! engagement.!!The!redesigned!waiver!application!includes!these!services.!! ! I!was!provided!the!DBHDS!Community!Engagement!Plan!Draft:!December!10,!2015!as! revised!December!29,!2105!and!the!Quarterly!Updates!(2/23/15,!4/15/16).!The!Plan!has! six!goals,!one!of!which!is!new!and!three!of!which!have!been!modified!since!the!Quarterly! Update!of!February!2015.!! ! There!is!an!overall!goal!to!develop!a!common!understanding!and!philosophy!among! stakeholders,!providers,!and!state!agencies!of!Community!Engagement!(CE)!based!on! accepted!national!standards!and!in!compliance!with!federal!regulations.!! STATUSU!DBHDS!has!created!the!CE!Advisory!Group!with!broad!stakeholder!membership.!It! has!also!completed!its!service!definitions!within!CE.!The!CEAG!education!and!training!subU committee!has!been!charged!to!assist!DBHDS!to!develop!and!deliver!training!by!7/1/16.!No! specifics!or!update!on!these!activities!were!provided.! !
1. Establish!Policies!to!promote!and!encourage!CE!Activities.!!!!!!!!!!!!!!!!!!!!!!!
STATUSU!Policy!statements,!regulation!language,!outcome!measures!and!a!tool!for!data! collection!methodology!is!to!be!developed!by!3/30/16.!!The!CE!AG!is!also!to!assure! consistency!in!compliance!documents!by!that!date.!A!monitoring!process!is!to!be!in! place!by!7/1/16.!No!specifics!or!update!on!these!activities!were!provided.!
2. Develop!funding!sources!that!promote!and!encourage!implementation!of!CE.! (Previously>System)transformation)for)the)implementation)of)Community)Engagement)
Activities.)))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))
STATUS>)The!Burns!and!Associates!data!review!for!waiver!redesign!was!completed.! Rates!have!been!developed!for!community!engagement,!community!coaching,!and!

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community!guide!as!of!7/1/15.!Rates!have!been!approved!to!be!effective!7/1/16.!The! monitoring!and!evaluation!of!the!implementation!of!the!rates!will!be!completed! 6/30/18.!The!Commonwealth!is!on!track!to!achieve!this!goal.)

3. Ensure!that!structures,!at!both!the!state!and!provider!level,!will!support!delivery!of! CE!in!the!least!restrictive!and!most!integrated!settings!that!are!appropriate!to!the! specific!needs!of!the!individual!as!identified!through!the!person!centered!planning! process.!(Previously>Implementation)of)best)practices)in)the)provision)of)Community) Engagement)Activities.))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))!

STATUSU)DBHDS!issued!a!RFP!for!Community!Engagement!7/9/15!to!assist!two! providers!serving!at!least!100!individuals!to!convert!from!centerUbased!programs!to!CE.! The!grants!were!to!be!awarded,!but!this!has!been!delayed.!The!DBHDS!will!meet! monthly!with!the!grantee!organizations!for!the!purposes!of!gathering!information!to! develop!a!guidebook!by!7/1/16.!Fact!sheets!for!providers,!families!and!individuals,!and! the!general!importance!of!CE!have!been!developed.!The!CEAG!is!scheduled!to!develop!a! training!curriculum!detailing!how!to!engage!individuals!in!CE!by!6/1/16.!!The!CEAG!is!to! collect!information!on!best!practices!and!to!identify!those!practices!to!make!available!to! providers.!!DBHDS!is!to!provide!training!and!technical!assistance!by!3/30/16!and!to! develop!a!fact!sheet!for!DOE!by!1/30/16.!This!goal!is!partially!on!track.!There!are!no! updates!on!progress!related!to!best!practices,!training,!or!the!DOE!fact!sheet.!These! timelines!will!be!impacted!by!the!delay!in!awarding!the!contracts.!

4. Ensure!CE!services!are!being!offered!and!provided!to!individuals!across!the!state!in! the!most!integrated!community!settings!based!on!the!needs!of!the!individual!as! determined!through!the!personUcentered!planning!process.!(Previously>Monitoring)to) ensure)implementation.)!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

!STATUST!The!CEAG!is!to!work!with!regions!to!identify!additional!providers!of!CE!by! 3/31/16!and!to!work!with!stakeholders!to!determine!how!to!create!incentives!by! 7/1/17.!The!CEAG!is!also!to!review!information!from!grantees!by!12/31/16.!There!are! no!updates!provided!on!the!progress!on!these!activities.!

5. Ensure!that!there!is!an!increase!in!meaningful!CE!for!each!individual.!Virginia’s! vision!is!to!have!an!array!of!integrated!service!opportunities!available!for!individuals! with!disabilities!and!wants!individuals!to!be!able!to!choose!to!have!services! delivered!to!them!in!the!least!restrictive!and!most!integrated!setting.!!!

STATUS'–)DBHDS!and!the!CEAG!are!reviewing!provider’s!practices!on!collecting!data! and!plan!to!use!NCI!and!QSR!data!on!CE!activities!by!7/1/17.!QMR!staff!will!be!trained! by!10/30/16.!!

The!DBHDS!and!the!CEAG!have!developed!a!robust!definition!of!Integrated!Day! Activities,!which!it!now!calls!Community!Engagement.!!These!definitions!will!be!used!to! describe!this!service!type!in!the!redesigned!waiver.!The!definition!the!plan!offers!of! integrated!day!activities!assures!that!they!are!meaningful,!offered!at!times!to!benefit!the! person!to!have!an!active!communityUbased!daily!routine,!Activities!will!include! community!education!or!training!and!retirement,!recreation!and!volunteer!activities.!

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The!definition!is!outcome!focused.!Integrated!day!activities!must!be!offered!in!the!

community,!facilitate!the!development!of!meaningful!relationships!with!typical!

individuals,!and!facilitate!community!inclusion.!Transportation,!which!is!included,!will! be!a!key!element!to!successfully!offering!these!services.!The!DBHDS!is!to!be!commended!

on!developing!this!comprehensive!definition!of!integrated!day!activities.!

'

I!visited!programs!in!Region!III!on!March!31!and!April!1,!2016.!I!was!able!to!meet!with!the! Program!and!Assistant!Program!Director!at!the!New!River!Valley!CSB!and!interview!two! Support!Coordinators!about!employment!and!community!engagement.!!New!River!Valley!

operates!a!centerUbased!day!program!that!they!are!in!the!process!of!converting!to! community!engagement.!The!individuals!who!are!appropriate!will!be!referred!to!

employment!services.!They!were!very!proud!of!one!of!the!women!they!served!who!was! supported!by!DARS!to!become!gainfully!employed.!She!is!currently!working!in!a!Goodwill!

retail!store!in!Blacksburg!and!no!longer!needs!employment!assistance.!!The!staff!reports! that!competition!with!30,000!Virginia!Tech!students!will!make!finding!a!sufficient!number!

of!jobs!a!challenge.!!

!

The!New!River!Valley!CSB!staff!report!having!already!started!to!increase!communityU integrated!activities!for!individuals!who!are!currently!in!the!centerUbased!programs.!They!

are!taking!advantage!of!the!many!community!offerings!at!nearby!Virginia!Tech!and!through!

volunteer!opportunities.!They!are!working!with!the!Support!Coordinators!and!families!to! explain!the!changes!in!opportunity!for!community!engagement!and!to!develop!plans!that!

reflect!the!unique!needs!and!interests!of!their!program!participants.!!They!are!meeting! some!resistance!or!concern!from!families,!especially!those!who!have!used!the!program!for!

several!years.!Families!are!unsure!of!the!impact!the!lack!of!a!full!day!centerUbased!setting! will!have!on!them.!Their!family!member!will!have!options!for!various!communityUbased!

activities.!These!may!vary!in!duration!and!whether!they!occur!on,!weekdays!or!on!the!

weekend,!Transportation!may!be!added!to!the!daily!schedule.!Fortunately!transportation! will!be!a!funded!service!for!CE!under!the!HCBS!waiver.!I!was!impressed!with!the!creativity!

and!commitment!of!the!lead!staff.!They!believe!they!have!adequate!staffing!and!

transportation!resources!to!make!the!conversion!from!centerUbased!to!integrated!activities.!

They!report!there!will!be!a!core!of!approximately!twenty!individuals!who!will!still!use!the! center!as!a!drop!off!and!pick!up!location.!These!individuals!will!travel!from!the!center!

throughout!the!day!to!engage!in!community!activities!of!their!choice.!

!

The!two!NRV!CSB!Support!Coordinators!I!spoke!with!are!starting!to!see!some!momentum!to! increase!employment!opportunities.!They!report!an!improved!relationship!with!DARS,!with!

assistance!from!DBHDS,!to!set!the!direction!and!expectation!for!prompt!action!on!referrals.!

There!has!also!been!some!success!in!securing!employment.!They!caution!that!the!number!of! referrals!is!small!to!date.!They!report!the!most!significant!challenge!is!family!resistance.!

Families!are!not!always!educated!about!the!impact!of!employment!on!benefits!and,! therefore,!remain!more!comfortable!with!the!certainty!of!sheltered!work.!They!are!not!

always!invested!in!employment!for!their!family!members.!Transportation!to!work!is!a! concern!for!families!as!well.!Families!are!comfortable!with!volunteer!work.!The!Support!

Coordinators!find!that!pairing!employment!with!community!engagement!or!with!inUhome!

supports!positive!are!options!that!will!allow!families!to!accept!the!changes.!There!is!a!need!

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to!increase!the!capacity!of!ESOs!in!the!greater!Blacksburg!area,!which!currently!has!only! two!employment!providers.!! ! The!second!program!I!visited!was!the!Goodwill!in!Roanoke!where!I!toured!the!adult!daily! living!skills,!preUvocational,!and!organized!employment!support!programs.!The!living!skills! program!is!divided!into!two!groups.!One!is!for!17U20!individuals!who!are!medically! involved.!The!other!supports!20U24!individuals!who!present!behavioral!challenges.!All!of! these!individuals!are!funded!through!the!waiver.!The!preUvocational!program!is!also!waiver! funded.!It!serves!twentyUfive!individuals!who!have!participated!for!several!years.!Many!are! close!to!or!of!retirement!age.!!The!employment!support!program!offers!inUhouse!contract! work!to!approximately!20!individuals!who!are!funded!by!DARS.!! ! Currently!only!10%!of!the!individuals!who!are!served!in!either!the!preUvocation!or! employment!support!are!estimated!to!make!minimum!wage.!I!met!with!the!Medicaid! Quality!Coordinator!who!said!that!Goodwill!would!no!longer!pay!subUminimum!wage!in!the! preUvocational!program,!as!of!July!2016.!They!will!be!phasing!it!out!of!the!employment! support!program!as!well,!but!are!awaiting!direction!from!DARS.!Individuals!can!remain! with!Goodwill.!They!will!either!pursue!employment!opportunities!or!community! engagement.!Goodwill!is!using!the!individual!planning!process!to!assist!families!and! individuals!to!determine!the!correct!direction.!There!has!been!reluctance!on!the!part!of! families!and!particular!concern!about!transportation!for!work!since!this!is!not!funded! during!the!first!year!of!the!waiver!redesign.!Goodwill!does!assist!individuals!to!use!public! transportation!wherever!possible.! ! Other!concerns!are!about!the!impact!of!work!on!the!individuals’!benefits!and!the!inability!to! pay!an!individual!who!cannot!produce!at!a!level!or!work!commensurate!with!minimum! wage.!!Goodwill!has!reached!out!to!DARS!for!benefit!information!and!has!conducted! informational!sessions!for!families.!The!agency!is!also!transitioning!its!HCBS!waiver!adult! daily!living!skills!programs!by!the!summer!of!2016.!The!Medicaid!Quality!Coordinator! reports!that!some!of!the!individuals!with!behavioral!challenges!may!be!supported!to!find! employment.!The!other!group!will!most!likely!transition!to!community!engagement.!She! was!very!complimentary!of!the!assistance!the!agency!is!receiving!from!Heather!Norton!at! DBHDS.!Ms.!Norton!has!met!with!them!to!provide!technical!assistance!about!both!CE!and! employment!conversions!and!has!engaged!DARS!to!join!the!planning!process.!! I!also!interviewed!the!Executive!Directors!of!the!Arc!of!Southside!and!of!the! Harrisonburg/Rockingham!Arc.!Both!of!these!agencies!have!conversion!activities! underway.!Individuals!who!have!received!services!in!a!congregate!day!settings!will!be! provided!opportunities!for!community!engagement.!The!Arc!of!Southside!has!already! reduced!its!workshop!from!serving!125!to!90!individuals.!This!has!resulted!from!the! development!of!supported!employment!options.!Other!individuals!will!be!considered!for! community!engagement.!The!Harrisonburg/Rockingham!Arc,!which!has!thirtyUsix! individuals!who!receive!sheltered!work,!is!developing!community!engagement! opportunities.!They!are!engaging!staff!to!help!individuals!to!find!volunteer!activities.!They! have!needed!to!increase!staffing,!address!the!inaccessibility!of!the!community;!change! transportation!vehicles,!and!help!individuals!build!their!stamina!to!engage!in!a!full!day!in!

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their!communities.!They!both!appreciate!the!leadership!of!DBHDS!and!note!that!DARS!is!
 more!helpful!on!the!supported!employment!side.!!
 !
 Conclusion!and!Recommendations:!!!
 The!Commonwealth!is!not!in!compliance!with!III.C.7.a!and!is!also!not!in!compliance!with!
 III.C.7.b.i!because!it!does!not!have!a!comprehensive!implementation!plan!and!it!still!is!
 unable!to!offer!its!consumers!integrated!day!activities.!!
 !
 It!is!encouraging!to!discover!the!extent!of!the!work!that!has!occurred!over!the!past!year.!!
 The!Commonwealth!has!defined!services!that!will!be!offered!under!community!
 engagement.!These!include!creating!a!robust!set!of!services!in!the!redesigned!waiver,!
 actively!engaging!the!CEAG,!developing!a!policy!statement,!and!issuing!a!RFP!to!begin!to!
 address!the!existing!limited!capacity.!The!DBHDS!is!also!commended!for!its!resolve!to!keep!
 this!effort!active!without!its!employment!coordinator!who!had!worked!on!this!initiative.!
 Providers!are!very!positive!about!the!consultation,!technical!assistance!and!responsiveness!
 of!Ms.!Norton!representing!DBHDS.!The!department!has!done!a!nice!job!of!engaging!in!more!
 specific!planning!of!its!implementation!of!Community!Engagement.!!
 !
 It!will!be!helpful!for!the!Commonwealth!to!establish!baseline!data,!to!develop!targets!(as!
 stated!in!the!draft!Community!Inclusion!Policy),!and!to!implement!a!statewide!training!plan!
 with!the!assistance!of!the!CEAG.!
 !
 VII.!Review!of!the!SELN!and!The!Inclusion!of!Employment!in!the!PersonTCentered!ISP! Planning!Process! !
III.C.7.b.)The)Commonwealth)shall:) # Maintain)its)membership)in)the)SELN)established)by)NASDDDS.) # Establish)a)state)policy)on)Employment)First)(EF))for)this)target)population)and)
include)a)term)in)the)CSB)Performance)Contract)requiring)application)of)this)policy.)) # The)principles)of)the)Employment)First)Policy)include)offering)employment)as)the)first)
and)priority)service)option;)providing)integrated)work)settings)that)pay)individuals)
minimum)wage;)discussing)employment)options)with)individuals)through)the)person>
centered)planning)process)at)least)annually.) # Employ)at)least)one)Employment)Services)Coordinator)to)monitor)the)implementation)
of)the)employment)first)practices.)

!
 Virginia!has!maintained!its!membership!in!the!SELN!and!issued!a!policy!on!Employment!
 First.!DBHDS!employed!the!Employment!Services!Coordinator!until!his!resignation!in!
 January!2016.!The!agency!is!currently!recruiting!applicants!to!hire!a!replacement.!DBHDS!
 anticipates!hiring!two!individuals!who!will!share!responsibilities!for!employment!and!
 autism!services.!This!is!intended!to!allow!staff!to!be!more!regionally!based!and!to!be!
 available!to!more!stakeholders.!This!will!allow!more!efficient!provision!of!assistance!to!
 providers!who!are!transitioning!and!the!provision!of!regional!based!training.!I!applaud!the!
 department’s!effort!to!increase!its!leadership!capacity!for!employment.!Hopefully,!DBHDs!
 will!be!able!to!find!and!attract!candidates!who!posses!the!requisite!backgrounds!in!both!


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autism!and!employment.!The!Commonwealth!has!maintained!its!membership!in!the!SELN,!
 which!the!Community!Inclusion!Policy!will!require,!once!it!is!finalized.!
 !
 !The!Settlement!Agreement!requires!the!Commonwealth!to!ensure!that!individuals!in!the!
 target!population!are!offered!employment!as!the!first!day!service!option.!DBHDS!includes!
 this!requirement!expectation!in!its!Performance!Contracts!with!the!CSBs!for!FY2015!and!
 FY2016.!!
 !
 !The!CSB!Performance!Contract!for!FY2015!and!2016!requires!the!CSBs!to!monitor!and!
 collect!data!and!report!on!these!performance!measures:!!
 !

I.C.!The!number!of!employment!aged!adults!receiving!case!management!services!from!
 the!CSB!whose!case!manager!discussed!integrated,!communityUbased!employment!
 with!them!during!their!annual!ISP!meeting,!and!
 !
 I.D.!The!percentage!of!employmentUaged!adults!in!the!DOJ!Settlement!Agreement!
 population!whose!ISP!included!employmentUrelated!or!employmentUreadiness!goals.!
 From!the!small!sample!of!ISPs!I!reviewed!there!is!no!indication!that!CSBs!are!in!
 compliance!with!the!Performance!Contract!regarding!employment!planning!for!
 members!of!the!target!population!or!with!the!requirement!to!include!employment!
 related!or!readiness!goals!in!the!ISP.!!
 !
 The!Commonwealth!expects!that!100%!of!individuals!with!I/DD!with!a!case!manager!will!
 have!“employment!services!and!goals!developed!and!discussed!at!least!annually”!by!
 12/30/15,!and!that!35%!of!these!individuals!will!have!an!employment!or!employmentU
 related!goal!in!the!Individual!Service!Plan!(ISP).!The!October!2015!Employment!Report!
 includes!the!following!information!from!June!2015!data!regarding!these!goals:!
 !
 • ISP!meetings!were!conducted!for!4.983!adults!during!the!sixUmonth!reporting!
period.!DBHDS!reports!that!4,442!(89%)of!these!individuals!had!a!discussion!with! their!team!about!integrated!employment!
• !A!total!of!1,825!(37%)!of!the!individuals!that!had!ISP!meetings!had!an!employment! or!employmentUrelated!goal!in!their!ISP.!!

The!April!18,!2016!Employment!Report!did!not!include!these!data.!However,!DBHDS!was! able!to!send!me!the!raw!data!for!my!analysis.!!What!is!striking!is!that!annual!ISP!meetings! were!only!conducted!for!2,579!individuals!out!of!the!14,327!individuals!on!CSB!caseloads.! This!is!only!18%!of!individuals!that!CSBs!serve.!One!would!project!that!approximately!50%! of!these!individuals!would!have!had!an!annual!meeting!in!the!sixUmonth!period!of!July!–! December!2015.!Of!the!individuals!who!had!an!annual!meeting,!employment!was!reported! discussed!with!2,011!of!them,!which!is!78%.!The!CSBs!reported!that!employment!goals! were!set!for!894!of!these!individuals.!It!is!impossible!to!support!that!the!CSBs!met!the! targets!with!so!few!individuals!reported!as!having!an!annual!meeting.!Even!of!those!who! did!have!an!annual!meeting!the!goal!of!100%!engaging!in!a!discussion!about!employment! was!not!met.!Eight!CSBs!did!not!report!that!their!Case!Managers!conducted!any!annual! meetings.!

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!

Since!the!spring!2015!review!instructions!have!been!issued!to!the!CSBs,!the!requirement!is!


in!the!performance!contract.!The!ISP!format!was!changed!to!place!greater!emphasis!on!
 employment!discussion!and!goal!setting.!The!CSB’s!did!determine!and!selfUreport!whether!


the!goals!they!were!involved!in!setting!had!been!met!in!both!June!and!December!2015.!


Heather!Norton!reported!that!the!DBHDS!Case!Management!Coordinator!did!review!thirty!


randomly!selected!records.!DBHDS!also!reviews!the!records!that!the!Independent!Reviewer!
 and!his!Individual!Services!Review!teams!review.!Review!of!these!records!is!also!part!of!the!
 Quality!Service!Review!that!are!performed!by!Delmarva.!DBHDS!acknowledges!that!the!


quality!of!the!employment!discussions!can!be!improved.!It!plans!to!identify!best!practices!
 across!the!CSBs!and!to!share!this!information!with!a!goal!to!strengthen!the!employment!


discussion!between!Case!Managers,!individuals!and!other!team!members.!The!DBHDS!
 should!provide!the!results!of!these!quality!reviews!for!future!employment!service!reviews.!


The!Commonwealth!is!not!in!compliance!with!III.C.7.b.)The!Commonwealth!is!not!meeting!
 the!requirement!to!have!employment!addressed!in!the!individual!planning!process!through!
 meaningful!discussion!and!goal!setting.!


!


The!Engagement!of!the!SELN:!The!VA!SELN!Advisory!Group!was!established!to!assist!
 DBHDS!to!develop!its!strategic!employment!plan,!to!set!the!targets!for!the!number!of!
 individuals!in!the!target!population!who!will!be!employed,!and!to!provide!ongoing!


assistance!to!implement!the!plan!and!the!Employment!First!Policy.!DBHDS!changed!the!
 structure!and!membership!of!its!Advisory!Group!during!the!summer!of!2015.!The!SELN!


Advisory!Group!was!also!renamed!the!Employment!First!Advisory!Group.!Its!members!
 were!appointed!for!twoUyear!terms:!August!2015U!July!2017.The!EFAG!has!twentyUsix!


members.!It!includes!selfUadvocates,!family!members,!advocacy!organization!
 representatives,!CSB!staff,!state!agency!administrators,!educators,!and!employment!
 providers.!DBHDS,!DMAS,!DARS,!and!VDOE!are!the!state!agencies!that!are!represented.!The!


Advisory!Group!has!several!subUcommittees:!membership,!training!and!education,!policy,!
 data!and!interagency!collaboration.!I!reviewed!the!EFAG!meeting!minutes.!These!meetings!


were!well!attended.!There!were!reports!from!each!subUcommittee,!except!the!interagency!


subUcommittee.!This!subcommittee!was!still!in!the!process!of!forming!as!of!October!2015.!!


DBHDS!has!formalized!the!work!of!the!Community!Engagement!Advisory!Group!!(CEAG).!It!
 has!a!membership!of!twentyUthree!individuals,!which!includes!representatives!of!all!of!the!


stakeholder!groups.!VDOE!does!not,!however,!have!a!representative!unlike!with!the!former!


Employment!First!AG.!Members!have!also!been!appointed!for!twoUyear!terms.!Two!subU


committees,!policy!and!training,!have!been!established:.!DBHDS!provided!minutes!from!the!
 meetings!held!in!October!2015!and!in!December!2105,!and!from!AG!and!subUcommittee!


reports!from!meetings!in!February!2016.!The!AG!has!reviewed!the!DBHDS!plans,!assisted!


with!the!creation!of!service!definitions!and!are!active!planning!training.!They!have!
 reviewed!and!contributed!input!in!creating!the!timelines!to!increase!the!number!of!


individuals!that!participate!in!community!engagement!
 !


The!two!AGs!remain!active!in!their!advisory!capacities!to!DBHDS!regarding!its!employment!
 initiative.!!I!have!reviewed!the!minutes!of!the!meetings!of!the!SELN!and!its!subUcommittees!


and!interviewed!five!members!who!represent!a!variety!of!stakeholders.!


!


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1.!The'operation'of'the'SELN'and'the'opportunity'afforded'its'members'to'have!input'
 into'the'planning'process.!All!members!who!I!interviewed!report!that!the!EFAG,!the!new!


name!for!the!SELN,!has!made!significant!progress!since!restructuring!its!membership!in!the!
 summer!of!2015.!Members!appreciate!the!organization!and!structure!that!Heather!Norton!
 and!Adam!Sass!have!brought!to!the!committee!during!the!past!several!months.!Ms.!Norton!


has!continued!to!support!the!group!since!Mr.!Sass!‘departure!in!January.!EFAG!members!


report!that!the!meetings!and!agendas!are!well!structured.!They!also!appreciate!more!
 regularly!receive!reports!and!data!with!time!to!review!them!prior!to!meeting!discussions.!
 Members!report!that!the!opportunity!for!meaningful!input!has!improved.!


!
 2.!Improving'employment'dataUThe!EFAG!continues!to!contribute!significant!input!to!the!


department’s!initiative!to!improve!the!data!that!it!has!about!employment.!The!Data!
 Committee!‘s!input!to!improve!data!collection!with!ESOs!was!used.!This!resulted!in!a!


dramatically!improved!provider!response!rate!has!dramatically!from!44%!last!spring!to!
 95%!in!June!2015.!The!higher!response!rate!was!sustained!with!93%!reporting!in!
 December!2015.!Members!report!much!greater!faith!in!the!accuracy!of!these!data.!These!


data!can!be!used!to!determine!next!steps!in!their!efforts!to!promote!greater!employment!for!


individuals!with!ID!ad!DD.!
 !
 3.'TrainingU!Both!the!EFAG!and!the!CEAG!have!active!training!committees,!which!assist!


DBHDS!to!plan!training!for!various!stakeholder!groups.!Numerous!trainings!are!set!up!for!
 the!waiver!redesign.!These!trainings!will!occur,!which!have!been!provided!in!the!past,!will!


occur!throughout!the!spring!of!2016.!All!of!the!committee!members!who!I!interviewed!give!
 credit!to!the!training!Heather!Norton,!DBHDs,!and!Donna!Bonessi,!DARS,!have!provided!


throughout!the!state!to!employment!service!organizations!and!to!other!providers!that!are!
 undertaking!the!transition!process!to!supported!employment!and/or!to!community!
 engagement.!


!
 4.!Reviewing'the'employment'targets'and'waiver'redesign'plansU!!!EFAG!members!report!


that!DBHDS!is!engaging!them!in!the!review!of!the!targets.!The!DBHDS!reviewed!this!
 information!with!the!EFAG!as!recently!as!April.!EFAG!members!have!provided!input!to!the!


WDAC!regarding!the!employment!related!service!definitions.!They!also!report!that!DBHDS!
 has!kept!them!more!abreast!of!the!development!of!the!new!and!redesigned!waivers!and!


issues!with!implementation.!!


!


5.!Review'of'the'Community'Engagement'PlanU!DBHDS!has!created!a!second!Advisory!
 Committee!to!provide!recommendations!regarding!the!implementation!of!the!plan!for!


Integrated!Day/Community!Engagement!Activities.!All!members!who!were!interviewed!


think!this!is!a!positive!step.!The!CEAG!now!has!input!into!policy!development!and!into!
 education!and!training.!This!allows!the!EFAG!to!devote!its!time!and!energies!to!the!


implementation!of!the!Employment!Plan.!The!CEAG!is!very!active!and!meets!regularly.!It!
 has!policy!and!training!subUcommittees,!which!are!engaged!with!DBHDs!in!setting!policy!


and!developing!materials!for!training!events.!Members!want!to!produce!a!video!that!will!
 include!testimonials!from!individuals!involved!in!community!activities!that!are!inclusive!as!


a!way!to!more!clearly!demonstrate!what!community!engagement!is!about.!


!


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6.'Interagency'InitiativesU!the!initiative!shared!in!the!last!report!has!not!been!planned.! This!initiative!was!to!create!collaboration!among!DARS,!DOE!and!DBHDS!to!work!with!a! rural!school!district!to!improve!the!employment!readiness!of!its!students.!However,!there! are!positive!interagency!initiatives!between!DARS!and!DBHDS!that!will!enhance!the! employment!initiative.!First!among!them!is!the!data!sharing!that!has!been!occurring!for!the! past!two!reporting!periods.!DARS!data!are!both!comprehensive!and!accurate.!These!data! illustrate!the!larger!universe!of!individuals!with!ID!and!DD!in!Virginia!who!are!employed.! The!members!of!the!EFAG!have!a!positive!view!of!the!coUtraining!that!is!being!provided!by! Ms.!Norton!of!DBHDs!and!Ms.!Bonessi!of!DARS.!DBHDS!and!DARS!are!also!collaborating!on! using!DARS!ID/DD!Resource!Specialists!and!two!positions!that!DBHDS!plans!to!devote!to! employment!to!insure!that!the!entire!state!has!employment!expert!resources.!These! resources!would!be!more!readily!available!regionally!to!work!with!community!partners,! DARS!staff,!and!providers!to!improve!employment!outcomes!for!this!population.! !The!Employment!First!Advisory!Group!has!made!other!related!recommendations!to! monitor!more!specific!information!about!individuals!with!ID/DD!who!are!receiving.!These! recommendations!are!to!gather!and!segment!data!to!track!employment!services!by:! !
• Individuals!granted!new!waiver!slots! • Individuals!discharged!from!training!centers!who!start!receiving!community!

services!
 • Individuals!who!shift!employment!services!within!a!waiver!and!who!shift!from!
centerUbased,!nonUintegrated!day!services!to!integrated!employment!services!
The!Employment!First!Advisory!Group!will!develop!targets!for!these!subgroups!after!
 DBHDS!is!able!to!collect!and!share!baseline!data.!
 !
 Conclusion'and'Recommendation:!The!DBHDS!continues!to!meet!the!Settlement!
 Agreement!requirements!to!maintain!the!SELN,!but!is!not!in!overall!compliance!with!
 III.C.7.b.!It!cannot!produce!the!data!from!the!CSBs!to!determine!compliance!with!
 implementing!the!Employment!First!initiative!since!June!2016.!Only!18%!of!the!ISP!annual!
 meetings!were!reported.!
 !

VIII.!Regional!Quality!Councils!
III.C.7.c. Regional Quality Councils, [described in Section V.D.5 below,] shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly to the Regional Quality Councils and the Quality Management system by the providers. Regional Quality Councils shall consult with those providers and the SELN regarding the need to take additional measures to further enhance these services.
III.C.7.d. The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.

DBHDS shared minutes of the Regional Quality Councils’ meetings that occurred in Quarter 1 FY16 and Quarter 2 FY16. The DBHDS representatives, who also are SELN members, attended

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the Q1 meetings. The RQC’s reviewed the number of individuals employed and the length of time in employment targets set for 2015, the state’s achievement in reaching these targets, and the future targets for FY16-19. The RQC’s were also informed of the supplemental targets set for individuals’ teams to discuss employment options and to set employment goals. All five regions discussed the number of individuals employed target and barriers and voted in favor of the multiyear target plan.

The target for increasing the number of individuals in the waiver in ISE was not progressing as projected. This was not discussed by the RQCs. Six months after the employment review with the RQC’s the Commonwealth exceeded the target for individuals sustaining employment for twelve months or more.

Conclusions and Recommendations: DBHDS is in compliance with III.C.7.c. and d.

The RQC’s should discuss additional measures to be taken by DBHDS or by the SELN/Employment First Advisory Group to improve progress toward achieving future targets for the number of individuals who are employed in integrated settings.

DBHDS!has!made!significant!gains!during!this!reporting!period!in!its!data!collection!and!in!

its!efforts!to!prepare!the!system!to!implement!community!engagement.!It!has!seen!

increases!in!the!number!of!individuals!who!are!employed.!DBHDS!is!working!with!many!

providers!to!assist!them!to!transition!individuals!from!workshops!and!centerUbased!day!

habilitation!to!employment!or!community!engagement.!It!is!still!a!concern,!however,!that!

there!is!still!no!availability!of!integrated!day!activities/Community!Engagement,!for!

individuals!on!the!HCBS!waivers.!DBHDS!also!needs!to!ensure!that!the!data!reported!by!the!

CSBs!is!accurate!and!that!Case!Managers!are!developing!and!having!meaningful!discussions!

about!employment!goals!at!least!annually.!This!expectation!should!be!set!for!DD!Case!

Managers!as!well!in!July!2016!when!case!management!for!these!individuals!becomes!the!

responsibility!of!the!CSBs.!

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IX.!SUMMARY!

Table'3'Summary'of'Compliance'

SA!Element!

Compliance!

Status!

III.C.7.a!

Not!Met!

Continued!

III.C.7.b!

Not!Met!

Continued!

III.C.7.b.i.!

Not!Met!

Continued!

III.C.7.b.i.A!

Met!

Continued!

III.C.7.b.i.B.1.a!

Met!

Achieved!

III.C.7.b.i.B.1.b!

Met!

Achieved!

III.C.7.b.i.B.1.c!

Met!

Achieved!

III.C.7.b.i.B.1.d!

Met!

Continued!

III.C.7.b.i.1.e!

Met!

Continued!

III.C.7.b.i.B.2.a!

Not!Met!

Continued!

III.C.7.b.i.B.2.b!

Met!

Achieved!

III.C.7.c!

Met!

Achieved!

III.C.7.d!

Met!

Achieved!!

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APPENDIX F

INDEPENDENT HOUSING
 By: Patrick Rafter, CEO
 Creative Housing Inc.

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Date: May 12, 2016

To: Donald Fletcher, Independent Reviewer

From: Patrick Rafter, CEO, Creative Housing, Inc.

Re: Housing Plan Review

At your request, I reviewed the current status of Virginia’s Plan to Increase Independent Living Options. This memo summarizes observations made this week as a follow up to my visits in November of 2014 and November of 2013.
I reviewed associated progress reports and staff meeting minutes. I also discussed the plan progress directly with team members involved in the plan development and implementation in my latest visit. In addition, I met with housing advocates and solicited their “ground level” assessment of the Plan implementation.
Progress Noted:

In my two previous reviews, I noted “I had significant concerns about the Plan’s actual capacity to develop community based housing for the target population”. My concerns at the time were born out in my last review of 2014 when at the time only two new individuals had been provided independent housing in the target population.

My review this week shows a different and positive housing development picture. Information on the DBHDS Independent Housing Outcomes Table (3/29/16) indicates that since July of 2015, 91 additional individuals in the target population are now living in their own homes bringing the total number of people in the target population living in their own home to 434. This puts DBHDS ahead of its Outcome Timelines projections (Updated September 2015). In that report DBHDS projected 393 adults living independently by June of 2016.
An additional 200 “rental assistance resources” are now also set-aside for the target population.

Much of the progress shown proceeds from Virginia Housing Developmental Authority and Public Housing Authorities ability and willingness to set aside rent subsidies for the target population. This is a welcome collaboration in that it readily provides housing options within an up and running state program. Also, the Housing Authority’s adjustments made to the Low Income Housing Tax Credit Program provides incentives for developers to serve the target class which, I was informed, has the long term capability of yielding 40 – 75 units of what could be accessible units.

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Recommendations:
Provider Capacity: It has been my experience that a strong provider system is the key element in the development of a scattered site and community integrated residential system. As DBHDS “goes to scale” and moves to rapidly expand its independent housing program, I urge that it also focus on assisting the provider industry in adapting new business models that can best serve individuals in the independent living program. Turnover, staff training, staff supervision, emergency back up, and quality assurance each take on more critical dimensions when clients are scattered through a community. In almost every discussion during my visit, the existing provider capacity to provide scattered site supports emerged as a concern. As things now stand, I would not be surprised that some individuals eligible for the existing rent subsidies are not able to obtain the necessary supports for them to live independently.
The Independent Living Options Action Plan lists several provider training objectives which may have some positive impact on the issue. I am suggesting that DBHDS take a more in-depth look at provider development, engage forward leaning providers in a system review, and recognize that an almost new industry needs to be developed to support scattered site housing for people with intellectual and developmental disabilities.
Service Coordinator/Case Manager Orientation: Central to the development of an independent living program for the target population are well-rounded case managers. These case managers should not only be able to wrap services around an individual, but also have an understanding of both the local housing market and the landlords willing to partner with the program. If this combined skill set is lacking in local case management, individuals who could be well served in independent living will be directed to congregate living since that has been the historic case management “default response.” While I did not examine this issue thoroughly during my visit, there was anecdotal evidence of individuals in the target population not being presented with an independent housing option. I would recommend that DBHDS staff evaluate the training and case management re-orientation process. Case Managers have the most critical role in the blending of housing and supports and the eventual growth of this important program.
I appreciate the willingness of all parties during my visit to be generous with their time and candid in their discussions with me. I am also happy to make myself available to DBHDS
staff if additional discussion would be useful to them.!
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APPENDIX G


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LICENSING AND INVESTIGATION REQUIRMENTS!

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by: Ric Zaharia, Ph.D.

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Report!to!the!Independent!Reviewer! United'States'v.'Commonwealth'of'Virginia'
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!
 Licensing!and!Investigation!!

Requirements!!
 !
 !

By!
 !

Ric!Zaharia,!Ph.D.!! Consortium!on!Innovative!Practices!
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!!!April!30,!2016

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Introduction
At the request of the Independent Reviewer, we evaluated progress at the Office of Licensing Services (OLS) and the Office of Human Rights (OHR) towards expectations set in the Settlement Agreement (SA). This review is also based on our previous reviews, findings, and conclusions.
The Commonwealth’s primary system for regulating the conduct of provider agencies is the Office of Licensing Services (OLS) and the Office of Human Rights (OHR). Therefore, the effective functioning of OLS and OHR in accordance with the requirements of the Settlement Agreement is critical to the goal of improving the lives of people with intellectual and developmental disabilities in Virginia.
The OLS system is also the primary compliance mechanism for Community Service Board (CSB) performance under their contracts with the Commonwealth for the Case Management function. The Department of Behavioral Health and Developmental Services (DBHDS), however, has, implemented various other strategies to accomplish the case management monitoring responsibilities outlined in the Settlement Agreement (SA), such as the Supports Efficiency Checklist, the Internal Auditors Operational Reviews, and DBHDS Quality Management staff focused on case management. The status of these strategies will be evaluated.
Finally, since OLS and OHR operate in tandem in identifying and addressing abuse and neglect, this review will again assess the quality of OHR investigations, provider investigations of allegations of abuse and neglect, and the effectiveness of the relationship between the two Offices. It will also assess the coordination between DBHDS and DSS/APS/CPS (Department of Social Services/Adult Protective Services/Child Protective Services) when APS/CPS investigates allegations of abuse and neglect of individuals who live in settings funded by DBHDS.
DBHDS has taken a huge step forward in its development of a Data Warehouse, a central repository of data and data analytics from one or more disparate sources. Evidence of the capabilities of the Data Warehouse is present in data reports received for the OLS/OHR review project.
The Compliance Table on the following page recaps our conclusions as to DBHDS success at meeting the terms of these selected elements of the Settlement Agreement.

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Settlement! Agreement!
Section! III.C.5.d! Case! Management! V.C.2! Abuse!and! Neglect! Investigations! V.C.3! Abuse!and! Neglect! Investigations!
V.C.6! Abuse!and! Neglect! Investigations! V.G.1! Licensing! V.G.2! Licensing!
!V.G.3! Licensing!
!IX.C!! Implementation!
!

Compliance!Table! !
Settlement!Agreement!Language!
The'Commonwealth'shall'establish'a'mechanism'to'monitor'compliance'with' performance'standards.'
The'Commonwealth'shall'have'and'implement'a'real'time,'web<based'incident' reporting'system'and'reporting'protocol.'''
The'Commonwealth'shall'have'and'implement'a'process'to'investigate'reports'of' suspected'or'alleged'abuse,'neglect,'critical'incidents,'or'deaths'and'identify' remediation'steps'taken.'The'Commonwealth'shall'be'required'to'implement'the' process'for'investigation'and'remediation'……in'effect'on'the'effective'date'of'this' Agreement,'and'shall'verify'the'implementation'of'corrective'action'plans'required' under'these'Rules'and'Regulations.' If'the'Training'Center,'CSBs,'or'other'community'provider'fails'to'report'harms'and' implement'corrective'actions,'the'Commonwealth'shall'take'appropriate'action' with'the'provider'pursuant'to'the'DBHDS'Human'Rights'Regulations….'
The'Commonwealth'shall'conduct'regular,'unannounced'licensing'inspections'of' community'providers'serving'individuals'receiving'services'under'this'Agreement.' Within'12'months'of'the'effective'date'of'this'Agreement,'the'Commonwealth'shall' have'and'implement'a'process'to'conduct'more'frequent'licensure'inspections'of' community'providers'serving'individuals'under'this'Agreement.' Within'12'months'of'the'effective'date'of'this'Agreement,'the'Commonwealth'shall' ensure'that'the'licensure'process'assesses'the'adequacy'of'the'individualized' supports'and'services'provided'to'persons'receiving'services'under'this'Agreement' in'each'of'the'domains'listed'in'Section'V.D.3'above'and'that'these'data'and' assessments'are'reported'to'DBHDS.'' The'Commonwealth'shall'maintain'sufficient'records'to'document'that'the' requirements'of'the'Agreement'are'being'properly'implemented….”'
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Compliance! Rating!

Page!

NonT!Compliance!

6!

Compliance!

11!

NonTCompliance! 11!

NonTCompliance! 11!

Compliance!

8!

Compliance!

8!

NonTCompliance!

9!

NonTCompliance!

6!

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! I. Case!Management!
Settlement Requirement: III.C. 5. Case Management
d. The Commonwealth shall establish a mechanism to monitor compliance with performance standards.
! Methodology: ● Reviewed current OLS Office Protocol; reviewed OLS Guidance for Selected Licensing Requirements (2/15); ● Reviewed minutes and other communication and work products of groups; ● Reviewed CSB and other surveys for CY 2015 where compliance problems with ID and DD case management requirements were identified; ● Reviewed available Data Warehouse reports for CSB licensing results around case management requirements; ● Reviewed Internal Auditor reports completed in CY 2015; ● Reviewed actions taken in CY 2015 by DBHDS Quality Management Section; ● Reviewed the Quality Services Review Support Coordinator Interview and the Support Coordinator Record Review tools.

Findings: OLS revised its Office Protocol, which guides Licensing Specialists in their conduct of the work of Licensing, in February 2016. The latest version continues the improvements to the 2015 version, vis-à-vis areas to be assessed (V.D.3) and monthly follow-up on Corrective Action Plans (CAPs) until conditions are corrected.

Licensing regulations (12VAC35-105-10 to 105-1410) align generally with the case management expectations in the Agreement. The regulations do not align specifically as to the case management expectations detailed in the Agreement (i.e. regularized face to face meetings with the individual being served, enhanced visit frequency, identifying risks to the individual, offering choice among providers, assembling professionals and non-professionals who provide supports, etc.). DBHDS takes the position that other mechanisms of quality improvement address these issues. In addition, the OLS Guidance for Selected Licensing Requirements (2/15) details the evidence expected by Licensing for case management and aligns with the SA but appears solely reliant on case manager interviews and documentation review. This approach overlooks an examination of individual needs, supports, and outcomes. For example, 12VAC35-105-675 requires that: “The provider shall review the ISP at least every three months from the date of the implementation of the ISP or whenever there is a revised assessment ...The provider shall update the goals, objectives and strategies contained in the ISP, if indicated, and implement any updates made.” This regulation generally includes the case manager but when OLS reviews only the case management record, and not the experience and status of the individual, there is no way to specifically test the case manager’s fulfillment of the requirement “... to make timely additional referrals, service changes, and amendments to the plans as needed (SA III.C.5.b)”.

During 2015 there were more than 100 investigations/inquiries into complaints about sixteen (16) CSBs. However, by report, only one of these resulted in a CAP. The implication is that

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in a review of 100 case management records no documentation deficiencies were identified. Based on our review of a selected sample of twenty-one (21) ID Waiver cases (See Case Management Requirements report, April 2016) across four CSBs, at least two of four (50%) CSBs performed significantly below DBHDS performance targets (20 - 23% discrepancies) and on case management performance items. These performance concerns should have resulted in one or more citations for case management.

OLS piloted the Supports Efficiency Checklist approach to CSB case review during late 2014 and early 2015. At that time it was terminated when DBHDS initiated the Quality Service Reviews (QSRs). It appears that the DBHDS also discontinued the use of the Supports Efficiency Checklist because most providers during the pilot period typically had “no verifiable data” to support activities towards outcomes. By dropping the use of the Supports Efficiency Checklist the OLS returned the focus of its licensing review process of CSB case management services to documentation. This more narrow approach in the review of CSB case management services results in problems being overlooked, substandard performance not being discovered, and opportunities for improvement being missed. Again, our review of twenty-one (21) cases in a separate study during this review period found that there are isolated problems that do not appear to be identified through current OLS reviews of CSB case management because of this focus primarily on documentation.

The Internal Auditors Operational Reviews specific to case management align with the SA. The reported sampling size of fifteen (15) individuals with ID served at each CSB appears adequate, although two of the Reviews reported results on as few as eight. Management Responses from CSBs are required for deficiencies that are noted. However, only a few Operational Reviews are conducted in a year (five were issued in 2015), which suggests that for all CSBs to be reviewed, it could be eight to nine years before each of the forty CSBs is reviewed. Given the rate at which the quality of case management services can improve or decline and the frequency of change in case management practice (e.g. a new ISP was rolled out before two of these reviews and after three of these reviews), the Operational Review every eight or nine years can only be viewed as a supplement to the needed and required case management monitoring function.

When the Quality Service Reviews (QSRs) were initiated, DBHDS appears to have also discontinued the Quality Management Section’s use of technical assistance teams to support CSB case management functioning as part of the 360 review. The templates for the QSR Support Coordinator Interview and the Support Coordinator Record Review align generally with SA domains (V.D.3) and should help surface case management issues at the CSB level. The challenge will be to reliably assess case manager performance and then to translate shortcomings identified in QSRs into formal follow-up and corrective actions by OLS or some other entity. The SA envisions the product of these Reviews being used to “improve practice and the quality of services” but our studies have found (and OLS’s experience is) that many problematic providers will ignore or give short shrift to this type of feedback unless they are held to a plan of action and follow-up.

OLS does not regularly compile the results of licensing reviews into a report on trends

related to compliance patterns across CSBs. The Data Warehouse capability that now exists

within DBHDS gives OLS a tremendous ability to assess the health of the system vis-à-vis

CSB performance.

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Conclusions: The Commonwealth is not currently in compliance with III.C.5.d, the requirement to have a mechanism to monitor CSB compliance with performance standards. The Commonwealth is also not currently in compliance with Section IX.C, which requires that there be “…sufficient records to document that the requirements of the Agreement are being properly implemented…”

Recommendations to achieve compliance:
 OLS should create a supplement to the case management checklist that operationalizes the
 expectations of the Agreement. This supplement should be outcome focused (versus
 documentation focused) and specifically include probes of: identifying risks to the individual,
 offering choice among providers, assembling professionals and non-professionals who
 provide supports, modifying the ISP when needed, etc.


OLS should require Licensing Specialists to assess case management services while they are examining services at the individual and provider level. The root cause of service delivery problems is often the poor coordination of services, the absence of monitoring by an outside party, or the absence of leadership/advocacy on behalf of the individual.

OLS should compile an annual narrative trend report on licensing results for case management, using information now available in the Data Warehouse. Detecting and reporting patterns and frequencies in the results of licensing reviews across CSBs ensures system improvements are discovered and identified.

! II. Provider!Licensing!
Settlement Requirement:
 V.G.1-3
 V. Providers Quality
G. Licensing 1. The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement. 2. Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals under this Agreement, including: a. Providers who have a conditional or provisional license; b. Providers who serve individuals with intensive medical and behavioral needs as defined by the SIS category representing the highest level of risk to individuals; c. Providers who serve individuals who have an interruption of service greater than 30 days; d. Providers who serve individuals who encounter the crisis system for a serious crisis or for multiple less serious crises within a three-month period; e. Providers who serve individuals who have transitioned from a Training Center within the previous 12 months; and f. Providers who serve individuals in congregate settings of 5 or more individuals. 3. Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.
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Methodology: ● Reviewed minutes and other work products of groups; ● Reviewed deliverables in Licensing Business Process Modeling Project (Hyzer, 2015); ● Reviewed current OHR protocols, procedures and operating guidelines; ● Reviewed OLS Supports Efficiency Checklist data from CY 2015; ● Reviewed provider surveys for CY 2015 in which DBHDS identified compliance
problems; ● Reviewed any available summaries or trend reports for provider licensing results; ● Reviewed OLS use of provisional licensing and other available tools to sanction
providers; ● Reviewed proposed draft of revised Rules and Regulations for Licensing Providers (6/15); ● Interviewed OLS and OHR leadership and staff, in order to clarify DBHDS
organization structure, changes, and training. ! Findings: Licensing regulations (12VAC35-105-10 to 105-1410) align generally with the expectations in the Agreement. Licensing protocols (checklists) align generally with the Licensing regulations. The Licensing strategy of interviewing staff and clients, in order to assess whether actual services have been provided and whether the expectations of the Licensing regulations and the Agreement have been achieved, is still unstructured. The lack of structure to these interview leads to wide variation in what Licensing Specialists examine.
There is renewed energy and activity under new leadership at OLS, which has completed a business mapping process, implemented enhanced training opportunities, and generated analytics from the Data Warehouse. The Licensing reviews that were examined for this study include clear statements of provider problems, when problems were identified. These OLS reviews also included corrective action plans that were related to the problems that were identified.
OLS also provided a listing of twenty-one ID provider agencies that had officially closed one or more sites in 2015; a provider decision to self-exit is a bona fide but insufficient quality management strategy, since these “closings” will often be a site the provider agency is not using or a service site where conditions, staffing, etc., have seriously deteriorated.
Reports supplied by OLS, and verified on their provider search web page, suggest that only one provider was placed on provisional status during 2015, which is less than the seven placed on provisional status in 2014. Further, one provider, who had been placed on provisional status for six months in 2014, received critical reviews in December of 2015 and in January 2016 for a number of repeat citations and for citations of ‘systemic noncompliance’; as of March 2016 this provider was not placed on provisional status and further sanctions had not been applied. OLS cited another provider, while on provisional status, for numerous financial irregularities (e.g. issuing checks for staff payroll knowingly having insufficient funds, etc.) with no consequences beyond another CAP. This provider was removed from provisional status soon after these citations but was subsequently cited for

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repeat violations. Following these citations this provider was not placed on provisional status, was not otherwise sanctioned, and is not listed on the roster of “closed” agencies.
The review of a sample of ad hoc OLS investigations suggests appropriate attention to detail and fact gathering. Investigations that reveal regulatory compliance problems (in our view too few based on our own studies) may evolve into corrective action plan requirements of the provider. Licensing Specialists verify and follow-up within forty-five (45) days on Corrective Action Plans.
Although OLS does not regularly compile the results of licensing reviews, report trends and analyze patterns across providers, OLS now has access to the Data Warehouse and its information, where there is a rich data mine for system improvements.
DBHDS has proposed revisions to its Rules and Regulations for Licensing Providers during the past year. The June 11, 2015, draft that we reviewed, if approved as written, would, clean up language, clarified licensing statutes, clarified/updated DD and ID definitions, and added requirements for providers: data sharing, risk management programs, monitoring serious injuries, conducting death reviews, quality improvement programs including root cause analysis, and ISP reviews. It also makes available the appeals processes in the Administrative Process Act to providers placed on provisional status.
OLS appears to have the necessary regulatory tools to require improvements among substandard providers and to eliminate substandard providers who have demonstrated an inability or refusal to improve their services. These tools include mandatory training, fines up to $500 per violation, provisional licensing, revocation of licenses, summary suspension in emergencies, probation, reduced licensed capacity, admission freeze, and funds withholding (Va. Code. §37.2-418 & 419). The use of provisional status with only one provider and the continued lack of use of the other half dozen tools suggests that an increased emphasis on enforcement is necessary.
OLS revised and streamlined its complaint process with the addition of a fillable form suitable for emailing in to DBHDS. This is positive. However, the form is difficult to find. Placement of the File a Complaint tab under the main OLS web page makes it very unlikely that consumers of services or their families will be able to locate the form and use it.
Finally, due process and regulatory protections for providers appear sufficient and appropriate to ensure that actions OLS might take are based on substantive issues and to ensure that OLS will only take such actions after it makes multiple attempts to clarify, assist and support a provider. The Rules and Regulations for Licensing Providers, 6/15 draft revision, if approved as written, would clarify appeal rights for providers placed on provisional status. Given OLS’s reluctance to use the existing sanction tools, DBHDS will need to be vigilant to avoid the increased reluctance to use even provisional status as a corrective strategy after it implements an enhanced and more cumbersome due process.
Conclusions:
 DBHDS continues to be in compliance with Section V.G.1. and 2.


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DBHDS is not currently in compliance with the requirements of Section V.G.3. Based on this review of OLS, DBHDS does not have evidence at the policy level that OLS is identifying systemic patterns of compliance problems with the Agreement, including its “data and assessments” across the eight (8) domains at Section V.D.3.

Recommendations to achieve compliance: OLS should fulfill the role of systemic analysis of the “adequacy of individualized supports and services” by compiling regularly, at least annually, a narrative trend report on and analysis of licensing results for ID provider services. The information to complete this report is now accessible through the Data Warehouse. Detecting and reporting patterns and frequencies in the results of licensing reviews across regions, agencies and services will help ensure that system improvements are discovered. It will also become a continuing source of information for the identification of needed guidance instructions, alerts, trainings, etc.

OLS should develop an outcomes focused checklist for interviews with staff and clients.

Suggestions for Departmental consideration: OLS might consider a formal, annual inter-rater reliability check for each Licensing Specialist’s annual performance appraisal. This would help identify areas of the regulations that need interpretive guidelines. It may also inspire increased confidence among providers who are skeptical about the “fair” application of the regulations.

DBHDS should assess the legal counsel resources available to OLS in the pursuit of increased enforcement activity. The need for this resource will become more pressing if a new grievance/appeal process becomes available to providers placed on provisional status.

OLS should evaluate other non-statutory interventions to deal with providers who are not performing well. One example would be requiring a provider to contract with a non-agency consultant, above and beyond Community Resource Consultants, to support the agency’s successful implementation of corrective action plans. Another example might be requiring a provider on provisional status to align/partner with an experienced provider who has a good track record of services and licensing reviews.
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III. Abuse!and!Neglect!Investigations!

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Settlement Requirement:

V.C.3 & 6

3. The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect,

critical incidents, or deaths and identify remediation steps taken. The Commonwealth shall be required to implement the

process for investigation and remediation detailed in the Virginia DBHDS Licensing Regulations (12 VAC 35-105-

160 and 12 VAC 35-105-170 in effect on the effective date of this Agreement) and the Virginia Rules and

Regulations to Assure the Rights of Individuals Receiving Services from Providers Licensed, Funded or Operated by the

Department of Mental Health, Mental Retardation and Substance Abuse Services (“DBHDS Human Rights

Regulations” (12 VAC 35-115-50(D)(3)) in effect on the effective date of this Agreement, and shall verify the

implementation of corrective action plans required under these Rules and Regulations.

6. If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the

Commonwealth shall take appropriate action with the provider pursuant to the DBHDS Human Rights Regulations

(12 VAC 35-115- 240), the DBHDS Licensing Regulations (12 VAC 35-105-170), Virginia Code Section 37.2-

419 in effect on the effective date of this Agreement, and other requirements in this Agreement.

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Methodology: ● Reviewed OHR investigations and provider investigations where abuse or neglect was
confirmed in CY 2015; ● Reviewed OHR Protocols, Procedures, and Practices Manual (2/16); ● Reviewed completed OLS incident investigations where corrective actions,
provisional status or other regulatory actions was taken in CY 2015; ● Reviewed operating protocols or procedures governing the working processes
between DBHDS/OLS-OHR and DSS (Department of Social Services); ● Reviewed listing of providers cited one or more times for late reporting in CY 2015; ● Reviewed a DBHDS listing of cases referred to DSS/APS/CPS during CY 2015; ● Interviewed selected field based OHR Advocates.

Findings: OHR receives all initial reports of abuse or neglect through the CHRIS (Computerized Human Rights Information System) electronic reporting system. It then triages what type of investigation of abuse and neglect is warranted. Some may be forwarded to OLS for their investigation or for a joint investigation, particularly when conflicts of interest exist at the provider level (e.g. agency director is alleged to have exploited an individual). All substantive allegations are investigated, but providers complete the largest share of these investigations; the investigations completed by providers are submitted to OHR for review and closure. OHR staff will clarify investigation reports for details and missing components before closing the report. Summaries of the provider investigation are then entered into the Abuse Allegation Report (AAR) database. The electronic database for OHR reports is not always complete (e.g. missing advocate name, closure date, etc.). Quality improvement resources and strategies have been established that include a quality improvement staffer who will audit the electronic AAR database and samples of provider reports. These changes hold promise to positively impact OHR records, because OHR is currently dependent on the quality of the AAR database for making systemic improvements and on provider integrity for the content and extent of provider investigations.

Documents reviewed for this study included reports on twenty-seven investigations that were jointly completed by OLS and OHR in 2015. Allegations of abuse and neglect may be forwarded by OHR to OLS for investigation because Virginia’s enforcement statute authorizes OLS to determine violations of regulations and to require that providers to implement corrective action plans. There appears to be an effective collaboration between OLS and OHR at the field and policy level.

A recent revision to the OHR Protocols, Procedures and Practices Manual has added a quarterly sampling process. Through this process OHR and OHR field staff will ‘look behind’ a 10% sample of closed provider investigations and compare their timeliness and content to OHR expectations. OHR expects that this ‘look behind’ review process will identify areas where training or follow-up assistance is warranted in order to improve the investigative results reported to OHR. This is a positive quality improvement step for OHR.

We look forward to future reviews of the ‘look behind’ reports as well as the actions taken and the improved outcomes that result.

!

209
!

!

!


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 210 of 212 PageID# 6900 !

During 2015 OLS/OHR cited 120 agencies for human rights issues. This indicates active
 oversight of violations of human rights.


OLS cited twenty (20) ID providers during CY 2015 for ‘late reporting’ (i.e. longer than 24
 hours); six (6) had been cited for ‘late reporting’ in the previous 3 years. Beyond corrective
 action plans there appear to have been no enforcement actions on these repeat citations.
 However, the Independent Reviewer notes through his review of CHRIS reports an
 improvement in timeliness. In addition, during FY 2014 fifty-eight (58) provider agencies
 were cited for late reporting, suggesting a systemic improvement in timely reporting.


DBHDS linkages with DSS appear healthy and continuous. DSS Adult/Child Protective
 Services accepted forty-seven (47) investigations from OLS/OHR. Providers are consistently
 reminded to fulfill their obligations to report all incidents of potential abuse or neglect to
 DSS Adult or Child Protective Services. Communication occurred between these entities
 about both the status and the outcome of investigations. A lack of communication, although
 it may occur in some individual cases, does not appear to be a systemic issue affecting the
 functioning of DBHDS.


The reviews of the deaths of individuals who have moved from Training Centers have not
 been completed in a timely manner and have not always included a review of ISPs and case
 manager notes. This indicates incomplete death reviews, which may overlook significant
 events surrounding an individual’s death.


Conclusions:
 DBHDS is in compliance with V.C.2. DBHDS has significantly improved timely reporting
 through its CHRIS electronic web-based reporting system. DBHDS reports that the service
 provider, as required, submits 90% of CHRIS reports within 24 hours. The Independent
 Reviewer’s tracking system confirms that noticeable improvement has occurred.


DBHDS is moving toward compliance with the investigational requirements at V.C.3.
 Progress is evident in improved timely reporting and in OLS monitoring implementation of
 CAPs. OLS investigations (except investigations into the deaths of individuals who have
 moved from Training Centers) have also shown improved attention to detail, fact gathering
 and development of related CAPs. However, OLS is still not taking appropriate follow-up
 actions where a provider fails to implement corrective action plans.


DBHDS has achieved compliance as it relates to ‘timely reporting’, but DBHDS is not in
 compliance with the requirements of V.C.6. to “take appropriate action” when action is

needed beyond Corrective Action Plans.


Recommendations to achieve compliance:
 DBHDS should complete and publish needed revisions to its Licensing Regulations to
 ensure that they align with the all related requirements of the Settlement Agreement and to
 ensure that it can and does take appropriate actions as needed.


DBHDS should ensure and support the implementation of the recently initiated quality
 improvements and ‘look behind’ activities of OHR.


!

210
!

! !


Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 211 of 212 PageID# 6901 !
APPENDIX H.

LIST OF ACRONYMS


APS AR AT BSP CAP CEPP CHRIS CIL CIM CIT CM CMS CPS CRC CSB CSB ES CTH CVTC DARS DBHDS DD DMAS DOJ DS DSP DSS ECM EDCD EPSDT ES ESO FRC GH GSE HCBS HPR HR/OHR ICF ID IFDDS
! ! !


Adult Protective Services Authorized Representative Assistive Technology Behavior Support Professional Corrective Action Plan Crisis Education and Prevention Plan Computerized Human Rights Information System Center for Independent Living Community Integration Manager Crisis Intervention Training Case Manager Center for Medicaid Services Child Protective Services Community Resource Consultant Community Services Board Community Services Board Emergency Services Crisis Therapeutic Home Central Virginia Training Center Department of Rehabilitation and Aging Services Department of Behavioral Health and Developmental Services Developmental Disabilities Department of Medical Assistance Services Department of Justice, United States Day Support Services Direct Support Professional Department of Social Services Enhanced Case Management Elderly or Disabled with Consumer Directed Services Early and Periodic Screening Diagnosis and Treatment Emergency Services (at the CSBs) Employment Service Organization Family Resource Consultant Group Home Group Supported Employment Home and Community Based Services Health Planning Region Office of Human Rights Intermediate Care Facility Intellectual Disabilities Individual and Family Developmental Disabilities Supports (“DD” waiver)
211
!

Case 3:12-cv-00059-JAG Document 208 Filed 06/06/16 Page 212 of 212 PageID# 6902 !

IFSP IR ISE ISP LIHTC MRC NVTC ODS OHR OLS PASSR PCP POC PMM PST QI QIC QSR RAC REACH RST RQC SA SC SELN AG SEVTC SIS SW SRH START SVTC SWVTC TC WDAC

Individual and Family Support Program Independent Reviewer Individual Supported Employment Individual Supports Plan Low Income Housing Tax Credit Mortality Review Committee Northern Virginia Training Center Office of Developmental Services Office of Human Rights Office of Licensure Services Preadmission Screening and Resident Review Primary Care Physician Plan of Care Post-Move Monitoring Personal Support Team Quality Improvement Quality Improvement Committee Quality Service Review Regional Advisory Council for REACH Regional Education, Assessment, Crisis Services, Habilitation Regional Support Team Regional Quality Council Settlement Agreement US v. VA 3:12 CV 059 Support Coordinator Supported Employment Leadership Network, Advisory Group Southeastern Virginia Training Center Supports Intensity Scale Sheltered Work Sponsored Residential Home Systemic Therapeutic Assessment Respite and Treatment Southside Virginia Training Center Southwestern Virginia Training Center Training Center Waiver Design Advisory Group

! !

!

212
!

!

!


 </s> Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 1 of 6 PageID# 13

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

~

K lL rE
JAN 2 6 2012

~

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Defendant.

)

)

)

CLERK, U.S. DISTRICT COURT RICHMOND VA

JOINT MOTION FOR ENTRY OF SETTLEMENT AGREEMENT AND BRIEF IN SUPPORT THEREOF
Simultaneous herewith, Plaintiff, the United States, has filed a complaint (Dkt # 1) alleging that Defendant, the Commonwealth of Virginia, is violating Title II of the Americans with Disabilities Act of 1990 ("the ADA"), 42 U.S.C. § 12131-12134, and its implementing regulations, regarding the provision of services to individuals with disabilities in the most integrated settings appropriate to meet their needs. In resolution of the United States' claims, and to ensure that individuals with intellectual and developmental disabilities ("ID/DD") in Virginia receive services and supports in accordance with this obligation, the United States and the Commonwealth have entered the attached Settlement Agreement ("Agreement"), conditioned upon entry of the Agreement as an order of this Court.
FACTUAL BACKGROUND On August 21, 2008, the United States notified the Commonwealth that it was commencing an investigation of the Central Virginia Training Center ("CVTC"), pursuant to the Civil Rights oflnstitutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997. On April23, 2010,

1

Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 2 of 6 PageID# 14
the United States notified the Commonwealth that it was expanding the investigation to focus on the Commonwealth's compliance with the ADA with respect to individuals at CVTC. During the course of the expanded investigation, the United States determined that an examination of the Commonwealth's measures to address the rights of individuals at CVTC under the ADA implicated the statewide system and required a broader scope of review. On February 10, 2011, the U.S. Department of Justice sent a letter of findings to the Commonwealth, alleging that it is violating the ADA by unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia. The letter reported in detail the findings of the Department's investigation, provided the Commonwealth notice of its alleged
failure to comply with the ADA, and outlined the specific steps necessary for the Commonwealth to meet its obligations under the ADA.
LEGAL BACKGROUND The ADA prohibits discrimination against individuals with disabilities by public entities: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The Department of Justice has authority to enforce title II and to issue regulations implementing the statute. 42 U.S.C. §§ 12133-34. The title II regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The preamble discussion ofthe "integration regulation" explains that "the most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]" 28 C.F.R. § 35.130(d), App. Bat 673 (2011). Regulations implementing title II ofthe ADA further prohibit
2

Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 3 of 6 PageID# 15
public entities from utilizing "criteria or methods of administration" that have the effect of subjecting qualified individuals with disabilities to discrimination or "that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities[.]" 28 C.F.R. § 35.130(b)(3).
In 0/msteadv. L.C., 527 U.S. 581,597 (1999), the Supreme Court held that title II prohibits the unjustified isolation of individuals with disabilities. The Court explained that its holding "reflects two evident judgments." ld. at 600. "First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." !d. "Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." !d. at 601. Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the state and the needs of other persons with disabilities. !d. at 607.
DISCUSSION After months of negotiations, the Parties have reached the attached Agreement to resolve the United States' claim that the Commonwealth is unnecessarily institutionalizing, and placing at risk of unnecessary institutionalization, individuals with ID/DD throughout Virginia in violation of the ADA. The Agreement expands the availability ofexisting community services to support individuals with ID/DD. · This expansion will prevent individuals with ID/DD from being unnecessarily institutionalized and enable the Commonwealth to help individuals who are
3

Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 4 of 6 PageID# 16 currently institutionalized but who do not oppose transitioning to community settings that can meet their needs, in accordance with the ADA.
The Parties have determined that entering into this Agreement, rather than contested litigation, is the best way to resolve the United States' claim in this matter. Accordingly, the Parties jointly move this Court to enter the attached proposed Order Entering Settlement Agreement as an Order of this Court.
4

Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 5 of 6 PageID# 17

Dated: January 26,2012 FOR THE UNITED STATES: NEIL H. MacBRIDE
Assistant United States Attorney 600 East Main St., Suite 1800 Richmond, VA 23219 (804) 819-5400 Fax: (804) 819-7417 Robert.Mcintosh@usdoj .gov VA Bar# 66113

Respectfully submitted,

THOMAS E. PEREZ Assistant Attorney General
Civil Rights Division

EVE HILL Senior Counselor Civil Rights Division

ALISON N. BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division

JONATHAN SMITH
Chief Special Litigation Section

BENJAMIN 0. TAYLOE, JR.

Deputy Chief

S

itigation Section

SER
K. CUNCANNAN
Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530
(202) 305-3355 Fax: (202) 514-4883 Aaron.Zisser@usdoj .gov

5

Case 3:12-cv-00059-JAG Document 2 Filed 01/26/12 Page 6 of 6 PageID# 18

FOR THE COMMONWEALTH OF VIRGINIA:

~· k. ''f<~~"' I
ASOeif1nfYiicoSerOoADfstsKhies:YtaASntitt1oAlrienttreoyrnGeyenGeeranleoraflVirginia

'

900 East Main Street

Richmond, Virginia 23219

(804) 786-1927

Fax: (804) 371-8718

ATysinger@oag.state. va. us

Virginia State Bar No. 41982

6

 </s> Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 1 of 42 PageID# 86
EXHIBIT A

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 2 of 42 PageID# 87

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

and
COMMONWEALTH OF VIRGINIA, Defendant,

CIVIL ACTION NO: 3:12-cv-059

against

PEGGY WOOD, by and through her father, Wriley Wood, et al.
Intervenors.

INTERVENORS' MOTION TO DISMISS
Intervenors, by and through their counsel, move, pursuant to Fed.R. Civ. 12 (b)(1) and
12(b)(6) to dismiss the Complaint for Declaratory and Injunctive Relief on the grounds that this
Court lacks subject matter jurisdiction to entertain this claim and on the grounds that the
Department of Justice has failed to state a claim upon which relief can be granted. In support,
the Intervenors respectfully refer this Honorable Court to the accompanying Memorandum of
Law.
Respectfully Submitted,
Is/
Gerald T. Schafer Virginia Bar# 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 3 of 42 PageID# 88
Is/
Thomas B. York Pennsylvania Bar# 32522 Donald B. Zaycosky Pennsylvania Bar# 91821. Cordelia Elias Pennsylvania Bar # 204965 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 1711 0 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
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Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 4 of 42 PageID# 89
CERTIFICATE OF SERVICE
I, hereby certify that on the 2"d day of March, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson K. Tysinger Virginia Office of the Attorney General
900 East Main Street Richmond, Virginia 23219 ATysinger@oag.state. va. us
Robert Mcintosh Assistant United States Attorney 600 East Main Street, Suite 1800
Richmond, VA 23219 Robert.Mcintosh@usdoj .gov
Alison N. Barkoff Special Counsel for Olmstead Enforcement
Civil Rights Division 950 Pennsylvania Avenue, NW
Washington D.C. 20530 Alison.Barkoff@usdoj .gov
Benjamin 0. Tayloe Jr. Deputy Chief
950 Pennsylvania Avenue, NW Washington D.C. 20530
Benjamin.tayloe@usdoj. gov
Aaron B. Zisser Trial Attorney 950 Pennsylvania Avenue, NW Washington D.C. 20530 Aaron.Zisser@usdoj .gov
3

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 5 of 42 PageID# 90
Is/ Gerald T. Schafer Virginia Bar# 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
Is/ Thomas B. York Pennsylvania Bar# 32522 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com
4

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 6 of 42 PageID# 91

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

and·
COMMONWEALTH OF VIRGINIA, Defendant,

CIVIL ACTION NO: 3:12-cv-059

against

PEGGY WOOD, by and through her father, Wriley Wood, et al.
Intervenors.

INTERVENORS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS
Intervenors, by and through their attorneys, move this Court, pursuant to Federal Rules of
Civil Procedure 12(b)(l) and 12(b)(6), for an Order dismissing the Complaint.

INTRODUCTION The United States Department of Justice (hereinafter referred to as the "DOJ") initiated this matter by filing a Complainton January 26, 2012. [Dkt. #1]. Simultaneously, the DOJ filed a proposed settlement agreement, and sought this Court's binding enforcement of that settlement agreement as a Court Order. [Dkt. # 2]. The only Defendant identified in this matter is the Commonwealth of Virginia, which appears to have been served with the Complaint subsequent to the DOJ filing a proposed settlement agreement. No Commonwealth agencies or officials have been identified as Defendants. The simultaneous filing of the Complaint and proposed settlement agreement appears to be an attempt by the DOJ and the Commonwealth to force the Court to address their proposed resolution of this matter without allowing proper consideration

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 7 of 42 PageID# 92
of the Federal Rules of Civil Procedure and the substantive rights of the Intervenors. By separate Motion to Intervene and Memorandum of Law in Support, Intervenors have asked this Court to acknowledge their significant interests in this matter and grant them the opportunity to protect their rights. Intervenors' Motion to Dismiss and Memorandum of Law in Support are being filed simultaneously with Intervenors' Motion to Intervene and accompanying Memorandum of Law, as required by Federal Rule of Civil Procedure 24.
ARGUMENT Generally a Motion to Dismiss must be presented within twenty-one (21) days of being served with a Complaint. Fed.R.Civ.P. 12(a)(1)(A). However, Intervenors have not been served with the Complaint in this matter. If the Court grants Intervenors the opportunity to resolve their claims in this matter, this Motion to Dismiss is timely, as Intervenors' right to file this motion only arises subsequent to their Motion to Intervene being granted.
I. THE DEPARTMENT OF JUSTICE DOES NOT HAVE STANDING TO PURSUE ITS CLAIMS BECAUSE IT CAN ONLY PURSUE THE CLAIMS ASSERTED IN ITS COMPLAINT WHEN CONGRESS EXPRESSLY GRANTS IT PERMISSION TO DO SO
The DOJ's Complaint must be dismissed for lack of subject matter jurisdiction because the DOJ does not have general standing to assert the claims alleged in its Complaint. Pursuant to Federal Rule of Civil Procedure 12(b)(1 ), a complaint must be dismissed for lack of subject matter jurisdiction. FED.R.Civ.P. 12(b)(l). Subject matter jurisdiction may be challenged in two ways. First, a party may contend that the complaint fails to allege facts upon which subject matter jurisdiction may be based. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); King v. Riverside Reg'l Med. Ctr., 211 F. Supp. 2d 779, 780 (E.D. Va. 2002). In such instances, all facts
2

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 8 of 42 PageID# 93
alleged in the complaint are presumed to be true. Adams, 697 F.2d at 1219; Virginia v. United
States, 926 F. Supp. 537, 540 (E.D. Va. 1995). Alternatively, a party may argue that the jurisdictional facts alleged in the complaint are
untrue. Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780. In this situation, "the Court may 'look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists."' Virginia v. United States, 926 F. Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)); See also Velasco v. Gov't oflndonesia, 370 F.3d 392, 398 (4th Cir. 2004) (holding that "the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment") (citations omitted).
In either circumstance, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009) (holding that "having filed this suit and thereby seeking to invoke the jurisdiction of the Court, Plaintiff bears the burden of proving that this Court has subject matter jurisdiction").
The DOJ also bears the burden of establishing jurisdiction where, as here in this case, lack of standing is asserted as a basis for lack of subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,768 (4th Cir. 1991). Because standing elements are "an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.. .." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561.
3

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 9 of 42 PageID# 94
Federal subject matter jurisdiction may exist ifthere is either a "federal question," pursuant to 28 U.S. C. § 1331 or complete diversity of citizenship between the parties and more than $75,000 in controversy pursuant to 28 U.S.C. § 1332. With respect to subject matter jurisdiction in this matter, the Complaint claims to assert a "federal question." [Dkt. # 1, ~ 1]. The only basis alleged in the Complaint that would give rise to federal question jurisdiction is the DOJ' s inadequate passing references to the Americans with Disabilities Act ("ADA").
II. THE DEPARTMENT OF JUSTICE DOES NOT HAVE STANDING TO ENFORCE THE AMERICANS WITH DISABILITIES ACT
The DOJ inappropriately initiated this matter under Title II of the Americans with Disabilities Act, 42 U.S.C. 12131-12132 ("ADA"). [Dkt. # 1, ~ 1]. The DOJ does not have standing to enforce the ADA, unless it brings such claims pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997-1997j ("CRIPA").
The Fourth Circuit has expressly precluded the DOJ from initiating litigation in the manner it has pled in this case. See U.S. v. Solomon, et al., 563 F.2d 1121 (4th Cir. 1977). In Solomon, the Fourth Circuit affirmed the district court's dismissal of the DOJ action, holding that the DOJ could only maintain an action against the State of Maryland and the state's operation of the Rosewood State Hospital if Congress expressly granted the DOJ such authority through statute. Id. at 1129.
Two years later, the DOJ tried to bring the same type of action on behalf of residents of a developmental disability facility in Montana, alleging that federal rights had been violated. See U.S. v. Mattson, 600 F.2d 1295 (9th Cir. 1979). The District Court dismissed that complaint and the Ninth Circuit affirmed that decision. Id. Like the Fourth Circuit, the Ninth Circuit held that
4

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 10 of 42 PageID# 95
"the United States may not bring suit to protect the constitutional rights of the mentally retarded without express statutory approval." U.S. v. Mattson, 600 F.2d 1295, 1297.
In 1980, the DOJ received limited authority from Congress in the Civil Rights of Institutionalized Persons Act ("CRIPA"), 42 U.S.C. § 1997a; United States v. City of Philadelphia, 644 F.2d 187,201 (3d Cir. 1980) (making clearthat the Departmen~ of Justice's only standing was by virtue of CRIPA.) Although the DOJ may have standing to enforce the ADA if that enforcement is brought through the agency's limited statutory authority provided by CRIPA, any action by the DOJ implicating the rights of residents of a state-operated facility and alleging violations of the ADA must be initiated through that express Congressional authority. The CRIPA statute did not create any substantive rights. The sole purpose of CRIPA was to give the DOJ standing to enforce existing federal rights.
CRIPA provides that the DOJ may initiate an action only for "such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment" of federal constitutional or statutory rights, privileges, and immunities. 42 U.S.C. § 1997a(a) (emphasis added); See also Messier v. Southbury Training Sch., 916 F. Supp. 133, 13738 (D. Conn. 1996) (contrasting the types of relief available to private plaintiffs with the Attorney General's right under CRIPA to seek only "minimum corrective measures").
Without CRIPA, the DOJ has no standing to enforce a claim under Americans with Disabilities Act, 42 U.S.C. §§12101-12213 ("ADA").
Prior to the enactment of CRIPA in 1980, controlling precedents dictated that the Justice Department had no authority to sue on behalf of institutionalized persons. See, e.g. United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir.1979). Under CRIPA, however, the Attorney General may bring suit for equitable relief to ensure the "minimum corrective measures" necessary to remediate "egregious or flagrant conditions which deprive [institutional residents] of any [federally protected] rights, privileges, or immunities," provided the Attorney General finds that such
5

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 11 of 42 PageID# 96
deprivations occur "pursuant to a pattern or practice of resistance." 42 U.S.C.§ 1997a. Thus, the Justice Department may only sue on behalf of institutionalized persons if the strict requirements of CRIPA are satisfied, and may only seek "minimum corrective measures." Messier v. STS, 562 F. Supp. 2d 294, 137.
Congress specifically delineated the limits of the DOJ's authority to pursue claims that implicate the rights of residents of state-operated facilities, such as the Commonwealth's Training Centers. Congress did not give the DOJ general authority, which is how the Complaint in this matter is presented. If Congress had done so, there would be no distinction between the relief available to the DOJ and a private plaintiff. The statutory language of CRIPA and its legislative history make clear that the DOJ does not represent private plaintiffs and cannot be granted relief as if it was a private plaintiff. The statute provides that "[t]he provisions ofthis [Act] shall in no way expand or restrict the authority of parties other than the United States to enforce the legal rights which they may have pursuant to existing law with regard to institutionalized persons." 42 U.S.C. § 1997j.
The House Conference Report on CRIPA stated that: [I]t should be emphasized that ... the Attorney General's authority extends to initiating suit "for or in the name of the United States," in order to represent the national interest in securing constitutionally adequate care for institutionalized citizens. As a representative of the United States, the Attorney General does not directly represent any institutionalized plaintiffs, and the authority granted him is in no way intended to preclude, delay or prejudice private litigants from enforcing any cause of action they may have under ... law.
(emphasis added) H. Conf. Rep. No. 96-897, 96th Cong., 2d Sess. 13, reprinted in 1980 USCCAN 837.
If the DOJ is permitted to proceed on the Complaint that it has filed in this matter, it will render meaningless the clear distinctions that Congress made between the DOJ's limited
6

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authority to enforce only specific rights for the government and a private party's broad authority to enforce his or her rights generally. The DOJ cannot impinge on the ability of private parties to enforce their rights, which is precisely what the current Complaint seeks to do.
The ADA does not give the DOJ any standing, general or specific, to enforce its provisions. The ADA was enacted so private citizens, like the Intervenors, could ensure that their rights are protected. Title II expressly provides that "[t]he remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. § 794a) (hereinafter "Rehab Act") shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202." See 42 USC § 12133.
Courts have uniformly recognized the private right of action under the Rehab Act and the ADA. Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397 (1979); Meiner v. State ofMissouri, 673 F.2d 969, 973 (8th Cir. 1982), Pushkin v. Regents ofUniv. of Colorado, 658 F.2d 1372, 1376-80 (lOth Cir. 1981); Kling v. Cty of Los Angeles, 633 F.2d 876, 878 (9th Cir. 1980); Weinreich v. Los Angeles Cty Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997); Camenisch v. Univ. of Texas, 616 F.2d 127, 131 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981); NAACP v. Medical Center, 599 F.2d 1247, 1258 (3d Cir. 1979); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2nd Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1284 (7th Cir. 1977); Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1333 (S.D. Cal. 1997); Dominguez v. City of Council Bluffs, 974 F. Supp. 732 (S.D. Iowa W.D. 1997); Davoli v. City ofDenver, 943 F. Supp. 1289, 1297 (D. Colo. 1996); Benedrum v. Franklin Recycling, 1996 WL 679402 (W.D. Pa. 1996); Wagner v. Texas A&M Univ., 939 F. Supp. 1297 (S.D. Tex. 1996); Roe v. County ofMonongohela, 926 F. Supp. 74 (N.D. W.Va. 1996); Dertzv. CityofChicago, 912 F. Supp. 319 (N.D. Ill. 1995);
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Etheridge v. State of Alabama, 847 F. Supp. 903 (M.D. Ala. 1993); Finlay v. Giacobbe, 827 F. Supp. 215 (S.D.N.Y. 1993); Peterson v. Univ. ofWisconsin, 818 F. Supp. 1276 (W.D. Wise. 1993). The DOJ and the Commonwealth of Virginia likely do not dispute the existence of a private right of action under the ADA and Rehab Act, but the Department of Justice's Complaint risks interference with that right, which right Congress largely reserved for private parties, including the Intervenors in this matter.
The DOJ impliedly acknowledges that it does not have general authority to bring an action pursuant to the ADA by referencing the statute that gives it limited authority to pursue claims involving the rights of institutionalized persons. The DOJ alleges that it conducted an extensive investigation pursuant to authority that it was given only by virtue of CRIPA. [Dkt. # 1, Complaint~~ 11-13]. Yet, the DOJ has not pled this matter pursuant to the requirements of CRIPA.
Although the DOJ has feigned some compliance with the pre-complaint requirements of CRIPA, it has failed to meet the requisite standards for pleading its claims in its Complaint. CRIPA requires the United States Attorney General to personally execute a specific form, certifying that the DOJ has complied with all pre-Complaint sections of CRIPA. 42 U.S.C. §§ 1997a(c), 1997b(b). A copy of a Certification filed with a recently litigated CRIPA matter is attached as Exhibit A. No such certification has been given in this matter. If this Complaint were properly brought before this Court, it would also reference the Attorney General's certification in the Complaint and specifically indicate that the DOJ is authorized to bring the matter pursuant to CRIPA. A copy of a Complaint that arguably meets the minimum pleading requirements for a CRIPA action is attached as Exhibit B.
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The DOJ has ignored well-settled case law and Congress' authority to grant the DOJ only limited standing in these matters. U.S. v. Solomon, et al., 563 F.2d 1121 (4th Cir. 1977); U.S. v. Mattson, 600 F.2d 1295 (9th Cir. 1979); U.S. v. Elrod, 627 F.2d 813 (7th Cir. 1980); United States v. City of Philadelphia, 644 F.2d 187, 201 (3d Cir. 1980) ("[T]he district court held that the Attorney General had no standing to sue to protect the constitutional rights of local prisoners. The Court of Appeals reversed and remanded because intervening legislation, the Civil Rights of Institutionalized Persons Act, Pub. L. _No. 96-247, § 3, 94 Stat. 350 (1980), provided explicit statutory authority for the action."); Messier v. Southbury Training Sch., 916 F. Supp. 133, 13738 (D. Conn. 1996); Santana v. Collazo, 89 F.R.D. 369,373 (D. P.R. 1981) ("while we have no doubts as to the correctness of our earlier decision denying Plaintiff-Intervenor the right to intervene, the passage of the 'Civil Rights for Institutionalized Persons Act' together with the Attorney General's compliance with the procedural and certification requirements of Section 5 of the Act compels us to reconsider and thus to GRANT United States' Motion to intervene as Plaintiff in this action."). By filing its Complaint in this matter, the DOJ has ignored the limited grant of authority under CRIPA, while risking significant interference with the rights of private parties like the Intervenors.
III. THE DEPARTMENT OF JUSTICE HAS NOT MET THE PROCEDURAL PREREQUISITES TO BRING A TITLE II CLAIM.
In the present case, the DOJ has not pled sufficient facts to establish that it has met the procedural prerequisites to bring a Title II claim and, therefore, it cannot be entitled to relief. Title II prohibits discrimination against individuals with disabilities with regard to participation in, or benefits of, programs, services, or activities ofa public entity. 42 USC § 12132. The enforcement provision of Title II provides that the "remedies, procedures and rights" of the
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Rehabilitation Act, 29 U.S.C. § 794a, apply to violations of section 12132. 42 U.S.C. § 12133.
Section 794a, in tum, refers to the "remedies, procedures and rights" of Title VI of the Civil
Rights Act. 29 U.S.C. § 794a. Title VI of the Civil Rights Act states:
Compliance ... may be effected (1) by the termination of or refusal to grant or to continue [federal financial] assistance ... or (2) by any other means authorized by law: Provided, however, that no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.
(emphasis added) 42 U.S.C. § 2000d-l.
Even if the DOJ has authority to bring the claims that it has alleged in the Complaint, Title
VI requires that it notify the Commonwealth and its officials of the alleged non-compliance with
federal law and give the Commonwealth an opportunity to correct the non-compliance voluntarily
prior to filing a lawsuit. The DOJ has failed to allege that it complied with those requirements.
Nowhere in its Complaint does the DOJ refer to giving the Commonwealth the opportunity for
voluntary compliance or the results of voluntary compliance efforts.
The DOJ was specifically admonished from filing this type of Complaint. In 2010, it
attempted to file a virtually identical Complaint against the State of Arkansas, which the district
court appropriately dismissed. See U.S. v. Arkansas, et al., 4:10-cv-00327 (E.D. Ark.) 2011 U.S.
Dist. LEXIS 7231. That Court did not even address the DOJ's attempt to assert general standing
to enforce the ADA because it found that:
Because the Department of Justice has not made allegations in the complaint sufficient to indicate that it has complied with the statutory prerequisites to suit, the complaint fails to comply with the requirements of Rule 8(a) and therefore should be dismissed without prejudice. [fn 9 Accordingly, the Court need not and does not reach the issue of whether the Department of Justice must comply with 28 C.F.R. § 35.170 et seq., before commencing legal action.] Moreover, even considering the facts outside the pleadings submitted by the Department of Justice, those facts are insufficient to show that the Department of Justice has complied with
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the prerequisites to filing suit as stated in 42 U.S.C. § 2000d-1. Accordingly, the complaint is dismissed without prejudice. (footnote in original) Arkansas, 2011 U.S. Dist. LEXIS 7231 at 22. In this matter, even if the DOJ had general authority to enforce the ADA in the manner it has pled, it has still failed to allege that it has given an opportunity for the Commonwealth to voluntarily comply with the alleged violations of the ADA. Even if the ADA had given the DOJ general authority to bring this action, the matter may only be referred to the Attorney General for a recommendation for legal action if the public entity refuses to enter into voluntary compliance negotiations or if such negotiations are unsuccessful. 28 CFR § 35.174. Nowhere in Title II of the ADA or its implementing regulations is authority given to the DOJ to initiate a lawsuit without meeting these procedural requirements. The DOJ has not complied with the necessary procedural requirements to file suit against the Commonwealth, even if it had the authority to do so, pursuant to Title II of the ADA. Instead, the DOJ filed this lawsuit based only on its theory that individuals with developmental disabilities would necessarily be better served in a community setting as opposed to a training center, and that thus, in its ideological opinion, the State must be violating the ADA. The DOJ cites no authority that allows it to bypass the procedural requirements of the Title II regulations. There is no individual complainant identified in the lawsuit and no indication that the DOJ received a complaint of discrimination under Title II from anyone with regard to the claims raised in the lawsuit. Additionally, the DOJ has not alleged that it attempted informal resolution of any matter complained of in the lawsuit. Because the DOJ has not complied with these requirements prior to filing an ADA lawsuit, the case is not ripe for this Court's consideration. Currently, there is only a theoretical disagreement between the parties. The Complaint does not allege that the Commonwealth was
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notified of any complaint, had an opportunity to engage in informal resolution, and had an opportunity to consider voluntary compliance. The DOJ has not demonstrated that there is an actual complainant who has asserted any harm that would merit the exercise of this Court's authority. As a result, the case is not ripe for judicial review and this Court does not have subject matter jurisdiction of the lawsuit, and it should be dismissed. Arc ofVirginia, Inc. v. Kaine, 2009 U.S. Dist. LEXIS 117677, 10-12 (E.D. Va. 2009) (citing Warth v. Seldin, 422 U.S. 490, 498, (1975); Nat'l Park Hospitality Ass'n v. Dep't oflnterior, 538 U.S. 803, 808 (2003); Pacific Gas and Electric Co. v. State Energy Resources Conserv. & Dev. Comm'n, 461 U.S. 190,200 (1983); 15 MOORE'S FEDERAL PRACTICE§ 101.70).
IV. EVEN IF PROVEN, THE ALLEGATIONS IN THE COMPLAINT WILL NOT ENTITLE THE DEPARTMENT OF JUSTICE TO RELIEF
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve any contested facts, the merits of a claim, or the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing SA Charles A Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE§ 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pled allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); See also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The Federal Rules of Civil Procedure "require[] only 'a short and plain statement ofthe claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
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what the ... claim is and the grounds upon which it rests."' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The DOJ cannot satisfy this standard with allegations containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555 (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level," Id. (citation omitted), stating a claim that is "plausible on its face," rather than merely "conceivable." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193,213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270,281 (4th Cir. 2002)).
The DOJ has failed to allege facts to support its claim for relief. The DOJ has failed to allege any facts that constitute violations of the ADA or the United States Supreme Court's interpretation of the ADA in Olmstead. See Olmstead v. Zimring, et al., 527 U.S. 581 (1999). In an effort to manufacture support for its allegations, the DOJ has falsely represented the holding in Olmstead. For instance, the DOJ inaccurately alleges that:
Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. !d. at 607. [Dkt. # 1, Complaint at~ 10].
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This rendition of the holding in Olmstead, which the Commonwealth has impliedly endorsed, misstates the Court's first prerequisite to discharge from an institutional setting, that "the State's treatment professionals have determined that community placement is appropriate." Id. at 587. The DOJ's application of the other two prongs ofthe three-part test in this case also misrepresents Olmstead. In Olmstead, an action was filed on behalf of two women with mental retardation and co-morbid psychiatric disorders, known by their initials, L.C. and E.W. After being admitted voluntarily to the Georgia Regional Hospital in Atlanta in May 1992, L.C.'s schizophrenia was treated and stabilized. By May 1993, L.C. expressed a desire to leave the Georgia Regional Hospital and her treating professionals at the facility agreed that she could have her needs met in a state-supported community treatment program. However, L.C. remained in the Georgia Regional Hospital for nearly three more years. PlaintiffE.W. was voluntarily hospitalized at the Georgia Regional Hospital in February 1995 with a diagnosis of personality disorder. By 1996, E.W. expressed a desire to leave the facility and her therapist concluded that she could be treated in a community-based treatment program. E.W. was not discharged, however, after legal action had been brought. Both women argued that the state's failure to discharge them to a community-based treatment program violated Title II of the ADA.
Finding that L.C. 'sand E.W. 's continued treatment at the Georgia Regional Hospital against their wishes violated the ADA, the Olmstead Court developed a three-prong test to determine when the ADA "require[s] placement of persons with mental disabilities in community settings rather than in institutions." Olmstead, 527 U.S. at 587. The Court instructed that community placement is required only when:
the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the
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resources available to the State and the needs of others with mental disabilities.
In interpreting the ADA and the DOJ's regulations issued under it, Olmstead emphasized that there is no "federal requirement that community-based treatment be imposed on patients who do not desire it." Id. at 602. The DOJ's allegations in the instant matter are inconsistent with this proposition. Olmstead further stressed that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." Id. at 601-02. "[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." Id. at 605. In fact, the Court recognized that "for [some] individuals, no placement outside the institution may ever be appropriate." Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curiae at 22-23 ("Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times-perhaps in the short run, perhaps in the long run-for the risks and exposure of the less protective environment of community settings"); Brief for Voice of the Retarded et al. as Amici Curiae 11 ("Each disabled person is entitled to treatment in the most integrated setting possible for that person-recognizing that, on a case-by-case basis, that setting may be in an institution"); Youngberg v. Romeo, 457 U.S. 307,327 (1982) (Blackmun, J., concurring) ("For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know")).
The residents of the training centers may, in fact, have more involvement with non-disabled people than similar individuals living in their own or community homes. Many center residents go out daily to work programs and attend concerts, sporting events and restaurants. In addition, hundreds of people volunteer thousands of hours at the centers each year.
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In the instant matter, The DOJ has not alleged that any treating professional has recommended discharge for any resident of Virginia's Training Centers. Indeed, each resident is evaluated annually to determine treatment needs and whether the Training Center remains the most appropriate horne. These annual evaluations by the residents' treating professionals have been ignored by DOJ in its Complaint. The DOJ has also failed to allege that any resident or guardian of an individual residing at one ofVirginia's Training Centers has not opposed a transfer recommendation made by a treating professional. By virtue of the ADA and Olmstead, Intervenors have a federally protected right to receive recommendations from treating professionals as to whether community placement is appropriate and to oppose that transfer, even if the proposed transfer is from institutional care to an appropriate community setting. In fact, the Virginia Code incorporates this federal right: "Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no consumer at a training center who is enrolled in Medicaid shall be discharged if the consumer or his legally authorized representative on his behalf chooses to continue receiving services in a training center.'" Va. Code. Ann.§ 37.2- 837(A)(3).
The DOJ has failed to allege facts that would allow them to challenge the discharge procedures presently in place at the Commonwealth's Training Centers or to otherwise seek relief regarding that process. Plaintiff cannot meet its burden of proof by merely assuming that current residents of the Commonwealth's Training Centers should necessarily be served in alternative settings. Olmstead dictates that residents of the Commonwealth's Training Centers and their guardians have the benefit of treating professionals' judgments regarding the most appropriate place to receive services. Only after they have the benefit ofthat information are residents and guardians required to oppose or consent to transfer or discharge to an alternative
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setting. See U.S. v. Arkansas, 794 F. Supp. 2d 935, 982 (E.D. Ark. 2011) (In a CRIPA case brought by the DOJ the district court concluded that the DOJ failed to meet its burden pursuant to Olmstead because "[n]o person determined by the State's treatment professionals to be appropriate for community placement has been denied community placement.")
The Complaint ignores Intervenors' right to have treating professionals render judgments as to where Intervenors should receive services most appropriate to their needs. The Complaint does not allege that treating professionals fail to render such judgments, that treating professionals disagree in their recommendations about where residents should receive services, or that treating professionals fail to communicate those judgments to residents and guardians, but, rather, the Complaint is silent on the rights of residents to receive professional judgments as to where appropriate services should be provided. The DOJ's silence on a major premise on which Olmstead is based, renders its Complaint defective. See Olmstead, 527 U.S. at 602; See also School Bd. ofNassau Cty. v. Arline, 480 U.S. 273, 288 (1987) ("courts normally should defer to the reasonable medical judgments of public health officials"); Hanson By and Through Hanson v. Clarke County, Iowa, 867 F.2d 1115 (8th Cir. 1989).
Likewise, the DOJ's allegations and claims for relief largely ignore the rights of residents ofVirginia's Training Centers and their guardians, as recognized by Olmstead, to oppose discharge from a Training Center. Interpreting Olmstead, the district court in U.S. v. Arkansas, et al., concluded that the DOJ failed to meet its burden because "[n]o resident of [the facility] has been denied community placement when a parent or guardian has requested such a placement." Arkansas, 794 F. Supp. 2d at 982. In this matter, the DOJ has failed to even make such an allegation, proof of which would be required to obtain relief under Olmstead.
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Olmstead should not be twisted to require deinstitutionalization or the closure of residential facilities like the Commonwealth's Training Centers. See Olmstead at 605. Federal courts reached the same conclusion prior to Olmstead. In Conner v. Branstad, a district court soundly reasoned that "if Congress had actually intended to require states to provide community based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so." Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993); See also U.S. v. Oregon, 782 F. Supp. 502, 514 (D. Or. 1991) ("[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility].").
The requirement of Olmstead that the court consider the needs of other individuals with mental disabilities must be read in its full, intended context. Ligas v. Maram, et al., 2010 U.S. Dist. LEXIS 34122, 13 (N.D. Ill. Apr. 7, 2010). The relevant portions of Olmstead include the government officials' potential affirmative defense- that providing the community-based services requested by the plaintiffs would "fundamentally alter" the nature of the services provided by the State to individuals with mental disabilities. Id. at 4 (citing Olmstead at 594-95); See also 28 CFR § 35.130(b)(7). The Supreme Court's instruction in Olmstead that the district court "consider [on remand], in view ofthe resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably" applies because the district court was charged with "evaluating [the] State's fundamentalalteration defense." Olmstead, 527 U.S. at 597.
Regardless of whether the Commonwealth ofVirginia in this case raises a fundamental alteration defense, this Court should consider that throughout Olmstead, the Supreme Court
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acknowledged the competing claims on limited State resources. Ligas, 2010 U.S. Dist. LEXIS 34122. For example, Justice Ginsburg's plurality opinion noted the States' obligation "[t]o maintain a range of facilities and to administer services with an even hand." Id. at 605. Similarly, Justice Kennedy's concurring opinion recognized the "continuing challenge" that States face "to provide ... care in an effective and humane way," and it is in this context that he stresses the "central importance" of deferring to decisions made by State policymakers. Id. at 608-10. Accordingly, the Olmstead Court directed the lower courts to "tak[e] into account the resources available to the State and the needs of others with mental disabilities" if the fundamental-alteration defense is raised. Olmstead, 527 U.S. at 607.
V. THE DEPARTMENT OF JUSTICE'S COMPLAINT SEEKS TO ABROGATE THE CENTERS FOR MEDICARE AND MEDICAID SERVICES REGULATION OF THE COMMONWEALTH'S TRAINING CENTERS AND THE PROTECTIONS THOSE REGULATIONS PROVIDE FOR INTERVENORS
Consistent with Olmstead, the Centers for Medicare and Medicaid Services ("CMS") has promulgated ICF/MR regulations that only permit the discharge of residents from Virginia's Training Centers under specific conditions. 42 CFR § 483.440(b)(4). All ofVirginia's Training Centers are currently licensed by CMS and the Virginia Department of Health.1 The relief sought by the DOJ in this matter is "discharge" of residents from Virginia's Training Centers, as that term is used in the federal regulations. See Guideline to 42 CFR § 483.440(b)(4)(i) ("'Discharge' means the permanent movement of an individual to another facility or setting which operates independently from the ICF/MR."). CMS's regulations, which are exclusively for CMS to enforce, dictate the only circumstances under which such action can occur. They only allow
1 See 42 CFR § 440.150 and 42 CFR §§ 483.400-483.480 for the definition of and regulations pertaining to an intermediate care facility for the mentally retarded.
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discharge when a facility cannot meet an individual's needs, the individual no longer requires an active treatment program in an ICF/MR setting, the individual or guardian chooses to reside elsewhere, or when a determination is made that another level of service or living situation, either internal or external, would be more beneficial, or for any other good cause, including any reason that is in the best interest of the individual. 42 CFR § 483.440(b)(4)(i).
The Complaint fails to even acknowledge the existence of these regulations. The relief sought by the DOJ ignores these regulations. Also, the proposed settlement would have this Court abrogate those lawfully enacted and enforceable regulations. It is illogical for the DOJ to ask this Court to reach the conclusion that residents must be moved in accordance with an arbitrary schedule in a proposed settlement while another agency of the United States (CMS) simultaneously has concluded that those facilities meet all of the requirements of the federal regulations, certifies it as eligible for federal funds, and continues to provide federal funding for those facilities. The DOJ wrongly seeks to usurp federal regulations without even a single example of an inappropriate placement in an ICF/MR. Instead, the DOJ would have its own highly subjective, but factually and legally inaccurate, philosophical viewpoint, that all residents must be moved from ICFs/MR, replace these federal regulations. In doing so, the DOJ inappropriately and dangerously seeks to have the individual needs and wishes of residents ignored to accomplish an ideological goal of closing larger ICFs/MR.
CONCLUSION For all the reasons identified above, Intervenors move, pursuant to Fed.R. Civ. 12 (b)(l) and 12(b)(6), to dismiss the Complaint for Declaratory and Injunctive Relief on the grounds that this Court lacks subject matter jurisdiction to entertain this claim and on the grounds that the
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DOJ has failed to state a claim upon which relief can be granted. The Intervenors respectfully request that this Honorable Court dismiss the Complaint.
Respectfully Submitted,
/s/ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
/s/ Thomas B. York Pennsylvania Bar# 32522 Donald B. Zaycosky Pennsylvania Bar# 91821 Cordelia Elias Pennsylvania Bar # 204965 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 1711 0 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
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CERTIFICATE OF SERVICE
I, hereby certify that on the 2nd day of March, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson K. Tysinger Virginia Office of the Attorney General
900 East Main Street Richmond, Virginia 23219 ATysinger@oag.state.va. us
Robert Mcintosh Assistant United States Attorney 600 East Main Street, Suite 1800
Richmond, VA 23219 Robert.Mclntosh@usdoj .gov
Alison N. Barkoff Special Counsel for Olmstead Enforcement
Civil Rights Division 950 Pennsylvania Avenue, NW
Washington D.C. 20530 Alison.Barkoff@usdoj .gov
Benjamin 0. Tayloe Jr. Deputy Chief
950 Pennsylvania Avenue, NW Washington D.C. 20530
Benjamin.tayloe@usdoj. gov
Aaron B. Zisser Trial Attorney 950 Pennsylvania Avenue, NW Washington D.C. 20530 Aaron.Zisser@usdoj .gov
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Is/
Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
Is/
Thomas B. York Pennsylvania Bar# 32522 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com
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EXHIBIT A

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 30 of 42 PageID# 115

, ,

,",,Case;tl:O~:-cV-00033-JLH Document 1 Filed 01/16/09 Page 12 of 12

(@ffict llf f~t Atttttntl! Oitnttttl
1Ubut4inghm.E. Qt. 20,5$0

CERTIFICATE OF THE ATTORNEY GENERAL

I, MICHAEL B. MUKASEY, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. State of Arkansas, I have complied with all subsections of 42 U.S.C. § 1997b(a) (1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a) (2). I further certify, pursuant to 42 U.S.C. § 1997b(a) (3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.

In addition, I certify that I have the "reasonable cause to
believe," set forth in 42 u.s.c. § 1997a, to initiate this
action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997 have been met.

Pursuant the personally

have personally signed U.S.C.§ 1997b(b), I am

Signed Washington,

Attorney General of the United States
42 u.s.c. § 1997

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EXHIBITB

J 'I

Case

3:12C-cavs-e0040:05Q9~'-cJvA-G000D33o-cJuLmH enDto1c9u-m1 enFt i1led

03/02/12 Page 32 of 42 Filed 01/16/09 Page 1 of

PageID# 12

117

'

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF ARKANSAS;

)

THE HONORABLE MIKE BEEBE,

)

Governor of the State of Arkansas, )

in his official capacity only;

)

JOHN M. SELIG, Director of the

)

Arkansas Department of

)

Human Services, in his

)

official capacify only;

)

JAMES C. GREEN, Ph.D,

)

Director of the Arkansas Division )

of Developmental Disabilities

)

Services, in his official

)

capacity only; CALVIN PRICE,

)

Superintendent of the Conway Human )

Development Center, in his

)

official capacity only,

)·

)

Defendants.·

)

)

--~-----------------------------)

CASE NO. CV- Q:09(!.\JCJ0,33~
COMPLAINT FOR:
1. VIOLATIONS OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;
2. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT;
3 . VIOLATIONS OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

toOl~~ Thlscase assigned

and to Magistrate Judge

·

:

COMPLAINT

PLAINTIFF, THE UNITED STATES OF AMERICA ("Plaintiff"), by its under~igned attorneys, hereby alleges; upon information and belief:
1. The Attorney General files this Complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 (2000), to enjoin the named Defendants from egregiously and flagrantly depriving

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\ ..

Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 2 of 12

-2individuals housed in Conway Human Development Center (the "Center") of rights, privileges, or immunities secured and protected by the Constitution and laws of the United States.
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under
28 u.s.c. §§ 1331 and 1345 (2000).
3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a.
4. The Attorney General has .certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Eastern District of Arkansas is proper pursuant to 28 U.S.C. §. 1391 (2000).
DEFENDANTS 6. Defendant State of Arkansas owns and operates the Center, and as such has responsibility for the services and supports provided to residents at the Center. 7. The Center is a State facility for individuals with developmental disabilities. 8. Defendant Mike Beebe is the Governor of the State of Arkansas, and in that capacity, he has responsibility for the operation of the Center.

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 34 of 42 PageID# 119 Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 3 of 12
-3-
9. Defendant John M. Selig is the Director of the
Department of ~uman Services, which has responsibility for overseeing the operation of the Center.
10. Defendant Dr. James C. Green is the Director of the Division of Developmental Disabilities Services, which has responsibility for overseeing the operation of the Center.
11. Defendant Calvin Price is the Superintendent of the Center.
12. The individual Defendants named in paragraphs 8 through 11 are officers of the State of Arkansas and are sued in their official capacity only.
FACTUAL ALLEGATIONS 13. Defendants are legally responsible/ in whole or in part, for the operation of the Center and for the health and safety of the persons residing in the Center. 14. The Center is an institution within the meaning of 42 U.S.C. §§ 1997(1). The Center provides care to individuals with developmental disabilities. 15. Defendants are obligated to operate the Center in a manner that does not infringe upon the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of individuals residing at the Center.

Case

3:12-cv-00059-JAG Document 19-1 Filed Case 4:09-cv-00033-JLH Document 1

0F3ile/0d20/112/16P/0a9geP3a5geof44. o2fP1a2geID#

120

-416. Defendants are obligated to provide treatment, supports, and services to individuals residing in the Center consistent with the Americans with Disabilities Act and implementing regulations. 42 U.S.C. §§ 12101-12213; 28 C.F.R.
pt. 35 (2006). 17. Also residing at the Center are persons considered a
"child with a disability" under the Individuals with Disabilities Education Act {IDEA), 20 U.S.C.A. §§ 1401 (3) (A) (i) and 3(A) (ii) {West 2000 & Supp. 2006), and Defendants are obligated to provide such persons a free and appropriate public education in the least restrictive setting, with necessary supports and services consistent with the IDEA and implementing regulations. 20 U.S.C.A. §§ 1400-1482; 32 C.F.R. pt. 300 (2006).
18. At all relevant times, Defendants have acted or failed to act, as alleged herein, under color of state law.
19. Individuals reside at the Center because they have been determined by Defendants to have developmental disabilities requiring treatment, supports, and services.
20. Defendants have failed and are continuing to fail to provide reasonably safe conditions and to ensure the reasonable safety and personal security of the Center residents.
21. Defendants have failed and are continuing to fail to provide the Center residents with that level of habilitation and training, including behavioral and related training programs,

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 36 of 42 PageID# 121 Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 5 of 12
- 5necessary to protect the residents' liberty interests and to ensure their safety and freedom from undue or unreasonable restraint.
22. Defendants have failed and are continuing to fail to ensure that restraints are administered to residents by appropriately qualified professionals in keeping with accepted professional standards, and are not used as punishment, in·lieu of treatment, or for the convenience of staff. Defendants have failed and are continuing to fail to supervise adequately residents in restraints to protect them from harm.
23. The Center's treatment, supports, and services substantially depart from generally accepted professional standards of care, thereby exposing individuals residing in the Center to significant risk and, in some cases, to actual harm.
24. The Center's treatment, supports, and services substantially depart from generally accepted professional standards of care in the following specific respects, among others:
a. the provision of adequate psychological, and behavioral services;
b. the provision of adequate medical, neurological, and nursing services;
c. the provision of adequate psychiatric services;

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 37 of 42 PageID# 122 Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 6 of 12
-6d. the provision of adequate habilitation and therapy
services, including physical therapy, occupational therapy, speech and language therapy, and other forms of therapy, physical management, nutritional services and related services; and e. the provision of adequate protections from harm. 25. Defendants have failed and are continuing to fail to adequately assess individuals residing i~ the Center to ascertain whether these individuals are receiving adequate treatment, supports, and services in the most integrated setting appropriate for their individual needs; to ensure that those individuals whom professionals determine should be placed in the community, and who do not oppose such placement, are placed there; and to ensure that the Center's residents are served in the most integrated setting appropriate for each resident's individual needs; 26. Defendants have failed and are continuing to fail to ensure that individuals with disabilities are adequately evaluated and provided the necessary supports and services to receive a free and appropriate public education in the least restrictive environment as required by United States laws and regulations.

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 38 of 42 PageID# 123 Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 7 of 12
-7VIOLATIONS ALLEGED
COUNT ONE: Violations of the Due Process Protections of the Fourteenth
Amendment to the United States Constitution 27. The United States incorporates by reference the allegations set forth in paragraphs 13 through 26 as if fully set forth herein. 28. The egregious and flagrant acts and omissions alleged in paragraphs 13.throug~ 26 constitute a pattern or practice that violates the federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and by other federal law, of individuals residing in the Center. 29. Unless restrained by this Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 13 through 26 that deprive the Center's residents of rights, privileges, or immunities secured or protected by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
COUNT TWO: Violations of the Americans with Disabilities Act 30; The United States incorporates by reference the allegations set forth in paragraphs 13 through 26 as if fully set forth herein.

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 39 of 42 PageID# 124 Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 8 of 12
- 8-
31. The egregious and flagrant acts and omissions alleged in paragraph 26 violate the ADA and· implementing regulations. 42 U.S.C. §§ 12101-12213, 28 C.F.R. pt. 35.
32. Unless restrained by this Court, Defendants will continue to engage in the egregious and flagrant acts and omissions set forth in paragraphs 13 through 26 that deprive the Center's residents of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.
COUNT THREEl Violations of the Individuals with Disabilities Education Act
33. The United States incorporates by reference the allegations set forth in paragraphs 13 through 26 as if fully set forth herein.
34. The acts and omissions alleged in paragraphs 13 through 26 violate the IDEA and implementing regulations. 20 U.S.C.A. §§ 1400-1482; 32 C.F.R. pt. 300.
35. Unless restrained by this Court, Defendants will continue to engage in the condu~t and practices set forth in paragraphs 13 through 26 that deprive residents of the Center of rights, privileges, or immunities secured or protected by federal law, and will cause irreparable harm to these residents.

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 40 of 42 PageID# 125 Case 4:09-cv.-00033-JLH Document 1 Filed 01/16/09 Page 9 of 12
- 9PRAYER FOR RELIEF
36. The Attorney General is authorized under 42 u.s.c.
§ 1997a to seek equitable and declaratory relief. WHEREFORE, the United States prays that this Court enter an
order: a. Permanently enjoining Defendants 1 their officers 1 agents 1 employees/ subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts 1 omissions, and practices set forth in paragraphs 13 through 26 above, and that this Court require Defendants to take such actions as will ensure lawful conditions of institutionalization are afforded to residents of the Center, including the provision of adequate treatment in the most integrated setting appropriate to their individualized needsi b. Declaring that the acts 1 omissions, and practices set forth in paragraphs 13 through 26 above constitute a pattern or practice of resistance to Center residents' rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, and that those acts, omissions, and practices violate the Constitution and laws of the United States; and

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- 10 -
c. Granting such other and further equitable relief as the Court may deem just and proper.
Attorney General of the United States
kQ~ iclh.mG~Acting Assistant Attorney General Civil Rights Division
Section
LOE, JR. Speci ' Counsel CHRISTOPHER N. CHENG JACQUELINE .K. CUNCANNAN ARETHEA A. COLES KERRY KRENTLER Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, DC 20530
(202) 514-6255
(202) 514-6903 (fax)

Case 3:12-cv-00059-JAG Document 19-1 Filed 03/02/12 Page 42 of 42 PageID# 127

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Case 4:09-cv-00033-JLH Document 1 Filed 01/16/09 Page 11 of 12

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R

.M. PENCE, J

Assistant United States Att rney

Eastern District of Arkansas

425 West Capitol Avenue

Metropolitan Tower Building

Suite 500

Little Rock, AR 72201

(501) 340-2626

richard.pence@usdoj.gov

 </s> Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 1 of 32 PageID# 128

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff, v.
COMMONWEALTH OF VIRGINIA, Defendant.

:

:

:

CIVIL ACTION 3:12-CV-059

:

:

:

:

:

:

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR INTERVENTION
BY PROPOSED INTERVENORS The dispute in this case relates to the five (5) training centers for the intellectually disabled in the Commonwealth of Virginia (also referred to as Intermediate Care Facilities for the Mentally Retarded “ICFs/MR”). The United States Department of Justice and the Commonwealth of Virginia have entered into a settlement agreement, the terms of which will adversely impact the civil rights of the Proposed Intervenors as guaranteed them by the Americans with Disabilities Act and other relevant law. I. Statement of Facts The Proposed Intervenors are residents of the Commonwealth’s five (5) training centers. On January 26, 2012, the United States Department of Justice (“DOJ”) filed a civil action in the United States District Court for the Eastern District of Virginia, against the Commonwealth of Virginia (“Commonwealth”), alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134.1 Simultaneously, the United States, with the concurrence of the

1 Proposed Intervenors attached a proposed Motion to Dismiss challenging the ability of the United States to file an ADA lawsuit addressing statewide compliance with the ADA without addressing any conditions in any state-operated institution for the intellectually disabled.
1

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 2 of 32 PageID# 129
Commonwealth of Virginia, filed a settlement agreement which the parties have submitted for approval by this Court. This settlement agreement, among other things, calls for the closure of four (4) of the five (5) training centers currently operated by the Commonwealth. Settlement Agreement at 11. The settlement agreement was executed by the Commonwealth and the United States without consideration of the individual needs and desires of the residents in the training centers. In fact, no resident, or parent or guardian of a resident, was ever consulted or provided with information as to the specific provisions of the agreement before it was executed. The central concern of the Proposed Intervenors is that the present parties have demonstrated that they are not protecting the interests of the residents of the training centers and, if the settlement agreement is approved by this Court, Proposed Intervenors will be forced to comply with the terms of the agreement, and will be unwillingly and inappropriately transferred or discharged from the centers. Proposed Intervenors will have their rights denied and their lives irrevocably harmed without having an opportunity to participate in defining the terms of the agreement and be unable to protect their interests in this litigation. Because of the serious harm that they will suffer if the settlement agreement is approved by this Court, the Proposed Intervenors seek to intervene in this matter.
II. ARGUMENT The proposed intervention relates to a larger debate taking place in courts specifically and in
society generally across the country regarding the appropriate care of the intellectually disabled. The DOJ appears to be advancing an ideological agenda to eliminate all larger congregate settings, including ICFs/MR, and discharge some of the most medically-fragile and vulnerable individuals to settings that may not be appropriate or may even be dangerous. The Commonwealth of Virginia appears to advance an agenda of eliminating large ICF/MR services in an ill-conceived hope of
2

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 3 of 32 PageID# 130
reducing costs of care for individuals with disabilities. Both of these agendas are being advanced at the risk of the Proposed Intervenors who reside at the training centers at issue. Proposed Intervenors believe that each individual is unique and that a continuum of residential care options should be available that includes both community-based care and ICF/MR homes. The Proposed Intervenors, as residents of ICF/MR facilities, wish to protect their rights guaranteed by the decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), which recognized that people with intellectual disabilities have the right to choose to live in the “most integrated setting” appropriate to their particular individual needs. “[A] key principle in the Olmstead decision [is] personal choice.” Arc of Virginia, Inc. v. Kaine, 2009 U.S. Dist. LEXIS 117677 (E.D. Va. 2009). (Eastern District of Virginia Court ruling that the personal choice of the individuals being served is the controlling factor in determining whether any particular placement is inappropriate and correcting the United States for consistently failing to account for the choice of the individuals.)
The United States has entered into a settlement agreement with the Commonwealth of Virginia for which they seek Court approval. The settlement agreement calls for four (4) of the five (5) training centers in Virginia to cease operations by 2021. Settlement Agreement at 11, ¶9. (stating that “within one year of the effective date of this Agreement, a plan, developed in consultation with the Chairmen of Virginia’s House of Delegates Appropriations and Senate Finance Committees, to cease residential operations at four of the five training centers by the end of State Fiscal Year 2021.”) The DOJ has entered into this agreement with the Commonwealth and is now seeking the Court’s approval without addressing how the 1,100 individuals residing at these training centers will be adversely impacted by the elimination of ICF/MR services and without considering the rights of these residents to approve services in any particular setting. This failure appears to be part of a strategic plan consistent with the politically correct, but factually incorrect,
3

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 4 of 32 PageID# 131
belief that community-based care is the only appropriate option for the entire intellectually disabled population. Complaint ¶ 37. (stating that “all of the individuals in [Virginia’s] training centers could be served in the community”) (emphasis added).
The DOJ and the Commonwealth are asking that this Court incorrectly assume that nonICF/MR community-based care is best for all individuals with disabilities and also to falsely assume that Olmstead requires community care. Complaint ¶ 9- 10. The law is clearly to the contrary. See Olmstead, 527 U.S. at 602 (“Nor is there any federal requirement that communitybased treatment be imposed on patients who do not desire it.”) The Supreme Court clearly ruled that “the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk.” Id. at 604.
Justice Kennedy’s concurring opinion in Olmstead recognized that ideological goals, such as those evidenced by the proposed settlement agreement, may have disastrous effects if applied in a Procrustean fashion to the entire intellectually disabled community:
It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act . . . to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision. Olmstead, 527 U.S. at 610 (Kennedy, J., concurring in judgment). Apparently, the Plaintiff and Defendant will settle this case against the interests of the Proposed Intervenors, and essentially do what was feared by Justice Kennedy in his concurring opinion. The parties seek to implement this settlement which calls only for community-based options and for the elimination of larger congregate care options. Accordingly, the Proposed Intervenors move to intervene in this matter in order to protect their own interests in choosing the most appropriate setting to meet their needs and to have the benefit of the recommendations of
4

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 5 of 32 PageID# 132
treating professionals regarding the most appropriate setting to receive services. Should the parties obtain Court approval of this settlement agreement, the Proposed Intervenors will lose rights without having had an opportunity to be party to negotiations to define the terms of an agreement that will have a severe impact on their lives. Perhaps, more fundamentally, given the fragile condition of some of the residents involved, they could be forced to move into settings that do not provide adequate care and may result in serious harm, including death. It is not an exaggeration that this intervention may be a matter of life and death for some of the Proposed Intervenors.
As discussed below, the Proposed Intervenors qualify for intervention as of right. Alternatively, as further discussed in detail below, this Court should grant permission to intervene because the Proposed Intervenors have filed a timely motion and they share a common interest in law and in fact.
A. Proposed Intervenors Are Entitled To Intervene As A Matter of Right Under Rule 24 of the Federal Rules of Civil Procedure, intervention as a matter of right is appropriate where: (1) the motion is timely; (2) the intervenor claims an interest relating to the property or transaction that is the subject of the action; (3) the intervenor is so situated that disposing of the action may, as a practical matter, impair or impede his ability to protect the interest; and (4) existing parties do not adequately represent the interest. Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989); Fleming v. Citizens for Albemarle, Inc., 577 F.2d 236 (4th Cir. Va. 1978); JLS, Inc. v. Pub. Serv. Comm’n of W. Virginia, 321 F. App’x 286, 289 (4th Cir. 2009). Because the Proposed Intervenors satisfy each element, this Court should grant their Motion to Intervene as a matter of right.
5

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 6 of 32 PageID# 133
1. This Motion to Intervene is Timely Because the Proposed Intervenors have filed their Motion to Intervene before this action has progressed beyond the initial pleading stage, and even before the Commonwealth has filed a responsive pleading, this Court should hold that the Motion to Intervene is timely filed. Generally, in determining whether a motion to intervene is timely, courts consider: (1) how far the suit has progressed; (2) the prejudice that delay might cause other parties; and (3) the reason for the tardiness, if any, in moving to intervene. Scardelletti v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001); Wright v. Krispy Kreme Doughnuts Inc., 231 F.R.D. 475, 478 (M.D.N.C. 2005). Ultimately, the purpose of the timeliness requirement “is to prevent a tardy intervenor from derailing a lawsuit within sight of the [case’s] terminal.” Id. (quoting United States v. South Bend Cmty. Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983)). The initial Complaint in this matter was just filed on January 26, 2012. This case is not past its initial pleading stage. Where a case has not progressed beyond the initial pleading stage, the motion to intervene is timely. Scardelletti at 203; see also, GMAC Mortg., LLC v. Flick Mortg. Investors Inc., 3:09-CV-125-RJC-DSC, 2011 WL 841409 (W.D.N.C. 2011). This is not an intervention that would “derail [] a lawsuit within sight of the terminal.” Wright, 231 F.R.D. at 478. Thus, the Proposed Intervenors’ Motion is timely.
2. The Proposed Intervenors Have a Substantial Interest in the Subject of this Action
Because the Proposed Intervenors have a substantial, concrete and protectable interest in their own care and in protecting their rights under the ADA as interpreted by Olmstead v. L.C., 527 U.S. 581(1999), which is the central issue of this litigation, the Court should hold that they have satisfied the second element necessary to obtain intervention as a matter of right.
With regard to the “interest” requirement for intervention, district courts in the Fourth Circuit have established that "in cases challenging various statutory schemes as unconstitutional
6

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 7 of 32 PageID# 134
or as improperly interpreted and applied, the courts have recognized that the interests of those who are governed by those schemes are sufficient to support intervention." Cooper Techs., Co. v. Dudas, 247 F.R.D. 510, 514 (E.D. Va. 2007) (citing 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane; Federal Practice & Procedure: Civil § 1908) (2d ed. 1986). Although Federal Rule of Civil Procedure 24(a) does not articulate the nature of the interest in an action which is sufficient to permit intervention as of right, the Supreme Court of the United States has held that “[w]hat is obviously meant . . . is a significantly protectable interest.” Donaldson v. United States, 400 U.S. 517(1971). “To be protectable, the putative intervenor's claim must bear a close relationship to the dispute between the existing litigants and therefore must be direct, rather than remote or contingent.” Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109 (E.D. Va. 1993).
The Proposed Intervenors currently reside in the training centers identified in the DOJ complaint and proposed settlement agreement, and they could have no closer relationship to the subject matter of this case. They are all residents of facilities who do not wish to be forced into community-based homes. Residents of the five (5) training centers have substantial and concrete interests in this litigation, which include interests in choosing where they receive services, exercising their right to oppose transfer or discharge, being provided information to make informed decisions, preserving a continuum of care, and being evaluated for the most integrated setting appropriate to meet their needs. In this case, the DOJ and the Commonwealth are attempting to redefine and reduce the care options available to the Proposed Intervenors in furtherance of the mistaken belief that all ICF/MR residents should and “could be served in the community.” Complaint ¶37. The DOJ unfairly disparages institutional care as “unnecessary” and incorrectly suggests that those who reside in training centers are unnecessarily institutionalized. Complaint ¶39 (stating that “individuals are unnecessarily institutionalized due
7

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 8 of 32 PageID# 135
to lack of adequate community-based supports and services”). Also, the DOJ and the Commonwealth inaccurately propose that serving individuals in community-based placements is necessarily more cost effective. Complaint ¶33 (stating that “[e]ven individuals with the most complex needs can be served appropriately in the community for significantly less than the cost of serving them in a training center…”). Although cost alone is not a sufficient basis to deny the Proposed Intervenors the services they require in ICFs/MR, the evidence will demonstrate that the highest care individuals who now remain in ICFs/MR are likely to cost a comparable amount to serve in community-based settings and that many services provided by ICFs/MR are not even readily available in community-based settings. The original parties have not adequately addressed these issues. The Court should not assume that any current resident of the subject training centers could receive the same type of services in any alternative setting for a lower cost.2
a. Proposed Intervenors Have A Substantial Interest In Protecting Rights Afforded Them By The ADA, Olmstead And Virginia Law
The Proposed Intervenors have a legally protectable interest in their own care, as well as an interest in retaining a meaningful right to choose continued residence at an ICF/MR setting. The Proposed Intervenors also have an interest in opposing the claims that ICFs/MR do not provide “the most integrated setting appropriate to their needs” and place residents “at risk of unnecessary institutionalization.” Complaint ¶ 42. Olmstead acknowledged the existence of this specific interest possessed by the Proposed Intervenors in the right to choose whether community care or ICF/MR care is appropriate. Olmstead at 602. (“Nor is there any federal requirement that 2 The anticipated savings resulting from an ICF/MR closure are highly questionable. In contrast to the all-inclusive ICF/MR cost figures, costs associated with community-based care routinely exclude significant items such as room and board, health care, transportation and day programs and employees are less trained and receive lower wages than ICF/MR employees. See Walsh, Kastner and Green, Cost Comparisons of Community and Institutional Residential Settings: Historical Review of Selected Research, Mental Retardation, Volume 41, Number 2, pp. 103-122 (April 2003; unpublished update, 2009). (A193)
8

Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 9 of 32 PageID# 136
community-based treatment be imposed on patients who do not desire it.”) The Complaint and settlement agreement filed by the DOJ and the Commonwealth threatens the right of the Proposed Intervenors to choose to continue to receive ICF/MR care rather than community-based services. The fact that the Commonwealth has already concurred with the DOJ and executed the settlement agreement to close their ICF/MR homes, without Proposed Intervenors having any opportunity to negotiate the terms of the agreement, shows that this action will have concrete adverse consequences which will drastically affect the residents of these training centers.
In their Complaint, the Department of Justice has falsely represented the holding in Olmstead. For instance, the Department of Justice alleges:
Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607. Complaint at ¶ 10. This rendition of the holding in Olmstead, which the Commonwealth has impliedly endorsed, misstates the Supreme Court’s first prerequisite to community placement, that “the State’s treatment professionals have determined that community placement is appropriate.” The DOJ’s application of the other two prongs of the three-part test in this case also misrepresents Olmstead. In Olmstead, an action was filed on behalf of two women with mental retardation and co-morbid psychiatric disorders, known by their initials, L.C. and E.W. After being admitted voluntarily to the Georgia Regional Hospital in Atlanta in May 1992, L.C.’s schizophrenia was treated and stabilized. By May 1993, L.C. expressed a desire to leave the Georgia Regional Hospital and her treating professionals at the facility agreed that she could have her needs met in a state-supported community treatment program. However, L.C. remained in the Georgia Regional Hospital for nearly three more years. Plaintiff E.W. was voluntarily hospitalized at the Georgia Regional Hospital in February 1995 with a diagnosis of personality disorder. By 1996, E.W.
9

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expressed a desire to leave the facility and her therapist concluded that she could be treated in a community-based treatment program. Both women argued that the state’s failure to discharge them to a community-based treatment program violated Title II of the ADA.
Finding that L.C.’s and E.W.’s continued treatment against their wishes at the Georgia Regional Hospital violated the ADA, Olmstead developed a three-prong test to determine when the ADA “require[s] placement of persons with mental disabilities in community settings rather than in institutions.” Id. at 587. The Court instructed that community placement is required when “the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id.
In interpreting the ADA and the Department of Justice’s regulations issued under it, Olmstead emphasized that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 602. The Department of Justice’s allegations in the instant matter are diametrically opposed to this proposition. Olmstead further stressed that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601-02. However, the DOJ and the Commonwealth fail to recognize that there are individuals in the training centers who cannot handle or cannot benefit from community settings. “[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients, in need of close care, at risk.” Id. at 605. Yet, the proposed settlement dictates closure of nearly all the Commonwealth’s larger ICFs/MR without any consideration of the risk to those residents being transferred or discharged.3 In fact,
3 The Commonwealth’s plan with regard to Southeastern Virginia Training Center is to reconstitute the facility to accommodate 75 residents at a time for short term, 30 day placements. Current residents will be displaced, which
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Olmstead recognized that “for [some] individuals, no placement outside the institution may ever be appropriate.” Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curiae at 22-23 (“Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times—perhaps in the short run, perhaps in the long run—for the risks and exposure of the less protective environment of community settings”); Brief for Voice of the Retarded et al. as Amici Curiae 11 (“Each disabled person is entitled to treatment in the most integrated setting possible for that person—recognizing that, on a case-by-case basis, that setting may be in an institution”); Youngberg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) (“For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know”). The proposed settlement demonstrates deliberate indifference to the needs of residents of ICFs/MR who cannot be appropriately placed in a community-based setting without significant harm and maybe even death.
The settlement agreement ignores residents’ right to have treating professionals render judgments as to where these individuals should receive services most appropriate to their needs. Indeed, each resident is evaluated annually to determine treatment needs and whether the training center remains the most appropriate home. These annual evaluations by the residents’ treating professionals have been ignored by this settlement agreement. The Complaint does not allege that treating professionals have failed to render such judgments, that any treating professionals disagree in their recommendations about where residents should receive services, or that treating professionals fail to communicate those judgments to residents and guardians, but rather, the Settlement Agreement and the Complaint are both silent on the right of residents to receive and to
implicates their rights in the very same way as the rights of the residents of the training centers which will be closing due to the settlement.
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rely upon professional judgments as to the settings appropriate to meet their needs. The silence on the part of the DOJ and the Commonwealth demonstrates that the Proposed Intervenors must represent their own interests in this matter. In fact, Intervenors have a federally protected right to receive recommendations from treating professionals as to whether community placement is appropriate and to oppose that transfer, even if the proposed transfer is from institutional care to an appropriate community setting. In fact, the Virginia Code incorporates this federal right: “Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no consumer at a training center who is enrolled in Medicaid shall be discharged if the consumer or his legally authorized representative on his behalf chooses to continue receiving services in a training center.” Va. Code. Ann. § 37.2- 837(A)(3).
Court decisions preceding Olmstead consistently recognized the rights of individuals to receive ICF/MR care. In Conner v. Branstad, a district court soundly reasoned that “if Congress had actually intended to require states to provide community-based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so.” Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993); see also U.S. v. Oregon, 782 F. Supp. 502, 514 (D. Or. 1991) (“[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility].”).
Since Olmstead, courts around the country have made clear that the Olmstead decision cannot be twisted to require deinstitutionalization or the closure of residential facilities such as those within the Commonwealth. In the case of Ligas v. Maram, 2010 U.S. Dist. LEXIS 34122 (N.D. Ill., 2010), an Illinois district court recently relied on Olmstead to grant proposed intervenors the right to intervene in litigation that was similar to the instant matter. The plaintiffs
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in that case were Illinois residents with mental retardation and other developmental disabilities
who sought to enforce their rights as set forth in Olmstead, while the Intervenors were residents of
ICF/MR facilities in Illinois who objected to the terms of the proposed consent decree presented
by the plaintiffs. The district court noted that the Justices in Olmstead were very much aware of
competing claims on limited State resources, stating:
Justice Ginsburg’s plurality opinion notes the States’ obligation “[t]o maintain a range of facilities and to administer services with an even hand.” Id. at 605. Similarly, Justice Kennedy’s concurring opinion recognizes the “continuing challenge” that States face “to provide . . . care in an effective and humane way,” and it is in this context that he stresses the “central importance” of deferring to decisions made by State policymakers. Id. at 608-10. Accordingly, the Olmstead Court directed the lower courts to “tak[e] into account the resources available to the State and the needs of others with mental disabilities” if the fundamental-alteration defense is raised. Olmstead, 527 U.S. at 607. Because the State Defendants apparently do not believe it is proper, necessary, or advisable to raise the fundamental-alteration defense at this point in the litigation, this court simply has no basis to address the third prong of the Olmstead equation. Yet, a settlement that does not consider the needs of the Proposed Intervenors—or a settlement promising relief to the Named Plaintiffs that the State admittedly cannot deliver—would run contrary to the rationale set forth in Olmstead. Accordingly, the court finds that the Proposed Intervenors have a right under Olmstead to have their needs considered before the Amended Proposed Consent Decree is approved. The interest the Proposed Intervenors have in this litigation is direct, significant, and legally protectable.
Ligas at 13-14. “Olmstead’s requirement that the court consider the needs of other individuals with mental
disabilities must be read in its full intended context.” Id. at 11. Ligas found that the proposed
intervenors had a right under Olmstead to have their needs considered before the amended
proposed consent decree between the plaintiffs and the State of Illinois was approved stating that
“the interest the Proposed Intervenors have in this litigation is ‘direct, significant, and legally
protectable.’” Id. at 14, citing Solid Waste Agency of N. Cook County v. U.S. Army Corp. of
Eng’rs, 101 F.3d 503, 506 (7th Cir. 1996). The Ligas Court noted that the Supreme Court in
Olmstead “recognized that the needs of individuals with mental disabilities are often in conflict.”
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Ligas at 16, (citing Olmstead, 527 U.S. at 597). The Court went on to state that “the pending litigation threatens to impair the Proposed Intervenors’ interest in having their needs considered before the Amended Proposed Consent Decree is approved.” Id. The Ligas Court granted the intervention of residents who were similarly situated to the Proposed Intervenors in the case at hand.
Here, the settlement does not include any specific mention of the Proposed Intervenors’ need for state-operated ICF/MR services. Moreover, the settlement agreement is slated to remain in effect for nine (9) years. [Dkt. #2-2, Settlement Agreement at 11]. If the needs of the Proposed Intervenors are not considered before the settlement is approved, the Proposed Intervenors’ future ability to have their needs considered in balance with the State’s obligations to the DOJ would “as a practical matter” be significantly impaired. Fed. R. Civ. P. 24(a)(2).
The issue of intervention in this type of litigation was taken up by the Ninth Circuit in U.S. v. Oregon, et al. 839 F.2d 635 (1988). In that matter, the DOJ sued the State of Oregon, alleging “failure to provide minimally adequate training, medical care, sanitation and trained staff[]” in its operation of the Fairview Training Center. Id. at 636. The residents of the Fairview Training Center moved to intervene in that action, alleging that their interests were not adequately represented by the DOJ or the State. Although the district court denied the residents motion to intervene, the Ninth Circuit reversed the lower court’s decision and remanded. The Ninth Circuit concluded that, although the DOJ had only filed a complaint, “it [was] apparent that the government’s arguments [would] not include the constitutional deficiencies raised by the applicants.” Id. at 638. There was no proposed settlement agreement in the Oregon case, as there is in this matter. The settlement agreement reached by the DOJ and Commonwealth in this case make the Proposed Intervenors interest even more apparent. In admonishing the district court, the
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Ninth Circuit noted that “[c]learly the district court’s consideration of the United States’ claims in isolation from the concerns of the applicants could have a powerful and immediate effect upon the practical ability of the applicants to affect in later litigation the distribution of resources available for mental health in the State of Oregon.” Id. at 639.
It is clear that courts have upheld the right of institutionalized individuals to intervene in actions of this nature, finding that the residents of state-operated facilities have a substantial interest in their own care as well as in protecting their individual civil rights.
b. The Proposed Intervenors Have A Substantial Interest In Protecting Themselves From Imminent Harm
The Proposed Intervenors also have an interest in this litigation because of the risk of harm that is imposed by inappropriate transfer or discharge. National mortality studies show that Proposed Intervenors are at real risk if placed in community-based settings that the DOJ and Commonwealth seek to force them into, without regard for the rights or needs of Proposed Intervenors. Evidence shows that the medical care required for profoundly disabled individuals is often deficient in community settings. Perhaps the most thorough and recent study relating to the risks of abuse and neglect of people with intellectual disabilities upon their transfer from ICFs/MR to community placement was performed by Robert Shavelle, David Strauss, and Steven Day. See Deinstitutionalization in California: Mortality of Persons with Developmental Disabilities after Transfer into Community Care, 1997-1999, JOURNAL OF DATA SCIENCE 3 (2005). Using information that the authors gathered on 1,878 children and adults who were moved from the ICF/MR setting to community placement between April 1, 1993 and December 31, 1999, they analyzed the increased mortality rate between those that moved into community placement as compared to those that stayed in ICF/MR settings. The reason the authors studied mortality rates
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was because it was a simple, unambiguous measure of the quality of health care that awaited these individuals upon deinstitutionalization. In performing their study, the authors compared the California Development Evaluation Report data base (1997-1999) with information from the California Department of Health Services (1999). They also took into consideration factors such as age, sex, feeding and mobility skills to predict the probability of death for each of the individuals involved. Based on the data they collected and analyzed, the authors found a 47% increase in mortality in community placement settings over that expected in ICFs/MR. The authors reasoned that the higher mortality rates for community placement individuals were due to lack of continuity of care, the absence of centralized record keeping, the reduction in intensive supervision, and limited access to immediate medical care. Although the article does not focus on the political issues often involved in the decisions to deinstitutionalize, it did touch on them, citing two primary factors: (1) the cost of savings of deinstitutionalization, as well as (2) the “social value” of integration. The authors noted that these issues needed to be weighed against the increased risk of mortality that was readily apparent from the years of studies they conducted.
In an article written by Shavelle and Strauss in 1998, the authors further point out there is no reason to believe that the problems of increased mortality are confined to California. See Strauss, David and Shavelle, Robert, Policy Implications of Mortality Research: Authors’ Perspectives, What Can We Learn From the California Mortality Studies?, MENTAL RETARDATION, p. 407 (October 1998). They cite to a 1993 Congressional Report that documented shortcomings in four other states: Connecticut, Massachusetts, Michigan, and New York, which, Congressional investigators indicated, were “typical examples of abuse, neglect and profiteering,” A 1996 article by P.D. Hall was also cited that highlighted the evolution of problems with the provision of medical care in various communities. Id. (citing, U.S. House of Representatives,
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1993, and Hall, P.D., There’s No Place Like Home: Contracting Human Services in Connecticut, 1970-1995 (Working Paper No. 234), New Haven, Yale University Program on Non-Profit Organizations). Both the Congressional Report and Hall’s report were based on data collected on individuals who were deinstitutionalized and harmed, and some even died, as a result of receiving ineffective care and medical services after being placed in community settings.
The media has also reported extensively on tragedies due to ill-prepared community settings. See Media Coverage Highlighting the Increasing Need for More Effective Federal and State Protections in the Ever-Expanding Community System of Care for People with Mental Retardation (November 2011) http://www.vor.net/images/AbuseandNeglect.pdf. Recently, The New York Times exposed alarming mortality rates in the states’ community homes for people with intellectual disabilities. According to The Times, there were 1,200 preventable mortalities (“from unnatural and unknown causes”) in state-run group homes over a period of 10 years. See, 1,200 Deaths and Few Answers, THE NEW YORK TIMES, (November 6, 2011) (A552). These deaths, averaging more than 100 a year, occurred during a period of significant deinstitutionalization in New York, and remarkably occurred without raising any apparent concern or investigation by the federal or state government, which are supposed to protect and advocate for these vulnerable citizens. That apparent apathy may exist in relation to the proposed settlement agreement in that residents of ICFs/MR may be discharged without regard for their rights or needs, no matter the outcome.
There can be no doubt that community-based placements are often ill-equipped to service the needs of the Proposed Intervenors, who include individuals with profound intellectual disabilities, many of whom cannot speak for themselves, survive on feeding tubes, are confined to a bed, and have the measured intelligence score of an infant or one-year-old. These individuals
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require 24-hour care and immediate medical assistance that is often not available to them in community-based settings. For Proposed Intervenors, discharge from a training center to a community-based setting likely could result in abuse, neglect, injury, and even death.
The Proposed Intervenors have a right under Olmstead to have their needs considered as interested parties. Their interests are similar to those of the Intervenors in both Ligas and US v. Oregon, in that they have a direct, significant and legally protectable interest pursuant to the ADA and Olmstead. The Proposed Intervenors have an interest in the continued availability of ICF/MR care and in the impact of the Commonwealth’s allocation of resources that it has agreed to in the settlement agreement. That interest lies in enforcing the mandate of Olmstead, which is that the needs and wants of Proposed Intervenors and other ICF/MR residents must be considered in determining the State’s obligation to provide the community-based services required by the proposed settlement agreement. Finally, the Proposed Intervenors have a substantial and concrete interest in protecting themselves from imminent harm in the case of inappropriate discharges. These interests satisfy the standard for intervention as of right.
3. Disposition of Action Impedes the Proposed Intervenors’ Ability to Protect their Interests
The focus of the impairment requirement is whether the absentee will be practically disadvantaged if not permitted to intervene, not whether the absentee will be legally bound as a matter of res judicata. Spring Constr. Co. v. Harris, 614 F.2d 374 (4th Cir. 1980). However, most courts, including district courts in the Fourth Circuit, have held that stare decisis by itself supplies the practical disadvantage that is required for intervention under Rule 24(a)(2). Shenandoah Riverkeeper v. Ox Paperboard, LLC, 2011 U.S. Dist. LEXIS 52318 (N.D. W. Va. May 16, 2011); Stone v. First Union Corp., 371 F.3d 1305 (11th Cir. 2004); U.S. v. Oregon et al., 839 F.2d 635 (9th Cir. 1988)(stating that the factual and legal determinations regarding the institutions, when
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upheld by an appellate ruling would have a stare decisis effect in any parallel or subsequent litigation).
This litigation, which directly involves the training centers in which the Proposed Intervenors reside, will, of necessity, result in factual and legal determinations concerning the closure of those centers and will result in a consent decree by which the Proposed Intervenors will be bound. Such determinations or consent decree, when upheld by an appellate ruling, will have a persuasive stare decisis effect in any parallel or subsequent litigation.
The Proposed Intervenors are so situated that the disposition of this action will as a practical matter impair or impede their ability to protect their interests. The DOJ and the Commonwealth have policy interests that they are both protecting by way of this settlement agreement. The present parties will no doubt conduct this litigation in a manner that best serves each of their narrow policy interests. The DOJ filed the Complaint in this matter simultaneously with the settlement agreement to possibly circumvent the opinions and views of the Proposed Intervenors. This backwards procedure is a conscious strategic choice by DOJ and by the Commonwealth to force policy changes without the inconvenient matter of determining how many interested persons actually favor that policy.4 As a practical matter, however, individuals such as the Proposed Intervenors will be grossly adversely affected because these policy decisions will be just as binding on them, despite their non-participation. The outcome of this litigation could have tragic effects on those who rely upon ICF/MR care, and the Proposed Intervenors
4 The DOJ and the Commonwealth’s collusion has also served to essentially bind the Commonwealth’s legislature de facto. The Commonwealth has agreed to allow the Court to impose sanctions on it if the Commonwealth is unable to comply with the terms of the settlement agreement. If the legislature is unable to appropriate funds for the settlement agreement in any given year, the court can impose sanctions on the Commonwealth to compel the Commonwealth’s compliance. Arguably, the settlement agreement constitutes an unlawful usurpation of the legislature’s authority by forcing the appropriation of funds for a result that was never submitted for legislative approval. VA Constit. Art. III § 1; Art. IV, Art. V.
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cannot sit idly by while their alleged governmental “advocates” attempt to close Virginia’s ICF/MR facilities before adequately assuring protection for the rights of the residents.
If the Settlement Agreement is implemented, Section III.C.1.a. will directly violate the rights of the Proposed Intervenors, as provided in the ADA and Olmstead. That section of the Settlement Agreement creates a quota system that dictates specific numbers of community waiver slots for current training center residents be discharged each year, for the next ten (10) years. [Dkt. #2-2, 5] That system violates the rights of the Proposed Intervenors because it ignores existing recommendations and does not allow for recommendations from treating professionals or for the residents’ and guardians’ possible opposition to transfer or discharge. For instance, that section requires the Commonwealth to create 60 waiver slots for Training Center residents to use upon discharge in 2012. There is no way the DOJ or Commonwealth could know that precisely sixty (60) training center residents would be appropriate for discharge in that year. Perhaps none of the residents would be appropriate for discharge in 2012 and perhaps more than sixty (60) residents would want to be discharged. The Court cannot assume that the DOJ and the Commonwealth intended to account for or respect Proposed Intervenors’ rights as provided in the ADA and Olmstead. When Section III.C.1.a. is read with the Commonwealth’s obligation to close its Training Centers, as provided in Section III.C.9., it is undeniable that the Settlement Agreement expressly violates the rights of the Proposed Intervenors. Section III.C.9. provides that by 2021, the Commonwealth will eliminate at least four (4) of its five (5) Training Centers and reconstitute the remaining Training Center for short-term 30-day replacements only. It is impossible to conceive how all residents of ICFs/MR in Virginia could all be served at one training center with limited capacity allowing only short term stays. The effect of Section III.C.1.a. is to create a quota system that simultaneously requires Proposed Intervenors to be
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discharged according to a rigid, arbitrary system created by the DOJ and Commonwealth, without providing for the rights of Proposed Intervenors as protected by the ADA and Olmstead.
As a practical matter, this litigation may also impair the Proposed Intervenors’ ability to obtain effective remedies in later litigation. The settlement agreement requires the creation of waiver slots for training center residents in unknown locations and commits the Commonwealth to come up with a plan for the closure of four (4) of the five (5) centers. The settlement agreement essentially requires the discharge of residents from the training centers into unknown locations and requires the closure of four (4) of the five (5) training centers. [[Dkt. #2-2, Settlement Agreement at 11 ¶ 9]. The Proposed Intervenors are concerned with all elements of this plan, including but not limited to, their due process rights and proper consideration of recommendations by treating professionals for where these individuals should receive services. The Commonwealth and the DOJ are mostly concerned with closing training centers. If this settlement agreement is approved without the Proposed Intervenors participation, it will have a powerful effect upon the practical ability of the Proposed Intervenors to have meaningful input in later litigation as to the distribution of resources available for ICF/MR services in the Commonwealth of Virginia. The position of this action, thus, “may as a practical matter impair or impede” their ability to protect their interests. Fed.R.Civ.P. 24(a). Thus, Proposed Intervenors satisfy the impairment requirement of Rule 24.
Allowing intervention now, as opposed to collateral attack later, will permit the Proposed Intervenors to protect their rights in an expeditious fashion without needlessly delaying or complicating the litigation. Capacchione v. Charlotte-Mecklenburg Bd. of Educ., 179 F.R.D. 505 (W.D.N.C. 1998) (noting the Court’s policy preference which, as a matter of judicial economy, favors intervention over piecemeal litigation); Thomas v. Henderson, 297 F.Supp. 2d 1311 (S.D.
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Ala. 2003) (When there is a common question of fact, the court may allow intervention in the interest of judicial economy); see also, Kleissler v. U.S. Forest Serv., 157 F.3d 964, 970 (3d Cir. 1998) (citing Brody v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992)) (noting a “policy preference which, as a matter of judicial economy, favors intervention over subsequent collateral attacks”). It would benefit the Court to allow the proposed intervention rather than have the Proposed Intervenors file their own lawsuit against the Commonwealth of Virginia in relation to their individual civil rights that are affected by the DOJ settlement agreement.
4. Existing Parties Do Not Adequately Represent the Proposed Intervenors Interests
Finally, it is beyond dispute that neither of the original parties adequately represents the interests of the Proposed Intervenors. The Proposed Intervenors have an interest in receiving appropriate services at the training centers in which they currently live. It is clear that it is the policy and the interest of both the DOJ and the Commonwealth to not consider the rights of the Proposed Intervenors since the proposed settlement is in direct opposition to the rights of the Proposed Intervenors. [Dkt. #2-2, Settlement Agreement at 11 ¶9].
When the party on whose side a movant seeks to intervene is pursuing the same result that the movant is urging, a presumption arises that the movant’s interest is adequately represented, so that the movant must show “adversity of interest, collusion, or nonfeasance.” Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976). However, the movant need not show that the representation by existing parties will definitely be inadequate in this regard. Trbovich v. United Mine Workers, 404 U.S. 528 (1972). Rather, he need only demonstrate “that representation of his interest ‘may be’ inadequate.” Id. For this reason, the Supreme Court has described the applicant's burden on this matter as “minimal.” Teague v. Bakker, 931 F.2d 259, 262 (4th Cir. N.C. 1991) (quoting Trbovich v. United Mine Workers, 404 U.S. 528 (1972); see also, JLS, Inc. v.
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PSC of W. Va., 321 Fed. Appx. 286, 289 (4th Cir. W. Va. 2009) (citing In re Sierra Club, 945 F.2d 776, 780 (4th Cir. 1991)). If the proposed intervention is denied, the Commonwealth is likely, if not guaranteed, to settle this case in a manner that will harm the Proposed Intervenors’ interests. Thus, the Commonwealth would inadequately represent the interests of training center residents. This inadequacy of representation is also a sufficient interest for intervention to be granted.
There is no doubt that the Proposed Intervenors would litigate the Complaint filed by the DOJ differently than the Commonwealth of Virginia. Clearly, the Commonwealth has resigned itself to accepting many requests made by the DOJ, including the closure of the training centers in the Commonwealth, which would not be accepted by the Proposed Intervenors. Not only do the interests of the Proposed Intervenors diverge from those of both the United States and the Commonwealth of Virginia, they are, in fact, openly antagonistic. The Proposed Intervenors do not desire the relief that is at the core of the proposed settlement agreement, and, rather, they seek to protect their rights to appropriate treatment based upon treating professionals’ judgments, which in many instances will approve an ICF/MR setting as being appropriate. That view is not accepted by either the Commonwealth or by the United States, which is evident from their settlement agreement. [Dkt. #2-2, Settlement Agreement at 11 ¶9]. The belief of the Proposed Intervenors that each individual with a developmental disability should be treated as an individual with unique needs is not shared by the alleged governmental “advocates” that have agreed to an arbitrary quota system, the development of waiver slots earmarked for training center residents, and a Commonwealth plan for moving most residents out of their long term homes in ICFs/MR without their consent and without the exercise of professional judgment. In any event, the
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Complaint and accompanying settlement make clear that the Proposed Intervenors must speak for themselves.
Like the Commonwealth, the DOJ is also not capable of adequately representing the interests of the Proposed Intervenors. The statutory language of the Civil Rights for Institutionalized Persons Act (“CRIPA”) and its legislative history make clear that the DOJ does not represent private plaintiffs in such actions. The CRIPA statute, which is the only statute that authorizes the DOJ to even initiate this type of litigation, provides that “[t]he provisions of this [Act] shall in no way expand or restrict the authority of parties other than the United States to enforce the legal rights which they may have pursuant to existing law with regard to institutionalized persons.” 42 U.S.C. § 1997j.
The House Conference Report on CRIPA stated that: [I]t should be emphasized that . . . the Attorney General’s authority extends to initiating suit “for or in the name of the United States,” in order to represent the national interest in securing constitutionally adequate care for institutionalized citizens. As a representative of the United States, the Attorney General does not directly represent any institutionalized plaintiffs, and the authority granted him is in no way intended to preclude, delay or prejudice private litigants from enforcing any cause of action they may have under . . . law.
H. Conf. Rep. No. 96-897, 96th Cong., 2d Sess. 13, reprinted in 1980 USCCAN 837. (emphasis added). Congress expressly provided that the DOJ shall not impinge on the ability of private parties to enforce their rights. The DOJ does not represent any individual’s interest and it does not purport to represent any individual’s interests. In fact, as stated in Proposed Intervenors Motion to Dismiss, (attached) the DOJ has not brought this case pursuant to CRIPA. Even if it had, its interest in this matter is significantly distinct from the interest of any private party. The DOJ’s interest in this matter is insufficient to protect the interests of the individual training center residents who propose this intervention and who oppose the terms of the proposed settlement
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agreement with regard to their care. The District Court in the Eastern District of Arkansas recently took notice of the awkward position the DOJ presents to courts with regard to these inappropriate actions:
Most lawsuits are brought by persons who believe that their rights have been violated. Not this one. The Civil Rights Division of the Department of Justice brings this action on behalf of the United States of America against the State of Arkansas and four state officials in their official capacities alleging that practices at Conway Human Development Center violate the rights of its residents guaranteed by the Fourteenth Amendment, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. All or nearly all of those residents have parents or guardians who have the power to assert the legal rights of their children or wards. Those parents and guardians, so far as the record shows, oppose the claims of the United States. Thus, the United States is in the odd position of asserting that certain persons’ rights have been and are being violated while those persons—through their parents and guardians—disagree.
United States v. Arkansas, 794 F. Supp. 2d 935 (E.D. Ark. 2011). In United States v. Arkansas, the State of Arkansas was advancing interests which were aligned with the residents of the center, and adamantly defended the suit which ultimately resulted in a trial on the merits of the DOJ’s case. The DOJ’s case in Arkansas proved to be inadequate. Thus, unlike the Proposed Intervenors, the residents of the Conway Human Developmental Center had no reason to intervene. Regardless, the District Court found that the DOJ failed to prove that they were adequately representing the choice of the residents at the Center. Id. at 935.
The fact that both the Commonwealth and the DOJ have already agreed to a settlement agreement, which is adverse to the Proposed Intervenors’ interests, demonstrates that neither party has or will adequately represent the interests of the Proposed Intervenors thus providing support for the proposed intervention.
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B. Alternatively, This Court Should Exercise Its Discretion And Permit The Intervention 1. The Proposed Intervention is Timely
Alternatively, Proposed Intervenors respectfully request that this Court allow them to intervene permissively, pursuant to Fed. R. Civ. P. 24(b). Permissive intervention under Rule 24(b) is also appropriate since the Court can permit anyone to intervene upon timely motion who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention lies within the discretion of this Court. Hill v. Elec. Co., Inc., 672 F.2d 381, 385-86 (4th Cir 1982).
“An application of intervention, whether permissive or of right, must meet the requirement of timeliness.” Spring Const. Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980). Under either scenario, the most important consideration is whether the delay in seeking to intervene could prejudice the parties. Id. Because this case has not progressed beyond the initial pleadings stage, the current Motion to Intervene is timely. GMAC Mortg., LLC v. Flick Mortg. Investors, Inc., 2011 WL 841409 (W.D.N.C. Mar. 7, 2011).
Rule 24(b) notes that in “exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the application of the rights of the original parties.” Rule 24(b)(3). In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991); Media General Cable of Fairfax, Inc. v. Sequoyah Condo. Council of Co-Owners, 721 F. Supp. 775, 780 (E.D.Va. 1989) (noting that in assessing potential prejudice, courts consider whether the addition of a party will significantly expand the issues in the litigation). Although the Proposed Intervenors do not foresee that it will expand the litigation issues in the instant matter, this Court may ensure that the issues are not significantly expanded. Id. Additionally, no formal discovery has occurred in this case, and, thus, the parties would not be prejudiced by the proposed intervention. See, Cox Cable
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 27 of 32 PageID# 154
Communications, Inc. v. United States, 699 F.Supp. 917, 924 (M.D. Ga. 1988). Thus, the Court should therefore hold that the proposed intervention is timely.
2. There is a Common Question of Law or Fact Permissive intervention is available upon timely application when an applicant’s claim or defense and the main action have a question of law or fact in common. See Zimmerman v. Bell, 101 F.R.D. 329, 331 (D. Md. 1984). As detailed above, the Proposed Intervenors share common and competing interests with the United States and with the Commonwealth of Virginia in relation to this case and with the proposed settlement agreement at issue. The common issues include whether individuals living in the training centers should be permitted to continue to receive services at these training centers or whether they should be discharged in violation of the rights guaranteed them under the ADA and by Olmstead. Unlike intervention of right, where courts review whether the intervenor’s interests are adequately represented, under permissive intervention, courts review the similarities between the claim asserted by the intervenor and the claim advanced in the main action. Id. In Zimmerman, the court found that the intervenor’s claim was sufficiently similar to the plaintiff’s claim because the intervenor’s “claim was virtually indistinguishable[.]” Id. See also Capacchione v. CharlotteMecklenburg Bd. of Educ., 179 F.R.D. 505, 508 (W.D.N.C. 1998) (permissive intervention was appropriate where proposed intervenors sought to litigate the same issue regarding school desegregation). According to the United States, this action relates to whether the Commonwealth of Virginia is complying with the ADA and the Supreme Court’s decision in Olmstead. [Dkt. #1, Complaint ¶12]. Whether there was a violation of any of the provisions of the ADA will of course
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 28 of 32 PageID# 155
depend on the application of those laws to the facts of this case and, if permissive intervention is granted, all parties will be advancing arguments with respect to the ADA and the tenets of Olmstead. Importantly, the facts in this case primarily center on the procedures utilized by the Commonwealth to provide services to developmentally disabled Virginians and, specifically, the residents of the training centers operated by the Commonwealth. As a result, the United States, the Commonwealth, and the Proposed Intervenors will be advancing arguments based primarily on the same set of operative facts. It is unlikely that there will be serious factual disputes about what procedures were used and the timing thereof. Additionally, the Proposed Intervenors have an interest in whether community-based care is appropriate for all of the residents of the five (5) training centers, and whether community-based care or an alternative setting is in fact desired by all residents of the training centers. Thus, their claim is common to the claims of the United States and the defenses of the Commonwealth of Virginia, if any exist.
Accordingly, this Court should conclude that the Proposed Intervenors will have a question of law and/or fact in common with the pending action before this Court and should grant the Motion to Intervene.
III. CONCLUSION This Court should grant the Motion to Intervene as of right because: (1) the Motion has
been timely filed since the Complaint was just recently filed on January 26, 2012; (2) the Proposed Intervenors claim an interest in the subject of this Action in that they have a meaningful interest in their own care, their due process rights, and the rights afforded them by the ADA and the Olmstead; (3) the disposition of this action will impede the Proposed Intervenors’ ability to protect their substantial interests since the settlement agreement bargains away their rights and may have a stare decisis effect in any parallel or subsequent litigation; and (4) the Proposed
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 29 of 32 PageID# 156
Intervenors are not adequately represented by any current party, as the current parties have already
executed a settlement agreement which, among other things, violates the Proposed Intervenors’
rights by requiring the closure of four (4) of the five (5) training centers in which they live and
discharge of these individuals without considering the needs or wishes of the residents living in
those centers.
Alternatively, this court should, in its discretion, grant the proposed intervention
permissively as: (1) the Motion has been timely filed; and (2) there is a common question of law
and/or fact.
For the foregoing reasons, the Proposed Intervenors request that the Court grant their
motion for intervention pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. In the
alternative, the Proposed Intervenors respectfully request that the Court grant permission to
intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.
Respectfully Submitted,
__________/s/_______ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com
__________/s/_______ Thomas B. York Pennsylvania Bar # 32522 Donald B. Zaycosky Pennsylvania Bar # 91821 Cordelia Elias Pennsylvania Bar # 204965
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 30 of 32 PageID# 157 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 31 of 32 PageID# 158
CERTIFICATE OF SERVICE I, hereby certify that on the 2nd day of March, 2012 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson K. Tysinger Virginia Office of the Attorney General
900 East Main Street Richmond, Virginia 23219 ATysinger@oag.state.va.us
Robert McIntosh Assistant United States Attorney 600 East Main Street, Suite 1800
Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Alison N. Barkoff Special Counsel for Olmstead Enforcement
Civil Rights Division 950 Pennsylvania Avenue, NW
Washington D.C. 20530 Alison.Barkoff@usdoj.gov
Benjamin O. Tayloe Jr. Deputy Chief
950 Pennsylvania Avenue, NW Washington D.C. 20530
Benjamin.tayloe@usdoj.gov
Aaron B. Zisser Trial Attorney 950 Pennsylvania Avenue, NW Washington D.C. 20530 Aaron.Zisser@usdoj.gov
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Case 3:12-cv-00059-JAG Document 20 Filed 03/02/12 Page 32 of 32 PageID# 159
__________/s/_______ Gerald T. Schafer Virginia Bar # 24199 Attorneys for Intervenors Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, VA 23464 Phone: 757 490-7500 Fax: 757 490-9770 rschafer@schaferlawgroup.com __________/s/_______ Thomas B. York Pennsylvania Bar # 32522 Attorneys for Intervenors The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110 Phone: 717 236-9675 Fax: 717 236-6919 tyork@yorklegalgroup.com
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 </s> Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 1 of 18 PageID# 1921

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES OF AMERICA, Plaintiff,
v.

Civil Action No.: 3:12CV59-JAG Memorandum ofAmicus Curiae

COMMONWEALTH OF VIRGINIA,

Defendant.

THE VIRGINIA OFFICE AS AMICUS CURIAE IN

FOR PROTECTION AND ADVOCACY'S MEMORANDUM SUPPORT OF ENTRY OF THE PARTIES' SETTLEMENT

AGREEMENT

The Virginia Office for Protection and Advocacy (VOPA) by counsel and pursuant to the

Order of this Court dated 6 March 2012, submits the following Memorandum as Amicus Curiae.

I. Interest of the Amicus VOPA is the Commonwealth of Virginia's Protection and Advocacy System for people
with developmental disabilities, as required by the Developmental Disabilities Assistance and Bill of Rights Act ("the DD Act"), 42 U.S.C. § 15001, et seq.. See also, Va. Code Ann.§ 51.539.2 (designating VOPA as Virginia's Protection and Advocacy System). As such, we are "independent of any agency that provides treatment, services, or habilitation to individuals with
developmental disabilities." 42 U.S.C. § 15043(G). This Memorandum provides our analysis of how the parties' Settlement Agreement, if
entered, will impact the safety of people with intellectual and developmental disabilities living in state training centers (hereafter "residents"). Based on our experience, our review of the Agreement and, most importantly, on infonnation we have received and conclusions we have drawn from investigating abuse and neglect in training centers, we believe the Agreement will

1

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 2 of 18 PageID# 1922

increase the safety of all residents - those who will be discharged, those who remain and those

who may be admitted in the future. Congress passed the DD Act after learning of "the inhumane and despicable conditions"
at New York's Willowbrook State School and other state facilities housing people with developmental disabilities. See, Alabama Disabilities Advocacy Program v. JS. Tarwater Developmental Center, 97 F.3d 492, 494 (11th Cir. 1996). Under the DD Act, Protection and

Advocacy Systems, like VOPA, have the power and duty to:

• Pderovveildoepminefnotraml adtiisoanbicloitniecse.rn42inUg .pSr.oCg.ra§m1s50a4n3d(sae)r(v2i)c(Aes)(fioi)r;p4e5opCl.eFw.Ri.th
§1386.22(g)(1);

•

Investigate incidents of abuse and neglect of people disabilities. 42 U.S.C. § 15043(a)(2)(B); 45 C.F.R.

with developmental 1386.22(f);

• Ppruortseucetiaodnmoifnpisetoraptlievew, iltehgdale,vaenlodpomtheenrtaalpdpirsoapbriilaittieerse. m42edUie.Ss.tCo.ensure the
§15043(a)(2)(i); and

•

wMiothnidtoervefalocpilmityenotrapl rdoisgarbamilitcieosm. 4p5liaCn.cFe.Rw.it§h1r3e8sp6e.2c2t (tgo)t(h2e).

safety
1

o

f

people

In addition, Virginia law requires training centers to notify us whenever a resident

dies or suffers a "serious bodily injury or loss of consciousness requiring medical

treatment." Va. Code Ann. § 51.5-39.12. Since 2007, we have received, reviewed and tracked 1,839 reports of deaths and
serious injuries at training centers. In that time, we have investigated 184 injuries and

p1eIB§PfnrdoW7rrodruoa9viectiV4vneiadeihcotdI;eitatnouiiPvolnjnaeerunglogsarstaayAniewnlm,dccd4aitcitain2lhAoecadsnUcrMdsiep,v.nasSeono4vsn.wd2ceCttasaoeA.Utclrig§ysdg.ISolav3fla.vntooC0nieervc0d.rsaeAdns§dc-m,ssuy51es4te3r5ifi2nsveo;4ttsiUri6cPvpu1Be.rerSns;oeoTd.ntagiCeneneerc.rdacfati§hmsicrCoenei1svnaalo0iresaleai8ornenina0gndstdl5ycAo;sf,lAeeufPs2drddsSr9veivoioisrnUocttacgeaecli.cnsaSasst.lcca.itCoaeyfSSetn.ePufetcoy§etareu,or,n3srgsPId.i0unrtry1AadpUo,m2iptdnve;4o,vcid2rdo2Ptetiuc9Ueroroaadnt.UltcSheeyaR.e.cmSCnsitf.degip.oCohrl§lA.noatTsy§w1da,rm3vnas722od,u3e90wcm2nAbaU.tea,-cd.2tySvi1c.of;Cocr.acy 2

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 3 of 18 PageID# 1923
deaths at training centers that we had reason to believe were caused by abuse or neglect. We have also conducted systemic investigations of training center safety procedures and regularly monitor their living and safety conditions.
Accordingly, we are in a unique position to provide the Court with information and analysis regarding (1) current safety conditions at training centers and (2) how the proposed Settlement Agreement, if entered, will affect resident safety. II. Summary of Argument
The Court should enter the parties' Settlement Agreement because it will increase the safety of current, former and future residents. The data we have reviewed and the investigations we have conducted lead to an inescapable conclusion: training centers are not safe.
Since 2007, we have opened an average of one investigation every 12 days because we had reason to believe a resident was abused or neglected. We have learned of and uncovered staff-on-resident assaults, sexual abuse, scaldings, abandonments and financial exploitation. We have documented inadequate and unfollowed safety procedures and seen the resulting injuries and deaths.2
The parties' Settlement Agreement calls for comprehensive and cohesive safety protections that are sorely lacking in the current system. Under the Agreement, safety will be paramount and treated as such: there will be systems to identify and address hazards before injures, deaths or other crises occur; a centralized reporting and monitoring system for swift and thorough investigations; regular data collection and analysis to prevent future incidents; and multiple layers of supervision and oversight to ensure compliance.
2 As discussed infra at 15, we have taken a range of actions to prevent such abuse and neglect from occurring or repeating - from advocacy and public reports to negotiation and litigation. Nevertheless, abuse and neglect continue to plague residents because the Commonwealth has been unwilling to take the steps necessary to prevent and correct it.
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Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 4 of 18 PageID# 1924
III. Individual and Systemic Investigations into the Safety of Training Center Residents A. Individual Investigations
As required by Va. Code Ann.§ 51.5-39.12, training centers have informed us of 1,839 serious injuries or deaths since 2007; an average of25 residents seriously injured or dying each month. These reports included 203 deaths; 214 fractures (78 of which were "unexplained" or resulted from interaction with a staff member); 7 aspirations, 3 sexual assaults, 13 bums (2 of which resulted from interactions with a staff member), and 825 lacerations (54 of which were ''unexplained" or resulted from interaction with a staff member).
During that time,3 we have opened 184 investigations because we had reason to believe a resident was abused or neglected.4 In other words, we have received or discovered evidence suggesting that a resident was the victim of abuse or neglect an average of 30 times per year, or once every 12 days.
Our investigations have uncovered abuse and neglect ranging from simple negligence to premeditated and malicious assaults. The following are just some examples:5
• A training center staffmember (hereafter "staffmember" or "staffmembers") used sticks and other objects to beat at least four residents on several occasions.
3 In 2007, we began using an electronic database to track our cases and investigations. Except for reports released to the public, records ofpre-2007 investigations are in storage and less accessible. Upon request of the Court, we will provide summaries ofpre-2007 investigations. 4 We have opened investigations based upon training center reports, our own observations and information provided by residents, family members, training center staff and others. 5 The following summaries are organized by the year each investigation was completed, not the year the incident(s) occurred. To protect the privacy of residents and comply with the Health Insurance Portability and Accountability Act, 42 U.S.C. § 300gg, we have not identified the training centers where the incidents occurred. However, it is fair to say that each training center has been the site of shocking abuse and neglect. If Ordered, we will provide additional information.
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Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 5 of 18 PageID# 1925
• A staff member fed marshmallows to a resident whose chart called for him to eat only fine, chopped, pea-sized food. The resident aspirated the marshmallows, went into respiratory arrest and suffered cerebral anoxia. He died after being removed from life support.
• A resident with a documented history of swallowing inedible items was left unsupervised and died after swallowing several objects, including latex gloves.
• Several staff members terrorized a resident by threatening to cut off his genitals. The abuse was so pervasive they eventually did not have to verbally threaten the resident; they just held up two fingers and made a scissoring motion.
• Staff members repeatedly used a wheelchair and seatbelt to restrain a resident, who was able to walk, as punishment or for their convenience. The resident attempted to escape the restraints and suffered injuries, including a fracture.
• A resident with a long history of swallowing inedible items was left unsupervised and swallowed 19 different objects, requiring surgery.
• A resident was scalded and suffered second degree bums on his feet, hands and buttocks when a staffmember bathed him in a tub with a malfunctioning water heater. The staff member did not touch the water before putting the resident in.
2009
• Staff members slapped a resident, forcibly removed his clothing and told him to perform oral sex on another resident.
• A resident suffered multiple injuries, including a broken leg, after a staff member shook her and threw her to the ground.
5

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 6 of 18 PageID# 1926
• Staffmembers repeatedly punished a resident by turning off her electric wheelchair, rendering her immobile and unable to take part in any activities.
• Staff members failed to follow a resident's treatment plan, which called for him to wear specialized shoes. The resident suffered blood deprivation to his feet, was diagnosed with Ischemic Necrosis and was to have two toes amputated. While awaiting the surgery, he was transferred to another state facility, where he choked on food, suffered cardiac arrest and died.
• Two residents of two separate training centers suffered second-degree bums after staffmembers bathed them in scalding water. • One resident suffered second-degree burns to her buttocks and lower back. Staff members did not notice the bums for approximately two hours. The resident was not sent to the hospital until the next day, despite having visibly blistered and sloughing skin.6 • The second resident suffered first and second-degree bums to her left arm, abdomen and thigh. Even though the resident's chart called for her to be bathed in a tub, the staff member used a shower spray, which supplied up to 167 degree water.
• A resident was left unsupervised and fled his cottage through fire doors that had been left open. The resident was injured when his wheelchair overturned.
• A resident was hospitalized for 10 days after staff members gave him the wrong medication.
6 With the victim's permission, we made our findings available to the public. See, http: //www.vopa.virginia.gov/ Investigations/Neglect%20ofU/o20MS.pdf.
6

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 7 of 18 PageID# 1927
• A resident suffered at least 50 injuries over a four year period. None were reported to VOPA despite state law requiring reports of all such incidents.
• A staff member took residents' money and bought himself clothing and alcohol. 2011
• A staff member, tasked to buy clothing and necessities for a resident, spent almost $500 of the resident's money to buy himself clothing and cologne.
• A resident, who had standing orders to always be supervised due to a heart condition, was abandoned on a toilet in a locked unit for over an hour while staff and other residents went on a community outing.
• Staff members placed a resident on a toilet chair that was not properly secured to the wall and missing its lap bar. The resident fell and suffered a head injury.
• A resident suffered a fractured arm. Staff did not refer the resident for x-rays for 7-1 0 days after the injury. The examining doctor found the injury was consistent "with being dropped on his right side against a hard object or being hit by a hard object across his arm."
• A resident was found unresponsive with no pulse. It took staff members 15 minutes to report the incident and begin CPR.
• Eleven residents were placed on a training center van for an alleged community outing. Instead, staff members left the van to conduct personal business, including buying lunch at a KFC restaurant. No food was provided on the van.
• In an assault captured on video, a staff member hit an elderly resident so hard that he flew 6-8 feet across the room and crashed to the floor. Other staff members falsely stated that the resident had made sexual advances toward the assailant.
7

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 8 of 18 PageID# 1928
• A training center had all of a resident's teeth extracted because it was more convenient than providing him with regular dental care and examinations.
• A resident suffered a head injury when she fell from her wheelchair after staff members did not properly attach her seat belt.
• A resident suffered internal bleeding, hernias, severe bruising and swelling in the groin, penis and scrotum after staff members lifted him by his support belt.
B. Systemic Investigations We have also investigated whether training centers have appropriate procedures in place to minimize the risk of abuse and neglect and thoroughly investigate allegations of abuse and neglect. Some examples follow:
• A training center violated Virginia law by failing to conduct a national criminal records check before hiring a staff member. That staff member later beat and allegedly sodomized a resident and shot two residents with a pellet gun.7
• An expert retained by VOPA found that Central Virginia Training Center lacks "sufficient programs, services or safeguards to protect residents ... from harm. Individuals at CVTC sustain a significant number of serious injuries that could have been prevented if programs, services and safeguards were in place as required by standards of care."
7 With the victims ' permission, we made our findings available to the public. See, http:/ /www.vopa. virginia. gov/Investigations/Abuse%20or%20N eglect%20of%20RL%20and%2 ODS%20-%20Final .pdf.
8

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 9 of 18 PageID# 1929
• A training center's investigation ofabuse was conducted by a case manager who was not trained in conducting investigations and unfamiliar with the medical issues and aspects of the investigation.
2008 • A training center failed to report or properly investigate multiple instances of abusive threats to a resident.
2010 • Staffmembers did not monitor the temperature of hot water supplied to showers, even though training center procedures required them to do so. A staff member falsified logs which allegedly showed that hot water temperature had been monitored. A staff supervisor did not request or review water temperature logs, as he was required to do by training center procedures. The supervisor did not request repairs to the hot water supply system, even though there was evidence from months before that the water temperature was too high. As a result, a resident was scalded and suffered second degree bums. • A training center's investigation of abuse was not timely or thorough and the training center did not properly inform the victim's next ofkin about the incident. • A training center's investigation failed to interview several relevant witnesses and did not properly investigate a resident's injury to determine if it was the result of abuse or neglect. • A training center failed to properly report or investigate up to 50 incidents.
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Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 10 of 18 PageID# 1930
• A training center's investigation did not fully review the allegations or circumstances involved in two separate incidents of alleged abuse.
• The same training center did not fully investigate the circumstances or cause of a third incident of alleged abuse. Training center employees expressed concern that the internal investigation disregarded medical evidence suggesting that the resident had been abused or neglected.
• Another training center did not properly report an incident to authorities and failed to conduct a thorough or appropriately impartial investigation.
• At least 14 residents were denied routine dental care, including examinations, cleanings and x-rays. At least 4 residents had teeth extracted without justification.
IV. Safety Provisions in the Parties' Settlement Agreement In marked contrast to the current state of affairs in training centers, the parties'
Settlement Agreement provides for a consistent and cohesive focus on the safety of current, former and future residents. The Agreement requires regular monitoring of living conditions, real-time reporting of injuries and deaths and strong proactive measures to address and prevent abuse and neglect. The Agreement also provides several independent checks and layers of oversight to ensure that residents are safe, including face-to-face assessments, multiple methods of data collection, review and analysis, and reporting to the Commonwealth and this Court.
A Safety Provisions for Residents Under the Agreement, training centers are required to identify residents' clinical and support needs, focusing "on achieving outcomes that promote the individual's ... well being." Agreement, p. 14, Sections V.B.4 and V. B.5.b. They are then required to help residents
10

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 11 of 18 PageID# 1931

identify placements that can meet those needs and protect their safety. Agreement, p. 15, Section

V.B.5.d. While residents await discharge, they - along with residents who will remain and those
who may later be admitted- will benefit from the Agreement's "Quality and Risk Management System," which is designed to "help individuals achieve positive outcomes, including avoidance ofharms." Agreement, p. 20, Section V.A. This program will "identify and address risks of harm ... and collect and evaluate data to identify and respond to trends to ensure continuous
quality improvement." !d. at Section V.B. The System is most notable for its use of actual, reliable data both to investigate incidents
of abuse and neglect and for the "establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks ofharm." Agreement, p. 21, Section V.C.l. Safety data will be collected through "a real time, web-based incident reporting system and reporting protocol" and training centers will be required to report deaths and serious injuries to the "DBHDS Assistant Commissioner or his designee." !d. at Section V.C.2.
When injuries or deaths are reported, "suspected or alleged abuse, neglect, critical incidents or deaths" must be thoroughly investigated to "identify remediation steps" that have been or must be taken. Agreement, p. 21, Section V.C .3. The results of these investigations will be used to provide "guidance and training ... on proactively identifying and addressing risks of harm," Agreement, p. 21 Section V.C.4, and to "ensure that there are effective processes in place to monitor participant health and safety," Agreement, p. 22, Section V.D.l. Data will also be used to create a "quality improvement (QI) program including root cause analysis, that is sufficient to identify and address significant service issues." Agreement, p. 24, Section V.E.l.8

8 The Agreement is silent as to our involvement in this reporting and investigation system.

However, Va. Code Ann. § 51.5-39.12 already requires training centers to serious injuries to us. Similarly, state and federal law give us the authority

report deaths to investigate

and

11

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 12 of 18 PageID# 1932
B. Safety Provisions for Former Residents Discharged to Community Placements
Because it applies to all providers, former residents will also benefit from the Quality and Risk Management System.9 Moreover, the Agreement also includes provisions designed to
protect the health and safety of former residents as they live in the community.
The Agreement calls for services to prevent former residents from experiencing medical
or emotional crises and to address crises when they occur. Agreement, p. 7, Section III.C.6. If a
former resident experiences a crisis, mobile support teams will be available - 24 hours per day, 7
days a week - to help de-escalate the situation. After a crisis has been resolved, the team will use the experience to identify "strategies for preventing future crises." Id.
For former residents who require more intensive supports, the Agreement requires the
creation of crisis stabilization programs: "short term altemative[s] to institutionalization or
hospitalization for individuals who need inpatient stabilization services." Agreement, p. 9,
Section III.C.6.iii. These programs will provide up to 30 days of support designed to help former
residents overcome medical or emotional crises in a safe and secure environment. Jd.
Throughout a former resident's life in the community, the Commonwealth will collect
and analyze data to "identify gaps in care and address proactively any such gaps to reduce the
risk ofre-admission, crises or other negative outcomes." Agreement, p. 18, Section IV.C.3.
First, a Post Move Monitor will visit former residents 30, 60 and 90 days after discharge to
incidents of suspected abuse and neglect and issue reports and findings. 42 U.S.C. §15043(a)(2)(B); 45 C.F.R. § 1386.22(£); Va. Code Ann. §§ 51.5-39.4, 51.5-39.8(C)(2). 9 Federal law gives us the authority to investigate abuse and neglect by community providers. 42 U.S.C. § 15043(a)(2)(B); 45 C.F .R. § 1386.22(£). We regularly do so and have published investigative reports and filed lawsuits against community providers that abused their residents. See, e.g. , http://www.vopa.virginia.gov/lnvestigations/Alleged%20AbuseNeglect%20of%20PQ.pd[; VOPA v. Brice's Enterprises Inc., et al., Va. Cir. (Hanover), Case No.: CH 04000125-00. However, Virginia law does not require community providers to report deaths or injuries to us. Whether or not the parties' Agreement is entered, we will continue to provide advocacy and investigations in community placements consistent with the information we receive and resources we have.
12

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 13 of 18 PageID# 1933
assess their health, safety and wellbeing. !d. Then, the Commonwealth will regularly collect and analyze data regarding former residents' "[s]afety and freedom from harm" and their "physical, mental and behavioral health and well being." Agreement, p. 23, Section V.D.3. This and other data will be used to "identify trends, patterns ... and problems" and "develop preventative, corrective and improvement measures to address identified problems." Agreement, p. 22, Section V.D.2.
In addition, providers must submit regular reports "regarding both positive and negative outcomes for both health and safety." Agreement, p. 24, Section V.E.2. If the Commonwealth finds a providers ' health and safety measures to be inadequate, it must "provide technical assistance and other oversight." Agreement, p. 24, Section V.E.3.
Furthermore, the Commonwealth must perform regular Quality Service Reviews "to evaluate the quality of services at an individual, provider and system wide level." These Reviews, which must include face-to-face interviews with former residents, will collect and assess information including "incident/injury data." Agreement, p. 26-27, Section V.I. This data will be used to "improve practice and the quality of services on the part of the provider, CSB and system wide levels." !d.
The Agreement also calls for multiple, independent layers of oversight. The Commonwealth is required to "take appropriate action" against any training center or provider who fails to submit required data or reports. Agreement, p. 22, Section V.C.5. An Independent Reviewer will verify compliance with the Agreement and report his findings to this Court. Agreement, p. 27, Section V.A-C. If the Commonwealth does not comply with the Agreement, the Court has authority to enforce it. Agreement, p. 32, Section II.D-E.
13

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 14 of 18 PageID# 1934
V. Argument: This Court should Enter the Parties' Settlement Agreement We strongly recommend that the Court enter the parties' Settlement Agreement. At the
outset, we are sure the Court will receive many submissions urging entry because the Agreement serves the public's interest in reducing the unnecessary institutionalization of people with disabilities. See, 42 U.S.C. § 12101(a)(3), Olmstead v. L. C. ex rel Zimring, 527 U.S. 581, 600 (1999) ("unjustified institutional isolation of persons with disabilities is a form of discrimination."). We agree. The public undeniably has an interest in "the full participation of the disabled in the economic, social and recreational life of the community." Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362, 1383 (N.D. Ga. 2002). If entered, the parties' Agreement will serve this interest by enabling thousands of people to live in integrated settings consistent with their strengths and needs and by empowering them to participate fully in everyday activities that others take for granted, including "family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Olmstead, 527 U.S. at 600-601. 10
However, we have chosen to focus this Memorandum on how the Agreement will impact the safety of current, former and future residents because we can provide this Court with something no one else can: insight and analysis based upon thousands of data points and years of investigations into resident safety. We are sure the Court will receive submissions contending that the Agreement will hurt residents or put them at risk of injury; we know that several parents of current residents have already made this argument. These parents, and any others who may write, have our respect- the paramount role of any family is to protect its own. We simply
10 We believe that every person with a disability can live in an integrated community setting if provided with appropriate supports and services. We have successfully secured the discharge and community placement of many former residents, including those with the most complex needs. The parties' Agreement puts appropriate procedures in place to identify residents' medical, social, safety and other needs and the placements that can fulfill them.
14

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 15 of 18 PageID# 1935
disagree with them; the status quo places their children, and all other residents, at an ongoing and unacceptable risk of abuse, neglect, serious injury and death.
Perhaps the most disturbing conclusion drawn from our investigations is that under the current system, abuse and neglect repeat themselves despite all our attempts to prevent and remedy them. Assaults, restraints, burns, abandonments and inexcusable negligence occur year after year as training center after training center fails to timely report, thoroughly investigate or effectively respond to them. As we have found abuse and neglect, we have taken a variety of actions to help the victims and prevent future victimization: we have advocated for new treatment plans or discharge; issued public reports; extracted corrective action plans; filed administrative complaints; and pursued litigation as far as the Supreme Court. Even still, we know that for every resident we help and every act of abuse we uncover, another almost certainly goes unassisted, unreported or uninvestigated.
If entered, we believe the parties' Agreement will remedy the Commonwealth's failings. Its safety provisions mark a sea change in the way training centers and other providers will prevent, address and redress abuse, neglect, serious injuries and deaths. Accordingly, the Agreement serves the public's interest in the health and safety of people with disabilities. See, Wash. v. Glucksberg, 521 U.S. 702, 731 (1997) ("[T]he State has an interest in protecting vulnerable groups- including ... disabled persons- from abuse, neglect, and mistakes.").
Under the Agreement, the Commonwealth will, for the first time, collect and analyze reliable data to identify "uniform risk triggers and thresholds" and for "proactively identifying and addressing risks of harm, conducting root cause analysis and developing and monitoring corrective actions." Agreement, p. 21, Section V.C. When incidents occur, there will be consistent reporting, comprehensive investigations and corrective actions. Id.
15

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 16 of 18 PageID# 1936
As opposed to the current state of affairs in training centers - where failures to prevent, report and remedy abuse and neglect seem intractable - the Agreement creates a system where reliable, real-world data is used to protect the safety of current, former and future residents. Just as importantly, the system will use data to help identify best practices, adapt and evolve. The Agreement requires the regular collection of information from multiple sources to assess "[s]afety and freedom from harm," "[p]hysical and mental health and well begin," "[a]voiding crises;" and "[a]ccess to services." Agreement, p. 23, Section V.D.3. This information will be used to "improve the availability and accessibility of services ... and the quality of services." Agreement, p. 22, Section V.D.2.a. Data will also be collected and reviewed to "identify trends, patterns, strengths and problems at the individual, service delivery and systemic levels;" develop, implement and track "preventative, corrective and improvement measures;" and "enhance outreach, education and training." Agreement, p. 22, Section V.D.2
Finally, the Commonwealth, the Independent Reviewer and this Court all have the authority to enforce the Agreement. The Court's oversight is particularly important because without it, we do not believe the Commonwealth will take the steps necessary to ensure that current, former and future residents are as safe as possible.11
Our opinion is based upon past experiences, which have shown that Court intervention is necessary to secure systemic change. In 2004, we received information that the Commonwealth was neglecting people in its institutions. We opened an investigation and requested information we are entitled to under state and federal law. When the Commonwealth refused to provide it,
11 We recognize that no system is foo lproof and that the Commonwealth cannot be an insurer of safety. Human history proves that abuse and neglect will occur at some place and some time, whether the parties' Agreement is entered or not. What is critical, though, is how the Commonwealth responds to incidents of abuse or neglect and the steps it takes to prevent them. In diametrical contrast to the current state of affairs, the Agreement requires strong, decisive steps to prevent, address and redress abuse, neglect, serious injuries and deaths.
16

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 17 of 18 PageID# 1937

we filed suit in this Court and received an Order requiring the Commonwealth to provide the information in that case. 12 Since then, the Commonwealth has provided similar information
upon our request in every related or similar investigation. A few years later, we received information that the Commonwealth had abused or
neglected certain training center residents. We opened investigations and requested information we are entitled to under federal law. The Commonwealth refused to provide it. When we filed suit in this Court, the Commonwealth argued that we had no right to sue. Shortly after the Supreme Court held that we have a right to sue, 13 the Commonwealth agreed to provide the
information we requested in all future investigations. In the last year, we discovered that the Commonwealth had failed to transfer dozens of
people with disabilities from jails to state facilities for treatment and restoration to competency. We informed DBHDS of its fai lure and demanded that the people be transferred and treated. The Commonwealth refused. We then filed Motions in 16 cases14 asking the Courts to hold the Commissioner ofDBHDS in contempt for failing to implement the transfers. DBHDS

12 Virginia Office 3:04cv54 (2004)

for Protection order granting

and atty'

Advocacy v. Dr. James Reinhard, E.D.VA Case No: s fees reversed by, Virginia Office for Protection an

d

Advocacy v. Reinhard, 405 F. 3d 185 (4th Cir. 2005).

C1C1CCCGW(N3GCC4WHoooooVeoCoCoeimmamnmm.ialmm:o1rml.vmmimmgmm1mmCaDepi0ooomnoormRooti,0nninnnosnsna1o4wtwwVwnw,ww.1n1)OeeVeeae(,0wee4aaa.aaCfaaa0C4eflllllG.lhlit0ttt-taatthchhhh0eh3Ghelsets0n9vevvvvhefvav;.....3.on..NpvSC-DVGHG.reFW0.ohioDaiouirAP0n.asbok:fymost;irwlfseme.sold,oGmoC,et,)ne(t.aV,nn.CN,o,oVVc(,C,a&nm1kVNoVaaV.V,wa0r..maoaGAfsa0Vae.CG.ore.o.4dafeGalGineoGN2Cvkln.rntwel.o6)e.heio.kG.n,rn8ceDn.)(..vDCeaa2.:,P..i(nDDcl-CsaCiuDNtS.0styshiliR.atpi0Dsaeesvsst(strv1w(;.t.i.HNe.Nku.1sSCp((iitSNoe0(eNt)l.NooNeenl.,0wo:,(rmweyerC2tHe.piVwGmw:am0cwNaGoaropC2oapsorpmetC.)o5reto,1nwo,eCrp-1Nr1Nwr1,tC0ts0tti03eoeN)0oVNra0N10w.an;..sC0eae:0)leesCS(w.8wt,a6CwN)h.N6GsoC,5sCsRsoe6)vm)4Coea)t,r,71.N.n.-sfma:CC0JC-0oe.1so0o0Go0aalDae6N.0kh;n:0sss3CN;i)neeowe0CCs2,s1C.ot8NNeN:oCRo.1(.2aomJ2:noo(oa002lmAN0,..t.Gs27m::-h:1emV002e0CGGoG14w00Nv6oan)1.7CC3;C2n..pow089G0C11wC1o.01e-6:11o1rre01ia66teC00rm0a01l-.eN-t00.00lR;3h0mnt21l(2eh511C,-Co02vw3O61;V.ovn8h11-0s.OmBw4ae014)0C.s,;--0r-me20a00oGC;ua2po000oflae1e;nf;t;kensh8awsee.k,;v,eDeNV.aV)iolasatC..ht.:.avs.e

Gen. Dist. (Norfolk), Case No.: GC10008747-00.

17

Case 3:12-cv-00059-JAG Document 50 Filed 04/03/12 Page 18 of 18 PageID# 1938

implemented the transfers prior to any of the cases being adjudicated and has been steadily transferring similarly situated people ever since.
Our experiences demonstrate the very real need for this Court to enter the parties' Agreement: when it comes to the safety ofVirginia's most vulnerable citizens, even if the Commonwealth says or means well, without Court intervention it does not do well. VI. Conclusion
The long, sad history and countless victims of abuse and neglect in Virginia's training centers cry out for this Court to approve and enter the parties' Settlement Agreement. We commend the parties for reaching their Agreement and recognize the Commonwealth for, at long last, agreeing to take strong steps to meet its responsibilities and protect current, former and future training center residents.
Should the Court request, we will be happy to appear at a future hearing to discuss and elaborate on our recommendation.

Dated: 3 April2012

Respectfully Submitted, Virginia Office for Protection and Advocacy Amicus Curaie

BY: _ __ _ _Is/_ __ _ _ __ __ Jonathan G. Martinis, Managing Attorney Virginia State Bar Number: 37299 Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Jonathan.Martinis@VOPA.Virginia.Gov

18

 </s> IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division

UNITED STATES OF AMERICA, Plaintiff, v.
COMMONWEALTH OF VIRGINIA, Defendant,
and PEGGY WOOD, et al.,
Intervenor-Defendants.

) ) ) ) CIVIL ACTION NO: 3:12CV59-JAG ) ) ) ) ) ) ) ) ) ) )

THE COMMONWEALTH’S RESPONSE TO THE COURT’S PROPOSED AMENDMENTS TO THE SETTLEMENT AGREEEMENT
COMES NOW the Commonwealth, by counsel, and states the following with respect to
the Court's proposed amendments to the Settlement Agreement:
1. Proposed amendment defining "authorized representative"
The Commonwealth agrees to add a new section II.E defining "authorized representative"
as proposed by the Court with slight modifications (shown using strikethrough and underlining)
as set forth below:
E. As used in this Agreement, the term Authorized Representative means a person authorized to make decisions about health care or treatment or services, including residence, on behalf of an individual who lacks the capacity to consent or make a knowing decision.
1. The Authorized Representative shall be recognized by the Commonwealth (which may be delegated to local care providers) from the following, if available:

1

a. An attorney-in-fact who is currently empowered to consent or authorize the disclosure under the terms of a durable power of attorney;
b. A health care agent appointed by the individual under an advance directive or power of attorney in accordance with the laws of Virginia; or
c. A legal guardian of the individual, or if the individual is a minor, a parent with legal custody of the minor or other person authorized to consent to treatment pursuant to § 54.1-2969A of the Code of Virginia.
2. If an attorney-in-fact, health care agent or legal guardian is not available, the Commonwealth or its designee shall designate a substitute decision maker as authorized representative in the following order of priority:
a. The individual's family member as designated by the individual, unless doing so is clinically contraindicated.
b. If the individual does not have a preference or the preference is clinically contraindicated, the best qualified person shall be selected according to the following order of priority:
i. A spouse; ii. An adult child; iii. A parent; iv. An adult brother or sister; or v. Any other relative of the individual.
c. Next friend of the individual. If no other person specified above is available and willing to serve as authorized representative, the Commonwealth or its designee may designate a next friend of the individual in accordance with 12 VAC 35-115-146, who has either:
i. Shared a residence with the individual; or
ii. Had regular contact or communication with the individual and provided significant emotional, personal, financial, spiritual, psychological, or other support and assistance to the individual.
3. No director, employee, or agent of a provider of services may serve as an authorized representative for any individual receiving services delivered by that provider unless the authorized representative is a relative or the legal guardian.
The modifications made by the Commonwealth to the Court’s proposed language simply
align the language with the state’s Rules and Regulations to Assure the Rights of Individuals
2

Receiving Services from Providers Licensed, Funded, or Operated by the Department of Mental
Health, Mental Retardation, and Substance Abuse Services [DBHDS], 12 VAC 35-115.
2. Proposed amendment regarding consent to discharge
The Commonwealth does not agree to add a new section IV.B.10 as proposed by the
Court. The Commonwealth believes that the language proposed by the Court would give current
training center residents an entitlement to state-operated ICF/MR training center services. Such an entitlement does not exist in federal law.1 See Rolland v. Patrick, 562 F. Supp. 2d 176, 185
(D. Mass. 2008), aff'd sub nom., Voss v. Roland, 592 F.3d 242 (1st Cir. 2010) (finding that
federal law does not give an individual the right to reside in a particular facility); Bruggeman v. Blagojevich, 324 F.3d 906, 910-11 (7th Cir. 2003); O'Bannon v. Town Court Nursing Center, 447
U.S. 773, 785 (1980) (holding that 42 U.S.C. § 1396a(a)(23) of the Medicaid Act does not confer
a right to continued residence in the placement of one's choice).
Although state law at present does not permit the Commonwealth to discharge current
training center residents without their consent, the General Assembly has the power to repeal this
law at any time. It is foreseeable that this law will have to be repealed in order to enable the
Commonwealth to close four of its five training centers as it currently plans to do, with or
without the entry of the Settlement Agreement. A situation can be envisioned where, at some
point, Southeastern Virginia Training Center (SEVTC) will be at capacity and there will be a
small number of residents remaining in another training center who do not wish to be discharged.
If there are no available training center beds to which to transfer those residents because SEVTC
1 Federal Medicaid law provides Medicaid recipients who are eligible the right to choose services in an ICF/MR or through a Home and Community Based Services waiver. 42 U.S.C. § 1396n(c)(2)(C); 42 C.F.R. § 441.302(d). The Medicaid Act provides that an individual eligible for medical assistance may obtain such assistance from any institution, agency, community pharmacy, or person qualified to perform the services who undertakes to provide such services. 42 U.S.C. § 1396a(a)(23)(A). Pursuant to 42 C.F.R. § 431.51(b)(1)(ii), a Medicaid recipient may receive services from any institution, agency, pharmacy, person, or organization that is willing to furnish them to that particular recipient. There is no law that requires states to operate ICFs/MR or that gives individuals a right to receive services from a particular service provider, including a state-operated provider.
3

is at capacity, the Commonwealth would be required to maintain multiple training centers unless Virginia Code § 37.2-837(A)(3) was repealed, thereby allowing the Commonwealth to discharge those residents to a community ICF/MR. There is no question that the Commonwealth must comply with Virginia Code § 37.2-837(A)(3) while it remains effective and the Commonwealth has no objection to explicitly stating that in the Settlement Agreement. However, the Commonwealth is not willing to add language to the Settlement Agreement that creates a right for current training center residents to receive services in a state-operated ICF/MR training center that does not exist absent a state law.
Furthermore, the Commonwealth will not agree to add language that requires it to maintain a training center for residents who do not consent to discharge. There is no law, state or federal, that requires a state to operate an ICF/MR. As this Court has previously made clear, it is the Commonwealth, not the federal government or this Court, that determines what kind of facilities the state will or will not operate. If the General Assembly repealed Virginia Code § 37.2-837(A)(3) and decided to close all of its trainings centers, it could legally do so. See Leslz v. Kavanagh, 783 F. Supp. 286, 298 (N.D. Tex. 1991,) aff'd, 983 F.2d 1061 (5th Cir. 1993) (holding that the state could unilaterally close any of its institutions for individuals with developmental disabilities, for economic reasons or otherwise); Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir. 1995) (finding that the state has the right to close an institution for administrative or financial reasons). The Commonwealth will not agree to add language that limits it ability to determine the future of its state-operated ICF/MR training centers.
As an alternative to the Court’s language, the Commonwealth is willing to amend the settlement agreement with the following language: The Commonwealth shall not move any individual residing in an ICF/MR to waiver services without the consent of the individual or, if the individual is not capable of consent, his authorized
4

representative, except that providers of services may decline to offer services or continued services to an individual. In accordance with Virginia Code § 37.2-837(A)(3), for as long as it remains effective, no resident of a training center shall be discharged from a training center to a community setting if he or his authorized representative chooses to continue receiving services in a training center. If the General Assembly repeals Virginia Code § 37.2-837(A)(3), the Commonwealth shall immediately notify the Court and the parties, and the parties agree to appear before the Court if requested to address any concerns it may have. Nothing in this Agreement shall prevent the Commonwealth from closing its training centers or transferring residents from one training center to another.
3. Proposed amendment regarding investigations of incidents
The Commonwealth agrees to add a new section VI.D regarding the reporting and
investigation of deaths and serious injuries of former training center residents to the Independent
Reviewer as proposed by the Court with modifications (shown using strikethrough and
underlining) as set forth below:
VI.D. Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a training center. The Independent Reviewer shall forthwith investigate any such death or injury and report his findings to the Court in a special report, to be filed under seal with copies to the parties.
Under Virginia law, a serious injury is defined as any injury resulting in bodily hurt,
damage, harm, or loss that requires medical attention by a licensed physician, doctor of
osteopathic medicine, physician assistant, or nurse practitioner. 12 VAC 35-105-20. This is a
broad definition. Providers are required to notify the Department of Behavioral Health and
Developmental Services (DBHDS) and the individual’s authorized representative within 24
hours of discovery of a death or serious injury. 12 VAC 35-105-160; 12 VAC 35-115-230.
Such incidents are investigated by the DBHDS Offices of Licensing and Human Rights. They
may also be investigated by the Inspector General for Behavioral Health and Developmental
Services, the Virginia Office for Protection and Advocacy, the Department of Social Services
Adult Protective Services, and law enforcement agencies, if warranted.
5

It should be recognized that not all incidents are indicative of problems. Rather than require the Independent Reviewer to investigate all reports he receives, it may be a more efficient and productive use of his time to review the investigations done by the state oversight agencies to ensure they are done well and then investigate only the incidents where he finds the state oversight investigation lacking. For instance, if the state oversight agency determined that a death was a natural one caused by a previously diagnosed cancer, there would be little benefit from the Independent Reviewer conducting another investigation.
4. Conclusion The Commonwealth has provided this report to counsel for the United States and the Intervenors and has filed it with the Court. The Commonwealth welcomes comments prior to the conference call scheduled for June 29, 2012.
Respectfully submitted,
COMMONWEALTH OF VIRGINIA
By: _________/s/__________________ Allyson K. Tysinger, Counsel Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
6

CERTIFICATE OF SERVICE
I hereby certify that on the 25th day of June, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following:
Aaron Zisser Alison Barkoff Benjamin O. Tayloe, Jr. Vincent P. Herman U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Aaron.Zisser@usdoj.gov Alison.Barkoff@usdoj.gov Benjamin.Tayloe@usdoj.gov Vincent.Herman@usdoj.gov
Robert P. McIntosh Assistant United States Attorney 600 East Main Street, Suite 180 Richmond, VA 23219 Robert.McIntosh@usdoj.gov
Gerald T. Schafer Schafer Law Group 5265 Providence Road, Suite 303 Virginia Beach, Virginia 23464 rschafer@schaferlawgroup.com
Thomas B. York Donald B. Zaycosky Cordelia Elias The York Legal Group, LLC 3511 North Front Street Harrisburg, Pennsylvania 17110 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
7

/s/ Allyson K. Tysinger, VSB #41982 Attorney for Defendant Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-1927 (804) 371-8718 (Fax) ATysinger@oag.state.va.us
8

 </s> Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 1 of 13 PageID# 4542

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Defendant,

)

)

and

)

)

PEGGY WOOD, et al.,

)

)

Intervenor-Defendants.

)

_________________________________________ )

CIVIL ACTION NO: 3:12-cv-00059-JAG
THE UNITED STATES’ MEMORANDUM IN RESPONSE TO THE COURT’S PROPOSED AMENDMENTS TO THE SETTLEMENT AGREEMENT

The United States, by and through undersigned counsel, hereby submits this Memorandum in Response to the Court’s Proposed Amendments to the Settlement Agreement. The United States requests that the Court incorporate proposed amendments submitted by the Commonwealth (see Dkt. No. 104) into the Court’s final order entering the Settlement Agreement in lieu of the language proposed by the Court on June 13, 2012 (see Dkt. No. 100), and requests an additional modification to the provision regarding the Independent Reviewer’s reporting requirements.
INTRODUCTION The Commonwealth proposes alternative terms regarding transfers from Training Centers and reviews of death and serious injuries that retain the primary objectives of the Court’s June 13

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 2 of 13 PageID# 4543

proposal.1 The Commonwealth’s proposed amendment regarding the transfer of individuals

from Training Centers, like the Court’s proposal, ensures that individuals are not discharged

from Training Centers without consent, but clarifies that this provision relies upon State law,

which the Virginia General Assembly may repeal or modify. The Commonwealth’s proposal

also includes changes to the death and serious injuries provision. The United States is amenable

to the Commonwealth’s proposed modifications, subject to a clarification to confirm that the

Independent Reviewer will review all deaths and serious injuries requiring ongoing medical care,

separately investigate serious incidents where necessary, and maintain the ability to fully

discharge all his other duties under the Agreement. The alternative language submitted by the

Commonwealth, with the United States’ alteration, is necessary to preserve a Settlement

Agreement that is fair, adequate, and reasonable, and that is consistent with individuals’ rights under federal law.2

ARGUMENT

The Commonwealth’s proposal, coupled with the United States’ modification, addresses

the Court’s concerns and maintains an Agreement that is fair, reasonable, and adequate to

remedy the Commonwealth’s violations of the Americans with Disabilities Act (“ADA”).

I. LEGAL STANDARD GOVERNING JUDICIAL APPROVAL OF SETTLEMENT AGREEMENT

In order to enter a settlement agreement as a court order, “the court must satisfy itself that

the agreement is fair, adequate, and reasonable and is not illegal, a product of collusion, or

against the public interest.” United States v. North Carolina, 180 F.3d 574, 581 (4th Cir. 1999)

1

The Commonwealth also proposes slight modifications to the Court’s proposed language regarding who

may serve as an authorized representative of an individual with intellectual or developmental disabilities. See

Commonwealth’s Response to the Court’s Proposed Amendments to the Settlement Agreement (Dkt. No. 104) at 1-

2. The United States agrees with these changes.

2

The United States maintains the Settlement Agreement submitted to this Court for approval on January 26,

2012 (Dkt No. 2) meets the requisite standard for approval. See United States v. North Carolina, 180 F.3d 574, 581

(4th Cir. 1999).

2

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 3 of 13 PageID# 4544

(internal quotation marks omitted). The Fourth Circuit has held that, “[i]n considering whether to enter a proposed consent decree, a district court should be guided by the general principle that settlements are encouraged.”3 Id. “This principle is especially apposite in cases where, as here, the parties’ expertise and comparative freedom in crafting a remedy promise a more sensible and practical resolution to the problems presented by this complex litigation than that likely to result from judicial intervention.” Am. Canoe Ass’n, Inc. v. U.S. Envtl. Prot. Agency, 54 F. Supp. 2d 621, 625 (E.D. Va. 1999). Moreover, “where a government agency charged with protecting the public interest has pulled the laboring oar in constructing the proposed settlement, a reviewing court may appropriately accord substantial weight to the agency’s expertise and public interest responsibility.” Id. (internal quotation marks omitted). This is particularly true if the proposed agreement has the potential to save significant public funds that would otherwise be spent on litigation. United States v. Arch Coal, Inc., No. 2:11-0133, 2011 WL 5358723, at *7 (S.D.W. Va. 2011).
In reviewing proposed agreements, a court must remain mindful that it “sits not as a participant to the settlement negotiations,” Bragg v. Robertson, 54 F. Supp. 2d 653, 663 (S.D.W. Va. 1999), and as such, it should not inquire as to “whether the settlement is one which the court itself might have fashioned, or considers as ideal,” id. (quoting United States v. Kramer, 19 F. Supp. 2d 273, 280 (D.N.J. 1998)). See also United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409, 1436 (6th Cir. 1991) (“In evaluating the decree, it is not our function to determine whether this is the best possible settlement that could have been obtained, but only whether it is fair, adequate and reasonable.”); United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.

3

The ADA also explicitly encourages settlement. See 42 U.S.C. § 12212 (“Where appropriate and to the

extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations,

conciliation, facilitation, mediation, fact-finding, minitrials, and arbitration, is encouraged to resolve disputes arising

under [the ADA].”).

3

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 4 of 13 PageID# 4545

1990) (noting standard for reviewing settlement agreement is “not whether the settlement is one which the court itself might have fashioned, or considers as ideal, but whether the proposed decree is fair, reasonable, and faithful to the objectives of the governing statute.”); FTC v. Standard Fin. Mgt. Corp., 830 F.2d 404, 408 (1st Cir. 1987) (acknowledging court “has the duty to approve” a decree proposed by a public agency unless it is “‘unfair, inadequate or unreasonable’”) (citation omitted). II. THE COMMONWEALTH’S AND UNITED STATES’ MODIFICATIONS TO
THE SETTLEMENT AGREEMENT ARE FAIR, ADEQUATE, AND REASONABLE A. The Commonwealth’s Proposal Regarding Transferring Individuals from
Training Centers is Fair, Adequate, and Reasonable and Consistent with Federal Law The Commonwealth’s proposal regarding the Agreement’s provision relating to the transfer of individuals from State-operated Training Centers maintains an Agreement that is fair, adequate, and reasonable. The Commonwealth’s proposal guarantees care in an Intermediate Care Facility for Individuals with Mental Retardation (“ICF-MR”)4 to anyone who both qualifies for that level of care and chooses to be served in an ICF-MR. Further, pursuant to Virginia Code § 37.2-837, individuals residing at Virginia’s Training Centers are guaranteed the option of continuing to receive services in an ICF-MR operated by the Commonwealth. Individuals will retain the choice of a State-operated ICF-MR so long as § 37.2-837 of the Virginia Code remains in effect. If the relevant provision of the Agreement were explicitly to give individuals a right to remain in a Training Center—and effectively require the Commonwealth to maintain its Training Centers with an unknown capacity and continue serving as a provider of ICF-MR services

4

Effective July 16, 2012, the term ICF-MR will change to ICF-IID (Intermediate Care Facility for

Individuals with Intellectual Disabilities) to reflect current terminology. Medicaid and Medicare Program, 77 Fed.

Reg. 29002, 29021 (May 16, 2012) (to be codified at 42 C.F.R. pt. 400).

4

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 5 of 13 PageID# 4546

indefinitely—it would create substantive rights for individuals and impose obligations on the Commonwealth far beyond those contained in federal law. Nothing in the ADA or the Medicaid Act gives an individual the right to care in a Training Center or obligates the Commonwealth to continue operating Training Centers.
The ADA does not mandate that States themselves operate institutions such as Stateoperated ICF-MRs. Rather, Title II of the ADA requires public entities, like the Commonwealth, to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The regulations define the “most integrated setting” as that which “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B (2010). Indeed, in enacting the ADA, Congress sought to end the isolation and segregation of persons with disabilities. 42 U.S.C. § 12101(a)(2). Interpreting the ADA as requiring States to maintain institutions that segregate individuals with disabilities turns this mandate on its head.5
Nor does the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), create a right to a State-operated ICF-MR or require States to maintain its State-operated ICF-MRs. In Olmstead, the Supreme Court held that the ADA prohibits unjustified segregation of people with disabilities and described the harms of segregation: that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that

5

To suggest that an individual has the right to institutional care or that States must offer institutional services

under the ADA is illogical when considering the requirements of Title II of the ADA. Title II only applies to

“services, programs, or activities” of a public entity. 28 C.F.R. §35.130(a). Title II requires that “a public entity

shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to

avoid discrimination on the basis of disability.…” 28 C.F.R.§ 35.130(b)(7). The discrimination at issue here is

unnecessary segregation, and the Commonwealth has an obligation to modify its programs, through the provision of

integrated services, to avoid unnecessary segregation. While an individual cannot be forced to accept a particular

accommodation or service, 28 C.F.R. § 35.130(c), Title II does not then give the individual a right to institutional

service or require a public entity to provide it by virtue of the individual’s rejection of an offered accommodation.

See also Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (finding Congress must unambiguously intend to confer a

statutory federal right to create a private right of action.).

5

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 6 of 13 PageID# 4547
persons so isolated are incapable or unworthy of participating in community life” and that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 600-01. The Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607. The decision addresses when non-institutional options must be presented to individuals; it does not require States to continue institutionalizing persons who oppose moving. See Richard C. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999) (Olmstead does not require ongoing institutionalization if any of three Olmstead factors are not met.); see also Messier v. Southbury Training School, 562 F. Supp. 2d 294, 338 (D. Conn. 2008) (discussing the ADA’s “preference for integrated settings,” and holding that a State’s use of an institution as a “default” without first engaging the guardians and offering informed choice about community alternatives is inconsistent with the ADA’s integration mandate.)
The Medicaid Act likewise does not create a right to receive services in a State-operated ICF-MR, nor does it obligate the Commonwealth to act as a provider of ICF-MR services. Medicaid only requires that if a State offers ICF-MR services as part of its Medicaid State Plan, it must offer an ICF-MR placement to individuals who both qualify for and request ICF-MR care. See 42 U.S.C. § 1396a(a)(8) and 42 U.S.C. § 1396d(a)(15). However, the ICF-MR made available to the qualified individual can be State-run, public, or private, all of which are subject to the same federal regulations. See 42 C.F.R. § 400 et seq. As such, States are not required to
6

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 7 of 13 PageID# 4548
serve as ICF-MR care providers. 42 U.S.C. § 1396a(a)(23) (providers of Medicaid services must be willing to be a provider). Reflecting this fact, as of 2011, eleven States have already elected not to operate a State-run ICF-MR facility. See David Braddock et al., The State of the States in Developmental Disabilities 2011 51 (2011).
Courts have recognized consistently that nothing in the Medicaid Act or the ADA prevents a State from exercising its discretion to close public facilities and that individuals do not have a right to a particular facility. See, e.g., Ricci v. Patrick, 544 F.3d 8, 21 (1st Cir. 2008) (recognizing a State’s ability to close its State-operated facilities and noting the ADA’s preference for community integration under the Olmstead decision); Bruggeman v. Blagojevich, 324 F.3d 906, 910-11 (7th Cir. 2003) (finding no right to ICF-MRs other than those the State chooses to offer); Rolland v. Patrick, 562 F. Supp. 2d 176, 185 (D. Mass. 2008) (finding that federal law does not give individuals with disabilities the right to reside in a particular facility); Alexander v. Rendell, No. 05-419J, 2006 U.S. Dist. LEXIS 3378, at *18-19 (W.D. Pa. Jan. 30, 2006) (finding that “the Defendants' closing of the Altoona Center and its plan for transfer of its residents serves both the public policy of the ADA, Rehabilitation Act and the applicable Medicaid statutes and proper judicial deference to the discretion of the State in determining the manner in which it allocates its resources . . . .”); see also Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir. 1995) (State may close its public institutions for individuals with intellectual and developmental disabilities); Lelsz v. Kavanagh, 783 F. Supp. 286, 298 (N.D. Tex. 1991), aff’d 983 F. 2d 1061 (5th Cir. 1993), cert. denied, 510 U.S. 906 (1993) (same).
Given that nothing in the ADA, Olmstead, or the Medicaid Act can be read to create a federal requirement that Virginia maintain operation of its Training Centers, the Commonwealth’s proposed revisions to the Agreement are fair, adequate, and reasonable, in the
7

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 8 of 13 PageID# 4549

public interest, and not illegal. See United States v. City of Welch, No. 1:11-00647, 2012 WL 385489, at *2–4 (S.D.W. Va. Feb. 6, 2012) (finding agreement in public interest because it comported with the goals of the relevant statute); Am. Canoe Ass’n, 54 F. Supp. 2d at 625–29 (finding agreement fair, reasonable and adequate in part because it was consistent with the contested statute).
Mandating that the Commonwealth continue operating one or more Training Centers, even if its legislature were to reach a different judgment, exceeds what the Court can require and weakens the Commonwealth’s ability to expand badly needed community services. The Court has acknowledged that decisions about continued operations of the Training Centers are within the purview of the Commonwealth’s executive and legislative branches. See June 8, 2012 Hearing Transcript (Dkt. No. 103) at 7, 257; March 6, 2012 Order (Dkt. No. 22) at 2. Deference to a State’s discretion regarding closure of institutions is particularly appropriate where, as here, the State’s efforts are intended to maximize its available resources to serve effectively the greatest number of people. See Agreement III.C.9 (The Commonwealth has a “goal and policy . . . of using its limited resources to serve effectively the greatest number of individuals with ID/DD.”); Ricci, 544 F.3d at 17-18 n.8 (noting the importance of the State’s broad discretion in “allocating its resources to ensure equitable treatment of its citizens,” including discretion to close any facility).6

6

The United States understands the concerns raised by the Court regarding individuals currently residing in

State Training Centers. However, current residents of Training Centers will receive far more protections if the

Agreement is approved with the Commonwealth’s amendments than they would if the Agreement is not approved.

As this court has repeatedly recognized, Virginia’s plan to phase out its Training Centers is not required by this

Agreement, and the Commonwealth has represented that it will move forward with those plans whether this

Agreement receives approval or not. See, e.g., Commonwealth’s Response to the Court’s Proposed Amendments to

the Settlement Agreement (Dkt. No. 104) at 3. Given that Virginia can—and likely will—close its Training Centers

regardless of whether this Agreement is approved, those individuals residing in the Training Centers stand only to

gain from the Agreement’s numerous protections and quality assurance mechanisms. Those protections and

mechanisms relate to pre- and post-transfer services, enhanced case management, and stringent quality management

with independent monitoring. See, e.g., Settlement Agreement at IV.B. (discharge planning), IV.C. (transition

8

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 9 of 13 PageID# 4550
B. The Commonwealth’s Proposed Language, as Modified by the United States, Regarding the Independent Reviewer’s Reporting Requirements is Fair, Adequate, and Reasonable and Accommodates the Court’s Concerns Regarding Quality Assurance
The United States is amenable to the changes the Commonwealth has proposed to the Court’s suggested language regarding the investigation and reporting of deaths and serious injuries. However, the United States requests a further modification as set forth below so as to ensure the provision is fair, adequate, and reasonable:
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a training center. The Independent Reviewer shall forthwith investigate review any such death or injury and report his findings to the Court in a special report, to be filed under seal with copies to the parties. (The Commonwealth’s modifications underlined; the United States’ modification in bold.) The United States’ proposal will require the Independent Reviewer to review each death and serious injury requiring ongoing medical attention and, in the process, assess the quality of the Commonwealth’s own reporting and investigating systems, without requiring the Independent Reviewer to create and maintain a stand-alone system of clinicians and investigators redundant of the Commonwealth’s own reporting and investigating systems. If the Independent Reviewer determines from his review that there are problems in the Commonwealth’s investigation of specific incidents, he can direct the Commonwealth to address those problems or conduct an independent investigation. The United States’ examination of this issue, including inquiries of monitors from similar litigation and the Independent Reviewer in this case, confirms that this approach is uniformly implemented and appropriate here. This approach would provide oversight of the
services), V.F. (case management system), and V.I. (quality service reviews). Training Center residents can only be ensured of benefiting from those safeguards if the Agreement is approved.
9

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 10 of 13 PageID# 4551 Commonwealth’s investigation of each death and serious injury requiring ongoing medical care to ensure that the Commonwealth’s reporting and investigating systems are reliable and selfsustaining, while also ensuring that the Independent Reviewer can maintain his ability to discharge fully all his other duties under the Agreement. Accordingly, the United States urges that the Court accept the Commonwealth’s proposal as modified by the United States.
CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court approve the Agreement with the Commonwealth’s proposed amendments inclusive of the United States’ modification of the Independent Reviewer reporting provision. A proposed Order is attached.
10

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 11 of 13 PageID# 4552

Dated: June 26, 2012
FOR THE UNITED STATES:
NEIL H. MacBRIDE United States Attorney Eastern District of Virginia
/s/ DEBRA J. PRILLAMAN Assistant U.S. Attorney VSB No. 15844 600 East Main Street, Suite 1800 Richmond, VA 23219 Telephone: (804) 819-5400 Fax: (804) 819-7417 Debra.prillaman@usdoj.gov

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
EVE HILL Senior Counselor to the Assistant Attorney General Civil Rights Division
ALISON N. BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
JONATHAN SMITH Chief Special Litigation Section
BENJAMIN O. TAYLOE, JR. Deputy Chief Special Litigation Section

/s/

d

VINCENT HERMAN

AARON B. ZISSER

Trial Attorneys

U.S. Department of Justice

Civil Rights Division

Special Litigation Section

950 Pennsylvania Ave, NW

Washington, D.C. 20530

(202) 305-3318

Fax: (202) 514-4883

Vincent.Herman@usdoj.gov

11

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 12 of 13 PageID# 4553
CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of June, 2012, I will electronically file the foregoing UNITED STATES’ MEMORANDUM IN RESPONSE TO THE COURT’S PROPOSED AMENDMENTS TO THE SETTLEMENT AGREEMENT and proposed ORDER with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson Kurzmann Tysinger Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-2071 atysinger@oag.state.va.us
Gerard Thomas Schafer Schafer Law Group 5265 Providence Rd Suite 303 Virginia Beach, VA 23464 rschafer@schaferlawgroup.com
Cordelia Elias The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 celias@yorklegalgroup.com
Donald Zaycosky The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 dzaycosky@yorklegalgroup.com
Thomas York The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 tyork@yorklegalgroup.com
/ / / /
/ / / /
/ / / /
12

Case 3:12-cv-00059-JAG Document 105 Filed 06/26/12 Page 13 of 13 PageID# 4554 / / / /
And I hereby certify that I will mail the document by U.S. mail to the following nonfiling user(s):
/s/ Debra J. Prillaman Assistant U.S. Attorney VSB No. 15844 600 East Main Street, Suite 1800 Richmond, Virginia 23219 Telephone: (804) 819-5400 Facsimile: (804) 819-7417 Debra.prillaman@usdoj.gov
13

 </s> WILLIAMS MULLEN

Direct Dial: 804.420.6588 botoole@williamsmullen.com
VIA HAND DELIVERY John A. Gibney, Jr., Judge

April 6, 2012

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U.S. District Court for the Eastern District of Virginia, Richmond Division

Spottswood W. Robinson III and Robert R. Merhige, Jr. Federal Courthouse

70 I East Broad Street

Richmond, Virginia 23219

RE: United States v. Commonwealth of Virginia, Case No. 3:12cv59

Dear Judge Gibney,

Pursuant to your March 6, 2012 Order in the above-captioned case, we submit the following statement of 70 Virginia stakeholder organizations in support of the proposed Settlement Agreement between Virginia and the United States. We request that a representative of this stakeholder group be permitted to speak at the hearing concerning whether the proposed Agreement should be approved. We do not seek to put on or cross-examine any witnesses at the hearing. Thank you for your consideration.
Sincerely,

Brendan D. O'Toole, Esq. (VSB # 7132.9) botoole@williamsmullen.com Williams Mullen 200 South lOth Street, P.O. Box 1320 Richmond, VA 23218 T: 804.420.6588 F: 804.420-6507 Counsel for Virginia Stakeholder Organizations Listed Below

Ira Burnim, Esq. Jennifer Mathis, Esq. Julia Graff, Esq. Bazelon Center for Mental Health Law llOI 15th Street NW, Suite 1212 Washington DC 20005 tel. 202.467.5730, ext. 306; fax 202.223.0409 Counselfor Virginia Stakeholder Organizations Listed Below

NORTH CAROLINA • VIRGINIA • WASHINGTON, D.C.
200 South 10• Street, Suite 1600 (23219) P.O. Box 1320 Richmond, VA23218-1320 Tel: 804.420.6000 Fax: 804.420.6507 www.williamsmullen.com

WILLIAMS MULLEN
April6, 2012 Page2
The Aktion Club of the Virginia Peninsula The Arc of Virginia The Arc of Augusta The Arc of Central Virginia The Arc of Greater Prince William The Arc of Greater Roanoke Valley The Arc of Harrisonburg and Rockingham The Arc of Loudoun The Arc of the New River Valley The Arc of North Central Virginia The Arc of Northern Shenandoah Valley The Arc ofNorthern Virginia The Arc of the Piedmont The Arc-Rappahannock The Arc of Rockbridge The Arc of Southern Virginia The Arc of South Hampton Roads The Arc South ofthe James The Arc of Southside The Arc of the Virginia Peninsula Autism Society of America- Central Virginia Chapter Autism Society ofNorthern Virginia BestCareHome Care, Inc. Chimes Virginia The Choice Group Community Concepts, Inc. Community Residences, Inc. Dominion Waiver Services The Down Syndrome Society of Fredericksburg The Down Syndrome Association of Greater Richmond The Down Syndrome Association of Hampton Roads The Down Syndrome Association of Northern Virginia Eggleston Services Family Alliance and Support Network The Four Seasons Community Action Group Friends of The Arc-Martinsville and surrounding counties of Henry, Patrick, and Franklin Hanover Arc, Inc. Hartwood Foundation, Inc. Heart Havens Hope House Foundation

WILLIAMS MULLEN
April6, 2012 Page3
Imagine Just People, Inc. Lutheran Family Services ofVirginia Moms in Motion MVLE Niche Housing, Inc. Our Voices Parent to Parent of Virginia Parents and Advocates for Special Housing Needs (PASHN, Inc.) The Partnership for People with Disabilities Peninsula Autism Society People First of Charlottsville People First of Chesterfield People First ofNorthern Virginia People 4 People Positive Behavioral Supports of Virginia, PLLC Rappahannock Area Community Services Board The Skills Development Center St. John's Community Services Support Services of Virginia, Inc. VaACCSES VA-APSE Virginia Association of Centers for Independent Living Virginia Association of Community Services Boards (VACSB) Virginia Association of Personal Care Assistants Virginia Down Syndrome Association Virginia Network of Private Providers (VNPP) Virginia Poverty Law Center Voices of Virginia Wall Residences
17607524_1.DOC

Statement of Virginia Stakeholder Coalition in Support of Settlement Agreement We, a broad coalition of Virginia stakeholders, submit this statement in support of the
Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. Together we represent a wide range of expertise and experience concerning the needs of individuals with intellectual and other developmental disabilities and with Virginia's system of services for these individuals. Our organizations represent thousands of individuals with intellectual and other developmental disabilities and their family members, community service boards, service providers, and independent living centers. We have helped countless individuals with intellectual and other developmental disabilities to live productive and meaningful lives in their homes and communities, and have helped numerous other individuals transition successfully from institutional to community settings.
We urge the Court to approve the Settlement Agreement between the Commonwealth of Virginia and the U.S. Department of Justice. The Settlement affords an historic opportunity for thousands of Virginians with intellectual and developmental disabilities to live full lives in their own homes and communities. Following are our reasons for supporting the Settlement Agreement. 1. Individuals with intellectual and other developmental disabilities, including those individuals with the most complex needs, can live successfully in the community.
The members of our coalition have many decades of collective experience in planning, designing, administering and receiving services that enable individuals with intellectual and developmental disabilities to live successfully in their own homes and communities. We have firsthand experience with what has been demonstrated by repeated studies and experience in service systems across the country: individuals with intellectual and other developmental disabilities, including even those with the most complex needs, can live successfully in the

community. Many of the individuals whom we have helped live in their homes and participate in their communities have extremely complex medical, behavioral support, or other needs. They have had needs as significant as the needs of individuals living in the Training Centers. Yet they not only have lived successfully in the community; they have flourished. 2. The Settlement Agreement affords a long overdue opportunity for thousands of individuals with IDillD to live in integrated community settings and to lead lives similar to those of people without disabilities.
Thousands ofVirginians with intellectual and other developmental disabilities have spent years on waiting lists without receiving needed services. For many, the lack of community services puts them at serious risk of institutionalization. Others are needlessly institutionalized in Training Centers or other institutions because community services are unavailable. These individuals deserve the opportunity to receive services to live successfully in the community. Community settings afford many more opportunities to interact with individuals without disabilities than do institutional settings. They also promote regular participation in community activities, including social, educational and work activities. In contrast to institutional settings, where residents typically have regimented lives and little opportunity to learn independent living skills, community settings afford individuals the chance to learn to do things for themselves and develop greater independence, as well as the opportunity to make choices about matters such as what they eat, when they get up, and how they spend their day.
We have observed countless individuals with intellectual or other developmental disabilities who were thought to have low potential to succeed in community settings actually thrive once they were provided with individualized services tailored to their strengths and needs.
2

Sq3.eutaTtllihetmye oeanvnetdrAsiniggdrheivte,imdaucecnaoltiuzwneidtlalsbheierllivptiyceeansns.durqeutahlaittypmeoapnlaegwemithenItDmilelDchwanililsmrescebivueiltsainfet,ohtihgeh
Successful transitions of individuals with intellectual and other developmental disabilities to conunuoity-based settings depend on settings that are safe and services that are carefully tailored to the needs of each individual. The Settlement Agreement includes extensive provisions designed to help ensure that individuals who receive services uoder the Agreement are safe and provided with sufficient and high quality services. The Agreement explicitly outlines and enhances current practices of identifYing and addressing risks of harm, and implementing quality improvement programs with specific reporting requirements. It also sets standards for the provision of case management services and licensing inspections, and provides for the development of state-wide core competency trainings and quality service reviews.
The Independent Reviewer, who brings extensive expertise to Virginia, will be an asset to the service system, helping with the development of service plans and the expansion of service capacity.
Although the Settlement Agreement does not fill in all the details, such as fuoding and rate structures, it provides a solid framework for the work that must be accomplished over the next 10 years.
4. The Settlement Agreement will help keep families together. Finally, the Agreement will help keep families together by enabling thousands of people
with intellectual and developmental disabilities to continue living in their homes and conunuoities, with or close to their families, and by enabling many others to leave institutional settings and move closer to their families and other loved ones. People with intellectual and developmental disabilities typically thrive in their homes and commuoities when they receive the
3

services they need. Without appropriate services, families often experience financial, emotional, and physical fatigue, and face unfair and cruel choices about how to care for their loved ones under difficult circumstances.
On behalf of the thousands of Virginians whom we serve and count among our family members, we urge you to approve the Settlement Agreement that the United States and the Commonwealth of Virginia have submitted.
4

Membership of the Coalition of Stakeholders in Support of the Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. I. The Aktion Club of the Virginia Peninsula is a Kiwanis-sponsored club for citizens with disabilities, supported by six Hampton Roads Kiwanis Clubs. The club has more than 40 members, who select service projects benefitting the local community, identi:f)r speakers to invite to their club, plan social activities, and elect their club's leadership. 2. The Arc of Virginia is a state chapter of The Arc of the United States, the world's largest grassroots organization of and for people with intellectual and developmental disabilities. The Arc of Virginia advocates for full inclusion and participation in the community for the organization's membership, which includes many individuals and families who are on a waiting list for services. 3. The Arc of Augusta provides education, recreation and social interaction through two adult day support programs and promotes ID/DD awareness and advocacy via public interaction and activities in the Staunton, Waynesboro and Augusta County areas. 4. The Arc of Central Virginia provides services to individuals with ID/DD, including day support services, a summer day camp program to preschoolers thru adults, and residential services such as respite, in-home supports and sponsored residential services. 5. The Arc of Greater Prince William/INSIGHT Inc..offers comprehensive services within the greater Prince William area for individuals with developmental disabilities. The organization tirelessly promotes the acceptance and inclusion of people of developmental disabilities in our community, and specializes in those individuals with complex needs. 6. The Arc of Greater Roanoke Valley (ArcGRV) advocates for the rights and full community inclusion of all children and adults with intellectual and developmental disabilities. With its network of members, ArcGRV improves systems of support and services, connects families, inspires communities, and influences public policy. 7. The Arc of Harrisonburg and Rockingham has provided community programs and advocated for individuals with developmental disabilities for 50 years. The DOJ settlement is extremely important to the organization's members, who support the stakeholder coalition's emphasis on community-based supports, rather than the training centers. 8. The Arc of Loudoun serves individuals with disabilities and children of all abilities to maximize their potential so that everyone may thrive in our community. 9. The Arc of the New River Valley is a coalition of people with disabilities, family members of people with disabilities, teachers and students in our local school systems, university professionals, and community activists dedicated to helping people with disabilities lead full lives in the community. To achieve this, the
1

Membership of the Coalition of Stakeholders in Support ofthe Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. organization assists people with disabilities in developing a "microboard," which is a small group of committed family and friends who join with a person with a disability to create a nonprofit corporation dedicated to maintaining respectful, person-centered support for the individual. 10. The Arc of North Central Virginia, serving Culpeper, Fauquier, Madison, Orange and Rappahannock Counties, is an advocacy organization committed to enhancing the lives of those with intellectual and developmental disabilities to ensure they become valued members of our community and to reach their fullest potential. The Arc is committed to creating an environment that encourages inclusiveness and acceptance through the education, advocacy and support of families, friends and our community. 11. The Arc of Northern Shenandoah Valley provides advocacy and support to · individual with intellectual and developmental disabilities as well as the families and organizations that work with them. The Arc/NSV serves Frederick, Clarke, Shenandoah Counties, and the City of Winchester. 12. The Arc of Northern Virginia is a non-profit membership organization dedicated to protecting the human and civil rights of people with intellectual and developmental disabilities through their full inclusion in the community. The Arc of Northern Virginia represents, supports, and acts on behalf of individuals with disabilities and their families through the Northern Virginia area through advocacy and direct supports. 13. The Arc of the Piedmont improves the quality of life of infants, children and adults with, or at risk of intellectual and developmental disabilities, and the lives of their families, through service, advocacy and education. Our vision is for people with disabilities to be fully participating members of the community. 14. The Arc of Rappahannock provides advocacy and support for individuals with intellectual and developmental disabilities throughout the City of Fredericksburg and the counties of Caroline, Stafford, King George, and Spotsylvania. Our Vision is that all people with cognitive and developmental disabilities have full inclusion within their communities; so that they can live, work, make friends, and live full lives in every way. 15. The Arc of Rockbridge serves individuals with intellectual and developmental disabilities and their families. We provide financial support, respite care, and advocacy, as well as opportunities for community involvement and social activities. 16. The Arc of Southern Virginia, serving Halifax, Mecklenburg and Charlotte Counties, advocates for people with intellectual and developmental disabilities. We work to foster full inclusion and active participation in the community for the enrichment of the lives of these individuals and their families by providing community education, support, information and referral with a strong emphasis on youth and adult self-advocacy.
2

Membership of the Coalition of Stakeholders in Support of the Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. 17. The Arc of South Hampton Roads provides advocacy aod support to individuals with developmental disabilities aod their families who live in the localities of Chesapeake, Virginia Beach, Portsmouth, Norfolk aod Suffolk. 18. The Arc South of the James provides support, advocacy training, workshops, aod information about the Arc aod its mission to local families that include ao individual with intellectual or developmental disabilities. In addition, the orgaoization provides outreach aod public education to the greater community, including local businesses, on the benefits aod importaoce of integrating individuals with intellectual aod developmental disabilities into the community. 19. The Arc of Southside is a local chapter of the largest national grassroots orgaoization advocating for the rights of people with intellectual aod developmental disabilities. We provide advocacy and direct services supporting people of all ability levels to live full independent lives in the community through our housing, employment aod education programs. 20. The Arc of the Virginia Peninsula is a comprehensive service provider with a proud history of support for people with disabilities aod their families. The Arc currently serves more thao 1,000 individuals with developmental disabilities in employment, day support, community living aod early childhood programs. 21. The Autism Society of America-Central Virginia Chapter promotes lifelong access aod opportunities for persons within the autism spectrum aod their families, to be fully included, participating members oftheir communities through advocacy, public awareness, education and research related to autism. 22. Autism Society of Northern Virginia serves individuals aod families in the region who have been touched by autism by providing a full raoge of services aod supports, including information aod referral assistaoce, advocacy aod education, family fun aod respite, support groups, Intervention Assistaoce Fund minigraots, aod fundraising events aod programs. 23. BestCare Home Care, Inc. provides personal assistaoce and respite care under the ID and ED/CD Waivers. We provide in-home support to individuals with disabilities to enable them to live successfully in the community. 24. Chimes Virginia operates supervised group homes, provides in-home supports aod respite services for people who live with their families, aod offers an alternative to traditional day services, utilizing the Club House model. Services are delivered in the northern Virginia suburbs.
3

Membership ofthe Coalition of Stakeholders in Support ofthe Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. 25. The Choice Group is a nationally accredited organization that provides quality integrated community-based employment to over 1,000 individuals with disabilities throughout Virginia. 26. Community Concepts, Inc. provides residential and day support services to persons with intellectual disabilities. As we help the persons we support broaden their horizons and embrace new dreams, lives are transformed and entire communities benefit. 27. Community Residences, Inc. (CR) is a non-profit organization providing quality services to enable individuals with a wide range of disabilities to live as independently and with as high a quality oflife as possible. CR is one of the largest providers of medical, therapeutic, educational, vocational, residential and integrative recreational services to individuals with disabilities in Virginia, serving consumers in Arlington, Fairfax and Prince William counties and the City of Richmond. 28. Dominion Waiver Services works to empower individuals to learn how to live independently within the community. We offer our supports through our Sponsored Residential, In Home Residential and Day Support programs. 29. The Down Syndrome Society of Fredericksburg is a volunteer-directed, non-profit organization, offering encouragement, education, and support to parents, families, and friends who love a person with Down Syndrome. 30. The Down Syndrome Association of Greater Richmond is a nonprofit organization that strives to improve the quality of life for individuals with Down syndrome and their families by providing access to current and accurate information on Down syndrome and by fostering programs that focus on education, community services, public awareness, medical issues, research, advocacy, legal issues and parenting. 31. The Down Syndrome Association of Hampton Roads is a non-profit charitable organization that supports families and persons with Down syndrome. The mission of the DSAHR is to enhance the lives of individuals with Down syndrome, helping them reach their full potential by providing family support, education, and social opportunities in Southeast Virginia and Hampton Roads. 32. The Down Syndrome Association of Northern Virginia is a nonprofit organization of more than 900 members representing the thousands of individuals across Northern Virginia who have Down syndrome. We have become a trusted resource for these individuals, their families and friends, educators, employers, legislators, and the medical community. 33. Eggleston Services is a non-profit organization dedicated to educating, training and employing individuals with disabilities. Through partnerships with businesses and government institutions, Eggleston finds and creates opportunities for individuals to
4

Membership of the Coalition of Stakeholders in Support of the Settlement Agreement in United States v. Virginia, No. 3:12-CV-059.
make the most of their abilities, contribute to society, and enjoy the satisfaction of working and earning their own living.
34. Family Alliance and Support Network (FANS) is a group of friends from the Harrisonburg, Virginia area for families of adults who have intellectual or developmental disabilities. Our group provides friendship, support and networking opportunities.
35. The Four Seasons Community Action Group is a Richmond-based client advocacy group comprised of individuals with lifelong disabilities who are interested in learning how to advocate for themselves and help other individuals with disabilities learn to do the same. The group is self-run with support by staff from Richmond Residential Services, Inc. and strives to be a presence in their community by participating in food drives, Toys for Tots drives, the Special Olympics walk-a-thou and other types of social networking activities.
36. Friends of The Arc-Martinsville and surrounding counties of Henry, Patrick, and Franklin is a group of self-advocates, parents, professionals, and community members that formed to ensure individuals with developmental and intellectual disabilities are fully included in the communities and have direction over their lives. Our plan is to organize as an Arc chapter that will advocate for better services and network to improve community and public policy.
37. Hanover Arc, Inc. serves 165 individuals with or at risk of intellectual and other developmental disabilities and their families with individualized services and supports, including resource navigation, family support, educational scholarships, recreation, transportation, respite, adaptive equipment. A volunteer-driven organization totally funded through non-public donations, Hanover Arc educates the public and advocates for the rights and inclusion of individuals with ID/DD in the community.
38. Hartwood Foundation, Inc. is a nonsectarian, nonprofit corporation founded by families that include a person(s) with ID/DD. Hartwood develops and provides residential and respite supports in 18 community-based group homes in the Northern Virginia and Henrico County areas, and provides services to a number of individuals who previously have resided in Virginia training centers.
39. Heart Havens is a residential program that serves individuals with intellectual disabilities. Heart Havens offers 13 group homes in Virginia, through which it serves approximately 50 individuals.
40. Hope House Foundation provides individualized supported living services for and with adults with developmental disabilities in their own homes or apartments. Currently, the organization serves more than 130 people living in Norfolk, Portsmouth, Chesapeake, and Virginia Beach, Virginia.
5

Membership ofthe Coalition of Stakeholders in Support ofthe Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. 41. Imagine provides consultation and training to professionals interested in positive approaches to difficult behaviors throughout the United States, Canada and Europe. A guiding principal of the organization is that all people can be supported in community settings. 42. Just People, Inc. provides a sense of normalization in the lives of individuals with intellectual disabilities by teaching life skills through residential and day support programs. Just People, Inc. currently serves three individuals that used to live in institutions who now live successfully in the organization's residential program. 43. Lutheran Family Services of Virginia helps adults with disabilities live fulfilling lives in their preferred community setting by providing sponsored residential services, group homes, day support, respite care and in-home support. 44. Moms in Motion is a Service Facilitation provider for Consumer Directed Personal Assistance Services and a Case Management provider for DD waiver recipients. The organization serves more than 400 individuals with disabilities to ensure and protect person-centered plarming. 45. MVLE is a nonprofit program provider under the federal AbilityOne initiative, performing contract services for numerous businesses and government agencies in the Washington DC metropolitan area and Northern Virginia. MVLE supports and employs individuals with intellectual disabilities and is an internationally accredited Community Rehabilitation provider headquartered in Springfield, Virginia. 46. Niche Housing, Inc. is creating an affordable, sustainable, universally designed cohousing community that will be an option for home ownership by the disabled, seniors and workforce families. 47. Our Voices is a self-advocacy group available to people with disabilities in Tidewater with a focus on one to one peer advocacy support, staff education and training and political action. 48. Parent to Parent of Virginia provides one to one emotional support to thousands of families whose children have disabilities, and technical assistance to hundreds of organizations that want to start an evidence-based peer mentoring program to provide parent to parent support. 49. Parents and Advocates for Special Housing Needs (PASHN, Inc.) is a non-profit organization established to develop residential opportunities for young adults with intellectual disabilities in the Williamsburg/York County/James City County area, where more than one hundred individuals are currently on the ID Waiver waiting list on urgent status. 50. The Partnership for People with Disabilities is recognized by the U.S. Department of Health and Human Services, Administration on Developmental Disabilities, as a
6

Membership ofthe Coalition of Stakeholders in Support of the Settlement Agreement in United States v. Virginia, No. 3:12-CV-059.

university center for excellence in developmental housed at Virginia Commonwealth University, is

disabilities. The Partnership, home to more than 20 federal

state programs, staffed by more than 80 professionals, family members, people

disabilities, and university students supporting individuals with disabilities and

families.

and with their

51.

The Peninsula Autism provides education and

Society is support to

an all-volunteer, parent-led organization approximately 350 family members and

that

professionals in the Williamsburg/Yorktown/Hampton/Newport News area of

Virginia.

52.

People First of Charlottesville is a group comprised primarily of individuals disabilities whose mission is to promote self-advocacy by speaking and acting

with on

behalf of the rights and responsibilities of all people with developmental

disabilities. Being part of a People First group means being part of a grassroots

network to speak

that allows people to join with regional, state, up for causes and have their voice heard.

and

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53. nsCPeaehvtoeieopsrntaleealrlfvFiceeiorrlydnstfaCeocrotfeiunCvncehteymes,,sestcemporombfnieemsrlosdurwneidishtyoainsKppeairarwvtriitaccbniepiyspatrt"heoAejieknJctatmimso,onesn"sotcRchliliuayvblemaarcenKtedivitwisinteaiglenfss-i,,saa.adsnvTwdohcesealhlcgayarrsiognusrgtpoauthepaasinnd educational experiences to better advocate for themselves and others with disabilities.

54.

People First of Northern Virginia is a learn to share their voice and advocate. issues related to people with disabilities unique perspective of self-advocates.

group of self-advocates who work together to People First members remain informed of and work to respond to these issues with the

55. People 4 People is an advocacy group comprised of approximately 30 individuals with disabilities in the Hampton Roads area. The group focuses on advocacy and public education at the local and state levels.

56.

Positive supports

Behavioral Supports of Virginia, PLLC provides therapeutic to individuals, families, schools, and providers with a focus on

behavioral assisting

individuals with intellectual and neurological disabilities. Services offered include

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57. The Rappahannock Area Community Services Board (RACSB) provides public mental health, intellectual disability, substance abuse, prevention, and early intervention services to the residents of the City of Fredericksburg and Counties of Caroline, King George, Spotsylvania, and Stafford. Only one individual from the RACSB Planning District has gone to reside in a state-run training center in the past 10 years; individuals with severe and profound intellectual disabilities are

7

Membership of the Coalition of Stakeholders in Support of the Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. successfully supported here in the community through an integrated communitybased system of care that is sensitive to individuals' needs and choices. 58. The SkiDs Development Center (SDC) teaches young adults with developmental disabilities a variety of behavioral, social, employment and independent living skills to increase independence and to become productive members of society. SDC educates the local business community to create employment opportunities and provides a Facilitated Recreation Center where young adults meet with friends and engage in meaningful and enjoyable social activities. 59. St. -!ohn's Community Services Virginia (SJCS) is a nonprofit, community-based organization that supports adults with intellectual, developmental, physical and other disabilities. SJCS's "support without walls," activist approach, enables people with disabilities to fully participate in and become contributors to their communities in our employment, adult day, and residential services. 60. Support Services of Virginia, Inc. provides community-based services to more than 150 persons with intellectual and developmental disabilities across Hampton Roads, Central, Southside and Eastern Shore Virginia. Services provided include sponsored, in-home, group home and supervised living residential services as well as day support and therapeutic consn!tation. 61. The Virginia Association of Community Rehabilitation Programs, doing business as vaACCSES, is a nonprofit association of community-based providers of employment, residential, day support and other services. All of our members are nationally accredited by the Commission on the Accreditation of Rehabilitation Facilities and provide quality services to more than 12,000 Virginians with disabilities. 62. Virginia APSE is the state affiliate of APSE (formerly, the Association for Persons in Supported Employment), a nation-wide organization focused on integrated employment and career advancement opportunities for individuals with disabilities. Virginia APSE works with employers to expand the growth and implementation of integrated employment services for Virginians with disabilities. 63. Virginia Association of Centers for Independent Living (VACIL) is a statewide association of Centers for Independent Living (CILs) that advocates for the integration and inclusion of people with disabilities into all aspects of society. The association also promotes the professional development, improvement, and expansion of community-based, consumer-controlled CILs, and promotes community education. 64. The Virginia Association of Community Services Boards (VACSB) is the private non-profit organization that represents Virginia's CSBs, which are Code-authorized local public agencies. The VACSB mission is to assist CSBs in achieving a publiclyfunded system of quality services through public and private providers that is responsive to the needs of individuals with mental disabilities and their families,
8

Membership of the Coalition of Stakeholders in Support ofthe Settlement Agreement in United States v. Virginia, No. 3:12-CV-059. focuses resources on effective community-based services and supports for those individuals, promotes individualized independence and recovery, ameliorates and prevents disabling conditions, and promotes education of the publicto lessen stigma and inform the public about the needs of citizens with mental illness, intellectual/developmental disabilities, substance use disorders. 65. The Virginia Association of Personal Care Assistants (VAPCA-SEIU VA 512) is an organization of home care workers, known as Personal Care Assistants, working for the improvements to home care that we all need to ensure quality home care for older adults and people with disabilities in Virginia. By uniting together as caregivers and working in coalition with consumers and advocates, the members ofVAPCA have successfully persuaded Virginia lawmakers to invest in home care, and continue to work for improvements to the long term care system,. ensuring people with disabilities and older adults have the choice to live at home instead of an institution. 66. The Virginia Down Syndrome Alliance is a coalition of Down Syndrome Associations in the Commonwealth, dedicated to improving the quality of life for individuals with Down syndrome and other intellectual and developmental disabilities by effecting positive systems change at the federal, state and local levels of government Membership among the local Associations comprising the Alliance totals more than 1500 families. 67. The Virginia Network of Private Providers (VNPP, Inc.) is a trade association for organizations that are private providers of support for persons who have mental illness, developmental delay or substance use disorder and are licensed by or funded by the Department of Behavioral Health and Developmental Services. Members may also be individuals who have an interest in the purposes ofthe Corporation and wish to stay informed of issues affecting private providers of support for persons who have mental illness, developmental delay or substance use disorder. 68. The Virginia Poverty Law Center (VPLC) is a non-profit organization that serves Virginia's legal aid system by providing and coordinating advocacy, training, and litigation support on civil justice issues that affect low-income Virginians. In health matters, VPLC is a key advocate in efforts to promote the development and improvement of public health insurance programs for Virginia's poor and uninsured. 69. Voices of Virginia is a statewide self-advocacy group for people with intellectual and other related developmental disabilities. Voices of Virginia is composed of six local self-advocacy organizations that are run by and for people with intellectual and developmental disabilities. 70. Wall Residences is a private provider of residential support for individuals with intellectual disabilities and intensive support needs. Wall Residences currently supports 380 people in 230 homes.
9

 </s> Case 3:12-cv-00059-JAG Document 202 Filed 01/08/16 Page 1 of 5 PageID# 6488

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Defendant,

)

)

and

)

)

PEGGY WOOD, et al.,

)

)

Intervenor-Defendants.

)

_________________________________________ )

CIVIL ACTION NO: 3:12cv59-JAG

UNITED STATES’ WITHDRAWAL OF MOTION FOR A COURT-ORDERED SCHEDULE AND JOINT SUBMISSION OF SCHEDULES

Pending before this Court is the United States’ Statement of Issues and Motion for Court-Ordered Schedule, ECF No. 186 (“Motion for Schedule”). In that motion, the United States described its concerns about delays in the implementation of the Settlement Agreement, ECF No. 112, August 23, 2012 (“Agreement”), including delays in developing a functional crisis system, integrated day and supported employment programs, and integrated housing. Id. at 1-2. The United States’ concerns were amplified by delays in the Commonwealth of Virginia’s restructuring of its Home and Community-Based Services Waivers (“HCBS Waivers”). Although not required by the Agreement, this restructuring is a strategy presented by the Commonwealth to achieve compliance with many of the Agreement’s provisions. Defendant’s Response to the United States’ and Intervenors’ Statements of Issues

Case 3:12-cv-00059-JAG Document 202 Filed 01/08/16 Page 2 of 5 PageID# 6489
and in Opposition to the United States’ Motion for Court-Ordered Schedule, ECF No. 191, at 3. Consequently, the United States requested in the motion that the Court require the Commonwealth to provide a schedule setting out reasonable time frames for implementation of the Agreement’s provisions, consistent with the Agreement’s underlying requirements. Motion for Schedule at 3, 29.
At a public status conference on October 23, 2015, addressing the implementation of the Agreement, the Court set a hearing for the Motion for Schedule but encouraged the United States and the Commonwealth to address the issues underlying the motion and determine whether further proceedings were necessary.
Since the October hearing, the Commonwealth and the United States have held numerous discussions and have reached agreement on specific implementation schedules, including time frames, interim steps, and performance indicators, for four discrete areas of the Agreement that the United States highlighted in its Motion for Schedule: Supported Employment, Community Engagement (i.e., “Integrated Day”), Crisis Services for Adults, and Crisis Services for Children. The Commonwealth and the United States jointly submit these schedules as Attachment A hereto. The Parties hereto do not intend for these schedules to be modifications or addenda to the Agreement, or entered as court orders at this time. However, the Parties agree that, if implemented, these schedules should significantly facilitate implementation of the Agreement itself.
Moreover, the Parties have committed to continue to negotiate schedules for the remaining areas identified in the United States’ motion, including: integrated housing options, children in nursing facilities and large intermediate care facilities, individuals with complex
2

Case 3:12-cv-00059-JAG Document 202 Filed 01/08/16 Page 3 of 5 PageID# 6490

medical needs, and quality and risk management. The Parties intend to submit similar implementation schedules for those areas during the next several months.
In addition, since the October hearing, the Commonwealth has submitted a budget to the General Assembly that, if approved, should enable the Commonwealth to proceed with the restructuring of its HCBS Waivers to help continue efforts to implement the Agreement.
In light of the foregoing, the United States submits that proceedings at this time on the United States’ pending Motion for Schedule are not necessary, and the United States herewith withdraws its Motion for Schedule without prejudice. However, the United States may renew its motion if anticipated progress fails to occur.

Respectfully submitted,

Dated: January 8, 2015

FOR THE UNITED STATES:

DANA J. BOENTE United States Attorney Eastern District of Virginia

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division

By: /s/ ROBERT McINTOSH Virginia Bar Number 66113 Attorney for the United States of America United States Attorney’s Office 919 East Main Street, Suite 1900 Richmond, Virginia 23219 Telephone: (804) 819-7404 Facsimile: (804) 819-7417 Robert.McIntosh@usdoj.gov

EVE HILL Deputy Assistant Attorney General Civil Rights Division
STEVEN H. ROSENBAUM Chief Special Litigation Section
BENJAMIN O. TAYLOE, JR. Deputy Chief Special Litigation Section

By: /s/ KYLE SMIDDIE
3

Case 3:12-cv-00059-JAG Document 202 Filed 01/08/16 Page 4 of 5 PageID# 6491

JESSICA POLANSKY Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave, NW Washington, D.C. 20530 Phone: (202) 532-3249 Fax: (202) 514-4883 kyle.smiddie@usdoj.gov

FOR THE COMMONWEALTH:

The Honorable Mark R. Herring Attorney General of Virginia

Cynthia V. Bailey Deputy Attorney General

By:

/s/

Allyson K. Tysinger, Senior Assistant Attorney General

Braden J. Curtis, Assistant Attorney General

Attorneys for Defendant

Virginia Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-1927

(804) 371-8718 (Fax)

ATysinger@oag.state.va.us

4

Case 3:12-cv-00059-JAG Document 202 Filed 01/08/16 Page 5 of 5 PageID# 6492
CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of January, 2016, I will electronically file the
foregoing UNITED STATES’ WITHDRAWAL OF MOTION FOR A COURT-ORDERED
SCHEDULE AND JOINT SUBMISSION OF SCHEDULES with the Clerk of Court using the
CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Allyson Kurzmann Tysinger Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-2071 ATysinger@oag.state.va.us
Gerard Thomas Schafer Schafer Law Group 5265 Providence Rd Suite 303 Virginia Beach, VA 23464 rschafer@schaferlawgroup.com
Thomas York The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 tyork@yorklegalgroup.com
/s/ Robert P. McIntosh Robert P. McIntosh Virginia Bar Number 66113 Attorney for the United States of America United States Attorney=s Office 919 East Main Street, Suite 1900 Richmond, Virginia 23219 Telephone: (804) 819-5400 Facsimile: (804) 819-7417 Email: Robert.McIntosh@usdoj.gov
5

 </s> Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 1 of 30 PageID# 7219

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA, )

)

Defendant,

)

)

PEGGY WOOD, et al.,

)

)

Intervenors

)

Civil Action No. 3:12CV59-JAG Motion

INTERVENORS’ MOTION FOR
INJUNCTIVE RELIEF

The Intervenors respectfully request that this Honorable Court grant immediate injunctive relief to protect the former residents of the nursing/skilled nursing facility (hereinafter referred to as the “NF”) at Central Virginia Training Center (“hereinafter referred to as “CVTC”) from imminent serious harm and death, to remedy the illegal discharges and transfers from Training Centers, and to prevent further illegal discharges and transfers from Training Centers, and aver the following:
Factual Background 1. The Intervenors have never voluntarily consented to a move from Training Centers to any other placements. In fact, many of the Inervenors have signed a Statement of

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 2 of 30 PageID# 7220
Residential Decision which states that they are “firmly and unalterably opposed to transitioning...from CVTC to the community.”
2. Those Intervenors who signed Statements of Residential Decision specified that their decision would “remain in effect until such time as I (or my successor as Authorized Representative) provide a written revocation of this notice.”
3. The Intervenors who executed Statements of Residential Decision requested that these documents be placed in their records.
4. None of the Intervenors or their authorized representatives had voluntarily consented to discharge from the Training Centers. Several of the Intervenors were forced out of Training Centers by the Defendants by coercion, deception, or misinformation. Notification that Hiram Davis “qualifies as a Training Center” according to Commonwealth representatives and DBHDS officials was first given to authorized representatives after the forced discharge of several CVTC residents and their subsequent transfer to Hiram Davis Medical Center (hereinafter referred to as HDMC), a hospital and nursing facility associated with Central State Hospital in Petersburg. Hiram Davis is not a Training Center. The selection of the six (6) most ill patients to be evicted from CVTC was made by the same nurse manager responsible for the investigated and documented hostile work environment at CVTC’s NF , and not by a physician as required by Federal ICF/IID regulations.
5. Until January 2017, Central Virginia Training Center (CVTC) had both ICF/IID and nursing and skilled nursing CMS-certified beds. CVTC’s Building 31 housed the NF, and all remaining CVTC residential buildings were certified ICF/IID. All of the nursing facility beds were dual certified NF/SNF (nursing facility/skilled nursing facility), to be used for either long term or short term stays as needed.
6. As a part of CVTC, the nursing facility funding was always included in the overall CVTC appropriation by the General Assembly. On its website, DBHDS describes CVTC as

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 3 of 30 PageID# 7221
follows: “CVTC provides a full range of supports and services for persons with intellectual disabilities including Intermediate Care and Skilled Nursing living areas, an extensive array of day and evening activity programs, various clinical professional therapies as well as medical and dental services for the persons who live at CVTC.”
7. The Building 31 NF was surveyed annually by the Health Department, on behalf of CMS, and for many years it has received a superior overall rating of five stars, with five star ratings in all of the three subcategories: health inspections, quality measures and staffing. The facility had a capacity of 88, with a census in the forties at the time of its most recent inspection in August 2016.
8. For the first time in many years, the CVTC NF staffing rating decreased from its usual superior five (5) stars to an above average rating of four (4) stars at the August 2016 survey, with August 2016 also being the month that decertification of the NF was announced and the 24-hour physician on campus was discontinued by DBHDS. DBHDS claimed that nurse departures had increased due to the planned closure of CVTC in 2020 and that the planned closure impeded hiring replacement nursing staff.
9. The Commonwealth claimed, in a letter to all of the authorized representatives of the nursing facility residents, that an anticipated future shortage of nursing staff necessitated the conversion of the SNF beds to ICF/IID beds, for the safety of the residents. This was despite a simultaneous high CMS rating for staffing. The announcement letter did not notify the authorized representatives of their federal right to appeal this decision and the procedure for so doing, nor did it include a list of advocacy agencies and their contact information as required by federal regulations.
10. Beyond requiring that an RN is onsite every shift, CMS NF regulations do not specify a nurse to patient ratio, nor do they require a specific number of nurses on staff, but instead they require that facilities maintain sufficient nursing staff to meet the needs of

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 4 of 30 PageID# 7222
patients. CVTC was in no danger of losing its certification, with its 4-star staff rating. As the census was reduced after the decision to decertify the NF beds was made and most of the NF residents were moved to the ICF portion of CVTC’s campus, nurse staffing levels at the NF were surely sufficient to give proper care to the much smaller number of individuals who remained, regardless of how their beds are certified with CMS.
11. The decline in nursing staff at CVTC’s NF, and the conversion of the NF beds to ICF/IID certification, appears to have been for the sole purpose of facilitating the ultimate closure of CVTC, based upon political decisions and ideology. Had the Commonwealth genuinely wished to increase the nursing staff at CVTC’s NF, it could have addressed the hostile work environment at the NF, created by the facility’s head nurse (and documented by a DBHDS investigators’ report to the state Inspector General, prompted by an OSIG hotline complaint), by recruiting agency or contract nurses, or by removing the NF from the closure list, thereby preventing further staff departures. If the Commonwealth had prevented these departures, there would have been no excuse for evicting the most seriously ill residents.
12. The Commonwealth, through Interim Commissioner Barber, has recently and for the first time stated publicly that it was always the plan to close the nursing facility at CVTC. Consistent with that announced intention, the Commonwealth alleged a nursing shortage which it or allowed or perhaps even promoted. The hostile work environment was tolerated or even supported by senior DBHDS leadership. In fact, the CVTC Director responsible for supervising the nurse who created the hostile work environment was subsequently rewarded and promoted by DBHDS for her actions. However, to the end, the nurse to patient ratio was always better at CVTC’s NF than at Hiram Davis Medical Center (hereinafter referred to as “Hiram Davis”).
13. In November 2016, a member of CVTC’s staff informed an officer of CVTC Families and Friends, in strict confidence for fear of jeopardizing his job, that he had learned

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 5 of 30 PageID# 7223
from a contact at DBHDS Central Office that DBHDS upper management planned an intentional and steady reduction and erosion of CVTC medical and support services to the extent that the facility would lose its CMS certification, to force discharges from the facility.
14. Also, an October 2016 joint DBHDS and OSIG internal investigation of the NF Nurse Manager by DBHDS, in response to an OSIG “hotline” complaint, revealed that the Nurse Manager was habitually abusive to the degree that some staff refused to be alone in a room with her, and her behavior caused nurses to leave. Staff understood her to be protected by the CVTC Director, and complaints were considered by staff to be intentionally buried. DBHDS did not remove the hostile Nurse Manager, and instead rewarded her for her actions and promoted her as Director of Clinical Services at CVTC. These facts are consistent with the confidential statement to a CVTC parent by a member of the CVTC staff that the Commonwealth planned to deliberately erode services at CVTC to facilitate closure of the Training Center.
15. The Commonwealth decided to retain and promote a head nurse at the NF who was known to be abusive and a cause of nurse departures. The DBHDS plan to close CVTC in 2020 could have been changed and the abusive nurse manager could have been removed, to relieve the anticipated future staffing problems, but DBHDS leadership made the decision to tolerate the hostile work environment, which supports the alleged plan to reduce services.
16. On August 26, 2016, DBHDS Interim Commissioner Jack Barber sent a letter to families of the nursing facility residents informing them that he intended to convert the NF beds to ICF/IID beds at the end of the year, and that all but six (6) patients would be transferred to the ICF portion of the CVTC campus, and Building 31 would be closed as soon as all moves could be arranged. The letter further stated that the remaining six patients (the most seriously ill) would have to leave CVTC, for their own safety, as he anticipated that the

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 6 of 30 PageID# 7224
nursing staff would decline in the future sufficiently to jeopardize their well-being. This was simultaneous to the CMS four-star rating for staffing.
17. Barber did not offer the CVTC NF patients any avenue of appeal, despite Medicaid law requiring that they be informed of the appeal process and be given the contact information of advocacy organizations. The failure of the Commonwealth to provide a statement of appeal rights and contact information as to where to file an appeal, along with contact information for the required advocacy groups, violated the rights of these individuals to appeal their discharge and impeded their due process rights. See 42 CFR §483.12.
18. The families of three (3) of the six (6) who were given notice of eviction were independently and autonomously aware of the DMAS appeal process and were able to appeal the Department’s decision to DMAS, the state’s Medicaid agency, but the rest, who were not appropriately informed, were denied an opportunity to appeal. All NF patients, including the three (3) who knew beforehand about the appeal process, were denied information as to their federal right to due process and the procedure for so doing, as affirmed in DMAS documents for the very few who did appeal without receiving the required notification by DBHDS of their right to do so. Despite the findings of the hearing officer, Robert Kerr, that the Commonwealth had violated federal due process procedures, these individuals were still forced to move, because the DMAS appeal process coincided with the exact timing of the conversion of their NF beds to ICF/IID beds (the 30-day post-DMAS appeal date was “coincidentally” January 31, the same date as conversion, and one day after a January 30 discharge date for the last CVTC patient going to Hiram Davis. The DMAS hearing officer refused to recognize federal and state laws that were cited by Intervenors’ families as part of the appeal process.
19. Despite previous PASRR II evaluations and years of physician assessments that found all of the individuals residing at CVTC’s NF in continuing need of nursing facility

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placement, the Commonwealth has now arbitrarily decided that many of these individuals, whose conditions are essentially unchanged, no longer require such a level of placement, based on the Commonwealth’s anticipated staffing problems that are caused by its own arbitrary administrative decisions and tolerance of the hostile work environment, and not by medical necessity.
20. The residents of the NF were judged to require nursing facility level of care at their PASRRII examinations in 2016, and Medicaid had for many years paid for all of their services at the higher NF rate. The patients at the nursing facility were not assessed to have recovered, nor were their physical conditions changed in any regard, yet the DBHDS Interim Commissioner insisted that they be transferred to the ICF portion of CVTC or to other facilities, due to his administrative problem with nurse staffing rather than any medical justification, claiming that he essentially had no choice but to do so because CVTC could no longer provide them with 24-hour nursing care. Although the Commonwealth has billed the federal government a higher rate for nursing or skilled nursing services for these individuals, the Commonwealth now claims that 36 of the same individuals, whose conditions are unchanged, do not require such services, for administrative convenience rather than medical reasons.
21. The Commonwealth planned and implemented the movement of 36 of the 42 NF residents to the larger Intermediate Care Facility (“ICF”) portion of CVTC or to communitybased facilities, after first changing the CMS certification of Building 31 from NF to ICF/IID and then later closing the building.
22. The Commonwealth identified the remaining six (6) individuals as too medically needy to remain at CVTC, due to an anticipated future nursing staff shortage. Five (5) of the six (6) were evicted, including three (3) whose guardians objected strenuously, and sent to Hiram Davis Medical Center (HDMC) in Petersburg, a state-operated nursing facility

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associated with Central State Hospital, a mental health facility located across the street from HDMC. The sixth has been given notice of eviction but has been given a temporary reprieve to seek an alternative local placement.
23. DBHDS operates Hiram Davis Medical Center (HDMC), next to the campus of the former Southside Virginia Training Center (SVTC), across the street from Central State Hospital. SVTC was closed in 2014. On state budget documents, HDMC is listed as a distinct non-Training Center facility with its own separate appropriation, separate from the former SVTC, even though it is located next to the former SVTC campus.
24. HDMC primarily receives patients from Central State Hospital (CSH), and DBHDS documents indicate that it is associated with CSH, as does CSH signage. HDMC forms also indicate that the facility is associated with CSH, since the words “Central State Hospital” appear on HDMC admission forms.
25. HDMC is not a Training Center, nor is it part of a Training Center.1 Hiram Davis is a separate nursing facility, with its own distinct budgetary appropriation, not formally part of any other state facility, but associated with Central State Hospital in Commonwealth documents and in Central State Hospital signage.2 DBHDS claimed in a DMAS hearing in December of 2016 that Hiram Davis “qualifies as a Training Center.”
26. Hiram Davis Medical Center (hereinafter referred to as “Hiram Davis”) is the only nursing home alternative that was offered to the residents of the NF at CVTC, except for inappropriate NF’s that were geriatric and had no oxygen system or wall suction. Some suggested NF placement alternatives refused to accept the evicted residents because of their
1 The Commonwealth claims that Hiram Davis “qualifies” as a training center, but that does not make it a Training Center under the applicable laws. This claim by the Commonwealth is only a manipulation of terms to avoid the intent of the state statute that prohibits the discharge of those individuals who choose to remain in a
Training Center. Section 37.2-837(A)(3) of the Virginia Code.
2 The Commonwealth claims that Hiram Davis provides services that qualifies it as a training center, but that is just an excuse to avoid the statutory requirements. Hiram Davis Medical Center is not and never has been a training center whether it “qualifies” as one or not.

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complex needs, because they were not in the age range of 55 to 65, because they had longterm needs, or because the NF did not have any expertise in intellectual disabilities.
27. HDMC is a greatly inferior nursing facility as compared to the NF at CVTC. In fact, HDMC is not even ADA compliant, thereby creating risks and barriers for the intellectually disabled individuals who are placed there.
28. Hiram Davis was penalized by CMS for numerous safety violations in 2015 through 2017, while CVTC was not. HDMC is surveyed annually by the Health Department on behalf of CMS, and it was given a below average rating of two (2) stars at the time of the CVTC forced transfers, with a subcategory breakdown of one (1) star for Health Inspections, two (2) stars for quality measures, and five (5) stars for staffing. In accordance with the requirements of the Affordable Care Act, HDMC was penalized 1% of its federal payments each year by CMS due to its poor safety record, from 2015 to the present year.
29. Hiram Davis has been cited for deficiencies such as uninvestigated and unexplained injuries/bruises, failure to follow physician-ordered diabetes management, medication errors, unsanitary food preparation, unclean linens with an infection risk, failure to keep accurate and complete medical records, failure to give residents proper treatment to prevent bedsores, failure to treat reduced range of motion, and failure to have a full-time Director of Nursing.
30. The NF at CVTC had only one (1) deficiency in its most recent CMS survey, an administrative record-keeping deficiency, whereas Hiram Davis had 46 deficiencies, a significant number of which were related to safety risks including improper infection control and unsanitary practices.
31. The ratio of nurses to patients at CVTC compared favorably to the ratio at Hiram Davis, even immediately prior to the January evictions. All NF’s are required by federal law to post their staff-to-patient ratios for each shift. The staffing at CVTC’s NF consistently

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compared favorably with HDMC, even for the months immediately prior to the evictions from CVTC. The ratio of RN’s to patients was markedly higher at CVTC then at HDMC, based upon a FOIA review of institution daily census versus daily nursing staff numbers, distinctly listing staff by certifications and degrees.
32. Hiram Davis primarily cares for mentally ill patients at Central State Hospital, who pose a risk to the highly vulnerable and fragile individuals transferred there from the NF at CVTC. Patients with intellectual disabilities are inappropriately intermingled with patients who have mental illness.
33. At the time of Peggy Wood’s admission to Hiram Davis, there were several residents intermittently heard to scream on the second floor and one of them was just across the hall from her, and this environment is highly detrimental to such a medically compromised and fragile individual as Peggy Wood.
34. There are other environmental deficiencies at Hiram Davis that place individuals from the NF at CVTC at greater risk, such as shared bathrooms and sinks, and documented infection control deficiencies, and one shared shower-trolley bath per 18 patients. Sinks are also shared among multiple rooms, in noncompliance with CDC and Joint Commission guidelines.
35. While CVTC’s NF is dual-certified by CMS for nursing and skilled nursing, it is and always has been a part of Central Virginia Training Center, funded by the General Assembly through the CVTC budgetary appropriation, and indicated as such in Commonwealth documents.
36. The residents at the NF at CVTC were the most severely disabled and most extremely fragile of all of the intellectually disabled persons being served in Training Centers in Virginia, and the six (6) compelled to move to outside facilities are or were the most severely disabled and fragile of all, as determined by a nurse.

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37. The most severely medically disabled NF residents at CVTC were subjected to eviction, and placed at risk. Subsequently several have died and most, if not all, have been hospitalized repeatedly.
38. Of the six (6) CVTC NF patients who were evicted from CVTC in January 2017, three (3) were sent to HDMC without the consent of their Authorized Representatives (AR’s). The families of those three (3) refused discharge from CVTC and chose continuing Training Center placement, in accordance with state and federal law, and the Ruling of this Court.
39. Of those three (3) forcibly transferred from CVTC to HDMC, one (1) died six (6) weeks later after repeated emergency hospitalizations and weeks in the ICU’s of two (2) hospitals, having declined dramatically after spending just a few days at HDMC. One (1) nearly died and would have done so without the emergency intervention of his mother, an RN. Another of the six (6), an elderly patient whose family acceded to the Department’s demands to move her to HDMC, died six (6) weeks later, after having lived safely and comfortably at CVTC for many decades. All three (3) of the evicted individuals have repeatedly been hospitalized or otherwise treated for infections contracted at HDMC.
40. For example, the elderly roommate of Peggy Wood passed away a mere three (3) weeks after being evicted from CVTC and transferred to the inferior HDMC. DBHDS Acting Commissioner Jack Barber was forewarned by Peggy Wood’s physician brother on October 27, 2016 that death would result for that patient within weeks of transfer. Tyler Bryant’s long-established regimen of drugs was not continued at HDMC, where his new doctor claimed not to believe in western medicine and said “the body should heal itself,” and Tyler Bryant passed away after suffering terribly for weeks in the Intensive Care units of two (2) hospitals, where he acquired pressure sores and infections. These two (2) individuals were denied the superior quality of medical care that had been provided to them at CVTC and at Lynchburg hospitals that were familiar with their needs for many years. Taylor Bryant,

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Tyler’s twin brother who was also evicted from CVTC, nearly died at Hiram Davis while Tyler was hospitalized, and was saved only by his RN mother’s emergency intervention. To this day Taylor’s doctor incorrectly claims that Taylor does not have seizures – even when the doctor and several witnesses were in Taylor’s room when he had a seizure. Seizures often go on documented in the medical record, despite being witnessed by HDMC staff.
41. Similarly, other individuals moved out of CVTC have not fared well at all. In fact, four (4) of the nine (9) individuals moved out of CVTC since last summer have died. This is a nearly 50% mortality on a short timeframe, with several deaths within weeks of transfer.
42. The reduction in the former CVTC NF residents’ quality of care and safety has resulted or will likely result in harmful or disastrous outcomes for these severely medically disabled residents.
43. The Defendants have failed to replicate in other settings the high level and quality of specialized medical/nursing care that is required to keep CVTC’s NF residents safe and healthy.
44. Many of the patients being served at the Training Centers are twisted and contorted, and cannot even straighten out their limbs. Many of them have osteoporosis and are so fragile that they break bones very easily. The very few fractures at the Training Centers demonstrate how much expertise exists at the true Training Centers.
45. The best facilities with the best healthcare staff to care for many severely disabled individuals are the Training Centers. The highest level of medical care provided at any Training Center is at CVTC, which is necessary to meet the serious medical needs of those who reside or previously resided at CVTC.3
3 The unique high quality and extensive medical care provided at CVTC is evidenced by the opinions of the local physicians who provide care to the residents of CVTC. Eighty-seven (87) Lynchburg-area physicians have signed a "physicians' petition" to save CVTC, stating that the closing of the facility will endanger its residents.

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46. Taylor and Tyler Bryant were transported from the NF at CVTC to Hiram Davis Medical Center in January of 2017.
47. Taylor and Tyler Bryant suffered from numerous disabling conditions in addition to profound intellectual disability, and they could neither speak nor walk. They required assistance to even roll over in bed.
48. They lived with tracheostomies and oxygen, among other necessary medical devices, and they required constant monitoring as they frequently needed airway suction treatments. Taylor and Tyler Bryant were offered only inappropriate or unattainable nursing facility placement alternatives with no oxygen or deep suction treatments, or offering only geriatric intermediate level of care.
49. Their susceptibility to threatening allergic reactions necessitated limited contact with others. Their CVTC attending physician had ordered that they never be left unattended throughout the day.
50. Taylor and Tyler Bryant were placed at substantial risk of harm by being transferred to HDMC.
51. HDMC has refused to continue the use of Zelmac with the Bryant brothers, a drug that has been used with CVTC physician-ordered “special IDE access” for approximately ten (10) years with significant success. The Bryants had an FDA special access protocol for Zelmac, which drug was not available at other pharmacies or facilities. Tyler Bryant was abruptly withdrawn from Zelmac on January 27, 2017.
52. The primary care physician at CVTC has determined that the benefits of Zelmac outweigh any risks, but Hiram Davis discontinued its use despite the probable negative consequences. Taylor and Tyler Bryant had been prescribed Zelmac by the primary care physician at CVTC and had used it successfully for years.

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53. HDMC has stopped or discussed stopping other drugs that are being used by the Bryant sons which will or would have put them at significant additional risk. Multiple drugs were terminated or reduced by 50 to 75% with adverse effects of poor allergen control, increased respiratory secretions, and even a visit to the emergency room by Taylor Bryant. Taylor Bryant also mistakenly received inappropriate sedating drugs for cerebral palsy spasticity at HDMC.
54. Taylor and Tyler Bryant needed to start all over with new specialists at HDMC who were not familiar with the complex needs of these individuals, thereby placing them at great risk of harm.
55. Their complex treatment protocols were devised by teams of highly qualified specialists years ago, and altering their treatments has been or will be disastrous.
56. In January 2017, Taylor Bryant had CVTC physician-ordered activity restrictions due to acute Mononucleosis, but he was moved during his period of recovery upon order of Jack Barber, which placed him at great risk. The transfer order was halted once by the CVTC physician, but subsequently, the hostile nurse manager wrote into Taylor’s record, “transfer not to be stopped by anyone other than Jack Barber, M.D.” Jack Barber is a psychiatrist without certification in internal medicine, which internal medicine expertise is a requisite to making decisions of high complexity such as those related to these patients. Taylor has hydrocephalus, epilepsy and a history of status seizures among his many disabling conditions.
57. Tyler Bryant was extremely fragile with respiratory problems, severe asthma and multiple chemical allergies, and he should not have be moved to a new facility with a high risk of aggravating these problems.
58. Both Taylor and Tyler Bryant were on contact isolation, and should be not have been moved to a new environment where they were subjected to exposure to others. Peggy Wood was known to have Clostridium Difficile bacteria in her stool, and was on C Diff

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contact precautions upon admission to other hospitals because of this, but was admitted Hiram Davis without contact precautions, despite this blatant risk to others. Had this bacteria in stool been addressed at the time of transfer, Peggy Wood may not have contracted toxic megacolon and pseudomembranous colitis in April 2016 while at Hiram Davis.
59. Taylor and Tyler had their own room with a sink and their own private bath at the NF at CVTC, but at HDMC they had to share living accomodations which placed them at great risk. For example, at HDMC there is no sink or bathroom in the room where they were forced to reside.4 Instead they had to use the facilities in the room across the hall from their designated room, a large room for seventeen, with several shared sinks and a shared bathroom, with a shower trolley bath shared among 18 patients. Using such a facility did and will put these vulnerable individuals at immediate and regular risk of infections.
60. When Taylor or Tyler Bryant are infected, they must be hospitalized, which greatly increases their risk of further infection. In fact, this type of nosocomial infection and hospitalization actually occurred to Tyler Bryant.
61. Shortly after his move to Hiram Davis, Tyler Bryant became seriously infected and required the administration of antibiotics. Tyler Bryant experienced many avoidable complications such as wound infection, pressure ulcers, urinary tract infections, inadequate pain care, pneumonia, asthma, allergic reactions, and verbal abuse. He suffered two large skin breakdowns on his right hip. He was in critical condition for many days and was receiving oxygen. He remained in intensive care for weeks at Southside Regional Medical Center, where Tyler’s mother was told by a nurse that the care he received “would not be what he had
4 ADA regulations require such amenities in each room to prevent the spread of infection. Unfortunately for the residents being transferred there who need this greater level of protection, Hiram Davis has avoided these requirements by being grandfathered in. As a result, Hiram Davis is not compliant with the regulations, but the NF at CVTC was fully compliant with all ADA regulations.

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before.” Tyler was also treated in the Intensive Care Unit at Chippenham Hospital, and was notified of his eviction from HDMC during his stay at Chippenham Hospital.5
62. Moving Taylor and Tyler Bryant to Hiram Davis has resulted in harm to Taylor and in death to Tyler, with Taylor remaining in peril of further decline or death as long as he remains at Hiram Davis.
63. At least one medical doctor, who provides treatment at CVTC, has opined that this death was predictable when you “take them out of a place where they’ve been stable and monitored and well cared for.” Peggy Wood’s physician brother also forewarned DBHDS and the General Assembly Joint Committee of the deaths due to the decisions by DBHDS leadership at an October 2016 General Assembly subcommittee meeting at SWVTC.
64. Taylor Bryant has recently been given antipsychotic medication in error. He has also recently been transferred to a hospital for acute respiratory failure. He had received inappropriate doses of Ativan and Diastat which greatly increased his risk of respiratory depression. Taylor has contracted pneumonia while at Hiram Davis. Taylor has had seven (7) of his drugs reduced at Hiram Davis and is in decline. He has had multiple episodes of abdominal distention that requires enemas and rectal tubes, which problems are due to the decision of Hiram Davis staff to withhold his long-established prescription drug Zelmac that prevented these conditions. Taylor was recently denied a request for a neurology consult by his new primary care physician. Taylor was abruptly stopped from being seen by MCV
5 Tyler Bryant was forced from his home in a Training Center, and was transferred to Hiram Davis, which is not a Training Center. Because Hiram Davis later refused to allow his return, he essentially had nowhere to go. Tyler was threatened with discharge with no place to go. In fact, nursing facilities suggested by DBHDS to care for him have declined to admit him, so he was forced to spend his last days at the ICU at Chippenham Hospital. The NF at CVTC was the only adequate treatment environment that was suitable and available for Tyler Bryant. Similar actions are being taken regarding other individuals and there will be no safety net at all for persons being transferred from the Training Centers. With the Disability Law Center of Virginia recently advocating for a woman who was evicted from SEVTC due to her challenging behaviors, the Commonwealth has also planned to remove the only safety net facility in the state for those with such behaviors by its choice of SEVTC as the only Training Center to remain open. CVTC is the last remaining Training Center to accept all such medically or behaviorally complex individuals for regular admission, and regular admissions do continue for complex cases.

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neurology in March 2015 by the directive of the hostile CVTC nurse manager who did not allow out-of-town consults. Taylor has had multiple medication reductions without any input from neurology consultants. The new physician for Taylor stated that she does not have a DEA license to give certain medications. Taylor’s CVTC doctor ordered that he be continually kept within “line of sight” by nurses because of the potential for sudden and rapid decline due to his severe disabilities.
65. Unfortunately and sadly, the fate of Taylor Bryant may soon be the same as that of his brother, Tyler, because Taylor’s former high quality of medical care has been seriously reduced at HDMC.
66. The medical records of Peggy Wood were erroneous, altered, or falsified in 20152016 to reduce documentation of the number of medical events requiring medical interventions, which made her more attractive on paper for lesser care nursing homes. The discharge documents for Peggy Wood contained errors and were the subject of OSIG, DOJ, and DBHDS investigations, which resulted in some complete changes in practice.
67. Peggy is unable to speak or walk, and is unable to even roll over in bed, has frequent aspirations, bronchiectasis, COPD, constipation, osteoporosis, seizures, stomach tube, brocontractures, neurogenic bladder, C diff colitis, and pilonidal duct with tendency to skin breakdown. Multiple illness exacerbations and several hospitalizations have occurred since January 30, 2017: two for pneumonia, one for suspected perforated bowel, two for depression of blood platelets and drop in oxygen levels, and a few treatments for continuing urinary tract infections.
68. She is dependent upon close monitoring, feeding, and frequent repositioning in upright position to avoid reflux aspiration by nurses because she is extremely prone to aspiration, distention, pressure sores, and contracting infections. Such infections result in hospitalizations, putting her at risk for further infections.

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69. Peggy Wood was transferred in January of 2017 against her family’s will, and over the objections of her authorized representative, from the NF at CVTC to HDMC.
70. Peggy Wood was transferred despite an inadequate Notice of Discharge, without proper orientation of her Authorized Representative to her discharge and transfer, without proper direction by her physician, upon the order of a psychiatrist not certified in internal medicine, and without appropriate due process.
71. Peggy Wood aspirated only 23 hours after arriving at Hiram Davis and contracted pneumonia the very first week at Hiram Davis. The second week at Hiram Davis she was sent to the Emergency Room at Southside Virginia Hospital. The third week at Hiram Davis she contracted a urinary tract infection, and has had other incidents of urinary tract infections, pneumonia, aspiration, bowel blockage, toxic megacolon, thrombocytopenic purpura, and early skin breakdown at HDMC since that time.
72. Peggy Wood did not receive a full bath from January 31, 2017, to April 13, 2017. She has received hospitalizations for C Diff colitis and for urinary tract infections while at Hiram Davis.
73. Peggy Wood has deteriorated during her first several months at Hiram Davis since arriving on January 30, 2017. Ms. Wood has seemed at times to be in imminent danger of further harm and death including when hospitalized for suspected perforation of bowel, toxic megacolon, pneumonia, urinary tract infections, thrombocytopenia, early skin breakdown, and an over a month-long prolonged pelvic rash near the area at risk of pressure sores, due to infrequent diaper changes and no shower trolley baths documented for several months at Hiram Davis.
74. There is imminent risk of immediate harm to the Intervenors if an injunction is not granted.

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75. One (1) resident who was recently discharged from the NF at CVTC survived only three (3) weeks at Hiram Davis.
76. If the medical condition of this discharged individual had been unstable at the time she was scheduled to move, the move would have been delayed until she had been stabilized, as has long been the practice at CVTC. Transfer order should be made by physicians with expertise and certification in internal medicine, family practice, intensive care specialties, and not psychiatry.
77. If this recently discharged individual had been near death, she would not have been moved at all. This was an individual who needed early morning suction treatments due to airway secretions, and at HDMC such treatments are provided only by a respiratory therapist who comes on duty at 9:00 a.m. on weekdays only. Although a part-time respiratory therapist was hired in April 2017, staff are still being trained in respiratory equipment. The situation is far inferior to the respiratory therapy that was available at CVTC. The individual’s demise was utterly predictable under such circumstances.
78. If emergency relief is not granted, the sickest and most fragile patients at CVTC with complex medical needs, along with those who have thus far survived their eviction from CVTC, will suffer irreparable harm, possibly death.
79. The decertification of nursing/skilled nursing beds and canceling of nursing/skilled nursing facility services at CVTC with planned noncompliance with federal ICF/IID regulations that require a continuation of 24 hour nursing care for those who choose to remain at CVTC and require that level of care, will result in irreparable harm and possible or even probable deaths.
80. The transfer of patients from the superior rated 5-star NF at CVTC to the reduced care at 2-star HDMC will result in irreparable harm to the residents, as indeed it already has.

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81. Other Intervenors are at risk of forced transfer to HDMC or other state operated facilities which are not training centers, and which offer an inferior level and quality of care which will predictably result in great physical or psychological harm and even death.
82. For example, Southwestern Virginia Training Center (SWVTC) has many intellectually disabled individuals who also have mental illness and/or autism and are behaviorally complex. If the Commonwealth is allowed to continue forced transfers of the intellectually disabled persons from Training Centers to non training center facilities, despite their choice to remain in a Training Center, by merely and inappropriately calling all state facilities “training centers,” then all of the residents of SWVTC are at grave risk of transfer and potentially severe harm.
83. The Intervenors have been, are being, or are at further risk of being transferred to facilities that are not Training Centers in defiance of their clearly and repeatedly stated choice to remain in a Training Center.
84. Other Intervenors have been transferred to other Training Centers, nursing facilities or community facilities without honest legal certification that their quality of care and level of services and safety will be comparable to that provided at their former training center, a requirement of Virginia law unless comparability is waived by the AR.
85.The Intervenors have been and are at further risk of being transferred to a different Training Center or to a non training center state facility, without any adequate and accurate certification that the quality of care provided there is comparable to what they received at their former training center.
Coerced Transfer of Residents Out of Training Centers 86. Section 37.2-837(A)(3) of the Virginia Code states:
Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no individual at a training center who is enrolled in Medicaid shall be discharged if the individual or his

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legally authorized representative on his behalf chooses to continue receiving services in a training center.
87. This Section does not distinguish between individuals generally in a Training
Center or individuals in the skilled nursing section of a Training Center, and therefore is
applicable to both.
88. The forced transfer of individuals out of the NF at CVTC to Hiram Davis, which
is not a training center, violates this Statute.6
89. This Court referred to this Section as the “bedrock assurance” that no one will be
evicted from a training center. As stated by the Court:
Nothing in the decree compels Virginia to close any facility. Decisions of that sort lie in the hands of the Virginia General Assembly. If it deems it wise, the General Assembly can appropriate funds to continue to operate some or all of the Training Centers, even while funding the Medicaid waivers. The Court recognizes that the Virginia Department of Behavioral Health and Developmental Services is trying to move away from the care model with Training Centers, but the ultimate decision whether to close any Training Center lies not with the Department but with the legislature. Moreover… Virginia Code Section 37.2-837(A)(3) provides that no one may be forced to leave a Training Center against his/her her will…. The statute serves as bedrock assurance that no one will be evicted from a Training Center.
90. Contrary to this “bedrock assurance,” the Commonwealth has apparently taken
the position that they are free to move individuals from CVTC or from any Training Center to
any DBHDS facility, which they can then call a “training center,” by virtue of its now having
intellectually disabled occupants.
91. The Defendants have tried to circumvent this Section by misrepresenting
information, by harassment, and by coercion.
6 The Commonwealth seeks to justify the transfers to Hiram Davis by citing Section 37.2-100 of the Virginia Code. However, that same Section provides definitions of “abuse” and “neglect,” which are problematic to the Commonwealth’s actions. “Abuse” is defined as “any act by an employee or other person responsible for the care of an individual . . .that was performed or was failed to be performed knowingly, recklessly, or intentionally, and that caused or might have caused physical or psychological harm, injury, or death.” “Neglect” is defined as the “failure by an individual or a program or facility . . . responsible for providing services to do so, including nourishment, treatment, care, goods, or services necessary to the health, safety, or welfare of a person receiving care or treatment.” The actions of the Commonwealth in allowing or promoting the decline and death of individuals is abuse and neglect, under the same statute’s definition section.

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92. The Defendants have sought to obtain a waiver of the rights protected by this Section through deception and intimidation.
93. Under Virginia law, “consent” is the “voluntary agreement of an individual or that individual’s authorized representative to specific services,” and consent “must be given freely and without undue inducement, any element of force, fraud, deceit, or duress, or any form of constraint or coercion.” (VAC Section 35 – 105 – 115.) Individuals who have been misled, unduly pressured or coerced have not legally consented to discharge from the Training Centers.
94. The Commonwealth violates its own regulatory definition of consent when it denies training center residents, or their authorized representatives on their behalf, free choice in placement settings, but instead badgers them to choose community settings, even as frequently as several times a day, as has been reported by many training center families. One mother even reported that she had received harassing phone calls by DBHDS community integration managers and social workers as often as ten (10) times in one week. Threats of legal actions, Adult Protective Services involvement, false claims of equality of all services and access to all services in the community compared with those provided at a Training Center, deception, manipulation, coercion and duress, do not comply with the federal and state right to freely choose to continue receiving services at a Training Center.
95. Many Intervenors never consented, as consent is defined by the Commonwealth in regulations, to the move to a “community” setting or to HDMC. The alleged consent of some of the authorized representatives to these moves, including Hiram Davis treatment consent forms that were executed by some of these authorized representatives upon eviction from CVTC, was not a voluntary agreement.
96. The Commonwealth has attempted to accomplish indirectly and deceptively what is prohibited by this Statute.

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Failure to Certify Comparable Quality of Services Before Transfer
97. The General Assembly of Virginia has further dictated in Chapter 639 of the 2014
Acts of Assembly:
That the Department of Behavioral Health and Developmental Services shall, before transferring any training center resident to another training center or to community-based care, provide written certification to such training center resident or his legally authorized representative that (i) the receiving training center or community-based option provides a quality of care that is comparable to that provided in the resident’s current training center regarding medical, health, developmental and behavioral care and safety and (ii) all permissible placement options available under the Commonwealth’s August 23, 2012, settlement agreement with the U.S. Department of Justice, including the option to remain in a training center, have been disclosed to the training center resident or his legally authorized representative.
98. Such quality of care and safety comparability certifications have not been
provided for the residents who were forcibly moved from the Training Centers to HDMC.
The name of the receiving facility was left blank in the final certifying sentence of the form
that the Commonwealth devised to certify comparability of quality of care and safety, and
therefore the “certification” was defective and inadequate. The absence of the name of the
receiving facility in the final sentence of these forms has frequently occurred and has
continued despite being pointed out to DBHDS staff in January 2017.
99. The residents are entitled to receive comparable quality of care and safety to that
provided at the Training Center of origin, regardless of where they are transferred.
100. The decertification of skilled nursing beds at CVTC and the forced transfer of
residents out of the NF to HDMC violates this comparability act by the General Assembly.
None of the CVTC nursing facility residents were informed by DBHDS of their right to
appeal the Department’s decision, thus they were denied their federal right to due process, as
affirmed by DMAS in the paperwork of the two individuals who were independently aware
of this right and applied for an appeal. The DMAS hearing officer did not enforce the Code of

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 24 of 30 PageID# 7242
Virginia, the comparability act of 2014, or the Federal Regulations despite being cited to the relevant statutes and regulations in briefs that were filed.
101. Since the quality of care at HDMC is inferior to the quality of care at the NF at CVTC, the Commonwealth is in violation of this act, and the Virginia Code, by conducting coerced transfers to HDMC.
102. HDMC has high staffing turnover rates, incompetent risk management with documented lack of introspection, deaths from avoidable issues, and a lower overall CMS rating of two (2) stars. CVTC had an overall rating of five (5) stars, which it has maintained for many years. Furthermore, the federal government has penalized Hiram Davis each year from 2015 to 2017 for being in the lowest quartile of hospitals nationwide for safety and infection control.
103. By forcing invidividuals to move from the NF at CVTC into other DBHDS facilities without the required certification of comparable quality of care and safety, the Commonwealth has violated Chapter 639 of the 2014 Acts of Assembly.
104. The forcing of residents of any Training Centers to Hiram Davis, or other state psychiatric facility, without the required certification of comparable quality of care and safety, is a violation of this Act.
105. These transfers to other state facilities cannot be legally certified as providing comparable services, because the quality of care is less than comparable.
106. For example, as to transfers that could not be certified as providing comparable services, many individuals have been transferred from CVTC to Southeastern Virginia Training Center (hereinafter referred to as “SEVTC”). SEVTC is the only Training Center that the Commonwealth currently plans to keep open after all other Training Centers are closed. SEVTC has only one (1) physician who works for a few days a week, whereas CVTC had three (3) full-time and three (3) part-time physicians, with an internal medicine physician

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 25 of 30 PageID# 7243
physically on-site at all times. CVTC was the only Training Center that provided a certified nursing facility, and its superior quality far exceeded the Department’s only other nursing facility, which, unlike the NF at CVTC, is not ADA compliant. Furthermore, CVTC has never evicted anyone for behavioral challenges whereas SEVTC has engaged in such evictions. SEVTC does not provide comparable quality of medical, health, behavioral, and developmental care as exist at CVTC, and therefore transfers to SEVTC from CVTC cannot truthfully be certified as providing comparable quality of care and safety.
107. The Commonwealth seeks to avoid the purpose and intent of the comparability of care act by decertifying skilled nursing beds at the NF at CVTC and then transferring individuals to regular ICF/IID beds at CVTC, thereby achieving the false appearance of comparability of medical care between CVTC and the other Training Centers.
108. These individuals are not receiving comparable services when they are transferred to general ICFD/IID living areas at CVTC unless they are then provided 24-hour long term nursing services as required under federal ICF regulations [42 CFR 483.460(a)(1) and (a)(2)]. However, the quality of nursing care at the ICF section of CVTC is still superior to private nursing homes and to HDMC.
109. The Defendants should not be allowed to circumvent the clear meaning and goal of the General Assembly by disingenuously claiming that these individuals no longer need nursing facility level of care.
110. The Commonwealth has offered only alternative placements that will allow them to discontinue the NF section of CVTC, including inappropriate and unavailable placements, without consideration of the real needs of these individuals and without legally certifying a comparable quality of care and safety.
111. The forced discharge letters do not even include Training Center placement as an option.

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112. Martha Bryant was harassed with repeated telephone calls at her school workplace to force her to accept a transfer of her twin sons out of CVTC.
113. Wriley Wood was threatened by DBHDS that they would report him to Adult Protective Services in December 2016 at a DPDR meeting in order to force his acceptance of the transfer of his daughter.
114. The Defendants have further tried to avoid this Statute by altering medical records and discharge documents to make it appear that residents are higher functioning than they really are, and to then falsely claim that these residents can be accommodated at locations with inferior nursing, medical, and multidisciplinary services.
115. The Discharge Planning and Discussion Record (“DPDR”) for the evicted contains misleading information that falsely implies that individuals need less acuity in care than is actually true.
116. Medical events that demonstrate the significant medical needs of the population at the NF at CVTC are instead obfuscated and euphemistically mislabeled as “facility or institutional incident reports/risk management events/occurrence reporting system events,” to minimize or diminish their medical significance.
117. DBHDS “Institutional risk events” include “hospitalizations/ falls/ aspiration events,” to lessen their importance, and is the subject of multiple OSIG and DBHDS reports.
118. These mischaracterizations made individuals falsely appear as being in less need of training center intensive nursing care and more suitable for outside nursing home placement, even if no such nursing home capable of managing the medical complexity exists.
119. Even when the Commonwealth has certified that comparable quality of care is available in the community or at another Training Center, that certification is inaccurate and the quality of available medical, health, behavioral and developmental care and safety does not compare favorably to CVTC.

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120. Some certifications of comparable quality of care have not even named the facility where the individuals are to be transferred, and therefore cannot be considered proper certifications of comparable quality of care.
121. In some cases, families of the residents at Training Centers who were forcibly transferred to HDMC have been inappropriately told that they are not entitled to a certification of comparable quality of care and safety because they did not choose the placement at HDMC. Clearly, the law does not require that the family choose the placement in order to receive the mandated certification of comparable quality of care and safety.
122. The options offered to the residents of the NF at CVTC did not provide the same level and quality of medical services as were available at the NF at CVTC.
123. All legally permissible placement options have not been disclosed to the residents or their authorized representatives.
Injunctive Relief 124. As evidenced by the statements above, the Intervenors are likely to prevail on the issues. The statutory language is clear and the Commonwealth has undoubtedly not complied with that statutory language. 125. The Intervenors will suffer irreparable harm if they are forcibly and involuntarily moved to inferior settings such as HDMC, or remain at HDMC after forced removal from CVTC, or moved to other training center locations without comparable quality of care and safety, or to forced placements in the “community.” This irreparable harm could be more than serious physical injury and extreme psychological damage, as it could also be death, which untimely and unfortunate mortality of members of the Intervenor class has already occurred. 126. Granting emergency relief or a preliminary injunction at this time, will ensure that the endangered individuals will remain in their current Training Center, will be

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 28 of 30 PageID# 7246
transferred back the Training Center where they had superior quality of care, or will be transferred from HDMC to an appropriate Training Center setting that reestablishes comparable quality of care and safety to that which existed at the former NF at CVTC or at their original Training Center. The Commonwealth should identify and provide only alternative care settings that comply with the state and federal statutes and regulations. Denying injunctive relief will allow great harm that could result in very serious injury or death to the Intervenors, as has already occurred to some individuals.
Relief WHEREFORE, the Intervenors request that the Commonealth be found in violation of VAC 35-105-115, and that the Commonwealth be directed to cease badgering the CVTC families and to instead respect their legal choice to continue receiving services in a Training Center by simply inquiring annually if they would like to consider other placements, as required by the Settlement Agreement entered into by the original parties. WHEREFORE, the Intervenors respectfully request that this Court find the Commonwealth in violation of §37.2-837 of the Code of Virginia, 1950, as amended, and that Commonwealth be enjoined from forcibly transferring any further individuals out of any Training Centers; that this Court find Defendants in violation of Chapter 639 of the 2014 Acts of Assembly, and that they be enjoined from moving any other individuals from any Training Centers until there is accurate certification that comparable quality of care and safety exists at the proposed placement location, unless the AR legally waives such certification, and that all permissible placement options available have been disclosed to the residents being considered for transfer including the choice to remain in a Training Center; and that the Commonwealth be directed to transfer all Intervenors who were forcibly relocated to HDMC to a Training Center that provides comparable quality of care and services to that previously provided by the NF at CVTC; that the Commonwealth be directed

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to provide truly comparable quality of care and services at CVTC to those class members previously moved there from the NF at CVTC; that the Commonwealth be directed to return Intervenors who have been moved from one Training Center to another Training Center without truthful and accurate certifications of comparable quality of care and safety and notice of all legally permissible placements; that the Commonwealth be directed to return all Intervenors to their previous Training Centers who were moved under duress or fraud involuntarily to other settings; and that this Court enter an order making the aforementioned injunctive relief permanent; and that this Court grant any other relief as this Court deems just and proper.

Dated: August 3, 2017

Respectfully submitted,
/s/ Thomas B. York THOMAS B. YORK Attorney for the Intervenors York Law, PA
10320 X Way Road Laurinburg, NC 28352
70 North Yale Street York, PA 17403
(717) 236-9675 tyork@yorklegalgroup.com

CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of August, 2017, I forwarded by email a copy of Intervenors’ Motion for Injunctive Relief to the following:
Allyson Tysinger, Esquire Office of Attorney General 900 East Main Street Richmond, VA 23219

Case 3:12-cv-00059-JAG Document 244 Filed 08/04/17 Page 30 of 30 PageID# 7248

Benjamin Tayloe, Esquire Jessica Polansky, Esquire Kyle Smiddie, Esquire Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave., NW Washington D.C. 20530

/s/ Thomas B. York ________________________ THOMAS B. YORK

 </s> Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 1 of 179 PageID# 6956 	
  
REPORT OF THE INDEPENDENT REVIEWER ON COMPLIANCE WITH THE
SETTLEMENT AGREEMENT UNITED STATES v. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia
Civil Action No. 3:12 CV 059 April 7, 2016 – September 30, 2016
Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
December 23, 2016
	
  

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TABLE OF CONTENTS
I. EXECUTIVE SUMMARY…………………………….………………………………3
II. SUMMARY OF COMPLIANCE: ……………………………..……………………..7
Section III. Serving Individuals with ID/DD in the most integrated settings........7 Section IV. Discharge Planning and Transition from Training Centers…...........17 Section V. Quality and Risk Management………...……………………..……...24 Section VI. Independent Reviewer……………………………….....…..………..31 Section IX. Implementation……………………………………………………....31
III. DISCUSSION OF COMPLIANCE FINDINGS……………………………………32
A. Methodology……………………………………………………………….…32 B. Compliance Findings………………………………………………………....34
1. Providing Waiver Slots…………………………………………….34 2. Discharge Planning and Transition from Training Centers ……………36 3. Crisis Services.…………………………………..………………...38 4. Supported Employment …………………………………………….46 5. Transportation ……………………………………………………50 6. Quality and Risk Management……………….……………………..52 7. Safety and Protection from Harm…..……….……………………….60 8. Mortality Review………………………………………………….67
IV. CONCLUSION……………………………………………………………………….71
V RECOMMENDATIONS…………………………………………………………….73
VI. APPENDICES……………………………………………………....………………..75
A. Individual Services Review Study………………………………………76 B. Crisis Services………………………….………………………………..85 C. Supported Employment...………………...…………………………… 102 D. Transportation …………………………………………………………112 E. Quality and Risk Management ……………………….……..…………122 F. Safety and Protection from Harm……………………………………....150 G. List of Acronyms……………….……………………………….……….178

	
  

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I. EXECUTIVE SUMMARY
This is the Independent Reviewer’s ninth Report on the status of compliance with the Settlement Agreement (Agreement) between the Parties to the Agreement: the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This Report documents and discusses the Commonwealth’s efforts and the status of its progress and compliance during the review period from April 7, 2016 – September 30, 2016.
The Independent Reviewer reported previously that the Commonwealth’s Home- and CommunityBased Services (HCBS) waiver programs and its various regulations had impeded compliance with provisions of the Agreement. For more than three years, the Commonwealth’s primary strategy to come into compliance has been the redesign of its HCBS waiver programs. The Department of Behavioral Health and Developmental Services (DBHDS) and the Department of Medical Assistance Services (DMAS) organized an extensive and concerted multi-year effort to plan the redesign and to secure the approval of Virginia’s General Assembly. The Commonwealth stated its goal for the redesign is “to provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” To accomplish this goal, the Commonwealth redesigned the HCBS waivers’ eligibility criteria, service definitions and expectations, payment rates, service limits, and cost caps. In the Spring of 2016, Virginia’s General Assembly approved the redesign as proposed by DBHDS and DMAS and approved most of the funds that the Governor requested for implementation. During this, the ninth review period, the Commonwealth achieved the next two essential steps. First, it secured the approval of the Center for Medicaid and Medicare Services (CMS) for the proposed redesign. Second, the Commonwealth began the extensive and complex process to implement the redesigned waivers.
The Commonwealth’s effective implementation of the redesigned waivers requires extensive and statewide systemic changes, training and communication. Hundreds of service providers need to modify existing models of service and to develop new ones. Extensive training of case managers and service planning teams is needed to plan and to deliver services that meet the standards of the newly defined services. The most important challenge while implementing the change process is that services must continue to meet the daily needs and to protect the safety and well being of thousands of individuals with Intellectual and Developmental Disabilities (ID and DD).
As with implementing any complex and systemic change initiative, timely and effective communication with stakeholders who will be influenced by, and contribute to, the changes is critically important. This is especially so when changes require the understanding and participation of multiple state agencies, hundreds of service providers, forty Community Service Boards (CSBs), and thousands of individuals and families. With the new HCBS waivers, the Commonwealth began implementation of a new Waiver Management Information System (WaMS). Stakeholders raised questions and identified many concerns that implementation problems with WaMS could lead to negative unintended consequences for service providers and individuals. In following up on these issues, the Independent Reviewer found that DBHDS and DMAS were aware of the issues, which had been raised during their weekly open calls with stakeholders, and were planning or implementing needed changes.
The Commonwealth’s redesigned waivers and improved payment rates will encourage systemic changes. The program development and transitions needed to impact a significant numbers of individuals, however, will take time. The Commonwealth will also be identifying and resolving the
	
  

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obstacles and the inevitable unanticipated consequences when complex systems are substantially modified. The Independent Reviewer will determine the extent to which the Commonwealth’s redesign has fulfilled the requirements of the Agreement during future review periods when sufficient implementation has occurred to document the impact of the redesign on individuals’ lives.
The Commonwealth also recognizes that it must revise its regulations to achieve compliance with the Agreement. The Commonwealth prioritized gaining approval of its redesigned HCBS waivers, during which DMAS revised the waiver regulations. The Commonwealth has not, however, revised its other regulations (i.e., DBHDS licensing and human rights regulations) so they align with the requirements of the Agreement. Completing these revisions is an essential cornerstone to building an effective Quality and Risk Management System. The need for quality improvement and risk management systems is especially critical during periods of systems and programmatic change. Although the Commonwealth has made progress in planning the elements of the quality and risk management system, it has not yet implemented many of these provisions at the direct service provider level. Improving service effectiveness at the level of direct service transactions is the purpose of quality improvement processes. The Commonwealth’s implementation of a quality and risk management system is needed now more that ever.
There continues to be support within DBHDS for developing a strong quality improvement and risk management system. Significant work has continued within DBHDS to design and to test elements of the quality management system required by the Agreement. There has been a change in leadership within the DBHDS Quality Division during this review period; new staff with needed expertise have been added; and the Interim Commissioner has undertaken a reorganization and refocus of the work of the DBHDS Quality Improvement Committee. The DBHDS Health Support Network has developed and implemented important statewide initiatives to build the capacity of providers to support individuals with intense medical needs. DBHDS is also moving forward with initiatives to develop more integrated residential and day activity options and to build additional behavioral and medical support capacity in central and southwest Virginia. These are all promising changes. Although these changes represent significant steps forward, they still must be considered as initial steps to achieve compliance.
The Commonwealth’s staff recognize that to achieve a comprehensive quality improvement and risk management system, DBHDS needs to partner, and implement the elements of the system with the CSBs and its private providers. However, this has not yet occurred. There are three overarching themes to these challenges that the Commonwealth must address:
 Expand the scope of available data in order to allow comprehensive and meaningful quality improvement and risk management initiatives to occur;
 Ensure that systems and statewide curricula are in place and operational so that all staff demonstrate competence in the service elements of the individuals they support; and
 Ensure that qualified investigators at the provider and state levels complete competent investigations of the facts of serious incidents and negative outcomes, including the use of root cause analysis to determine effective corrective action plans.
To achieve these results, the Commonwealth must revise the DBHDS regulations. Once it revises its regulations, then a major and complex implementation process still will be required.
The Independent Reviewer also reported previously that the Commonwealth did not have sufficient provider capacity to achieve compliance. While the Commonwealth appears to have excess provider capacity to serve individuals with average needs in larger group homes and in segregated day support

	
  

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centers, it has too few providers and qualified professionals with the expertise and experience to provide services to all individuals with intense needs or with Autism Spectrum Disorders. It also has too few providers of individualized services that occur in physically integrated settings that promote social and recreational engagement within their communities. The Commonwealth’s initiatives to increase provider capacity are described in the Independent Reviewer’s eighth Report to the Court.
During the ninth review period, the Independent Reviewer completed the fifth Individual Services Review (ISR) study of the transitions of individuals who have moved from the Training Centers to live in more integrated community-based settings. The ISR study again found that the Discharge and Transition process is well organized and well documented. The individuals had settled well into their new homes. The individuals with histories of intense behaviors, in general, had fewer and less intense behavioral episodes. The individuals with intense medical needs were found to have positive health care outcomes in almost all areas that the Independent Reviewer’s nurse consultants have tracked since 2012. However, in two areas, needed services were not in place before individuals moved; day activities were not in place for five of the twenty-six individuals; and three individuals in the sample were uncertain where to receive dental care.
The Commonwealth has made substantial progress implementing the elements of a crisis services system for children and has continued to refine these services for adults. More children and adults with DD, other than ID, most of whom have Autism Spectrum Disorders, are now engaged with the Commonwealth’s crisis services programs. Out-of-home crisis stabilization programs, a significant element of children’s crisis services, however, are not yet available. These programs, which offer crisis prevention and crisis stabilization services, will help children avoid unnecessary hospitalizations. The Commonwealth has been provided new resources to develop an array of crisis stabilization program options, which it expects will be evident during the eleventh review period.
The Commonwealth has also made progress implementing the Agreement’s employment support requirements. For the first period, it collected data from all of its Employment Services Organizations (ESOs) concerning employment services for individuals with ID/DD. These data include information regarding individuals with waiver-funded services and those receiving funding primarily through the Department of Aging and Rehabilitative Services (DARS). The Commonwealth successfully met several of its employment target milestones. Now that all ESO’s are submitting data, the Commonwealth can begin to determine the extent of future changes.
The DBHDS Mortality Review Committee (MRC) has continued to meet and to review annually the deaths of hundreds of individuals. The work required to complete the required number of mortality reviews is an immense task and the MRC has not kept pace. The MRC has completed most reviews. The rate at which it completes reviews, however, has not occurred within the ninety-day requirement. As the number of required reviews has increased, the percentage of mortality reviews completed within the required ninety days has decreased from about one of every two during 2014 to about one in every four reviews during 2016. The MRC has not gathered or documented the unavailability of the records needed for a quality review, as required. The MRC has successfully addressed and began to receive death certificates and autopsy results during the second half of the ninth review period.
During this review period, the Commonwealth and the Department of Justice continued to negotiate outcome-timelines and expect to reach agreement on several areas of the Agreement. These areas in the Agreement lacked specificity, due dates and measurable outcomes. The Parties are currently negotiating outcome timelines for Quality and Risk Management, Individuals in Nursing Facilities and

	
  

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Intermediate Care Facilities (ICFs), Individuals with Complex Medical and Behavioral Needs, and Integrated Housing Options.
During the ninth review period, the Commonwealth succeeded in gaining approval for its redesigned waiver programs. It has devoted extensive efforts in the first stage of implementation. The Commonwealth has made progress in several areas and achieved interim milestone targets in others. The areas of progress include:
 Implementing the elements of the crisis services system for children;  Refining the operations of the crisis services for adults;  Collecting data regarding and achieving milestones in employment support; and  Planning and testing quality improvement initiatives. These efforts, however, have not yet resulted in new determinations of compliance. Progress may have been achieved in other areas, as well. This is reported to have occurred with the provision of Independent Housing. However, the Independent Reviewer did not study the status of developments in these other areas during the ninth review period. The Independent Reviewer will prioritize studying these areas and determining updated compliance ratings during the tenth review period.
The Independent Reviewer’s overview of compliance ratings provided in the Executive Summary of the eighth Report to the Court is still applicable. The Commonwealth’s staff and stakeholders have engaged in concerted and collaborative efforts during the ninth period. They have planned and implemented initiatives and continued to make progress in several areas. Progress has begun to be evident in the provision of integrated day and residential programs for individuals in the community. This progress has yet not resulted in substantial changes to the Independent Reviewer’s determinations of compliance.
The following “Summary of Compliance” table provides a rating of compliance and an explanatory comment for each provision. The “Discussion of Compliance Findings” section includes additional information to explain the compliance ratings, as do the consultant reports, which are included in the Appendix. The Independent Reviewer’s recommendations are included at the end of this Report.
During the next review period, the Independent Reviewer will prioritize monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: Case Management; Integrated Day Activities/Supported Employment; Licensing and Investigations; Independent Housing; Provider Training; Crisis Services for Children and Adults; Regional Support Teams; and an Individual Services Review study of individuals with complex medical needs in Regions I, IV and V.
Throughout the recent review period, the Commonwealth’s staff have been accessible, forthright and responsive. Attorneys from the Department of Justice gathered information that has been helpful to effective implementation of the Agreement. They continue to work collaboratively with the Commonwealth in negotiating outcomes and timelines for achieving the provisions of the Agreement. Overall, the willingness of both Parties to openly and regularly discuss implementation issues and any concerns about progress towards shared goals has been important and productive. The involvement and contributions of the advocates and other stakeholders has been vitally important to the progress that the Commonwealth has made; their meaningful participation will continue to be critically necessary. The Independent Reviewer greatly appreciates the assistance that was generously given by the individuals at the center of this Agreement and their families, their case managers and their service providers.

	
  

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II. SUMMARY OF COMPLIANCE

Settlement Agreement Reference
III

Provision

Rating

Comments

Serving Individuals with Developmental Disabilities In the
Most Integrated Setting

Compliance ratings for the fifth, sixth, seventh, eighth and ninth review periods are presented as:
(5th period) 6th period
7th period 8th period
9th period

Comments include examples to explain the ratings and status. The Findings Section and attached consultant reports include additional explanatory information.
The Comments in italics below are from the prior period when the compliance rating was determined.

III.C.1.a.i-v

The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the target population in the Training Centers to transition to the community …

Compliance Compliance
Compliance
Compliance

The Commonwealth created 645 waiver slots during FY 2012 -2017, the minimum number required for individuals to transition from Training Centers.

III.C.1.b.i-v

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community, individuals with intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 275 waiver slots, including 25 slots prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs.

Non Compliance
Non Compliance
Non Compliance
Non Compliance

The Commonwealth created 1800 waiver slots between FY 2012 and FY 2017, 250 more than the1550 required. This meets the quantitative requirements of this provision. A few children have begun to use the prioritized waiver slots to transition from living in large ICFs. Substantive change is expected by the Spring of 2017.

	
  

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Settlement Agreement Reference
III.C.1.c.i-v
III.C.2.a-b
III.C.5.a

Provision
The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities)… v. In State Fiscal Year 2016, 25 waiver slots, including 15 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs
The Commonwealth shall create an Individual and Family Support Program (IFSP) for individuals with ID/DD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2015, a minimum of 1000 individuals will be supported.
The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

III.C.5.b. III.C.5.b.i.

For the purpose of this agreement, case management shall mean:
Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

III.C.5.b.ii

Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

The Commonwealth created 740 waiver slots between FY 2012 and FY 2017 for individuals with DD, other than ID, 465 more than required. The Commonwealth expects that results from implementing its plan to transition children living in nursing facilities will be evident in the tenth period.

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance Compliance
Compliance

The Commonwealth continues to meet the quantitative requirement. DBHDS will develop a plan by 6/30/17. Implementation will be evident 3/31/18.
25 (100%) of the individuals reviewed in the case management study during the 8th period had case managers and had current Individual Support Plans. DBHDS reported that 88-89% of individuals received case management services.

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The substantive changes in the ISP process and the training of case managers resulted in progress. The case management study during the 8th period, however, found a high level of discrepancies in 2 (50%) of the 4 CSBs studied. DBHDS monitoring confirmed that 1 (25%) of the 4 CSBs had consistently performed below expected standards. See comment immediately above.

	
  

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Settlement Agreement Reference
III.C.5.b.iii

Provision
Monitoring the ISP to make timely additional referrals, service changes, and amendments to the plans as needed.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

See comment regarding III.C.5.b.i.

III.C.5.c

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.

III.C.5.d

The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall:
i. Provide timely and accessible support …
ii. Provide services focused on crisis III.C.6.a.i-iii prevention and proactive planning …
iii. Provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual …

Compliance Compliance
Compliance
Deferred
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The Individual Services Review case study found that case managers had offered choices of residential and day providers, but that none of the 26 individuals ( 0%) were offered a choice of case managers. This is a strong indication that the Commonwealth may not be in compliance with this provision. Twenty-six is too small a sample to make this determination, after previously determining compliance. The Independent Reviewer has deferred a compliance rating until the tenth review period’s report.
The DBHDS regulations and licensing monitoring protocols do not align with the Agreement’s requirements.
This is an overarching provision. Compliance will not be achieved until the Commonwealth is in compliance with all the Crisis Services provisions of the Agreement. It developed the required elements of a crisis system for adults with ID/DD, but had not fully developed crisis services for children. DBHDS expects its out of home crisis stabilization programs to begin in September 2017.

	
  

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Settlement Agreement Reference III.C.6.b.i.A
III.C.6.b.i.B

Provision
The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.
By June 30, 2012, the Commonwealth shall train CSB Emergency Services (ES) personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely III.C.6.b.ii.A. assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.

III.C.6.b.ii.B

Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

III.C.6.b.ii.C

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with ID/DD comes into contact with law enforcement.

Mobile crisis teams shall be available 24 hours per day, 7 days per week and to III.C.6.b.ii.D respond on-site to crises.

III.C.6.b.ii.E

Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

Rating

Comments

Compliance Compliance
Compliance Compliance
Compliance Compliance
Compliance
Compliance
Compliance Non
Compliance Non
Compliance

CSB Emergency Services are utilized for adults with ID/DD. REACH hotlines are operated 24 hours per day, 7 days per week for adults with ID/DD.
REACH continues to train CSB ES staff. DBHDS has developed a standardized curriculum. The Commonwealth requires that all ES staff and case managers are required to attend training. The Commonwealth’s training program was previously found to be inadequate for team members to respond with effective assessments or good quality in-home supports in many cases. DBHDS has not provided information that demonstrates compliance.

(Compliance Non
Compliance Non
Compliance
Compliance Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Compliance
Compliance Compliance

REACH programs did not provide effective prevention plans, treatment strategies, or in-home supports. Although DBHDS now requires crisis prevention plans to be completed for every individual referred, these are not being completed consistently.
During the review period, REACH continued to train law enforcement personnel in all five Regions. In total, 395 police were trained during the eighth review period and 599 were trained during the ninth period.
REACH Mobile crisis teams are available around the clock and respond at off-hours to adults with ID/DD.
All Regions provided adults with ID/DD with more than an average of three days inhome support services during the second half of the review period.

	
  

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Settlement Agreement Reference
III.C.6.b.ii.G

Provision
By June 30, 2013, the Commonwealth shall have at least two mobile crisis teams in each Region that shall respond to on-site crises within two hours.

By June 30, 2014, the Commonwealth shall have a sufficient number of mobile crisis teams in each Region to respond on site to crises as follows: in urban areas, within one hour, and in rural areas, within two hours, as III.C.6.b.ii.H measured by the average annual response time.

Crisis Stabilization programs offer a shortterm alternative to institutionalization or III.C.6.b.iii.A. hospitalization for individuals who need inpatient stabilization services

Crisis stabilization programs shall be used as

a last resort. The State shall ensure that,

prior to transferring an individual to a crisis

stabilization program, the mobile crisis team,

III.C.6.b.iii.B.

in collaboration with the provider, has first attempted to resolve the crisis to avoid an

out-of-home placement and, if that is not

possible, has then attempted to locate

another community-based placement that

could serve as a short-term placement.

Crisis stabilization programs shall have no

III.C.6.b.iii.D.

more than six beds and lengths of stay shall not exceed 30 days.

With the exception of the Pathways Program

at SWVTC … crisis stabilization programs

shall not be located on the grounds of the

Training Centers or hospitals with inpatient

III.C.6.b.iii.E.

psychiatric beds. By July 1, 2015, the Pathways Program at SWVTC will cease

providing crisis stabilization services and shall

be replaced by off-site crisis stabilization

programs with sufficient capacity to meet the

needs of the target population in that Region.

Rating

Comments

Non Compliance Compliance
Compliance
Non Compliance Compliance
Compliance
Compliance Compliance
Compliance
Compliance Compliance Compliance
Compliance

The Commonwealth did not create new teams. It added staff to the existing REACH crisis teams, which achieved responses within the required time for 95.7% during the eighth and approximately 92.7% of calls during the ninth period. The Commonwealth reported average response times for crisis calls from adults within the required response time in all Regions during the eight period and in four of five Regions during the ninth. The fifth Region exceeded the response time slightly for a six-month period. All Regions continue to have crisis stabilization programs that are providing short-term alternatives for adults with ID/DD. For adults with ID/DD admitted to the programs, crisis stabilization programs continue to be used as a last resort. For these individuals, teams attempted to resolve crises and avoid out-of home placements.

Non Compliance
Non Compliance
Substantial Compliance Substantial Compliance
Non Compliance

All five Region’s programs report stays that exceed 30 days, which are not allowed.
The Commonwealth does not have sufficient community-based crisis stabilization service capacity to meet the needs of the target population in the Region.

	
  

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Settlement

Agreement

Provision

Reference

By June 30, 2012, the Commonwealth shall

develop one crisis stabilization program in III.C.6.b.iii.F. each Region.

By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.
III.C.6.b.iii.G.

III.C.7.a

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.

III.C.7.b III.C.7.b.i.

The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy… (3) employment services and goals must be developed and discussed at least annually through a person centered planning process and included in the ISP.
Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreation opportunities, and other integrated day activities.

Rating

Comments

Compliance Compliance
Compliance
Non Compliance
Non Compliance
Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

Each Region developed and currently maintains a crisis stabilization program for adults with ID/DD.
The Commonwealth has completed a review and has determined that it is not necessary to develop additional “crisis stabilization programs” for adults with ID/DD in each Region. It has also decided to add two programs statewide designed to accommodate individuals who require stays of longer than 30 days.
This is an overarching provision. Compliance will not be achieved until the sub-provisions of integrated day, including supported employment, are in compliance.
The Individual Services Review study found that goals were not developed and discussed for 19 of 26 individuals (73%). And the typical day for 17 individuals (65%) did not include integrated activities.

Non Compliance
Non Compliance
Non Compliance

The Commonwealth developed a plan for Supported Employment. Its written plan to increase integrated day activities is not comprehensive. It lacks plans to provide guidance re: building CE into the ISP process, training case managers, and an assessment of the extent additional provider capacity may be needed.

	
  

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Settlement Agreement Reference

Provision
Provide regional training on the Employment First policy and strategies through the Commonwealth.

III.C.7.b.i.A.

Establish, for individuals receiving services through the HCBS waivers, annual baseline information regarding:
III.C.7.b.i. B.1.

The number of individuals who are receiving III.C.7.b.i. supported employment.
B.1.a.

The length of time individuals maintain III.C.7.b.i. employment in integrated work settings.
B.1.b.

Amount of earnings from supported III.C.7.b.i. employment;
B.1.c.

III.C.7.b.i. B.1.d.
III.C.7.b.i. B.1.e.

The number of individuals in pre-vocational services.
The length-of-time individuals remain in prevocational services.

Targets to meaningfully increase: the number of individuals who enroll in supported employment each year.

III.C.7.b.i. B.2.a.

Rating

Comments

Compliance Compliance
Compliance

DBHDS continued to provide regional training on the Employment First policy and strategies. Trainings were provided to service providers, family members, CSB staff, advocates, provider staff and transition teachers and supervisors.

Non Compliance
Non Compliance
Compliance
Non Compliance
Non Compliance
Compliance
Non Compliance
Non Compliance
Compliance
Compliance Compliance
Compliance

The Commonwealth has significantly improved its method of collecting data. For the first time, data were reported by 100% of the employment service providers. It can now report the number of individuals, length of time, and earnings as required in III.C.7.b.i.B.1.a, b, c, d, and e below. See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.
See answer for III.C.7.b.i.B.1.

Compliance

See answer for

Compliance
Compliance

III.C.7.b.i.B.1.

Non Compliance
Non Compliance
Non Compliance Compliance

The Commonwealth set targets to meaningfully increase the number of individuals receiving services through the waivers and on making substantial progress toward achieving the targets. The targets were surpassed for individuals receiving individual-SE and group-SE.

	
  

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Settlement Agreement Reference
III.C.7.b.i. B.2.b

Provision
The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.

III.C.7.c.

Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.

III.C.7.d III.C.8.a.

The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward. The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.

III.C.8.b.

The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.

Rating

Comments

(Compliance)
Non Compliance Compliance
Compliance
Compliance Non
Compliance
Compliance
Compliance Non
Compliance
Compliance
Compliance Non
Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

The Commonwealth has improved data collection. Its goal that 85% of individuals will hold their jobs for at least twelve months has been exceeded. 89% individuals had worked at their job for one year. The RQCs met during both quarters of the ninth review period. They consulted with the DBHDS Employment staff, both members of the SELN. The RQCs reviewed quarterly the number of individuals employed and the number who remain in integrated employment for twelve months. The RQCs reviewed the employment targets and the State’s progress for FY 2017. The RQCs discussed and endorsed the future FY 2016 – 2019 targets A review found that DMAS /Logisticare have implemented previous recommendations and DMAS added them to its RFP. The selected recipient of the transportation brokerage contract will implement changes to move toward compliance during the eleventh period. The Commonwealth will not revise its guidelines until after implementing its redesigned HCBS waivers.

	
  

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Settlement Agreement Reference
III.D.1.

Provision
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.

III.D.2.

The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources.

III.D.3. III.D.3.a. III.D.3.b.i-ii

Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.
The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ...
The plan will establish for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance

This is an overarching provision related to serving individuals in the most integrated setting. The need for more such settings will not be resolved until full implementation of the redesigned waivers.
The Commonwealth facilitated an impressive additional 91 adults to live in homes of their own. This is 6% of the goal to provide 1,523 more adults their own home by
2021. To achieve compliance requires sustaining a higher rate of facilitating adults to move into their own homes.

Non Compliance
Non Compliance Compliance
Compliance
Compliance Compliance
Compliance

The Commonwealth developed a plan, created strategies to improve access, and provided rental subsidies.
A DBHDS housing service coordinator developed and updated the plan with these representatives and with others.

Compliance

Compliance Compliance
Compliance Compliance

The Commonwealth estimated the number of individuals who would choose independent living options through FY 2015. It again revised its Housing Plan with new strategies and recommendations.

	
  

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Settlement Agreement Reference
III.D.4
III.D.5
III.D.6
III.D.7
III.E.1

Provision
Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii.
Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.
No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant (CRC) and, under circumstances described in Section III.E below, the Regional Support Team (RST).
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team ...

Rating

Comments

Compliance Compliance
Compliance
Compliance
Non Compliance
Non Compliance
Non Compliance

The Commonwealth established the one-time fund, distributed funds, and demonstrated viability of providing rental assistance. The individuals who received these one-time funds have now been provided permanent rental assistance. Documents reviewed did not indicate that the family-to-family and peer programs were active and creating pairings for individuals served in sponsored homes or congregate settings.

Compliance Non
Compliance Non
Compliance

Individuals were placed in settings of five or more, in nursing facilities or in ICFs without the review of the CRC or the Regional Support Teams.

Compliance Compliance
Compliance Compliance
Compliance Compliance
Compliance Compliance

The Commonwealth included this term in the performance contracts, developed and provided training to case managers. The ISR study found that less restrictive options were discussed and offered. Community Resource Consultants (CRCs) are located in and are members of the Regional Support Team in each Region and are utilized for these functions.

	
  

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Settlement Agreement Reference
III.E.2
III.E.3.a-d
IV
IV.
IV.A

Provision
The CRC may consult at any time with the Regional Support Team (RST). Upon referral to it, the RST shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The RST shall have the authority to recommend additional steps by the PST and/or CRC. The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met).
Discharge Planning and Transition
By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

PSTs did not submit some referrals as required. Individuals moved to settings of five or more, to nursing facilities or to ICFs, without the CRCs submitting referrals, or submitting with sufficient lead-time for the RSTs to fulfill their responsibilities or to utilize their authority.

Compliance Compliance
Compliance Compliance

DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly.

Compliance ratings for the fifth, sixth, seventh, eighth and ninth review periods are presented as:
(5th period) 6th period 7th period
8th period 9th period
(Compliance) Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance

Note: The Independent Reviewer gathered information about individuals who transitioned from Training Centers and rated compliance during the fifth, seventh and ninth review periods.
The Comments in italics below are from the prior period when the compliance rating was determined.
The Commonwealth developed and implemented discharge planning and transition processes prior to July 2012. It implemented improvements in response to concerns the IR identified.
The Commonwealth had just begun to implement the redesigned HCBS waivers to come into compliance. Most integrated residential and day options are not available for individuals with intense needs.

	
  

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Settlement Agreement Reference
IV.B.3.
IV.B.4.
IV.B.5.
IV.B.5.a. IV.B.5.b. IV.B.5.c.

Provision

Rating

Comments

Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, well being, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).
The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan will be developed within 30 days prior to discharge.
Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes;
Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;

(Compliance)
Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Compliance)
Compliance
Compliance
(Compliance)
Compliance
Compliance
(Compliance)
Compliance
Compliance
(Compliance)
Compliance
Compliance

The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision. The discharge plans reviewed were well organized and well documented.
Discharge plan goals did not include measurable outcomes that promote integrated day activities for most individuals. The Commonwealth had just begun to provide integrated day services and some progress was apparent.
The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision. The discharge plans are well documented. All individuals studied had discharge plans.
The documentation of information provided was present in the discharge records ☐ for 26 (1000%) of the individuals studied during the ninth review period. The discharge plans included this information.
☐ for 76 of 77 individuals (98.7%) studied during the fifth, seventh, and ninth review periods, the discharge records included these assessments.

	
  

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Settlement Agreement Reference
IV.B.5.d.
IV.B.5.e. IV.B.5.e.i.
IV.B.5.e.ii.
IV.B.6

Provision
Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes;
Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.
Such barriers shall not include the individual’s disability or the severity of the disability.
For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.

Rating

Comments

(Compliance)
Compliance
Compliance

The PSTs select and list specific providers that provide identified supports and services.

(Compliance)
Compliance
Compliance
(Compliance)
Compliance
Compliance
(Compliance)
Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance

The CIMs and Regional Support Teams document barriers on the data collection sheet.
The severity of the disability has not been a barrier in the discharge plans.
DBHDS has identified the factors that led to readmission and has implemented steps to support individuals with intensive needs.
The Individual Services Review Study found that the discharge plans lacked recommendations for services in integrated day opportunities. DBHDS implemented improvements that led to more plans that included skill development goals.

IV.B.7 IV.B.9.

Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.
In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options.

(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

The Commonwealth’s discharge plans indicate that individuals with complex needs can live in integrated settings.
The Individual Services Review studies during the fifth seventh, and ninth review periods found that ☐ 78 (100%) of individuals and their ARs were provided with information regarding community options and had the opportunity to discuss them with the PST.

	
  

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Settlement Agreement Reference
IV.B.9.a.
IV.B.9.b.
IV.B.9.c.

Provision

Rating

Comments

The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.
PSTs and the CSB case manager shall coordinate with the … community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities.

(Compliance)
Compliance
Compliance
(Non Compliance)
Non Compliance
Compliance

Discharge records included evidence that the Commonwealth had offered a choice of providers.
Reviews found that ☐ 22 of 26 individuals (84.5%) and their ARs did have an opportunity to speak with individuals currently living in their communities and their family members. All 100% received a packet of information with this offer, but discussions and follow-up were not documented for four individuals.

PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.

(Compliance)
Compliance
Compliance

PST’s and case managers assisted individuals and their Authorized Representative. For 100% of the 26 individuals studied, providers were identified and engaged; provider staff were trained in support plan protocols.

IV.B.11.

The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.

(Compliance)
Compliance
Compliance

During the fifth, seventh, and ninth review periods, the reviews found that ☐ 70 of 78 individuals /Authorized Representatives (89.7%) who transitioned from Training Centers were provided with information regarding community options.

	
  

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Settlement Agreement Reference IV.B.11.a.
IV.B.11.b.
IV.B.14

Provision

Rating

Comments

In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.
Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meetings and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the personcentered tools and skills. Coaches … will have regular and structured sessions and personcentered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers.

(Compliance) Compliance
Compliance
(Compliance)
Compliance
Compliance

The Independent Reviewer confirmed that training has been provided via regular orientation, monthly and ad hoc events at all Training Centers, and via ongoing information sharing.
The Independent Reviewer confirmed that staff receive required person-centered training during orientation and annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors. An extensive list of trainings was provided and attendance is well documented.

In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.

(Non Compliance)
Non Compliance

See Comment for IV.D.3.

	
  

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Settlement Agreement Reference
IV.C.1
IV.C.2

Provision
Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

Rating

Comments

(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

The Independent Reviewer found that the residential staff for ☐ 100% of the 26 individuals participated in the premove ISP meeting and were trained in the support plan protocols.
During the fifth, seventh, and ninth period, the Independent Reviewer found that ☐ 75 of 78 individuals (96.2%) had moved within 6 weeks, or reasons were documented and new time frames developed.

IV.C.3 IV.C.4

The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct postmove monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring (PMM) Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.

(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

The Independent Reviewer determined the Commonwealth’s PMM process is well organized. It functions with increased frequency during the first weeks after transitions. ☐ for 76 (100%) individuals PMM visits occurred. The monitors had been trained and utilized monitoring checklists. The look-behind process was maintained during the seventh period.
The Individual Services Review studies during the ninth review period found that ☐ for 25 of 26 individuals (96.2%), the Commonwealth updated discharge plans within 30 days prior to discharge.

	
  

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Settlement Agreement Reference
IV.C.5
IV.C.6
IV.C.7 IV.D.1 IV.D.2.a

Provision

Rating

Comments

The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge.

(Non Compliance)
Non Compliance
Non Compliance

The Individual Review study found that essential supports were not in place prior to discharge for 5 of 26 individuals (19.2%) in the ninth review period. Four individuals did not have a day program and one individual did have behavior supports in place before they moved.

No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.

(Compliance) Compliance
Compliance

The discharge records reviewed in the ninth review period indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.

The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.

(Compliance) Compliance
Compliance

The Independent Reviewer confirmed that documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans.

(Compliance)

Community Integration

Compliance
Compliance

Managers are working at each Training Center.

CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals.

(Compliance) Compliance
Compliance

CIMs reviewed PST recommendations for individuals to be transferred to a nursing home or congregate settings of five or more individuals.

	
  

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Settlement Agreement Reference
IV.D.3
IV.D.4.

Provision

Rating

Comments

The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.
The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed.

(Non Compliance)
Non Compliance

The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The Independent Reviewer found, during the seventh period, that ☐ for 0 (0.0%) of 12 individuals referred to the RST, there was sufficient time to work with the PST and CIM to resolve identified barriers.

(Compliance)
Compliance
Compliance

The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ.

V.
V.B. V.C.1

Quality and Risk Management

Rating
Compliance ratings for the fifth, sixth, seventh, eighth and ninth review periods are presented as:
(5th period) 6th period 7th period
8th period 9th period

Comments
The Comments in italics below are from the prior period when the compliance rating was determined.

The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.

Non Compliance
Non Compliance
Non Compliance

This is an overarching provision of the Agreement. Compliance will not be achieved until the subprovisions in the Quality section are determined to be in compliance.

The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.

(Non Compliance)
Non Compliance
Non
Compliance

The Commonwealth has improved its draft list of risk triggers. It has not completed or implemented the lists. It has not changed regulations to allow collection of required data.

	
  

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Settlement Agreement Reference
V.C.2

Provision
The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.

V.C.3

The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.

Rating

Comments

(Non Compliance)
Non Compliance Compliance
(Non Compliance)
Non Compliance
Non Compliance

DBHDS implemented a webbased incident reporting system. Providers now report 90% of incidents within one day of the event.
The Commonwealth established a reporting and investigative process. The DBHDS Office of Human Rights (OHR) investigations do not align with the requirements of the Agreement.

V.C.4 V.C.5

The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The …mortality review team … shall have at least one member with the clinical experience to conduct mortality re who is otherwise independent of the State. Within ninety days of a death, the mortality review team shall: (a) review, or document the unavailability of: (i) medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual’s death; … (b) interview, as warranted, any persons having information regarding the individual’s care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems … and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable.

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth has developed and posted some completed training modules. Available trainings are incomplete, not adequate to ensure reliability, and not competency based. A Mortality Review Committee (MRC) completed reviews of unexpected and unexplained deaths. The MRC did not include a member independent of the State; most mortality reviews were not completed in 90 days; and a quality improvement assessment has not been completed to determine whether initiatives have addressed problems or to determine other actions to reduce mortality rates.

	
  

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Settlement Agreement Reference
V.C.6

Provision
If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.

Rating
(Non Compliance)
Non Compliance

Comments
DBHDS cannot effectively use available mechanisms to sanction providers, beyond use of Corrective Action Plans. DBHDS reports that provisional licenses are being issued for repeat offenders.

V.D.1 V.D.2.a-d V.D.3.a-h

The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers. Review of data shall occur at the local and State levels by the CSBs and DMAS/DBHDS, respectively.
The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.
The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data are collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):

(Non Compliance)
Non Compliance
Non Compliance

This is an overarching provision requiring effective quality improvement processes at the local and State levels. Compliance will not be achieved until effective processes to monitor participant health and safety are in place and the remaining quality improvement sub-provisions are in compliance.

(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth has taken steps to improve gathering and use of available data, to develop reports and to share data among staff and divisions. Significant work remains to increase, organize, and to ensure data are complete and reliable. The Commonwealth plans to begin collecting data on 1/1/17 for one measure for each Domain. Analysis is expected to begin after 7/1/17, during the eleventh review period.

	
  

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Settlement Agreement Reference
V.D.4

Provision
The Commonwealth shall collect and analyze data from available sources, including the risk management system described in V.C. above, those sources described in Sections V.E-G and I below (e.g. providers, case managers, Quality Service Reviews, and licensing), Quality Service Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.

V.D.5

The Commonwealth shall implement Regional Quality Councils (RQCs) that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.

V.D.5.a

The Councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.

V.D.5.b

Each Council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.

V.D.6 V.E.1

At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.
The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis that is sufficient to identify and address significant issues.

Rating
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance) Compliance
Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

Comments
This is an overarching provision. It will be in noncompliance until reliable data are provided from all the sources listed and cited by reference in V.C. and in V.E-G.
DBHDS shared and RQCs reviewed employment, OLS and OHR data. The RQCs, however, had limited and frequently unreliable data
available for review.
The five Regional Quality Councils include all the required members.
The RQCs met quarterly and had limited discussion. Data available were frequently not complete or reliable. The DBHDS Quality Improvement Committee directed the RQCs work.
The Commonwealth has previously begun to compile and to post Annual Report information on its website. The information is not yet complete and some is outdated.
The Commonwealth has not yet required providers to implement QI programs or root cause analysis

	
  

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Settlement Agreement Reference
V.E.2
V.E.3
V.F.1
V.F.2

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.

(Non Compliance)
Non Compliance
Non Compliance

The Commonwealth requires providers to report deaths, serious injuries and allegations of abuse and neglect. DBHDS does not yet require reporting through the risk management and provider QI programs.

The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.
For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.
At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs….

(Non Compliance)
Non Compliance
Non Compliance
(Compliance) Compliance
Compliance Compliance
(Non Compliance)
Non Compliance
Non Compliance
Non Compliance

The Commonwealth’s contractor completed the first annual QSR process. There are problems with the validity of the contractor’s tools and the process and therefore with the reliability of data collected and the accuracy of the results.
The case management study found that 24 (96%) of the 25 were in compliance with the required frequency of visits. DBHDS has identified data that frequency and type of case manager visit are inconsistent and, in some CSBs, consistently below target.
The case management study found that 19 (83%) of 23 individuals reviewed were recommended for day support programs. They were not offered services in integrated settings appropriate to their needs. Of these 19, 3(15.8%) were not offered services consistent with the individuals’ strengths and preferences.

	
  

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Settlement Agreement Reference
V.F.3.a-f
V.F.4
V.F.5
V.F.6 V.G.1 V.G.2.a-f

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).
Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.
Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in V.D.3.
The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of selfdetermination and person-centeredness.
The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.
Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ...

(Compliance)
Compliance Compliance
Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
Non Compliance
(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance
(Compliance) Compliance
Compliance

The Individual Services Review study found that 25 (of the 26 (96%) were in compliance with the required frequency of visits. All received monthly face-to-face meetings as required. DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards relative to case manager contacts. DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards, including case manager contacts.
The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination.
DBHDS completed 434 unannounced licensing inspection visits between 4/1/15 and 9/30/15. DBHDS has maintained a licensing inspection process with more frequent inspections.

	
  

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Settlement Agreement Reference
V.G.3
V.H.1
V.H.2
V.I.1.a-b
V.I.2 V.I.3 V.I.4

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.
The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self –determination awareness, and required elements of service training.
The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.
The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.
QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting
The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.

(Non Compliance)
Non Compliance
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance

The DBHDS Licensing regulations and protocol do not align with the Agreement’s specific requirements.
The Commonwealth has not created a plan to:
develop the curriculum to train staff in the required elements of service for the individuals.
Same as V.H.1 immediately above.
Same as Comments for V.E.3. Compliance will be achieved when results are based on valid and reliable data and are used to improve quality.
Same as Comments for V.E.3 and for V.I.1. which is immediately above.
Same as Comments for V.E.3 and for V.I.1.

The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.

(Non Compliance)
Non Compliance Compliance

The Commonwealth’s contractor completed the first annual QSR process based on a statistically significant sample of individuals.

	
  

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Settlement Agreement Reference
VI
VI.D.
IX
IX.C.

Provision
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the, … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

Rating

Comments

Rating
(Compliance) Compliance
Compliance Compliance
Compliance

Comment
The DHBDS promptly reports to the IR. The IR, in collaboration with a nurse and independent consultants, completes his review and issues his Report to the Court and the Parties. DBHDS has established an internal working group to review and follow-up on the IR’s recommendations.

Rating
(Non Compliance)
Non Compliance
Non Compliance
Non Compliance
Non
Compliance

Comment
The Independent Reviewer has determined that the Commonwealth did not maintain sufficient records to document proper implementation of the provisions including: mortality review, quality and risk management, and Quality Service Reviews.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. The following provisions are related to internal operations of Training Centers and were not monitored: Sections III.C.9, IV.B.1,
IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-c. The independent Reviewer will not monitor Section
III.C.6.b.iii.C. until the Parties decide whether this provision will be retained.

	
  

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III. DISCUSSION OF COMPLIANCE FINDINGS

A. Methodology:

The Independent Reviewer and his independent consultants monitored the Commonwealth’s
compliance with the requirements of the Agreement in several ways by:  Reviewing data and documentation produced by the Commonwealth in response to requests by
the Independent Reviewer, independent consultants, and the Department of Justice (DOJ);  Discussing progress and challenges in regularly scheduled Parties’ meetings and in work sessions
with Commonwealth officials;  Examining and evaluating documentation of supports provided to individuals and their families;  Interviewing individuals and their care givers providers; and  Visiting sites, including individuals’ homes and other programs.

During this ninth review period, the Independent Reviewer prioritized the following areas for review and evaluation:
 Transition of Individuals from Training Centers to live in Regions I, II or III;  Safety in the Community;  Crisis Services for Children and Adults;  Transportation;  Supported Employment;  Quality and Risk Management; and  Mortality Review. The Independent Reviewer retained eleven independent consultants to conduct the reviews and evaluations of these areas. To accommodate the Commonwealth’s need to focus all of its staff resources during this period on implementation of the redesigned HCBS waivers, the Independent Reviewer postponed a planned study of Regional Support Teams and planned only brief reviews for four studies. The brief reviews of Transportation, Crisis Services, Supported Employment, and Mortality Review involved primarily a review of existing documents. For each study, the Independent Reviewer asked the Commonwealth to provide all records documenting that it has properly implemented the related requirements of the Agreement. Information that was not provided by the Commonwealth for the studies is not considered in the consultant’s reports or in the Independent Reviewer’s findings, conclusions, and determinations of compliance.
For the ninth time, the Independent Reviewer utilized his Individual Services Review study process and Monitoring Questionnaire to evaluate the status of services for a selected sample of individuals. By utilizing the same questions over several review periods, for different subgroups and in different geographic areas, the Independent Reviewer has identified findings that include positive outcomes and areas of concern. By reviewing these findings, the Independent Reviewer has identified and reported themes. For this Report, the Individual Services Review study was focused on the status of discharge planning and transition services for individuals who moved from Training Centers to live in community based settings in Virginia’s Health Planning Regions I (central), II (northern) and III (southwestern). Twenty-six individuals were selected randomly from the list of individuals who moved from Training Centers between December 7, 2015 and June 22, 2016.
The other studies completed by the Independent Reviewer’s consultants for this report examined the status of the Commonwealth’s compliance with specific prioritized provisions that were targeted for review and evaluation. The Independent Reviewer shared the planned scope, methodology, site visits,

	
  

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document review, and interviews with the Commonwealth and requested its suggested refinements. The Independent Reviewer also asked the Commonwealth to provide the measurable outcomes that it has established and the records that demonstrate achievement of these outcomes for each study.
The Independent Reviewer’s consultants then reviewed the status of program development to ascertain whether the Commonwealth’s initiatives had been implemented sufficiently for measurable results to be evident. The consultants conducted interviews with selected officials, staff at the State and local levels, workgroup members, providers, families of individuals served and other stakeholders. To determine the ratings of compliance, the Independent Reviewer considered information provided prior to October 30, 2016. This information included the findings and conclusions from the consultant’s topical studies, the Individual Services Review study, and other sources. The Independent Reviewer’s compliance ratings are best understood by reviewing the comments in the Summary of Compliance table, the Findings section of this report, and the consultant reports included in the Appendix.
During the tenth review period, the Independent Reviewer will study the status of the Commonwealth’s progress toward achieving compliance with most provisions that were not studied during the ninth period. These provisions include Transitions from Nursing Facilities and Intermediate Care Facilities, Case Management, Regional Support Teams, Independent Housing, Licensing and Investigations, and Provider Training. Some of the provisions, which the Commonwealth believes that it will not achieve compliance with during the tenth period, will be studied during the eleventh or twelfth period. These include the Individual and Family Support Program and transitions of children from Intermediate Care Facilities. The Independent Reviewer will also complete qualitative reviews of Crisis Services and Integrated Day, including Supported Employment, during the tenth period. In general, the Independent Reviewer will not complete studies of the status of compliance for provisions, which the Commonwealth believes, will lack sufficient evidence of progress.
Finally, as required, the Independent Reviewer submitted this Report to the Parties in draft form for their comments. The Independent Reviewer considered any comments before finalizing and submitting this ninth Report to the Court.
B. Compliance Findings
1. Providing Home and Community Based Services (HCBS) Waivers
The Commonwealth had created a total of 2455 new waiver slots, 400 more than were required by the Agreement, prior to this reporting period. As this review period began, the General Assembly approved an additional 200 waiver slots to be awarded to individuals with DD, other than ID, prior to the end of Fiscal Year 2016. The General Assembly approved and funded these additional waiver slots to support implementation of the Commonwealth’s redesign of its HCBS waiver programs.

	
  

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Waiver Slot Allocation Summary Fiscal Years 2012 - 2017 Settlement Agreement - required/actually created

Fiscal Year Training Centers

2012
60/60

2013

2014

160/160 160/160

2015
90/90

2016
85/85

2017
90/90

Total
645/645

Community Living Waiver (formerly
Intellectual Disabilities)
Family and Individual Support
Waiver (formerly Developmental Disabilities)

275/275

225/300
(***25 slots prioritized)

225/575
(***25 slots prioritized)

250/25
(***25 slots prioritized)

275/325
(***25 slots prioritized)

300/300 1550/1800

150/165

25/50
(***25 slots prioritized)

25/130 25/15 25/240**
(***25 slots (***15 slots* (***25 slots prioritized) prioritized) prioritized)

25/140

275/740

Total

485/500 410/510 410/865 365/130 385/650 415/530 2470/3185

* From reserves ** Additional 200 for the top 200 people on the chronological Waiting List for the Family and Individual Support Waiver *** For children living in nursing homes or large privately operated Intermediate Care Facilities
Under the Commonwealth’s former HCBS waiver program, waiver slots were provided to individuals with DD, other than ID, chronologically, i.e., when an individual’s name was added to the waitlist, rather than on the intensity of an individual’s needs. As part of the redesigned HCBS waivers, the Commonwealth switched to a policy of awarding slots based on intensity, which was expected to be effective on July 1, 2016. The Commonwealth provided an extra 200 slots for the Family and Individual Support Waiver prior to the end of Fiscal Year 2016. These slots were provided for individuals with DD, other than ID, who had been on the waitlist for many years and who might have been deprived from receiving waiver slots under the new policy. The Commonwealth also created forty “transfer” slots that can be used to allow individuals to transfer between waivers. For example, individuals with DD, other than ID, who receive Family and Individual Supports waiver services could use one of these forty slots to transfer to the Community Living waiver to be able to receive waiver-funded congregate residential services.

The HCBS waiver slots that the Commonwealth created for Fiscal Year 2017 for both the Community Living and the Family and Individual Support Waivers have been approved by CMS and the Commonwealth has distributed the slots to the CSBs. As of December 2017, Waiver Slot Assignment Committees were in the process of determining the individuals to whom the slots would be assigned.
The Commonwealth has consistently met or exceeded the quantitative requirements to provide HCBS waiver slots that enable individuals with ID/DD to receive waiver-funded services in the community. The Commonwealth has created waiver slots for the residents of the state operated Intermediate Care Facilities (Training Centers), for individuals who have been on waiting lists, and for children and adults with ID/DD who are living in nursing facilities and privately operated large Intermediate Care Facilities.

	
  

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Between October 13, 2011 and October 5, 2016, the Commonwealth facilitated the transition of 568 individuals from Training Centers to live in community-based homes. The combined census in the Training Centers has decreased from approximately 1080 to 339 residents. Now, the Commonwealth is developing a process to facilitate the transition of children from the large ICF/IIDs and reports that it has initiated its plan to transition children in nursing facilities to live and receive services in more integrated community-based settings. The Commonwealth has not yet achieved compliance with these qualitative aspects of the waiver slot requirements.  
As reported previously, the Independent Reviewer’s Individual Services Review studies have consistently found that waiver slots provide individuals and families with critical supports that significantly improve their quality of life. For these individuals, access to waiver-funded services is vital to their good health, personal growth, safety, and for the prevention of unnecessary institutionalization. That being said, the Commonwealth’s former HCBS waiver programs were confusing and difficult to manage for families, especially for those who received in-home services. Although a waiver slot is intended to be a ticket to a wide array of services, families often have found that the services that they most wanted, such as in-home nursing and behavioral supports, were not available. At the same time, and for more than twenty years, the former waiver program definitions and rates created financial incentives for service providers to develop large congregate day and residential settings. These settings proliferated; they perpetuated the practice of grouping individuals with ID/DD together and separating them from their communities, rather than meeting their needs in the most appropriate integrated setting. The array of services currently available throughout the Commonwealth reflects the history of these incentives. Most individuals with Community-Living ID waiver-funded services live in larger group settings that separate them from nondisabled community members, other than staff. Being segregated does not allow for participation or interaction with non-disabled community members in typical activities.
The Commonwealth’s newly approved redesigned waiver programs are intended to restructure the service system “to provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” The Commonwealth anticipates that these incentives will result in more integrated community-based program options. The Commonwealth also expects that improved access and availability of support services for individuals with intense behavioral or medical needs will result in decreased demand for crisis intervention and institutional levels of care. For Fiscal Year 2017, CMS left in place the “exceptional rate” process for individuals with intense medical and behavioral needs. The Commonwealth had intended, but did not, include a “customized rate” to ensure adequate funding for the services needed by these individuals. The Commonwealth is now planning to submit an amendment to CMS to include a customized rate, which, if approved, will become available as of July 1, 2017. During the ninth period, the Independent Reviewer’s Individual Services Review study found indications that the Commonwealth’s shift to more individualized and more integrated service arrangements may have begun. During the next and future reporting periods, the Independent Reviewer will monitor and report on the extent to which the Commonwealth achieves its goals and its compliance with provisions of the Settlement Agreement related to integration and to prevention of unnecessary institutionalization.
The Commonwealth is in compliance with Section III.C.1.a.i-v. The Commonwealth is in non-compliance with the qualitative aspects of Section III.C.1.b.i.-v. and III.C.1.c.i.-v.

	
  

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2. Discharge Planning and Transition from Training Centers
The Independent Reviewer has completed five Individual Services Review (ISR) studies of Discharge Planning and Transition from the Commonwealth’s Training Centers. Each ISR study focused on the outcomes for individuals who had transitioned and the extent to which the Commonwealth had achieved compliance with the requirements of the Agreement. For each ISR study, the Independent Reviewer selected a cohort of individuals who had transitioned prior to each review period. The cohorts for the five studies included a total of 191 individuals who had moved to all five geographic regions of Virginia and from all five of the Commonwealth’s Training Centers. The cohort for the first ISR study moved from Southside Virginia Training Center (SVTC) and Central Virginia Training Center (CVTC) between October 13, 2011 and June 30, 2012; the cohort for the ninth period ISR study moved from Southwestern Virginia Training Center (SWVTC), Northern Virginia Training Center (NVTC) or CVTC to live in Regions I (central), II (northern), or III (southwestern). From the cohorts in the five studies, 138 individuals were randomly selected for review. This selection provides a 90% confidence level that the findings from these studies can be generalized to the larger cohorts. (Appendix A includes detailed Demographic Information about the 138 individuals and additional information regarding the findings from the ninth ISR study). Overall, of every ten of the 138 randomly selected individuals who moved from the Training Centers, approximately:
 Six were males;  Seven were age fifty-one or older;  Four use wheelchairs for mobility;  Seven use gestures as their highest form of communication;  Nine moved into congregate residential programs; and  Eight had a parent or sibling as his or her guardian or Authorized Representative
For the ninth review period, twenty-six individuals were randomly selected for the ISR study. These people were selected from the forty-eight individuals who transitioned from any Training Center to live in community-based homes in the three selected Regions during the six-month period (December 7, 2015, through June 22, 2016).
Although there were individual exceptions, the following themes and examples of both positive outcomes and areas of concern were found in the study of the transitions and services for these twenty-six individuals. These themes are very similar to those found in previous ISR studies. More positive outcomes were found than in the previous ISR studies (See Appendix A). These are noted below:
 The individuals’ new community homes were clean, well maintained and had been inspected by the Office of Licensing Services. Homes were accessible, based on the individuals’ needs for environmental modifications. Needed adaptive equipment and supplies were available. The DBHDS Licensing Specialists had recently inspected all congregate residential homes.
 Eighteen of the twenty-six individuals (69.2%) transitioned to settings of five or more individuals or to settings with residential programs clustered together. Four of the individuals are living temporarily in homes that are clustered next to a Training Center. For fourteen of the individuals, bedrooms and the common spaces of their homes included personal décor, while ten people live in homes with little personalization. The less personalized homes had environmental and program arrangements that are typical of institutions (e.g. large medication carts that are moved through the home to the individuals’ rooms; standing orders for PRN medications for all residents rather than individualized parameters).

	
  

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 A notable improvement: eight of the twenty-six individuals (30.8%) had typical days that included integrated activities. Others frequented integrated community settings, but were not yet engaging in activities with non-disabled community members. This finding involved a small sample of service providers (n=11) and individuals (n=26), and only individuals who transitioned from Training Centers. This study’s findings, therefore, cannot be generalized to the service system. In a similar review in 2015, however, none of the twenty-four individuals studied had typical days that involved integrated activities.
 The discharge planning and transition processes were well organized and well documented. The selected residential providers were involved in the discharge planning process; and the residential provider staffs received training in the individuals’ health and safety protocols. The Post-Move Monitor (PMM) visits occurred as expected and extra PMM follow-up visits occurred to confirm resolution if concerns were identified. Transition planning, provider training and post-move monitoring, however, did not guarantee that the Commonwealth had ensured that all the individuals’ essential needs had been addressed before discharge. For four individuals, a day program was not in place at the time of discharge. Three individuals were receiving daily dental care at home, but did not yet have a community-based dentist identified.
 There were many positive healthcare process outcomes for virtually all the individuals studied. All individuals had a physical exam within a year and their Primary Care Physicians’ and community medical specialists’ recommendations were implemented within the prescribed time frames. As referenced above, however, it was uncertain where three individuals would receive dental services.
 The individuals made successful transitions and had settled well into their new home environments. This theme was also documented in previous ISR studies of individuals who had transitioned from Training Centers. After living in their new homes for less than a year and, in some cases, for only three months, the reviewers found several examples of individuals with histories of problematic behaviors who now were experiencing significantly fewer and less severe incidents.
The Commonwealth had previously achieved, and in the ninth period maintained, a rating of Compliance with most of the Discharge Planning and Transition provisions. As exemplified by the Individual Services Review study themes described above and by the tables in Appendix A, consistent compliance with these provisions of the Agreement has resulted in many positive outcomes for the individuals who transitioned.
Furthermore, it is positive that the ninth period ISR study found indications that the Commonwealth had made progress in an area where the Independent Reviewer has previously identified concern. Some of the individuals who transitioned to live in the community now have typical days that include integrated activities. However, other areas of concern remain. The Independent Reviewer has previously reported these concerns and made recommendations for improvement. Most identified areas of concern involve the continued predominance of larger congregate residential and day settings, the lack of day opportunities for individuals with intensive medical and behavioral needs, and the lack of community integration opportunities and habilitation. Two of the Commonwealth’s previously reported initiatives to address these areas of concern are being implemented:

	
  

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 The Commonwealth’s redesign of its HCBS waiver programs for ID/DD has been approved and is now in the implementation stage;
 The Commonwealth is in the process of selecting from providers’ responses to its Request for Proposals to build capacity to serve individuals with intense healthcare and behavioral support needs.
The Independent Reviewer has provided the Individual Services Review reports to the Commonwealth so that the Commonwealth and its providers will review the issues and areas of concern identified for each individual. The Independent Reviewer has asked the Commonwealth to share the reports with the individual’s residential service provider and case manager and, by March 30, 2017, to provide updates on the actions taken and their results in regard to any issues identified.
Selected tables with the Individual Service Review study’s findings are attached (Appendix A). The Independent Reviewer has separated findings from the study into tables focusing on positive outcomes and areas of concern. Additionally, the Independent Reviewer cites findings from the ninth period’s Individual Services Review study, as well as patterns from multiple independent consultant studies, in the explanatory comments included in the Summary of Compliance table.
3. Crisis Services
For the ninth review period, the Independent Reviewer retained an independent consultant to complete her ninth study of the Commonwealth’s crisis services system. Due to the extraordinary demands of implementing the redesigned HCBS waivers and the related service development, the Independent Reviewer limited the foci and the methodology for this period’s study. The study methodology was limited to primarily a review of documents and data. The foci of the study of Commonwealth’s crisis services were limited to review of its:
 Activities that were in progress, but were not completed during the eighth period, and  Progress implementing the crisis services for children, which had only been made available
statewide during the previous year.
Because this study did not include a review of the quality of the crisis services, the Independent Reviewer did not gather sufficient facts to determine updated compliance ratings for all of the crisis services provisions of the Agreement. The updated compliance ratings of the crisis services provisions are in bold letters in the Compliance Table. A qualitative review of the performance of the Commonwealth’s statewide crisis services for children and adults will be completed during the tenth review period. The Independent Reviewer has reported compliance ratings in this and previous Reports to the Court based only on the statewide crisis services for adults. The Independent Reviewer will not determine that the Commonwealth is in compliance with its full responsibility for the Crisis Services provisions until it complies with the Agreement’s requirements for the provision of effective crisis services and crisis stabilization programs for children as well as for adults. The Independent Reviewer will begin to report compliance ratings based on the required services for both children and adults during future review periods as the Commonwealth’s crisis services for children become fully operational.

	
  

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a. Crisis Services for Adults

Individual’s Major Diagnosis The Independent Reviewer has expressed concern in past Reports that the Commonwealth’s crisis services programs had not yet reached many individuals with DD, other that ID, who need these services. The Commonwealth has taken steps to inform these individuals and their families of the availability of crisis services. During the eighth review period an increased percentage of the adults referred for crisis services had this diagnosis (see Table 1 below). During the ninth review period, again an increased percentage of this segment of the target population was served. This increase is an indication that the Commonwealth’s crisis services programs are engaging more of the individuals with this diagnosis.

Table 1

Percentage of individuals served with DD, other than ID– Adults

FY16Q2

FY16Q3

FY16Q4

FY17Q1

10%

13%

12%

16%

Response Times for Adults The crisis services programs responded within the required time to 95.6% of the calls during the eighth review period and to 94.4% and 91% of crisis calls during the two halves of the ninth review period, an annual average of approximately 94.2%. There were nineteen late responses for adults statewide during the first half of the ninth period, seventeen of these late responses occurred in Region IV alone. The delayed response times occurred in the two regions designated as “urban” Regions where response times are required to occur within one hour versus two hours in the “rural” Regions. The delayed responses to individual crisis calls in the two urban Regions appear to indicate a systemic problem, and potentially additional systemic problems for the children’s mobile response teams. The statewide annual average response times to calls for adults, however, occurred within the required time periods.

The Commonwealth is in compliance with Section III.C.6.b.ii.H and G.

Training All Regions continue to provide extensive training to law enforcement (Crisis Intervention Training) and to the CSB, ES, providers and the staff of other community partners.

The Commonwealth is in compliance with Section III.C.6.b.i.B and III.C.6.b.ii.C.

Mobile Crisis Assessments During the first half of the ninth review period, at the time of crisis assessment of 312 individuals, 84 (27%) were hospitalized, and 193 individuals (62%) retained their home settings. During the second half of the review period, 422 individuals were assessed for a crisis. After using mobile crisis services, 148 of these individuals (35%) were hospitalized and 77 (52%) retained their home setting. There was a correlation when the number of individuals who required crisis assessments increased significantly, by 112 individuals (36%); the percentage of individuals who were hospitalized also increased significantly, from 84 (27%) to 148 (35%). Two quarters is too small a sample to determine that an increased workload for the crisis teams and the crisis stabilization programs caused the increase in the percentage of individuals who were hospitalized. The Commonwealth should study this to determine the service delivery factors associated with this correlation, as it could be an indication of insufficient crisis services capacity.

	
  

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Table 2

Disposition after crisis assessment – Adults

FY16Q4

# Assessed

312

% Hospitalized

84 (27%)

% Retained their home

193 (62%)

% Used crisis stabilization homes (CTHs)

22 (7%)

% With another disposition

12 (4%)

FY17Q1 422
148 (35%) 77 (52%) 34 (8%) 21 (5%)

The independent consultant also found that a much lower percentage of individuals (7%) were hospitalized after receiving crisis prevention supports in the community than when REACH’s initial assessment occurred during a crisis (35%). (See Tables 2 and 3) This indicates that the provision of inhome crisis prevention supports reduced the need for psychiatric hospitalization. That individuals were hospitalized in each situation underscores that some individuals in crisis required psychiatric hospitalization to stabilize. In the future, it will be important to have more detailed information regarding the reasons for admissions and the availability of community alternatives, especially as DBHDS enhances the array of crisis stabilization options.

Table 3

Dispositions after using REACH mobile crisis services – Adults

FY16Q4

FY17Q1

# Who used mobile crisis services

146

237

% Hospitalized

15 (10%)

17 (7%)

% Retained in their home

112 (77%)

190 (80%)

% Who transitioned to a new residence

13 (9%)

14 (6%)

% Used crisis stabilization homes (CTHs)

6 (4%)

14 (6%)

Crisis Stabilization Programs During the first quarter of Fiscal Year 2017, DBHDS began tracking new information regarding the performance of its crisis stabilization programs, which DBHDS calls Crisis Therapeutic Homes (CTHs). The DBHDS report for this quarter includes a detailed analysis of the available capacity and the waiting lists for the CTHs. The percentage of days when the six beds in each of the five regional Crisis Stabilization Program were all occupied ranged from 17% (Region I) to 75% (Region III). There were nine individuals, however, who were on the waiting list. Six of these individuals live in Region V, which reported that its Crisis Therapeutic Home had beds available on 73% of the days in the quarter. During the eighth review period, case managers reported having stopped referring individuals to the Crisis Therapeutic Homes because of the waiting lists. A significant number of individuals with ID/DD continue to be admitted to psychiatric hospitals without being offered the Crisis Therapeutic Home as a last resort alternative to hospitalization. The data available did not include sufficient information concerning the reasons for admission. It is not possible, therefore, to complete an analysis of whether the Crisis Therapeutic Home setting would have been a viable alternative and, therefore, whether there is a sufficient out-of-home crisis stabilization capacity. However, the Commonwealth should determine the underlying cause for high vacancy rates in the Crisis Therapeutic Homes when there are members of the target population who likely need these services. The Commonwealth should also determine whether any individuals who REACH knows to be in crisis are admitted to psychiatric

	
  

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hospitals without being offered an alternative placement in crisis stabilization programs prior to admission.
Region IV successfully moved its Crisis Therapeutic Home to a community-based setting during the ninth period. The Commonwealth plans to use the design of this home for	
  two additional homes. These homes will serve as statewide resources for individuals whose crises have been stabilized but who have lost their home setting and need a place to stay for longer than thirty days. The Agreement limits stays in the Regional Crisis Therapeutic Homes to a maximum of thirty days.
During the ninth review, to help determine whether additional crisis stabilization programs are necessary, DBHDS reviewed the Crisis Therapeutic Home capacity for the seven-month period from December 1, 2015 through June 30, 2016. These crisis stabilization programs provide prevention support with planned stays and stabilization for individuals who are in crises. The average length of stay for the 46% of individuals who utilized these programs for planned prevention support was eight days; whereas, the average length of stay for the individuals who received crisis stabilization services was twenty-one days. All five Regions had individual stays in the crisis stabilization programs that exceeded the thirty-day limit established by the Agreement.
DBHDS has taken, or plans to take, steps to resolve the excessive lengths of stay. These include:  Redesigned HCBS waivers that now allow the provision of an emergency reserve waiver slot for individuals who have lost access to their previous home and more timely access to waiverfunded community residential and support services;  Redesigned HCBS waivers that allow residential services for individuals with DD;  Plans to amend the redesigned HCBS waivers to include a customized rate* to fund enhanced services for individuals with complex behaviors, as of July 2017;  Plans, beginning in Fall 2017, to develop two homes for individuals whose crises have been stabilized but who need a transition home for longer than thirty days .
* The Commonwealth intended to include a customized rate for individuals with intense medical and behavioral needs in
its original proposed amendment to redesign its HCBS wavier program.
The Commonwealth is in compliance for adult services with Section III.C.6.b.iii.A., B., and F. The Commonwealth is in non-compliance with Section III.C.6.b.iii.D	
  
Involvement of law enforcement During the first quarter of Fiscal Year 2017, DBHDS also began collecting data regarding the involvement of law enforcement in responding to crisis calls. During the quarter, law enforcement was involved in forty of the 289 responses (14%) to crisis calls. It is notable, however, that thirty-seven of the forty (92.5%) crisis responses that involved law enforcement occurred in Region IV; whereas, law enforcement was not involved in responding to any calls during the quarter in either Region II or V. To better understand this significant disparity, it would be very helpful for the Commonwealth to track whether law enforcement was initially notified and then contacted REACH, or whether REACH contacted law enforcement after receiving a crisis call. It is not possible to draw conclusions about the implications of this disparity without a qualitative review of individuals whose crises involved law enforcement personnel to determine the reasons; the officers’ training in responding to the crises; and the outcomes of their involvement.

	
  

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Psychiatric Hospitalizations DBHDS completed a study of all admissions of adults with ID/DD to the DBHDS-operated Virginia Mental Health Hospitals during Fiscal Year 2015. A total of 269 individuals with DD were admitted to these psychiatric settings. It is notable that such a large percentage of the individuals who had their own home or lived in a community residential program were able to return to their home setting after being hospitalized. DBHDS utilized the Crisis Therapeutic Homes as step-down settings for thirtythree of 269 individuals (12.3%) who had been admitted to the DBHDS operated mental health hospitals. The Commonwealth should document the number of individuals in the target population who are admitted to state operated psychiatric hospitals during each quarter and should provide this information to the Independent Reviewer.
The DBHDS expected its REACH crisis services programs to be involved with all adults with ID/DD who were admitted to psychiatric hospitals in Fiscal Year 2015. The hospital documentation indicated that REACH was involved, however, with only seventy-six of the 272 individuals (28%). (Note: it was not possible to reconcile small differences, e.g. between 269 and 272 hospitalized individuals, when the numbers came from different data sources). Records indicated that REACH program involvement varied significantly, depending on the hospital, from 0% to 45% of the individuals with ID/DD. DBHDS reports that this disparity may reflect inconsistent documentation by the hospitals. It is a significant concern that more than 70% of the individuals admitted to these hospitals did not benefit from REACH expertise and resources, as these programs were designed to prevent unnecessary institutionalization and to provide short-term alternatives. This concern is underscored by documentation that not all CSB Emergency Staff or the DBHDS Mental Health Hospital staff contacted the Commonwealth’s REACH programs when these staff were screening or admitting individuals with ID/DD.
DBHDS completed an analysis of the admissions of adults with ID/DD to psychiatric hospitals operated by the Commonwealth in Fiscal Year 2015. A two-person team of DBHDS clinicians determined that 64 of the 269 admissions (24%) could have been diverted from hospitalizations. The DBHDS analysis resulted in DBHDS making several recommendations (See Appendix B). DBHDS also created two internal work groups with responsibility to implement these recommendations. These work groups have started to meet monthly and plan to meet through Fiscal Year 2017. At the end of the ninth review period, DBHDS had not yet developed a work plan, the expected outcomes, or implementation timelines for the recommendations.
b. Crisis Services for Children
Referrals to the statewide children’s crisis services programs increased from 205 to 363 (56.5%), from the eighth to the ninth period. The number of referrals was similar during the two Fiscal Year quarters of the ninth review period. During the first quarter, however, the percentage of referrals that occurred during an individual’s crisis, rather than when the child wasn’t in crisis, varied substantially among Regions. During the second quarter, however, the percentage of calls that involved crises versus noncrises was much more similar across the Regions since 53% of the referral calls occurred during a crisis.
By December 31, 2016, during the tenth review period, DBHDS expects that the five Regional Children’s Crisis Services programs will be fully operational and will have met most performance expectations, including 95% on-time face to face responses to crisis calls. The number of referrals to the children’s crisis programs increased by 56.5%% between the eighth and the ninth periods This increase is clear evidence of a period of significant program growth. During the two quarters of the

	
  

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ninth period, however, the number of referrals was similar across regions. This indicates that the period of significant growth had largely stabilized.
Individual’s major diagnosis of Children The Children’s REACH Programs continue to serve significantly more children with DD, other than ID, than children with an ID diagnosis. The percent of children with DD, other than ID, increased from 60% during the final quarter of Fiscal Year 2016 to 67% during the first quarter of Fiscal Year 2017. A high percentage of the children with DD were diagnosed with an Autism Spectrum Disorder.
Response times for Children Response times for crisis calls for children occurred within the required timeframe in 93% and 86% of the calls in the two halves of the review period, an average of approximately 89.5%. The delayed response times for children, similar to those for adults, occurred in the two Regions designated as “urban” Regions. The delayed responses to individual crisis calls for children appear to include the same, and potentially additional, systemic problems for the children’s mobile response teams. The statewide annual average response times to calls for children, however, occurred within the required time periods in four Regions. In Region II, however, there were a sufficient number of late responses to crisis calls for children. During a six-month period, the average response time to all calls was above the amount of time that the crisis teams are required to respond to each call for an individual in crisis.
Mobile Crisis Assessments of Children During the ninth review period, a large majority of children retained their family home setting following the crisis assessment. In Regions III and IV, however, the rate at which children were admitted to psychiatric hospitals was much higher than in other Regions. Regions III and IV accounted for forty-six of the fifty-seven children (80.7%) who were hospitalized. In Regions I, II and V, a total of only eleven children were hospitalized. For every four children hospitalized in Regions III and IV, only one was hospitalized in the other three Regions. This four to one performance disparity appears to be evidence of a lack of sufficient or effective community-based resources for children with complex behavioral needs in these two Regions. This disparity should be a focus of the crisis study in future reporting periods. It is critical that DBHDS continues to develop better data regarding the reasons for admission to psychiatric hospitals that includes data on the lack of clinically appropriate community services.
Psychiatric Hospitalizations of Children DBHDS reported that ninety-seven children were hospitalized in the Commonwealth’s only state operated children’s psychiatric hospital during the ninth review period. During the first quarter of Fiscal Year 2017, there were almost fifty percent more children admitted to this hospital than the children known to the DBHDS crisis service programs. DBHDS reported that thirteen of the children admitted to the state operated children’s psychiatric hospital remained hospitalized at the end of the ninth review period. It must be noted that the out-of-home crisis prevention or stabilization settings required by the Agreement were not yet available for children with ID/DD. The lack of these community-based resources very likely contributed to more children being admitted to psychiatric hospitals and to longer duration of hospitalization than might be necessary.
A DBHDS work group analyzed the situations of all 139 children with ID/DD who were admitted to the state operated children’s psychiatric hospital during Fiscal Year 2015. DBHDS reported that its clinicians’ analyses determined that forty of these children (24%) could have been diverted, if crisis services program were available. However, for several reasons, the DBHDS clinicians’ determination

	
  

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that only forty children could have been diverted may be too few. For example, there was not an indepth review of the issues that led to the admissions; the REACH Children’s Programs were not fully functioning during FY15; community capacity is still not fully developed; and out-of-home crisis stabilization services are not yet readily available.
Crisis Stabilization Programs for Children DBHDS received funding to expand crisis services for children and adults with ID/DD during Fiscal Year 2017. Based on its analysis of psychiatric admissions, DBHDS plans to implement a three-tiered approach. This includes:
 Development of crisis prevention out-of-home respite care;  Therapeutic foster care; and  Two crisis stabilization program (CTH) settings to support all five Regions. These out-of-home supports will serve children from age three through seventeen. DBHDS shared its planned approach in the Crisis Prevention and Stabilization Bed Capacity Children’s Crisis Services Proposal (October 19, 2016).
DBHDS is now in the process of writing an RFP (Request For Proposals) for development of crisis prevention out-of-home respite care, which will be required to coordinate with the REACH crisis services. DBHDS had previously reported that this RFP would be issued on May 1, 2016. The General Assembly has provided additional funding that will provide approximately 250 respite stays that average five days. DBHDS has not yet established a timeline for implementation of the new out-ofhome respite supports.
DBHDS plans to develop therapeutic foster care to offer transitional residential settings with professional behavioral supports. The goal of therapeutic foster care is to support children through crises, stabilize them, and return them to the family homes.
DBHDS plan to develop two children’s crisis stabilization programs (CTHs) with a total capacity of twelve beds statewide may not be adequate. DBHDS reported that there were forty children who could have been diverted from admission to the only state operated psychiatric hospital for children during Fiscal Year 2015. DBHDS is not able to estimate either the number of children statewide who were admitted to privately operated hospitals and psychiatric facilities or the number whose hospitalizations were extended due to the lack of available and appropriate step-down facilities. DBHDS plans to issue the RFP for the two children’s crisis stabilization programs on December 1, 2016. DBHDS is optimistic that the homes will be operational within nine months, by September 1, 2017, near the end of the eleventh review period. The Commonwealth was responsible for implementing crisis stabilization programs for the target population in each Region by June 30, 2012 and to determine whether additional programs were necessary by June 30, 2013.
Summary: Crisis Services for Adults and Children DBHDS continues to make progress implementing the crisis services requirements of the Agreement. There is evidence of continued outreach serving adults and greater coordination with the CSB Emergency Services programs. The adult crisis services programs are serving more individuals with DD, other than ID. The responses to almost all crisis referrals were face-to-face and the on-site response time was approximately 92.7% of the requisite timeframe during the period. The mobile crisis teams for adults in both urban Regions had an excess of late responses to individual crises; however both Regions had a higher percentage of on-time responses for adults than for children. DBHDS

	
  

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should evaluate and address the obstacles to on-time responses in the two urban Regions, especially those for children.
REACH staff participated in more crisis assessments that are conducted at the psychiatric hospitals. The involvement of REACH staff ensures that these individuals are immediately linked with the community-based crisis services. These linkages will help ensure coordinated discharge planning and post-discharge services from community providers. The Crisis Therapeutic Homes are also being used as a step-down from the hospitals for some individuals in the population, which should positively impact length of stay for some individual’s psychiatric hospitalizations.
The Children’s REACH crisis services programs have experienced a significant increase in referrals. The referral sources indicate a working relationship with the CSB Emergency Services programs. The majority of children served have a diagnosis of DD, other than ID, and most of them have an Autism Spectrum Disorder. This demonstrates effective outreach to this subgroup of the Agreement’s target population. Crisis assessments are conducted face-to-face. The assessments, linkage, training, and inhome support components of the children’s crisis services programs are becoming better established. One stark area of non-compliance with the requirements of the Agreement is the lack of out-of-home crisis stabilization programs for children. It is promising that DBHDS has developed a proposal to address this requirement and is including three options to add to the array of community-based crisis supports for children.
The Independent Reviewer’s compliance Ratings are, and have been, based only on the Commonwealth’s crisis services for adults with ID/DD. The Independent Reviewer has consistently reported to the Court that the Commonwealth was in non-compliance with the overarching crisis services requirements; and that it would not come into compliance until crisis services requirements were met for children as well as for adults with ID/DD. The Commonwealth had planned and initiated its crisis services system for adults before the Agreement was approved. After the Court approval of the Agreement as a consent decree, the Commonwealth explored the options. It determined that children’s crisis services and crisis stabilization services should operate separately from adult crisis service programs. Since that decision in 2012, the Commonwealth planned, requested and received funding, completed its procurement process to select service providers, and has developed the crisis services for children. The Commonwealth expects the children’s mobile crisis services to achieve full operation and compliance in all five Regions during the next, the tenth, review period. The Commonwealth expects the mobile crisis services for children to achieve compliance with 95% on-time responses to crisis calls by December 31, 2016. The Independent Reviewer will include an evaluation of children’s, in addition to adult’s, crisis services in determining compliance ratings for the mobile crisis service provisions in the next Report to the Court. The Independent Reviewer will include the evaluation of children’s out-of-home crisis stabilization services in the twelfth review period. The Commonwealth expects that these services will begin in September 2017 at the end of the eleventh review period.

	
  

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4. Supported Employment
The Independent Reviewer retained a consultant to complete the ninth review of employment services. The purpose of the ninth period review, however, was limited. At the request of the Commonwealth, due to the extraordinary demands of implementing the redesigned HCBS waivers, the Independent Reviewer designed the ninth period reviews to reduce demands on the private providers, case mangers, and DBHDS staff involved with the provision of services and supports to individuals with waiverfunded services. The methodology for this study was limited to the review of available documents and interviews that were narrowly focused on the Commonwealth’s implementation of priorities of employment. The study did not include a review of the qualitative aspects of service planning or delivery.
In the Agreement, the Commonwealth committed, to the extent that it offered services, that it would do so “in the most integrated setting appropriate to meet the needs of individuals with ID and DD.” In order to fulfill this commitment, the Commonwealth agreed to:
 Establish a statewide Employment First policy; • Develop a plan to increase integrated day opportunities, including supported employment; • Establish targets for employment services to support individuals in integrated work settings
where they are paid minimum or competitive wages; • Establish Regional Quality Councils, which would review data regarding the extent to which
the targets are being met, consult with employment providers and the SELN (aka EFAG) regarding the need to take additional measures to further enhance these services; and • Develop and discuss employment goals at least annually through a person-centered planning process and to include them in ISPs.
The primary focus of the ninth period review of employment services was the Commonwealth’s status and progress toward achieving its target milestones. The provisions of the Agreement apply to the services for individuals with ID/DD HCBS waiver slots. The Commonwealth has taken a broader approach; it has established targets for all individuals with ID/DD receiving supported employment services and separate targets for the subset of individuals with ID/DD with HCBS waiver slots. A much smaller percent of individuals with HCBS waivers, and those that are eligible for such waivers, receive supported employment services. The targets that the Commonwealth established reflect increased participation of individuals with ID and DD who receive HCBS waiver-funded services in both individual-supported employment and group-supported employment. Both occur in integrated settings. It is positive that the targets project an increase of 419% in the number of these individuals in the preferred individual-supported employment (I-SE) and a smaller increase of 55.9% in groupsupported employment (G-SE) (see Table 4 below). During the five years, Fiscal Year 2016 – 2020, the Commonwealth will add at least 1,955 (+18.7%) new waiver slots in addition to the 10,470 waiver slots that existed as of Fiscal Year 2015. Achieving these employment targets will represent a significant shift away from Commonwealth’s approach, since it joined the HCBS waiver program, of providing services by congregating individuals with ID/DD together in segregated settings.

	
  

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Table 4

DBHDS Goal to Increase Employment in the HCBS Waivers

Fiscal Year

Individual-SE

Group-SE

Total

2016

211

597

808

2017

301

631

932

2018

566

731

1297

2019

830

831

1661

2020

1095

931

2026

# increase

+884

+334

+1218

% increase

+419%

+55.9%

+151%

Employment Achievements DBHDS continues to collect, analyze and report employment data semiannually. For its fourth semiannual employment services report, however, the DBHDS received, for the first time, data from 100% of the Commonwealth’s employment service organizations (ESOs). This most recent and fourth report was for the period January 1, 2016, through June 30, 2016. The considerable and collaborative efforts of the DBHDS, Department of Aging and Rehabilitative Services (DARS), the Department of Medical Assistance Services (DMAS), and the employment service organizations contributed to the achievement of a 100% response rate from the ESOs. This represents an improvement from the December 31, 2015 semiannual employment report, which included data from 93% of the employment service organizations.

One consequence of the improved response rate, however, is that it is not possible to compare the number of individuals reported by 93%, to the numbers reported by 100% of the employment service providers. It is also not possible, therefore, to determine the extent to which changes had occurred during the six-month period between January 1, 2016 and June 30, 2016. The Commonwealth’s June 30, 2016 semiannual report, however, provides the numbers of individuals actually working in supported employment sat the end of Fiscal Year 2016: 225 were receiving individual-SE and 665 were receiving group-SE. These achievements surpass the DBHDS targets of 211 and 597, respectively (see Table 4 above). It is very positive that DBHDS has established a goal that at the end of Fiscal Year 2017, 301 individuals in the HCBS waivers would be receiving individual-SE. This represents an increase of ninety more individuals (42.7%) that the goal of 211 at the end of Fiscal Year 2016.

It is also very positive that DBHDS set increasingly higher goals for individual-SE compared with group-SE. For individuals with HCBS waiver slots, the Commonwealth’s total goal is for the number receiving SE to increase from 808 on June 30, 2016 to 2026 on June 30, 2020. Notably, the Commonwealth has set a goal to increase the number receiving individual-SE from 211 to 1,095, an increase of 419%; whereas, it set a goal to increase the number of individuals receiving group-SE from 597 to 931 at a significantly slower rate, an increase of 55.9%. By 2020, the Commonwealth has set a goal for the number of people receiving individual-SE that exceeds the number receiving group-SE.

The Commonwealth’s data are inadequate regarding the extent to which case managers “discuss and develop employment goals annually.” In addition to the data being self reported, the Commonwealth’s data does not include information from the case managers for individuals with DD, other than ID. Data from each CSB were included in the most recent DBHDS semiannual report. Twelve of the CSBs were below DBHDS’s expectations for discussing and developing employment-related goals. Five other CSBs reported that their case managers had not completed any ISPs during a six-month period.

	
  

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DBHDS should establish improvement goals and improvement plans for the CSBs that perform below expectations for two successive quarters. The lack of information from the Commonwealth’s DD case managers, an entire subgroup of the target population, is a significant problem. The Commonwealth must incorporate this information in future semiannual reports on employment.

Pre-vocational Services Although the Commonwealth has eliminated pre-vocational services from its list and definitions of waiver-funded services, 565 individuals were reported being served in pre-vocational HCBS waiver services as of June 2016. Pre-vocational Services are provided in segregated sheltered workshop settings. It is promising that DBHDS is providing technical assistance to many of the providers of prevocational services. Doing so will help willing providers to convert to being able to offer communitybased employment, community engagement activities, or a combination of both.

Hours Worked, Maintaining Employment, and Wages Earned, In its June 2016 semiannual employment report, DBHDS provided more detailed point-in-time information on the number of hours worked than provided in its previous reports. Table 2 below provides a breakdown of the hours worked per week for individuals with ID/DD in SE, those who have waiver funded services or other funding sources. As of June 2016, DBHDS reported that of this larger cohort, 2089 of the 3,414 individuals (61.2%) worked fewer than twenty hours per week. Of those who work fewer than twenty hours per week, 834 individuals (39.9%) worked in group-SE and 1,255 (60.1%) worked in individual-SE arrangements. Table 5 below summarizes the number of hours individuals with ID/DD worked by in the two types of supported employment.

Table 5

Hours Worked by Individuals in I-SE and G-SE

Range of Hours

Individual-SE

Group-SE

< 10

368

158

10-20

887

676

21-30

474

293

31-39

247

36

40 or more

172

48

Unknown

26

29

Total

2174

1240

Total 526 1563 767 283 220 55 3414

DBHDS has established a goal that at least 85% of individuals who are employed will maintain their jobs for twelve months or more. The most recent semiannual employment report includes length of employment data for 3384 individuals, of whom 89% (3025) have been employed for at least one year.

DBHDS also reported on wages for 3,363 of 3,414 individuals (98.5%) in either individual-SE or group-SE. DBHDS did not report wages earned by fifty-one of the individuals (1.5%) in supported employment Of the 3,363 workers with wages reported, their employers paid them:
 2,886 (85.8%) minimum wage or higher for their work 918 (27.3%) minimum wage and 1,968 (58.5%) more than minimum wage
 477 (14.2%) less than minimum wage. Note: 474 of these individuals (99.4%) are working in group-SE arrangements.

	
  

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The June 2016 semiannual employment report also included information regarding 1,192 individuals (including all DARS- and waiver-funded individuals) who receive employment supports in segregated sheltered workshop settings. Of these individuals 724 (60.7%) receive less than minimum wage for their work.
Engagement of the Employment First Advisory Group (EFAG) and the Regional Quality Councils (RQCs) The Agreement requires the Commonwealth to establish Regional Quality Councils. It requires the RQCs to review data regarding the extent to which the Commonwealth’s supported employment programs are meeting its target milestones. The Agreement also requires the RQCs to consult with the Employment First Advisory Group (EFAG), formerly called the Supported Employment Leadership Network (SELN), regarding the need to take additional measures to further enhance these services and to work with providers and the EFAG in determining whether the Commonwealth should adjust it targets upward.
DBHDS convenes the EFAG to: • Provide advice to the Department on employment service development; • Recommend policy changes and training strategies; • Participate in data collection and analysis; and • Make recommendations to assist the Commonwealth in achieving its employment targets.
	
   The Independent Reviewer’s previous Reports to the Court have identified the operations of he EFAG as an area of concern, but improving. Based on a review of documents and interviews with EFAG members, there has been significant EFAG improvements. These include: 	
  	
  	
  	
  	
  	
  	
   	
  Membership has stabilized since the changes were made in 2015; 	
  	
  	
  	
  	
  	
  	
   	
  Membership reflects balance among stakeholder groups; 	
  	
  	
  	
  	
  	
  	
   	
  Members attend much more consistently; 	
  	
  	
  	
  	
  	
  	
   	
  Meetings operate more efficiently; 	
  	
  	
  	
  	
  	
  	
   	
  Documents are distributed with sufficient time to review them prior to discussions; and 	
  	
  	
  	
  	
  	
  	
   	
  Progress has occurred in data gathering and analysis. 	
   The Regional Quality Councils (RQCs) are also required to review employment data quarterly, to discuss the targets and to offer recommendations annually. The minutes from the five RQCs quarterly meetings reflect discussions of employment concerns, review of the targets, and recommendations made. The employment related recommendations include: 	
  
• Addressing transportation; • Connecting CSB staff with school transition planning meetings; • Including career development as a support; • Making employment transparent and publicly available; • Learning and sharing best practices in securing employment; • Educating families to change their expectations of their child’s employability; • Offering benefits counseling to families and individuals; • Training case managers and ESO staff; and • Offering employment provider fairs for case managers. 	
   Two RQCs agreed to simply repeat recommendations made the previous year. This raises a significant concern with a lack of clarity regarding which DBHDS organizational entity has responsibility and

	
  

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authority to approve, modify, or reject recommendations made by the RQCs and the process for, and timing of, informing the RQCs of these decisions.
The Agreement includes the expectation that the RQCs consult with providers and the EFAG. It is very encouraging that the RQC meetings now regularly include a review of employment data and a discussion of progress toward meeting the targets. There is no evidence, however, that the RQCs interface or consult with providers or that the Commonwealth shares the recommendations made by the RQCs with the EFAG. None of the EFAG members who were interviewed were aware of the RQCs involvement in the employment initiative; none had been briefed on either the RQCs recommendations or on what actions DBHDS took as a result of the RQC recommendations. 	
   Summary: Regarding supported employment, DBHDS is making significant progress regarding data collection; defining and beginning to achieve the employment targets; and refilling the Employment Services Coordinator position. DBHDS has also supported the development of community engagement while it is implementing extensive changes to the existing HCBS waivers system. As DBHDS has developed the structure to improve employment opportunities, a lack of clarity has become apparent regarding which DBHDS entity has the responsibility and authority to make decisions, to develop action plans and to communicate the status of the RQC recommendations. DBHDS should clarify the lines of authority and responsibility regarding the recommendation made by the RQCs and should develop additional protocols to ensure that the RQCs consult with the Employment First Advisory Group.

5. Transportation Services
The Independent Reviewer’s consultant completed his second evaluation of whether the Commonwealth provides effective transportation services for members of the target population who receive waiver-funded services. The Virginia Department of Medical Assistance (DMAS) administers the Non-Emergency Medical Transportation (NEMT) services through a brokerage system contracted to a multi-state private sector contractor, Logisticare. The effective functioning of the DMAS transportation brokerage is critical to achieving the goal of improving the lives of people with intellectual and developmental disabilities and to achieving compliance with the Agreement. The consultant’s previous evaluation found that DMAS/Logisticare:
 Did not separate out individuals with ID/DD with waiver slots in its databases;  Had not completed an analysis related to the delivery of transportation services for these
members of the target population: and  Was not able to undertake the required quality improvement processes without information
about the transportation experiences of individuals with ID/DD waiver slots.
In December of 2015, the Independent Reviewer determined that the Commonwealth was in noncompliance with the transportation requirements of the Agreement. At that time, the Independent Reviewer requested that the Commonwealth develop a plan to address improvements needed “to ensure that its transportation services are of good quality, appropriate, available and accessible to the target population.”
Since DMAS and Logisticare only implemented a number of changes this past summer, the impact of these changes cannot yet be evaluated. The consultant’s study during this review period, therefore, represents a formative evaluation: a check-up to determine and to give feedback regarding whether and how the planned modifications are likely to achieve or to fall short of compliance. Based on the Commonwealth’s expected

	
  

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implementation schedule, the consultant projects that an evaluation will be possible after a full year of implementation. The Independent Reviewer will plan future independent evaluations to determine:
 The ability to separate out information regarding transportation services for individuals with ID/DD with waiver-funded services;
 The effectiveness of the planned transportation system changes for these individuals; and  Whether DMAS has effectively completed a full annual cycle of its quality improvement program.
DMAS has instituted changes in current practice that it plans to institutionalize through its Request For Proposal (RFP) and contract award process. DMAS issued a new RFP for Non-Emergency Medical Transportation on November 1, 2016. The Commonwealth’s resulting contract award for transportation broker services is projected to begin on July 1, 2017. A delay in the award of a new contract, however, could extend the period before an evaluation of these changes can be completed.
The new RFP includes requirements that address four of the eight recommendations that the consultant made in his previous evaluation report. The RFP includes requirements for the broker to:
 Address statistically valid customer satisfaction surveys from ID/DD Waiver users;  Increase representation from the ID/DD Waiver community on advisory boards; and  Implement “trip recovery” technology (i.e., software designed to redirect drivers in real time
when another driver is unable to complete a ride).
The consultant’s review also found that:  DMAS/Logisticare extracted information from its databases and analyzed initial findings for the ID/DD Waiver population for July 2016. The consultant’s previous report recommended this.  DMAS analysis concluded that the ID/DD waiver-funded population uses proportionately more trips per individual than the larger group of users.  LogistiCare advises users to communicate through its Rider Assist line.  Logisticare reviews and reports responding to complaints that it determines are legitimate.  LogistiCare determines that complaints are not legitimate if not made through its Rider Assist phone line. Complaints made directly to a driver of the subcontract transportation provider are considered not legitimate because LogistiCare cannot be assured of learning of, and has no way to track, the complaints. DMAS reports that complaints it receives directly are forwarded to Logisticare for investigation and resolution.  A day program provider confirmed that LogistiCare had contacted them to “problem solve” regarding complaints of “late pickups” and it then took follow-up actions.  LogistiCare reported following-up on all accidents/incidents, but does not complete follow-up reviews on all complaints due to the volume of calls into the Rider Assist line (more than 2,800 calls monthly. (See recommendations below).  A day provider reported that there were numerous “late pickups” that were not reported.  LogistiCare’s follow-up does not always reflect double-loop learning about improvements. For example, it reviewed and confirmed the legitimate cause of one “late pickup,” but it did not followup to determine whether there were any more occurrences of “late pickup” for this individual by that driver/contractor.  DMAS reports that it receives copies of all complaints, approximately 2,800, on a monthly basis and that DMAS can evaluate individual complaints and the quality of LogistiCare’s complaint resolution and can require that Logisticare reopen the complaint for further review.  LogistiCare “case” managers become involved to help address problems and then report to LogistiCare on local attempts to resolve complaints.

	
  

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 LogistiCare “case” managers may not have the “tools” needed to resolve or to ensure sustained problem resolution.
 DMAS has instituted a revised mileage reimbursement form, which users can now submit for payment via fax, as the consultant previously recommended. This process does facilitate user payment. The reimbursement form, however, remains cumbersome and is not user friendly. To request reimbursement, the form requires the user to enter fifteen data items per trip. The user friendliness of this form is critical to giving users a personal alternative and choice to using Logisticare’s sub-contract transportation drivers.
 Examples of problems were found that took so long to resolve that many users would likely have pursued any other available alternatives.
Summary:  DMAS and LogistiCare appear committed to addressing needed quality improvements in transportation for users with ID/DD waiver-funded services. DMAS has implemented changes that reflect recommendations made previously by the independent consultant and has issued an RFP to institutionalize these new approaches.  The DMAS finding regarding higher use per ID/DD Waiver users is a significant conclusion, which warrants additional analysis and/or action.  DMAS should request that LogistiCare Quality Assurance or “case” managers sample survey users from the IDD Waiver who have complained to the Rider Assist line to see if their problem continues or is recurring within 30 days of the report  It may take several continuous months of data analysis across seasons, school years, etc., to establish other actionable patterns or trends among users with ID/DD waiver-funded services.  The effectiveness of DMAS actions to create an effective Quality Improvement Program for ID/DD Waiver participants will be able to be assessed after a complete annual cycle, which had not yet occurred.
The Commonwealth remains in non-compliance with III.C.8.a.
6. Quality and Risk Management Annually, since 2012, the Independent Reviewer has retained the same independent consultant to assess the status of the Commonwealth’s progress in its planning, development and implementation of the Quality and Risk Management requirements of the Agreement. When effectively implementing these provisions, the Commonwealth will “identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.”
The consultant’s study focused the following areas of Quality and Risk Management:  Risk triggers and thresholds;  Providers;  Data to assess and improve quality;  Regional Quality Councils;  Annual report to the public; and  Quality Service Reviews.

	
  

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The consultant reviewed relevant documents and interviewed staff from DBHDS, Community Service Boards (CSBs) and the private third-party contractor that is completing the Quality Service Reviews.
Within DBHDS, there was a significant leadership transition that slowed progress of its development of the Quality and Risk Management system.	
  A new Assistant Commissioner of Quality Management and Development was hired two months after this ninth review period began. DBHDS recognized that a number of its quality initiatives had stagnated. The new Assistant Commissioner engaged in a transition that included a reassessment and redefinition of the structure and role of the Quality Management and Development Division in meeting the needs of the clinical and programmatic components of DBHDS.
Risk Triggers and Thresholds Since an independent review in 2015, the Commonwealth made minor modifications and additions to its list of triggers and thresholds. For each trigger and threshold, DBHDS has identified the “domain,” the “measures” and the “risk criteria.” DBHDS has also identified the data that are currently available as well as the data and collection methods that are not yet available. The triggers and thresholds are designed to be useful to the direct service providers in order to improve responsiveness to health and safety concerns and to DBHDS in order to strengthen its monitoring and oversight.
The Independent Reviewer’s previous Reports to the Court, and the consultant reports that are included in the Reports’ appendices, have described concerns with the draft risk triggers and thresholds and have included recommendations for improvement. The concerns included that:
 Additional data are needed for the measures to be useful;  Some terms need to be defined to ensure that reliable data are gathered;  The triggers in the medical section should be better explained or defined; and  The existing list of triggers does not meet the Agreement’s definition of harm.
The draft risk triggers do not yet include deficits in the skills and knowledge of staff or any inadequate systems of care within provider agencies. The DBHDS Office of Licensing Services’ investigations, however, have identified these shortcomings; and the Office of Licensing Services has cited providers for violating related regulations after events with negative health outcomes. The purpose of the triggers and thresholds is to alert providers prior to such events and the harm that results.
The DBHDS Risk Management Review Committee (RMRC) has gathered some data that were provided for other purposes (i.e., CHRIS reports). It has reviewed these data against the draft triggers. Since the previous independent review in 2015, the RMRC has started to review data and to take limited actions to contact and provide technical assistance to providers. Over a several month period, the RMRC tried different mechanisms to review and respond to individuals or providers that experienced events that met the current risk triggers or thresholds. In some cases, the RMRC’s assistance resulted in improved outcomes for individuals. The RMRC has evaluated and determined the strengths and weaknesses of the monitoring and response approaches that it tested. The RMRC correctly concluded that, “For a truly effective risk management system, every provider must have the ability to monitor his own data and be required to take action when a trigger event occurs or a threshold is met.” The Commonwealth, however, has not yet informed service providers that it will require them to implement the system and to submit the data to the Commonwealth. The RMRC envisions its role as providing oversight “to ensure that providers are taking action to reduce risks in response to triggers and thresholds.” DBHDS has not yet identified the mechanisms and the methodologies to gather the data that are needed for an effective system of risk triggers and thresholds.

	
  

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Not withstanding the quality of its work to date, the RMRC cannot reduce and manage risks without a working system of risk triggers and thresholds, and without effective incident investigations at the direct service level. The Commonwealth will not achieve compliance with the risk triggers and thresholds provision until it revises its regulations to align with the Agreement. After the revised regulations are approved, a very substantial statewide effort will still be necessary to effectively implement the required elements of the risk management system.
The Commonwealth remains in non-compliance with Section V.C.1.
Providers In the risk management provisions, the Commonwealth committed to “offer guidance and training to providers on proactively identifying and addressing risks of harm …”. A year ago, the Commonwealth reported that it had completed and posted on the DBHDS website one webinar on risk triggers and thresholds as evidence that it “offers” CSBs and providers risk management information, resources and tools. The Commonwealth has continued to develop training materials related to risk management and to make them available on its website. The Independent Reviewer has previously reported concerns with the posted training information. Two independent consultants recently verified the most fundamental and significant concern. Based on interviews with ten CSB and private provider staff, who were identified as managers of quality assurance efforts, the concepts of risk triggers and thresholds, and the mechanics of conducting root cause analysis, are not well known and have not been implemented. None of the ten staff were familiar with the terms “risk triggers” and “thresholds.” One of the three CSB quality managers was not aware of the DBHDS requirements or the online investigation training at the “Human Rights for Service Providers” tab on the Department’s website.
In order to accomplish substantial progress implementing the risk management provisions at the direct service level, the Commonwealth must take steps to offer and to require the participation of CSB and private provider staff in training and technical assistance on the:
 Development and implementation of the proactive identification of risks of harm;  Concepts and practical implementation of root cause analysis; and  Methods to be used to develop and monitor implementation of corrective actions.
The Commonwealth remains in non-compliance with Sections V.C.4
In the quality provisions of the Agreement, the Commonwealth committed to:  Require all providers to develop and implement a quality improvement program, including root cause analyses;  Develop measures that CSBs and providers report to DBHDS on a regular basis; and • Monitor and evaluate service quality.
The Agreement includes provisions to require CSB and providers to report to DBHDS through risk management, critical incident or QI programs. The Agreement also requires the DBHDS Quality Improvement Committee (QIC) to:
 Monitor and review, with input from the Regional Quality Councils;  Assess the adequacy of provider quality improvement strategies;  Provide technical assistance and other oversight to providers whose quality improvement
strategies the Commonwealth determines are inadequate; and  Assess the validity of each measure at least annually and then update measures accordingly.

	
  

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The Independent Reviewer reported in December 2014 that the Commonwealth added Quality Improvement program requirements to its draft Performance Contract with CSBs, beginning in 2015.
The Commonwealth’s oversight of community providers’ Quality Improvement programs remains a work-in-progress. In 2015, the Commonwealth conducted a survey of the CSBs. It found, as expected, that CSBs have different levels of awareness and commitment to building quality improvement processes into their operations (see Appendix D for examples). During the ninth review period, DBHDS sent a survey to approximately 1,000 CSBs and community providers to ascertain a baseline regarding current quality improvement practices, At the end of this review period, responses had recently begun to be returned.
The Commonwealth remains in the development phase of its Quality Improvement system. It did not establish expectations for CSBs’ and private providers’ quality improvement programs by its target date of December 31, 2015 or as of October 2016. Also, the Commonwealth had not yet begun to implement a statewide process to assess the adequacy of its providers’ quality improvement programs or to provide them formal training and technical assistance. The Commonwealth made some progress, but is still finalizing drafts of the data that it intends to collect. To address the requirements of the Agreement, however, submission of additional data, beyond what is described in the drafts, will be necessary. In some cases, the reliability of the available data requires improvement and the mechanisms and methodologies for collecting the data need to be developed. Once defined, the process to extract specific data that the Commonwealth needs will be difficult because CSBs and providers use many different electronic health records and/or paper records.
Although the Commonwealth has made progress, interviews with the CSB and private provider staff, who were identified as responsible for quality improvement, found that they had little or no knowledge of the quality improvement resources, information and training modules that DBHDS had developed and posted on its website, (i.e., risk triggers and thresholds and root cause analysis). An example of resources with which the CSB and provider staff were familiar is the medical/health risk Safety Alerts.
The Commonwealth’s Quality Improvement Committee (QIC) continues to meet quarterly. DBHDS is currently revising its agenda and focus. The Interim Commissioner indicated that, in order to maximize the usefulness of the Committee, he has set the expectation that representatives will come to meetings with reports that include data analysis and actions/recommendations for his consideration. The QIC is currently working to answer questions regarding the responsibilities and authorities of each workgroup. These fundamental questions about organizational structure include:
 Which data will be collected and analyzed;  Who should collect it;  Who should analyze it; and  Who should then develop the recommendations for subsequent actions.
DBHDS also needs to decide each workgroup’s authority and responsibility to plan, to take actions, and to report. The need to answer these questions is apparent in the current lack of clarity. For example, if the primary role of the QIC will be to identify crosscutting themes or issues, will the QIC be responsible for planning and implementing any needed changes? Similarly, if the Mortality Review Committee is responsible to “analyze … problems at the individual service delivery level” and “to implement quality improvement initiatives,” must another group approve these initiatives before implementation occurs?

	
  

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Summary: The Commonwealth remains in the beginning stages of conveying to providers their responsibilities to maintain quality improvement processes and mechanisms and to share data with the Commonwealth. Forums for reviewing provider data, such as the Regional Quality Councils and the Commonwealth’s QICs, also remain in the beginning stages. Some limited analysis of data has occurred, but only limited data are currently available to inform the Committees’ decision-making; more in depth analyses will be needed over time. The Interim Commissioner’s plan for revising the agenda and content of the QIC meetings should improve decision making, but DBHDS staff will likely require training and technical assistance to develop the reports that are envisioned by the Committee.
The Commonwealth remains in non-compliance with Section V.E.1-3.
Date to Assess and Improve Quality Since the consultant’s review in 2015, the Centers for Medicare and Medicaid Services, (CMS) approved the Commonwealth’s amended Home and Community-Based Services (HCBS) Waiver program, including its Quality Improvement Strategy. This document provides the Commonwealth’s description of its basic assurances of quality related to protections, services, and supports through its planned implementation of the redesigned Waiver program. The description includes many of the requirements of, and is not in contradiction with, the Agreement’s requirements.
As reported in December 2015, the Commonwealth had taken significant steps forward in its ability to collect and use data to assess and improve quality, including the development of the DBHDS OneSource Data Warehouse. During the past year, the Commonwealth staff have continued to utilize available data to evaluate its progress in developing the eight domains that are required by the Agreement. It has not, however, added new sources of data.
As it described in its OneSource Data Warehouse Data Quality Framework Overview (February 24, 2016), the Commonwealth is establishing a system designed to continuously work toward high quality data. This document explains that, to be effective, data must be accurate, timely, relevant, standardized, accessible, unique, and complete. To accomplish this goal, Commonwealth staff are developing a number of processes (see Appendix D for details).
During the ninth review period, the Data Quality and Analytics Coordinator developed Overview of DBHDS’s Data Warehouse as a Resource for Eight Domains Measurement (June 2016). This primer explains how a relational database works. It also provides practical applications for the eight Domains that are described in the Agreement. The DBHDS staff also produced Defining the Eight Domains (September 15, 2016). Although the definitions and measures for the eight domains are in various stages of development, they reflect a thoughtful approach to identifying what should be measured (i.e. valid measures), what is possible to measure reliably (i.e., reliable measures), what relevant fact tables currently exist within OneSource, and what additional data might be required. Some workgroups had more difficulty finalizing definitions and, consequently, some are further along than others in identifying fact tables that will generate the needed information. As the workgroups complete this process, the Commonwealth staff should continue to consider the independent consultant’s previous recommendations regarding the scope and quality of data.

	
  

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DBHDS reports that one measure will likely be included for each Domain when the initial “Eight Domain Report” is ready for implementation. DBHDS plans to collect data from January 1 through June 30, 2017, after which time the data would be analyzed. The Agreement required that reliable data would be collected and analyzed from each of Domains by June 30, 2014. Other DBHDS plans, techniques that account for changes, considerations for identifying problems early, and possibilities for deeper analysis are described in Appendix D.
The Commonwealth remains in non-compliance with Section V.D.3 a-h and V.D.4.
Regional Quality Councils The DBHDS document Guidelines for the Operation of Regional Quality Councils (October 16, 2014) describes the function and structure of the Regional Quality Councils (RQC), as well as the RQC membership requirements and voting rules. These Guidelines state that the DBHDS Quality Improvement Council directs the work of the Regional Quality Councils.
During the ninth review period, the independent consultant found that the RQCs met quarterly and that, when members conducted analyses of the limited data, they engaged in more robust discussions than they had a year earlier. The RQC members asked good questions regarding the availability of further breakdown of the data, the reliability of the data, and the its context (see Appendix D for examples). The RQC members made recommendations regarding programmatic issues and their roles and responsibilities. More consequential discussions, analyses and recommendations will become possible as the RQCs are provided with more reliable and complete data.
DBHDS has achieved the memberships of the five Regional Quality Councils, as required by the Agreement. DBHDS recognizes that it will be challenged, however, to sustain membership and improve the performance of the RQCs in the future. The three-year terms of many current members will end simultaneously, three years after the Councils were formed. Some terms will likely need to be extended to ultimately reach staggered terms and less disruptive future transitions.
The Agreement defines the role of the Regional Quality Councils as “assessing relevant data, identifying trends, and recommending responsive actions.” It is positive that the Division of Quality Management and Development’s personnel regularly support the RQCs’ activities and share with them the data that are currently available. For example, in recent RQC meetings, DBHDS shared employment, Office of Licensing, and Office of Human Rights data. Nonetheless, with only limited and frequently unreliable data available for review and because the risk triggers and thresholds system and the eight Domains have not been implemented at the direct service provider level, the RQCs cannot achieve compliance with the requirement to review relevant data and to recommend responsive actions.
The Commonwealth remains in non-compliance with V.D.5

	
  

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Annual Report to the Public The DBHDS website (i.e., http://www.dbhds.virginia.gov/individuals-and-families/developmentaldisabilities/doj-settlement-agreement) includes a tab for an Annual Report. In December 2015, this site included reports with valuable information regarding demographics, the quality and quantity of supports, and recommendations for improvements. At that time, although the “Annual Report” site included reports, it was not yet complete. The recent review found that much of the information on the site is information from 2014 and 2015 and, therefore, is outdated. It will be important for DBHDS to ensure that the data provided in its Annual Report accurately reflect the current system, including the quality of services and the gaps in service.
The Commonwealth remains in non-compliance with V.D.6 Quality Service Reviews The Commonwealth retained a third-party contractor to complete Quality Service Reviews (QSRs), as required by the Agreement. Overall, the purpose of the QSRs is “to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.” The QSR process is required to collect information through face-to-face interviews with a statistically significant sample of individuals receiving services and a sample of providers who serve the selected individuals. The planned QSRs involved:
 Conducting Person-Centered Reviews (PCRs) of a statistically significant sample of individuals receiving services and supports under the Settlement Agreement;
 Conducting Provider Quality Reviews (PQRs) of fifty direct service and support providers serving the individuals selected for the Person-Centered Reviews;
 Completing Quality Service Review Assessments, which involve reviews at the Community Services Board, regional, and statewide levels; and
 Submitting Quality Service Review Assessment reports, which include reports on the PersonCentered Reviews and Provider Quality Reviews for individuals in the sample, as well as assessment/analysis of the systemic data.
The Independent Reviewer previously reported that the Commonwealth’s third-party contractor planned to complete 400 individual and family interviews as well as fifty provider reviews. The sample of individuals was selected to ensure regional representation, while taking into account certain demographics (e.g., service type), to ensure that large enough numbers of individuals are surveyed to allow for statistically valid conclusions.
Prior to the Commonwealth’s implementation of its planned QSR process, the Independent Reviewer reviewed and expressed concerns about the draft audit tools that the third-party contractor planned to use. The Independent Reviewer’s concerns (e.g., lack of standards, lack of definition of terms) were not addressed in the versions of the tools that were used. The Independent Reviewer has the following concerns with the QSR audit tools that were used:
 Lack of Definition of Standards/Terms: Only audit tools with well-defined standards can ensure inter-rater reliability and articulate clear expectations for providers. Although some of the tools include a column entitled “standards,” these often consist of vague statements that do not set forth specific expectations (e.g., “The provider supports the person to progress towards desired outcomes,” or “The provider has safety protocols and plans needed to help the person stay safe.”). Broad statements such as these frequently result in varied interpretations by both auditors and providers.

	
  

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 Lack of Definition of Methodology: Similarly, the QSR audit tools did not consistently identify the methodology that auditors would use to answer questions. For example, at times, the indicators included in the observation tools appear to require additional document review. For example, for the expectation that the “Person’s health concerns are addressed,” the audit tools for the record review do not identify the expected data source in order to answer the question (i.e., where in the provider records would one expect to find the necessary documentation).
 Lack of Criteria for Compliance: The third-party contractor provided reports that indicated whether or not providers had “met” or “not met” requirements, but the audit tools did not explain how these ratings were determined. The lack of criteria for determining compliance raises significant questions regarding the validity of the findings. The audit tools generally include numerous indicators. Most of the tools include columns with “suggested protocols” and “standards,” but explanations are not provided regarding how a provider will be determined to “meet” the requirements. DBHDS staff, who also identified this as a concern, are working with the contractor to address this shortcoming in the audit tools. They have developed a draft spreadsheet, entitled VA Tools – Driver Indicators (September 21, 2016), as an attempt to connect the questions within the contractor’s eight audit tools with DBHDS’s eight Domains and overall standards. The contractor would pair the Driver Indicators with a Likert scale to assist reviewers to determine the extent to which the standard was met. Even with this approach, however, it was difficult to understand how success at meeting requirements would be measured in a valid and reliable manner.
 Auditor Assessments of Clinical Adequacy without Clinical Qualifications: The audit tools cover a wide variety of topics, including healthcare and behavioral supports. None of the QSR reviewers, however, are reported to have clinical qualifications. Judgments regarding the adequacy and appropriateness of behavior support plans, nursing care, clinical and medical supports, etc. would generally require an auditor with specific qualifications, such as a psychologist/Board Certified Behavior Analyst (BCBA), a nurse, and/or physical and nutritional management experts. The lack of qualifications of the staff auditors who made these assessments raises questions regarding the validity of the findings.
 Missing Components: The audit tools do not comprehensively address services and supports to meet individuals’ needs, particularly regarding clinical services. For example, the lack of indicators to assess the quality of clinical assessments and the services provided raises questions regarding the validity of the findings.
Regarding inter-rater reliability, the process that the contractor described is not consistent with standard practice. Specifically, the contractor indicated that, after a new reviewer completes orientation training, he/she shadows a lead reviewer. Initially, a lead reviewer conducts a review with a new reviewer; the new reviewer does not ask any questions or look at additional documents. They both score the tools, and then discuss the results. The roles are then reversed; this process is repeated at least annually. This process does not provide an accurate determination of inter-rater reliability. The problems with this process include: 1) reviews, except for observations, should be completed independently, given that part of the reconciliation process should be to determine whether inconsistencies are due to reviewers looking at different documents or data sources; and 2) inter-rater reliability should be tested between reviewers, not just between a lead reviewer and a new reviewer.

	
  

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The third party contractor issued its first Quality Services Review Assessment on September 7, 2016. This assessment clearly showed a substantial amount of work. In summarizing the results of the Person-Centered Reviews (PCRs), it stated:
“While needs in general appear to have been met for individuals (93.3%), a Person Centered approach was not always employed (76.9%); individuals were often not receiving services in the most integrated setting appropriate to the person (84.3%) or participating in the community as desired (84.5%).”
Unfortunately, it is not clear whether these findings were accurate. The lack of confidence in the accuracy of these findings is due to the above-identified problems with the validity of the tools and the process, with the reliability of data collected, and with the lack of clinical qualifications of the reviewers. To have confidence in the accuracy of the QSR findings, additional work is needed to improve the QSR audit tools and to develop and implement an inter-rater reliability process that is consistent with applicable standards. An important missing piece is the lack of clinical reviews of the selected individuals’ physical, therapeutic, and behavioral health supports and outcomes.
Summary of Quality and Risk Management: The independent consultant reported that there continues to be support within DBHDS for developing a strong quality improvement system. At this time, however, it is clear that significantly more work and much more progress is required to achieve compliance. A number of significant challenges remain. The Commonwealth’s staff recognize that to achieve a comprehensive quality improvement system that is in compliance with the Agreement, DBHDS will need to partner with and implement the elements of the system with the CSBs and its private providers. This area requires considerable work. In addition, an overarching theme continues to be the need to expand the scope of available data in order to allow comprehensive and meaningful quality improvement and risk management initiatives to occur. Revisions to the DBHDS regulations are essential to ensure that the Commonwealth’s requirements of service providers align with the provisions of the Settlement Agreement.
The Commonwealth remains in non-compliance with Section V.I.1-4.
7. Safety and Risk of Harm
The Independent Reviewer retained a two-person team of consultants, including a Registered Nurse, to assess the Commonwealth’s status with provisions of the Agreement related to safety and risk of harm.
Several of the Quality and Risk Management provisions require implementation of strategies and themes that are directly related to safety concerns and the goal of protecting the individuals receiving services from harm. The strategies include risk management, quality improvement and the capacity to investigate negative outcomes. The themes include the root cause analysis of negative outcomes and risk triggers/risk thresholds. In the Agreement, the Commonwealth committed to implement these strategies and themes and to require service providers to do so.

	
  

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The Independent Reviewer engaged the consultants to assess the status of the Commonwealth’s progress toward full implementation of these strategies and themes throughout its system of services. The study methodology involved the review of relevant documents and interviews with administrators/managers regarding quality improvement by the private providers, CSBs, and DBHDS. The consultants also studied thirty-five of the Independent Reviewer’s special Reports to the Court reviewing the serious injuries to and deaths of individuals who transitioned from Training Centers.
The Commonwealth’s draft Quality Improvement (QI) Plan (including Appendix H of its HCBS Waiver program application to CMS) describes its commitment to system improvement. The most recent version of the QI Plan describes the Commonwealth’s commitment to system improvement activities. These activities follow an analysis of aggregated discovery data, evaluation of system experience and actions to remediate negative outcomes.
The draft Plan describes a three-tiered approach to Quality Improvement: case management, Departmental, and third party. The Departmental tier includes the Quality Review Team (QRT), the Mortality Review Committee (MRC), and the Quality Improvement Committee (QIC) with five Regional Quality Councils (RQCs). The third tier is the contractor that completes Quality Service Reviews (QSR).
There are significant shortcomings in the implementation of the three-tier approach to Quality Improvement.
It is the experience and considered opinion of the Independent Reviewer that, on a daily basis, the direct service provider is the first layer or tier in an effective Quality Improvement system. Case managers may be considered the “eyes and ears” of those with an indirect role in QI, but should not be considered or depended upon as the trip wire for quality improvement on a daily basis. First, at the direct service level, there may be daily quality improvement opportunities; whereas, case managers typically visit individuals in their homes once every two months. A second reason that case managers should not be considered the first tier of a Quality Improvement system is that the Commonwealth currently prevents case managers from direct access to information that is important to reducing risks. Timely access to information about risks and negative outcomes is central to the required system of risk triggers that is intended to reduce harm. Yet, case managers do not have the authority to readily obtain CHRIS reports of serious incidents or injuries to individuals whose services they are assigned to monitor. They cannot review the findings from the investigations of these incidents to prepare for their quarterly reviews or annual service planning meetings. If the case manager becomes aware of the event or injury, then they may institute a process and “case management entities” may request a copy of the initial CHRIS report. The Independent Reviewer’s previous studies have found that case managers are already stretched to fulfill requirements to “assemble,” “assist” and “monitor,” or “to complete observations or assessments to identify an unidentified or inadequately addressed risk, injury, need, or change in status.” Also, case managers for individuals with complex behavioral and/or intense health care needs often lack the clinical expertise to assess healthcare risks or changes in behavioral status.
A second significant shortcoming in the Commonwealth’s three-tier approach is the absence of a full description in the Quality Improvement Plan of the first line role of the provider of direct services in quality improvement. The Agreement requires every provider to develop and implement a quality improvement program and to report incidents; complete root cause analyses; verify implementation of corrective action plans and collect and provide data, etc. Some of this information is in the QI Plan

	
  

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section entitled “Provider Record” and DBHDS staff do understand the central daily role that direct providers fulfill in assuring quality. As written, however, the QI Plan does not reflect the day-to-day reality that the trip-wire layer of Quality Improvement is within each direct service provider. It is the Independent Reviewer’s experience and opinion that when the first tier of effective quality improvement exists at the transactional level, between individuals and support staff, then services to individuals improve. While DBHDS has worked internally to plan and develop QI systems, these efforts do not appear to have yet reached the providers who provide direct serves to individuals with ID/DD.
Another shortcoming of the Commonwealth’s Quality Improvement process appears to be the absence of clear lines of accountability and parameters of responsibility. In the QI processes that were reviewed, DBHDS did not include “chartering” or “charging” strategies to the QI teams to ensure that their purposes, expected outcomes and timelines are clear and well understood. The Quality Improvement Plan does not adequately define the relationships between Committees, work groups and Councils. This lack of clarity contributes to these groups being uncertain about the outcomes and timelines expected for their work products. For example, the relationship between the Quality Review Team and the Quality Improvement Committee is not clear, since both appear authorized to implement improvement activities independently of each other. Clear directions regarding purpose and expected outcomes should also govern time-limited QI projects. Finally, the Quality Improvement Plan does not define the process for tracking the work products of its Committees, Teams and Councils. Tracking is necessary to ensure that quality improvement tasks are implemented and accomplished as planned and, if not, to ensure that the lack of implementation is recognized and appropriate corrective measures are considered and taken. The consultants did not find that DBHDS had dependable processes in place to ensure that Committee/Council recommendations were assessed, responded to and/or acted upon. The new Assistant Commissioner for Quality and Risk Management is aware that the draft Quality Improvement plan requires revisions which he intends to make during the tenth review period.
DBHDS is in non- compliance with Section V.E.2.
The Independent Reviewer recommends that the central role of the direct service provider be identified and fully described as the first tier of the Quality Improvement Plan. The Independent Reviewer also recommends that case managers for individuals with intense medical and behavioral needs have:
 Immediate access to all information related to the risks to individuals on their caseload;  Qualifications that reflect the clinical expertise needed; and  Case loads that reflect the additional work required to ensure that services are delivered as planned and with expected results.
Service Provider focus on Safety The independent consultant team’s assessment of service provider focus on safety was based on personal interviews with the staff who were designated as the responsible administrators or as the quality management managers of three Community Service Boards and seven private providers. All of these agencies provide day, residential or case management services in one or more Regions. These ten agencies provide services in three of Virginia’s five health planning regions: Region I (central), Region III (southwest) and Region V (Virginia peninsula). The Agreement requires the Commonwealth to establish “uniform risk triggers and thresholds” to enable providers, with the oversight of DBHDS, to “adequately address risks of harm.”

	
  

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As previously reported, the Commonwealth has been working to develop the required “risk triggers and thresholds” for more than three years. It has developed and completed initial training modules including those on root cause analysis. The training modules have been posted on the DBHDS website. In December 2015, these processes had not yet been implemented. The consultants’ review sought to determine whether the providers had in place quality improvement plans and programs, rather than to complete a qualitative assessment of these programs. The consultants’ review also explored whether providers were familiar with the concepts of “risk triggers and thresholds” and with “root cause analysis.”
The consultants found that there was significant variability in the quality assurance processes at the service provider level. All three CSBs (100%) had Quality Management Plans, but only two of the seven private providers (28.8%) had formalized QI plans or processes in place. Regarding root cause analysis, only two of the CSBs (66.7%) and two of the private providers (28.8%) were familiar with the concepts. The review found a pattern of larger agencies with formalized processes in place, while smaller agencies had not yet incorporated a commitment to system improvement into their processes. The review did not find directives from the Commonwealth to the providers regarding the development and implementation of these required approaches. It appears, therefore, that the extent of provider development of QI processes was not in response to the Commonwealth’s efforts to implement these provisions of the Agreement. Under the DBHDS draft proposed Office of Licensing Services (OLS) regulations, all providers would have to establish and implement formalized “quality improvement programs that include root cause analysis, as required by the Agreement.” The Commonwealth’s efforts through the ninth review period, however, appear insufficient to influence CSB and private provider understanding and performance.
Finally, the fundamental building block of an effective risk management and quality improvement system is a competent investigation of the facts of serious incidents. The consultants’ review found that provider understanding of the investigation process pursuant to online investigation training was also variable. For example, one CSB Quality Management manager was not familiar with the DBHDS requirements or the online investigation training at the “Human Rights for Service Providers” tab on the DBHDS website.
The Commonwealth’s development of a system of services fully committed to quality improvement and protection from harm is incomplete and has only partially been implemented. The Commonwealth’s efforts to date have not significantly influenced the development or implementation of Quality Improvement programs, of root cause analysis, or of risk triggers and thresholds.
Licensing Specialist Focus on Safety One member of the consultant team interviewed six Licensing Specialists to assess their awareness of the concerns for safety and for protecting individuals from harm. The Licensing Specialists reported the following:
 All of those interviewed stated that they “know their providers” and monitor more closely those with histories of performance problems. None, however, reported using an objective, data driven review to analyze incident and event data over time, places and individuals. Two Licensing Specialists (33.3%) indicated that the Data Warehouse can be utilized to obtain information about a provider, but also reported that they have found that it is not user-friendly and that they have not yet received training regarding its use.

	
  

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 All of those interviewed were aware that DBHDS had some sort of safety/risk management committee, but none were aware of its duties. Two Licensing Specialists (33.3%) reported knowing that there is a Quality Improvement Plan; none, however, were aware of what was in the Plan.
.  All of those interviewed create Corrective Action Plans within fifteen days after a health or safety issue/regulatory violation is identified. All of the Licensing Specialists interviewed complete follow-up reviews within forty-five days to determine whether the Corrective Action Plan (CAP) has been met, as required by the OLS.
 All of those interviewed were aware of DBHDS Safety Alerts and took steps to share the information. All of those interviewed expressed concerns that, although Alerts are sent to each organization, the contents of the Alert might not get to the direct support staff.
 All of those interviewed were aware that they “can” pursue a provisional license for a provider if it does not fulfill the requirements of a CAP or of a second CAP related to the same regulatory violation. All of the interviewed Licensing Specialists, however, acknowledged that “obtaining” a provisional license is extremely difficult, is very labor intensive and is very slow to occur. None of those interviewed had initiated sanctions that involve the pursuit of either a provisional license or license revocation.
 Five of the six Licensing Specialists interviewed (83.3%) do not use the entire root cause analysis process. Three of those interviewed (50%) reported using part of the process when developing CAPs.
 All of those interviewed were uninformed about and unfamiliar with risk triggers and risk thresholds.
 None of the Licensing Specialist interviewed recalled receiving feedback about their investigations, but all would like and benefit from feedback.
 Four of the Licensing Specialists interviewed (66.6%) commented that providers would benefit from investigation training.
The Licensing Specialists believe that they contribute to making needed service changes/improvements by maintaining good rapport with their assigned providers and by adjusting the frequency of their visits, as needed. They also believe that OLS has little actual power and cannot effectively sanction the few providers, who repeatedly fail to fulfill requirements, because the available sanctions are too difficult to utilize. Licensing Specialists would like more training to increase their skills and consistency. They identified training needs for themselves in the use of the Data Warehouse, for providers on writing Corrective Action Plans, and for both providers and OLS staff on investigations.
The Commonwealth has recently funded additional staff positions, which will allow OLS to implement the role of Regional Supervisors.

	
  

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Serious Incident Analysis The Agreement requires that the Commonwealth notify the Independent Reviewer of the death of or serious injury that requires on-going medical care to any former resident of a Training Center who moved to a community setting under the Agreement. For the review of Safety, the consultant team studied the thirty-five most recent special Reports completed by the Independent Reviewer of the reviews of the serious injuries and deaths that involved one of the 568 former residents. The Independent Reviewer’s Individual Services Review studies found that the former residents of Training Centers are, overall, significantly older and more disabled than the general population of individuals with intellectual disabilities. Seven of every ten of the randomly selected former residents were age fiftyone or older; four use wheelchairs, and seven use gestures as their highest form of communication.
The age profile and level of disability of the individuals who has moved from Training Centers is relevant for several reasons. Age is the most significant factor in mortality rates. Research has also established that adults with intellectual disabilities have poorer physical health, receive poorer quality health care, have elevated mortality rates, and shorter life expectancies than people without intellectual disability.
Recommendations from the Independent Reviewer’s Special Reports are recapped at the end of Appendix D. The recommendations included two or more times in these special Reports, listed most to least, were that DBHDS should:
 Establish minimum investigation standards for OLS for use in the review of deaths and serious incidents;
 Develop a script for case managers and/or providers to use to encourage next of kin to agree to autopsies to determine the causes of unexpected deaths;
 Conduct root cause analysis of selected events when there are negative outcomes for individuals;  Develop collateral agreements to share/release/disclose investigative findings with relevant sister
agencies (Adult and Child Protective Services, Public Health, etc.);  Maintain a statewide registry of Stage 2 or higher decubitus ulcers for those individuals living in
settings other than their own or family home; and  Cite providers who report serious incidents later than the required “within 24 hour notice.”
Of the thirty-five Special Reports of reviews of serious injuries or deaths of the individuals who moved from the Training Centers, twenty-four of the Reports were of deaths. Nine of the deaths occurred within one year of discharge. It could not be established whether these deaths were a result of: 1) the individual being high-risk, regardless of where he/she lived; 2) inadequate transition planning (discharge and post move); or 3) substandard care and treatment from their provider or from their community-based physician, Emergency Rooms or hospitals where they received medical care. It is likely that one or more of these factors were present for different individuals at different times. The Independent Reviewer recommends that the Mortality Review Committee gather more complete information and make these assessments. The Mortality Review Committee should use their findings to determine problems at the individual service level and systemic patterns and trends. The consultants found that causes of death among this group of individuals are similar to those identified in other states. (See Appendix D, Table 2 for data regarding the thirty-five incidents.)

	
  

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Health and Wellness Initiatives A key to developing systems of care committed to protecting individuals from harm and to ensuring their well being is a proactive effort to ensure good health through competent nursing and medical care. DBHDS has developed and implemented the Health Services Network (HSN) to help Community Service Boards (CSBs) and private service providers to build such systems and to meet the healthcare needs of individuals who require intense medical supports. Four full-time equivalent nurses, RN Care Consultants (RNCC), lead the Network. During 2016, the HSN has been involved in a wide range of proactive initiatives and actions in reaction to the identification of possible concerns. The HSN initiatives have included:

 Providing on-site technical assistance to service providers and major pharmacies;  Providing one-day trainings on supporting individuals with complex health care needs;  Providing consultation to agencies on the access to and coordination of local health services;  Participating in investigations at the request of CSBs;  Completing post-move monitor visits and on-site trainings;  Developing an Oral Health program for direct support professionals (DSPs);  Creating and distributing oral health brochures;  Establishing a Fixed Rate Dental Program in two of the five Regions;  Partnering to provide education seminars to dentists and oral hygienists;  Consulting to case managers, upon request;  Developing a Daily Health Checklist and a new orientation manual for DSPs;  Coordinating monthly Community Nursing Meetings in all five Regions;  Developing regional Skin Care Workshops; and  Providing mobile rehabilitation utilizing two newly purchased and equipped vans.
The Health Support Network is in the process of defining outcomes that it will track to determine whether, and to the extent that, the HSN positively impacts improvement in health care. For the period of serious injuries and deaths that were reviewed by the Independent Reviewer and then included in this study, the DBHDS Health Support Network’s efforts had not reached the providers or impacted the services provided. Although it is not possible to document the specific connection with the work of the HSN, the Individual Services Review study found improved health care outcomes and fewer areas of concern for individuals who transitioned from Training Centers during 2016, the period when the HSN was implementing these initiatives.
The DBHDS Health Services Network has made significant initial efforts to support, and to build the capacity of, community providers to serve individuals with challenging and/or intense healthcare needs. This is particularly so in the Dental and Oral Health care arena, where HSN is piloting best practice models of efficient care. This is especially important as the Individual Services Review study has found previously, and again during the ninth review period, that dental services and dental care are areas of important concern.
Individual, incident, and mortality reviews have found that Emergency Rooms and hospitals involve difficult transaction points for providers and for case managers. Emergency Rooms need to understand the current health status and medical histories of individuals with ID/DD, who typically cannot provide this information without assistance. Frequently, local hospitals do not have the relationships with local providers and case managers that are critical to ensure comprehensive and timely discharge planning.

	
  

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The DBHDS Health Services Network is challenged to sustain support to provider agencies in all Regions and on all health care fronts. These efforts are worthy of significantly more resource investment, especially during a period when service providers are not yet implementing many of the quality improvement requirements of the Agreement. It is positive that DBHDS reports having received a little more than $1.2 million added to its base budget in Fiscal Year 2017 for expansion of the DD Health Services Network. At the time of this Report, DBHDS was in the process of hiring more RN Care Consultants.
8. Mortality Review
The Independent Reviewer prioritized completing a full review of the DBHDS mortality review process during the ninth period. The scope of the planned study was reduced, however, due to the intense workload of the DBHDS Quality and Risk Management staff. Their workload, beyond ongoing projects, is due to implementation of the redesigned HCBS Waiver programs and to requests for documents and interviews for two other Independent Reviewer studies. This evaluation, therefore, was limited to a review of available documents. These documents included the 2013 and the 2014 Annual Mortality Report (both labeled “draft”), the minutes of Mortality Review Committee meetings (February 2015 – June 2016), and the Mortality Review Committee tracking databases. The review of available documents provides an initial determination of the quality, scope, and completeness of the mortality review process. The documents lacked information needed for a thorough document review study. The MRC has still not published a final Annual Report for either calendar year 2013, 2014 or for Fiscal Year 2015. It was unclear whether MRC annual reports were finalized, and if so, whether these reports were made available to the public. The Independent Reviewer will request the Commonwealth to provide more complete information during the tenth review period. In addition, questions that cannot be answered with the document-only review will be addressed in the full review that will be planned for the tenth review period.
The DBHDS Mortality Review Committee (MRC) was established in 2013 under the direction of its Medical Director. At that time, the membership of the MRC possessed appropriate experience, knowledge and skills, and met the membership requirements of the Agreement.
The DBHDS Annual Mortality Report 2014 (draft) outlined the process that the MRC developed for mortality reviews. The intent of the DBHDS mortality review process includes a review of deaths “of all individuals with intellectual disabilities or developmental disabilities for whom a licensed provider has direct or oversight responsibility.” Providers of community-based licensed settings are required to report deaths to the Office of Licensing within 24 hours. Training Centers are expected to report deaths within twelve hours. The DBHDS Medical Director reviews available information about both expected and unexpected deaths to determine the need for a mortality review. The DBHDS process includes collecting additional information and convening its Mortality Review Committee to review this information within 90 days of the death. The MRC would then determine whether the death should be categorized as “expected” or “unexpected” and whether additional steps should be taken. These additional steps could include: 1) requesting additional information; 2) communicating identified issues to the provider; 3) issuing a Safety and Quality Alert to providers regarding an identified risk; 4) establishing a subcommittee to study or take action regarding an identified risk; 5) making recommendations to the Quality Improvement Committee to reduce the risk of death; or 6) taking other actions, not further specified.

	
  

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The draft 2014 Annual Mortality Report indicates that the Mortality Review Committee would then give these outcomes (findings, recommendations, etc.) to a DBHDS quality management committee and to the Commissioner for review and action.

DBHDS created a uniform death review and reporting system for individuals who live in Training Centers and in community residential programs. Medical professional participation was an integral part of this process. One of the goals of the MRC was to develop a database and to analyze the data to determine any risk trends. Once trends were identified, strategies were to be developed to reduce the risks identified. Training needs were also to be identified. The end result was for the MRC to provide an annual public report concerning mortality review data for individuals with ID/DD.

In 2015 and in 2016, the Mortality Review Committee categorized some cases as “pending” after its

initial review (see Table 6 below). In 2015, of the forty-eight cases that were initially categorized as

“pending,” seventeen mortality reviews had no further information collected and were not closed at the

end of the calendar year. In contrast, as of June 30, 2016, the MRC had closed all but one case. Of the

fifty pending cases in 2015 and 2016, only thirty-two (64%) had been closed. The MRC records the

original date of the mortality review in the MRC Tracker database. It was not possible, however, to

“track” which pending cases were followed through to closure. It is not possible, therefore, to

determine that the Commonwealth had met the Agreement’s requirements to “prepare and deliver to

the DBHDS Commissioner a report of deliberations, findings, and recommendations.” Most of the

mortality reviews were not completed “within ninety days of a death.”

Table 6

# of Deaths Reviewed – Outcomes - Actions

Year

# Deaths Outcome – Outcome

Pending Action steps

reviewed

pending

blank

resolved / alerts, etc.

2015

307

48

15

31

75

2016, through June

134

2

8

1

14

Limited available information was the most common reason that the MRC decided “pending” status. This reflects the MRC’s continued challenges to obtain adequate information from which to complete its mortality reviews. Various MRC minutes indicated that some efforts to obtain additional information have occurred. For example, as of June 10, 2016, the MRC succeeded in gaining access to autopsy results and to death certificates. The Independent Reviewer understands that DBHDS requested, but other state agencies denied, access to additional information related to the deaths of members of the Settlement Agreement’s target population. The available MRC documents did not indicate whether DBHDS has taken additional actions to secure the information needed to complete the mortality review.

The Agreement requires the MRC members to “possess appropriate experience, knowledge, and skills”, as determined by the Commonwealth; and for “at least one member with the clinical experience to conduct mortality reviews who is otherwise independent of the State.” The MRC is required by the Agreement to “conduct monthly mortality reviews for unexplained or unexpected deaths” and to do so “within ninety days.” Tables 7 through 12 below provide information regarding the MRC’s determinations of “expected” and “unexpected” deaths (Table 7); the months when the MRC did not meet (Table 8); the member attendance at MRC meetings (Table 9); the members’ areas of expertise (Table 10); and the percent of mortality reviews completed within ninety days (Table 11)

	
  

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Table 7

# of Expected and Unexpected Deaths

Year

Total

Expected deaths

2013*

179

56

2014

226

75

2015

290

92

2016 (through June)

164

53

• From 2014 Annual MRC Report DRAFT

Unexpected deaths 123 (68.7%) 151 (67.8%) 198 (68.3%) 111 (67.7%)

Year 2015 2016 (through June)

Table 8 MRC Meetings
# Meetings 12 7

Months without a meeting Jan, Aug, Sept, Apr, May

Year 2015 2016 (through June)

Table 9 MRC Member Attendance
Attendance range at meetings 5-10 6-12

Average attendance 7.4 7.4

Year
2015 2016 (through June)

Table 10

MRC Member Expertise

MD

Clinical Nurse

Psych/ behav/ mental health

Data analyst

QA/QI/ risk mgmt

2

2

2

2

2

1

2

1

2

1

Education Other No info

1

1

6

1

1

7

Table 11

MRC Mortality Reviews Completed within Ninety Days

Year

Within 90 days

Exceeds 90 days

% compliance

2014

123

103

54.4%

2015

71

216

24.7%

2016 (through June)

37

127

22.6%

The Mortality Review Committee minutes (see Table 9 above) indicate that the MRC met an average of twelve or more times per year, but that these meetings did not occur monthly. There were no MRC meetings during two consecutive months in 2015 (August-September) and again in 2016 (AprilMay). The months when the MRC did not meet added to the number of reviews which were not completed by ninety days and, thus, became overdue. In 2015 and 2016, a significantly smaller percentage of mortality reviews was completed within ninety days of the reported deaths than in 2014.

	
  

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The Agreement also requires that “Within ninety days of a death, the monthly mortality review team shall: (a) review or document the unavailability of: (i) medical records, including physician case notes and nurses notes, and all incident reports, for the three months preceding the individual’s death; (ii) the most recent individualized program plan and physical examination records; (iii) the death certificate and autopsy report; and (iv) any evidence of maltreatment related to the death;

(b) interview, as warranted, any persons having information regarding the individual’s care; and

(c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any.”

The MRC Mortality Tracker database indicated significant gaps (see Table 12 below) in important information that is needed to complete mortality reviews that will meet expected standards of quality. The columns in the database were blank for virtually all 679 reviews in 2014 through June 2016 for: the medical records, doctor’s notes, nurses notes, Individual Program Plans, physical examination records, death certificates and interviews. There was no apparent documentation that these records and interviews were not available or that the MRC specifically requested them. It is possible that the Mortality Tracker database did not reflect information that DBHDS had available and was used as part of its mortality reviews. DBHDS had custody of the majority of these documents for deaths at its Training Centers. Similarly, its providers had some of these records, which could have been obtained through reviews by Licensing Specialists. The MRC Tracker database indicated that these documents were not reviewed for most of the death reviews. For the maltreatment data in the Tracker, an additional indicator beyond the current “No” entry is needed. The correct interpretation of the entry “No” was not clear. Two very different interpretations were possible: “No” could mean that no data were collected or that data were collected but indicated no maltreatment.

Table	
  12	
  

MRC	
  Mortality	
  Data	
  Tracker	
  	
  

Annual	
  Summary	
  of	
  Records	
  Reviewed	
  and	
  Interviews	
  Completed	
  

Year

#

Med.

Cases Rec.

Drs’ notes

Nurses’ notes

IRs ISP/ Mal IPP tx data

Phys. Exam. record

Death autopsy certif.

2014 226 0

0

0

00 0

0

4

1

2015 289 1

1

1

289 3 40

0

2

1

2016* 164

1

1

2

164 2 39

1

15

5

* through June

Interview
0 0 3

During the ninth review period, the membership of the Mortality Review Committee (MRC) did not comply with the requirements of the Settlement Agreement. The MRC did not have a member who has clinical experience in mortality reviews and is independent of the Commonwealth.

For 2016, it appears that the MRC changed its protocol regarding closing cases. During the first six months of 2016, the MRC rarely categorized a case as “pending.” Instead, the MRC closed virtually all cases at the time of the initial review meeting. Many cases, however, appeared to have been closed despite a similar lack of the basic information needed to complete a mortality review that occurred in 2015. The available documents indicate that, during the first half of 2016, the Mortality Review Committee frequently made final mortality review decisions based on limited information and with no further follow up. When the MRC closes cases without adequate information, its deliberations cannot include informed findings and recommendations. With a significant percentage of cases closed without

	
  

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adequate information and deliberation, the MRC cannot effectively identify problems at the individual service level or the systemic trends and patterns.
The Commonwealth’s Mortality Tracker and the MRC meeting minutes do not include sufficient records to document that the requirements of the Agreement are being properly implemented. Also, the available records do not indicate the efforts that the MRC took to gather the documents that are important for mortality reviews that meet expected quality standards. The MRC has not completed a significant percentage of mortality reviews within the ninety days required and has not completed mortality reviews of all reported deaths. It was not clear in the documents available for review whether these shortcomings represent gaps in the mortality review or gaps in documentation.
The Commonwealth is in non-compliance with Section V.C.5 and with IX.C.
IV. CONCLUSION
During the ninth review period, the Commonwealth successfully gained CMS approval for its proposed redesign of its HCBS waiver program. For three years, the redesign has been the Commonwealth’s primary strategy to come into compliance with many provisions of the Agreement. The Commonwealth structured the redesigned waiver program to reform the service system “to provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” The Independent Reviewer has consistently reported that a redesign of the HCBS waiver programs was an essential step toward achieving compliance. During the ninth review period the Commonwealth, CSBs, and private providers began the extensive and phased implementation of the recently approved redesigned waiver programs. The planned changes to, and the availability of, new service options are also just beginning, and will take a year of more to become available for many individuals with ID/DD and their families. The Independent Reviewer will determine compliance based on whether the new service options meet the requirements of the Agreement for the members of the target population.
The Commonwealth has long been aware that it must also make substantial changes to its regulations to effectively comply with the Agreement. The Independent Reviewer has consistently reported that the Commonwealth’s existing regulations require revisions to make progress toward compliance. Although, DMAS revised its HCBS waiver regulations as part of the HDBS waiver redesign, the Commonwealth has not yet revised its other regulations, such as the DBHDS licensing regulations and its human rights regulations.
The Commonwealth has continued to plan, to develop, and to implement new and reformed systems to move toward compliance with the provisions of the Agreement. Its efforts have newly achieved compliance with several provisions during the ninth period. It also sustained compliance with the provisions that it had achieved during previous review periods. The Commonwealth also began a range of provider development and capacity-building initiatives during the ninth period. These initiatives are needed to create new and additional service options, especially for individuals with intense medical and behavioral needs and for those with Autism Spectrum Disorders. The Independent Reviewer has reported previously his considered opinion that these planned efforts may not be sufficient to meet the needs of the individuals who require more intense services.

	
  

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DBHDS staff have continued to plan to put into effect the risk management and quality improvement provisions of the Agreement. The Commonwealth has not yet, however, implemented these provisions at the direct service level or informed service providers of the its expectations and the requirements of the Agreement. The direct service level is where these approaches are intended to reduce risks and to improve the quality of services for individuals with ID/DD. The Commonwealth’s strategy to move toward compliance with these provisions involves revising its regulations, which currently prevent it from acting in accordance with specific requirements of the Agreement.
The parties continue to negotiate outcome-timelines for several topic areas of the Agreement that lacked due dates and measurable outcomes. These topic areas include children with ID/DD live in large nursing facilities and Intermediate Care Facilities, Quality and Risk Management, integrated housing, and supports for individuals in need of intense behavioral and medical services and supports. By reaching agreement the parties will add needed definition to the measurable outcomes that will help the Commonwealth to accomplish the Agreement’s goals of community integration, self-determination, and quality services.
Summary: The Commonwealth’s leaders are pleased to have begun implementation of its redesigned HCBS waiver programs throughout the ninth review period. It looks forward to continuing its phased implementation plan during the tenth and eleventh review periods. They continue to express strong commitment to the implementation of the initiatives to develop new service options and to develop the capacity needed to achieve compliance. Although the Commonwealth has needed to revise some of its regulations since the beginning of the Agreement, there is increased urgency to do so.
The Commonwealth must revised its regulations to move toward achieving compliance with the quality and risk management provisions of the Agreement. Functioning quality improvement and risk management systems are especially needed during periods of systemic change. The Commonwealth is now in the beginning stages of implementing its redesigned waivers which it expects will create such systemic changes. These changes may have some unintended consequences for service providers and for the individuals and families served. Only with a fully developed quality improvement and risk management system will the Commonwealth be able to identify and to address complications that are inevitable with such a complex undertaking. An effective quality and risk management system is also necessary for the Commonwealth to comply with the requirements of the Agreement and to fulfill its promises to all Virginians, especially to those with intellectual and developmental disabilities and their families.
	
  
V. RECOMMENDATIONS
The Independent Reviewer’s recommendations to the Commonwealth regarding services for individuals in the target population are listed below. The Independent Reviewer requests a report regarding the Commonwealth’s actions to address these recommendations and the status of implementation by April 15, 2017. The Commonwealth should also consider the recommendations and suggestions included in the consultants’ reports included in the Appendices. The Independent Reviewer will study the implementation and impact of these recommendations during the tenth review period (April 1, 2017 –September 30, 2017).

	
  

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Case Management 1. The Commonwealth should establish guidelines for case managers to:
 Ensure that individuals are offered full employment opportunities, including the type of jobs and the number of hours they wish to work;
 Ensure meaningful discussions occur at least annually with individuals about employment; and  Develop possible employment and/or employment readiness goals to help individuals who
have not previously been involved with employment to explore possible interests and the options.
2. The Commonwealth should establish guidelines for the caseload sizes and credentials (i.e., specialized training, mentoring, etc.) for case managers for individuals with complex behavioral and/or intensive healthcare needs. These guidelines should ensure that these case managers have sufficient time to prioritize the monitoring function and the expertise to assess the status of identified and unidentified risks and to determine whether the individual’s support plan is being implemented appropriately.
3. The Commonwealth should remove the obstacles to a case manager pulling from the CHRIS incident and other databases any reports regarding the risks and negative outcomes for individuals on their caseload.
Crisis Services 4. The Commonwealth should:
 Document the number of individuals in the target population who are admitted to state operated psychiatric hospitals during each quarter;
 Establish clear criteria for determining when the diversions of admission to psychiatric hospitals are appropriate;
 Provide more detailed information about the causes of admissions and the reasons for longer stays;
 Determine the underlying cause for high vacancy rates in the Crisis Therapeutic Homes when there are members of the target population who likely need these services.
 Determine whether any individuals who REACH knows to be in crisis are admitted to psychiatric hospitals without an offer of an alternative placement in crisis stabilization programs;
 Make public its retrospective reviews of psychiatric hospitalizations available; and  Report on the status of implementation of the recommendations made as a result of the two
retrospective reviews of psychiatric hospitalizations during 2015.
Office of Licensing Services 5. DBHDS should establish protocols to ensure that Licensing Specialists automatically address in their investigations the safety of other individuals living with an individual whose negative outcome is being reviewed. In their investigation reports, Licensing Specialists should state the affirmative, if accurate, that no “risks to others in the home/program were found.”’
Mortality Review and Investigation of Serious Incidents 6. The Commonwealth should make a concerted effort to ensure that it effectively completes in a timely manner the basic step of obtaining adequate information for a quality mortality review. The Commonwealth should make additional efforts to ensure provision of documents in its custody or control to allow completion of the mortality reviews.

	
  

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7. DBHDS should establish minimum standards for OLS’s investigation processes and reports. The MRC should clarify whether Licensing Specialists are part of the mortality review. If so, the MRC should establish guidelines to ensure that Licensing Specialists review doctors’ and nurses’ records and to complete interviews needed for the mortality review. Licensing Specialists should have access to and utilize the medical expertise required to for a qualified assessments of records and interviews.
8. The Mortality Review Committee Tracker database should include sufficient information to document that the Agreement’s requirements are being properly implemented. The database should:
 Provide a date when each review is closed;  Identify either that the required documents were available and reviewed or were not available;  Include data regarding to whom and when requests were made for required documents;  Include whether recommendations were made to improve services;  Track whether recommended actions steps were taken.
9. Although not required by the Agreement, a more well rounded Mortality Review Committee membership would likely assist in obtaining more complete and more timely information. It would also provide additional insights into identifying problems and developing recommendations. These additional representatives would provide more perspectives when deliberating and interpreting the findings. They might also assist in developing processes to obtain additional information. More complete information will result in improved analysis and recommendations to reduce avoidable deaths and mortality rates. DBHDS should consider adding members who represent Adult Protective Services, the Medical Examiner’s/ Coroner’s Office, one or more individual/family advocacy associations, legal counsel from DBHDS, a member of the Virginia Department of Health who oversees nursing homes, DMAS (Department of Medical Assistance Services), etc.
Quality and Risk Management 10. DBHDS should establish a regional count and monitor the status of individuals with ID/DD who experience decubitus ulcers at Stage two to four.
11. The DBHDS Health Support Network should develop and market “best practices” tools for Emergency Room visits and for local hospital discharge planning for case managers and providers.
12. The Commonwealth should:  Continue to identify and/or develop relevant sources of data for the eight Domains;  Establish a definition for each measure developed for each Domain;  Identify the data source and specify the data collection methodology;  Determine baselines to allow changes to be determined.
13. The Commonwealth should ensure that the QSR process includes valid tools and processes. The QSR process should include:
 Definitions of standards and of the methodology that auditors use to answer questions;  Written criteria for determining compliance;  Audit tools that comprehensively address services and supports to meet individuals’ needs,
particularly regarding clinical services;  Auditors with clinical qualifications to complete the required clinical assessments of adequacy;
and  Use an inter-rater reliability process that is consistent with standard practices.	
   	
  

	
  

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I. APPENDICES

A.

INDIVIDUAL SERVICES REVIEWS

B.

CRISIS SERVICES

C.

SUPPORTED EMPLOYMENT

D.

TRANSPORTATION

E.

QUALITY AND RISK MANAGEMENT

F.

SAFETY AND RISK OF HARM

G.

LIST OF ACRONYMS

	
  

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APPENDIX A.
INDIVIDUAL SERVICES REVIEWS
April 7, 2016 - September 30, 2016
Completed by: Donald Fletcher, Independent Reviewer/Team Leader
Elizabeth Jones, Team Leader Rebecca Wright, Team Leader
Marisa Brown RN, MSN Barbara Pilarcik RN BSN
Shirley Roth, RN MSN Kimberly Chavis RN BSN Julene Hollenbach RN BSN NE-BC

	
  

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Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 77 of 179 PageID# 7032 	
  

Demographic Information

Sex Male Female

n

%

15

57.7%

11

42.3%

Age ranges Under	
  21 21	
  to	
  30 31	
  to	
  40 41	
  to	
  50 51	
  to	
  60 61	
  to	
  70
71	
  and	
  over

n

%

0

0.0%

0

0.0%

4

15.4%

5

19.2%

11

42.3%

2

7.7%

4

15.4%

Levels of Mobility Ambulatory	
  without	
  support
Ambulatory	
  with	
  support Total	
  Assistance	
  with	
  walking
Uses	
  wheelchair

n

%

11

42.3%

1

3.85%

1

3.85%

13

50.0%

Relationship with Authorized Representative

n

Parent or Sibling

18

Other Relative

5

Other e.g. friend

2

Public Guardian

1

% 69.2% 19.2% 7.7% 3.8%

Type of Residence ICF-ID
Group home Sponsored home
Own home

n

%

3

11.5%

21

80.8%

1

3.8%

1

3.8%

Highest Level of Communication

n

Spoken language, fully articulates without assistance

2

Limited spoken language, needs some staff support

7

Communication device

2

Gestures

10

Vocalizations, Facial Expressions

5

%
7.7% 26.9% 7.7% 38.5% 19.2%

	
  

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Demographic Information

Individuals who transitioned from Virginia’s Training Centers
Five Individual Services Review Studies of 193 Individuals who moved between 7/1/2012 and 6/22/2016

NOTE: The Individual Services Review Studies randomly selected 138 former residents of the Training Centers who transitioned to live in community-based homes. They were selected from a cohort of 191 individuals who had moved from Training Centers between October 2011 and June 2016. These individuals live in all five of Virginia’s Health Planning Regions. The random selection of 138 individuals gives 90% confidence that the findings from these study can be generalized to the larger cohort.

Individual Services Review Studies

1st period 3/6/12 – 10/6/12

3rd period 4/7/13 10/6/13

5th period 4/7/14 10/6/14

7th period 4/7/15 10/6/15

9th period 4/7/16 9/30/16

Totals 1st, 3rd, 5th, 7th
and 9th periods

# of Individuals studied (# in the cohort)
Gender
Age Ranges
Levels of Mobility
Highest Level of Communication
Type of Residence
Relationship w/ Authorized Representative

32
(cohort=58)
21 (65.6%) males
20 (62.5%) age
fifty-one or older
12 (37.5%) use
wheelchairs 25 (78.1%)
use gestures
Information Not
collected
Information Not
collected

28
cohort=42)
16 (57.1%) males
21 (75%) age
fifty-one or older
13 (46.4%) use
wheelchairs
19 (67.8%) use
gestures
24 (85.7%) live in
congregate residential programs
21 (75%) AR
is his or her parent or sibling

28
cohort=42)
13 (46.4%) males
22 (78.5%) age
fifty-one or older
11 (39.3%) use
wheelchairs
18 (64.3%) use
gestures
26 (92.9%) live in
congregate residential programs
24 (85.7%) AR
is his or her parent or sibling

24
(cohort=42)
16 (66.7%) males
17 (70.9%) age
fifty-one or older
9 (37.5%) use
wheelchairs
17 (70.8%) use
gestures
21 (87.5%) live in
congregate residential programs
22 (91.6%) AR
is his or her parent or sibling

26

138

individuals

(cohort=48) (cohort = 232)

15 (57.7%)

81 (58.7%) males

17 (65.4%) age
fifty-one or older

97 (70.3%) age
fifty-one or older

13 (50.0%) use
wheelchairs
15 (57.7%) use
gestures

58 (42.0%) use
wheelchairs
94 (68.1%) use
gestures

24 (92.3%) live in
congregate residential programs
18 (79.2%) AR
is his or her parent or sibling

95 (89.6%) live in
congregate residential programs
85 (80.2%) AR
is his or her parent or sibling

	
  

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Discharge Planning

Discharge Planning – positive outcomes

Item

n

Y

Did the individual and, if applicable, his/her

26

96.2%

Authorized Representative participate in discharge

planning?

Was the discharge plan updated within 30 days prior

26

96.2%

to the individual’s transition?

Did person-centered planning occur?

26

100.0%

Were essential supports described in the discharge

26

100.0%

plan?

Did the discharge plan include an assessment of the

26

100.0%

supports and services needed to live in most integrated

settings, regardless of whether such services were

currently available?

Was provider staff trained in the individual support

26

100.0%

plan protocols that were transferred to the community?

Does the discharge plan (including the Discharge Plan

26

100.0%

Memo) list the key contacts in the community,

including the licensing specialist, Human Rights

Officer, Community Resource Consultant and CSB

supports coordinator?

Did the Post-Move Monitor, Licensing Specialist, and

26

100.0%

Human Rights Officer conduct post-move monitoring

visits as required?

Were all medical practitioners identified before the

26

100.0%

individual moved, including primary care physician,

dentist and, as needed, psychiatrist, neurologist and

other specialists?

Was it documented that the individual and, as

26

84.6%

applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals

currently living in the community and their families?

Was it documented that the individual, and, if

26

100.0%

applicable, his/her Authorized Representative, were

provided with information regarding community

options?

N 3.8% 3.8% 0.0% 0.0% 0.0%
0.0% 0.0%
0.0% 0.0%
15.4%
0.0%

CND 0.0% 0.0% 0.0% 0.0% 0.0%
0.0% 0.0%
0.0% 0.0%
0.0%
0.0%

Discharge Planning Items – areas of improvement

TRENDS – 2013 – 2014 – 2015 – 2016

3rd review period

5th review period

7th review period 9th review period

2013

2014

2015

2016

Was it documented that the individual and, as applicable, his/her Authorized Representative, were

provided with opportunities to speak with individuals currently living in the community and their

families?

14.3% (4 of 28)

64.3% (17 of 28)

50% (12 of 24)

84.6% (22 of 26)

	
  

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Discharge Planning Items – areas of concern

Item

n

Y

If a move to a residence serving five or more

14

42.9%

individuals was recommended, did the Personal

Support Team (PST) and, when necessary, the

Regional Support Team (RST) identify barriers to

placement in a more integrated setting?

If barriers to move to a more integrated setting were

6

50.0%

identified above, were steps undertaken to resolve

such barriers?

Were all essential supports in place before the

26 80.8%

individual moved?

N 57.1%
50.0%
19.2%

CND 0.0%
0.0%
0.0%

3rd review period 2013

Discharge Planning Items – areas of concern

TRENDS – 2013 – 2014 – 2015 – 2016

5th review period

7th review period

2014

2015

Were all essential supports in place before the individual moved?

78.6%% (22 of 28)

71.4%% (20 of 28)

87.5% (21 of 24)

9th review period 2016
76.9% (20 of 26)

Healthcare

COMPARISON Healthcare – positive outcomes improvement – 2013-2014-2015

3rd review period

5th review period

7th review period

9th review period

2013

2014

2015

2016

Does the provider monitor weight fluctuations, if applicable per the physician’s orders?

83.3% (20 of 24)

92.9% (26 of 28)

100% (24 of 24)

100% (26 of 26)

If weight fluctuations occurred, were necessary changes made, as appropriate?

77.8% (14 of 18)

88.0% (22 of 25)

68.8% (11 of 16)

100.0% (14 of 14)

Is there documentation of the intended effects and side effects of the medication?

66.7% (8 of 12)

75.0% (9 of 12)

66.7% (6 of 9)

85.7% (12 of 14)

	
  

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Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 81 of 179 PageID# 7036 	
  

Healthcare Items - positive outcomes

Item

n

Y

Were appointments with medical practitioners for

25

100.0%

essential supports scheduled for and, did they occur

within 30 days of discharge?

Did the individual have a physical examination

26 100.0%

within the last 12 months or is there a variance

approved by the physician?

Were the Primary Care Physician’s (PCP’s)

25 100.0%

recommendations addressed/implemented within

the time frame recommended by the PCP?

Did the individual have a dental examination within

26

the last 12 months or is there a variance approved

88.5%

by the dentist?

Were the medical specialist’s recommendations

21 100.0%

addressed/implemented within the time frame

recommended by the medical specialist?

If ordered by a physician, was there a current

7

100.0%

psychological assessment?

If ordered by a physician, was there a current

6

83.3%

speech and language assessment?

Is lab work completed as ordered by the physician?

24

95.8%

If applicable per the physician’s orders,

Does the provider monitor fluid intake?

17 100.0%

Does the provider monitor food intake?

14 100.0%

Does the provider monitor bowel movements

19 100.0%

Does the provider monitor weight fluctuations?

23 100.0%

Does the provider monitor seizures?

9

100.0%

Does the provider monitor positioning protocols?

7

100.0%

Does the provider monitor tube feedings?

6

100.0%

If applicable, is the dining plan followed?

16

87.5%

If applicable, is the positioning plan followed?

11 100.0%

Did the individual have a dental examination within

26

88.5%

the last 12 months or is there a variance approved

by the dentist?

Were the dentist’s recommendations implemented

22

77.3%

within the time frame recommended by the dentist?

Is there any evidence of administering excessive or unnecessary medication(s) (including psychotropic

26

3.8%

medication?

If applicable, is there documentation that

24 100.0%

caregivers/clinicians Did a review of bowel movements?

14 100.0%

Made necessary changes, as appropriate?

After a review of tube feeding,

6

100.0%

Made necessary changes were made, as appropriate?

4

75.0%

N 0.0%
0.0%
0.0%
11.5%
0.0%
0.0% 16.7% 0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 6.3% 0.0% 11.5%
22.7% 84.6%
0.0% 0.0%
0.0% 25.0%

CND 0.0%
0.0%
0.0%
0.0%
0.0%
0.0% 0.0% 4.2%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 6.3% 0.0% 0.0%
0.0% 11.5%
0.0% 0.0%
0.0% 0.0%

	
  

81	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 82 of 179 PageID# 7037 	
  

Healthcare Items – areas of concern

Item

n

Y

N

CND

Are there needed assessments that were not recommended?

26

34.6% 65.4% 0.0%

Healthcare Items –Psychotropic Medications - areas of concern

Item

n

Y

N

Is the individual receiving supports identified in his/her

	
  

individual support plan?

Mental Health (psychiatry)

13

76.9% 23.1%

If the individual receives psychotropic medication:

13

84.6% 15.4%

is there documentation of the intended effects and

side effects of the medication?

is there documentation that the individual and/or a

13

84.6% 15.4%

legal guardian have given informed consent for the

use of psychotropic medication(s)?

does the individual’s nurse or psychiatrist conduct

13

7.7% 92.3%

monitoring as indicated for the potential

development of tardive dyskinesia, or other side

effects of psychotropic medications, using a

standardized tool (e.g. AIMS) at baseline and at least

every 6 months thereafter)?

CND
0.0%	
   0.0% 0.0% 0.0%

Individual Support Plan

Individual Support Plan Items – positive outcomes

Item

n

Y

Is the individual’s support plan current?

26

100.0%

Is there evidence of person-centered (i.e. individualized)

26

100.0%

planning?

Are essential supports listed?

26

92.3%

Is the individual receiving supports identified in his/her

individual support plan?

Residential

26

100.0%

Medical

26

96.2%

Recreation

26

96.2%

Mental Health (behavioral supports)

14

92.9%

Transportation

26

100.0%

Do the individual’s desired outcomes relate to his/her

25

96.0%

talents, preferences and needs as identified in the

assessments and his/her individual support plan?

For individuals who require adaptive equipment, is staff

18

100.0%

knowledgeable and able to assist the individual to use

the equipment?

Is staff assisting the individual to use the equipment as

18

100.0%

prescribed?

N 0.0% 0.0%
7.7%
0.0% 3.8% 3.8% 7.1% 0.0% 4.0%
0.0%
0.0%

CND 0.0% 0.0%
0.0%
0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
0.0%
0.0%

	
  

82	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 83 of 179 PageID# 7038 	
  

Individual Support Plan Items – areas of concern

Item

n

Y

Has the individual’s support plan been modified as

7

57.1%

necessary in response to a major event for the person, if

one has occurred?

Does the individual’s support plan have specific

26

46.2%

outcomes and support activities that lead to skill

development or other meaningful outcomes?

Does the individual’s support plan address barriers that

26

100.0%

may limit the achievement of the individual’s desired

outcomes?

If applicable, were employment goals and supports

25

24.0%

developed and discussed?

Does typical day include regular integrated activities?

24

29.2%

N 42.9%
53.8%
0.0%
76.0% 70.8%

CND 0.0%
0.0%
0.0%
0.0% 0.0%

Case Management

Case Management – positive trend, sustained

There is evidence of case management review, e.g. meeting with the individual face-to-face at least every 30 days, with at

least one such visit every two months being in the individual’s place of residence.

1st review

3rd review

5th review

7th review

9th review

period

period

period

period

period

2012

2013

2014

2015

2016

46.9% (15 of 32) 88.9% (24 of 27) 96.4% (27 of 28) 95.8% (23 0f 24) 96.2% (25 0f 26)

Integration items – areas of concern

Item

n

Y

Do you live in a home in a home licensed for four or

26

30.8%

fewer individuals with disabilities and without other

such homes clustered on the same setting?

Were employment goals and supports developed and

25

24.0%

discussed?

If no, were integrated day opportunities offered?

20

25.0%

Does typical day include regular integrated activities?

26

30.8%

N 69.2%*
76.0% 68.2% 69.2%

CND 0.0%
0.0% 0.0% 0.0%

* Four of these eighteen individuals live temporarily in homes with other programs on adjacent property.

COMPARISON – Most Integrated Setting The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs. 1st review- 2012 3rd review- 2013 5th review- 2014 7th review- 2015 9th review- 2016 46.9% (15 of 32) 53.6% (15 of 28) 57.1% (16 of 28) 41.7% (10 of 24) 30.8% (8 of 26)

* Four of the eighteen individuals who do not live in “most integrated settings” are living temporarily in homes with multiple other programs on adjacent property. The provider reports that it is in the process of locating homes for four or fewer individuals. After these moves occur, then 12 (46.2%) of the 26 individuals will live in most integrated settings.

	
  

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Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 84 of 179 PageID# 7039 	
  

Community Residential Services

Residential Staff – positive outcomes Items

Item

n

Y

Is residential staff able to describe the individual’s likes

25

100.0%

and dislikes?

Is residential staff able to describe the individual’s health 25

96.0%

related needs and their role in ensuring that the needs

are met?

If a Residential provider’s home, is residential staff able

25

96.0%

to describe the individual’s talents/contributions and

what’s important to and important for the individual?

Is there evidence the staff has been trained on the desired 26

100.0%

outcome and support activities of the individual’s support

plan?

N 0.0% 4.0%
4.0%
0.0%

CND 0.0% 0.0%
0.0%
0.0%

Residential Environment Items – positive outcomes

Item

n

Y

N

Is the individual’s residence clean?

26

92.3% 7.7%

Are food and supplies adequate?

25

96.0% 4.0%

Does the individual appear well kempt?

26

100.0% 0.0%

Are services and supports available within a reasonable

26

100.0% 0.0%

distance from your home?

Is the residence free of needed repairs?

26

100.0% 0.0%

Do you have your own bedroom?

26

88.5% 11.5%

Do you have privacy in your home if you want it?

26

88.5% 11.5%

b. Has there been a Licensing Visit that checked that

24

100.0% 0.0%

smoke detectors were working, that fire extinguishers had

been inspected, and that other safety requirements had

been met?

CND 0.0% 0.0% 0.0% 0.0%
0.0% 0.0% 0.0% 0.0%

Residential Environment Items – areas of concern

Item

n

Y

N

Is there evidence of personal décor in the individual’s

26 61.5% 38.5%

room and other personal space?

CND
0.0%

	
  

84	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 85 of 179 PageID# 7040 	
  
APPENDIX B.
CRISIS SERVICES By: Kathryn du Pree MPS

	
  

85	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 86 of 179 PageID# 7041
	
  
Crisis	
  Services	
  –Status	
  Briefing	
  on	
  the	
  Implementation	
  of	
  the	
  Virginia	
  Commonwealth’s	
   Settlement	
  Agreement	
  Requirements	
   	
   November	
  2016	
   	
   Introduction	
   	
   This	
  is	
  the	
  ninth	
  review	
  of	
  crisis	
  services	
  as	
  developed	
  by	
  the	
  Commonwealth	
  in	
  response	
  to	
  the	
   Settlement	
  Agreement.	
  Previous	
  reviews	
  have	
  included	
  a	
  review	
  of:	
  
• All	
  relevant	
  documents	
  detailing	
  the	
  Commonwealth’s	
  implementation	
  of	
  crisis	
  services	
   for	
  children,	
  adolescents	
  and	
  adults	
  with	
  ID	
  and	
  DD	
  	
  
• Data	
  supporting	
  implementation	
  	
   • Proposals	
  and	
  RFPs	
  	
   • Qualitative	
  reviews	
  of	
  crisis	
  plans	
  for	
  individuals	
  in	
  HCBS	
  waivers	
  	
   • Focus	
  groups	
  and	
  interviews	
  with	
  key	
  DBHDS	
  and	
  REACH	
  staff	
  and	
  other	
  stakeholders	
  	
   	
   DBHDS,	
  CSBs,	
  case	
  managers,	
  and	
  providers	
  are	
  in	
  the	
  midst	
  of	
  implementing	
  HCBS	
  waiver	
   reform	
  and	
  related	
  service	
  development.	
  Therefore,	
  the	
  Independent	
  Reviewer,	
  Donald	
  Fletcher	
   and	
  DBHDS	
  agreed	
  that	
  this	
  period’s	
  study	
  of	
  crisis	
  services	
  would	
  be	
  limited	
  primarily	
  to	
  the	
   review	
  of	
  the	
  activities	
  that	
  were	
  in	
  progress	
  but	
  not	
  completed	
  by	
  DBHDS	
  at	
  the	
  time	
  of	
  the	
   eighth	
  review.	
  	
  DBHDS	
  undertook	
  an	
  analysis	
  of	
  psychiatric	
  admissions	
  for	
  all	
  age	
  groups	
  that	
   occurred	
  between	
  July	
  2014	
  and	
  June	
  2015.	
  The	
  department	
  planned	
  to	
  use	
  these	
  data	
  to	
  help	
   determine	
  general	
  improvements	
  to	
  both	
  the	
  adult	
  and	
  the	
  children’s’	
  crisis	
  programs.	
  DBHDS	
   also	
  analyzed	
  whether	
  these	
  data	
  indicated	
  a	
  need	
  for	
  additional	
  crisis	
  stabilization	
  programs,	
   which	
  DBHDS	
  calls	
  Crisis	
  Therapeutic	
  Homes	
  (CTH),	
  for	
  adults	
  and	
  how	
  to	
  meet	
  the	
  Agreement’s	
   requirement	
  to	
  provide	
  out-­‐of-­‐home	
  crisis	
  stabilization	
  for	
  children.	
  The	
  Independent	
  Reviewer	
   was	
  also	
  interested	
  in	
  the	
  Commonwealth’s	
  progress	
  implementing	
  the	
  crisis	
  services	
  for	
   children,	
  which	
  had	
  only	
  been	
  made	
  available	
  in	
  all	
  five	
  regions	
  during	
  the	
  previous	
  year.	
  I	
   reviewed	
  the	
  following	
  documents:	
  	
   	
   1. REACH	
  Data	
  Summary	
  Reports	
  for	
  Adult	
  Services:	
  4th	
  Quarter	
  FY16	
  and	
  1st	
  Quarter	
  FY17	
   2. REACH	
  Data	
  Summary	
  Reports	
  for	
  Children’s	
  Services:	
  4th	
  Quarter	
  FY16	
  and	
  1st	
  Quarter	
  
FY17	
   3. 	
  Adult	
  REACH	
  Annual	
  Report:	
  FY	
  2016	
   4. 	
  REACH	
  Annual	
  Report:	
  Children’s	
  Program	
  FY	
  2016	
   5. 	
  Retrospective	
  Study	
  of	
  Children	
  with	
  Developmental	
  Disabilities	
  Admitted	
  to	
  the	
  
Commonwealth	
  Center	
  for	
  Children	
  and	
  Adolescents	
  (CCCA)	
  FY2015	
   6. Retrospective	
  Study	
  of	
  Adult	
  Civil	
  Admissions	
  with	
  Developmental	
  Disabilities	
  to	
  DBHDS	
  
Virginia	
  Mental	
  Health	
  Hospitals	
   7. Crisis	
  Therapeutic	
  Home	
  Capacity	
  Review-­‐Review	
  Period	
  12/1/15-­‐6/30/16	
   8. DBHDS	
  Crisis	
  Prevention	
  and	
  Stabilization	
  Bed	
  Capacity	
  Children’s	
  Crisis	
  Services	
  
Proposal	
  	
   	
   	
   	
  

	
  

86	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 87 of 179 PageID# 7042
	
  
I	
  also	
  interviewed	
  Heather	
  Norton,	
  Director	
  of	
  Community	
  Support	
  Services.	
  I	
  greatly	
   appreciate	
  Ms.	
  Norton’s	
  time.	
  She	
  oversees	
  the	
  Commonwealth’s	
  crisis	
  services	
  programs,	
  	
   but	
  also	
  is	
  currently	
  coordinating	
  much	
  of	
  the	
  department’s	
  responsibilities	
  to	
  successfully	
   accomplish	
  waiver	
  reform.	
  I	
  appreciate	
  the	
  department’s	
  efforts	
  to	
  provide	
  the	
  reports	
  timely	
   so	
  that	
  this	
  status	
  review	
  could	
  be	
  completed	
  by	
  early	
  November.	
   	
   Current	
  Status	
  of	
  REACH	
  Services	
  for	
  Adults	
   	
   Although	
  not	
  the	
  primary	
  focus	
  of	
  this	
  study,	
  I	
  reviewed	
  the	
  quarterly	
  reports	
  for	
  the	
  fourth	
   quarter	
  of	
  FY16	
  and	
  the	
  first	
  quarter	
  of	
  2017	
  to	
  determine	
  if	
  all	
  crisis	
  services	
  requirements	
   were	
  still	
  being	
  met.	
  I	
  also	
  reviewed	
  data	
  regarding	
  individuals	
  with	
  ID	
  and	
  DD	
  who	
   experienced	
  psychiatric	
  hospitalizations.	
  	
   	
   Referrals	
  and	
  Referral	
  Sources-­‐	
  In	
  FY16Q4	
  referrals	
  to	
  the	
  REACH	
  adult	
  program	
  totaled	
   289.	
  There	
  were	
  an	
  increased	
  number	
  of	
  referrals	
  from	
  CSB	
  Emergency	
  Services	
  (ES),	
  except	
   in	
  Region	
  V.	
  The	
  Region	
  V	
  crisis	
  services	
  program	
  did	
  not	
  receive	
  any	
  referrals	
  from	
  CSB	
  ES	
   staff,	
  but	
  received	
  83%	
  of	
  its	
  referrals	
  from	
  CSB	
  Case	
  Managers.	
  The	
  Commonwealth’s	
  crisis	
   services	
  in	
  its	
  other	
  four	
  regions	
  received	
  between	
  23%	
  and	
  42%	
  of	
  referrals	
  from	
  ES	
  staff.	
   This	
  is	
  evidence	
  of	
  a	
  stronger	
  relationship	
  and	
  collaboration	
  between	
  the	
  CSB	
  ES	
  and	
  REACH	
   crisis	
  services	
  in	
  these	
  four	
  regions.	
  	
  	
   	
   There	
  were	
  a	
  similar	
  number	
  of	
  referrals	
  in	
  FY17Q1	
  when	
  281	
  individuals	
  were	
  referred.	
  	
   The	
  sources	
  of	
  the	
  referrals	
  varied	
  somewhat	
  from	
  the	
  previous	
  reporting	
  period.	
  The	
  CSB	
  ES	
   programs	
  were	
  still	
  the	
  primary	
  referral	
  source	
  in	
  three	
  regions:	
  Regions	
  III,	
  IV	
  and	
  V.	
  Case	
   Managers	
  were	
  the	
  primary	
  referral	
  source	
  in	
  Region	
  I,	
  whereas	
  families	
  made	
  the	
  most	
   referrals	
  of	
  any	
  group	
  in	
  Region	
  II.	
   	
   Individual’s	
  Major	
  Diagnosis-­‐Thirty-­‐six	
  adults	
  who	
  were	
  referred	
  to	
  REACH	
  crisis	
  programs	
   in	
  FY16Q4	
  had	
  a	
  developmental	
  disability,	
  other	
  than	
  an	
  intellectual	
  disability.	
  The	
  number	
  of	
   referrals	
  of	
  individuals	
  with	
  DD	
  only	
  increased	
  from	
  thirty-­‐six	
  to	
  forty-­‐	
  six	
  in	
  FY17Q1.	
   Individuals	
  with	
  DD,	
  other	
  than	
  ID,	
  represented	
  12%	
  of	
  the	
  referrals	
  in	
  FY16Q4	
  and	
  16%	
  of	
   the	
  referrals	
  in	
  FY17Q1.	
  	
   	
   Referral	
  Response	
  Time-­‐	
  In	
  FY16Q4	
  three	
  of	
  the	
  regions	
  responded	
  onsite	
  to	
  all	
  of	
  the	
  crisis	
   referrals	
  received	
  by	
  the	
  REACH	
  programs.	
  Seven	
  (77.8%)	
  of	
  nine	
  crisis	
  referrals	
  were	
  not	
   responded	
  to	
  face-­‐to-­‐face	
  occurred	
  in	
  Region	
  V.	
  Two	
  (22.2%)	
  occurred	
  in	
  Region	
  III.	
  In	
   FY16Q4	
  the	
  average	
  response	
  time	
  is	
  well	
  below	
  the	
  required	
  time	
  of	
  one	
  hour	
  in	
  the	
  urban	
   regions	
  and	
  two	
  hours	
  in	
  the	
  rural	
  regions.	
  However,	
  seventeen	
  of	
  the	
  300	
  crisis	
  calls	
  were	
   not	
  responded	
  to	
  within	
  the	
  required	
  time	
  period,	
  resulting	
  in	
  94.4%	
  of	
  the	
  calls	
  responded	
   to	
  within	
  required	
  timeframes.	
  During	
  FY17Q1	
  all	
  crisis	
  calls	
  were	
  responded	
  to	
  onsite.	
  The	
   regions’	
  response	
  time	
  within	
  the	
  expected	
  timeframes	
  decreased	
  from	
  FY16Q4,	
  resulting	
  in	
   91%	
  of	
  the	
  calls	
  responded	
  to	
  within	
  the	
  time	
  parameters.	
  Region	
  IV	
  experienced	
  the	
  greatest	
   delays	
  in	
  arriving	
  onsite	
  to	
  respond	
  to	
  crises.	
  Eighteen	
  (17.1%)	
  of	
  its	
  105	
  calls	
  were	
  not	
   responded	
  to	
  within	
  the	
  one-­‐hour	
  requirement.	
  Of	
  the	
  late	
  responses,	
  eleven	
  (64.7%)	
  of	
  the	
   untimely	
  responses	
  occurred	
  within	
  90	
  minutes.	
   	
  

	
  

87	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 88 of 179 PageID# 7043 	
  

Mobile	
  Crisis	
  Assessments	
  and	
  resulting	
  dispositions	
  -­‐During	
  FY16Q4	
  the	
  number	
  of	
  crisis	
   assessments	
  occurring	
  in	
  the	
  hospitals	
  increased	
  from	
  previous	
  reporting	
  periods.	
  Hospitals	
   were	
  the	
  primary	
  location	
  for	
  response	
  by	
  REACH	
  staff	
  in	
  all	
  regions	
  except	
  Region	
  V.	
  The	
   second	
  most	
  common	
  location	
  for	
  crisis	
  assessments	
  was	
  family	
  homes.	
  A	
  similar	
  number	
  of	
   individuals	
  used	
  the	
  crisis	
  stabilization	
  programs	
  (CTHs)	
  (162)	
  as	
  used	
  mobile	
  crisis	
  support	
   (154).	
  Some	
  used	
  both.	
  More	
  individuals	
  used	
  the	
  CTH	
  for	
  crisis	
  stabilization	
  in	
  Regions	
  I,	
  IV	
   and	
  V	
  versus	
  a	
  greater	
  use	
  of	
  the	
  CTH	
  program	
  for	
  prevention	
  in	
  Regions	
  II	
  and	
  III.	
  There	
  is	
   growing	
  utilization	
  of	
  the	
  CTH	
  programs	
  for	
  step-­‐down	
  support	
  after	
  individuals	
  with	
  ID	
  and	
   DD	
  have	
  experienced	
  psychiatric	
  hospitalization,	
  particularly	
  in	
  Regions	
  IV	
  and	
  V.	
  DBHDS	
  did	
   not	
  provide	
  any	
  data	
  regarding	
  the	
  waiting	
  lists	
  for	
  access	
  to	
  the	
  crisis	
  stabilization	
  (CTH)	
   programs.	
  All	
  regions	
  continue	
  to	
  provide	
  extensive	
  training	
  to	
  law	
  enforcement	
  (CIT)	
  and	
  to	
   CSB,	
  ES,	
  provider	
  and	
  community	
  partner	
  staff.	
  	
   	
   Crisis	
  assessments	
  continued	
  to	
  primarily	
  take	
  place	
  in	
  hospitals	
  (231)	
  or	
  in	
  the	
  individual’s	
   residence	
  or	
  day	
  program	
  (150)	
  in	
  FY17Q4.	
  It	
  is	
  noteworthy	
  that	
  89	
  of	
  the	
  onsite	
   assessments	
  were	
  conducted	
  at	
  homes	
  operated	
  by	
  residential	
  providers.	
  This	
  indicates	
  a	
   growing	
  recognition	
  and	
  value	
  of	
  REACH	
  services	
  by	
  the	
  provider	
  community.	
  	
   	
   The	
  DBHDS	
  Quarterly	
  Reports	
  contain	
  information	
  on	
  psychiatric	
  hospitalizations	
  including	
   the	
  number	
  of	
  admissions	
  that	
  occur	
  at	
  the	
  time	
  of	
  initial	
  crisis	
  assessment	
  and	
  after	
   individuals	
  receive	
  mobile	
  crisis	
  support.	
  	
  A	
  separate	
  report	
  addendum	
  provides	
  the	
   disposition	
  for	
  all	
  individuals	
  who	
  are	
  known	
  to	
  REACH.	
  The	
  latter	
  report	
  includes	
  both	
  new	
   referrals	
  and	
  active	
  cases	
  so	
  the	
  number	
  of	
  individuals	
  known	
  is	
  greater	
  than	
  in	
  the	
  former	
   two	
  reports,	
  which	
  included	
  only	
  individuals	
  who	
  had	
  a	
  mobile	
  crisis	
  assessment	
  during	
  the	
   quarter.	
  	
   	
   	
  The	
  DBHDS	
  report	
  on	
  the	
  disposition	
  of	
  individuals	
  who	
  are	
  referred	
  for	
  a	
  crisis	
  assessment	
   during	
  the	
  FY16Q4	
  includes	
  information	
  on	
  the	
  disposition	
  at	
  the	
  time	
  of	
  assessment	
  and	
  the	
   disposition	
  at	
  the	
  completion	
  of	
  mobile	
  crisis	
  services.	
  At	
  the	
  time	
  of	
  assessment	
  of	
  the	
  312	
   individuals,	
  27%	
  were	
  hospitalized,	
  62%	
  retained	
  their	
  home	
  setting;	
  and	
  7%	
  used	
  the	
  crisis	
   stabilization	
  homes	
  (CTHs).	
  	
  	
   	
   During	
  FY17Q1,	
  422	
  individuals	
  were	
  assessed	
  for	
  a	
  crisis.	
  After	
  using	
  these	
  services,	
  35%	
  of	
   the	
  individuals	
  were	
  hospitalized,	
  52%	
  retained	
  their	
  home	
  settings,	
  either	
  with	
  or	
  without	
   mobile	
  crisis	
  supports;	
  and	
  (8%)	
  used	
  a	
  CTH.	
  This	
  represents	
  an	
  increase	
  in	
  the	
  percentage	
  of	
   individuals	
  who	
  were	
  hospitalized	
  and	
  a	
  reduction	
  in	
  the	
  percentage	
  of	
  individuals	
  who	
   retained	
  their	
  home	
  settings	
  as	
  compared	
  to	
  the	
  previous	
  quarter.	
  From	
  the	
  documents	
   available	
  for	
  review,	
  it	
  could	
  not	
  be	
  determined	
  what	
  caused	
  this	
  increase	
  in	
  hospitalizations	
   or	
  whether	
  some	
  of	
  the	
  increase	
  was	
  an	
  indication	
  of	
  inadequate	
  community-­‐based	
   behavioral,	
  crisis	
  services,	
  or	
  crisis	
  stabilization	
  program	
  capacity.	
  DBHDS	
  should	
  analyze	
   these	
  data	
  	
   	
   For	
  future	
  quarterly	
  reporting,	
  DBHDS	
  should	
  establish	
  indicators	
  to	
  determine	
  whether	
  the	
   extent	
  that	
  the	
  recent	
  trend	
  continues	
  of	
  a	
  higher	
  percent	
  of	
  individuals	
  in	
  crisis	
  being	
   hospitalized.	
  Indicators	
  should	
  also	
  be	
  established	
  regarding	
  when	
  hospitalizations	
  might	
   have	
  been	
  avoided	
  with	
  adequate	
  community	
  based	
  resources	
  and	
  available	
  beds	
  in	
  short-­‐ term	
  crisis	
  stabilization	
  alternatives.	
  	
  

	
  

88	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 89 of 179 PageID# 7044 	
  

	
  

The	
  summaries	
  of	
  the	
  dispositions	
  are	
  included	
  below	
  in	
  Table	
  1-­‐	
  Disposition	
  after	
  crisis	
  

assessment-­‐Adults.	
  

	
  

Table	
  1	
  

Disposition	
  after	
  crisis	
  assessment	
  –	
  Adults	
  

	
  

FY16Q4	
  

FY17Q1	
  

#	
  Assessed	
  

312	
  

422	
  

%	
  Hospitalized	
  

27%	
  

35%	
  

%	
  Retained	
  their	
  home	
  	
  

62%	
  

52%	
  

%	
  Used	
  crisis	
  stabilization	
  homes	
  (CTHs)	
  

	
  	
  7%	
  

	
  	
  8%	
  

%	
  With	
  another	
  disposition	
  

	
  	
  4%	
  

	
  	
  5%	
  

	
  

	
  

During	
  FY16Q4	
  146	
  individuals	
  used	
  mobile	
  crisis	
  supports.	
  After	
  using	
  REACH	
  mobile	
  crisis	
  

services,	
  77%	
  of	
  the	
  individuals	
  served	
  retained	
  their	
  home	
  setting	
  and	
  9%	
  transitioned	
  to	
  a	
  

new	
  residence.	
  In	
  addition	
  4%	
  used	
  the	
  CTHs.	
  Another	
  10%	
  were	
  hospitalized.	
  In	
  future	
  

reports	
  it	
  would	
  be	
  useful	
  to	
  know	
  the	
  final	
  disposition	
  for	
  the	
  individuals	
  who	
  use	
  the	
  CTH	
  

programs.	
  

	
  

In	
  FY17Q1,	
  after	
  receiving	
  mobile	
  crisis	
  support,	
  only	
  seventeen	
  adults	
  were	
  hospitalized	
  and	
  

190	
  retained	
  their	
  home	
  setting.	
  During	
  this	
  quarter,	
  fourteen	
  individuals	
  transitioned	
  to	
  a	
  

new	
  residence	
  after	
  receiving	
  mobile	
  crisis	
  supports	
  and	
  another	
  fourteen	
  used	
  the	
  CTH	
  

program.	
  The	
  percentage	
  of	
  individuals	
  needing	
  psychiatric	
  hospitalization	
  after	
  the	
  crisis	
  

supports	
  is	
  significantly	
  lower	
  than	
  the	
  number	
  at	
  the	
  time	
  of	
  assessment:	
  7%	
  compared	
  to	
  

35%	
  at	
  the	
  time	
  of	
  initial	
  crisis	
  assessment.	
  This	
  is	
  an	
  indication	
  of	
  the	
  success	
  of	
  these	
  in-­‐

home	
  crisis	
  supports,	
  while	
  recognizing	
  that	
  some	
  individuals	
  at	
  the	
  time	
  of	
  crises	
  may	
  have	
  

required	
  psychiatric	
  hospitalization	
  to	
  stabilize.	
  It	
  will	
  be	
  important	
  going	
  forward	
  to	
  have	
  

more	
  detailed	
  information	
  regarding	
  the	
  reasons	
  for	
  admission	
  and	
  the	
  availability	
  of	
  

community	
  alternatives,	
  especially	
  as	
  DBHDS	
  enhances	
  the	
  array	
  of	
  crisis	
  stabilization	
  

options	
  as	
  reported	
  further	
  in	
  this	
  status	
  brief.	
  

	
  

The	
  summaries	
  of	
  the	
  dispositions	
  are	
  included	
  below	
  in	
  Table	
  2-­‐	
  Dispositions	
  after	
  using	
  

REACH	
  mobile	
  crisis	
  services	
  –	
  Adults.	
  	
  

	
  

Table	
  2	
  

Dispositions	
  after	
  using	
  REACH	
  mobile	
  crisis	
  services	
  –	
  Adults	
  

	
  

FY16Q4	
  

FY17Q1	
  

#	
  Who	
  used	
  mobile	
  crisis	
  services	
  

146	
  

237	
  

%	
  Hospitalized	
  

	
  	
  	
  	
  	
  10%	
  

	
  	
  	
  	
  	
  	
  7%	
  

%	
  Retained	
  in	
  their	
  home	
  	
  

	
  	
  	
  	
  	
  	
  77%	
  

	
  	
  	
  80%	
  

%	
  Who	
  transitioned	
  to	
  a	
  new	
  residence	
  

	
  	
  	
  	
  	
  9%	
  

	
  	
  	
  	
  	
  6%	
  

%	
  Used	
  crisis	
  stabilization	
  homes	
  (CTHs)	
  

	
  	
  	
  	
  4%	
  

	
  	
  	
  	
  	
  6%	
  

	
  

	
  

	
  

89	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 90 of 179 PageID# 7045
	
  
Psychiatric	
  Hospitalizations-­‐	
  The	
  report	
  contains	
  an	
  addendum	
  with	
  supplemental	
  information	
   about	
  individuals	
  who	
  are	
  psychiatrically	
  hospitalized.	
  This	
  number	
  is	
  higher	
  than	
  the	
  numbers	
   reported	
  in	
  the	
  previous	
  paragraphs	
  because	
  the	
  data	
  includes	
  individuals	
  already	
  served	
  by	
   REACH	
  in	
  addition	
  to	
  the	
  new	
  referrals.	
  	
  
	
   During	
  FY16Q4,	
  the	
  REACH	
  programs	
  were	
  aware	
  of	
  145	
  individuals	
  who	
  experienced	
  a	
   psychiatric	
  admission.	
  Of	
  these	
  individuals:	
  
• 64%	
  returned	
  to	
  their	
  home	
   • 7%	
  transitioned	
  to	
  a	
  new	
  residence	
   • 17%	
  used	
  the	
  CTH	
  as	
  a	
  step	
  down	
  service	
   • 10%	
  remained	
  hospitalized	
  at	
  the	
  time	
  of	
  the	
  report	
  	
   • 2%	
  had	
  other	
  outcomes	
  	
   	
   During	
  FY17Q1	
  the	
  REACH	
  programs	
  were	
  aware	
  of	
  163	
  adults	
  who	
  were	
  admitted	
  to	
   psychiatric	
  hospitals.	
  Of	
  these	
  individuals:	
   • 58%	
  returned	
  to	
  their	
  homes	
   • 12%	
  transitioned	
  to	
  a	
  new	
  residence	
   • 7%	
  used	
  the	
  CTH	
  as	
  a	
  step	
  down	
  service	
   • 13%	
  remained	
  hospitalized	
  at	
  the	
  time	
  of	
  the	
  reports	
   • 10%	
  had	
  other	
  or	
  unknown	
  outcomes	
   	
   CTH	
  Capacity-­‐The	
  FY17Q1	
  report	
  includes	
  a	
  detailed	
  analysis	
  of	
  the	
  capacity	
  of	
  the	
  CTHs	
  and	
  the	
   presence	
  of	
  any	
  waiting	
  lists,	
  which	
  has	
  been	
  developed	
  for	
  the	
  first	
  time.	
  It	
  is	
  very	
  helpful	
  that	
   DBHDS	
  has	
  begun	
  to	
  track	
  this	
  information	
  and	
  summarizing	
  it.	
  There	
  were	
  ninety-­‐two	
  days	
  in	
   the	
  reporting	
  period.	
  Regions’	
  beds	
  in	
  CTH	
  programs	
  were	
  all	
  full	
  as	
  a	
  percentage	
  of	
  the	
  ninety-­‐ two	
  days	
  as	
  follows:	
  Region	
  I-­‐17%;	
  Region	
  II-­‐62%;	
  Region	
  III-­‐	
  75%;	
  Region	
  IV-­‐	
  46%;	
  and	
  Region	
   V-­‐	
  27%.	
  Yet	
  there	
  were	
  nine	
  individuals	
  on	
  the	
  waiting	
  list	
  during	
  the	
  quarter,	
  with	
  six	
  of	
  them	
   on	
  Region	
  V’s	
  list	
  even	
  though	
  Region	
  V	
  was	
  only	
  at	
  capacity	
  for	
  twenty-­‐five	
  of	
  ninety-­‐two	
  days.	
   DBHDS	
  is	
  conducting	
  a	
  more	
  detailed	
  review	
  of	
  what	
  led	
  to	
  the	
  waiting	
  list	
  for	
  Region	
  V.	
   Individuals	
  on	
  the	
  waiting	
  list	
  primarily	
  used	
  mobile	
  supports	
  as	
  an	
  alternative	
  to	
  a	
  CTH.	
  One	
   individual’s	
  discharge	
  from	
  a	
  mental	
  health	
  hospital	
  was	
  delayed	
  as	
  a	
  result	
  of	
  the	
  waiting	
  list	
  for	
   the	
  CTH	
  program.	
  	
  	
   	
   During	
  the	
  ninth	
  reporting	
  period	
  there	
  were	
  individuals	
  on	
  the	
  waiting	
  lists	
  for	
  the	
  CTHs.	
   During	
  the	
  eighth	
  period	
  case	
  managers	
  who	
  attended	
  focus	
  groups	
  reported	
  having	
  stopped	
   making	
  referrals	
  because	
  of	
  being	
  told	
  beds	
  were	
  generally	
  filled	
  previous	
  times	
  they	
  made	
  a	
   referral.	
  Individuals	
  with	
  ID/DD	
  continue	
  to	
  be	
  admitted	
  to	
  psychiatric	
  hospitals,	
  apparently	
   without	
  always	
  being	
  offered	
  the	
  CTH	
  as	
  an	
  alternative.	
  While	
  some	
  hospitalizations	
  may	
  be	
   clinically	
  necessary,	
  the	
  data	
  does	
  not	
  allow	
  me	
  to	
  draw	
  a	
  conclusion	
  as	
  to	
  whether	
  the	
  CTH	
   setting	
  may	
  be	
  an	
  appropriate	
  alternative	
  because	
  there	
  is	
  insufficient	
  information	
  about	
  the	
   reasons	
  for	
  admission.	
  DBHDS	
  should	
  continue	
  to	
  hone	
  its	
  reports	
  on	
  psychiatric	
  hospitalizations	
   to	
  inform	
  the	
  Expert	
  and	
  Independent	
  Reviewers	
  of	
  the	
  specific	
  reasons	
  for	
  these	
  admissions	
  and	
   how	
  alternatives	
  are	
  considered	
  prior	
  to	
  admission.	
  The	
  DBHDS	
  plan	
  to	
  develop	
  two	
  additional	
   CTH	
  settings	
  (described	
  later	
  in	
  this	
  report)	
  for	
  longer	
  length	
  of	
  stays	
  may	
  help	
  to	
  reduce	
   hospitalizations.	
  However,	
  the	
  underlying	
  cause	
  for	
  high	
  vacancy	
  rates	
  in	
  the	
  CTHs	
  should	
  be	
   determined	
  in	
  future	
  studies.	
  	
  

	
  

90	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 91 of 179 PageID# 7046 	
  

	
   Training	
  by	
  the	
  REACH	
  staff	
  of	
  community	
  stakeholders	
  continued	
  in	
  FY17Q1.	
  This	
  report	
   includes	
  new	
  data	
  about	
  the	
  involvement	
  of	
  law	
  enforcement	
  with	
  crisis	
  calls.	
  Law	
  enforcement	
   personnel	
  were	
  involved	
  in	
  40	
  of	
  the	
  289	
  crises	
  calls.	
  Of	
  these	
  40	
  calls	
  statewide,	
  37	
  (92.5%)	
   occurred	
  in	
  Region	
  IV.	
  There	
  was	
  no	
  involvement	
  of	
  law	
  enforcement	
  with	
  any	
  crisis	
  calls	
  in	
   either	
  Region	
  II	
  or	
  Region	
  V.	
  DBHDS	
  plans	
  to	
  continue	
  to	
  report	
  this	
  data,	
  which	
  responds	
  to	
  a	
   recommendation	
  made	
  during	
  the	
  eighth	
  crisis	
  services	
  review.	
  It	
  is	
  difficult	
  to	
  draw	
  any	
   conclusions	
  about	
  this	
  data	
  without	
  a	
  qualitative	
  review	
  of	
  some	
  percentage	
  of	
  individuals	
  whose	
   crises	
  involved	
  law	
  enforcement	
  personnel	
  to	
  determine	
  the	
  reasons;	
  the	
  officers’	
  training	
  in	
   responding	
  to	
  the	
  crisis;	
  and	
  the	
  outcome	
  of	
  their	
  involvement.	
   	
   Current	
  Status	
  of	
  REACH	
  Services	
  for	
  Children	
   	
   The	
  Children’s	
  REACH	
  Reports	
  for	
  FY16Q4	
  and	
  FY17Q1	
  include	
  information	
  that	
  demonstrates	
   how	
  well	
  the	
  programs	
  are	
  meeting	
  the	
  REACH	
  standards.	
  For	
  this	
  briefing	
  I	
  will	
  highlight	
  and	
   summarize	
  those	
  program	
  elements	
  that	
  are	
  most	
  critical	
  to	
  the	
  success	
  of	
  the	
  program	
  and	
  that	
   are	
  necessary	
  to	
  make	
  progress	
  toward	
  achieving	
  the	
  provisions	
  the	
  Settlement	
  Agreement.	
   There	
  will	
  be	
  a	
  much	
  more	
  in-­‐depth	
  analysis	
  during	
  the	
  tenth	
  review	
  of	
  crisis	
  services.	
   	
   Referrals-­‐	
  Referrals	
  increased	
  from	
  a	
  total	
  of	
  108	
  in	
  the	
  two	
  quarters	
  of	
  the	
  previous	
  reporting	
   period	
  to	
  a	
  total	
  of	
  363	
  during	
  the	
  two	
  quarters	
  of	
  this	
  reporting	
  period	
  (179	
  in	
  FY16Q4	
  and	
  184	
   in	
  FY17Q1).	
  In	
  FY16Q4,	
  there	
  was	
  more	
  difference	
  across	
  the	
  regions	
  in	
  terms	
  of	
  crisis	
  versus	
   non-­‐crisis	
  referrals.	
  There	
  was	
  a	
  greater	
  number	
  of	
  crisis	
  referral	
  in	
  Regions	
  I	
  and	
  IV,	
  whereas	
   the	
  other	
  three	
  regions	
  had	
  more	
  non-­‐crisis	
  calls.	
  Regions	
  II	
  and	
  III	
  each	
  had	
  fewer	
  than	
  five	
   crisis	
  calls.	
  In	
  FY17Q1	
  there	
  was	
  more	
  commonality	
  across	
  the	
  regions	
  and	
  53%	
  of	
  the	
  calls	
  were	
   of	
  a	
  crisis	
  nature.	
  	
   	
   Referral	
  Sources-­‐	
  The	
  primary	
  source	
  of	
  referrals	
  in	
  FY16Q4	
  and	
  FY17Q1	
  was	
  the	
  CSB	
  ES.	
  An	
   exception	
  was	
  Region	
  IV,	
  which	
  received	
  the	
  most	
  referrals	
  from	
  families	
  in	
  both	
  quarters.	
   Families	
  were	
  the	
  second	
  largest	
  referral	
  source	
  in	
  each	
  of	
  the	
  other	
  four	
  regions	
  in	
  FY17Q1.	
   	
   Referral	
  Response	
  Time-­‐The	
  same	
  expectations	
  for	
  timely	
  response	
  to	
  children’s	
  crises	
  are	
  set	
   for	
  the	
  urban	
  and	
  rural	
  regions	
  that	
  have	
  been	
  longstanding	
  for	
  the	
  adult	
  REACH	
  programs.	
   Referrals	
  are	
  received	
  mostly	
  during	
  the	
  day	
  but	
  some	
  during	
  evenings	
  and	
  weekends	
  in	
  all	
   regions.	
  There	
  were	
  122	
  crisis	
  calls	
  responded	
  to	
  during	
  FY16Q4,	
  all	
  of	
  which	
  were	
  face-­‐to-­‐face.	
   The	
  average	
  response	
  times	
  in	
  FY16Q4	
  were	
  all	
  within	
  the	
  expected	
  times	
  and	
  ranged	
  from	
   thirty-­‐eight	
  minutes	
  in	
  Region	
  I	
  to	
  sixty	
  minutes	
  in	
  Region	
  II.	
  There	
  were	
  nine	
  that	
  were	
   responded	
  to	
  late,	
  resulting	
  in	
  93%	
  of	
  the	
  crisis	
  calls	
  responded	
  to	
  timely.	
  	
   	
   All	
  crisis	
  calls	
  in	
  FY17Q1	
  were	
  also	
  responded	
  to	
  face-­‐to-­‐face,	
  but	
  the	
  timeliness	
  of	
  the	
  responses	
   dropped	
  from	
  93%	
  to	
  86%.	
  Regions	
  I	
  and	
  III	
  responded	
  to	
  all	
  calls	
  within	
  two	
  hours,	
  as	
  required,	
   and	
  Region	
  V	
  responded	
  late	
  to	
  only	
  one	
  crisis.	
  The	
  two	
  urban	
  regions	
  had	
  difficulty	
  meeting	
  the	
   requirement	
  to	
  respond	
  to	
  calls	
  within	
  one	
  hour.	
  Region	
  II	
  responded	
  on	
  time	
  to	
  twelve	
  (60%)	
  of	
   twenty	
  crisis	
  calls	
  and	
  Region	
  IV	
  responded	
  on	
  time	
  to	
  thirty-­‐one	
  (79%)	
  of	
  thirty-­‐nine	
  crisis	
  calls.	
   It	
  will	
  be	
  important	
  to	
  see	
  if	
  this	
  pattern	
  in	
  the	
  urban	
  regions	
  improves	
  for	
  children	
  in	
  the	
  next	
   reporting	
  period.	
  Both	
  of	
  these	
  regions	
  have	
  responded	
  on	
  a	
  timely	
  basis	
  at	
  a	
  much	
  higher	
  rate	
   for	
  adults.	
  If	
  the	
  pattern	
  for	
  children	
  does	
  not	
  significantly	
  improve,	
  the	
  DBHDS	
  should	
  analyze	
  	
  

	
  

91	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 92 of 179 PageID# 7047 	
  

	
   	
   the	
  facts	
  related	
  to	
  the	
  late	
  responses	
  to	
  determine	
  the	
  reasons	
  and	
  to	
  recommend	
  solutions	
  to	
   systemic	
  problems	
  experienced	
  by	
  the	
  REACH	
  programs	
  in	
  these	
  two	
  regions.	
  Region	
  II’s	
   untimely	
  response	
  rate	
  dropped	
  its	
  average	
  response	
  time	
  below	
  the	
  expectation	
  of	
  responding	
   to	
  the	
  call	
  within	
  sixty	
  minutes,	
  a	
  standard	
  that	
  is	
  met	
  by	
  both	
  urban	
  regions	
  for	
  adult	
  mobile	
   crisis	
  responses.	
  	
   	
   Individuals’	
  Major	
  Diagnosis-­‐	
  The	
  Children’s	
  REACH	
  Programs	
  continue	
  to	
  serve	
  more	
   individuals	
  with	
  DD	
  only,	
  than	
  those	
  with	
  DD	
  who	
  also	
  have	
  an	
  ID	
  diagnosis.	
  The	
  children	
   referred	
  in	
  FY16Q4	
  included	
  106(60%)	
  with	
  DD	
  only,	
  which	
  increased	
  to	
  122	
  (67%)	
  in	
  FY17Q1.	
   Children	
  who	
  also	
  have	
  an	
  ID	
  diagnosis	
  continue	
  to	
  represent	
  a	
  small	
  percent	
  (14-­‐18%)	
  of	
  the	
   referrals	
  in	
  the	
  two	
  quarters.	
  These	
  data	
  are	
  vastly	
  different	
  than	
  for	
  the	
  adult	
  crisis	
  services	
   programs,	
  which	
  struggled	
  initially	
  to	
  connect	
  with	
  the	
  DD	
  population.	
  DBHDS	
  credits	
  this	
  to	
   linkages	
  with	
  schools	
  and	
  other	
  children’s	
  providers	
  and	
  the	
  ability	
  of	
  these	
  entities	
  to	
  inform	
   families	
  of	
  this	
  crisis	
  resource.	
  The	
  comparatively	
  small	
  %	
  of	
  adults	
  with	
  DD,	
  other	
  than	
  ID,	
  who	
   are	
  served	
  in	
  the	
  adult	
  crisis	
  services	
  programs	
  is	
  evidence	
  that	
  the	
  crisis	
  programs	
  for	
  adults	
   continue	
  to	
  have	
  difficulty	
  reaching	
  the	
  adults	
  who	
  need	
  and	
  would	
  benefit	
  from	
  this	
  service.	
   	
   Mobile	
  Crisis	
  Assessments-­‐	
  Mobile	
  crisis	
  assessments	
  were	
  primarily	
  provided	
  in	
  family	
  homes,	
   hospitals,	
  or	
  the	
  CSB	
  ES	
  site.	
  Hospitals	
  were	
  the	
  assessment	
  site	
  for	
  39%	
  of	
  the	
  referrals	
  for	
   children	
  in	
  both	
  quarters.	
  This	
  demonstrates	
  good	
  knowledge	
  of	
  the	
  REACH	
  children’s	
  program	
   by	
  CSB	
  emergency	
  services.	
  The	
  vast	
  majority	
  of	
  children	
  in	
  FY16Q4	
  retained	
  their	
  family	
  setting	
   at	
  the	
  time	
  of	
  the	
  crisis	
  assessment	
  with	
  the	
  exception	
  of	
  Regions	
  III	
  and	
  IV.	
  These	
  two	
  regions	
   accounted	
  for	
  twenty-­‐six	
  (86.7%)	
  of	
  the	
  thirty	
  children	
  who	
  were	
  hospitalized.	
  This	
  represented	
   28%	
  of	
  all	
  children	
  assessed	
  for	
  a	
  crisis	
  were	
  admitted	
  to	
  a	
  hospital	
  or	
  psychiatric	
  hospital.	
   Seventy-­‐three	
  children	
  retained	
  their	
  settings	
  and	
  three	
  transitioned	
  to	
  alternative	
  settings.	
   Three	
  additional	
  children	
  retained	
  their	
  setting	
  with	
  mobile	
  crisis	
  support	
  and	
  one	
  received	
   residential	
  treatment	
  facility.	
  	
   	
   During	
  FY17Q1	
  a	
  similar	
  number	
  of	
  children	
  were	
  hospitalized	
  at	
  the	
  time	
  of	
  crisis	
  assessment.	
   Twenty-­‐seven	
  (22%)	
  children	
  were	
  hospitalized	
  at	
  the	
  time	
  of	
  assessment,	
  while	
  a	
  total	
  of	
   ninety-­‐five	
  (78%)	
  retained	
  their	
  setting,	
  most	
  without	
  needing	
  mobile	
  crisis	
  support.	
  The	
  same	
   pattern	
  of	
  the	
  greatest	
  number	
  and	
  percentage	
  of	
  children	
  hospitalized	
  exists	
  in	
  Regions	
  III	
  and	
   IV.	
  Eight	
  children	
  in	
  Region	
  III	
  and	
  twelve	
  children	
  in	
  Region	
  IV	
  were	
  hospitalized	
  during	
  this	
   quarter.	
  This	
  accounts	
  for	
  74%	
  of	
  the	
  hospitalizations	
  for	
  this	
  age	
  group.	
  This	
  appears	
  to	
  be	
   evidence	
  of	
  a	
  lack	
  of	
  effective	
  community-­‐based	
  alternatives	
  for	
  children	
  with	
  I/DD	
  in	
  these	
  two	
   regions.	
  This	
  should	
  be	
  a	
  focus	
  of	
  the	
  crisis	
  study	
  in	
  the	
  tenth	
  reporting	
  period.	
  It	
  is	
  critical	
  that	
   DBHDS	
  continues	
  to	
  develop	
  better	
  data	
  regarding	
  the	
  reasons	
  for	
  admission	
  to	
  psychiatric	
   hospitals	
  that	
  includes	
  data	
  on	
  the	
  lack	
  of	
  clinically	
  appropriate	
  community	
  services.	
  
	
   	
   	
   	
   	
   	
   	
  

	
  

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The	
  summaries	
  of	
  the	
  dispositions	
  are	
  included	
  below	
  in	
  Table	
  3-­‐Disposition	
  after	
  crisis	
  

assessment-­‐Children.	
  	
  

	
  

Table	
  3	
  

Disposition	
  after	
  crisis	
  assessment	
  –	
  Adults	
  

	
  

FY16Q4	
  

FY17Q1	
  

#	
  Assessed	
  

110	
  

105	
  

%	
  Hospitalized	
  

	
  	
  	
  27%	
  

	
  	
  22%	
  

%	
  Retained	
  their	
  home	
  	
  

	
  	
  69%	
  

	
  	
  78%	
  

%	
  With	
  an	
  alternative	
  setting	
  

	
  	
  	
  	
  3%	
  

	
  	
  	
  	
  0%	
  

	
  

Sixty-­‐two	
  children	
  used	
  mobile	
  crisis	
  supports	
  in	
  FY16Q4.	
  The	
  supports	
  helped	
  58	
  (94%)	
  

maintain	
  their	
  family	
  home.	
  Four	
  children	
  were	
  hospitalized.	
  Overall	
  176	
  children	
  received	
  

mobile	
  crisis	
  support	
  during	
  FY17Q1.	
  Mobile	
  crisis	
  supports	
  helped	
  160	
  (91%)	
  retain	
  their	
  

setting	
  of	
  whom	
  four	
  continued	
  to	
  rely	
  on	
  these	
  supports.	
  An	
  alternative	
  residence	
  was	
  needed	
  

and	
  offered	
  to	
  three	
  children.	
  Thirteen	
  (7%)	
  of	
  the	
  children	
  were	
  admitted	
  to	
  a	
  psychiatric	
  

hospital.	
  	
  

	
  

The	
  summaries	
  of	
  the	
  dispositions	
  are	
  included	
  below	
  in	
  Table	
  4-­‐Disposition	
  after	
  using	
  

REACH	
  mobile	
  crisis	
  services-­‐Children	
  	
  

	
  

Table	
  4	
  

Disposition	
  after	
  using	
  REACH	
  mobile	
  crisis	
  services	
  –	
  Children	
  

	
  

FY16Q4	
  

FY17Q1	
  

#	
  Using	
  Crisis	
  Mobile	
  Supports	
  

62	
  

176	
  

%	
  Hospitalized	
  

	
  	
  	
  	
  4	
  %	
  	
  

	
  	
  	
  	
  	
  	
  7%	
  

%	
  Retained	
  in	
  their	
  home	
  	
  

	
  	
  58	
  %	
  	
  

	
  	
  	
  	
  91%	
  

%	
  Who	
  transitioned	
  to	
  a	
  new	
  residence	
  

	
  	
  	
  	
  0%	
  

	
  	
  	
  	
  	
  	
  2%	
  

	
  

	
  

Psychiatric	
  Hospitalizations-­‐DBHDS	
  reports	
  supplemental	
  information	
  on	
  children	
  in	
  

psychiatric	
  hospitals	
  who	
  are	
  known	
  to	
  the	
  REACH	
  programs.	
  Forty-­‐one	
  children	
  were	
  admitted	
  

to	
  the	
  only	
  state	
  operated	
  psychiatric	
  children’s	
  hospital,	
  CCCA	
  in	
  FY16Q4.	
  REACH	
  reported	
  on	
  

the	
  disposition	
  of	
  thirty-­‐nine	
  of	
  them.	
  Twenty-­‐eight	
  children	
  returned	
  to	
  their	
  original	
  

community	
  setting	
  and	
  five	
  were	
  transitioned	
  to	
  an	
  alternative	
  community	
  residential	
  setting.	
  	
  

Two	
  others	
  returned	
  to	
  their	
  original	
  community	
  and	
  also	
  received	
  community	
  crisis	
  support;	
  

one	
  moved	
  to	
  a	
  residential	
  treatment	
  setting;	
  and	
  three	
  (8%)	
  were	
  still	
  hospitalized	
  at	
  the	
  time	
  

of	
  the	
  report.	
  

	
  

DBHDS	
  reported	
  that	
  fifty-­‐nine	
  children	
  were	
  hospitalized	
  in	
  the	
  state	
  operated	
  facility	
  during	
  

FY17Q1.	
  This	
  is	
  a	
  higher	
  number	
  than	
  the	
  forty	
  hospitalizations	
  that	
  DBHDS	
  reported	
  in	
  the	
  body	
  

of	
  its	
  FY17Q1	
  report	
  of	
  hospitalizations	
  made	
  at	
  the	
  time	
  of	
  the	
  crisis	
  assessment	
  or	
  after	
  

receiving	
  mobile	
  crisis	
  services.	
  The	
  higher	
  number	
  includes	
  children	
  who	
  were	
  hospitalized	
  

without	
  the	
  knowledge	
  or	
  involvement	
  of	
  REACH	
  staff	
  but	
  who	
  were	
  reported	
  to	
  REACH	
  by	
  the	
  

children’s	
  psychiatric	
  hospital	
  after	
  admission.	
  REACH	
  reported	
  on	
  the	
  dispositions	
  of	
  fifty-­‐eight	
  

	
  

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of	
  them.	
  Thirty-­‐nine	
  (67%)	
  of	
  these	
  children	
  returned	
  to	
  their	
  original	
  home	
  setting	
  including	
  

one	
  who	
  lived	
  with	
  another	
  family	
  member.	
  Six	
  (10%)	
  transitioned	
  to	
  an	
  alternative	
  residential	
  

setting.	
  However,	
  thirteen	
  (22%)	
  remained	
  hospitalized.	
  It	
  must	
  be	
  noted	
  that	
  there	
  are	
  no	
  out-­‐

of-­‐home	
  crisis	
  prevention	
  or	
  stabilization	
  settings	
  available	
  yet	
  for	
  children	
  with	
  I/DD.	
  The	
  lack	
  

of	
  this	
  support	
  in	
  all	
  likelihood	
  contributes	
  to	
  the	
  number	
  of	
  children	
  who	
  are	
  admitted	
  to	
  

psychiatric	
  hospitals	
  and	
  to	
  longer	
  duration	
  hospitalizations	
  than	
  necessary.	
  

	
  

The	
  summaries	
  of	
  the	
  dispositions	
  are	
  included	
  below	
  in	
  Table	
  5-­‐	
  Disposition	
  in	
  Psychiatric	
  

Addendum	
  	
  –	
  Children.	
  

	
  

Table	
  5	
  

Dispositions	
  in	
  Psychiatric	
  Addendum	
  	
  –	
  Children	
  

	
  

FY16Q4	
  

FY17Q1	
  

#	
  Hospitalized	
  during	
  the	
  quarter	
  and	
  reported	
  

39	
  

58	
  

%	
  Returned	
  to	
  their	
  home	
  

	
  	
  	
  77	
  %	
  	
  

	
  	
  	
  	
  67%	
  

%	
  Moved	
  to	
  an	
  alternative	
  residence	
  

	
  	
  13	
  %	
  	
  

	
  	
  	
  10%	
  

%	
  Who	
  were	
  still	
  hospitalized	
  

	
  	
  	
  	
  8%	
  

	
  	
  	
  	
  22%	
  

	
  

	
  

Retrospective	
  Studies	
  of	
  Adult	
  Civil	
  Admissions	
  with	
  Developmental	
  Disabilities	
  and	
  

Children	
  with	
  Developmental	
  Disabilities	
  Admissions	
  to	
  Psychiatric	
  Hospitals	
  

	
  

DBHDS	
  completed	
  two	
  retrospective	
  studies	
  in	
  September	
  2016	
  to	
  review	
  the	
  admissions	
  to	
  

psychiatric	
  hospitals	
  of	
  individuals	
  with	
  ID/D	
  that	
  occurred	
  between	
  July	
  1,	
  2014	
  and	
  June	
  30,	
  

2015.	
  The	
  purpose	
  was	
  to	
  analyze	
  the	
  data	
  to	
  determine	
  the	
  reasons	
  for	
  admissions;	
  the	
  need	
  for	
  

community	
  based	
  crisis	
  support;	
  and	
  particularly	
  to	
  assist	
  DBHDS	
  to	
  decide	
  the	
  need	
  for	
  

additional	
  CTH	
  settings	
  for	
  adults.	
  DBHDS	
  also	
  wanted	
  to	
  determine	
  how	
  to	
  best	
  provide	
  out-­‐of-­‐

home	
  crisis	
  stabilization	
  services	
  for	
  children.	
  DBHDS	
  approached	
  each	
  review	
  similarly.	
  DBHDS	
  

reviewed:	
  

	
  	
  

• Demographic	
  data;	
  	
  

• Admission	
  and	
  discharge	
  dates;	
  	
  

• Length	
  of	
  stay;	
  	
  

• Admission	
  and	
  discharge	
  diagnoses;	
  	
  

• Reasons	
  for	
  admission;	
  	
  

• Residence	
  prior	
  to	
  and	
  after	
  hospitalization;	
  	
  

• Opportunities	
  to	
  divert	
  psychiatric	
  admission;	
  and	
  	
  

• The	
  involvement	
  of	
  REACH	
  crisis	
  services.	
  	
  

	
  

DBHDS	
  made	
  a	
  number	
  of	
  recommendations	
  as	
  a	
  result	
  of	
  its	
  analysis.	
  DBHDS	
  also	
  established	
  

an	
  internal	
  review	
  committee	
  to	
  develop	
  and	
  to	
  implement	
  new	
  strategies	
  from	
  the	
  

recommendations.	
  This	
  committee	
  is	
  meeting	
  monthly.	
  

	
  

	
  

	
  

	
  

	
  

94	
  

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   Psychiatric	
  Admissions	
  of	
  Children	
  with	
  Developmental	
  Disabilities	
   	
   A	
  total	
  of	
  139	
  individuals	
  with	
  I/DD	
  were	
  admitted	
  to	
  the	
  Commonwealth	
  Center	
  for	
  Children	
   and	
  Adolescents	
  (CCCA)	
  in	
  FY15.	
  Thirty-­‐one	
  of	
  these	
  individuals	
  experienced	
  multiple	
   admissions,	
  which	
  totaled	
  seventy-­‐three.	
  These	
  thirty-­‐one	
  (22.3%)	
  individuals	
  account	
  for	
  40%	
   of	
  the	
  total	
  admissions	
  of	
  individuals	
  with	
  I/DD.	
  Twenty	
  children	
  were	
  admitted	
  twice;	
  eight	
  had	
   three	
  admissions;	
  two	
  had	
  four	
  admissions;	
  and	
  one	
  child	
  experienced	
  five	
  admissions.	
  The	
  age	
   range	
  of	
  these	
  children	
  is	
  wide.	
  While	
  most	
  (sixty	
  children)	
  are	
  15-­‐17	
  years	
  old,	
  thirty-­‐one	
  are	
   age	
  ten	
  or	
  younger	
  and	
  forty-­‐seven	
  are	
  between	
  11	
  and14	
  years	
  old.	
  Most	
  individuals	
  came	
  from	
   their	
  family	
  home	
  (111,	
  80%)	
  and	
  of	
  them	
  eighty-­‐three	
  (75%)	
  were	
  able	
  to	
  return	
  home.	
  While	
   only	
  sixteen	
  were	
  admitted	
  from	
  group	
  residences,	
  forty-­‐one	
  were	
  discharged	
  to	
  group	
   residences.	
  This	
  indicates	
  many	
  of	
  the	
  twenty-­‐eight	
  children	
  who	
  did	
  not	
  return	
  home	
   transitioned	
  to	
  community	
  residential	
  programs,	
  which	
  may	
  have	
  increased	
  the	
  length	
  of	
  stay	
   because	
  of	
  the	
  time	
  required	
  to	
  develop	
  new	
  residential	
  supports.	
  Six	
  of	
  the	
  children	
  moved	
  to	
   placements	
  out	
  of	
  state.	
  DBHDS	
  will	
  track	
  these	
  placement	
  and	
  attempt	
  to	
  return	
  individuals	
   when	
  they	
  are	
  stabilized.	
  One	
  of	
  the	
  children	
  was	
  re-­‐hospitalized	
  after	
  returning	
  from	
  a	
   placement	
  in	
  another	
  state	
  and	
  was	
  not	
  fully	
  stabilized	
  before	
  the	
  transition	
  occurred.	
  	
   	
   The	
  length	
  of	
  stay	
  (LOS)	
  in	
  psychiatric	
  hospitals	
  ranged	
  from	
  less	
  than	
  twenty-­‐four	
  hours	
  to	
  156	
   days,	
  with	
  a	
  median	
  of	
  thirteen	
  days	
  and	
  an	
  average	
  of	
  twenty-­‐three	
  days.	
  While	
  DBHDS	
  could	
   not	
  specifically	
  break	
  out	
  any	
  differences	
  in	
  the	
  LOS	
  by	
  age	
  group,	
  Ms.	
  Norton	
  confirmed	
  that	
  the	
   length	
  of	
  stays	
  were	
  typically	
  shorter	
  for	
  the	
  younger	
  children.	
  She	
  confirmed	
  that	
  the	
  majority	
   of	
  individuals	
  who	
  stayed	
  more	
  than	
  thirty	
  days	
  were	
  adolescents.	
  DBHDS	
  reports	
  that	
  the	
   diagnoses	
  of	
  the	
  children	
  admitted	
  included	
  ID	
  only	
  (43),	
  ID	
  and	
  DD	
  (36)	
  and	
  DD	
  (53).	
  Eight	
  of	
   the	
  children	
  were	
  determined	
  to	
  have	
  neither	
  an	
  ID	
  nor	
  a	
  DD	
  diagnosis.	
  	
  Of	
  the	
  seventy-­‐nine	
   without	
  an	
  ID	
  diagnosis,	
  seventy	
  had	
  Autism	
  and	
  another	
  nine	
  were	
  diagnosed	
  with	
  Asperger’s	
   Syndrome.	
  This	
  may	
  have	
  implications	
  for	
  the	
  development	
  of	
  appropriate	
  community	
   behavioral	
  supports	
  and	
  the	
  enhancement	
  of	
  the	
  skill	
  set	
  of	
  REACH	
  support	
  staff.	
  	
   	
   The	
  DBHDS	
  review	
  also	
  considered	
  the	
  mental	
  health	
  diagnosis	
  of	
  the	
  children.	
  Thirty-­‐one	
  of	
   them	
  did	
  not	
  have	
  any	
  co-­‐occurring	
  mental	
  health	
  diagnosis	
  but	
  rather	
  had	
  challenging	
   behaviors.	
  As	
  a	
  result,	
  these	
  children	
  may	
  not	
  have	
  had	
  a	
  long	
  stay	
   	
   The	
  reasons	
  given	
  for	
  admission	
  were	
  an	
  acute	
  mental	
  health	
  crisis	
  or	
  chronic	
  mental	
  health	
   disorders	
  and	
  related	
  behaviors,	
  yet	
  6.5%	
  did	
  not	
  have	
  a	
  mental	
  health	
  diagnosis	
  as	
  noted	
   earlier.	
  The	
  review	
  was	
  to	
  determine	
  if	
  any	
  admissions	
  could	
  have	
  been	
  diverted.	
  The	
  DBHDS	
   spoke	
  with	
  CCCA	
  staff	
  to	
  ascertain	
  their	
  clinical	
  judgment	
  regarding	
  the	
  possibilities	
  for	
   diversion.	
  The	
  DBHDS	
  clinicians	
  decided	
  forty	
  individuals	
  (24%)	
  of	
  the	
  admissions	
  could	
  have	
   been	
  diverted	
  if	
  there	
  were	
  functioning	
  crisis	
  services	
  program	
  available	
  in	
  their	
  communities,	
   including	
  REACH.	
  This	
  may	
  be	
  an	
  under	
  representation	
  for	
  several	
  reasons.	
  There	
  was	
  not	
  an	
  in-­‐ depth	
  review	
  of	
  the	
  issues	
  that	
  led	
  to	
  the	
  admissions;	
  the	
  REACH	
  Children’s	
  Programs	
  were	
  not	
   fully	
  functioning	
  during	
  FY15;	
  community	
  capacity	
  is	
  still	
  not	
  fully	
  developed;	
  out-­‐of-­‐home	
  crisis	
   stabilization	
  services	
  are	
  not	
  yet	
  readily	
  available.	
  	
   	
   	
   	
  

	
  

95	
  

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   Based	
  on	
  its	
  review,	
  DBHDS	
  made	
  the	
  following	
  recommendations:	
  	
  
• Determine	
  the	
  family	
  support	
  needs	
  that	
  exist	
  and	
  are	
  unmet;	
  	
   • Determine	
  how	
  best	
  to	
  ensure	
  appropriate	
  community	
  placement	
  including	
  training	
  and	
  
support	
  to	
  allow	
  the	
  return	
  of	
  the	
  child	
  to	
  their	
  family	
  home;	
  	
   • Target	
  training	
  and	
  resource	
  development	
  to	
  reduce	
  readmissions;	
  	
   • Determine	
  if	
  community	
  access	
  to	
  mental	
  health	
  care	
  for	
  individuals	
  with	
  mild	
  or	
  
moderate	
  ID	
  or	
  autism	
  can	
  result	
  in	
  better	
  outcomes;	
  	
   • Assess	
  how	
  to	
  include	
  behavioral	
  support	
  and	
  psychiatric	
  treatment	
  into	
  routine	
  clinical	
  
protocol	
  for	
  children	
  with	
  and	
  without	
  DD;	
  	
   • Promote	
  knowledge	
  and	
  use	
  of	
  clinical	
  tools	
  to	
  facilitate	
  better	
  diagnosis	
  and	
  treatment;	
  
determine	
  variance	
  in	
  admission	
  across	
  regions;	
  train	
  discharge	
  planners	
  to	
  orient	
  them	
   to	
  the	
  availability	
  of	
  community	
  resources;	
  	
   • Document	
  REACH	
  involvement	
  in	
  the	
  hospital	
  record;	
  and	
  	
   • Develop	
  out	
  of	
  home	
  crisis	
  stabilization	
  and	
  prevention	
  settings.	
  	
   	
   Planning	
  Out-­‐of-­‐Home	
  Crisis	
  Stabilization	
  Services	
  for	
  Children	
   	
   DBHDS	
  shared	
  the	
  DBHDS	
  Crisis	
  Prevention	
  and	
  Stabilization	
  Bed	
  Capacity	
  Children’s	
  Crisis	
   Services	
  Proposal	
  (10-­‐19-­‐16).	
  DBHDS	
  received	
  funding	
  for	
  FY17	
  and	
  FY18	
  to	
  expand	
  crisis	
   services	
  for	
  children	
  and	
  adults.	
  Based	
  on	
  its	
  analysis	
  of	
  the	
  psychiatric	
  admissions	
  DBHDS	
  has	
   proposed	
  a	
  three-­‐tiered	
  approach.	
  This	
  includes	
  the:	
  development	
  of	
  crisis	
  prevention	
  out	
  of	
   home	
  respite	
  care;	
  therapeutic	
  foster	
  care;	
  and	
  two	
  crisis	
  stabilization	
  program	
  (CTH)	
  settings	
  to	
   be	
  shared	
  by	
  all	
  five	
  regions.	
  These	
  out-­‐of-­‐home	
  supports	
  will	
  serve	
  children	
  who	
  range	
  in	
  age	
   from	
  3	
  to	
  17.	
   	
   DBHDS	
  has	
  $500,000	
  to	
  develop	
  respite	
  to	
  assist	
  families	
  to	
  prevent	
  a	
  crisis,	
  to	
  address	
  a	
  crisis	
   and	
  to	
  prevent	
  its	
  re-­‐occurrence.	
  An	
  RFP	
  is	
  being	
  developed.	
  REACH	
  programs	
  will	
  not	
   necessarily	
  directly	
  provide	
  the	
  respite	
  but	
  DBHDS	
  expects	
  the	
  crisis	
  respite	
  programs	
  to	
  be	
   linked	
  to	
  REACH.	
  The	
  funding	
  will	
  provide	
  approximately	
  250	
  respite	
  stays	
  of	
  five	
  days	
  on	
   average.	
  There	
  isn’t	
  a	
  timeline	
  yet	
  for	
  the	
  implementation	
  of	
  crisis	
  respite	
  for	
  children.	
  	
   	
   DBHDS	
  plans	
  to	
  develop	
  therapeutic	
  foster	
  care	
  to	
  offer	
  transitional	
  residential	
  settings	
  with	
   professional	
  behavioral	
  supports.	
  The	
  goal	
  of	
  therapeutic	
  foster	
  care	
  is	
  to	
  support	
  children	
   through	
  crises,	
  stabilize	
  them,	
  and	
  return	
  them	
  to	
  the	
  family	
  home.	
  The	
  service	
  will	
  link	
  with	
   REACH.	
  REACH	
  staff	
  will	
  insure	
  the	
  foster	
  and	
  natural	
  families	
  remain	
  in	
  communication	
  during	
   the	
  child’s	
  stay	
  in	
  foster	
  care.	
  The	
  Commonwealth	
  has	
  not	
  designated	
  funding	
  for	
  this	
  crisis	
   support	
  yet	
  so	
  no	
  timeline	
  has	
  been	
  set	
  for	
  this	
  development	
  nor	
  has	
  the	
  capacity	
  of	
  this	
   alternative	
  been	
  determined.	
   	
   The	
  CTHs	
  will	
  have	
  no	
  age	
  restriction	
  but	
  will	
  focus	
  on	
  the	
  needs	
  of	
  adolescents.	
  Two	
  CTHs	
  will	
   be	
  developed,	
  each	
  with	
  capacity	
  to	
  serve	
  six	
  children	
  at	
  one	
  time.	
  One	
  will	
  serve	
  children	
  in	
   Regions	
  I	
  and	
  II	
  and	
  one	
  will	
  serve	
  children	
  in	
  Regions	
  III,	
  IV	
  and	
  V.	
  	
  The	
  DBHDS	
  does	
  not	
  believe	
   the	
  data	
  support	
  the	
  need	
  for	
  one	
  CTH	
  in	
  each	
  region.	
  The	
  DBHDS	
  assumption	
  that	
  two	
  programs	
   with	
  a	
  total	
  capacity	
  of	
  twelve	
  beds	
  may	
  not	
  be	
  adequate	
  given	
  that	
  at	
  least	
  forty	
  admissions	
  to	
   CCCA	
  could	
  have	
  been	
  diverted	
  during	
  FY	
  2015.	
  Further	
  study	
  would	
  be	
  needed	
  once	
  the	
  two	
  

	
  

96	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 97 of 179 PageID# 7052 	
  

homes	
  open	
  to	
  determine	
  utilization,	
  capacity	
  and	
  waiting	
  lists,	
  if	
  any.	
  In	
  part	
  this	
  may	
  be	
   dependent	
  on	
  the	
  adequacy	
  of	
  the	
  other	
  aspects	
  of	
  out-­‐of-­‐home	
  support	
  and	
  the	
  success	
  of	
  these	
   supports	
  maintaining	
  children	
  in	
  their	
  homes	
  or	
  other	
  appropriate	
  community	
  settings.	
  	
  	
   	
   DBHDS	
  plans	
  to	
  issue	
  the	
  RFP	
  for	
  the	
  Children’s	
  crisis	
  stabilization	
  programs	
  (CTHs)	
  December	
   1,	
  2016.	
  DBHDS	
  is	
  optimistic	
  that	
  the	
  homes	
  will	
  be	
  available	
  within	
  nine	
  months,	
  by	
  September	
   1,	
  2017.	
  	
   	
   Psychiatric	
  Admissions	
  of	
  Adults	
  with	
  Developmental	
  Disabilities	
   	
   The	
  DBHDS	
  study	
  included	
  review	
  of	
  all	
  admissions	
  of	
  adults	
  with	
  I/DD	
  to	
  the	
  DBHDS	
  operated	
   Virginia	
  Mental	
  Health	
  Hospitals.	
  	
  A	
  total	
  of	
  269	
  individuals	
  with	
  DD	
  were	
  admitted	
  to	
  these	
   psychiatric	
  settings	
  in	
  FY15.	
  Forty-­‐two	
  of	
  these	
  individuals	
  experienced	
  multiple	
  admissions,	
   which	
  totaled	
  102	
  admissions,	
  which	
  is	
  38%	
  of	
  the	
  total	
  number	
  of	
  admissions.	
  	
  The	
  data	
  do	
  not	
   indicate	
  the	
  number	
  of	
  multiple	
  admissions	
  the	
  adults	
  experienced.	
  One	
  third	
  of	
  the	
  individuals	
   came	
  from	
  their	
  own	
  or	
  family’s	
  home	
  (89)	
  and	
  of	
  them	
  eighty-­‐five	
  were	
  able	
  to	
  return	
  home.	
   Fifty-­‐two	
  individuals	
  were	
  admitted	
  from	
  group	
  homes	
  and	
  returned	
  to	
  their	
  residence.	
  It	
  is	
   notable	
  that	
  such	
  a	
  large	
  percentage	
  of	
  the	
  individuals	
  who	
  had	
  their	
  own	
  home	
  or	
  lived	
  in	
  a	
   community	
  residence	
  were	
  able	
  to	
  return	
  to	
  it.	
  Thirteen	
  adults	
  were	
  admitted	
  to	
  the	
  psychiatric	
   hospitals	
  from	
  a	
  REACH	
  CTH.	
  The	
  CTHs	
  were	
  also	
  used	
  as	
  step-­‐down	
  settings	
  for	
  thirty-­‐three	
   (12.3%)	
  of	
  269	
  individuals	
  who	
  had	
  been	
  admitted	
  to	
  the	
  DBHDS	
  mental	
  health	
  hospitals.	
  It	
   would	
  be	
  interesting	
  to	
  have	
  data	
  as	
  to	
  whether	
  the	
  availability	
  of	
  the	
  REACH	
  CTH	
  resulted	
  in	
   shorter	
  lengths	
  of	
  stay.	
  	
   	
   The	
  lengths	
  of	
  stay	
  (LOS)	
  ranged	
  from	
  1	
  to	
  120	
  days,	
  including	
  102	
  individuals	
  who	
  stayed	
  for	
   more	
  than	
  thirty	
  days.	
  Of	
  these	
  64%	
  of	
  these	
  stayed	
  hospitalized	
  for	
  between	
  61	
  and	
  120	
  days.	
   Overall	
  115	
  individuals,	
  46%	
  of	
  the	
  total	
  number	
  of	
  admitted,	
  were	
  discharged	
  within	
  fourteen	
   days	
  of	
  admission.	
   	
   DBHDS	
  reported	
  the	
  diagnoses	
  of	
  the	
  adults	
  admitted	
  included	
  ID	
  (167),	
  ID	
  and	
  DD	
  (44)	
  and	
  DD	
   (25).	
  Twenty-­‐two	
  individuals	
  had	
  no	
  ID	
  or	
  DD	
  diagnosis	
  at	
  the	
  time	
  of	
  discharge,	
  although	
  they	
   had	
  a	
  diagnosis	
  of	
  ID	
  or	
  DD	
  at	
  the	
  time	
  of	
  admission.	
  DBHDS	
  assesses	
  that	
  these	
  original	
   diagnoses	
  may	
  have	
  been	
  driven	
  by	
  a	
  sense	
  that	
  a	
  developmental	
  disability	
  may	
  result	
  in	
  greater	
   access	
  to	
  community	
  supports	
  upon	
  discharge.	
  Of	
  the	
  individuals	
  with	
  DD,	
  fifty-­‐two	
  had	
  Autism	
   and	
  another	
  five	
  were	
  diagnosed	
  with	
  Asperger’s	
  Syndrome.	
  The	
  prevalence	
  of	
  these	
  diagnoses	
   among	
  the	
  hospitalized	
  adults	
  is	
  consistent	
  with	
  the	
  diagnoses	
  of	
  the	
  children	
  with	
  DD	
  who	
   experienced	
  psychiatric	
  hospital	
  admissions.	
  Similarly,	
  this	
  may	
  have	
  implications	
  for	
  the	
   development	
  of	
  appropriate	
  community	
  behavioral	
  supports	
  and	
  the	
  enhanced	
  skill	
  set	
  of	
   REACH	
  support	
  staff.	
  It	
  is	
  notable	
  that	
  the	
  prevalence	
  of	
  the	
  DD	
  diagnoses	
  was	
  similar	
  for	
  adults	
   and	
  children,	
  the	
  community-­‐based	
  REACH	
  programs	
  for	
  adults	
  serve	
  a	
  small	
  percent	
  of	
   individuals	
  with	
  a	
  DD,	
  other	
  than	
  ID,	
  diagnosis,	
  while	
  the	
  children’s	
  crisis	
  programs	
  serve	
  a	
  very	
   percentage	
  with	
  these	
  diagnoses.	
   	
   The	
  reasons	
  given	
  for	
  admission	
  were	
  the	
  same	
  as	
  for	
  children	
  as	
  for	
  adults:	
  	
  an	
  acute	
  mental	
   health	
  crisis	
  or	
  chronic	
  mental	
  health	
  disorders	
  and	
  related	
  behaviors.	
  There	
  was	
  no	
  detailed	
   analysis	
  of	
  each	
  person’s	
  community	
  living	
  situation	
  or	
  family	
  dynamics,	
  or	
  whether	
  	
  the	
  lack	
  of	
   available	
  community-­‐based	
  supports	
  may	
  have	
  contributed	
  to	
  the	
  need	
  for	
  these	
  admissions.	
  The	
  

	
  

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Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 98 of 179 PageID# 7053
	
  
DBHDS	
  review	
  was	
  to	
  determine	
  whether	
  any	
  admissions	
  could	
  have	
  been	
  diverted.	
  The	
  DBHDS	
   spoke	
  with	
  the	
  hospital	
  staff	
  to	
  ascertain	
  their	
  clinical	
  judgment	
  regarding	
  the	
  possibilities	
  for	
   diversion.	
  The	
  DBHDS	
  staff	
  decided	
  sixty-­‐four	
  	
  (24%)	
  of	
  the	
  admissions	
  could	
  have	
  been	
   diverted	
  if	
  there	
  were	
  functioning	
  crisis	
  services	
  in	
  the	
  community,	
  including	
  REACH.	
  This	
  may	
   be	
  an	
  under	
  representation	
  since	
  there	
  was	
  not	
  an	
  in-­‐depth	
  review	
  of	
  the	
  issues	
  that	
  led	
  to	
  the	
   admissions	
  and	
  the	
  determinations	
  are	
  based	
  on	
  the	
  clinical	
  opinion	
  and	
  judgment	
  of	
  hospital	
   based	
  clinicians	
  who	
  may	
  not	
  be	
  fully	
  aware	
  of	
  the	
  possible	
  range	
  of	
  community	
  supports	
  and	
   their	
  impact	
  on	
  maintaining	
  individuals	
  in	
  their	
  communities.	
  The	
  percentage	
  of	
  individuals	
   hospital	
  staff	
  thought	
  could	
  have	
  been	
  diverted	
  varied	
  from	
  13%	
  to	
  47%.	
  	
  These	
  differences	
  may	
   be	
  related	
  to	
  the	
  clinical	
  needs	
  of	
  the	
  individuals,	
  the	
  capacity	
  of	
  the	
  community	
  crisis	
  system	
  or	
   the	
  philosophy	
  of	
  hospital	
  staff	
  about	
  hospitalization	
  and	
  diversion.	
  Analyzing	
  the	
  reasons	
  for	
   these	
  discrepancies	
  might	
  inform	
  and	
  assist	
  DBHDS	
  to	
  develop	
  different	
  or	
  revised	
  strategies	
  to	
   assist	
  hospitals	
  to	
  think	
  through	
  the	
  assessment	
  of	
  appropriate	
  diversions.	
  	
   	
  
• REACH	
  was	
  expected	
  to	
  be	
  involved	
  with	
  all	
  adults	
  with	
  DD	
  who	
  were	
  admitted	
  to	
   psychiatric	
  hospitals	
  in	
  FY15.	
  The	
  hospital	
  documentation	
  indicated	
  that	
  REACH	
  was	
  only	
   involved,	
  however,	
  with	
  only	
  seventy-­‐six	
  (28%)	
  of	
  the	
  272	
  individuals.	
  REACH	
   involvement	
  with	
  individuals	
  ranged	
  from	
  0%	
  to	
  45%	
  depending	
  on	
  the	
  hospital.	
  DBHDS	
   reports	
  that	
  this	
  may	
  be	
  an	
  inaccurate	
  representation	
  of	
  REACH	
  involvement	
  since	
  it	
  may	
   reflect	
  inconsistent	
  documentation	
  by	
  the	
  hospitals.	
  DBHDS’s	
  analysis	
  did	
  not	
  include	
  a	
   crosscheck	
  with	
  the	
  REACH	
  programs.	
  However,	
  there	
  was	
  documentation	
  that	
  not	
  all	
   CSB	
  Emergency	
  Staff	
  or	
  MH	
  Hospital	
  staff	
  contacted	
  REACH	
  when	
  individuals	
  with	
  ID/DD	
   were	
  being	
  screened	
  or	
  admitted.	
  There	
  is	
  also	
  information	
  that	
  some	
  REACH	
  programs	
   may	
  have	
  limited	
  involvement	
  for	
  a	
  variety	
  of	
  reasons.	
  These	
  include:	
  	
  
• The	
  level	
  of	
  aggression	
  presented	
  by	
  the	
  individual	
  	
   • Elopement	
  risks	
  	
   • History	
  of	
  non-­‐compliance	
  with	
  medications	
  	
   • Intensity	
  of	
  the	
  medication	
  monitoring	
  that	
  would	
  be	
  required	
  after	
  discharge	
  from	
  the	
  
hospital	
  setting.	
  	
   	
   It	
  is	
  very	
  concerning	
  that	
  more	
  than	
  70%	
  of	
  individuals	
  admitted	
  to	
  these	
  hospitals	
  did	
  not	
   benefit	
  from	
  REACH	
  expertise	
  and	
  resources,	
  as	
  these	
  programs	
  were	
  required	
  to	
  prevent	
   unnecessary	
  institutionalization	
  and	
  to	
  provide	
  short-­‐term	
  alternatives.	
   	
   The	
  DBHDS	
  report	
  does	
  a	
  thorough	
  job	
  of	
  breaking	
  down	
  diagnoses	
  and	
  data	
  regarding	
  the	
   placements	
  of	
  individuals	
  before	
  admission	
  and	
  after	
  admission	
  by	
  the	
  sub-­‐populations	
  of	
  no	
  ID	
   or	
  DD;	
  mild	
  ID;	
  or	
  unspecified	
  or	
  borderline	
  ID.	
  This	
  includes	
  181	
  of	
  the	
  269	
  individuals,	
  of	
   whom	
  125	
  have	
  a	
  diagnosis	
  of	
  mild	
  ID.	
  These	
  individuals	
  may	
  not	
  always	
  be	
  eligible	
  for	
  waiver	
   services.	
  Forty	
  of	
  these	
  125	
  individuals	
  have	
  a	
  substance	
  abuse/use/dependence	
  disorder.	
  Only	
   one	
  other	
  individual	
  was	
  noted	
  as	
  having	
  a	
  substance	
  related	
  disorder	
  at	
  the	
  time	
  of	
  discharge.	
   There	
  are	
  no	
  recommendations	
  related	
  to	
  this	
  population	
  although	
  DBHDS	
  acknowledges	
  that	
   treatment	
  for	
  individuals	
  with	
  ID	
  or	
  DD	
  remains	
  challenging.	
   	
   	
   	
   	
  

	
  

98	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 99 of 179 PageID# 7054
	
  
	
   DBHDS	
  made	
  several	
  recommendations,	
  including	
  to:	
  
• determine	
  what	
  drives	
  re-­‐admissions	
  to	
  determine	
  needed	
  community	
  supports;	
  	
   • analyze	
  the	
  spike	
  in	
  admissions	
  for	
  the	
  51-­‐60	
  age	
  group;	
  	
   • compare	
  age	
  of	
  admission	
  with	
  the	
  non-­‐DD	
  admissions	
  to	
  determine	
  if	
  there	
  are	
  
identified	
  family	
  support	
  needs;	
  	
   • develop	
  supports	
  that	
  allow	
  all	
  individuals	
  to	
  return	
  home	
  when	
  home	
  remains	
  an	
  
appropriate	
  setting;	
  	
   • reduce	
  the	
  length	
  of	
  admissions;	
  	
   • create	
  better	
  access	
  for	
  individuals	
  with	
  mild	
  or	
  moderate	
  ID,	
  or	
  autism	
  spectrum	
  
disorder;	
  	
   • improve	
  	
  the	
  accuracy	
  of	
  diagnoses	
  by	
  community	
  practitioners	
  and	
  increase	
  their	
  use	
  
of	
  diagnostic	
  tools	
  and	
  effective	
  clinical	
  treatment;	
  	
   • train	
  MH	
  hospital	
  staff	
  to	
  address	
  challenging	
  behaviors	
  associated	
  with	
  DD;	
  	
   • determine	
  reasons	
  for	
  the	
  difference	
  in	
  admission	
  patterns	
  across	
  MH	
  hospitals;	
  	
   • train	
  MH	
  discharge	
  planners	
  and	
  social	
  work	
  staff	
  to	
  be	
  better	
  informed	
  about	
  
community	
  services	
  and	
  eligibility	
  criteria	
  for	
  various	
  program	
  services;	
  	
  	
   • improve	
  documentation	
  of	
  REAH	
  involvement;	
  and	
  	
   • determine	
  the	
  types	
  of	
  supports	
  the	
  individuals	
  identified	
  for	
  potential	
  diversion	
  
need.	
   	
   DBHDS	
  has	
  created	
  two	
  internal	
  work	
  groups	
  that	
  are	
  responsible	
  for	
  implementing	
  these	
   recommendations.	
  The	
  members	
  include	
  professionals	
  from	
  the:	
   • Division	
  of	
  Development	
  Services	
  including	
  facilities	
  and	
  community	
  operations	
   • Division	
  of	
  Mental	
  Health	
  and	
  Forensic	
  Services	
  including	
  facility	
  and	
  community	
  
operations	
   • Division	
  of	
  Quality	
  Management	
  and	
  Development	
  including	
  Data	
  Warehouse	
  and	
  Risk	
  
Management,	
  and	
   • Representatives	
  of	
  the	
  REACH	
  adult	
  and	
  children’s	
  programs	
  
	
   The	
  group	
  has	
  started	
  to	
  meet	
  monthly	
  and	
  plans	
  to	
  meet	
  through	
  FY17.	
  DBHDS	
  has	
  not	
  shared	
  a	
   specific	
  work	
  plan	
  or	
  the	
  expected	
  timeframes	
  for	
  implementation.	
   	
  	
   Expanding	
  the	
  Out-­‐Of	
  –Home	
  Crisis	
  Stabilization	
  Settings	
  for	
  Adults	
   	
   DBHDS	
  undertook	
  a	
  review	
  of	
  CTH	
  capacity	
  for	
  the	
  time	
  period:	
  12/1/15-­‐6/30/16	
  to	
  help	
   determine	
  if	
  additional	
  CTH	
  settings	
  are	
  needed.	
  The	
  CTHs	
  had	
  340	
  admissions	
  during	
  the	
  seven-­‐ month	
  period.	
  The	
  CTH	
  provides	
  crisis	
  stabilization	
  and	
  also	
  prevention	
  support.	
  One	
  hundred	
   fifty-­‐eight	
  (158)	
  of	
  the	
  admissions	
  were	
  for	
  prevention.	
  This	
  represents	
  46%	
  of	
  all	
  admissions	
  to	
   the	
  CTHs,	
  which	
  is	
  consistent	
  with	
  other	
  reporting	
  periods.	
  The	
  average	
  length	
  of	
  stay	
  for	
  these	
   visits	
  was	
  eight	
  days.	
  One	
  of	
  these	
  individuals	
  remains.	
  	
   	
   The	
  crisis	
  stabilizations	
  admissions	
  totaled	
  182	
  with	
  an	
  average	
  length	
  of	
  stay	
  of	
  twenty-­‐one	
   days.	
  All	
  regions	
  had	
  individual	
  stays	
  that	
  exceeded	
  the	
  thirty	
  days	
  expected.	
  The	
  reasons	
  for	
  the	
   longer	
  stays	
  varied	
  but	
  all	
  have	
  been	
  discharged.	
  The	
  DBHDS	
  report	
  notes	
  that	
  there	
  were	
  not	
   any	
  days	
  in	
  the	
  reporting	
  period	
  when	
  all	
  CTH	
  beds	
  were	
  filled	
  across	
  the	
  state.	
  However,	
  the	
  

	
  

99	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 100 of 179 PageID# 7055 	
  

report	
  does	
  not	
  specify	
  the	
  days	
  that	
  any	
  particular	
  CTH	
  had	
  all	
  of	
  its	
  beds	
  filled.	
  The	
  report	
  does	
   not	
  refer	
  to	
  a	
  waiting	
  list	
  although	
  the	
  REACH	
  quarterly	
  reports	
  now	
  include	
  this	
  data	
  as	
  of	
  the	
   FY17Q1	
  report.	
  	
   	
   DBHDS	
  reports	
  that	
  the	
  implementation	
  of	
  the	
  waiver	
  redesign	
  should	
  reduce	
  some	
  of	
  these	
   longer	
  stays.	
  There	
  is	
  a	
  new	
  emergency	
  reserve	
  HCBS	
  waiver	
  slot	
  process	
  that	
  can	
  result	
  in	
  more	
   timely	
  access	
  of	
  community	
  supports;	
  individuals	
  with	
  DD	
  will	
  have	
  access	
  to	
  a	
  broader	
  range	
  of	
   supports	
  including	
  24	
  hour	
  residential	
  support;	
  and	
  the	
  redesigned	
  waivers	
  will	
  include	
  a	
   customized	
  rate	
  to	
  fund	
  enhanced	
  services	
  effective	
  February	
  2017.	
  DBHDS	
  is	
  communicating	
   with	
  REACH	
  weekly	
  to	
  provide	
  updates	
  on	
  housing	
  development	
  for	
  individuals.	
  The	
  REACH	
   quarterly	
  reports	
  effective	
  October	
  2016	
  include	
  detailed	
  bed	
  capacity	
  data	
  that	
  allow	
  for	
  more	
   in-­‐depth	
  analysis.	
  Additionally	
  DBHDS	
  proposes	
  to	
  develop	
  two	
  adult	
  programs	
  to	
  function	
  as	
   step-­‐downs	
  from	
  psychiatric	
  hospitalization	
  and	
  enhanced	
  support	
  to	
  what	
  is	
  now	
  available	
   through	
  REACH.	
  These	
  two	
  settings	
  will	
  support	
  individuals	
  who	
  need	
  more	
  than	
  a	
  30-­‐day	
  stay	
   to	
  stabilize	
  or	
  to	
  transition	
  to	
  a	
  new	
  residential	
  setting.	
  DBHDS	
  anticipates	
  that	
  individuals	
  will	
   utilize	
  the	
  programs	
  for	
  up	
  to	
  six	
  months	
  while	
  comprehensive	
  clinical	
  assessments	
  are	
  done,	
   providers	
  are	
  comprehensively	
  trained	
  and	
  new	
  residential	
  settings	
  are	
  designed	
  as	
  needed.	
  The	
   DBHDS	
  has	
  the	
  funding	
  for	
  this	
  new	
  initiative	
  and	
  will	
  issue	
  an	
  RFP	
  for	
  housing	
  development	
   within	
  thirty	
  days.	
  DBHDS	
  anticipates	
  that	
  these	
  two	
  homes	
  will	
  be	
  available	
  within	
  nine	
  months	
   of	
  the	
  award	
  of	
  the	
  RFP.	
  For	
  these	
  new	
  settings,	
  DBHDS	
  will	
  use	
  the	
  architectural	
  design	
  of	
  the	
   new	
  community-­‐based	
  CTH	
  in	
  Region	
  IV	
  that	
  opened	
  in	
  September	
  2016.	
  	
   	
   	
   Summary	
  and	
  Recommendations	
   	
   Summary-­‐	
  DBHDS	
  continues	
  to	
  make	
  progress	
  implementing	
  the	
  crisis	
  services	
   recommendations	
  of	
  the	
  Settlement	
  Agreement.	
  There	
  is	
  evidence	
  of	
  continued	
  outreach	
  and	
   success	
  serving	
  adults	
  and	
  greater	
  coordination	
  with	
  the	
  CSB	
  ES	
  units.	
  The	
  adult	
  programs	
  are	
   serving	
  more	
  individuals	
  with	
  DD,	
  other	
  than	
  ID.	
  The	
  responses	
  to	
  all	
  crisis	
  referrals	
  were	
  face-­‐ to-­‐face	
  and	
  the	
  on-­‐site	
  response	
  time	
  was	
  above	
  90%	
  in	
  both	
  quarters.	
  REACH	
  staffs	
  are	
   participating	
  in	
  more	
  crisis	
  assessments	
  conducted	
  at	
  the	
  psychiatric	
  hospitals,	
  which	
  insures	
   that	
  the	
  person	
  is	
  immediately	
  linked	
  with	
  REACH	
  for	
  coordinated	
  discharge	
  planning	
  including	
   linkages	
  with	
  community	
  providers.	
  The	
  CTH	
  program	
  is	
  also	
  being	
  used	
  effectively	
  as	
  a	
  step-­‐ down	
  from	
  the	
  hospitals	
  for	
  some	
  individuals	
  in	
  the	
  population,	
  which	
  should	
  positively	
  impact	
   length	
  of	
  stay	
  for	
  some	
  individual’s	
  psychiatric	
  admission.	
  Individuals	
  are	
  most	
  commonly	
  able	
   to	
  return	
  to	
  their	
  previous	
  residential	
  setting.	
  	
   	
   It	
  is	
  positive	
  that	
  DBHDS	
  is	
  able	
  to	
  report	
  on	
  the	
  involvement	
  of	
  law	
  enforcement	
  in	
  crisis	
   responses	
  and	
  has	
  initiated	
  a	
  more	
  detailed	
  report	
  on	
  the	
  capacity	
  of	
  the	
  CTH	
  program,	
  which	
   includes	
  waiting	
  list	
  information.	
  	
   	
   The	
  Children’s	
  REACH	
  program	
  is	
  experiencing	
  an	
  increase	
  in	
  referrals.	
  The	
  referral	
  sources	
   evidence	
  a	
  positive	
  relationship	
  with	
  the	
  CSB	
  ES	
  units.	
  The	
  majority	
  of	
  individuals	
  served	
  have	
  a	
   diagnosis	
  of	
  DD	
  only,	
  or	
  a	
  combined	
  diagnosis	
  of	
  ID	
  and	
  DD	
  demonstrating	
  effective	
  outreach	
  to	
   this	
  population.	
  Crisis	
  assessments	
  are	
  conducted	
  face-­‐to-­‐face	
  but	
  it	
  is	
  concerning	
  that	
  the	
   response	
  time	
  dropped	
  to	
  86%	
  of	
  the	
  referrals	
  responded	
  to	
  within	
  the	
  one	
  and	
  two	
  hour	
   timeframes	
  with	
  significant	
  difficulty	
  meeting	
  the	
  expectation	
  in	
  the	
  two	
  urban	
  regions.	
  The	
  

	
  

100	
  

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assessments,	
  linkage,	
  training	
  and	
  in-­‐home	
  support	
  components	
  of	
  the	
  program	
  are	
  becoming	
   better	
  established.	
  One	
  stark	
  area	
  of	
  non-­‐compliance	
  with	
  the	
  requirements	
  of	
  the	
  Settlement	
   Agreement	
  is	
  the	
  lack	
  of	
  out-­‐of-­‐home	
  crisis	
  stabilization	
  for	
  children.	
  It	
  is	
  promising	
  that	
  DBHDS	
   has	
  developed	
  a	
  proposal	
  to	
  address	
  this	
  requirement	
  and	
  is	
  including	
  three	
  options	
  to	
  add	
  to	
   the	
  array	
  of	
  community-­‐based	
  crisis	
  supports	
  for	
  children.	
   	
   Recommendations-­‐	
  DBHDS	
  should	
  lead	
  the	
  development	
  of	
  the	
  plans	
  to	
  develop	
  crisis	
   stabilization	
  options	
  for	
  children,	
  and	
  add	
  the	
  two	
  CTH	
  settings	
  for	
  adults	
  that	
  will	
  afford	
  longer	
   planned	
  stays	
  when	
  clinically	
  appropriate.	
  DBHDS	
  should	
  insure	
  effective	
  coordination	
  with	
   REACH	
  if	
  other	
  providers	
  are	
  selected	
  to	
  operate	
  these	
  new	
  out-­‐of-­‐home	
  options	
  and	
  describe	
   how	
  REACH	
  will	
  be	
  involved	
  in	
  intake,	
  discharge	
  planning	
  and	
  oversight.	
  	
   	
   DBHDS	
  has	
  identified	
  the	
  work	
  groups	
  that	
  are	
  responsible	
  for	
  implementing	
  the	
  crisis	
  services	
   recommendations	
  that	
  emerged	
  from	
  its	
  reviews	
  of	
  psychiatric	
  admissions.	
  DBHDS	
  should	
  also	
   describe	
  the	
  resources	
  available	
  to	
  implement	
  the	
  recommendations,	
  the	
  reporting	
  required	
  of	
   the	
  assigned	
  individual	
  or	
  group,	
  and	
  the	
  expected	
  timeframes	
  for	
  implementation.	
   	
   All	
  of	
  the	
  recommendations	
  made	
  as	
  a	
  result	
  of	
  the	
  two	
  retrospective	
  reports	
  on	
  psychiatric	
   admissions	
  should	
  be	
  implemented	
  and	
  the	
  status	
  should	
  be	
  reported	
  periodically	
  to	
  the	
  Expert	
   and	
  Independent	
  Reviewers.	
  The	
  DBHDS	
  focus	
  on	
  psychiatric	
  admissions,	
  and	
  current	
   monitoring	
  of	
  these	
  admissions	
  to	
  ensure	
  REACH	
  involvement	
  from	
  the	
  onset,	
  is	
  very	
   encouraging.	
  It	
  will	
  be	
  useful	
  in	
  determining	
  the	
  outcomes	
  of	
  this	
  greater	
  attention	
  to	
  admissions	
   to	
  have	
  more	
  detailed	
  information	
  about	
  the	
  causes	
  of	
  admissions;	
  the	
  reasons	
  for	
  lengthy	
   admissions;	
  and	
  a	
  clear	
  sense	
  of	
  the	
  criteria	
  to	
  determine	
  when	
  diversions	
  are	
  indicated.	
  	
   	
   	
   Submitted	
  by:	
   	
   Kathryn	
  du	
  Pree	
   Expert	
  Reviewer	
   November	
  15,	
  2016	
  

	
  

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APPENDIX C SUPPORTED EMPLOYMENT
By: Kathryn du Pree MPS
	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 103 of 179 PageID# 7058 	
  

Employment	
  Services	
  –Status	
  Briefing	
  on	
  the	
  Implementation	
  of	
  the	
   Commonwealth’s	
  Settlement	
  Agreement	
  Requirements	
  
	
   November	
  2016	
   	
   Introduction	
   This	
  is	
  the	
  ninth	
  review	
  of	
  employment	
  services	
  as	
  developed	
  by	
  the	
  Commonwealth	
  in	
   response	
  to	
  the	
  Settlement	
  Agreement.	
  	
   	
   In	
  its	
  Settlement	
  Agreement	
  with	
  the	
  U.S.	
  Department	
  of	
  Justice,	
  the	
  Commonwealth	
  of	
   Virginia,	
  committed	
  to	
  the	
  extent	
  that	
  it	
  offered	
  services,	
  that	
  it	
  would	
  do	
  so	
  “in	
  the	
  most	
   integrated	
  setting	
  appropriate	
  to	
  meet	
  the	
  needs	
  of	
  individuals	
  with	
  ID	
  and	
  DD”.	
  In	
  part	
  to	
   fulfill	
  this	
  commitment,	
  the	
  Commonwealth:	
  	
  

• Established	
  a	
  statewide	
  Employment	
  First	
  policy,	
  	
   • Developed	
  a	
  plan	
  to	
  increase	
  integrated	
  day	
  opportunities,	
  including	
  employment,	
  	
   • Established	
  “targets	
  for	
  employment	
  services	
  to	
  support	
  individuals	
  in	
  integrated	
  
work	
  settings	
  where	
  they	
  are	
  paid	
  minimum	
  or	
  competitive	
  wages,	
  and	
  	
  
• Committed	
  to	
  develop	
  and	
  discuss	
  employment	
  goals	
  at	
  least	
  annually	
  through	
  a	
   person-­‐centered	
  planning	
  process	
  and	
  included	
  in	
  ISPs.	
  	
  
	
   The	
  targets	
  established	
  by	
  the	
  Commonwealth	
  reflect	
  these	
  commitments.	
  They	
  include	
   increased	
  participation	
  of	
  individuals	
  with	
  ID	
  and	
  DD	
  in	
  individual	
  supported	
  employment,	
   which	
  occurs	
  in	
  integrated	
  settings.	
  The	
  targets	
  project	
  increasing	
  the	
  number	
  of	
   individuals	
  in	
  the	
  preferred	
  Individual	
  Supported	
  Employment	
  (ISE)	
  by	
  282%	
  while	
  only	
   projecting	
  the	
  increase	
  in	
  Group	
  Supported	
  Employment	
  (GSE)	
  by	
  45.0%	
  (see	
  Table	
  2	
   below).	
  	
  Achieving	
  these	
  targets	
  will	
  represent	
  a	
  significant	
  shift	
  away	
  from	
  Virginia’s	
   approach,	
  since	
  it	
  joined	
  the	
  HCBS	
  waiver	
  program,	
  of	
  providing	
  services	
  by	
  congregating	
   individuals	
  with	
  ID/DD	
  together	
  in	
  groups	
  and	
  in	
  segregated	
  settings.	
   	
   Previous	
  reviews	
  of	
  the	
  Commonwealth’s	
  plans	
  for	
  employment	
  and	
  integrated	
  day	
  activity	
   development	
  and	
  the	
  current	
  status	
  of	
  implementation	
  have	
  included	
  a	
  review	
  of	
   documents,	
  interviews	
  and	
  focus	
  groups.	
  The	
  documents	
  reviewed	
  included	
  plans;	
  work	
   group	
  meeting	
  minutes;	
  proposals;	
  RFPs;	
  data;	
  and	
  employment	
  plans	
  for	
  individuals	
  with	
   HCBS	
  waiver	
  funded	
  services.	
  The	
  interviews	
  and	
  focus	
  groups	
  were	
  with	
  key	
  DBHDS	
  staff,	
   CSB	
  staff	
  and	
  members	
  of	
  the	
  Supported	
  Employment	
  Leadership	
  Network	
  (SELN),	
  which	
   has	
  been	
  renamed	
  the	
  Employment	
  First	
  Advisory	
  Group	
  (EFAG).	
   	
   During	
  the	
  ninth	
  review	
  period	
  DBHDS,	
  CSBs	
  and	
  providers	
  are	
  in	
  the	
  midst	
  of	
  waiver	
   reform	
  and	
  related	
  service	
  development.	
  The	
  Independent	
  Reviewer,	
  Donald	
  Fletcher,	
  and	
   DBHDS	
  agreed	
  that	
  this	
  review	
  would	
  be	
  limited	
  to	
  the	
  implementation	
  of	
  priorities	
  of	
   employment.	
  This	
  review	
  is	
  based	
  primarily	
  on	
  a	
  review	
  of	
  the	
  following	
  documents:	
  	
   	
  
• DBHDS	
  Semi-­‐Annual	
  Employment	
  Report	
  dated	
  10/1/2016(June	
  2016	
  data);	
  	
   • Regional	
  Quality	
  Council	
  and	
  EFAG	
  meeting	
  minutes;	
  and	
  	
   • The	
  DBHDS	
  Community	
  Engagement	
  Plan	
  Update.	
  	
  

	
  

103	
  

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   I	
  also	
  interviewed	
  five	
  members	
  of	
  the	
  EFAG	
  to	
  discuss	
  their	
  involvement	
  in	
  reviewing	
  the	
   employment	
  targets	
  and	
  interviewed	
  Heather	
  Norton,	
  Director	
  of	
  Community	
  Support	
   Services.	
  I	
  greatly	
  appreciate	
  Ms.	
  Norton’s	
  time,	
  as	
  she	
  is	
  currently	
  coordinating	
  much	
  of	
  the	
   department’s	
  responsibilities	
  to	
  successfully	
  accomplish	
  waiver	
  reform.	
   	
   Employment	
  Achievements	
  	
   DBHDS	
  continues	
  to	
  collect	
  and	
  analyze	
  employment	
  data	
  semi-­‐annually.	
  The	
  most	
  recent	
   report	
  is	
  the	
  fourth	
  semi-­‐annual	
  collection	
  of	
  relevant	
  employment	
  data	
  from	
  the	
   Department	
  of	
  Aging	
  and	
  Rehabilitative	
  Services	
  (DARS),	
  the	
  Department	
  of	
  Medical	
   Assistance	
  Services	
  (DMAS),	
  and	
  employment	
  service	
  organizations	
  (ESO)	
  that	
  provide	
   HCBS	
  waiver	
  funded	
  employment	
  services	
  to	
  individuals	
  with	
  ID	
  and	
  DD.	
  Notably	
  DBHDS	
   received	
  data	
  from	
  100%	
  of	
  the	
  ESOs.	
  During	
  the	
  previous	
  reporting	
  period	
  DBHDS	
  had	
   achieved	
  a	
  93%	
  response	
  rate.	
  This	
  is	
  a	
  note	
  worthy	
  achievement	
  and	
  reflects	
  the	
   collaboration	
  of	
  DBHDS,	
  DARS,	
  and	
  the	
  EFAG	
  data	
  subcommittee	
  coupled	
  with	
   responsiveness	
  of	
  the	
  provider	
  community.	
  It	
  is	
  also	
  important	
  to	
  note	
  that	
  with	
  three	
   additional	
  providers	
  reporting,	
  the	
  numbers	
  of	
  individuals	
  reported	
  being	
  served	
  in	
   December	
  2015	
  couldn’t	
  be	
  compared	
  to	
  June	
  2016	
  to	
  determine	
  the	
  extent	
  of	
  changes	
   between	
  subgroups	
  during	
  this	
  six-­‐month	
  period.	
   	
   The	
  following	
  summarizes	
  the	
  employment	
  status	
  of	
  individuals	
  with	
  ID	
  or	
  DD	
  who	
   participate	
  in	
  DARS	
  or	
  DBHDS	
  waiver	
  funded	
  employment	
  services	
  June	
  2106.	
  This	
  includes	
   data	
  from	
  100%	
  of	
  ESO	
  providers.	
  	
  A	
  total	
  of	
  4,606	
  individuals	
  participated	
  in	
  individual	
   supported	
  employment	
  (ISE),	
  group	
  supported	
  employment	
  (GSE)	
  and	
  sheltered	
   employment,	
  as	
  follows:	
   	
  
• 2174	
  individuals	
  were	
  in	
  ISE,	
   • 1240	
  were	
  in	
  GSE,	
  and	
   • 1192	
  were	
  in	
  sheltered	
  workshops.	
   	
   The	
  data	
  reported	
  as	
  of	
  June	
  2016	
  includes	
  388	
  more	
  individuals	
  participating	
  in	
   employment	
  and	
  sheltered	
  work	
  programs	
  than	
  the	
  incomplete	
  number	
  reported	
  by	
  93%	
  of	
   the	
  ESO	
  providers	
  in	
  December	
  2015	
  when	
  4218	
  were	
  reported.	
  Of	
  the	
  additional	
  388	
   individuals	
  reported:	
  	
   	
   • +49	
  (12.6%)	
  were	
  in	
  Individual	
  Supported	
  Employment	
   • +329	
  (84.8%)	
  were	
  participating	
  in	
  Group	
  Supported	
  Employment,	
  and	
   • +10	
  (2.58%)	
  were	
  in	
  sheltered	
  workshops.	
   	
   DBHDS	
  has	
  identified	
  15,429	
  individuals	
  with	
  I/DD	
  in	
  the	
  Commonwealth	
  who	
  are	
  either	
   participating	
  in	
  a	
  HCBS	
  waiver	
  or	
  are	
  on	
  the	
  waiting	
  list	
  for	
  HCBS	
  services.	
  Of	
  this	
  number	
   3414	
  are	
  now	
  in	
  either	
  ISE	
  or	
  GSE	
  including	
  HCBS,	
  DARS	
  and	
  other	
  employment	
  programs.	
   Overall	
  22%	
  of	
  the	
  total	
  number	
  of	
  individuals	
  with	
  ID	
  or	
  DD	
  identified	
  by	
  DBHDS	
  is	
  in	
  ISE	
   or	
  GSE	
  compared	
  to	
  20%	
  in	
  December	
  2015.	
   	
  

	
  

104	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 105 of 179 PageID# 7060 	
  

The	
  majority	
  of	
  individuals	
  (73%)	
  in	
  ISE	
  are	
  in	
  a	
  DARS	
  funded	
  program.	
  Of	
  the	
  2174	
  in	
  ISE,	
   1587	
  are	
  in	
  Extended	
  Employment	
  Services	
  (EES),	
  Long-­‐Term	
  Employment	
  Support	
   Services	
  (LTESS)	
  or	
  another	
  DARS	
  program;	
  whereas	
  only	
  225	
  (10.3%)	
  of	
  the	
  individuals	
  in	
   ISE	
  are	
  in	
  HCBS	
  waiver-­‐funded	
  programs.	
  More	
  individuals	
  are	
  noted	
  as	
  being	
  in	
  ISE	
  (362)	
   in	
  the	
  “other”	
  than	
  receive	
  ISE	
  through	
  a	
  waiver	
  program.	
  	
  Of	
  the	
  individuals	
  in	
  GSE	
  only	
  84	
   (6.8%)	
  are	
  funded	
  by	
  DARS.	
  The	
  “other”	
  category	
  accounts	
  for	
  491	
  of	
  the	
  individuals	
   participating	
  in	
  GSE.	
  Given	
  the	
  high	
  number	
  of	
  individuals	
  in	
  the	
  “Other”	
  category	
  DBHDS	
   should	
  report	
  more	
  specifically	
  about	
  its	
  funding	
  sources.	
  	
   	
   DBHDS	
  has	
  identified	
  15,429	
  individuals	
  as	
  being	
  the	
  total	
  number	
  of	
  individuals	
  with	
  I/DD	
   on	
  the	
  waivers	
  or	
  on	
  the	
  waiver	
  waiting	
  list.	
  This	
  number	
  is	
  used	
  to	
  calculate	
  the	
  target	
  of	
   25%	
  of	
  these	
  individuals	
  being	
  employed	
  by	
  June	
  2019.	
  	
  DBHDS	
  reports	
  as	
  of	
  June	
  2016	
   that	
  overall	
  18%	
  (2471)	
  of	
  the	
  total	
  ID	
  population	
  and	
  57%	
  (925)	
  of	
  the	
  DD	
  population	
  is	
   employed	
  in	
  either	
  ISE	
  or	
  GSE.	
   	
   It	
  is	
  notable	
  that	
  of	
  the	
  925	
  individuals	
  with	
  DD,	
  other	
  than	
  ID	
  who	
  are	
  employed,	
  85%	
   (788)	
  participate	
  in	
  ISE,	
  whereas	
  only	
  44%(1103)	
  of	
  the	
  2471	
  individuals	
  with	
  ID	
  in	
  a	
  work	
   setting	
  participate	
  in	
  ISE.	
  	
   	
   Although	
  pre-­‐vocational	
  services	
  will	
  no	
  longer	
  be	
  a	
  waiver	
  service,	
  565	
  individuals	
  were	
   reported	
  being	
  served	
  in	
  prevocational	
  HCBS	
  waiver	
  services	
  as	
  of	
  June	
  2016.	
  Prevocational	
   Services	
  are	
  provided	
  in	
  segregated	
  sheltered	
  workshop	
  settings.	
  	
  Ms.	
  Norton	
  explained	
   that	
  comparing	
  the	
  numbers	
  of	
  individuals	
  who	
  were	
  reported	
  in	
  each	
  employment	
   subgroup	
  as	
  of	
  June	
  2016	
  to	
  the	
  numbers	
  reported	
  in	
  December	
  2015	
  could	
  lead	
  to	
   incorrect	
  conclusions.	
  For	
  example,	
  a	
  comparison	
  shows	
  that	
  ten	
  more	
  individuals	
  are	
  in	
   sheltered	
  work	
  as	
  of	
  June	
  2016.	
  This	
  is	
  not	
  necessarily	
  an	
  increase	
  in	
  the	
  number	
  of	
  actual	
   individuals	
  in	
  sheltered	
  work	
  but	
  rather	
  an	
  outcome	
  of	
  better	
  reporting.	
  One	
  of	
  the	
   providers	
  that	
  reported	
  for	
  the	
  first	
  time,	
  however,	
  reported	
  serving	
  100	
  individuals	
  in	
   sheltered	
  work.	
  Rather	
  than	
  an	
  increase	
  of	
  ten	
  individuals,	
  there	
  may	
  have	
  been	
  a	
  decrease	
   of	
  90	
  individuals,	
  because	
  these	
  100	
  individuals	
  had	
  not	
  previously	
  been	
  counted.	
  	
   	
   The	
  Commonwealth’s	
  continued	
  reliance	
  on	
  this	
  service	
  type	
  in	
  segregated	
  settings	
  as	
   recently	
  as	
  June	
  2106	
  is	
  troubling	
  in	
  light	
  of	
  the	
  removal	
  of	
  this	
  service	
  from	
  the	
  revised	
   HCBS	
  waiver	
  service	
  array.	
  It	
  is	
  promising	
  that	
  DBHDS	
  is	
  providing	
  technical	
  assistance	
  to	
   many	
  of	
  the	
  providers	
  of	
  pre-­‐vocational	
  services.	
  Doing	
  so	
  will	
  help	
  willing	
  providers	
  to	
   convert	
  to	
  be	
  able	
  to	
  offer	
  community-­‐based	
  employment	
  programs,	
  community	
   engagement	
  programs,	
  or	
  a	
  combination	
  of	
  community-­‐based	
  employment	
  and	
  inclusive	
   activities.	
   	
   As	
  of	
  June	
  2016	
  DBHDS	
  reported	
  that	
  1563	
  (45.8%)	
  of	
  the	
  3414	
  of	
  the	
  individuals	
  in	
   supported	
  employment	
  work	
  between	
  10	
  and	
  20	
  hours	
  per	
  week.	
  This	
  includes	
  676	
  in	
  GSE	
   and	
  887	
  in	
  ISE.	
  Table	
  1	
  summarizes	
  the	
  amount	
  of	
  hours	
  worked	
  for	
  everyone	
  known	
  to	
   work	
  in	
  ISE	
  or	
  GSE.	
   	
   	
   	
   	
  

	
  

105	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 106 of 179 PageID# 7061 	
  

Table	
  1	
  Hours	
  Worked	
  by	
  Individuals	
  in	
  ISE	
  and	
  GSE	
  

Range	
  of	
  Hours	
  

ISE	
  

GSE	
  

Total	
  

<	
  10	
  

368	
  

158	
  

526	
  

10-­‐20	
  

887	
  

676	
  

1563	
  

21-­‐30	
  

474	
  

293	
  

767	
  

31-­‐39	
  

247	
  

36	
  

283	
  

40	
  or	
  more	
  

172	
  

48	
  

220	
  

Unknown	
  

26	
  

29	
  

55	
  

	
  

	
  DBHDS	
  provides	
  more	
  detailed	
  information	
  on	
  the	
  number	
  of	
  hours	
  worked	
  in	
  this	
  semi-­‐

annual	
  employment	
  report	
  than	
  in	
  prior	
  reporting	
  periods.	
  The	
  December	
  2015	
  Semi-­‐

Annual	
  Employment	
  Report	
  noted	
  that	
  individuals	
  in	
  employment	
  worked	
  an	
  average	
  of	
  21	
  

hours	
  per	
  week.	
  The	
  data	
  in	
  the	
  draft	
  June	
  2016	
  Semi-­‐Annual	
  Employment	
  Report	
  indicates	
  

that	
  61.2%	
  of	
  individuals	
  in	
  ISE	
  and	
  GSE	
  for	
  whom	
  hours	
  are	
  reported,	
  work	
  20	
  or	
  fewer	
  

hours.	
  

	
  

DBHDS	
  has	
  a	
  goal	
  that	
  at	
  least	
  85%	
  of	
  individuals	
  who	
  are	
  employed	
  will	
  maintain	
  their	
  

jobs	
  for	
  12	
  months	
  or	
  more.	
  The	
  most	
  recent	
  semi-­‐annual	
  report	
  includes	
  length	
  of	
  

employment	
  data	
  for	
  3384	
  individuals	
  of	
  whom	
  89%	
  (3025)	
  have	
  been	
  employed	
  for	
  at	
  

least	
  one	
  year.	
  

	
  

DBHDS	
  reports	
  on	
  wages	
  for	
  the	
  population.	
  These	
  data	
  include	
  3414	
  individuals	
  in	
  either	
  

ISE	
  or	
  GSE	
  of	
  whom	
  wages	
  are	
  unknown	
  for	
  51	
  of	
  them.	
  Wages	
  are	
  known	
  for	
  3363	
  of	
  the	
  

individuals.	
  	
  Of	
  these	
  workers,	
  477	
  (14.2%)	
  make	
  less	
  than	
  minimum	
  wage;	
  918	
  (27.3%)	
  

receive	
  minimum	
  wage;	
  and	
  1968	
  (59%)	
  earn	
  more	
  than	
  minimum	
  wage.	
  All	
  but	
  three	
  of	
  

the	
  individuals	
  who	
  earn	
  less	
  than	
  minimum	
  wage	
  are	
  in	
  GSE.	
  There	
  is	
  a	
  significant	
  

reduction	
  in	
  this	
  number	
  from	
  the	
  previous	
  report	
  when	
  41%	
  of	
  individuals	
  in	
  GSE	
  were	
  

paid	
  less	
  than	
  the	
  minimum.	
  Included	
  in	
  this	
  report,	
  however,	
  is	
  that	
  1,192	
  individuals	
  

(DARS-­‐	
  and	
  waiver-­‐funded)	
  remain	
  being	
  served	
  in	
  segregated	
  sheltered	
  workshop	
  

settings.	
  Of	
  these	
  individuals	
  724	
  (60.7%)	
  are	
  paid	
  less	
  than	
  minimum	
  wage	
  for	
  their	
  work.	
  

	
  

Targets	
  

DBHDS	
  has	
  established	
  numerical	
  targets	
  for	
  the	
  number	
  of	
  individuals	
  who	
  will	
  be	
  

employed	
  through	
  2019.	
  These	
  targets	
  project	
  steady	
  increases	
  in	
  the	
  number	
  of	
  

individuals	
  who	
  will	
  be	
  receiving	
  both	
  ISE	
  and	
  GSE.	
  The	
  Commonwealth	
  has	
  committed	
  to	
  

an	
  overall	
  goal	
  of	
  assisting	
  25%	
  of	
  its	
  citizens	
  with	
  intellectual	
  or	
  developmental	
  disabilities	
  

to	
  work.	
  They	
  determine	
  the	
  goal	
  based	
  on	
  a	
  calculation	
  of	
  the	
  total	
  number	
  of	
  individuals	
  

with	
  ID	
  or	
  DD,	
  ages	
  18-­‐64,	
  on	
  the	
  HCBS	
  waivers	
  or	
  on	
  the	
  waiver	
  wait	
  lists,	
  as	
  of	
  June	
  30,	
  

2016.	
  This	
  totals	
  15,429	
  individuals.	
  DBHDS	
  reports	
  achieving	
  the	
  goal	
  will	
  result	
  in	
  3,857	
  

individuals	
  being	
  employed	
  by	
  June	
  30,	
  2019.	
  	
  This	
  is	
  the	
  target	
  number	
  established	
  in	
  the	
  

Semi-­‐Annual	
  Draft	
  Report	
  on	
  Employment	
  dated	
  10/1/2016.	
  This	
  goal	
  is	
  strictly	
  

represented	
  by	
  the	
  total	
  number	
  that	
  the	
  Commonwealth	
  projects	
  will	
  be	
  employed.	
  	
  There	
  

is	
  no	
  breakdown	
  by	
  program	
  area	
  or	
  by	
  funding	
  source	
  with	
  the	
  exception	
  of	
  the	
  increased	
  

employment	
  projected	
  for	
  the	
  HCBS	
  waiver	
  programs,	
  which	
  is	
  depicted	
  in	
  Table	
  2	
  below.	
  I	
  

have	
  noted	
  in	
  previous	
  reports	
  that	
  it	
  would	
  be	
  useful	
  to	
  establish	
  sub-­‐targets	
  including	
  for	
  

	
  

106	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 107 of 179 PageID# 7062 	
  

school	
  graduates,	
  individuals	
  transitioning	
  from	
  sheltered	
  work,	
  and	
  individuals	
  

transitioning	
  from	
  the	
  training	
  schools.	
  

	
  

As	
  of	
  the	
  draft	
  June	
  2016	
  Semi-­‐Annual	
  Employment	
  Report,	
  with	
  100%	
  of	
  ESOs	
  and	
  DARS	
  

reporting,	
  3,414	
  individuals	
  were	
  employed	
  in	
  ISE	
  or	
  GSE	
  in	
  DARS	
  and	
  HCBS	
  waiver-­‐funded	
  

programs.	
  In	
  December	
  2015,	
  with	
  93%	
  ESOs	
  reporting,	
  there	
  were	
  3,036	
  individuals	
  

reported	
  in	
  DARS	
  or	
  HCBS	
  waiver	
  employment	
  programs.	
  This	
  is	
  an	
  additional	
  378	
  

individuals,	
  however,	
  we	
  cannot	
  be	
  certain	
  that	
  all	
  of	
  this	
  12%	
  increase	
  occurred	
  in	
  the	
  six-­‐

month	
  period.	
  It	
  does	
  appear	
  that	
  achieving	
  the	
  goal	
  of	
  3,857	
  individuals	
  in	
  ISE	
  or	
  GSE	
  in	
  

three	
  years	
  is	
  very	
  attainable.	
  The	
  Commonwealth	
  would	
  need	
  to	
  increase	
  employment	
  by	
  

approximately	
  145	
  individuals	
  in	
  each	
  of	
  the	
  next	
  three	
  years.	
  	
  

	
  

DBHDS	
  has	
  also	
  set	
  targets	
  for	
  increasing	
  the	
  number	
  of	
  individuals	
  participating	
  in	
  HCBS	
  

waiver	
  ISE	
  and	
  GSE	
  services.	
  The	
  department	
  has	
  clarified	
  these	
  goals	
  in	
  the	
  most	
  recent	
  

semi-­‐annual	
  employment	
  report.	
  These	
  targets	
  summarized	
  in	
  Table	
  2.	
  

	
  

Table	
  2	
  DBHDS	
  Goal	
  to	
  Increase	
  Employment	
  in	
  the	
  HCBS	
  Waivers	
  

Fiscal	
  Year	
  

ISE	
  

GSE	
  

Total	
  

2016	
  

211	
  

597	
  

808	
  

2017	
  

301	
  

631	
  

932	
  

2018	
  

566	
  

731	
  

1297	
  

2019	
  

830	
  

831	
  

1661	
  

2020	
  

1095	
  

931	
  

2026	
  

#	
  increase	
  

884	
  

334	
  

1218	
  

%	
  increase	
  

+419%	
  

55.9%	
  

151.0%	
  

	
  

The	
  actual	
  numbers	
  of	
  individuals	
  in	
  ISE	
  and	
  GSE	
  at	
  the	
  end	
  of	
  FY16	
  (6/30/16)	
  are:	
  225	
  in	
  

ISE	
  and	
  665	
  in	
  GSE.	
  These	
  achievements	
  surpass	
  the	
  DBHDS	
  expectation	
  of	
  211	
  in	
  ISE	
  and	
  

597	
  in	
  GSE.	
  The	
  DBHDS	
  expects	
  to	
  increase	
  the	
  number	
  of	
  individuals	
  in	
  ISE	
  by	
  an	
  

additional	
  91	
  in	
  FY17,	
  which	
  is	
  very	
  positive.	
  The	
  growth	
  in	
  ISE	
  for	
  HCBS	
  waiver	
  

participants	
  between	
  December	
  2015	
  and	
  June	
  2016,	
  however,	
  was	
  only	
  14	
  or	
  fewer.	
  	
  The	
  

Individual	
  Employment	
  Report	
  (H2023)	
  through	
  June	
  2016	
  the	
  fourth	
  quarter	
  of	
  FY	
  2016	
  

documents	
  that	
  ISE	
  enrollment	
  for	
  waiver	
  participants	
  increased	
  by	
  only	
  thirty-­‐eight	
  

individuals	
  in	
  FY15	
  and	
  thirty-­‐seven	
  (or	
  fewer)	
  individuals	
  in	
  FY16.	
  This	
  particular	
  report	
  

has	
  always	
  posed	
  some	
  issues	
  with	
  potential	
  redundancy	
  (i.e.	
  counting	
  the	
  same	
  individual	
  

more	
  than	
  once),	
  but	
  still	
  can	
  be	
  used	
  as	
  a	
  reasonable	
  measure	
  of	
  past	
  performance.	
  DBHDS	
  

will	
  need	
  focused	
  efforts	
  with	
  its	
  providers	
  and	
  other	
  stakeholders	
  to	
  achieve	
  its	
  interim	
  

goal.	
  It	
  is	
  very	
  positive	
  that	
  DBHDS	
  sets	
  increasingly	
  higher	
  goals	
  for	
  ISE	
  so	
  that	
  the	
  number	
  

of	
  people	
  in	
  ISE	
  will	
  exceed	
  the	
  number	
  in	
  GSE	
  by	
  2020.	
  

	
  

There	
  appears	
  to	
  be	
  a	
  lack	
  of	
  correlation	
  between	
  the	
  overall	
  employment	
  targets	
  and	
  the	
  

targets	
  established	
  for	
  individuals	
  who	
  receive	
  HCBS	
  waiver	
  employment	
  services.	
  By	
  2019	
  

DBHDS	
  expects	
  3,857	
  individuals	
  with	
  ID	
  and	
  DD	
  to	
  be	
  employed	
  in	
  either	
  ISE	
  or	
  GSE	
  

including	
  all	
  DARS	
  and	
  DBHDS	
  employment	
  opportunities,	
  which	
  as	
  noted	
  before	
  is	
  an	
  

increase	
  of	
  443	
  individuals.	
  In	
  the	
  same	
  time	
  period,	
  DBHDS	
  projects	
  in	
  its	
  targets	
  for	
  the	
  

waiver	
  programs	
  that	
  853	
  more	
  individuals	
  will	
  participate	
  in	
  either	
  ISE	
  or	
  GSE	
  reaching	
  a	
  

	
  

107	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 108 of 179 PageID# 7063
	
  
total	
  of	
  1661	
  by	
  the	
  end	
  of	
  FY19.	
  Adding	
  853	
  individuals	
  to	
  waiver	
  employment	
  programs	
   totals	
  410	
  more	
  individuals	
  than	
  the	
  Commonwealth	
  projects	
  in	
  the	
  overall	
  employment	
   target	
  goal.	
  The	
  data	
  in	
  the	
  report	
  appears	
  to	
  indicate	
  that	
  fewer	
  individuals	
  with	
  ID	
  or	
  DD	
   will	
  have	
  employment	
  opportunities	
  through	
  the	
  DARS	
  funded	
  programs:	
  EES	
  and	
  LTESS.	
  	
   However,	
  Ms.	
  Norton	
  explained	
  that	
  the	
  targets	
  are	
  established	
  separately.	
  The	
  targets	
  set	
   for	
  the	
  increases	
  in	
  the	
  waiver	
  employment	
  participation	
  reflects	
  initial	
  commitments	
  made	
   to	
  the	
  Court	
  and	
  to	
  the	
  Independent	
  Reviewer.	
  The	
  overall	
  employment	
  target	
  will	
  continue	
   to	
  reflect	
  the	
  Commonwealth’s	
  goal	
  that	
  25%	
  of	
  all	
  individuals	
  with	
  ID	
  and	
  DD	
  (as	
  known	
   identified	
  through	
  waiver	
  enrollments	
  and	
  waiver	
  waiting	
  lists).	
  These	
  target	
  numbers	
  may	
   remain	
  unaligned.	
  	
   	
   It	
  is	
  unclear	
  how	
  the	
  number	
  of	
  school	
  graduates	
  in	
  each	
  of	
  the	
  next	
  three	
  years	
  are	
  factored	
   into	
  these	
  targets	
  and	
  whether	
  these	
  targets	
  account	
  for	
  the	
  need	
  for	
  the	
  1192	
  individuals	
   who	
  are	
  currently	
  receiving	
  services	
  in	
  segregated	
  sheltered	
  workshops.	
  Of	
  these	
   individuals	
  565,	
  who	
  are	
  currently	
  in	
  sheltered	
  workshops	
  programs	
  funded	
  by	
  the	
  HCBS	
   waiver,	
  will	
  be	
  transitioned	
  to	
  ISE	
  or	
  GSE	
  as	
  appropriate	
  to	
  meet	
  their	
  needs	
  and	
   preferences.	
  	
   	
   DBHDS	
  has	
  established	
  two	
  related	
  goals	
  to	
  meet	
  the	
  employment	
  targets.	
  These	
  goals	
  place	
   responsibility	
  on	
  each	
  CSB	
  to	
  ensure	
  that	
  Case	
  Managers	
  discuss	
  employment	
  needs,	
   preferences	
  and	
  options	
  with	
  100%	
  of	
  the	
  individuals	
  receiving	
  case	
  management,	
  and	
   develop	
  individual	
  employment	
  related	
  and/or	
  readiness	
  goals	
  for	
  35%	
  of	
  these	
   individuals.	
  DBHDS	
  included	
  the	
  data	
  reported	
  by	
  the	
  CSBs	
  for	
  the	
  latter	
  part	
  of	
  FY16	
   (1/1/16-­‐6/30/16).	
  In	
  this	
  time	
  period	
  the	
  CSBs	
  reported	
  that	
  5,425	
  adults	
  had	
  an	
  annual	
   ISP	
  meeting.	
  Case	
  managers	
  reportedly	
  discussed	
  employment	
  with	
  4,445	
  individuals	
   (82%)	
  and	
  developed	
  an	
  employment	
  related	
  goal	
  for	
  1,711	
  individuals	
  (31.5%).	
  Even	
   though	
  self-­‐reported	
  by	
  Case	
  Managers,	
  the	
  discussion	
  of	
  employment	
  increased	
  by	
  4%	
  and	
   the	
  development	
  of	
  employment	
  goals	
  decreased	
  by	
  3%	
  from	
  the	
  previous	
  reporting	
  period.	
   Both	
  levels	
  of	
  achievement	
  remain	
  below	
  the	
  expectations	
  set	
  by	
  DBHDS.	
  DBHDS	
  clarified	
   that	
  these	
  expectations	
  have	
  also	
  been	
  set	
  for	
  DD	
  case	
  managers	
  who	
  report	
  to	
  DBHDS	
   separately	
  and	
  through	
  Survey	
  Monkey	
  and	
  that	
  these	
  results	
  are	
  not	
  yet	
  included.	
  	
  The	
  CSB	
   reports	
  as	
  of	
  January	
  2017	
  will	
  include	
  the	
  planning	
  activities	
  to	
  promote	
  employment	
  of	
   both	
  the	
  ID	
  and	
  the	
  DD	
  case	
  managers.	
   	
   Data	
  for	
  each	
  CSB	
  was	
  included	
  in	
  the	
  most	
  recent	
  DBHDS	
  report.	
  Twelve	
  of	
  the	
  CSBs	
  were	
   below	
  the	
  expectation	
  of	
  discussing	
  employment	
  with	
  85%	
  of	
  individuals	
  and	
  fifteen	
  of	
  the	
   CSBs	
  were	
  below	
  25%	
  achievement	
  for	
  setting	
  an	
  employment	
  related	
  goal.	
  Five	
  CSBs,	
   however,	
  reported	
  that	
  no	
  ISPs	
  were	
  completed	
  during	
  the	
  six-­‐month	
  period.	
  DBHDS	
  needs	
   to	
  set	
  improvement	
  goals	
  and	
  monitoring	
  protocols	
  for	
  each	
  CSB	
  and	
  establish	
   improvement	
  plans	
  for	
  the	
  CSBs	
  that	
  perform	
  below	
  expectations	
  for	
  two	
  successive	
   quarters.	
  	
   	
   	
   	
   	
   	
  

	
  

108	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 109 of 179 PageID# 7064
	
  
Engagement	
  of	
  the	
  Employment	
  First	
  Advisory	
  Group	
  and	
  the	
  Regional	
  Quality	
   Councils	
   	
   DBHDS	
  convenes	
  the	
  EFAG	
  to:	
  
• Provide	
  advise	
  the	
  department	
  on	
  employment	
  service	
  development;	
  	
   • Recommend	
  policy	
  changes	
  and	
  training	
  strategies;	
  	
   • Participate	
  in	
  data	
  collection	
  and	
  analysis;	
  and	
  	
   • Make	
  recommendations	
  to	
  assist	
  the	
  Commonwealth	
  to	
  achieve	
  its	
  employment	
  
targets.	
  	
   	
   I	
  routinely	
  interview	
  5-­‐7	
  members	
  of	
  the	
  EFAG	
  and	
  was	
  able	
  to	
  interview	
  five	
  of	
  the	
  same	
   members	
  for	
  this	
  ninth	
  period	
  review.	
  The	
  focus	
  of	
  the	
  conversations	
  during	
  this	
  review	
   period	
  was	
  to	
  determine	
  if	
  the	
  EFAG	
  has	
  a	
  continuing	
  role	
  in	
  reviewing	
  the	
  targets,	
  in	
   making	
  recommendations	
  to	
  further	
  the	
  efforts,	
  and	
  in	
  determining	
  the	
  members’	
   satisfaction	
  with	
  the	
  data	
  and	
  the	
  department’s	
  progress	
  in	
  achieving	
  the	
  targets.	
  I	
  also	
   reviewed	
  the	
  minutes	
  of	
  the	
  EFAG	
  meetings	
  that	
  occurred	
  during	
  the	
  review	
  period,	
  April	
  – September	
  2016.	
  All	
  of	
  the	
  EFAG	
  members	
  interviewed	
  report	
  increased	
  satisfaction	
  with	
   the	
  functioning	
  of	
  the	
  Advisory	
  Group.	
  The	
  membership	
  has	
  stabilized	
  since	
  the	
  changes	
   were	
  made	
  in	
  the	
  summer	
  of	
  2015.	
  The	
  EFAG	
  members	
  attend	
  much	
  more	
  consistently	
  and	
   there	
  is	
  a	
  balanced	
  representation	
  across	
  stakeholder	
  groups,	
  although	
  recruitment	
  is	
   continuing	
  for	
  another	
  family	
  member.	
  Meetings	
  are	
  reported	
  to	
  run	
  efficiently	
  and	
   members	
  receive	
  documents	
  and	
  proposals	
  with	
  sufficient	
  time	
  to	
  review	
  them	
  prior	
  to	
  the	
   meeting	
  in	
  which	
  they	
  are	
  presented	
  and	
  discussed.	
  Members	
  report	
  great	
  progress	
  in	
  the	
   areas	
  of	
  data	
  gathering	
  and	
  analysis.	
  They	
  also	
  report	
  starting	
  to	
  see	
  measurable	
  increases	
   in	
  employment	
  among	
  the	
  target	
  populations.	
  There	
  is	
  some	
  concern	
  that	
  the	
  recent	
  rate	
   clarification	
  for	
  GSEs	
  billing	
  units	
  may	
  have	
  negative	
  impact	
  on	
  the	
  initiative	
  to	
  reach	
  the	
   employment	
  targets.	
  	
   	
   The	
  Regional	
  Quality	
  Councils	
  are	
  also	
  required	
  to	
  review	
  employment	
  data	
  on	
  a	
  quarterly	
   basis,	
  and	
  to	
  discuss	
  the	
  targets	
  and	
  to	
  offer	
  recommendations	
  annually.	
  The	
  meeting	
   minutes	
  from	
  the	
  five	
  RQCs	
  during	
  July/August	
  and	
  September/October	
  provide	
  evidence	
   that	
  discussions	
  about	
  employment	
  occurred	
  at	
  all	
  meetings	
  and	
  a	
  review	
  of	
  the	
  targets	
  at	
   one	
  of	
  the	
  meetings	
  for	
  each	
  of	
  the	
  five	
  Councils.	
  The	
  need	
  to	
  clarify	
  the	
  targets	
  for	
  the	
   waiver	
  ISE	
  and	
  GSE	
  programs	
  and	
  the	
  Commonwealth’s	
  progress	
  or	
  need	
  for	
  greater	
   improvement	
  (waiver	
  ISE	
  programs)	
  was	
  shared	
  with	
  each	
  RQC.	
  Recommendations	
  were	
   made	
  by	
  all	
  of	
  the	
  Councils.	
  These	
  included:	
  	
   	
  
• Addressing	
  transportation;	
  	
   • Connecting	
  CSB	
  staff	
  with	
  school	
  transition	
  planning	
  meetings;	
  	
   • Including	
  career	
  development	
  as	
  a	
  support;	
  	
   • Making	
  employment	
  transparent	
  and	
  publicly	
  available;	
  	
   • Learning	
  and	
  sharing	
  best	
  practices	
  in	
  securing	
  employment;	
  	
   • Educating	
  families	
  to	
  change	
  their	
  expectations	
  of	
  their	
  child’s	
  employability;	
  
offering	
  benefits	
  counseling	
  to	
  families	
  and	
  individuals;	
  	
   • Training	
  case	
  managers	
  and	
  ESO	
  staff;	
  and	
  	
   • Offering	
  employment	
  provider	
  fairs	
  for	
  case	
  managers.	
  	
  

	
  

109	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 110 of 179 PageID# 7065
	
  
	
   One	
  RQC	
  expressed	
  concern	
  that	
  documentation	
  requirements	
  may	
  be	
  too	
  burdensome	
  for	
   providers.	
  Two	
  RQC’s	
  expressed	
  that	
  they	
  would	
  simply	
  repeat	
  recommendations	
  made	
  the	
   previous	
  year.	
  This	
  approach	
  raises	
  a	
  significant	
  concern	
  with	
  a	
  lack	
  of	
  clarity	
  regarding	
  the	
   entity	
  that	
  approves,	
  modifies,	
  or	
  rejects	
  recommendations	
  made	
  by	
  the	
  RQCs	
  and	
  the	
   process	
  by	
  which	
  the	
  RQCs	
  are	
  informed	
  of	
  these	
  decisions.	
  	
   	
   The	
  Settlement	
  Agreement	
  includes	
  the	
  expectation	
  that	
  there	
  is	
  linkage	
  between	
  the	
  RQC’s	
   and	
  the	
  SELN	
  (now	
  the	
  EFAG),	
  and	
  that	
  the	
  RQC	
  consult	
  with	
  providers	
  as	
  well	
  as	
  the	
  SELN.	
   It	
  is	
  very	
  encouraging	
  that	
  the	
  RQC	
  meetings	
  now	
  regularly	
  include	
  a	
  review	
  of	
  employment	
   data	
  and	
  a	
  discussion	
  of	
  progress	
  toward	
  meeting	
  the	
  targets.	
  However,	
  I	
  see	
  no	
  evidence	
   that	
  the	
  RQC’s	
  interface	
  or	
  consult	
  with	
  providers,	
  or	
  that	
  the	
  recommendations	
  the	
  various	
   Councils	
  make	
  are	
  shared	
  with	
  the	
  EFAG.	
  None	
  of	
  the	
  EFAG	
  members	
  who	
  I	
  interviewed	
   had	
  any	
  awareness	
  of	
  the	
  RQCs	
  involvement	
  in	
  the	
  employment	
  initiative.	
  None	
  had	
  been	
   briefed	
  on	
  the	
  Council’s	
  recommendations	
  or	
  what	
  occurred	
  as	
  a	
  result	
  of	
  the	
  RCQ	
   recommendations	
  regarding	
  employment.	
  Heather	
  Norton	
  is	
  a	
  member	
  of	
  the	
  EFAG	
  as	
  is	
   the	
  Employment	
  Services	
  Coordinator	
  (vacant	
  during	
  this	
  review	
  period).	
  While	
  these	
  two	
   staff	
  can	
  provide	
  the	
  link	
  between	
  the	
  Advisory	
  Group	
  and	
  the	
  five	
  RQCs,	
  this	
  has	
  not	
   resulted	
  in	
  a	
  formal	
  review	
  by	
  the	
  EFAG	
  of	
  the	
  RQC	
  recommendations	
  or	
  feedback	
  to	
  the	
   EFAG	
  regarding	
  the	
  disposition	
  of	
  the	
  RQC	
  recommendations.	
  	
   	
   Heather	
  Norton	
  reports	
  that	
  she	
  shares	
  the	
  recommendations	
  of	
  the	
  RQCs	
  with	
  the	
  EFAG.	
   Because	
  they	
  are	
  often	
  repeated	
  or	
  common	
  recommendations	
  they	
  may	
  have	
  not	
   engendered	
  another	
  review	
  by	
  the	
  EFAG.	
  DBHDS	
  will	
  more	
  clearly	
  identify	
  the	
  RQC	
   recommendations	
  as	
  a	
  specific	
  agenda	
  item	
  for	
  the	
  EFAG	
  and	
  communicate	
  the	
  activities	
  to	
   address	
  the	
  recommendations	
  back	
  to	
  the	
  RQCs	
  in	
  the	
  future.	
   	
   Employment	
  Services	
  Coordinator	
   This	
  position	
  became	
  vacant	
  during	
  the	
  eighth	
  reporting	
  period	
  and	
  remained	
  vacant	
   through	
  the	
  ninth	
  reporting	
  period.	
  It	
  has	
  been	
  recently	
  filled	
  and	
  the	
  individual	
  began	
   performing	
  the	
  functions	
  in	
  late	
  October.	
  While	
  the	
  Coordinator	
  was	
  not	
  functioning	
  during	
   this	
  reporting	
  period	
  having	
  her	
  on	
  staff	
  now	
  is	
  very	
  encouraging	
  as	
  DBHDS	
  moves	
  forward	
   with	
  implementation	
  of	
  employment	
  initiatives	
  under	
  the	
  revised	
  HCBS	
  waivers.	
   	
   Community	
  Engagement	
   Employment	
  was	
  the	
  focus	
  of	
  this	
  limited	
  review.	
  I	
  was	
  provided	
  with,	
  and	
  reviewed,	
  the	
   minutes	
  of	
  the	
  Community	
  Engagement	
  Advisory	
  Group	
  (CEAG)	
  and	
  an	
  update	
  to	
  the	
   Community	
  Engagement	
  Plan:	
  FY	
  2016-­‐2018.	
  The	
  following	
  has	
  been	
  accomplished	
  during	
   this	
  reporting	
  period:	
  
• Training	
  has	
  been	
  completed	
  for	
  day	
  support	
  staff,	
  families	
  and	
  individuals,	
  and	
   residential	
  providers.	
  Training	
  has	
  been	
  given	
  to	
  1571	
  providers,	
  830	
  case	
   managers,	
  and	
  671	
  families	
  and	
  individuals	
  
• 	
  A	
  website	
  to	
  gather	
  photos	
  for	
  the	
  photo	
  voice	
  project	
  is	
  underway	
  to	
  visually	
  show	
   examples	
  of	
  community	
  engagement	
  
• DBHDS	
  holds	
  weekly	
  calls	
  with	
  provider	
  and	
  family	
  groups	
  to	
  discuss	
  new	
  services	
   and	
  to	
  address	
  concerns	
  with	
  implementation	
  

	
  

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• The	
  CEAG	
  is	
  developing	
  the	
  section	
  of	
  the	
  provider	
  manual	
  to	
  describe	
  community	
   engagement	
  and	
  coaching,	
  and	
  to	
  provide	
  fact	
  sheets	
  for	
  case	
  managers	
  and	
   providers	
  
• Training	
  was	
  provided	
  to	
  DBHDS	
  service	
  authorization	
  staff	
   • RFPs	
  to	
  convert	
  from	
  segregated	
  center	
  based	
  to	
  community	
  inclusion	
  were	
  
awarded	
  in	
  June	
  2016.	
  DBHDS	
  meets	
  regularly	
  with	
  the	
  selected	
  providers	
  and	
  is	
   developing	
  data	
  collection	
  tools	
   • Community	
  day	
  service	
  providers	
  are	
  adding	
  community	
  engagement	
  and	
  coaching	
   to	
  the	
  service	
  array	
   	
   Conclusions	
   DBHDS	
  is	
  making	
  significant	
  progress	
  regarding	
  data	
  collection;	
  defining	
  and	
  beginning	
  to	
   achieve	
  the	
  employment	
  targets;	
  refilling	
  the	
  Employment	
  Services	
  Coordinator	
  position;	
   and	
  supporting	
  the	
  development	
  of	
  community	
  engagement	
  while	
  it	
  is	
  implementing	
   dramatic	
  changes	
  to	
  the	
  existing	
  HCBS	
  waivers	
  system.	
  	
   	
   Recommendations	
   To	
  achieve	
  full	
  implementation	
  of	
  the	
  employment	
  service	
  goals	
  it	
  needs	
  to:	
   • Propose	
  how	
  CSBs	
  and	
  DBHDS	
  will	
  determine	
  if	
  individuals	
  have	
  full	
  employment,	
   i.e.	
  are	
  able	
  to	
  secure	
  both	
  the	
  type	
  of	
  jobs	
  and	
  the	
  number	
  of	
  hours	
  they	
  wish	
  to	
   work	
   • Insure	
  that	
  the	
  CSBs	
  are	
  having	
  meaningful	
  conversations	
  with	
  individuals	
  about	
   employment	
  and	
  developing	
  and	
  setting	
  employment	
  goals	
  for	
  individuals	
  who	
  are	
   both	
  interested	
  in	
  and	
  in	
  need	
  of	
  employment	
  supports	
   • Create	
  an	
  opportunity	
  for	
  the	
  RQCs	
  and	
  the	
  EFAG	
  to	
  share	
  their	
  analyses	
  and	
   recommendations,	
  and	
  document	
  the	
  DBHDS	
  plans	
  to	
  implement	
  those	
   recommendations	
  it	
  embraces	
   	
   Compliance	
  with	
  the	
  Settlement	
  Agreement	
   	
   The	
  Commonwealth	
  is	
  in	
  compliance	
  with	
  the	
  following	
  employment	
  requirements::	
   III.C.7.b.i.A	
   III.C.7.b.i.B.1.a-­‐e	
   III.C.7.b.i.B.2.b	
   III.C.7.d	
   	
   Based	
  on	
  this	
  review	
  I	
  recommend	
  that	
  the	
  DBHDS	
  also	
  be	
  found	
  in	
  compliance	
  with:	
   III.7.i.B.2.a-­‐	
  The	
  Commonwealth	
  has	
  set	
  meaningful	
  targets	
  for	
  employment	
  and	
  is	
  working	
   toward	
  achieving	
  these	
  targets,	
  and	
   III.C.7.c-­‐	
  RQCs	
  have	
  reviewed	
  employment	
  data	
  quarterly	
  

	
  

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APPENDIX D
TRANSPORTATION SERVICES
	
  
by: Ric Zaharia, Ph.D.

	
  

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Report	
  to	
  the	
  Independent	
  Reviewer	
  

United	
  States	
  v.	
  Commonwealth	
  of	
  Virginia	
  

	
  

	
  

Transportation	
  	
  

Requirements	
  of	
  the	
  Settlement	
  Agreement	
  	
  
	
   By	
  
	
   Ric	
  Zaharia,	
  Ph.D.	
  
	
   Consortium	
  on	
  Innovative	
  Practices	
  
	
  

	
  

	
  

November	
  5,	
  2016	
  

	
  

	
  

113	
  

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   Introduction	
  
	
   The	
  Independent	
  Reviewer	
  for	
  the	
  US	
  v	
  Commonwealth	
  of	
  Virginia	
  Settlement	
   Agreement	
  requested	
  a	
  review	
  of	
  the	
  Transportation	
  requirements	
  of	
  the	
   Agreement.	
  	
   	
   Non-­‐Emergency	
  Medical	
  Transportation	
  (NEMT)	
  in	
  Virginia	
  is	
  administered	
  by	
   DMAS	
  (Department	
  of	
  Medical	
  Assistance	
  Services)	
  through	
  a	
  brokerage	
  system	
   contracted	
  to	
  a	
  multi-­‐state	
  private	
  sector	
  contractor,	
  LogistiCare.	
  The	
  effective	
   functioning	
  of	
  the	
  DMAS	
  transportation	
  brokerage	
  is	
  critical	
  to	
  the	
  goal	
  of	
  improving	
   the	
  lives	
  of	
  people	
  with	
  intellectual	
  and	
  developmental	
  disabilities	
  in	
  Virginia.	
  	
  This	
   group	
  of	
  users	
  requires	
  over	
  200,000	
  trips	
  each	
  month	
  to	
  fulfill	
  their	
  personal	
  goals.	
   	
   	
  In	
  December	
  of	
  2015	
  the	
  Independent	
  Reviewer	
  requested	
  a	
  plan	
  to	
  address	
   improvements	
  needed	
  “to ensure that its transportation services are of good quality, appropriate, available and accessible to the target population”. 	
  	
  Since	
  DMAS	
  and	
   Logisticare	
  implemented	
  a	
  number	
  of	
  changes	
  this	
  past	
  summer,	
  this	
  report	
   represents	
  a	
  check-­‐up	
  on	
  the	
  implementation	
  of	
  modifications	
  to	
  the	
  transportation	
   system.	
  An	
  evaluation	
  of	
  the	
  effectiveness	
  of	
  these	
  changes,	
  and	
  of	
  the	
  DMAS	
  quality	
   improvement	
  program,	
  should	
  be	
  possible	
  after	
  a	
  full	
  year	
  of	
  implementation,	
  i.e.	
   6/30/17.	
  DMAS’s	
  issuance	
  of	
  a	
  new	
  Request	
  for	
  Proposals	
  (RFP)	
  and	
  an	
  award	
  of	
  a	
   new	
  contract	
  could	
  extend	
  the	
  period	
  before	
  an	
  evaluation	
  of	
  these	
  changes	
  can	
  be	
   completed.	
   	
   This	
  report	
  is	
  organized	
  with	
  an	
  introductory	
  statement	
  of	
  the	
  requirements	
  of	
  the	
   Agreement,	
  a	
  description	
  of	
  the	
  methodology,	
  a	
  report	
  on	
  the	
  findings	
  from	
  this	
   evaluation,	
  and	
  recommendations	
  to	
  achieve	
  full	
  compliance.	
  Suggestions	
  are	
  offered	
   where	
  an	
  area	
  might	
  be	
  improved.	
  	
  The	
  compliance	
  table	
  below	
  recaps	
  the	
   compliance	
  assessments	
  made	
  in	
  this	
  review.	
   	
  
Compliance	
  Table	
  

Settlement	
   Settlement	
  Agreement	
  Language	
   Compliance	
   Page	
  

Agreement	
  	
  

Section	
  III.C.8.a	
   The	
  Commonwealth	
  shall	
  provide	
  transportation	
   Non-­‐Compliance	
  

4	
  

to	
  individuals	
  receiving	
  HCBS	
  waiver	
  services	
  in	
  

	
  

the	
  target	
  population	
  in	
  accordance	
  with	
  the	
  

Commonwealth’s	
  HCBS	
  Waivers.	
  

	
  

	
  

	
  

114	
  

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  Transportation	
  operations	
  

	
  	
  

III.C.8.a	
  

	
  

The	
  Commonwealth	
  shall	
  provide	
  transportation	
  to	
  individuals	
  HCBS	
  waiver	
  services	
  in	
  the	
  target	
  population	
  in	
  

accordance	
  with	
  the	
  Commonwealth’s	
  HCBS	
  Waivers.	
  

	
  

Goal:	
  	
  

To	
  determine	
  if	
  the	
  Commonwealth	
  has	
  made	
  progress	
  towards	
  implementing	
  a	
  quality	
  

improvement	
  program	
  in	
  Transportation	
  services	
  as	
  identified	
  in	
  this	
  consultant’s	
  previous	
  

study	
  and	
  in	
  the	
  Independent	
  Reviewer’s	
  Report	
  to	
  the	
  Court	
  of	
  December	
  6,	
  2015.	
  	
  

	
  

Methodology:	
   	
   Interviewed	
  DMAS	
  officials	
  regarding	
  transportation,	
  quality	
  improvement	
  planning,	
  

and	
  safety;	
   	
   Interviewed	
  LogistiCare	
  officials	
  regarding	
  transportation,	
  quality	
  improvement	
  

planning,	
  and	
  safety;	
   	
  	
   Reviewed	
  quality	
  improvement/action	
  plans	
  since	
  December	
  2015;	
   	
  	
   Reviewed	
  the	
  records	
  maintained	
  to	
  demonstrate	
  implementation	
  of	
  the	
  changes	
  to	
  

transportation	
  services	
  and	
  related	
  quality	
  improvement	
  program	
  provisions	
  of	
  the	
  

Agreement	
  (See	
  Attachment	
  A	
  and	
  B).	
  

	
   	
  

Findings:	
  	
  

DMAS	
  compiled	
  in	
  its	
  action	
  planning	
  document	
  (Response	
  to	
  Recommendations,	
  8/9/16)	
  

the	
  changes	
  it	
  would	
  institute	
  in	
  current	
  practice	
  and	
  would	
  institutionalize	
  in	
  an	
  RFP	
  that	
  

DMAS	
  plans	
  to	
  issue	
  later	
  this	
  year.	
  DMAS	
  has	
  implemented	
  or	
  clarified	
  four	
  of	
  the	
  eight	
  

recommendations/suggestions	
  made	
  in	
  this	
  consultant’s	
  report	
  from	
  December	
  of	
  2015:	
  

	
   	
   Ensure	
  more	
  representatives	
  of	
  users	
  from	
  the	
  IDD	
  (Intellectual	
  and	
  Developmental	
  

Disabilities)	
  Waiver	
  are	
  represented	
  on	
  the	
  Logisticare	
  regional	
  Advisory	
  Boards;	
  

	
   Analysis	
  of	
  the	
  LogistiCare	
  databases	
  using	
  the	
  IDD	
  Waiver	
  as	
  a	
  sub-­‐group	
  for	
  

assessment	
  of	
  differing	
  needs;	
  

	
   Encourage	
  the	
  use	
  of	
  GPS,	
  tablets	
  and	
  other	
  technology	
  matching	
  drivers	
  with	
  users;	
  

	
   Encourage	
  Logisticare	
  to	
  develop	
  a	
  Network	
  Development	
  Plan	
  to	
  establish	
  at	
  the	
  

community	
  level	
  capacity	
  gaps	
  in	
  transportation.	
  

	
  

DMAS	
  plans	
  to	
  include	
  specialized	
  requirements	
  in	
  its	
  new	
  RFP1	
  and	
  contract.	
  These	
  

requirements	
  include:	
  	
  addressing	
  statistically	
  valid	
  customer	
  satisfaction	
  surveys	
  from	
  IDD	
  

Waiver	
  users,	
  representation	
  from	
  the	
  IDD	
  Waiver	
  community	
  on	
  advisory	
  boards,	
  and	
  ‘trip	
  

recovery’	
  technology	
  (i.e.,	
  software	
  designed	
  to	
  redirect	
  drivers	
  in	
  real	
  time	
  when	
  another	
  

driver	
  is	
  unable	
  to	
  make	
  a	
  ride.	
  	
  

	
  	
  

The	
  mileage	
  reimbursement	
  form	
  for	
  users	
  can	
  now	
  be	
  faxed	
  for	
  payment,	
  which	
  does	
  

facilitates	
  user	
  payment.	
  The	
  reimbursement	
  form,	
  however,	
  remains	
  cumbersome	
  and	
  not	
  

user	
  friendly.	
  For	
  example,	
  the	
  form	
  requires	
  the	
  user	
  to	
  enter	
  15	
  data	
  items	
  per	
  

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
 	 
  
1	
  The	
  NEMT	
  RFP	
  was	
  issued	
  11/1/16.	
   2	
  http://www.ct.gov/dds/lib/dds/health/reports/mortality_report_fy_14.pdf	
  
	
  

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reimbursement	
  request.	
  This	
  form	
  is	
  critical	
  to	
  giving	
  users	
  a	
  personal	
  alternative	
  and	
   choice	
  to	
  using	
  commercial	
  drivers,	
  but	
  they	
  will	
  not	
  use	
  a	
  form	
  that	
  is	
  burdensome.	
  	
   	
   DMAS/LogistiCare	
  extracted	
  findings	
  for	
  the	
  IDD	
  Waiver	
  population	
  for	
  this	
  past	
  July	
  2016.	
   LogistiCare	
  reports	
  that	
  it	
  did	
  not	
  find	
  a	
  variance	
  in	
  complaints,	
  usage	
  patterns,	
  etc.,	
   between	
  the	
  IDD	
  Waiver	
  users	
  and	
  the	
  larger	
  group	
  of	
  Medicaid	
  transportation	
  users.	
   However,	
  DMAS	
  has	
  pointed	
  out	
  in	
  its	
  analysis	
  (Response	
  to	
  Recommendations)	
  that	
  the	
  IDD	
   Waiver	
  population	
  uses	
  proportionately	
  more	
  trips	
  per	
  individual	
  than	
  the	
  larger	
  group	
  of	
   users.	
  It	
  may	
  take	
  several	
  continuous	
  months	
  of	
  data	
  analysis	
  across	
  seasons,	
  school	
  years,	
   etc.,	
  to	
  establish	
  other	
  actionable	
  patterns	
  or	
  trends	
  among	
  users	
  from	
  the	
  IDD	
  Waiver.	
   	
   This	
  latter	
  finding,	
  higher	
  use	
  per	
  IDD	
  Waiver	
  user,	
  is	
  a	
  significant	
  conclusion	
  which	
   warrants	
  additional	
  analysis	
  and/or	
  action.	
  For	
  example,	
  if	
  Joe	
  from	
  the	
  IDD	
  Waiver	
  uses	
  2	
   one-­‐way	
  trips	
  each	
  day	
  to	
  his	
  day	
  program	
  for	
  180	
  days	
  a	
  year,	
  he	
  gets	
  360	
  rides	
  annually;	
  if	
   Jane	
  from	
  the	
  general	
  Medicaid	
  population	
  uses	
  2	
  one-­‐way	
  trips	
  	
  a	
  month	
  to	
  a	
  doctor’s	
   appointment,	
  she	
  gets	
  24	
  rides	
  a	
  year.	
  Joe	
  has	
  15	
  times	
  more	
  opportunities	
  to	
  experience	
  a	
   ride	
  problem.	
  	
   	
   During	
  a	
  ten-­‐agency	
  tour	
  of	
  IDD	
  providers	
  for	
  another	
  study,	
  this	
  consultant	
  interviewed	
  a	
   day	
  provider	
  who	
  logged	
  problems	
  with	
  the	
  LogistiCare	
  rides	
  that	
  its	
  program	
  participants	
   experienced.	
  Six	
  complaints	
  were	
  recorded	
  by	
  this	
  Region	
  1	
  provider	
  on	
  behalf	
  of	
  users	
   between	
  8/22	
  and	
  9/1/16.	
  These	
  six	
  complaints	
  were	
  discussed	
  with	
  LogistiCare	
  at	
  the	
   time	
  of	
  our	
  corporate	
  interview.	
  LogistiCare	
  determined	
  that	
  one	
  complaint	
  was	
  not	
   legitimate	
  (the	
  transportation	
  provider	
  did	
  not	
  answer	
  when	
  contacted	
  directly	
  by	
  the	
  day	
   provider	
  –	
  Logisticare	
  advises	
  users	
  to	
  communicate	
  through	
  the	
  Rider	
  Assist	
  line	
  rather	
   than	
  the	
  driver	
  directly,	
  so	
  as	
  to	
  ensure	
  accountability).	
  	
  LogistiCare	
  determined	
  that	
  the	
   other	
  five	
  no	
  show	
  complaints	
  were	
  determined	
  to	
  be	
  valid	
  and	
  appeared	
  to	
  be	
   “breakdowns	
  in	
  communications”	
  ascribed	
  to	
  the	
  contract	
  drivers.	
  	
   	
   In	
  subsequent	
  follow-­‐up	
  with	
  the	
  day	
  provider	
  agency,	
  this	
  consultant	
  learned	
  that	
  the	
  local	
   LogistiCare	
  representative	
  made	
  contact	
  with	
  the	
  day	
  provider	
  and	
  the	
  transportation	
   contractor	
  to	
  problem	
  solve.	
  	
  LogistiCare	
  had	
  replaced	
  one	
  contractor.	
  However,	
  between	
   9/12/16	
  and10/3/16	
  two	
  complaints	
  about	
  ‘no	
  show’	
  trips’	
  had	
  reoccurred	
  for	
  two	
  of	
  these	
   same	
  five	
  individuals.	
  The	
  day	
  provider	
  also	
  reported	
  that	
  there	
  were	
  also	
  numerous	
   unreported	
  (i.e.	
  no	
  complaint	
  filed)	
  ‘late	
  pickups’	
  (beyond	
  15	
  minutes	
  of	
  the	
  appointment	
   time)	
  among	
  the	
  five	
  individuals.	
   	
   LogistiCare’s	
   Quality	
   Assurance	
   section	
   currently	
   completes	
   follow-­‐up	
   reviews	
   for	
   accident/incidents	
   but	
   does	
   not	
   complete	
   follow-­‐up	
   reviews	
   for	
   all	
   complaints.	
   Furthermore,	
   LogistiCare’s	
   follow-­‐up	
   does	
   not	
   always	
   reflect	
   double-­‐loop	
   learning	
   about	
   improvements.	
   For	
   example,	
   LogistiCare’s	
   complaint	
   #	
   50324212:	
   Quality	
   Assurance	
   followed	
  up	
  to	
  verify	
  that	
  the	
  provider	
  was	
  45	
  minutes	
  late	
  due	
  to	
  a	
  flat	
  tire,	
  but	
  there	
  was	
   no	
  follow-­‐up	
  to	
  see	
  if	
  there	
  were	
  anymore	
  occurrences	
  of	
  late	
  pickup	
  for	
  this	
  individual	
  by	
   that	
   driver/contractor.	
   This	
   also	
   suggests	
   DMAS’s	
   Quality	
   Improvement	
   program	
   does	
   not	
   periodically	
   examine	
   LogistiCare’s	
   rider	
   complaint	
   database	
   in	
   order	
   to	
   validate	
   or	
   look	
   over	
   LogistiCare’s	
   work.	
   DMAS	
   does	
   evaluate	
   individual	
   complaints	
   and	
   the	
   quality	
   of	
   complaint	
  resolution	
  by	
  LogistiCare	
  when	
  complaints	
  escalate	
  or	
  travel	
  different	
  paths.	
  	
  

	
  

116	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 117 of 179 PageID# 7072 	
  

	
   A	
  review	
  of	
  LogistiCare’s	
  “case”	
  management	
  reports	
  on	
  local	
  attempts	
  to	
  resolve	
  difficult	
   issues	
  suggest	
  that	
  LogistiCare	
  “case”	
  managers	
  might	
  need	
  additional	
  tools	
  and	
  support	
  to	
   hasten	
  the	
  resolution	
  of	
  problem	
  situations.	
  For	
  example,	
  the	
  problems	
  of	
  Member	
   #....25018	
  in	
  the	
  spring	
  of	
  2016	
  with	
  his	
  driver/s	
  are	
  illustrative:	
   	
  
April	
  -­‐	
  6	
  provider	
  late	
  complaints	
   May	
  -­‐	
  6	
  provider	
  late	
  complaints	
   June	
  –	
  8	
  provider	
  late	
  complaints	
   July	
  –	
  	
  	
  2	
  provider	
  late	
  complaints	
   	
   	
  	
  –	
  	
  1	
  no	
  show	
  complaint	
   Total:	
  23	
  complaints	
  from	
  this	
  individual	
   	
   Notwithstanding	
  the	
  LogistiCare	
  “case”	
  manager’s	
  involvement	
  from	
  late	
  May	
  on,	
  the	
  fact	
   that	
  it	
  took	
  six	
  more	
  weeks	
  to	
  resolve	
  a	
  situation	
  that	
  had	
  gone	
  on	
  already	
  for	
  six	
  weeks,	
   speaks	
  perhaps	
  to	
  a	
  lack	
  of	
  tools	
  available	
  to	
  the	
  “case”	
  manager	
  to	
  resolve	
  situations	
  in	
  a	
   timely	
  manner.	
  	
  Many	
  riders	
  would	
  likely	
  have	
  switched	
  to	
  any	
  other	
  available	
  alternative	
   after	
  twelve	
  weeks	
  of	
  poor	
  transportation	
  services	
  and	
  filing	
  more	
  than	
  twenty	
  complaints.	
   	
   Conclusions:	
  	
   DMAS	
  and	
  LogistiCare	
  appear	
  committed	
  to	
  addressing	
  needed	
  quality	
  improvements	
  in	
   services	
  to	
  users	
  from	
  the	
  IDD	
  Waiver.	
  The	
  effectiveness	
  of	
  their	
  actions	
  to	
  create	
  an	
   effective	
  Quality	
  Improvement	
  Program	
  for	
  the	
  transportation	
  services	
  for	
  individuals	
  with	
   IDD	
  waiver	
  funded	
  services	
  cannot	
  yet	
  be	
  assessed.	
  It	
  will	
  likely	
  be	
  mid-­‐2017	
  but	
  a	
  good	
   evaluation	
  will	
  want	
  to	
  review	
  a	
  complete	
  QI	
  cycle	
  before	
  the	
  impacts	
  of	
  their	
  actions	
  can	
  be	
   assessed.	
  Until	
  DMAS	
  demonstrates	
  a	
  functioning	
  and	
  effective	
  quality	
  improvement	
   program	
  for	
  transportation	
  services	
  for	
  individuals	
  with	
  IDD	
  waiver	
  funded	
  services	
  then	
   III.C.8.a	
  will	
  continue	
  to	
  be	
  assessed	
  as	
  non-­‐compliant.	
   	
   Recommendations	
  toward	
  achieving	
  full	
  compliance:	
  	
   DMAS	
  should	
  request	
  that	
  LogistiCare	
  Quality	
  Assurance	
  or	
  “case”	
  managers	
  sample	
  survey	
   users	
   from	
   the	
   IDD	
   Waiver	
   who	
   have	
   complained	
   to	
   the	
   Rider	
   Assist	
   line	
   to	
   see	
   if	
   their	
   problem	
  continues	
  or	
  is	
  recurring	
  within	
  30	
  days	
  of	
  the	
  report.	
  	
   	
   DMAS	
   should	
   formalize	
   and	
   include	
   in	
   its	
   quality	
   improvement	
   program	
   the	
   gathering	
   of	
   more	
   direct	
   information	
   from	
   users.	
   DMAS	
   should	
   request	
   that	
   the	
   contractor/s	
   conduct	
   focus	
   groups	
   with	
   users	
   and	
   facilities	
   from	
   the	
   IDD	
   Waiver,	
   in	
   order	
   to	
   further	
   identify	
   problems	
  and	
  the	
  root	
  causes	
  for	
  their	
  complaints.	
  	
   	
   DMAS	
  should	
  determine	
  whether	
  its	
  “improvement”	
  to	
  allow	
  mileage	
  reimbursement	
  forms	
   to	
  be	
  faxed	
  has	
  achieved	
  the	
  desired	
  result.	
  	
  It	
  appears	
  that	
  a	
  more	
  user	
  friendly	
  mileage	
   reimbursement	
  form	
  would	
  be	
  more	
  effective	
  at	
  encouraging	
  this	
  valuable	
  alternative	
  to	
   using	
  a	
  transportation	
  contractor.	
   	
   DMAS	
  should	
  request	
  that	
  LogistiCare	
  evaluate	
  the	
  tools	
  available	
  to	
  its	
  “case”	
  managers	
  to	
   sanction	
  poor	
  or	
  non-­‐performing	
  contract	
  providers;	
  for	
  example,	
  fines,	
  new	
  appointment	
   freezes,	
  performance	
  letters,	
  etc.	
  

	
  

117	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 118 of 179 PageID# 7073
	
  
	
   Suggestions	
  for	
  DMAS	
  Consideration:	
   Given	
  the	
  higher	
  frequency	
  utilization	
  of	
  Logisticare	
  rides	
  per	
  users	
  in	
  the	
  IDD	
  Waiver,	
   DMAS	
  may	
  want	
  to	
  consider	
  special	
  credentialing/training	
  of	
  contractors	
  who	
  respond	
  to	
   high	
  proportions	
  of	
  IDD	
  waiver	
  user	
  requests;	
  for	
  example,	
  specialized	
  orientation	
  to	
  the	
   needs	
  of	
  individuals	
  with	
  IDD,	
  strategies	
  for	
  accepting	
  rides	
  for	
  regularized	
  pickup,	
  etc.	
   	
   	
   	
  

	
  

118	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 119 of 179 PageID# 7074 	
  

Attachment	
  A	
  

DMAS	
  Documents	
  Reviewed	
  

	
  

1.	
  	
  	
  	
  Field	
  Monitoring	
  

2.	
  	
  	
  	
  New	
  Provider	
  Packets	
  

3.	
  	
  	
  	
  Provider	
  Meeting	
  –	
  Safety	
  topic	
  

4.	
  	
  	
  	
  Gas	
  Reimbursement	
  Form	
  updates	
  

5.	
  	
  	
  	
  Attendant	
  Approval	
  Forms	
  and	
  Attendant	
  Log	
  

6.	
  	
  	
  	
  Accident/Incident	
  Reports	
  

7.	
  	
  	
  	
  Contract	
  Requirements	
  for	
  Providers,	
  Drivers,	
  Vehicles,	
  Volunteer	
  Drivers,	
  and	
  	
  

	
  	
  	
  	
  	
  	
  	
  	
  Attendants	
  

8.	
  	
  	
  	
  New	
  Technology	
  

9.	
  	
  	
  	
  Commonwealth	
  Coordinated	
  Care	
  (CCC)	
  Plus	
  (name	
  changed	
  from	
  MLTSS)	
  

10.	
  	
  OPS	
  Meeting	
  Agendas	
  

11.	
  	
  Complaints	
  

12.	
  	
  Contract	
  Performance	
  Reductions	
  

13.	
  	
  New	
  Survey	
  –	
  Monthly	
  Survey	
  Description	
  and	
  Survey	
  Questions	
  

14.	
  	
  New	
  Reports	
  

	
  

ID/D	
  Trips	
  Scheduled	
  by	
  Region,	
  By	
  Level	
  of	
  Service	
  (LOS)	
  

	
  

ED/D	
  Trips	
  Canceled	
  by	
  Level	
  of	
  Service	
  (LOS)	
  

	
  

ID/D	
  Trips	
  Completed	
  by	
  Level	
  of	
  Service	
  (LOS)	
  

	
  

ID/D	
  Unduplicated	
  Riders	
  by	
  Level	
  of	
  Service	
  (LOS)	
  

	
  

ID/D	
  Total	
  Trips	
  by	
  Day	
  of	
  Week	
  

	
  

ID/D	
  Completed	
  Trips	
  by	
  Destination	
  

	
  

ID/D	
  Member	
  Issue	
  or	
  Member	
  No	
  Show	
  Complaint	
  Report	
  

	
  

ID/D	
  Late	
  &	
  Missed	
  Trips	
  

	
  

ID/D	
  Cancelled	
  Trip	
  Reasons	
  

	
  

ID/D	
  Unfulfilled	
  Trips	
  

ID/D	
  Denied	
  Trips	
  

ID/D	
  Provider	
  Late	
  (PL)	
  &	
  Transportation	
  Provider	
  No	
  Show	
  (TPNS)	
  	
  	
  	
  	
  

	
  	
  Complaints	
  

	
  

ID/D	
  No	
  Vehicle	
  Available	
  (NVA)	
  

	
  

ID/D	
  Alternative	
  Transportation	
  (public	
  transportation,	
  gas	
  reimbursement	
  

	
  

	
  	
  and	
  volunteer	
  driver)	
  

	
  

ID/D	
  Public	
  Transit	
  Monthly	
  Analysis	
  (listed	
  by	
  transit	
  agency)	
  

	
  

ID/D	
  Complaints	
  separated	
  from	
  the	
  rest	
  of	
  complaints	
  

15.	
  	
  New	
  DMAS	
  RFP	
  –	
  ID/D	
  additions	
  to	
  RFP,	
  additional	
  Safety	
  	
  

	
  	
  	
  	
  	
  	
  	
  	
  requirements/changes;	
  to	
  go	
  live	
  July	
  1,	
  2017	
  

16.	
  	
  Network	
  Capacity	
  Analysis	
  Tool-­‐Logisticare	
  

	
  

	
  

	
  

119	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 120 of 179 PageID# 7075 	
  

Attachment	
  B	
  

Logisticare	
  Document	
  List	
  

	
  

	
  

Monthly	
  Reports	
  

Vehicle	
  Inspection	
  Report	
  

DMAS	
  Report	
  Monthly	
  

DMAS	
  Customer	
  Satisfaction	
  Survey	
  

Healthcare	
  Manager	
  Outreach	
  Activities	
  

Provider	
  No	
  Show	
  Trip	
  Cancellation	
  Report	
  

Trip	
  Cancellation	
  Detail	
  Report	
  

DMAS	
  Discharge	
  Report	
  

Key	
  Staffing	
  Report	
  

Attendant	
  Tracking	
  Spreadsheet	
  

Accident/Incident	
  Report	
  

Complaint	
  Report	
   § ID/D	
  Trips	
  Scheduled	
  By	
  Region	
  and	
  Level	
  of	
  Service	
  

§ ID/D	
  Complaint	
  Report	
   § ID/D	
  Provider	
  No	
  Show	
  Trip	
  Cancellation	
  Report	
  

§ ID/D	
  Trip	
  Cancellation	
  Detail	
  Report	
  

	
  

Accident/Incidents	
  

Date	
  Range:	
  	
  July	
  2015	
  –	
  June	
  2016	
  

	
  

Outreach	
  and	
  Education	
  

Outreach	
  Activity	
  Report	
  January	
  2016	
   	
  

	
  

	
  

	
  

	
  

Webinar	
  Invitations	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

Webinar	
  Power	
  Point	
  Presentations	
   	
  

	
  

	
  

	
  

	
  

	
  

Presentation:	
  	
  Arranging	
  Non-­‐Emergency	
  Medical	
  Transportation	
   	
  

Presentation:	
  Facility	
  Services	
  Web	
  Portal	
  –	
  Monthly	
  Attendance	
   	
  

2016	
  Advisory	
  Board	
  Members	
   	
  

	
  

	
  

	
  

	
  

	
  

Presentation:	
  May	
  2016	
  Advisory	
  Board	
  Meeting	
  	
  

	
  

	
  

May	
  2016	
  Advisory	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

Region	
  1	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  2	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  3	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  4	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  5	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  6	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Region	
  7	
  Agenda	
  and	
  Minutes	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

Operational	
  Information	
  and	
  Reports	
  

Complaint	
  &	
  A/I	
  Workflow	
  

Complaints	
  

Vehicle	
  Inspection	
  Policy	
  &	
  Procedure	
  

June	
  2016	
  Vehicle	
  Inspection	
  

Transportation	
  Attendant	
  

	
  

120	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 121 of 179 PageID# 7076
	
  
Transportation	
  Provider	
  Release	
  Process	
   New	
  Provider	
  Utilization	
  Plan	
   Provider	
  Mentor	
  Program	
   2nd	
  Quarter	
  Q365	
  Presentation	
   Quarterly	
  Provider	
  Presentation	
   Monthly	
  Ops	
  Meeting	
  Agenda	
   Technology	
  Presentation	
   Quality	
  Manager	
  Job	
  Description	
   Mileage	
  Reimbursement	
  Policy	
  &	
  Procedure	
   Provider	
  Performance	
  Review	
   	
   DMAS	
  Monthly	
  Case	
  Management	
  Reports	
   July	
  2015	
  –	
  June	
  2016	
   	
   Network	
  Development	
  Processes	
   Credentialing	
  Process	
  for	
  Drivers	
   PASS	
  Training	
   EMT/EVOC	
  Requirements	
   Driver	
  Exclusion	
  Process	
  (Search	
  Engines)	
   Non-­‐Compliant	
  Process	
  (NC	
  Process)	
   NEMT	
  Driver	
  Infraction	
  Process	
   Driver	
  Denial	
  Process	
   Operating	
  Authority	
  Verification	
  Process	
   Certificate	
  of	
  Insurance	
  Tutorial	
   Corporate	
  Credentialing	
  Training	
  Manual	
  

	
  

121	
  

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APPENDIX E
QUALITY AND RISK MANAGEMENT By: Maria Laurence

	
  

122	
  

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  Submitted	
  by:	
  	
  	
  

	
  

	
  

	
  

	
  	
   	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
  

	
   	
  
Report	
  on	
  Quality	
  and	
  Risk	
  Management	
   	
   	
  
United	
  States	
  v.	
  Commonwealth	
  of	
  Virginia	
  
Maria	
  Laurence,	
   Independent	
  Consultant	
   November	
  17,	
  2016	
  

	
  

123	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 124 of 179 PageID# 7079 	
  

	
   	
  
INTRODUCTION	
   	
   The	
  Settlement	
  Agreement	
  requires	
  the	
  Commonwealth	
  to	
  develop	
  and	
  implement	
  a	
   Quality	
  and	
  Risk	
  Management	
  System	
  that	
  will	
  “identify	
  and	
  address	
  risks	
  of	
  harm;	
  ensure	
   the	
  sufficiency,	
  accessibility,	
  and	
  quality	
  of	
  services	
  to	
  meet	
  individuals’	
  needs	
  in	
  integrated	
   settings;	
  and	
  collect	
  and	
  evaluate	
  data	
  to	
  identify	
  and	
  respond	
  to	
  trends	
  to	
  ensure	
   continuous	
  quality	
  improvement.”	
  (V.B.)	
   	
   At	
  the	
  request	
  of	
  the	
  Independent	
  Reviewer,	
  this	
  is	
  the	
  fourth	
  Report	
  that	
  assessed	
  the	
   Commonwealth’s	
  progress	
  in	
  meeting	
  these	
  terms	
  of	
  the	
  Settlement	
  Agreement.	
  	
  This	
   Consultant	
  has	
  previously	
  reviewed	
  and	
  submitted	
  reports	
  that	
  included	
  findings	
  and	
   recommendations	
  related	
  to	
  the	
  Quality	
  and	
  Risk	
  Management	
  systems.	
  	
  These	
  reports	
   were	
  included	
  with	
  the	
  Independent	
  Reviewer’s	
  Reports	
  to	
  the	
  Court,	
  which	
  were	
   submitted	
  on	
  December	
  6,	
  2013,	
  December	
  8,	
  2014,	
  and	
  December	
  6,	
  2015.	
  	
  Using	
   information	
  from	
  these	
  reviews,	
  and	
  from	
  other	
  sources,	
  the	
  Independent	
  Reviewer	
  made	
   previous	
  determinations	
  of	
  compliance.	
  	
  This	
  report	
  includes	
  references	
  to	
  previous	
   reports,	
  as	
  relevant	
  to	
  recent	
  findings.	
  	
  This	
  consultant’s	
  most	
  recent	
  previous	
  report	
  is	
   referred	
  to	
  as	
  the	
  “last	
  Report”.	
   	
   This	
  Report	
  is	
  focused	
  on	
  four	
  discrete	
  areas	
  of	
  Quality	
  and	
  Risk	
  Management:	
  
1) Risk	
  triggers	
  and	
  thresholds;	
  	
   2) Data	
  to	
  assess	
  and	
  improve	
  quality;	
  	
   3) Providers;	
  and	
  	
   4) Quality	
  Service	
  Reviews.	
  	
  	
   	
   At	
  the	
  outset,	
  it	
  is	
  important	
  to	
  note	
  that	
  since	
  the	
  last	
  review,	
  the	
  Department	
  of	
  Behavioral	
   Health	
  and	
  Developmental	
  Services	
  (DBHDS)	
  experienced	
  changes	
  in	
  leadership	
  that	
  impact	
   its	
  quality	
  management	
  program.	
  	
  The	
  new	
  Interim	
  Commissioner	
  of	
  DBHDS	
  envisions	
  the	
   quality	
  management	
  program	
  as	
  playing	
  an	
  important	
  role	
  across	
  the	
  agency	
  beyond	
  the	
   requirements	
  of	
  the	
  Settlement	
  Agreement.	
  	
  In	
  addition,	
  in	
  May	
  2016,	
  a	
  new	
  Assistant	
   Commissioner	
  of	
  Quality	
  Management	
  and	
  Development	
  (QM&D)	
  was	
  appointed.	
  	
   Appropriately,	
  the	
  Assistant	
  Commissioner	
  is	
  working	
  with	
  the	
  Quality	
  Management	
  and	
   Development	
  Team	
  to	
  redefine	
  their	
  identify	
  and	
  role	
  with	
  the	
  clinical	
  and	
  programmatic	
   components	
  of	
  the	
  Department.	
  	
  He	
  is	
  working	
  closely	
  with	
  other	
  offices	
  within	
  the	
   Department	
  to	
  determine	
  their	
  needs	
  from	
  a	
  quality	
  management	
  perspective	
  and	
  to	
   identify	
  the	
  quality	
  management	
  activities	
  in	
  which	
  these	
  offices	
  already	
  engage.	
  	
  	
  	
   	
   The	
  assistance	
  given	
  throughout	
  the	
  review	
  period	
  by	
  the	
  Assistant	
  Commissioner	
  of	
   Quality	
  Management	
  and	
  Development	
  is	
  greatly	
  appreciated.	
  	
  In	
  addition,	
  a	
  number	
  of	
   other	
  Commonwealth	
  staff,	
  staff	
  from	
  the	
  DelMarva	
  Foundation,	
  as	
  well	
  as	
  staff	
  from	
  three	
   Community	
  Services	
  Boards	
  (CSBs),	
  participated	
  in	
  interviews	
  and	
  provided	
   documentation.	
  	
  Their	
  candid	
  assessments	
  of	
  the	
  progress	
  made,	
  as	
  well	
  as	
  the	
  challenges	
   ahead,	
  were	
  very	
  helpful,	
  and	
  are	
  an	
  indication	
  of	
  their	
  commitment	
  to	
  future	
  progress.	
  	
  The	
   organizational	
  assistance	
  provided	
  by	
  the	
  Senior	
  DD	
  Administrative	
  and	
  Policy	
  Analyst	
  also	
   was	
  of	
  significant	
  help.	
  	
  	
  

	
  

124	
  

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METHODOLOGY	
  
The	
  fact-­‐finding	
  for	
  this	
  Report	
  was	
  conducted	
  through	
  a	
  combination	
  of	
  interviews	
  and	
   document	
  review.	
  	
  Between	
  June	
  and	
  October	
  2016,	
  interviews	
  were	
  held	
  with	
  staff	
  from	
   the	
  DBHDS,	
  DelMarva	
  Foundation,	
  and	
  CSBs.	
  	
  (Appendix	
  A	
  includes	
  a	
  list	
  of	
  the	
  individuals	
   interviewed	
  and	
  the	
  documents	
  reviewed.)	
  	
  It	
  is	
  important	
  to	
  note	
  that	
  many	
  of	
  the	
   Commonwealth’s	
  Quality	
  and	
  Risk	
  Management	
  System	
  initiatives	
  are	
  in	
  the	
  process	
  of	
   development	
  and	
  implementation.	
  	
  As	
  a	
  result,	
  a	
  number	
  of	
  draft	
  documents	
  formed	
  the	
   basis	
  for	
  this	
  Report.	
  
	
  
FINDINGS	
  AND	
  RECOMMENDATIONS	
  
For	
  each	
  of	
  the	
  four	
  areas	
  reviewed,	
  the	
  language	
  from	
  the	
  Settlement	
  Agreement	
  is	
   provided	
  and	
  is	
  then	
  followed	
  by	
  a	
  summary	
  of	
  the	
  status	
  of	
  the	
  Commonwealth’s	
  efforts	
   and	
  highlights	
  of	
  the	
  accomplishments	
  to	
  date.	
  	
  Recommendations	
  are	
  offered	
  for	
   consideration,	
  as	
  appropriate.	
   	
  
V.C.1.	
  The	
  Commonwealth	
  shall	
  require	
  that	
  all	
  Training	
  Centers,	
  CSBs	
  [Community	
   Services	
  Boards],	
  and	
  other	
  community	
  providers	
  of	
  residential	
  and	
  day	
  services	
   implement	
  risk	
  management	
  processes,	
  including	
  establishment	
  of	
  uniform	
  risk	
  triggers	
   and	
  thresholds,	
  that	
  enable	
  them	
  to	
  adequately	
  address	
  harms	
  and	
  risk	
  of	
  harm.	
  	
  Harm	
   includes	
  any	
  physical	
  injury,	
  whether	
  caused	
  by	
  abuse,	
  neglect,	
  or	
  accidental	
  causes.	
  
	
   One	
  purpose	
  of	
  this	
  Review	
  was	
  to	
  determine	
  whether	
  the	
  Commonwealth	
  has	
  established	
   and	
  implemented	
  risk	
  triggers	
  and	
  thresholds	
  that	
  enable	
  it	
  to	
  adequately	
  identify	
  and	
   address	
  harms	
  and	
  risk	
  of	
  harms.	
  	
  A	
  second	
  goal	
  was	
  to	
  determine	
  the	
  status	
  of	
  the	
   development	
  of	
  related	
  training	
  for	
  providers.	
   	
   Since	
  the	
  last	
  Report,	
  the	
  Commonwealth	
  made	
  some	
  minor	
  revisions	
  to	
  its	
  list	
  of	
  triggers	
   and	
  thresholds,	
  but	
  overall,	
  the	
  list	
  included	
  the	
  same	
  general	
  categories.	
  	
  As	
  discussed	
  in	
   further	
  detail	
  below,	
  CSBs	
  and	
  private	
  providers	
  are	
  largely	
  unaware	
  of	
  the	
  concept	
  of	
  risk	
   triggers	
  and	
  thresholds.	
  	
  As	
  described	
  in	
  the	
  last	
  Report,	
  some	
  triggers	
  and	
  thresholds	
  the	
   Commonwealth	
  developed	
  were	
  event-­‐based	
  (i.e.,	
  events	
  that	
  have	
  already	
  occurred),	
  and	
   some	
  provided	
  ways	
  to	
  identify	
  the	
  potential	
  for	
  risk.	
  	
  For	
  example,	
  the	
  list	
  included	
  annual	
   risk	
  assessment	
  triggers,	
  medical	
  triggers,	
  and	
  behavioral	
  triggers,	
  which	
  set	
  the	
  stage	
  to	
   proactively	
  address	
  individuals’	
  risks.	
  	
  The	
  event-­‐based	
  triggers	
  and	
  thresholds	
   retroactively	
  identify	
  occurrences.	
  	
  They	
  are	
  designed	
  to	
  allow	
  review	
  from	
  a	
  provider,	
  as	
   well	
  as	
  an	
  individual,	
  perspective.	
  	
  	
   	
   	
   	
   	
   	
  

	
  

125	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 126 of 179 PageID# 7081
	
  
	
   As	
  described	
  in	
  the	
  last	
  Report,	
  for	
  event-­‐based	
  triggers	
  and	
  thresholds,	
  the	
  most	
  recent	
   draft	
  identifies:	
  
• The	
  domains	
  (e.g.,	
  restraint,	
  aggression,	
  hospitalization,	
  etc.);	
  	
   • The	
  measures	
  (e.g.,	
  restraint	
  use,	
  restraint	
  use	
  with	
  injury,	
  aspiration	
  pneumonia	
  
with	
  medical	
  attention,	
  etc.);	
  and	
  	
   • The	
  risk	
  criteria	
  (e.g.,	
  number	
  of	
  individuals	
  injured	
  as	
  a	
  result	
  of	
  restraint).	
  	
  	
   	
   For	
  all	
  categories,	
  this	
  document	
  also	
  identifies	
  for	
  which	
  triggers	
  and	
  thresholds:	
  	
   • Data	
  currently	
  are	
  available;	
  	
   • Data	
  are	
  available,	
  but	
  a	
  system	
  to	
  capture	
  data/reports	
  is	
  needed;	
   • Are	
  new	
  and	
  not	
  yet	
  implemented:	
  and	
  	
   • Data	
  collection	
  method	
  is	
  not	
  yet	
  developed.	
   	
   In	
  terms	
  of	
  development	
  of	
  risk	
  triggers	
  and	
  thresholds,	
  as	
  during	
  the	
  last	
  review,	
  the	
   medical	
  and	
  behavioral	
  ones	
  remain	
  in	
  draft	
  form.	
  	
  The	
  medical	
  risk	
  triggers	
  include	
  a	
   domain	
  (e.g.,	
  aspiration	
  pneumonia,	
  bowel	
  obstruction),	
  measures	
  (e.g.,	
  frequently	
  chokes	
   or	
  coughs	
  when	
  eating,	
  feeding	
  tube,	
  history	
  of	
  aspiration	
  pneumonia),	
  and	
  a	
  risk	
  plan	
   section.	
  	
  This	
  risk	
  section	
  asks	
  for	
  an	
  indication	
  of	
  whether	
  or	
  not	
  the	
  Individual	
  Support	
   Plan	
  (ISP)	
  includes	
  a	
  risk	
  reduction	
  plan	
  if	
  any	
  criterion	
  is	
  checked.	
  	
  It	
  is	
  positive	
  that	
   DBHDS	
  plans	
  is	
  to	
  incorporate	
  risk	
  assessment	
  and	
  related	
  service	
  planning	
  into	
  each	
   individual’s	
  ISP.	
  	
  It	
  appears,	
  however,	
  that	
  there	
  is	
  a	
  conflict	
  between	
  the	
  summary	
  of	
  risk	
   triggers	
  and	
  thresholds	
  and	
  the	
  draft	
  training	
  module.	
  	
  In	
  the	
  summary	
  any	
  “measure”	
  is	
   considered	
  a	
  trigger;	
  whereas,	
  the	
  draft	
  training	
  modules	
  considers	
  the	
  domains	
  (e.g.,	
   aspiration	
  pneumonia)	
  as	
  the	
  triggers.	
  	
  This	
  is	
  discussed	
  in	
  further	
  detail	
  below	
  (i.e.,	
  pages	
  8	
   and	
  9	
  of	
  Part	
  2).	
  	
  	
   	
   The	
  behavioral	
  risk	
  triggers	
  follow	
  a	
  slightly	
  different	
  format	
  with	
  domains	
  (e.g.,	
  criminal	
   justice	
  involvement,	
  psychiatric	
  hospitalization),	
  a	
  measure	
  (i.e.,	
  number	
  of	
  times	
  individual	
   has	
  engaged	
  in	
  risk	
  criteria	
  over	
  a	
  set	
  period	
  of	
  time),	
  and	
  risk	
  criteria	
  (e.g.,	
  aggressive	
  to	
   others,	
  property	
  destruction).	
  	
  From	
  this	
  summary,	
  it	
  appears	
  that	
  a	
  trigger	
  occurs	
  any	
  time	
   an	
  individual	
  meets	
  the	
  criteria	
  in	
  the	
  “measure,”	
  which	
  reflect	
  the	
  risk	
  criteria.	
  	
  However,	
   the	
  draft	
  training	
  modules	
  appear	
  to	
  indicate	
  that	
  the	
  domains	
  (e.g.,	
  criminal	
  justice	
   involvement,	
  psychiatric	
  hospitalization)	
  are	
  the	
  triggers	
  (i.e.,	
  pages	
  8	
  and	
  9	
  of	
  Part	
  2).	
   	
   For	
  both	
  of	
  these	
  sections,	
  it	
  will	
  be	
  important	
  to	
  make	
  clear	
  that	
  the	
  “measures”	
  are	
  the	
   triggers	
  that	
  should	
  evoke	
  proactive	
  action	
  to	
  prevent	
  the	
  poor	
  outcomes	
  described	
  in	
  the	
   “domains.”	
  	
  Certainly,	
  though,	
  if	
  an	
  individual	
  does	
  experience	
  a	
  condition	
  described	
  in	
  the	
   domains,	
  the	
  individual’s	
  interdisciplinary	
  team	
  and	
  the	
  provider(s)	
  need	
  to	
  act	
  to	
  prevent	
   recurrence.	
   	
  	
   	
   	
   	
   	
  

	
  

126	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 127 of 179 PageID# 7082
	
  
With	
  regard	
  to	
  the	
  current	
  status	
  of	
  implementation,	
  some	
  triggers	
  and	
  thresholds	
  are	
   considered	
  final,	
  and	
  the	
  Commonwealth	
  has	
  begun	
  to	
  collect	
  and	
  review	
  the	
  limited	
   available	
  data.	
  	
  Others	
  are	
  in	
  various	
  stages	
  of	
  implementation.	
  	
  More	
  specifically:	
  	
  
• The	
  Risk	
  Management	
  Review	
  Committee	
  (RMRC)	
  has	
  begun	
  to	
  receive	
  monthly	
  data	
   related	
  to	
  twenty-­‐four	
  event-­‐based	
  individual	
  triggers	
  and	
  thresholds	
  (i.e.,	
  risk	
   criteria),	
  and	
  11	
  provider-­‐level	
  thresholds.	
  	
  The	
  status	
  of	
  the	
  RMRC’s	
  review	
  of	
  this	
   data	
  is	
  discussed	
  below.	
  
• The	
  Mortality	
  Review	
  Committee	
  was	
  involved	
  in	
  the	
  initial	
  development	
  of	
  the	
   medical	
  triggers.	
  	
  As	
  the	
  last	
  Report	
  indicated,	
  the	
  Commonwealth’s	
  plan	
  is	
  to	
   include	
  them	
  in	
  the	
  ISP	
  format	
  to	
  move	
  interdisciplinary	
  teams	
  towards	
  thinking	
   about	
  individuals’	
  risks	
  and	
  service	
  planning	
  to	
  address	
  identified	
  risks.	
  	
  Based	
  on	
   the	
  documentation	
  provided	
  for	
  this	
  review,	
  the	
  Division	
  of	
  Intellectual	
   Disability/Developmental	
  Disability	
  (ID/DD)	
  is	
  in	
  the	
  process	
  of	
  including	
  them	
  in	
   the	
  ISP	
  format	
  and	
  developing	
  training	
  for	
  providers.	
  	
  The	
  Division	
  of	
  Quality	
   Management	
  and	
  Development	
  is	
  developing	
  plans	
  for	
  monitoring	
  provider	
   implementation.	
  	
  According	
  to	
  the	
  Assistant	
  Commissioner,	
  his	
  team	
  was	
  working	
   with	
  the	
  Integrated	
  Health	
  Services	
  team	
  to	
  identify	
  potential	
  data	
  sources,	
  and	
  to	
   develop	
  tools	
  that	
  non-­‐clinical	
  staff,	
  such	
  as	
  many	
  of	
  the	
  case	
  managers	
  could	
  use,	
   which	
  was	
  good	
  to	
  hear.	
  
• According	
  to	
  the	
  summary	
  of	
  risk	
  triggers	
  and	
  thresholds,	
  “Behavioral	
  Risk	
  Triggers	
   and	
  Thresholds	
  are	
  drafted	
  by	
  the	
  Division	
  of	
  ID/DD	
  but	
  are	
  not	
  yet	
  finalized.”	
  
• Of	
  ten	
  selected	
  administrators/quality	
  assurance	
  managers	
  of	
  private	
  providers	
  and	
   CSB,	
  none	
  were	
  familiar	
  with	
  the	
  terms	
  “risk	
  triggers	
  and	
  thresholds.	
  	
  The	
  DBHDS	
   “risk	
  triggers	
  and	
  thresholds”	
  initiative	
  within	
  DBHDS	
  appears	
  not	
  yet	
  to	
  have	
   reached	
  the	
  providers	
  who	
  will	
  ultimately	
  utilize	
  the	
  triggers	
  and	
  thresholds.	
  	
  	
   	
  
The	
  Commonwealth	
  staff	
  have	
  taken	
  some	
  reasonable	
  actions	
  to	
  collect	
  data	
  that	
  providers	
   submit	
  for	
  other	
  purposes.	
  However,	
  the	
  need	
  for	
  revised	
  regulations	
  to	
  facilitate	
  the	
  data	
   collection	
  necessary	
  to	
  effectively	
  implement	
  the	
  risk	
  triggers	
  and	
  thresholds	
  continues	
  to	
   be	
  an	
  obstacle	
  to	
  the	
  Commonwealth’s	
  full	
  implementation	
  of	
  these	
  provisions	
  of	
  the	
   Settlement	
  Agreement.	
  	
  Based	
  on	
  conversations	
  with	
  Commonwealth	
  staff,	
  efforts	
  are	
   underway	
  to	
  try	
  to	
  modify	
  relevant	
  regulations.	
  	
   	
   Since	
  the	
  last	
  Report,	
  Commonwealth	
  staff	
  made	
  minor	
  changes	
  to	
  the	
  list	
  of	
  triggers	
  and	
   thresholds.	
  	
  DBHDS	
  has	
  not	
  yet	
  implemented	
  some	
  of	
  the	
  recommendations	
  made	
  in	
  this	
   Consultant’s	
  previous	
  reports,	
  has	
  not	
  begun	
  to	
  involve	
  service	
  providers	
  in	
  the	
   implementation	
  of	
  this	
  program,	
  and	
  has	
  not	
  yet	
  revised	
  the	
  Licensing	
  regulations	
  that	
  it	
   identifies	
  as	
  primary	
  obstacle	
  to	
  implementing	
  the	
  risk	
  triggers	
  and	
  thresholds	
   requirements	
  that	
  it	
  agreed	
  to	
  in	
  the	
  Settlement.	
  	
  As	
  a	
  result,	
  many	
  of	
  the	
  Consultant’s	
   previous	
  concerns	
  continue	
  to	
  exist.	
  	
  Therefore,	
  the	
  following	
  recommendations	
  are	
  offered,	
   most	
  of	
  which	
  have	
  been	
  offered	
  in	
  previous	
  reports:	
  
§ Definitions	
  for	
  some	
  terms	
  (e.g.,	
  frequent	
  diarrhea,	
  difficulty	
  swallowing,	
  etc.)	
  or	
   criteria	
  (e.g.,	
  for	
  peer-­‐to-­‐peer	
  aggression	
  –	
  victim	
  or	
  aggressor	
  or	
  both,	
  adverse	
   medication	
  event,	
  etc.)	
  should	
  be	
  added	
  to	
  assist	
  in	
  data	
  reliability.	
  
§ For	
  the	
  medical	
  section,	
  triggers	
  and	
  thresholds	
  should	
  be	
  better	
  defined	
  or	
   explained.	
  

	
  

127	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 128 of 179 PageID# 7083
	
  
§ The	
  Settlement	
  Agreement	
  provides	
  a	
  fairly	
  inclusive	
  definition	
  of	
  harm	
  (i.e.,	
  “Harm	
   includes	
  any	
  physical	
  injury,	
  whether	
  caused	
  by	
  abuse,	
  neglect,	
  or	
  accidental	
   causes”).	
  	
  There	
  are	
  important	
  risks	
  that	
  fall	
  within	
  this	
  definition	
  that	
  are	
  not	
  yet	
   included	
  in	
  the	
  triggers	
  and	
  thresholds	
  that	
  DBHDS	
  has	
  developed.	
  	
  Over	
  time,	
  the	
   Commonwealth	
  added	
  some	
  important	
  triggers	
  or	
  thresholds,	
  and	
  should	
  continue	
   to	
  identify	
  others.	
  	
  Now	
  that	
  some	
  data	
  collection	
  has	
  begun,	
  and	
  as	
  other	
  triggers	
   and	
  thresholds	
  are	
  finalized,	
  it	
  will	
  be	
  important	
  to	
  regularly	
  review	
  the	
  list	
  (e.g.,	
   semi-­‐annually),	
  as	
  part	
  of	
  an	
  ongoing	
  quality	
  improvement	
  cycle,	
  to	
  determine	
   whether	
  others	
  should	
  be	
  added.	
  	
  	
  
§ The	
  Mortality	
  Review	
  Committee	
  identified	
  eight	
  conditions	
  that	
  uniquely	
  contribute	
   to	
  the	
  deaths	
  of	
  individuals	
  with	
  ID/DD	
  (i.e.,	
  urinary	
  track	
  infection,	
   constipation/bowel	
  obstruction,	
  aspiration	
  pneumonia,	
  decubitus	
  ulcers,	
  sepsis,	
   seizures,	
  falls,	
  and	
  dehydration).	
  	
  As	
  Commonwealth	
  staff	
  recognize,	
  the	
  early	
   indicators	
  of	
  these	
  conditions	
  should	
  be	
  included	
  in	
  the	
  ISPs	
  and	
  on	
  lists	
  of	
  triggers	
   and	
  thresholds	
  for	
  individuals	
  with	
  ID/DD.	
  	
  Highly	
  sensitive	
  “triggers”	
  should	
  be	
   included	
  for	
  individuals	
  who	
  are	
  older	
  (i.e.	
  over	
  age	
  45)	
  and	
  who	
  are	
  considered	
   medically	
  complex	
  based	
  on	
  their	
  Support	
  Intensity	
  Scale	
  (SIS)	
  assessments.	
  
§ The	
  Commonwealth	
  should	
  consider	
  triggers	
  or	
  thresholds	
  that	
  identify	
  deficits	
  in	
   staff	
  skills	
  or	
  knowledge,	
  or	
  in	
  residential	
  provider	
  support	
  systems.	
  	
  Often,	
  these	
  are	
   the	
  factors	
  that	
  put	
  individuals	
  most	
  at	
  risk.	
  	
  (One	
  example	
  would	
  be	
  neglect	
  findings	
   that	
  illustrate	
  repeated	
  failures	
  on	
  staff’s	
  part	
  to	
  meet	
  individuals’	
  needs.)	
  	
  	
  
§ As	
  the	
  medical	
  risk	
  triggers	
  are	
  further	
  developed	
  and	
  implemented,	
  it	
  will	
  be	
   important	
  for	
  the	
  current	
  question	
  on	
  the	
  list	
  of	
  risk	
  triggers	
  and	
  thresholds	
   regarding	
  whether	
  a	
  risk	
  reduction	
  plan	
  exists	
  to	
  also	
  ask	
  whether	
  it	
  includes	
  the	
   basic	
  elements	
  of	
  a	
  quality	
  plan	
  (i.e.,	
  provide	
  a	
  clinically	
  relevant	
  and	
  achievable	
  goal	
   by	
  which	
  to	
  measure	
  an	
  individual’s	
  progress	
  or	
  lack	
  thereof,	
  include	
  actions	
  steps	
   sufficient	
  to	
  minimize	
  to	
  the	
  extent	
  possible	
  the	
  individual’s	
  risk,	
  and	
  provide	
   mechanisms	
  to	
  monitor	
  the	
  implementation	
  of	
  the	
  plan),	
  and	
  whether	
  staff	
  are	
   competent	
  in	
  this	
  element	
  of	
  an	
  individual’s	
  services.	
  	
  	
  	
  
§ Although	
  weight	
  is	
  included	
  as	
  an	
  indicator	
  of	
  potential	
  skin	
  issues,	
  consideration	
   should	
  be	
  given	
  to	
  triggers	
  and	
  thresholds	
  related	
  to	
  changes	
  in	
  status,	
  such	
  as	
   excessive	
  weight	
  loss	
  and/or	
  gain,	
  and/or	
  incorporating	
  such	
  indicators	
  into	
  other	
   relevant	
  triggers	
  and	
  thresholds.	
  
§ As	
  noted	
  in	
  previous	
  Reports,	
  it	
  will	
  be	
  important	
  to	
  identify	
  mechanisms	
  to	
  gather	
   data	
  from	
  providers	
  not	
  licensed	
  by	
  DBHDS	
  to	
  provide	
  ID/DD	
  services	
  or	
  DBHDS-­‐ operated	
  Training	
  Centers,	
  including	
  nursing	
  homes,	
  private	
  Intermediate	
  Care	
   Facilities	
  for	
  Individuals	
  with	
  Intellectual	
  Disabilities	
  (ICF/IIDs),	
  and	
  private	
  homes.	
  	
  	
  
	
   At	
  the	
  time	
  of	
  the	
  last	
  Report,	
  the	
  role	
  of	
  the	
  RMRC	
  largely	
  had	
  been	
  to	
  review	
  and	
  provide	
   recommendations	
  about	
  the	
  draft	
  lists	
  of	
  triggers	
  and	
  thresholds.	
  	
  Since	
  that	
  time,	
  the	
  RMRC	
   started	
  to	
  review	
  data,	
  and	
  take	
  some	
  limited	
  action	
  to	
  contact	
  and	
  provide	
  technical	
   assistance	
  to	
  providers.	
  	
  Over	
  a	
  several	
  month	
  period	
  of	
  time,	
  the	
  RMRC	
  tried	
  different	
   mechanisms	
  for	
  reviewing	
  and	
  responding	
  to	
  individuals	
  or	
  providers	
  who	
  met	
  risk	
  triggers	
   or	
  thresholds.	
  	
  In	
  some	
  cases,	
  the	
  Committee’s	
  efforts	
  resulted	
  in	
  improved	
  outcomes	
  for	
   individuals.	
  	
  For	
  example,	
  an	
  individual	
  met	
  the	
  criterion	
  for	
  falls,	
  and	
  after	
  the	
   Commonwealth	
  contacted	
  the	
  provider,	
  the	
  individual	
  saw	
  a	
  doctor,	
  was	
  diagnosed	
  and	
   treated	
  for	
  diabetes,	
  and	
  no	
  additional	
  falls	
  were	
  reported.	
  	
  However,	
  the	
  RMRC	
  determined	
  

	
  

128	
  

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that	
  quarterly	
  review	
  of	
  each	
  individual	
  that	
  had	
  met	
  criteria	
  often	
  meant	
  that	
  the	
   interventions	
  might	
  be	
  coming	
  too	
  late	
  in	
  the	
  process.	
  	
  In	
  addition,	
  even	
  with	
  the	
  use	
  of	
  a	
   subcommittee,	
  the	
  volume	
  of	
  initial	
  provider	
  contact	
  and	
  then	
  follow-­‐up	
  made	
  the	
  system	
   less	
  responsive	
  than	
  it	
  should	
  be.	
  	
  	
   	
   In	
  approximately	
  July	
  2016,	
  the	
  RMRC	
  recognized	
  the	
  need	
  to	
  develop	
  a	
  process	
  that	
  placed	
   more	
  responsibility	
  at	
  the	
  CSB	
  and	
  private	
  provider	
  level.	
  	
  At	
  the	
  time	
  of	
  the	
  onsite	
  review	
   in	
  early	
  October	
  2016,	
  such	
  a	
  process	
  was	
  still	
  under	
  development.	
  	
  The	
  RMRC	
  is	
  meeting	
  at	
   least	
  monthly,	
  and	
  they	
  are	
  working	
  with	
  relevant	
  offices,	
  including	
  the	
  data	
  warehouse	
  to	
   develop	
  reports,	
  and	
  licensing,	
  human	
  rights,	
  and	
  integrated	
  health	
  services	
  to	
  define	
  each	
   role.	
  	
  In	
  a	
  document	
  provided	
  to	
  the	
  Consultant,	
  the	
  Commonwealth	
  summarized	
  the	
  goal	
  as	
   follows:	
  “For	
  a	
  truly	
  effective	
  risk	
  management	
  system,	
  every	
  provider	
  must	
  have	
  the	
  ability	
   to	
  monitor	
  his	
  own	
  data	
  and	
  be	
  required	
  to	
  take	
  action	
  when	
  a	
  trigger	
  event	
  occurs	
  or	
  a	
   threshold	
  is	
  met.	
  	
  Any	
  new	
  system	
  must	
  require	
  both	
  the	
  prompt	
  CO	
  [Commonwealth	
   Office]	
  identification	
  of	
  risk	
  and	
  the	
  equally	
  prompt	
  identification	
  of	
  the	
  event	
  and	
  a	
   response	
  by	
  the	
  provider.	
  	
  The	
  role	
  of	
  the	
  CO	
  RMRC	
  would	
  then	
  be	
  to	
  ensure	
  that	
  providers	
   are	
  taking	
  action	
  to	
  reduce	
  risks	
  in	
  response	
  to	
  triggers	
  and	
  thresholds.”	
   	
   The	
  RMRC	
  created	
  a	
  draft	
  workflow	
  that	
  included	
  a	
  daily	
  run	
  of	
  reports	
  showing	
  individuals	
   and	
  providers	
  that	
  meet	
  criteria	
  for	
  triggers	
  and	
  thresholds,	
  and	
  routing	
  of	
  the	
  report	
  to	
   internal	
  offices	
  that	
  need	
  the	
  information	
  (e.g.,	
  licensing,	
  case	
  management,	
  integrated	
   health	
  services).	
  	
  As	
  needed,	
  action	
  would	
  be	
  requested/taken,	
  with	
  reporting	
  to	
  the	
  RMRC,	
   and	
  eventually	
  the	
  QIC.	
  	
  This	
  remains	
  a	
  work	
  in	
  progress.	
  	
  	
   	
   As	
  discussed	
  in	
  further	
  detail	
  below,	
  based	
  on	
  the	
  Consultant’s	
  and	
  other	
  members	
  of	
  the	
   Independent	
  Reviewer	
  team’s	
  interviews	
  with	
  CSBs	
  and	
  private	
  providers,	
  they	
  were	
   largely	
  unfamiliar	
  with	
  the	
  concept	
  of	
  risk	
  triggers	
  and	
  thresholds.	
  	
  Therefore,	
  the	
  next	
   phase	
  of	
  the	
  implementation	
  of	
  the	
  existing	
  triggers	
  and	
  thresholds	
  will	
  be	
  substantial.	
   	
   As	
  the	
  Commonwealth	
  recognizes	
  itself,	
  it	
  is	
  unrealistic	
  to	
  have	
  the	
  Commonwealth	
  Office	
   responsible	
  for	
  identifying	
  when	
  individuals	
  or	
  providers	
  have	
  met	
  triggers	
  or	
  thresholds	
  in	
   real	
  time,	
  and	
  then	
  notifying	
  CSBs	
  and	
  providers.	
  	
  However,	
  many	
  steps	
  are	
  needed	
  to	
   educate	
  providers	
  about	
  risk	
  triggers	
  and	
  thresholds,	
  and	
  then	
  ensure	
  that	
  the	
  providers	
   have	
  the	
  internal	
  capacity	
  to	
  track	
  and	
  respond	
  when	
  triggers	
  and	
  thresholds	
  are	
  met.	
  	
  This	
   will	
  be	
  a	
  particular	
  challenge	
  given	
  that	
  not	
  all	
  providers	
  use	
  the	
  same	
  record	
  keeping	
   procedures,	
  including	
  some	
  electronic	
  health	
  records	
  and	
  some	
  paper	
  records.	
  	
  Based	
  on	
   conversations	
  with	
  CSBs	
  and	
  providers,	
  these	
  systems	
  do	
  not	
  always	
  provide	
  easy	
  access	
  to	
   needed	
  data,	
  and	
  CSBs	
  do	
  not	
  currently	
  receive	
  the	
  same	
  reports	
  that	
  are	
  available	
  to	
  the	
   RMRC.	
  	
  Work	
  was	
  underway,	
  though,	
  to	
  develop	
  a	
  report	
  format.	
  	
  The	
  Commonwealth	
  Office	
   needs	
  to	
  also	
  define	
  its	
  role	
  in	
  the	
  oversight	
  process.	
   	
   In	
  summary,	
  the	
  Commonwealth	
  continues	
  to	
  have	
  limited	
  data	
  with	
  which	
  to	
  track	
  risk	
   triggers	
  and	
  thresholds.	
  	
  A	
  significant	
  challenge	
  continues	
  to	
  be	
  the	
  ability	
  of	
  the	
   Commonwealth	
  to	
  collect	
  data	
  from	
  providers	
  on	
  a	
  complete	
  list	
  of	
  risk	
  triggers	
  and	
   thresholds.	
  	
  This	
  has	
  been	
  the	
  primary	
  obstacle	
  to	
  implementing	
  risk	
  triggers	
  and	
   thresholds	
  for	
  more	
  than	
  three	
  years.	
  	
  DBHDS	
  is	
  aware	
  that	
  its	
  Licensing	
  regulations	
  do	
  not	
   align	
  with	
  the	
  requirements	
  of	
  the	
  Settlement	
  Agreement.	
  	
  Until	
  the	
  Commonwealth	
  revises	
  

	
  

129	
  

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its	
  regulation,	
  it	
  does	
  not	
  appear	
  to	
  be	
  able	
  to	
  make	
  substantial	
  progress	
  toward	
  meeting	
   this	
  requirement	
  of	
  the	
  Agreement.	
  	
  DBHDS	
  reports	
  that	
  it	
  has	
  continued	
  efforts	
  to	
  revise	
   the	
  ISP	
  format	
  to	
  include	
  goals/objectives	
  and/or	
  risk	
  assessments,	
  and	
  to	
  collect	
  data	
   through	
  the	
  ISP	
  development	
  and	
  implementation	
  process.	
  	
  Since	
  the	
  last	
  review,	
  the	
  RMRC	
   trialed	
  mechanisms	
  for	
  responding	
  to	
  available	
  data,	
  but	
  found	
  them	
  too	
  cumbersome,	
  and	
   potentially	
  unreliable.	
  	
  DBHDS	
  efforts	
  are	
  underway	
  to	
  devise	
  a	
  system	
  that	
  would	
  give	
   CSBs	
  and	
  private	
  providers	
  regular	
  access	
  to	
  risk	
  trigger	
  and	
  threshold	
  data,	
  and	
  to	
  provide	
   the	
  same	
  information	
  to	
  Commonwealth	
  Office	
  staff	
  who	
  need	
  it.	
  	
  This	
  would	
  allow	
  more	
   timely	
  responses	
  to	
  risk	
  triggers	
  and	
  thresholds.	
  	
  However,	
  this	
  plan	
  remains	
  in	
  the	
   development	
  stage.	
  	
  Providers	
  and	
  CSBs	
  have	
  not	
  begun	
  implementation.	
  	
  Timely	
  responses	
   are	
  essential,	
  because	
  without	
  the	
  implementation	
  of	
  adequate	
  triggers	
  and	
  thresholds,	
  the	
   potential	
  for	
  harm	
  will	
  likely	
  not	
  be	
  caught	
  early	
  enough	
  to	
  prevent	
  actual	
  harm.	
  	
  The	
   Commonwealth	
  should	
  continue	
  to	
  identify	
  and/or	
  develop	
  relevant	
  sources	
  of	
  data	
  to	
   allow	
  expansion	
  of	
  the	
  list	
  of	
  relevant	
  risk	
  triggers	
  and	
  thresholds,	
  and	
  to	
  develop	
  a	
  viable	
   process	
  for	
  requiring	
  CSB	
  and	
  private	
  provider	
  to	
  respond,	
  and	
  then	
  to	
  monitor	
  the	
  results.	
  	
  	
   	
   	
  
V.C.4.	
  The	
  Commonwealth	
  shall	
  offer	
  guidance	
  and	
  training	
  to	
  providers	
  on	
  proactively	
   identifying	
  and	
  addressing	
  risks	
  of	
  harm,	
  conducting	
  root	
  cause	
  analysis,	
  and	
   developing	
  and	
  monitoring	
  corrective	
  actions.	
  	
  	
  
	
   The	
  actions	
  taken	
  to	
  complete	
  this	
  Report	
  were	
  designed	
  to	
  obtain	
  a	
  status	
  update	
  on	
  the	
   Commonwealth’s	
  efforts	
  to	
  develop	
  training	
  and	
  guidance	
  to	
  providers	
  on	
  proactively	
   identifying	
  and	
  addressing	
  risk	
  of	
  harm,	
  conducting	
  root	
  cause	
  analysis,	
  and	
  developing	
  and	
   monitoring	
  corrective	
  actions.	
   	
   Since	
  the	
  last	
  review,	
  the	
  Commonwealth	
  continues	
  to	
  develop	
  training	
  materials	
  related	
  to	
   risk	
  management	
  and	
  to	
  make	
  them	
  available	
  on	
  its	
  web	
  site.	
  	
  However,	
  based	
  on	
  this	
   Consultant’s	
  interviews	
  with	
  CSB	
  staff,	
  and	
  interviews	
  other	
  members	
  of	
  the	
  Independent	
   Reviewer’s	
  team	
  held	
  with	
  CSB	
  and	
  private	
  provider	
  staff,	
  the	
  concepts	
  of	
  risk	
  triggers	
  and	
   thresholds,	
  as	
  well	
  as	
  mechanics	
  of	
  conducting	
  root	
  cause	
  analysis	
  are	
  not	
  well	
  known	
  and	
   have	
  not	
  yet	
  been	
  implemented	
  at	
  either	
  the	
  CSB	
  or	
  the	
  provider	
  level.	
   	
   At	
  the	
  time	
  of	
  the	
  last	
  review,	
  Commonwealth	
  staff	
  had	
  posted	
  one	
  webinar	
  on	
  risk	
  triggers	
   and	
  thresholds	
  on	
  the	
  DBHDS	
  website.	
  	
  It	
  also	
  offers	
  CSBs	
  and	
  private	
  providers	
  a	
  number	
   of	
  risk	
  management	
  tools	
  on	
  its	
  website	
  (e.g.,	
  Organizational	
  Risk	
  Assessment	
  Tool,	
  Risk	
   Reduction	
  Plan,	
  Status	
  Report,	
  Root	
  Cause	
  Analysis	
  Directions,	
  Root	
  Cause	
  Worksheet,	
   Mortality	
  Review	
  Worksheet,	
  Self-­‐Assessment).	
  	
  Based	
  on	
  staff	
  interview,	
  the	
  decision	
  was	
   made	
  to	
  revise	
  the	
  Part	
  1	
  –	
  Triggers	
  and	
  Thresholds	
  training	
  that	
  is	
  currently	
  posted	
  on	
  the	
   website.	
  	
  To	
  replace	
  it,	
  Commonwealth	
  staff	
  are	
  developing	
  three	
  draft	
  PowerPoint	
   presentations	
  entitled:	
  
§ Part	
  1	
  –	
  Triggers	
  and	
  Thresholds:	
  The	
  Basics;	
   § Part	
  2	
  –	
  The	
  DBHDS	
  Triggers	
  and	
  Thresholds;	
  and	
   § Part	
  3	
  –	
  Establishing	
  Provider-­‐Specific	
  Triggers	
  and	
  Thresholds.	
  	
   	
  

	
  

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Overall,	
  the	
  draft	
  training	
  provides	
  some	
  good	
  information	
  about	
  this	
  approach	
  to	
  risk	
   management.	
  	
  However,	
  Part	
  2	
  appeared	
  largely	
  incomplete,	
  and	
  although	
  Part	
  1	
  included	
  a	
   question	
  and	
  answer	
  quiz	
  at	
  the	
  end,	
  none	
  of	
  the	
  modules	
  included	
  competency	
   demonstration	
  components.	
  It	
  was	
  unclear,	
  therefore,	
  how	
  the	
  Commonwealth	
  would	
   evaluate	
  the	
  effectiveness	
  of	
  the	
  training.	
  	
  	
   	
   In	
  addition,	
  DBHDS	
  needs	
  to	
  review	
  the	
  training	
  information	
  to	
  ensure	
  that	
  it	
  is	
  consistent	
   throughout	
  the	
  presentations	
  and	
  with	
  other	
  documents.	
  	
  For	
  example,	
  the	
  following	
  should	
   be	
  clarified:	
  1)	
  on	
  page	
  3	
  of	
  Part	
  2,	
  a	
  slide	
  states:	
  “The	
  DBHDS	
  Triggers	
  and	
  Thresholds	
  are	
   measures	
  that	
  are	
  designed	
  to…”	
  (emphasis	
  added),	
  but	
  on	
  page	
  5,	
  the	
  slide	
  states:	
   “Triggers	
  and	
  Thresholds	
  are	
  not	
  measures…”;	
  and	
  2)	
  as	
  noted	
  above,	
  the	
  training	
  appeared	
   to	
  define	
  medical	
  and	
  behavioral	
  risk	
  triggers	
  differently	
  from	
  the	
  definition	
  in	
  the	
   summary	
  of	
  risk	
  triggers	
  and	
  thresholds.	
   	
   This	
  Consultant	
  met	
  with	
  representatives	
  from	
  three	
  CSBs	
  who	
  had	
  responsibility	
  for	
   quality	
  assurance/improvement	
  activities.	
  	
  As	
  part	
  of	
  the	
  Independent	
  Reviewer’s	
  Safety	
   study,	
  another	
  independent	
  consultant	
  interviewed	
  an	
  additional	
  three	
  CSBs	
  and	
  seven	
   private	
  providers.	
  	
  None	
  of	
  these	
  CSBs	
  or	
  private	
  providers	
  were	
  familiar	
  with	
  the	
  terms	
   “risk	
  triggers	
  and	
  thresholds,”	
  and	
  none	
  had	
  begun	
  implementing	
  them.	
  	
  Moreover,	
  for	
  the	
   most	
  part,	
  it	
  did	
  not	
  appear	
  that	
  the	
  staff	
  responsible	
  for	
  quality	
  management	
  at	
  these	
  CSBs	
   and	
  private	
  providers	
  were	
  aware	
  of	
  and/or	
  using	
  the	
  resources	
  the	
  Commonwealth	
  had	
   developed	
  to	
  date.	
   	
   As	
  noted	
  in	
  the	
  previous	
  two	
  Reports,	
  the	
  training	
  and	
  technical	
  assistance	
  materials	
   DBHDS	
  provided	
  for	
  root	
  cause	
  analysis	
  impart	
  excellent	
  information,	
  including	
  a	
  realistic	
   example	
  that	
  illustrates	
  the	
  root	
  cause	
  process	
  in	
  an	
  easy-­‐to-­‐understand	
  format.	
  	
  Based	
  on	
   the	
  Consultant’s	
  as	
  well	
  as	
  other	
  members	
  of	
  the	
  Independent	
  Expert’s	
  interviews	
  with	
   CSBs	
  and	
  private	
  providers,	
  approximately	
  half	
  of	
  them	
  reported	
  some	
  familiarity	
  with	
  the	
   term	
  root	
  cause	
  analysis,	
  but	
  again,	
  knowledge	
  of	
  and	
  use	
  of	
  the	
  tools	
  the	
  Commonwealth	
   developed	
  was	
  minimal.	
   	
   As	
  noted	
  in	
  previous	
  Reports,	
  Commonwealth	
  staff	
  recognize	
  that	
  publishing	
  these	
   resources	
  on	
  the	
  DBHDS	
  website	
  is	
  a	
  first	
  step.	
  	
  DBHDS	
  understands	
  that	
  additional	
  training	
   and	
  technical	
  assistance	
  is	
  needed,	
  	
  and,	
  if	
  they	
  are	
  not	
  used,	
  the	
  DBHDS	
  resources	
  will	
  not	
   strengthen	
  providers’	
  efforts	
  to	
  reduce	
  risks	
  or	
  reduce	
  harm	
  for	
  the	
  members	
  of	
  the	
  target	
   population.	
  	
  At	
  this	
  juncture,	
  it	
  is	
  important	
  that	
  the	
  Commonwealth	
  take	
  steps	
  to	
  offer	
  and	
   to	
  require	
  the	
  participation	
  of	
  CSB	
  and	
  private	
  provider	
  staff	
  in	
  training	
  and	
  technical	
   assistance	
  on	
  the	
  development	
  and	
  implementation	
  of	
  the	
  proactive	
  identification	
  of	
  risks	
  of	
   harm,	
  to	
  conduct	
  of	
  root	
  cause	
  analysis,	
  and	
  to	
  develop	
  and	
  monitor	
  implementation	
  of	
   corrective	
  actions.	
  	
  	
   	
   Included	
  in	
  its	
  next	
  steps,	
  	
  DBHDS	
  should:	
  
• Finalize	
  the	
  definitions	
  of	
  the	
  risk	
  triggers	
  and	
  thresholds;	
  	
   • Finalize	
  the	
  training	
  and	
  adding	
  competency	
  demonstrations	
  to	
  the	
  modules;	
  	
   • Provide	
  training	
  to	
  all	
  CSBs	
  and	
  private	
  community	
  providers;	
  and	
  

	
  

131	
  

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• Require	
  that	
  CSBs	
  and	
  other	
  providers	
  of	
  residential	
  and	
  day	
  services	
  implement	
   risk	
  management	
  processes,	
  including	
  establishment	
  of	
  uniform	
  risk	
  triggers	
  and	
   thresholds,	
  as	
  the	
  Settlement	
  Agreement	
  requires.	
  
	
   As	
  has	
  been	
  discussed	
  in	
  previous	
  Reports,	
  the	
  optional	
  nature	
  of	
  the	
  current	
  training	
   options	
  related	
  to	
  risk	
  management	
  remains	
  a	
  challenge.	
  	
  This	
  is	
  an	
  area	
  that	
  the	
   Commonwealth	
  needs	
  to	
  address.	
  	
  It	
  appears	
  that	
  CSBs	
  and	
  providers	
  are	
  not	
  using,	
  and	
  in	
   many	
  cases	
  are	
  not	
  even	
  aware	
  of,	
  the	
  quality	
  resources	
  and	
  tools	
  that	
  DBHDS	
  has	
  “offered”	
   by	
  posting	
  them	
  on	
  its	
  website.	
  	
  For	
  both	
  the	
  Risk	
  Triggers	
  and	
  Thresholds	
  training	
  and	
  the	
   Root	
  Cause	
  Analysis	
  training,	
  the	
  Commonwealth	
  should	
  offer	
  classroom	
  training,	
  as	
  well	
  as	
   online	
  training,	
  including	
  the	
  equivalent	
  of	
  experiential-­‐based	
  learning,	
  such	
  as	
  role-­‐plays	
   and	
  discussion.	
   	
   	
  
V.D.1-­‐6	
  	
  The	
  Commonwealth’s	
  HCBS	
  [Home	
  and	
  Community-­‐Based	
  Services]	
  waivers	
  shall	
   operate	
  in	
  accordance	
  with	
  the	
  Commonwealth’s	
  CMS	
  [Centers	
  for	
  Medicare	
  and	
  Medicaid	
   Services]-­‐approved	
  waiver	
  quality	
  improvement	
  plan	
  to	
  ensure	
  the	
  needs	
  of	
  individuals	
   enrolled	
  in	
  a	
  waiver	
  are	
  met,	
  that	
  individuals	
  have	
  choice	
  in	
  all	
  aspects	
  of	
  their	
  selection	
  of	
   goals	
  and	
  supports,	
  and	
  that	
  there	
  are	
  effective	
  processes	
  in	
  place	
  to	
  monitor	
  participant	
   health	
  and	
  safety.	
  	
  The	
  plan	
  shall	
  include	
  evaluation	
  of	
  level	
  of	
  care;	
  development	
  and	
   monitoring	
  of	
  individual	
  service	
  plans;	
  assurance	
  of	
  qualified	
  providers;	
  identification,	
   response	
  and	
  prevention	
  of	
  occurrences	
  of	
  abuse,	
  neglect	
  and	
  exploitation;	
  administrative	
   oversight	
  of	
  all	
  waiver	
  functions	
  including	
  contracting;	
  and	
  financial	
  accountability.	
  	
   Review	
  of	
  data	
  shall	
  occur	
  at	
  the	
  local	
  and	
  state	
  levels	
  by	
  the	
  CBSs	
  and	
  DBHDS/DMAS,	
   respectively…	
  	
  	
  
1. The	
  Commonwealth	
  shall	
  collect	
  and	
  analyze	
  consistent,	
  reliable	
  data	
  to	
  improve	
   the	
  availability	
  and	
  accessibility	
  of	
  services	
  for	
  individuals	
  in	
  the	
  target	
  population	
   and	
  the	
  quality	
  of	
  services	
  offered	
  to	
  individuals	
  receiving	
  services	
  under	
  this	
   Agreement.	
  	
  The	
  Commonwealth	
  shall	
  use	
  data	
  to:	
   a. Identify	
  trends,	
  patterns,	
  strengths,	
  and	
  problems	
  at	
  the	
  individual,	
  service-­‐ delivery,	
  and	
  systemic	
  levels,	
  including,	
  but	
  not	
  limited	
  to,	
  quality	
  of	
  services,	
   service	
  gaps,	
  accessibility	
  of	
  services,	
  serving	
  individuals	
  with	
  complex	
  needs,	
   and	
  the	
  discharge	
  and	
  transition	
  planning	
  process;	
   b. Develop	
  preventative,	
  corrective,	
  and	
  improvement	
  measures	
  to	
  address	
   identified	
  problems;	
   c. Track	
  the	
  efficacy	
  of	
  preventative,	
  corrective,	
  and	
  improvement	
  measures;	
   and	
   d. Enhance	
  outreach,	
  education,	
  and	
  training.	
  
2. The	
  Commonwealth	
  shall	
  begin	
  collecting	
  and	
  analyzing	
  reliable	
  data	
  about	
   individuals	
  receiving	
  services	
  under	
  this	
  Agreement	
  selected	
  from	
  the	
  following	
   areas	
  in	
  State	
  Fiscal	
  Year	
  2012	
  and	
  will	
  ensure	
  reliable	
  data	
  is	
  collected	
  and	
   analyzed	
  from	
  each	
  of	
  these	
  areas	
  by	
  June	
  30,	
  2014.	
  	
  Multiple	
  types	
  of	
  sources	
  (e.g.,	
   providers,	
  case	
  managers,	
  licensing,	
  risk	
  management,	
  Quality	
  Service	
  Reviews)	
  can	
   provide	
  data	
  in	
  each	
  area,	
  though	
  any	
  individual	
  type	
  of	
  source	
  need	
  not	
  provide	
   data	
  in	
  every	
  area:	
   a. Safety	
  and	
  freedom	
  from	
  harm	
  (e.g.,	
  neglect	
  and	
  abuse,	
  injuries,	
  use	
  of	
  

	
  

132	
  

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seclusion	
  or	
  restraints,	
  deaths,	
  effectiveness	
  of	
  corrective	
  actions,	
  licensing	
   violations);	
   b. Physical,	
  mental,	
  and	
  behavioral	
  health	
  and	
  well	
  being	
  (e.g.,	
  access	
  to	
  medial	
   care	
  (including	
  preventative	
  care),	
  timeliness	
  and	
  adequacy	
  of	
  interventions	
   (particularly	
  in	
  response	
  to	
  changes	
  in	
  status);	
   c. Avoiding	
  crises	
  (e.g.,	
  use	
  of	
  crisis	
  services,	
  admissions	
  to	
  emergency	
  rooms	
  or	
   hospitals,	
  admissions	
  to	
  Training	
  Centers	
  or	
  other	
  congregate	
  settings,	
   contact	
  with	
  criminal	
  justice	
  system);	
  	
   d. Stability	
  (e.g.,	
  maintenance	
  of	
  chosen	
  living	
  arrangement,	
  change	
  in	
   providers,	
  work/other	
  day	
  program	
  stability);	
   e. Choice	
  and	
  self-­‐determination	
  (e.g.,	
  service	
  plans	
  developed	
  through	
  person-­‐ centered	
  planning	
  process,	
  choice	
  of	
  services	
  and	
  providers,	
  individualized	
   goals,	
  self-­‐direction	
  of	
  services);	
   f. Community	
  inclusion	
  (e.g.,	
  community	
  activities,	
  integrated	
  work	
   opportunities,	
  integrated	
  living	
  options,	
  educational	
  opportunities,	
   relationships	
  with	
  non-­‐paid	
  individuals);	
   g. Access	
  to	
  services	
  (e.g.,	
  waitlists,	
  outreach	
  efforts,	
  identified	
  barriers,	
  service	
   gaps	
  and	
  delays,	
  adaptive	
  equipment,	
  transportation,	
  availability	
  of	
  services	
   geographically,	
  cultural	
  and	
  linguistic	
  competency);	
  and	
   h. Provider	
  capacity	
  (e.g.,	
  caseloads,	
  training,	
  staff	
  turnover,	
  provider	
   competency)…	
   3. The	
  Commonwealth	
  shall	
  collect	
  and	
  analyze	
  data	
  from	
  available	
  sources,	
  including,	
   the	
  risk	
  management	
  system	
  described	
  in	
  Section	
  V.C.	
  above,	
  those	
  sources	
  described	
   in	
  Sections	
  V.E-­‐G	
  and	
  I	
  below	
  (e.g.,	
  providers,	
  case	
  managers,	
  Quality	
  Service	
   Reviews,	
  and	
  licensing),	
  Quality	
  Management	
  Reviews,	
  the	
  crisis	
  system,	
  service	
  and	
   discharge	
  plans	
  from	
  the	
  Training	
  Centers,	
  service	
  plans	
  for	
  individuals	
  receiving	
   waiver	
  services,	
  Regional	
  Support	
  Teams,	
  and	
  CIMs.	
   4. The	
  Commonwealth	
  shall	
  implement	
  Regional	
  Quality	
  Councils	
  that	
  shall	
  be	
   responsible	
  for	
  assessing	
  relevant	
  data,	
  identifying	
  trends,	
  and	
  recommending	
   responsive	
  actions	
  in	
  their	
  respective	
  Regions	
  of	
  the	
  Commonwealth.	
   a. The	
  Councils	
  shall	
  include	
  individuals	
  experienced	
  in	
  data	
  analysis,	
   residential	
  and	
  other	
  providers,	
  CSBs,	
  individuals	
  receiving	
  services,	
  and	
   families,	
  and	
  may	
  include	
  other	
  relevant	
  stakeholders.	
   b. Each	
  Council	
  shall	
  meet	
  on	
  a	
  quarterly	
  basis	
  to	
  share	
  regional	
  data,	
  trends,	
   and	
  monitoring	
  efforts	
  and	
  plan	
  and	
  recommend	
  regional	
  quality	
   improvement	
  initiatives.	
  	
  The	
  work	
  of	
  the	
  Regional	
  Quality	
  Councils	
  shall	
  be	
   directed	
  by	
  a	
  DBHDS	
  quality	
  improvement	
  committee.	
   5. 	
  At	
  least	
  annually,	
  the	
  Commonwealth	
  shall	
  report	
  publicly,	
  through	
  new	
  or	
  existing	
   mechanisms,	
  on	
  the	
  availability	
  (including	
  the	
  number	
  of	
  people	
  served	
  in	
  each	
  type	
   of	
  service	
  described	
  in	
  this	
  Agreement)	
  and	
  quality	
  of	
  supports	
  and	
  services	
  in	
  the	
   community	
  and	
  gaps	
  in	
  services,	
  and	
  shall	
  make	
  recommendations	
  for	
   improvements.	
  
	
   	
   	
   	
  

	
  

133	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 134 of 179 PageID# 7089 	
  

The	
  fact-­‐finding	
  for	
  this	
  Report	
  was	
  designed	
  to:	
  	
   a) Obtain	
  a	
  status	
  of	
  the	
  Commonwealth’s	
  efforts	
  to	
  develop	
  a	
  Centers	
  for	
  Medicare	
   and	
  Medicaid	
  Services	
  (CMS)-­‐approved	
  QI	
  plan	
  to	
  determine	
  if	
  it	
  aligns	
  with	
  the	
   Settlement	
  Agreement,	
  including	
  how	
  it	
  applies	
  to	
  the	
  waiver	
  redesign	
  transition	
   plan	
  (what	
  are	
  the	
  indicators	
  of	
  success	
  or	
  failures).	
   b) Obtain	
  updates	
  on	
  the	
  Commonwealth’s	
  efforts	
  to	
  identify	
  the	
  data	
  to	
  be	
   collected	
  and	
  to	
  collect	
  valid	
  and	
  reliable	
  data	
  for	
  the	
  eight	
  domains	
  (i.e.,	
  as	
  listed	
   in	
  Section	
  V.D.3,	
  a	
  through	
  h).	
  	
  	
   c) Determine	
  the	
  status	
  of	
  the	
  validity	
  of	
  the	
  measures	
  and	
  reliability	
  of	
  the	
  data	
   (V.D.2,	
  a	
  through	
  d)	
  and	
  the	
  status	
  of	
  data	
  analyses	
  (i.e.,	
  Section	
  V.D.4).	
   d) Obtain	
  updates	
  on	
  the	
  status	
  of	
  CSBs	
  and	
  providers’	
  review	
  of	
  data	
  (i.e.,	
  V.D.1.),	
  as	
   well	
  as	
  DBHDS/DMAS’	
  review	
  of	
  CSBs	
  and	
  providers’	
  data	
  review	
  processes.	
   e) Obtain	
  updates	
  on	
  the	
  status	
  of	
  the	
  Regional	
  Quality	
  Councils	
  (i.e.,	
  Section	
  V.D.5a.	
   and	
  b)	
  and	
  the	
  status	
  of	
  assessments	
  of	
  relevant	
  data,	
  review	
  of	
  trends,	
  and	
   recommendations.	
   f) Obtain	
  updates	
  on	
  the	
  Commonwealth	
  website	
  designed	
  to	
  report	
  publicly	
  on	
  the	
   availability,	
  quality,	
  and	
  gaps	
  in	
  services,	
  and	
  recommendations	
  made	
  for	
   improvement	
  (i.e.,	
  Section	
  V.6).	
  
	
   Since	
  the	
  last	
  review,	
  the	
  Centers	
  for	
  Medicare	
  and	
  Medicaid	
  (CMS)	
  approved	
  the	
   Commonwealth’s	
  amended	
  Home-­‐	
  and	
  Community-­‐Based	
  (HCB)	
  Waiver,	
  now	
  known	
  as	
  the	
   Community	
  Living	
  (CL),	
  the	
  Family	
  and	
  Individual	
  Support	
  (FIS),	
  and	
  the	
  Building	
   Independence	
  (BI)	
  Waivers.	
  	
  The	
  Commonwealth	
  provided	
  a	
  copy	
  of	
  Appendix	
  H:	
  Quality	
   Improvement	
  Strategy.	
  	
  This	
  document	
  provides	
  a	
  description	
  of	
  the	
  basic	
  assurances	
  the	
   Commonwealth	
  provides	
  to	
  CMS	
  with	
  regard	
  to	
  ensuring	
  the	
  quality	
  provision	
  of	
   protections,	
  services,	
  and	
  supports	
  through	
  the	
  implementation	
  of	
  the	
  Waiver.	
  	
  The	
   document	
  describes	
  levels	
  of	
  quality	
  improvement	
  activities,	
  including:	
  	
  
a) Case	
  management,	
  including	
  the	
  case	
  managers’	
  role	
  in	
  monitoring	
  individuals’	
   services,	
  providing	
  data	
  to	
  DBHDS,	
  and	
  the	
  case	
  management	
  supervisor’s	
  role	
  in	
   reviewing	
  records	
  and	
  identifying	
  any	
  issues;	
  	
  
b) The	
  Quality	
  Review	
  Team,	
  which	
  consists	
  of	
  Department	
  of	
  Medical	
  Assistance	
   Services	
  (DMAS)	
  and	
  DBHDS	
  representatives,	
  that	
  meets	
  quarterly	
  to	
  review	
   performance	
  measures,	
  and	
  the	
  document	
  listed	
  sources	
  of	
  data	
  it	
  reviews	
  (e.g.,	
   CHRIS	
  data,	
  Office	
  of	
  Licensing	
  Services	
  data,	
  DMAS	
  audit	
  data);	
  	
  
c) The	
  DBHDS	
  Quality	
  Improvement	
  Committee	
  (QIC)	
  and	
  Regional	
  Quality	
  Councils	
   (RQCs);	
  	
  
d) Quality	
  Services	
  Reviews	
  (QSRs)	
  that	
  an	
  independent	
  contractor	
  implements,	
   along	
  with	
  National	
  Core	
  Indicator	
  surveys;	
  	
  
e) Mortality	
  Review	
  Committee,	
  the	
  role	
  of	
  which	
  is	
  described	
  as:	
  “to	
  learn	
  from	
  a	
   person’s	
  death,	
  to	
  discover	
  if	
  the	
  same	
  or	
  similar	
  situation	
  may	
  affect	
  others	
  in	
   the	
  future,	
  and	
  to	
  improve	
  the	
  overall	
  quality	
  of	
  care	
  at	
  individual	
  and	
  systemic	
   levels”;	
  and	
  	
  
f) Establishment	
  of	
  a	
  Provider	
  Record,	
  which	
  will	
  include	
  Quality	
  Service	
  indicators	
   (i.e.,	
  related	
  to	
  meeting	
  policy	
  and	
  regulation	
  requirements),	
  and	
  Expertise	
   indicators	
  (i.e.,	
  related	
  to	
  staff	
  competency	
  in	
  supporting	
  individuals	
  with	
  DD	
   from	
  basic	
  to	
  more	
  advanced	
  levels).	
  	
  	
  
	
  

	
  

134	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 135 of 179 PageID# 7090
	
  
This	
  description	
  included	
  many	
  of	
  the	
  requirements	
  of	
  the	
  Settlement	
  Agreement	
  with	
   regard	
  to	
  quality	
  improvement,	
  so	
  was	
  consistent	
  with	
  and	
  not	
  in	
  contradiction	
  to	
  the	
   Settlement	
  Agreement.	
   	
   The	
  Commonwealth	
  also	
  provided	
  a	
  copy	
  of	
  the	
  DBHDS	
  Draft	
  Quality	
  Management	
  Plan,	
   updated	
  5/19/16.	
  	
  The	
  Assistant	
  Commissioner	
  for	
  Quality	
  Assurance	
  and	
  Development	
   indicated	
  that	
  this	
  was	
  in	
  the	
  development	
  stage,	
  which	
  was	
  an	
  accurate	
  assessment.	
  	
  It	
   provided	
  a	
  general	
  outline	
  of	
  the	
  Department’s	
  plan	
  for	
  quality	
  management,	
  but	
  just	
  as	
  the	
   system	
  is	
  developing,	
  the	
  plan	
  also	
  needs	
  to	
  develop	
  to	
  accurately	
  reflect	
  the	
  expectations	
   for	
  what	
  the	
  system	
  ultimately	
  will	
  include,	
  while	
  also	
  recognizing	
  the	
  current	
  status	
  of	
  the	
   system.	
  	
  For	
  example,	
  the	
  	
  performance	
  indicator	
  and	
  risk	
  management	
  trigger	
  and	
   threshold	
  sections	
  of	
  the	
  plan	
  appeared	
  to	
  describe	
  the	
  goals	
  for	
  these	
  programs,	
  but	
  they	
   were	
  written	
  in	
  a	
  tense	
  that	
  gave	
  the	
  impression	
  this	
  was	
  the	
  current	
  state	
  of	
  practice.	
  	
   There	
  are	
  different	
  options	
  for	
  communicating	
  the	
  ultimate	
  expectations	
  for	
  the	
  system,	
  as	
   well	
  as	
  the	
  current	
  status	
  and	
  plan	
  for	
  future	
  expansion.	
  	
  For	
  example,	
  a	
  policy	
  could	
  set	
   forth	
  the	
  ultimate	
  expectations,	
  and	
  an	
  annual	
  plan	
  could	
  provide	
  a	
  status	
  update	
  and	
  set	
   the	
  expectations	
  for	
  next	
  steps	
  in	
  the	
  way	
  of	
  actions	
  steps,	
  persons	
  responsible,	
  and	
   timeframes	
  for	
  completion.	
   	
   As	
  noted	
  in	
  the	
  last	
  Report,	
  the	
  Commonwealth’s	
  took	
  significant	
  steps	
  forward	
  in	
  its	
  ability	
   to	
  collect	
  and	
  use	
  data	
  to	
  assess	
  and	
  improve	
  quality.	
  	
  These	
  steps	
  included	
  the	
   development	
  of	
  the	
  OneSource	
  Data	
  Warehouse	
  and	
  the	
  development	
  of	
  some	
  standard	
   reports	
  that	
  allow	
  DBHDS	
  users	
  to	
  pull	
  data	
  from	
  the	
  warehouse	
  in	
  a	
  usable	
  format.	
  	
  The	
   2015	
  Report	
  includes	
  a	
  list	
  of	
  sources	
  of	
  data	
  in	
  the	
  warehouse.	
  	
  Based	
  on	
  conversations	
   with	
  staff	
  and	
  review	
  of	
  the	
  document	
  Overview	
  of	
  DBHDS’	
  Data	
  Warehouse	
  as	
  a	
  Resource	
   for	
  Eight	
  Domains	
  Measurement,	
  dated	
  June	
  2016,	
  significant	
  changes	
  in	
  these	
  sources	
  had	
   not	
  occurred.	
  	
   	
   Since	
  the	
  last	
  review,	
  Commonwealth	
  staff	
  continue	
  to	
  take	
  steps	
  to	
  utilize	
  data	
  to	
  evaluate	
   its	
  progress	
  across	
  the	
  eight	
  domains:	
  
• As	
  described	
  in	
  OneSource	
  Data	
  Warehouse	
  Data	
  Quality	
  Framework	
  Overview,	
   dated	
  February	
  24,	
  2016,	
  the	
  Commonwealth	
  is	
  establishing	
  a	
  system	
  designed	
  to	
   continuously	
  work	
  towards	
  high	
  quality	
  data.	
  	
  As	
  this	
  document	
  explained,	
  in	
  order	
   for	
  data	
  to	
  be	
  effective,	
  it	
  should	
  be	
  accurate,	
  timely,	
  relevant,	
  standardized,	
   accessible,	
  unique,	
  and	
  complete.	
  	
  To	
  accomplish	
  this	
  goal,	
  Commonwealth	
  staff	
  are	
   engaged	
  in	
  a	
  number	
  of	
  processes/procedures.	
  	
  These	
  include:	
   o A	
  Data	
  Governance	
  Committee,	
  which	
  is	
  a	
  two-­‐tiered	
  group:	
  a	
  Steering	
   Committee	
  that	
  the	
  Interim	
  Chief	
  Deputy	
  chairs	
  and	
  Technical	
  Work	
  Groups	
   that	
  are	
  comprised	
  of	
  subject	
  matter	
  experts	
  and	
  technical	
  team	
   representatives;	
   o Software	
  development,	
  which	
  includes	
  testing	
  after	
  development	
  and	
  before	
   production;	
   o Use	
  of	
  a	
  national	
  standard	
  for	
  data	
  maturity	
  and	
  capability.	
  	
  The	
  Director	
  of	
   the	
  Business	
  Analytics	
  Center	
  of	
  Excellence	
  explained	
  that	
  this	
  set	
  of	
   standards	
  allows	
  scoring	
  of	
  processes	
  across	
  six	
  domains	
  to	
  determine	
  the	
   system’s	
  maturity	
  level.	
  	
  Using	
  this	
  as	
  a	
  decision-­‐making	
  tool,	
  decisions	
  will	
  

	
  

135	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 136 of 179 PageID# 7091
	
  
have	
  to	
  be	
  made	
  along	
  the	
  way	
  regarding	
  what	
  level	
  of	
  maturity	
  is	
  necessary	
   while	
  remaining	
  cost-­‐effective;	
  	
   o Implementation	
  of	
  a	
  data	
  quality	
  defect	
  management	
  process	
  to	
  define:	
  who	
   can	
  sound	
  the	
  alarm	
  when	
  there	
  is	
  a	
  defect	
  in	
  the	
  data,	
  the	
  team	
  who	
  would	
   evaluate	
  the	
  concerns,	
  the	
  Data	
  Governance	
  Committee’s	
  prioritization	
  of	
   which	
  defects	
  need	
  to	
  be	
  fixed	
  and	
  in	
  what	
  order,	
  and	
  then	
  resolution	
  and	
   closure	
  of	
  the	
  issues;	
  and	
   o Statistical	
  process	
  controls,	
  which	
  are	
  used	
  to	
  measure	
  code	
  performance	
  and	
   any	
  associated	
  variation.	
   • In	
  June	
  2016,	
  the	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator	
  developed	
  a	
  document	
   entitled:	
  “Overview	
  of	
  DBHDS’s	
  Data	
  Warehouse	
  as	
  a	
  Resource	
  for	
  Eight	
  Domains	
   Measurement.”	
  	
  It	
  explains	
  how	
  the	
  various	
  dimension	
  tables	
  within	
  OneSource	
  can	
   be	
  related	
  to	
  develop	
  fact	
  tables.	
  	
  So	
  in	
  other	
  words,	
  individual	
  demographic	
  data	
  is	
   held	
  in	
  one	
  dimensional	
  table,	
  while	
  information	
  about	
  individuals’	
  deaths	
  is	
   contained	
  in	
  another	
  dimension	
  table,	
  and	
  information	
  about	
  providers	
  is	
  held	
  in	
  a	
   third	
  dimension	
  table.	
  	
  A	
  death	
  record	
  fact	
  table	
  can	
  then	
  be	
  created	
  and	
  maintained	
   within	
  OneSource	
  that	
  pulls	
  together	
  information	
  from	
  the	
  demographic,	
  death,	
  and	
   provider	
  dimension	
  tables	
  as	
  well	
  as	
  a	
  few	
  others	
  to	
  provide	
  a	
  fuller	
  picture	
  about	
   individuals’	
  deaths.	
  	
  The	
  document	
  then	
  provides	
  examples	
  across	
  the	
  eight	
  domains	
   of	
  the	
  dimension	
  tables	
  that	
  could	
  be	
  pulled	
  together	
  in	
  various	
  configurations	
  to	
   create	
  fact	
  tables.	
  	
  This	
  document	
  provides	
  a	
  good	
  primer	
  on	
  how	
  a	
  relational	
   database	
  works	
  with	
  practical	
  applications	
  for	
  the	
  eight	
  domains.	
   • For	
  Domains	
  1	
  –	
  Safety,	
  2	
  –	
  Health	
  and	
  Well-­‐Being,	
  3	
  –	
  Avoiding	
  Crises,	
  and	
  5	
  –	
   Choice	
  and	
  Self-­‐determination,	
  the	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator,	
  in	
   conjunction	
  with	
  subject-­‐matter	
  experts,	
  has	
  begun	
  to	
  develop	
  documents	
  entitled	
   “Defining	
  the	
  8	
  Domains,”	
  dated	
  9/15/16.	
  	
  These	
  documents	
  are	
  in	
  various	
  stages	
  of	
   development,	
  but	
  show	
  a	
  thoughtful	
  approach	
  to	
  what	
  should	
  be	
  measured	
  (i.e.,	
   valid	
  measures),	
  what	
  is	
  possible	
  to	
  measure	
  reliably	
  (i.e.,	
  reliable	
  measures),	
  what	
   relevant	
  fact	
  tables	
  currently	
  exist	
  within	
  OneSource,	
  and	
  what	
  additional	
  data	
  might	
   be	
  required.	
  	
  A	
  first	
  step	
  in	
  each	
  of	
  these	
  documents	
  is	
  to	
  identify	
  the	
  relevant	
   definitions.	
  	
  Doing	
  so	
  was	
  easier	
  in	
  some	
  cases	
  than	
  in	
  others.	
  	
  For	
  example,	
  for	
   safety,	
  regulations	
  provide	
  a	
  number	
  of	
  definitions,	
  such	
  as	
  for	
  abuse,	
  neglect,	
  and	
   various	
  types	
  of	
  restraint.	
  	
  It	
  was	
  more	
  challenging,	
  however,	
  in	
  cases,	
  such	
  as	
  for	
  the	
   term	
  “crisis,”	
  which	
  a	
  DBHDS	
  regulation	
  defined	
  differently	
  than	
  the	
  ID	
  Community	
   Services	
  Manual.	
  	
  “Choice”	
  also	
  provides	
  measurement	
  challenges,	
  particularly	
  for	
   individuals	
  with	
  intellectual	
  and	
  developmental	
  disabilities	
  for	
  whom	
  questions	
   arise	
  about	
  informed	
  choice	
  and	
  restricted	
  choice.	
  	
  As	
  a	
  result,	
  some	
  workgroups	
  are	
   further	
  along	
  than	
  others	
  in	
  terms	
  of	
  identifying	
  fact	
  tables	
  that	
  will	
  generate	
  needed	
   information.	
  	
  Overall,	
  though,	
  this	
  appears	
  to	
  be	
  a	
  reasonable	
  approach	
  to	
  ultimately	
   identify	
  valid	
  and	
  reliable	
  measures	
  for	
  the	
  eight	
  domains.	
  	
  Previous	
  Reports	
  by	
  this	
   Consultant	
  have	
  included	
  recommendations	
  related	
  to	
  the	
  scope	
  and	
  quality	
  of	
  data.	
  	
   Commonwealth	
  staff	
  are	
  encouraged	
  to	
  continue	
  to	
  consider	
  those	
   recommendations	
  as	
  they	
  complete	
  this	
  process.	
   • According	
  to	
  the	
  DOJ	
  Settlement	
  Advisor,	
  by	
  12/31/16,	
  DBHDS	
  plans	
  to	
  have	
  an	
   initial	
  Eight	
  Domain	
  Report	
  ready	
  for	
  implementation	
  with	
  likely	
  one	
  measure	
  in	
   each	
  Domain.	
  	
  Data	
  collection	
  will	
  occur	
  between	
  1/1/17	
  and	
  6/30/17.	
  	
  	
  

	
  

136	
  

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• During	
  this	
  Consultant’s	
  onsite	
  review	
  in	
  early	
  October	
  2016,	
  the	
  Director	
  of	
  the	
   Business	
  Analytics	
  Center	
  of	
  Excellence	
  discussed	
  a	
  couple	
  measures	
  that	
  are	
  being	
   considered	
  and	
  some	
  of	
  the	
  analytical	
  calculations	
  they	
  plan	
  to	
  use.	
  	
  These	
  included	
   reported	
  injuries	
  and	
  founded	
  neglect.	
  	
  As	
  the	
  group	
  discussed,	
  it	
  is	
  important	
  to	
   keep	
  calculations	
  simple	
  so	
  that	
  the	
  results	
  are	
  user-­‐friendly	
  to	
  the	
  groups	
  that	
  need	
   to	
  use	
  and	
  understand	
  the	
  information	
  (e.g.,	
  QIC,	
  RQCs,	
  programmatic	
  and	
  clinical	
   staff,	
  etc.).	
  	
  As	
  the	
  Director	
  of	
  the	
  Business	
  Analytics	
  Center	
  of	
  Excellence	
  noted,	
  it	
   also	
  is	
  important	
  to	
  use	
  techniques	
  that	
  account	
  for	
  changes,	
  such	
  as	
  increasing	
   numbers	
  of	
  individuals	
  supported	
  in	
  the	
  community.	
  	
  That	
  being	
  said,	
  within	
  the	
   context	
  of	
  public	
  administration,	
  in	
  order	
  for	
  DBHDS	
  to	
  be	
  proactive,	
  it	
  is	
  often	
   important	
  to	
  conduct	
  analyses	
  that	
  are	
  sensitive	
  enough	
  to	
  identify	
  problems	
  early.	
   Doing	
  so	
  will	
  allow	
  the	
  various	
  regulatory,	
  clinical,	
  and	
  programmatic	
  components	
  of	
   DBHDS	
  to	
  act	
  in	
  a	
  thoughtful	
  and	
  informed	
  manner,	
  but	
  with	
  sufficient	
  expediency.	
  	
   Depending	
  on	
  the	
  initial	
  findings	
  and	
  the	
  subject	
  area,	
  many	
  possibilities	
  exist	
  for	
   deeper	
  analysis.	
  	
  In	
  the	
  spirit	
  of	
  continuous	
  quality	
  improvement,	
  it	
  will	
  be	
   important	
  for	
  DBHDS	
  to	
  continuously	
  evaluate	
  when	
  further	
  analysis	
  is	
  necessary.	
  	
   Some	
  possibilities	
  include:	
   o Looking	
  more	
  closely	
  at	
  outliers;	
   o Drilling	
  down	
  into	
  the	
  outcomes	
  for	
  individuals	
  with	
  specific	
  risk	
  profiles	
   (e.g.,	
  as	
  opposed	
  to	
  looking	
  at	
  the	
  incidence	
  of	
  aspiration	
  pneumonia	
  for	
  the	
   entire	
  DOJ	
  population	
  many	
  of	
  whom	
  are	
  not	
  at	
  heightened	
  risk,	
  consider	
  the	
   incidence	
  for	
  those	
  individuals	
  identified	
  as	
  at	
  medium	
  or	
  high	
  risk	
  for	
  it	
  to	
   provide	
  a	
  better	
  indication	
  of	
  whether	
  or	
  not	
  plans	
  of	
  care	
  are	
  effective);	
   o Place	
  the	
  numbers	
  into	
  the	
  context	
  of	
  evidence-­‐based	
  practice	
  and	
  current	
   standards	
  (e.g.,	
  for	
  issues	
  that	
  are	
  known	
  to	
  be	
  largely	
  preventable	
  set	
  higher	
   expectations);	
  and	
  	
   o Conduct	
  more	
  in-­‐depth	
  qualitative	
  analysis	
  and	
  utilize	
  this	
  information	
  in	
  the	
   overall	
  decision-­‐making	
  process	
  (e.g.,	
  mortality	
  reviews,	
  serious	
  injury	
   reviews).	
  
• This	
  Consultant’s	
  last	
  Report	
  provided	
  a	
  list	
  of	
  some	
  of	
  the	
  data	
  reports	
  available	
  for	
   users	
  to	
  run	
  and	
  to	
  customize.	
  	
  DBHDS	
  data	
  analytics	
  staff	
  are	
  continuing	
  to	
  work	
   with	
  other	
  DBHDS	
  staff	
  to	
  generate	
  reports	
  that	
  are	
  in	
  usable	
  formats.	
  	
  One	
  example	
   is	
  for	
  the	
  RMRC	
  for	
  whom	
  data	
  analytics	
  staff	
  continue	
  to	
  modify	
  the	
  report	
  format	
   to	
  make	
  it	
  easier	
  to	
  identify	
  individuals	
  and/or	
  providers	
  who	
  meet	
  triggers	
  and	
   thresholds.	
  	
  
	
   In	
  summary,	
  Commonwealth	
  staff	
  completed	
  and	
  submitted	
  a	
  QI	
  Plan	
  for	
  inclusion	
  in	
  the	
   revised	
  Waiver	
  application,	
  and	
  CMS	
  approved	
  it.	
  	
  The	
  assurances	
  include	
  a	
  number	
  of	
  the	
   quality	
  improvement	
  requirements	
  in	
  the	
  Settlement	
  Agreement.	
  	
  The	
  DBHDS	
  Quality	
   Improvement	
  Plan	
  still	
  requires	
  work.	
  	
  The	
  data	
  warehouse	
  is	
  a	
  valuable	
  resource,	
  and	
   Commonwealth	
  staff	
  continue	
  to	
  take	
  necessary	
  steps	
  to	
  ensure	
  the	
  data	
  is	
  of	
  high	
  quality.	
  	
   Since	
  this	
  consultant’s	
  review	
  in	
  2015,	
  the	
  Commonwealth	
  made	
  limited	
  progress	
  in	
   expanding	
  the	
  identification	
  of	
  data	
  to	
  assess	
  and	
  to	
  improve	
  quality,	
  which	
  is	
  necessary	
  to	
   ensure	
  the	
  data	
  are	
  complete.	
  	
  DBHDS	
  anticipates,	
  however,	
  that	
  by	
  12/31/16,	
   approximately	
  one	
  measure	
  for	
  each	
  of	
  the	
  eight	
  Domains	
  will	
  be	
  ready	
  for	
  initial	
   implementation.	
  	
  As	
  discussed	
  in	
  further	
  detail	
  below,	
  the	
  Commonwealth	
  was	
  not	
  yet	
  

	
  

137	
  

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sharing	
  information	
  related	
  to	
  the	
  need	
  to	
  address	
  the	
  eight	
  Domains	
  with	
  CSBs	
  and	
  private	
   providers.	
  	
  Previous	
  recommendations	
  by	
  this	
  consultant	
  related	
  to	
  these	
  efforts	
  remain	
   relevant.	
  These	
  include:	
  
§ The	
  Commonwealth	
  should	
  continue	
  to	
  identify	
  and/or	
  develop	
  relevant	
  sources	
  of	
   data.	
  
§ For	
  each	
  of	
  the	
  measures	
  identified	
  for	
  the	
  Settlement	
  Agreement	
  domains,	
  DBHDS	
   should	
  develop	
  definitions	
  and	
  methodologies,	
  in	
  addition	
  to	
  identifying	
  the	
  data	
   source.	
  	
  DBHDS	
  should	
  also	
  determine	
  baselines,	
  identify	
  benchmarks,	
  and	
  set	
   targets	
  or	
  goals.	
  
	
   A	
  DBHDS	
  document	
  entitled	
  “Guidelines	
  for	
  the	
  Operation	
  of	
  Regional	
  Quality	
  Councils,”	
   dated	
  October	
  16,	
  2014,	
  sets	
  forth	
  the	
  function	
  and	
  structure	
  of	
  the	
  Regional	
  Quality	
   Councils,	
  as	
  well	
  as	
  membership	
  requirements	
  and	
  voting	
  rules.	
  	
  It	
  indicates	
  that	
  the	
  DBHDS	
   Quality	
  Improvement	
  Council	
  directs	
  the	
  work	
  of	
  the	
  Regional	
  Quality	
  Councils.	
   	
   DBHDS	
  staff	
  continue	
  to	
  work	
  to	
  ensure	
  broad	
  membership	
  on	
  the	
  Regional	
  Quality	
   Councils.	
  	
  Based	
  on	
  discussions	
  with	
  the	
  Case	
  Management	
  Coordinator,	
  who	
  has	
  been	
   assisting	
  with	
  the	
  RQCs	
  due	
  to	
  a	
  staffing	
  vacancy,	
  one	
  of	
  the	
  current	
  challenges	
  is	
  that	
  many	
   of	
  the	
  members’	
  three-­‐year	
  terms	
  will	
  end	
  close	
  together.	
  	
  This	
  seems	
  to	
  be	
  due	
  to	
  the	
  fact	
   that	
  many	
  of	
  the	
  members	
  started	
  at	
  the	
  same	
  time	
  as	
  the	
  RQCs	
  were	
  getting	
  up	
  and	
   running.	
  	
  Given	
  that	
  the	
  RQCs	
  deal	
  with	
  content	
  that	
  can	
  be	
  difficult	
  to	
  initially	
  grasp,	
  it	
   likely	
  would	
  be	
  prudent	
  for	
  DBHDS	
  to	
  extend	
  some	
  of	
  the	
  terms	
  so	
  that	
  the	
  intent	
  of	
  the	
   operational	
  guidelines	
  of	
  staggering	
  the	
  terms	
  is	
  met.	
  	
  	
  	
  	
   	
   Although	
  the	
  Agreement	
  defines	
  the	
  role	
  of	
  the	
  Regional	
  Quality	
  Councils	
  as	
  “assessing	
   relevant	
  data,	
  identifying	
  trends,	
  and	
  recommending	
  responsive	
  actions,”	
  the	
  RQC	
  only	
  had	
   limited	
  data	
  available	
  for	
  its	
  review.	
  	
  On	
  a	
  positive	
  note,	
  the	
  documents	
  reviewed	
  continue	
   to	
  confirm	
  that	
  members	
  of	
  the	
  Division	
  of	
  Quality	
  Management	
  and	
  Development	
  regularly	
   support	
  the	
  Councils’	
  activities	
  and	
  that	
  the	
  Commonwealth	
  shares	
  the	
  data	
  that	
  are	
   currently	
  available.	
  	
  For	
  example,	
  in	
  recent	
  Council	
  meetings,	
  DBHDS	
  shared	
  employment,	
   Office	
  of	
  Licensing,	
  and	
  Office	
  of	
  Human	
  Rights	
  data.	
  	
   	
   Based	
  on	
  previous	
  reviews	
  and	
  the	
  review	
  of	
  minutes	
  of	
  RQC	
  meetings	
  for	
  the	
  last	
  two	
   quarters,	
  more	
  robust	
  discussions	
  are	
  documented	
  in	
  recent	
  meeting	
  minutes.	
  	
  RQC	
   members	
  ask	
  good	
  questions.	
  They	
  often	
  request	
  further	
  breakdown	
  of	
  the	
  data	
  presented	
   and	
  raise	
  questions	
  related	
  to	
  data	
  reliability	
  (e.g.,	
  definitions	
  of	
  what	
  CSBs	
  and	
  private	
   providers	
  need	
  to	
  report	
  through	
  CHRIS,	
  definitions	
  of	
  adverse	
  medication	
  events,	
   employment	
  data	
  that	
  is	
  not	
  fully	
  inclusive),	
  and	
  they	
  ask	
  for	
  more	
  context	
  to	
  the	
  data	
  (e.g.,	
   numbers	
  of	
  providers	
  offering	
  certain	
  types	
  of	
  supports,	
  total	
  number	
  of	
  providers	
  and	
  total	
   number	
  of	
  licensing	
  reviews,	
  severity	
  of	
  disability).	
  	
  The	
  RQC	
  members	
  also	
  make	
   programmatic	
  recommendations,	
  as	
  well	
  as	
  recommendations	
  related	
  to	
  their	
  roles	
  and	
   responsibilities.	
   	
   In	
  summary,	
  the	
  Regional	
  Quality	
  Councils	
  are	
  using	
  some	
  of	
  the	
  data	
  currently	
  available,	
   are	
  conducting	
  limited	
  analyses	
  of	
  such	
  data,	
  and	
  are	
  beginning	
  to	
  use	
  such	
  analyses	
  to	
   determine	
  what,	
  if	
  any,	
  actions	
  should	
  be	
  taken.	
  	
  These	
  are	
  activities	
  that	
  should	
  increase	
  

	
  

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over	
  time,	
  particularly	
  as	
  more	
  reliable	
  data	
  becomes	
  available,	
  and	
  more	
  in-­‐depth	
  analyses	
   of	
  the	
  data	
  are	
  made	
  available.	
   	
   As	
  noted	
  in	
  the	
  last	
  Report,	
  	
  a	
  page	
  on	
  the	
  DBHDS	
  website	
  (i.e.,	
   http://www.dbhds.virginia.gov/individuals-­‐and-­‐families/developmental-­‐disabilities/doj-­‐ settlement-­‐agreement)	
  includes	
  a	
  tab	
  for	
  an	
  annual	
  report.	
  	
  Last	
  year,	
  the	
  Commonwealth	
   indicated	
  that	
  this	
  site	
  was	
  not	
  yet	
  complete,	
  but	
  that	
  it	
  included	
  reports	
  targeted	
  to	
  a	
   variety	
  of	
  audiences.	
  	
  These	
  reports	
  offered	
  information	
  regarding	
  demographics,	
  the	
   quality	
  and	
  quantity	
  of	
  supports,	
  and	
  recommendations	
  for	
  improvements.	
  	
  As	
  indicated	
  in	
   the	
  last	
  Report,	
  the	
  site	
  includes	
  valuable	
  information	
  and	
  is	
  a	
  good	
  start	
  to	
  meeting	
  the	
   requirement	
  of	
  the	
  Settlement	
  Agreement.	
  	
  Based	
  on	
  a	
  recent	
  review	
  of	
  the	
  site,	
  much	
  of	
  the	
   information	
  was	
  from	
  2014/2015,	
  and	
  should	
  be	
  updated.	
  	
  It	
  will	
  be	
  important	
  to	
  ensure	
   that	
  the	
  data	
  provided	
  to	
  the	
  public	
  accurately	
  reflect	
  the	
  current	
  system,	
  as	
  well	
  as	
  unmet	
   needs.	
  	
  For	
  example,	
  the	
  information	
  does	
  not	
  identify	
  information	
  about	
  barriers	
  to	
  “most	
   integrated	
  housing”	
  from	
  the	
  Regional	
  Support	
  Teams;	
  gaps	
  in	
  the	
  transportation	
  service	
   availability,	
  quality	
  or	
  safety	
  for	
  individuals	
  with	
  ID	
  on	
  HCBS	
  waivers;	
  or	
  the	
  adequacy	
  and	
   any	
  gaps	
  in	
  crisis	
  services	
  for	
  adults	
  or	
  children.	
   	
   In	
  summary,	
  at	
  the	
  time	
  of	
  this	
  review,	
  the	
  Commonwealth	
  maintains	
  a	
  format	
  on	
  its	
   website	
  to	
  provide	
  the	
  “annual	
  report”	
  information	
  described	
  in	
  the	
  Settlement	
  Agreement.	
   The	
  website,	
  however,	
  is	
  not	
  yet	
  complete.	
  	
  It	
  will	
  require	
  further	
  review	
  and	
  updating	
  in	
   the	
  future.	
  
V.E.1-­‐3	
  
1. The	
  Commonwealth	
  shall	
  require	
  all	
  providers	
  (including	
  Training	
  Centers,	
  CSBs,	
   and	
  other	
  community	
  providers)	
  to	
  develop	
  and	
  implement	
  a	
  quality	
  improvement	
   (“QI”)	
  program,	
  including	
  root	
  cause	
  analyses,	
  that	
  is	
  sufficient	
  to	
  identify	
  and	
   address	
  significant	
  service	
  issues	
  and	
  is	
  consistent	
  with	
  the	
  requirements	
  of	
  the	
   DBHDS	
  Licensing	
  Regulations	
  at	
  12	
  VAC	
  35-­‐105-­‐620	
  in	
  effect	
  on	
  the	
  effective	
  date	
  of	
   this	
  Agreement	
  and	
  the	
  provisions	
  of	
  this	
  Agreement.	
  
2. Within	
  12	
  months	
  of	
  the	
  effective	
  date	
  of	
  this	
  Agreement,	
  the	
  Commonwealth	
  shall	
   develop	
  measures	
  that	
  CSBs	
  and	
  other	
  community	
  providers	
  are	
  required	
  to	
  report	
   to	
  DBHDS	
  on	
  a	
  regular	
  basis,	
  either	
  through	
  their	
  risk	
  management/critical	
  incident	
   reporting	
  requirements	
  or	
  through	
  their	
  QI	
  program.	
  	
  Reported	
  key	
  indicators	
  shall	
   capture	
  information	
  regarding	
  both	
  positive	
  and	
  negative	
  outcomes	
  for	
  both	
  health	
   and	
  safety	
  and	
  community	
  integration,	
  and	
  will	
  be	
  selected	
  from	
  the	
  relevant	
   domains	
  listed	
  in	
  Section	
  V.D.3	
  above.	
  	
  The	
  measures	
  will	
  be	
  monitored	
  and	
  reviewed	
   by	
  the	
  DBHDS	
  quality	
  improvement	
  committee,	
  with	
  input	
  from	
  the	
  Regional	
  Quality	
   Councils,	
  described	
  in	
  Section	
  V.D.5	
  above.	
  	
  The	
  DBHDS	
  quality	
  improvement	
   committee	
  will	
  assess	
  the	
  validity	
  of	
  each	
  measure	
  at	
  least	
  annually	
  and	
  update	
   measures	
  accordingly.	
  
3. The	
  Commonwealth	
  shall	
  use	
  Quality	
  Service	
  Reviews	
  and	
  other	
  mechanisms	
  to	
   assess	
  the	
  adequacy	
  of	
  providers’	
  quality	
  improvement	
  strategies	
  and	
  shall	
  provide	
   technical	
  assistance	
  and	
  other	
  oversight	
  to	
  providers	
  whose	
  quality	
  improvement	
   strategies	
  the	
  Commonwealth	
  determines	
  to	
  be	
  inadequate.	
  
	
  

	
  

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Goals	
  for	
  this	
  Review	
  included	
  to	
  determine	
  whether	
  or	
  not:	
  	
   a) DBHDS	
  has	
  established	
  a	
  baseline	
  regarding	
  existing	
  QI	
  practices;	
  	
   b) DBHDS	
  has	
  established	
  expectations,	
  as	
  of	
  December	
  2015,	
  for	
  providers’	
  and	
   CSBs’	
  quality	
  improvement	
  systems	
  (i.e.,	
  Section	
  V.E.1);	
  	
   c) DBHDS	
  requires	
  providers	
  and	
  CSBs	
  to	
  report	
  on	
  key	
  indicators	
  that	
  address	
   both	
  positive	
  and	
  negative	
  outcomes	
  for	
  health	
  and	
  safety	
  and	
  community	
   integration	
  per	
  Section	
  V.E.2;	
  and	
  	
   d) DBHDS	
  Quality	
  Improvement	
  Committee	
  has	
  begun	
  to	
  review	
  and	
  to	
  address	
   these	
  measures.	
  	
  
	
  	
   As	
  noted	
  in	
  the	
  last	
  Report,	
  the	
  Settlement	
  Agreement	
  established	
  the	
  requirement	
  for	
   providers	
  to	
  monitor	
  and	
  to	
  evaluate	
  service	
  quality;	
  it	
  references	
  the	
  DBHDS	
  Licensing	
   Regulations	
  at	
  12	
  VAC	
  35-­‐105-­‐620.	
  	
  Specifically,	
  the	
  regulations	
  require:	
  “The	
  provider	
  shall	
   implement	
  written	
  policies	
  and	
  procedures	
  to	
  monitor	
  and	
  evaluate	
  service	
  quality	
  and	
   effectiveness	
  on	
  a	
  systematic	
  and	
  ongoing	
  basis.	
  	
  Input	
  from	
  individuals	
  receiving	
  services	
   and	
  their	
  authorized	
  representatives,	
  if	
  applicable,	
  about	
  services	
  used	
  and	
  satisfaction	
   level	
  of	
  participation	
  in	
  the	
  direction	
  of	
  service	
  planning	
  shall	
  be	
  part	
  of	
  the	
  provider's	
   quality	
  assurance	
  system.	
  	
  The	
  provider	
  shall	
  implement	
  improvements,	
  when	
  indicated.”	
   	
   Beginning	
  with	
  Fiscal	
  Years	
  2015	
  and	
  2016,	
  the	
  Commonwealth	
  added	
  Quality	
   Improvement	
  program	
  requirements	
  to	
  the	
  draft	
  Performance	
  Contract	
  with	
  CSBs.	
  	
  Details	
   regarding	
  these	
  requirements	
  were	
  included	
  in	
  this	
  Consultant’s	
  report	
  in	
  2014.	
   	
   The	
  Commonwealth’s	
  oversight	
  of	
  community	
  providers’	
  Quality	
  Improvement	
  programs	
   remains	
  a	
  work	
  in	
  progress.	
  	
  As	
  stated	
  in	
  the	
  2015	
  Report,	
  the	
  Commonwealth	
  conducted	
  a	
   survey	
  of	
  all	
  40	
  CSBs.	
  	
  As	
  expected,	
  CSBs	
  were	
  found	
  to	
  have	
  different	
  levels	
  of	
   sophistication	
  regarding	
  their	
  quality	
  improvement	
  processes.	
  	
  DBHDS’s	
  next	
  step	
  was	
  to	
   survey	
  a	
  sample	
  of	
  the	
  900	
  community	
  providers	
  to	
  ascertain	
  a	
  baseline	
  with	
  regard	
  to	
   quality	
  improvement	
  practices.	
  	
  In	
  September	
  2016,	
  the	
  Commonwealth	
  sent	
  out	
  a	
  survey	
   to	
  CSBs	
  as	
  well	
  as	
  private	
  providers	
  (i.e.,	
  upwards	
  of	
  1000	
  recipients)	
  asking	
  foundational	
   questions	
  about	
  their	
  quality	
  assurance/improvement	
  programs.	
  	
  At	
  the	
  time	
  of	
  this	
   Consultant’s	
  onsite	
  review	
  in	
  early	
  October,	
  responses	
  had	
  just	
  begun	
  to	
  come	
  back.	
   	
   The	
  Commonwealth	
  did	
  not	
  establish	
  expectations	
  for	
  CSBs’	
  and	
  private	
  providers’	
  quality	
   improvement	
  programs	
  by	
  its	
  target	
  date	
  of	
  12/31/15,	
  and	
  had	
  not	
  completed	
  them	
  as	
  of	
   October	
  2016.	
  	
  The	
  Agreement’s	
  provision	
  requiring	
  formal	
  training	
  and	
  technical	
   assistance	
  to	
  CSBs	
  and	
  private	
  providers	
  had	
  also	
  not	
  yet	
  begun.	
  	
  	
   	
   As	
  noted	
  in	
  the	
  sections	
  above,	
  the	
  Commonwealth	
  has	
  made	
  some	
  progress,	
  but	
  is	
  still	
  in	
   the	
  process	
  of	
  finalizing	
  drafts	
  of	
  the	
  data	
  that	
  it	
  intends	
  to	
  collect.	
  	
  The	
  Commonwealth	
  has	
   identified	
  some	
  of	
  the	
  data	
  CSBs	
  and	
  providers	
  will	
  need	
  to	
  collect.	
  	
  In	
  order	
  to	
  address	
  the	
   requirements	
  of	
  the	
  Settlement	
  Agreement,	
  however,	
  additional	
  data	
  will	
  likely	
  be	
  required.	
  	
   In	
  some	
  cases,	
  the	
  reliability	
  of	
  the	
  data	
  requires	
  improvement.	
  	
  In	
  other	
  cases,	
  mechanisms	
   and	
  methodologies	
  for	
  collecting	
  the	
  data	
  need	
  to	
  be	
  developed.	
  	
  	
   	
   	
  

	
  

140	
  

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For	
  example,	
  CSBs	
  and	
  private	
  providers	
  of	
  residential	
  services	
  likely	
  collect	
  considerable	
   information	
  about	
  individuals’	
  health.	
  	
  However,	
  based	
  on	
  conversations	
  with	
   Commonwealth	
  Office	
  staff	
  as	
  well	
  as	
  CSB	
  staff,	
  unless	
  events	
  rise	
  to	
  the	
  level	
  that	
  requires	
   that	
  a	
  CHRIS	
  report	
  is	
  submitted,	
  the	
  Commonwealth	
  has	
  not	
  yet	
  defined	
  the	
  data	
  that	
   providers	
  will	
  be	
  required	
  to	
  report.	
  	
  Once	
  defined,	
  actually	
  extracting	
  specific	
  data	
  will	
  be	
   challenging	
  because	
  many	
  CSBs	
  and	
  providers	
  use	
  different	
  electronic	
  health	
  records	
   (EHRs)	
  and/or	
  paper	
  records.	
   	
   Based	
  on	
  the	
  Consultant’s	
  meetings	
  with	
  three	
  CSBs	
  in	
  different	
  regions	
  of	
  the	
   Commonwealth	
  as	
  well	
  as	
  the	
  interviews	
  by	
  another	
  independent	
  consultant	
  with	
  three	
   additional	
  CSBs	
  and	
  seven	
  private	
  providers,	
  the	
  Commonwealth’s	
  initial	
  survey	
  results	
   rang	
  true.	
  	
  The	
  following	
  are	
  some	
  of	
  the	
  impressions	
  from	
  this	
  initial,	
  albeit	
  limited,	
   introduction	
  to	
  these	
  quality	
  improvement	
  staff,	
  all	
  of	
  whom	
  were	
  very	
  helpful	
  and	
  gracious	
   in	
  sharing	
  information	
  about	
  the	
  work	
  they	
  do:	
  
• The	
  various	
  CSBs	
  and	
  private	
  providers	
  each	
  allotted	
  different	
  levels	
  of	
  resources	
  to	
   the	
  quality	
  assurance/improvement	
  functions,	
  even	
  when	
  taking	
  into	
  consideration	
   the	
  size	
  and	
  scope	
  of	
  the	
  services	
  they	
  provide.	
  	
  The	
  level	
  of	
  resources	
  ranged	
  from	
   no	
  or	
  part-­‐time	
  staffing	
  to	
  16	
  staff.	
  	
  This	
  disparity	
  clearly	
  impacts	
  the	
  ability	
  of	
  the	
   agencies	
  to	
  develop	
  fully	
  working	
  quality	
  improvement	
  programs,	
  as	
  the	
  Agreement	
   requires.	
  
• The	
  activities	
  in	
  which	
  the	
  CSB	
  and	
  private	
  provider	
  QI	
  staff	
  were	
  involved	
  varied	
   from	
  making	
  sure	
  basic	
  functions	
  were	
  completed	
  timely	
  and	
  completely,	
  to	
  more	
   advanced	
  quality	
  improvement	
  activities.	
  The	
  basic	
  functions	
  included	
  submitting	
   CHRIS	
  reports	
  and	
  following-­‐up	
  to	
  ensure	
  corrective	
  action	
  was	
  taken,	
  completing	
   investigations,	
  conducting	
  environmental	
  safety	
  checks,	
  and	
  addressing	
  licensing	
   report	
  citations	
  and	
  human	
  rights	
  complaints.	
  	
  The	
  more	
  advanced	
  quality	
   improvement	
  activities	
  included	
  completing	
  internal	
  audits,	
  providing	
  technical	
   assistance	
  to	
  programmatic	
  areas	
  to	
  make	
  improvements	
  and/or	
  to	
  reduce	
  risk,	
   developing	
  reports	
  on	
  data	
  with	
  varying	
  levels	
  of	
  sophistication,	
  conducting	
   satisfaction	
  surveys,	
  and	
  developing	
  and	
  implementing	
  outcome	
  and	
  performance	
   measures,	
  including	
  goals	
  for	
  improvement.	
  	
  	
  
• Some	
  of	
  the	
  CSBs	
  had	
  Quality	
  Councils	
  or	
  leadership	
  meetings	
  at	
  which	
  quality	
   improvement	
  information	
  was	
  presented	
  and	
  discussed.	
  	
  In	
  these	
  cases,	
  staff	
   provided	
  examples	
  of	
  improvements	
  made	
  as	
  a	
  result	
  of	
  the	
  analysis	
  of	
  information,	
   and	
  the	
  resulting	
  recommendations	
  for	
  changes.	
  
• In	
  discussing	
  the	
  Commonwealth’s	
  requests	
  for	
  data,	
  CSB	
  staff	
  cited	
  CHRIS	
  reports	
  as	
   the	
  main	
  data	
  request.	
  	
  Case	
  Management	
  extract	
  data	
  also	
  was	
  identified	
  as	
  data	
   they	
  regularly	
  submitted.	
  	
  They	
  also	
  indicated	
  that	
  new	
  contract	
  requirements	
   further	
  defined	
  data	
  regarding	
  employment	
  and	
  community	
  engagement	
  that	
  they	
   are	
  required	
  to	
  submit.	
  	
  As	
  noted	
  above,	
  none	
  of	
  them	
  were	
  familiar	
  with	
  or	
  had	
   knowledge	
  of	
  risk	
  triggers	
  and	
  thresholds.	
  	
  A	
  couple	
  of	
  CSBs	
  indicated	
  that	
  recently	
   the	
  behavioral	
  health	
  managed	
  care	
  company,	
  Magellan,	
  also	
  requested	
  data.	
  	
  CSB	
   and	
  providers	
  expressed	
  concerns	
  about	
  the	
  current	
  data	
  collection:	
  
	
  

	
  

141	
  

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o Some	
  data	
  requests	
  were	
  duplicative.	
  	
  An	
  example	
  was	
  that	
  a	
  provider	
  might	
   need	
  to	
  report	
  the	
  same	
  incident	
  through	
  CHRIS,	
  to	
  the	
  Office	
  of	
  Human	
   Rights,	
  and	
  to	
  Magellan.	
  	
  	
  
o Similarly,	
  for	
  mortality	
  reviews,	
  multiple	
  requests	
  are	
  made	
  for	
  the	
  same	
   information.	
  	
  These	
  CSB	
  staff	
  recommended	
  that	
  it	
  would	
  be	
  helpful	
  for	
  the	
   Commonwealth	
  to	
  collect	
  all	
  of	
  the	
  information	
  at	
  once,	
  and	
  maintain	
  it	
  in	
  a	
   central	
  location,	
  so	
  that	
  all	
  entities	
  within	
  the	
  Commonwealth	
  could	
  easily	
   access	
  it.	
  
• A	
  common	
  theme	
  for	
  CSBs	
  and	
  providers	
  was	
  that	
  current	
  record-­‐keeping	
  practices	
   (i.e.,	
  various	
  EHRs,	
  combinations	
  of	
  paper	
  and	
  electronic	
  systems)	
  presented	
   challenges	
  in	
  terms	
  of	
  easy	
  extraction	
  of	
  specific	
  data	
  points.	
  	
  	
  
• Staff	
  from	
  one	
  of	
  the	
  CSBs	
  mentioned	
  that	
  the	
  Virginia	
  Association	
  of	
  Community	
   Services	
  Board’s	
  data	
  workgroup	
  engages	
  with	
  DBHDS	
  staff	
  to	
  address	
  some	
  of	
  the	
   data	
  validity,	
  reliability,	
  and	
  collection	
  issues.	
  
• In	
  terms	
  of	
  requirements	
  the	
  Commonwealth	
  has	
  articulated	
  with	
  regard	
  to	
  quality	
   improvement,	
  some	
  of	
  the	
  CSBs	
  referenced	
  the	
  contract	
  requirements.	
  
• The	
  CSBs	
  and	
  providers	
  staff	
  involved	
  with	
  quality	
  improvement	
  had	
  no	
  or	
  limited	
   knowledge	
  of	
  the	
  resources,	
  information,	
  or	
  training	
  that	
  the	
  Commonwealth	
  has	
   offered	
  regarding	
  quality	
  improvement.	
  	
  Some	
  examples	
  of	
  offerings	
  that	
  were	
   familiar	
  involved	
  the	
  medical/health	
  risk	
  Safety	
  Alerts	
  and	
  training	
  on	
   investigations.	
  	
  
	
   The	
  Commonwealth’s	
  Quality	
  Improvement	
  Committee	
  continues	
  to	
  meet	
  quarterly.	
  	
  Its	
   agenda	
  and	
  focus	
  is	
  currently	
  being	
  revised.	
  	
  The	
  Interim	
  Commissioner	
  indicated	
  that	
  to	
   maximize	
  the	
  usefulness	
  of	
  the	
  Committee,	
  he	
  has	
  set	
  the	
  expectation	
  that	
  representatives	
   will	
  come	
  to	
  meetings	
  with	
  reports	
  that	
  include	
  data	
  analysis,	
  and	
   actions/recommendations	
  for	
  consideration.	
  	
  At	
  a	
  minimum,	
  these	
  representatives	
  include	
   staff	
  from	
  the	
  Office	
  of	
  Licensing	
  Services,	
  the	
  Office	
  of	
  Human	
  Rights,	
  the	
  Mortality	
  Review	
   Committee,	
  Case	
  Management,	
  and	
  Risk	
  Management.	
  	
  In	
  addition,	
  the	
  Agreement	
   requirements	
  and	
  timelines	
  are	
  included	
  in	
  the	
  Committee’s	
  discussion.	
  	
  Fundamental	
   questions	
  the	
  QIC	
  is	
  currently	
  answering	
  revolve	
  around	
  which	
  data	
  will	
  be	
  collected	
  and	
   analyzed,	
  who	
  should	
  collect	
  it,	
  who	
  should	
  analyze	
  it,	
  and	
  who	
  should	
  develop	
   recommendations	
  for	
  actions.	
  	
  The	
  Interim	
  Commissioner	
  indicated	
  that	
  the	
  eight	
  domains	
   of	
  the	
  Settlement	
  Agreement	
  should	
  be	
  woven	
  throughout.	
  	
  In	
  addition	
  to	
  reviewing	
  data	
   reports	
  and	
  discussing	
  recommended	
  action,	
  the	
  Interim	
  Commissioner’s	
  intent	
  is	
  that	
  a	
   key	
  role	
  of	
  the	
  QI	
  Committee	
  will	
  be	
  to	
  identify	
  cross-­‐cutting	
  themes	
  or	
  issues.	
  	
  As	
  of	
  early	
   October	
  2016,	
  these	
  revisions	
  were	
  still	
  being	
  developed.	
  	
  The	
  Interim	
  Commissioner	
   estimated	
  that	
  it	
  would	
  be	
  Spring	
  2017	
  before	
  the	
  QI	
  Committee	
  would	
  begin	
  to	
  function	
  as	
   it	
  should.	
   	
   In	
  summary,	
  the	
  Commonwealth	
  remains	
  in	
  the	
  beginning	
  stages	
  of	
  conveying	
  to	
  providers	
   their	
  responsibilities	
  for	
  maintaining	
  necessary	
  quality	
  improvement	
  processes	
  and	
   mechanisms	
  for	
  sharing	
  data	
  with	
  the	
  Commonwealth.	
  	
  Forums	
  for	
  reviewing	
  provider	
  data,	
   such	
  as	
  the	
  Regional	
  Quality	
  Councils	
  and	
  the	
  Commonwealth’s	
  Quality	
  Improvement	
   Committee,	
  also	
  remain	
  in	
  the	
  beginning	
  stages.	
  	
  Some	
  limited	
  analysis	
  of	
  data	
  is	
  occurring,	
   but	
  only	
  limited	
  data	
  are	
  available	
  to	
  inform	
  the	
  Committees’	
  decision-­‐making;	
  more	
  in-­‐

	
  

142	
  

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depth	
  analyses	
  will	
  be	
  needed	
  over	
  time.	
  	
  The	
  Interim	
  Commissioner’s	
  plan	
  for	
  revising	
  the	
   agenda	
  and	
  content	
  of	
  the	
  QIC	
  should	
  improve	
  the	
  usefulness	
  of	
  the	
  Committee,	
  but	
   Divisions	
  likely	
  will	
  require	
  training	
  and	
  technical	
  assistance	
  to	
  develop	
  the	
  reports	
   envisioned.	
  	
  	
   	
  
V.I.1-­‐4	
  
1. The	
  Commonwealth	
  shall	
  use	
  Quality	
  Service	
  Reviews	
  (“QSRs”)	
  to	
  evaluate	
  the	
   quality	
  of	
  services	
  at	
  an	
  individual,	
  provider,	
  and	
  system-­‐wide	
  level	
  and	
  the	
  extent	
  to	
   which	
  services	
  are	
  provided	
  in	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
   individuals’	
  needs	
  and	
  choice.	
  	
  QSRs	
  shall	
  collect	
  information	
  through:	
   a. Face-­‐to	
  Face	
  interviews	
  of	
  the	
  individual,	
  relevant	
  professional	
  staff,	
  and	
   other	
  people	
  involved	
  in	
  the	
  individual’s	
  life;	
  and	
   b. Assessment,	
  informed	
  by	
  face-­‐to-­‐face	
  interviews,	
  of	
  treatment	
  records,	
   incident/injury	
  data,	
  key-­‐indicator	
  performance	
  data,	
  compliance	
  with	
  the	
   service	
  requirements	
  of	
  this	
  Agreement,	
  and	
  the	
  contractual	
  compliance	
  of	
   community	
  services	
  boards	
  and/or	
  community	
  providers.	
  
2. QSRs	
  shall	
  evaluate	
  whether	
  individuals’	
  needs	
  are	
  being	
  identified	
  and	
  met	
  through	
   person-­‐centered	
  planning	
  and	
  thinking	
  (including	
  building	
  on	
  the	
  individuals’	
   strengths,	
  preferences,	
  and	
  goals),	
  whether	
  services	
  are	
  being	
  provided	
  in	
  the	
  most	
   integrated	
  setting	
  appropriate	
  to	
  the	
  individuals’	
  needs	
  and	
  consistent	
  with	
  their	
   informed	
  choice,	
  and	
  whether	
  individuals	
  are	
  having	
  opportunities	
  for	
  integration	
  in	
   all	
  aspects	
  of	
  their	
  lives	
  (e.g.,	
  living	
  arrangements,	
  work	
  and	
  other	
  day	
  activities,	
   access	
  to	
  community	
  services	
  and	
  activities,	
  and	
  opportunities	
  for	
  relationships	
  with	
   non-­‐paid	
  individuals).	
  	
  Information	
  from	
  the	
  QSRs	
  shall	
  be	
  used	
  to	
  improve	
  practice	
   and	
  the	
  quality	
  of	
  services	
  on	
  the	
  provider,	
  CSB,	
  and	
  system	
  wide	
  levels.	
  
3. The	
  Commonwealth	
  shall	
  ensure	
  those	
  conducting	
  QSRs	
  are	
  adequately	
  trained	
  and	
   a	
  reasonable	
  sample	
  of	
  look-­‐behind	
  QSRs	
  are	
  completed	
  to	
  validate	
  the	
  reliability	
  of	
   the	
  QSR	
  process.	
  
4. 	
  The	
  Commonwealth	
  shall	
  conduct	
  QSRs	
  annually	
  of	
  a	
  statistically	
  significant	
  sample	
   of	
  individuals	
  receiving	
  services	
  under	
  this	
  Agreement.	
  
	
   A	
  goal	
  of	
  this	
  Review	
  was	
  to	
  determine	
  the	
  adequacy	
  of	
  the	
  revised	
  QSR	
  process,	
  the	
  extent	
   to	
  which	
  it	
  aligns	
  with	
  the	
  Agreement	
  (e.g.,	
  to	
  evaluate	
  the	
  “quality	
  of	
  services”	
  and	
  to	
   complete	
  assessments,	
  including	
  via	
  face-­‐to-­‐face	
  interviews	
  with	
  individuals,	
  professional	
   staff,	
  and	
  others	
  involved	
  in	
  the	
  individual’s	
  life,	
  and	
  assessments	
  of	
  treatment	
  records,	
   incident/injury	
  data,	
  etc.),	
  and	
  the	
  status	
  of	
  its	
  implementation.	
  	
  This	
  review	
  includes	
   determining	
  the	
  adequacy	
  of	
  the	
  Commonwealth’s	
  process	
  for	
  selecting	
  a	
  statistically	
   significant	
  sample.	
   	
   	
   	
   	
   	
   	
   	
  

	
  

143	
  

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As	
  noted	
  in	
  this	
  Consultant’s	
  last	
  Report,	
  on	
  May	
  18,	
  2015,	
  the	
  Commonwealth’s	
  contract	
   with	
  the	
  Delmarva	
  Foundation	
  went	
  into	
  effect	
  to	
  conduct	
  the	
  QSR	
  reviews.	
  	
  As	
  also	
   described	
  in	
  that	
  Report,	
  according	
  to	
  its	
  contract,	
  DelMarva	
  uses	
  a	
  multi-­‐tiered	
  approach	
  to	
   conduct	
  the	
  Quality	
  Service	
  Reviews,	
  including:	
   	
   	
  
§ Conducting	
  Person-­‐Centered	
  Reviews	
  (PCRs)	
  of	
  a	
  statistically	
  significant	
  sample	
  of	
   individuals	
  receiving	
  services	
  and	
  supports	
  under	
  the	
  Settlement	
  Agreement;	
  
§ Conducting	
  Provider	
  Quality	
  Reviews	
  (PQRs)	
  of	
  50	
  direct	
  service	
  and	
  support	
   providers	
  serving	
  the	
  individuals	
  selected	
  for	
  the	
  Person	
  Centered-­‐Reviews;	
  
§ Completing	
  Quality	
  Service	
  Review	
  Assessments,	
  involving	
  reviews	
  at	
  the	
   Community	
  Services	
  Board,	
  regional,	
  and	
  statewide	
  levels;	
  and	
  
§ Submission	
  of	
  Quality	
  Service	
  Review	
  Assessment	
  reports,	
  including	
  reports	
  on	
  the	
   Person-­‐Centered	
  Reviews	
  and	
  Provider	
  Quality	
  Reviews	
  for	
  individuals	
  in	
  the	
   sample,	
  as	
  well	
  as	
  assessment/analysis	
  of	
  the	
  systemic	
  data.	
  	
   	
  
As	
  part	
  of	
  the	
  onsite	
  review,	
  this	
  Consultant	
  met	
  with	
  members	
  of	
  the	
  contractor’s	
  staff.	
  	
   They	
  clearly	
  are	
  a	
  dedicated	
  group	
  with	
  a	
  strong	
  person-­‐centered	
  philosophy.	
  	
  It	
  was	
   helpful	
  to	
  hear	
  about	
  their	
  process	
  and	
  procedures	
  directly	
  from	
  them.	
   	
   In	
  terms	
  of	
  staffing,	
  a	
  Project	
  Director	
  is	
  responsible	
  for	
  coordination	
  with	
  DBHDS	
  and	
  for	
   overall	
  oversight	
  of	
  the	
  project,	
  and	
  a	
  Project	
  Manager	
  is	
  located	
  in	
  Virginia.	
  	
  In	
  addition	
  to	
  a	
   Team	
  Lead	
  who	
  also	
  conducts	
  reviews,	
  Delmarva	
  employs	
  five	
  other	
  reviewers	
  for	
  the	
  QSR	
   project,	
  17	
  subcontractors	
  from	
  Virginia	
  Commonwealth	
  University	
  complete	
  individual	
   and	
  family	
  interviews,	
  and	
  a	
  Data	
  Analyst	
  provides	
  support	
  to	
  the	
  team.	
  	
  As	
  discussed	
   below,	
  none	
  of	
  the	
  reviewers	
  have	
  clinical	
  backgrounds.	
   	
   At	
  the	
  time	
  of	
  the	
  previous	
  review,	
  implementation	
  of	
  the	
  QSR	
  process	
  had	
  just	
  begun.	
  	
  The	
   contract	
  required	
  Delmarva	
  to	
  complete	
  400	
  individual	
  and	
  family	
  interviews,	
  and	
  50	
   provider	
  reviews.	
  	
  The	
  sample	
  was	
  selected	
  using	
  a	
  regional	
  approach,	
  while	
  taking	
  into	
   account	
  certain	
  demographics	
  (e.g.,	
  service	
  type),	
  to	
  attempt	
  to	
  ensure	
  that	
  large	
  enough	
   numbers	
  of	
  individuals	
  are	
  surveyed	
  to	
  allow	
  statistically	
  valid	
  conclusions	
  to	
  be	
  drawn.	
  	
  As	
   noted	
  in	
  the	
  last	
  report,	
  one	
  concern	
  regarding	
  the	
  sample	
  was	
  the	
  small	
  number	
  of	
   providers	
  included	
  in	
  the	
  reviews	
  (i.e.,	
  50	
  out	
  of	
  900).	
  	
  The	
  sampling	
  methodology	
  for	
  the	
   current	
  review	
  period	
  used	
  a	
  similar	
  approach,	
  resulting	
  in	
  the	
  same	
  number	
  of	
  individual	
   and	
  provider	
  reviews.	
  	
  However,	
  DBHDS	
  made	
  the	
  decision	
  to	
  select	
  50	
  day	
  support	
   providers	
  for	
  review.	
  	
  Reportedly,	
  this	
  was	
  due	
  to	
  the	
  fact	
  that	
  the	
  small	
  number	
  of	
   providers	
  made	
  it	
  difficult	
  to	
  draw	
  conclusions,	
  and	
  with	
  the	
  new	
  Waiver	
  and	
  further	
   emphasis	
  on	
  day	
  supports,	
  this	
  area	
  seemed	
  a	
  good	
  one	
  on	
  which	
  to	
  focus.	
  	
  	
   	
   	
   	
   	
   	
   	
   	
  

	
  

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In	
  an	
  email	
  dated	
  8/5/15,	
  the	
  Independent	
  Reviewer	
  summarized	
  some	
  initial	
  comments	
   that	
  he	
  had	
  provided	
  verbally	
  on	
  the	
  draft	
  protocols/audit	
  tools	
  Delmarva	
  planned	
  to	
  use.	
  	
   Many	
  of	
  the	
  concerns	
  expressed	
  in	
  this	
  email	
  (e.g.,	
  lack	
  of	
  standards,	
  lack	
  of	
  definition	
  of	
   terms)	
  were	
  not	
  addressed	
  in	
  the	
  versions	
  of	
  the	
  tools	
  provided	
  for	
  the	
  last	
  review	
  or	
  this	
   review.	
  	
  Overall	
  comments	
  on	
  the	
  tools	
  include:	
   	
  
§ Lack	
  of	
  Definition	
  of	
  Standards/Terms	
  –	
  As	
  the	
  Independent	
  Reviewer	
  noted,	
  it	
  is	
   important	
  for	
  standards	
  to	
  be	
  well	
  defined	
  in	
  audit	
  tools	
  in	
  order	
  to	
  ensure	
  inter-­‐ rater	
  reliability,	
  as	
  well	
  as	
  to	
  clearly	
  articulate	
  expectations	
  for	
  providers.	
  	
  Although	
   some	
  of	
  the	
  tools	
  include	
  a	
  column	
  entitled	
  “standards,”	
  these	
  often	
  consist	
  of	
  vague	
   statements	
  that	
  do	
  not	
  set	
  forth	
  specific	
  expectations	
  (e.g.,	
  “The	
  provider	
  supports	
   the	
  person	
  to	
  progress	
  towards	
  desired	
  outcomes,”	
  or	
  “The	
  provider	
  has	
  safety	
   protocols	
  and	
  plans	
  needed	
  to	
  help	
  the	
  person	
  stay	
  safe”).	
  	
  Broad	
  statements	
  such	
  as	
   these	
  frequently	
  result	
  in	
  varied	
  interpretations	
  by	
  both	
  auditors	
  and	
  providers.	
  	
  If	
   specific	
  licensing	
  regulations	
  or	
  policies	
  drive	
  the	
  expectations,	
  then	
  they	
  should	
  be	
   cited.	
  	
  If	
  not,	
  then,	
  clear	
  standards	
  should	
  be	
  set	
  forth.	
  
	
   § Lack	
  of	
  Definition	
  of	
  Methodology	
  –	
  Similarly,	
  the	
  audit	
  tools	
  do	
  not	
  consistently	
  
identify	
  the	
  methodology	
  that	
  auditors	
  would	
  use	
  to	
  answer	
  questions.	
  	
  For	
  example,	
   at	
  times,	
  indicators	
  on	
  observation	
  tools	
  appear	
  to	
  require	
  additional	
  document	
   review	
  (e.g.,	
  “Person’s	
  health	
  concerns	
  are	
  addressed”	
  or	
  “Provider	
  provides	
  person	
   with	
  education/resources	
  and	
  tools	
  to	
  prepare	
  for	
  potential	
  safety	
  concerns.”).	
  	
   Record	
  review	
  audit	
  tools	
  do	
  not	
  identify	
  the	
  expected	
  data	
  source	
  (i.e.,	
  where	
  in	
  the	
   provider	
  records	
  would	
  one	
  expect	
  to	
  find	
  the	
  necessary	
  documentation).	
  	
  	
   	
   § Lack	
  of	
  Criteria	
  for	
  Compliance	
  –	
  The	
  contractor	
  provides	
  reports	
  that	
  indicate	
   whether	
  or	
  not	
  providers	
  have	
  “met”	
  or	
  “not	
  met”	
  requirements.	
  	
  The	
  audit	
  tools,	
   however,	
  	
  do	
  not	
  explain	
  how	
  this	
  is	
  determined.	
  	
  This	
  calls	
  into	
  question	
  the	
  validity	
   of	
  the	
  findings.	
  	
  These	
  tools	
  generally	
  have	
  numerous	
  indicators.	
  	
  Most	
  of	
  the	
  tools	
   include	
  columns	
  with	
  “suggested	
  protocols”	
  and	
  “standards,”	
  but	
  no	
  explanation	
  is	
   provided	
  regarding	
  how	
  a	
  provider	
  will	
  “meet”	
  the	
  requirements.	
  Based	
  on	
   interviews	
  with	
  DBHDS	
  staff,	
  they	
  also	
  identified	
  this	
  shortcoming	
  as	
  an	
  issue.	
  	
  The	
   Case	
  Management	
  Coordinator	
  is	
  working	
  with	
  the	
  contractor	
  to	
  develop	
  a	
   spreadsheet	
  entitled:	
  draft	
  “VA	
  Tools	
  –	
  Driver	
  Indicators,”	
  dated	
  9/21/16.	
  	
  This	
  was	
   an	
  attempt	
  to	
  connect	
  the	
  various	
  questions	
  within	
  Delmarva’s	
  eight	
  different	
  audit	
   tools	
  with	
  DBHDS’S	
  eight	
  Domains	
  and	
  its	
  overall	
  standards.	
  	
  These	
  Driver	
  Indicators	
   would	
  be	
  paired	
  with	
  a	
  Likert	
  scale	
  to	
  assist	
  reviewers	
  to	
  determine	
  the	
  extent	
  to	
   which	
  the	
  standard	
  was	
  met.	
  	
  Even	
  with	
  this,	
  it	
  was	
  difficult	
  to	
  see	
  how	
  success	
  at	
   meeting	
  requirements	
  would	
  be	
  measured	
  in	
  a	
  valid	
  and	
  reliable	
  manner.	
   	
   § Scope	
  of	
  Review	
  without	
  Definition	
  of	
  Auditor	
  Qualifications	
  –	
  The	
  audit	
  tools	
   cover	
  a	
  wide	
  variety	
  of	
  topics,	
  including,	
  for	
  example,	
  healthcare	
  and	
  behavioral	
   supports.	
  	
  However,	
  based	
  on	
  an	
  interview	
  with	
  contractor	
  staff,	
  none	
  of	
  the	
   reviewers	
  had	
  clinical	
  qualifications.	
  	
  Judgments	
  of	
  the	
  adequacy	
  and	
   appropriateness	
  of	
  behavior	
  support	
  plans,	
  nursing	
  care,	
  clinical	
  and	
  medical	
   supports,	
  etc.	
  would	
  generally	
  require	
  an	
  auditor	
  with	
  specific	
  qualifications,	
  such	
  as	
   a	
  psychologist/Board	
  Certified	
  Behavioral	
  Analyst	
  (BCBA),	
  a	
  nurse,	
  and/or	
  physical	
  

	
  

145	
  

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and	
  nutritional	
  management	
  experts.	
  	
  The	
  lack	
  of	
  staff	
  auditors	
  who	
  are	
  qualified	
  to	
   make	
  these	
  assessments	
  staff	
  calls	
  into	
  question	
  the	
  validity	
  of	
  the	
  findings.	
  	
  	
   	
   § Missing	
  Components	
  –	
  Particularly	
  with	
  regard	
  to	
  clinical	
  services,	
  the	
  audit	
  tools	
   do	
  not	
  comprehensively	
  address	
  services	
  and	
  supports	
  to	
  meet	
  individuals’	
  needs.	
  	
   For	
  example,	
  indicators	
  to	
  assess	
  the	
  quality	
  of	
  clinical	
  assessments,	
  as	
  well	
  as	
   service	
  provision,	
  are	
  not	
  evident.	
  	
  This	
  calls	
  into	
  question	
  the	
  validity	
  of	
  the	
   findings.	
  	
  	
   	
   In	
  terms	
  of	
  inter-­‐rater	
  reliability,	
  the	
  process	
  the	
  contractor	
  described	
  is	
  not	
  consistent	
  with	
   standard	
  practice.	
  	
  Specifically,	
  the	
  contractor	
  indicated	
  that	
  after	
  a	
  new	
  reviewer	
   completes	
  orientation	
  training,	
  he/she	
  shadows	
  a	
  lead	
  reviewer.	
  	
  Initially,	
  a	
  lead	
  reviewer	
   conducts	
  a	
  review	
  with	
  a	
  new	
  reviewer,	
  and	
  the	
  new	
  reviewer	
  does	
  not	
  ask	
  any	
  questions	
   or	
  look	
  at	
  additional	
  documents.	
  	
  They	
  both	
  score	
  the	
  tools,	
  and	
  then	
  discuss	
  the	
  results.	
  	
   The	
  roles	
  are	
  then	
  reversed,	
  and	
  this	
  process	
  is	
  repeated	
  at	
  least	
  annually.	
  	
  This	
  does	
  not	
   provide	
  a	
  true-­‐read	
  of	
  inter-­‐rater	
  reliability.	
  	
  Problems	
  include:	
  1)	
  reviews,	
  except	
  for	
   observations,	
  should	
  be	
  completed	
  independently,	
  given	
  that	
  part	
  of	
  the	
  reconciliation	
   process	
  should	
  be	
  to	
  determine	
  whether	
  inconsistencies	
  are	
  due	
  to	
  reviewers	
  looking	
  at	
   different	
  documents	
  or	
  data	
  sources;	
  and	
  2)	
  inter-­‐rater	
  should	
  be	
  tested	
  between	
   reviewers,	
  not	
  just	
  between	
  a	
  lead	
  reviewer	
  and	
  a	
  reviewer.	
   	
   On	
  September	
  7,	
  2016,	
  the	
  contractor,	
  Delmarva,	
  issued	
  its	
  first	
  Quality	
  Services	
  Review	
   Assessment.	
  	
  It	
  clearly	
  showed	
  an	
  intense	
  amount	
  of	
  work.	
  	
  In	
  summarizing	
  the	
  results	
  of	
   the	
  PCRs,	
  it	
  stated:	
  “While	
  needs	
  in	
  general	
  appear	
  to	
  have	
  been	
  met	
  for	
  individuals	
   (93.3%),	
  a	
  Person	
  Centered	
  approach	
  was	
  not	
  always	
  employed	
  (76.9%),	
  individuals	
  were	
   often	
  not	
  receiving	
  services	
  in	
  the	
  most	
  integrated	
  setting	
  appropriate	
  to	
  the	
  person	
   (84.3%)	
  or	
  participating	
  in	
  the	
  community	
  as	
  desired	
  (84.5%).”	
  	
  Unfortunately,	
  due	
  to	
  the	
   problems	
  identified	
  above	
  with	
  regard	
  to	
  validity	
  of	
  the	
  tools	
  and	
  process	
  and	
  reliability	
  of	
   data	
  collected,	
  and	
  the	
  lack	
  of	
  clinical	
  qualifications	
  of	
  reviewers,	
  it	
  remained	
  unclear	
   whether	
  these	
  findings	
  were	
  accurate.	
  	
  The	
  small	
  provider	
  sample	
  size	
  means	
  that	
  these	
   findings,	
  even	
  if	
  accurate,	
  cannot	
  be	
  generalized	
  to	
  the	
  larger	
  group.	
   	
   In	
  summary,	
  since	
  the	
  last	
  review,	
  the	
  Commonwealth’s	
  contractor	
  selected	
  a	
  sample	
  of	
   individuals	
  and	
  providers	
  and	
  conducted	
  QSR	
  reviews.	
  	
  However,	
  additional	
  work	
  is	
  needed	
   to	
  improve	
  the	
  audit	
  tools	
  that	
  the	
  contractor	
  used,	
  and	
  to	
  develop	
  and	
  implement	
  an	
  inter-­‐ rater	
  reliability	
  process	
  consistent	
  with	
  applicable	
  standards.	
  	
  An	
  important	
  missing	
  piece	
  is	
   clinical	
  review	
  of	
  individuals’	
  physical,	
  therapeutic,	
  and	
  behavioral	
  health	
  supports	
  and	
   outcomes.	
   	
   	
   	
   	
   	
   	
   	
   	
   	
  

	
  

146	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 147 of 179 PageID# 7102 	
  

CONCLUDING	
  COMMENTS	
  

	
  

In	
  conclusion,	
  leadership	
  changes	
  have	
  occurred	
  that	
  slowed	
  the	
  rate	
  of	
  progress	
  of	
  the	
  

development	
  of	
  the	
  Commonwealth’s	
  Quality	
  and	
  Risk	
  Management	
  system.	
  	
  At	
  the	
  time	
  of	
  

this	
  review,	
  the	
  new	
  Assistant	
  Commissioner	
  of	
  Quality	
  Management	
  and	
  Development	
  had	
  

only	
  held	
  his	
  position	
  for	
  a	
  few	
  months.	
  	
  The	
  DBHDS	
  staff	
  recognized	
  that	
  a	
  number	
  of	
  

initiatives	
  have	
  stagnated,	
  but	
  plans	
  appear	
  to	
  be	
  taking	
  shape	
  to	
  make	
  needed	
  changes.	
  

	
  

Since	
  the	
  last	
  review,	
  work	
  continued	
  with	
  regard	
  to	
  a	
  number	
  of	
  components	
  of	
  the	
  

system.	
  These	
  include	
  data	
  to	
  assess	
  and	
  improve	
  quality	
  across	
  the	
  eight	
  domains,	
  the	
  

definitions	
  of	
  risk	
  triggers	
  and	
  thresholds,	
  continued	
  work	
  with	
  the	
  RQCs,	
  and	
  

implementation	
  and	
  completion	
  of	
  the	
  first	
  annual	
  QSRs.	
  	
  There	
  continues	
  to	
  be	
  support	
  

within	
  DBHDS	
  for	
  developing	
  a	
  strong	
  quality	
  improvement	
  system.	
  	
  As	
  noted	
  in	
  previous	
  

Reports,	
  the	
  system	
  is	
  being	
  built	
  from	
  the	
  ground	
  up	
  and	
  developing	
  the	
  infrastructure	
  for	
  

a	
  solid	
  quality	
  improvement	
  system	
  is	
  labor	
  intensive.	
  

	
  

At	
  this	
  time,	
  however,	
  it	
  is	
  clear	
  that	
  significantly	
  more	
  work	
  is	
  required,	
  and	
  much	
  more	
  

progress	
  is	
  required	
  for	
  compliance	
  to	
  be	
  achieved.	
  	
  A	
  number	
  of	
  significant	
  challenges	
  

remain.	
  	
  As	
  Commonwealth	
  staff	
  recognize,	
  in	
  order	
  for	
  a	
  comprehensive	
  quality	
  

improvement	
  system	
  to	
  exist	
  that	
  is	
  in	
  compliance	
  with	
  the	
  Settlement	
  Agreement,	
  DBHDS	
  

will	
  need	
  to	
  partner	
  closely	
  with	
  CSBs	
  and	
  private	
  providers.	
  	
  This	
  is	
  an	
  area	
  that	
  requires	
  

considerable	
  work.	
  	
  In	
  addition,	
  an	
  overarching	
  theme	
  continues	
  to	
  be	
  the	
  need	
  to	
  expand	
  

the	
  scope	
  of	
  available	
  data	
  in	
  order	
  to	
  allow	
  comprehensive	
  and	
  meaningful	
  quality	
  

improvement	
  and	
  risk	
  management	
  initiatives	
  to	
  occur.	
  	
  Revisions	
  to	
  the	
  DBHDS	
  

regulations	
  are	
  essential	
  to	
  ensure	
  that	
  the	
  Commonwealth’s	
  requirements	
  of	
  service	
  

providers	
  align	
  with	
  the	
  provisions	
  of	
  the	
  Settlement	
  Agreement.	
  

	
  

	
  

	
  

147	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 148 of 179 PageID# 7103
	
  
	
  
	
   APPENDIX	
  A	
  –	
  Interviews	
  and	
  Documents	
  Reviewed	
  
	
   Interviews:	
  	
   	
  
§ Jack	
  Barber,	
  MD,	
  Interim	
  Commissioner	
   § Dev	
  Nair,	
  DBHDS,	
  Assistant	
  Commissioner,	
  QM&D	
   § Peggy	
  Balak,	
  DOJ	
  Settlement	
  Advisor	
   § Jodi	
  Kuhn,	
  Data	
  Quality	
  and	
  Analytics	
  Coordinator	
   § Allen	
  Watts,	
  Director	
  of	
  the	
  Business	
  Analytics	
  Center	
  of	
  Excellence	
   § Marion	
  Greenfield,	
  DBHDS,	
  Director	
  of	
  Clinical	
  Quality,	
  and	
  Risk	
  Management	
   § Challis	
  Smith,	
  Case	
  Manager	
  Coordinator	
   § Jennifer	
  Jones,	
  QI	
  Supervisor,	
  District	
  19	
  CSB	
   § Cheryl	
  Turner,	
  Quality	
  Assurance	
  Branch	
  Manager,	
  and	
  Lisa	
  Snider,	
  Compliance	
  
Supervisor,	
  Loudon	
  County	
  CSB	
   § Kelly	
  Rinehimer,	
  Quality	
  Improvement	
  Specialist,	
  Prince	
  William	
  County	
  CSB	
   § Anna	
  Quinton,	
  Lead	
  Reviewer;	
  LaDonna	
  Walker,	
  Program	
  Manager;	
  Theresa	
  
Skidmore,	
  Manager;	
  and	
  Charmaine	
  Pillay,	
  Director,	
  DelMarva	
  Foundation	
   	
  
Documents	
  Reviewed:	
   § Draft	
  PowerPoint	
  presentations	
  on	
  Risk	
  Management:	
  Monitoring	
  Risk	
  Using	
  
Triggers	
  and	
  Thresholds:	
  
o Part	
  1	
  –	
  Triggers	
  and	
  Thresholds:	
  The	
  Basics	
   o Part	
  2	
  –	
  The	
  DBHDS	
  Triggers	
  and	
  Thresholds	
   o Part	
  3	
  –	
  Establishing	
  Provider-­‐Specific	
  Triggers	
  and	
  Thresholds	
  	
   § Thresholds	
  and	
  Triggers	
  Summary,	
  dated	
  9/16/16	
   § RMRC	
  Reporting	
  Protocol,	
  dated	
  12/10/15	
   § RMRC	
  Overview,	
  dated	
  8/23/16	
   § RMRC	
  Minutes	
  Shell	
   § RMRC	
  Minutes,	
  dated	
  5/12/16,	
  7/14/16,	
  and	
  8/11/16	
   § RMRC	
  Action	
  Tracking,	
  dated	
  May	
  2016,	
  and	
  June	
  2016	
   § RMRC	
  template	
  for	
  follow-­‐up	
  letter	
   § Sample	
  follow-­‐up	
  letter	
  from	
  the	
  RMRC	
   § Triggers	
  and	
  Thresholds	
  Report	
  Shell	
   § RMC	
  Workflow,	
  dated	
  March	
  2016,	
  and	
  July	
  2016	
   § ISP	
  Review:	
  Quarterly	
  Review	
  of	
  Medical	
  Risks	
   § Draft	
  Division	
  of	
  Developmental	
  Services	
  Annual	
  Risk	
  Assessment,	
  dated	
  1/8/16	
   § Draft	
  Person-­‐Centered	
  Review,	
  dated	
  1/8/16	
   § Daily	
  Health	
  and	
  Wellness	
  Review,	
  dated	
  5/9/16	
   § Community	
  Consumer	
  Submission	
  (CCS)	
  3	
  Extract	
  Specifications	
  Version	
  7.3.2,	
  dated	
  
March	
  2016	
   § CCS	
  Extract	
  Specifications	
  manual,	
  dated	
  7/16/16	
   § OneSource	
  Data	
  Warehouse	
  Data	
  Quality	
  Framework	
  Overview,	
  dated	
  2/24/16	
   § Overview	
  of	
  DBHDS’	
  Data	
  Warehouse	
  as	
  a	
  Resource	
  for	
  Eight	
  Domains	
  
Measurement,	
  dated	
  June	
  2016	
  

	
  

148	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 149 of 179 PageID# 7104
	
  
§ Defining	
  the	
  8	
  Domains	
  for	
  Domain	
  #1	
  –	
  Safety,	
  Domain	
  #2	
  –	
  Health	
  and	
  Well-­‐Being,	
  
Domain	
  #3	
  –	
  Avoiding	
  Crises,	
  and	
  Domain	
  #5	
  –	
  Choice	
  and	
  Self-­‐determination,	
  dated	
   9/15/16	
   § Appendix	
  H:	
  Quality	
  Improvement	
  Strategy	
   § Quality	
  Management	
  Plan,	
  revised	
  5/19/16	
   § QIC	
  Minutes,	
  dated	
  7/16/15,	
  10/15/15,	
  1/21/16,	
  and	
  4/21/16	
   § RQC	
  meeting	
  minutes	
  for	
  fourth	
  quarter	
  Fiscal	
  Year	
  (FY)	
  2016,	
  and	
  first	
  quarter	
  FY	
   2017	
   § Guidelines	
  for	
  the	
  Operation	
  of	
  Regional	
  Quality	
  Councils,	
  dated	
  10/16/14	
   § Organizational	
  Chart	
  for	
  the	
  Division	
  of	
  Developmental	
  Services,	
  dated	
  9/15/16	
   § Draft	
  Case	
  Management	
  Performance	
  Checks	
  for	
  Community	
  Service	
  Boards	
   § Day	
  Support	
  Waiver	
  Quality	
  Review	
  Measures:	
  7/1/15	
  to	
  6/30/16	
   § Virginia	
  PCR	
  PQR	
  Sample	
  Selection	
  2016-­‐2017	
   § Quality	
  Service	
  Review	
  Operational	
  Manual,	
  dated	
  9/15/15	
   § PCR	
  ISP	
  QA	
  Checklist	
  –	
  Year	
  2	
   § PCR	
  Family	
  Member	
  Guardian	
  Interview	
  –	
  Year	
  2	
   § PCR	
  Support	
  Coordinator	
  Interview	
  Tool	
  –	
  Year	
  2	
   § PCR	
  Support	
  Coordinator	
  Record	
  Review	
  Tool	
  –	
  Year	
  2	
   § PCR-­‐PQR	
  Individual	
  Interview	
  Tool	
  –	
  Year	
  2	
   § PCR-­‐PQR	
  Observation	
  Review	
  Checklist	
  –	
  Year	
  2	
   § PCR-­‐PQR	
  Provider	
  Interview	
  –	
  Year	
  2	
   § PCR-­‐PQR	
  Provider	
  Record	
  Review	
  Guide	
  –	
  Year	
  2	
   § PQR	
  Administrative	
  Review	
  Polices	
  and	
  Procedures	
  –	
  Year	
  2	
   § PQR	
  Administrative	
  Review	
  Qualifications	
  and	
  Training	
  –	
  Year	
  2	
   § VA	
  Tools	
  –	
  Driver	
  Indicators,	
  dated	
  9/21/16	
   § Quality	
  Services	
  Review	
  Assessment:	
  Year	
  1	
  Annual	
  Report	
  for	
  June	
  2015	
  through	
  
June	
  2016,	
  dated	
  9/7/16	
   § Inter-­‐rater	
  Reliability	
  Procedures,	
  undated	
  
§ PCR	
  Draft	
  Status	
  Grid,	
  dated	
  9/21/16
	
   \\	
  

	
  

149	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 150 of 179 PageID# 7105 	
  
APPENDIX F SAFETY AND RISK FROM HARM
	
  
by: Ric Zaharia, Ph.D.

	
  

150	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 151 of 179 PageID# 7106 	
  

	
   	
  
	
  

	
  

	
  

Report	
  to	
  the	
  Independent	
  Reviewer	
  

United	
  States	
  v.	
  Commonwealth	
  of	
  Virginia	
  

	
  

	
  

	
  

Safety	
  and	
  Protection	
  from	
  Harm	
  

Requirements	
  of	
  the	
  Settlement	
  Agreement	
  

	
  

By	
   	
  
Ric	
  Zaharia,	
  Ph.D.	
  	
   &	
  
Julene	
  Hollenbach,	
  BSN,	
  RN,	
  NE-­‐BC	
  	
   	
  
	
  

	
  

	
  

November	
  5,	
  2016	
  

	
  

	
  

151	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 152 of 179 PageID# 7107 	
  

	
  

Introduction	
  

	
  

The	
  Independent	
  Reviewer	
  for	
  the	
  US	
  v	
  Commonwealth	
  of	
  Virginia	
  Settlement	
  

Agreement	
  (SA)	
  requested	
  a	
  review	
  of	
  the	
  Safety	
  requirements	
  of	
  the	
  Agreement.	
  	
  

	
  

Several	
  provisions	
  of	
  the	
  Settlement	
  Agreement	
  require	
  implementation	
  of	
  

strategies	
  and	
  themes	
  related	
  to	
  Safety	
  concerns	
  and	
  the	
  goal	
  of	
  protecting	
  

individuals	
  receiving	
  services	
  from	
  harm.	
  These	
  strategies	
  include	
  risk	
  management,	
  

quality	
  improvement,	
  and	
  the	
  capacity	
  to	
  investigate	
  negative	
  outcomes.	
  These	
  

themes	
  include	
  the	
  root	
  cause	
  analysis	
  of	
  negative	
  outcomes	
  and	
  risk	
  triggers/risk	
  

thresholds.	
  	
  The	
  strategies	
  are	
  structured	
  under	
  the	
  global	
  CMS	
  (Center	
  for	
  Medicaid	
  

and	
  Medicare	
  Services)	
  concepts	
  of	
  Discovery	
  and	
  Remediation	
  (DBHDS	
  Quality	
  

Improvement	
  System	
  Context,	
  undated).	
  This	
  focus	
  study	
  is	
  to	
  generally	
  assess	
  the	
  

status	
  of	
  the	
  movement	
  of	
  the	
  system	
  of	
  services	
  toward	
  full	
  implementation	
  of	
  these	
  

themes	
  and	
  strategies.	
  

	
  

We	
  approached	
  this	
  assessment,	
  by:	
  	
  

	
  

	
  	
  	
  	
  	
  reviewing	
  DBHDS	
  Quality	
  Improvement	
  Plans,	
   	
  	
  	
  	
  	
  interviewing	
  ten	
  selected	
  CSB	
  and	
  private	
  service	
  provider	
  

administrators/quality	
  managers	
  to	
  determine	
  their	
  focus	
  on	
  safety	
  processes,	
  

	
  	
  	
  	
  	
  interviewing	
  six	
  Licensing	
  Specialists	
  to	
  evaluate	
  their	
  emphasis	
  on	
  safety,	
  and	
   	
  	
  	
  	
  	
  reviewing	
  the	
  thirty-­‐five	
  most	
  recent	
  reports	
  of	
  reviews	
  of	
  serious	
  injuries	
  and	
  

deaths	
  made	
  by	
  the	
  Independent	
  Reviewer	
  to	
  the	
  Court.	
  	
  

	
  

Because	
  health	
  and	
  wellness	
  are	
  important	
  outcome	
  indicators,	
  this	
  study	
  also	
  

includes	
  a	
  review	
  of	
  strategies	
  that	
  DBHDS	
  has	
  used	
  to	
  transition	
  the	
  centralized	
  

healthcare	
  of	
  individuals	
  placed	
  from	
  Training	
  Centers	
  (TC)	
  to	
  the	
  decentralized	
  care	
  

of	
  local	
  communities.	
  DBHDS	
  has	
  initiated	
  the	
  Health	
  Services	
  Network	
  (HSN)	
  to	
  

implement	
  this	
  effort	
  and	
  to	
  strengthen	
  the	
  capacity	
  of	
  agencies	
  serving	
  individuals	
  

who	
  need	
  intensive	
  healthcare	
  supports.	
  The	
  work	
  of	
  the	
  Health	
  Support	
  Network	
  is	
  

also	
  focused	
  on	
  building	
  the	
  capacity	
  of	
  CSBs	
  and	
  private	
  service	
  providers	
  to	
  meets	
  

the	
  healthcare	
  needs	
  of	
  individuals	
  who	
  need	
  intense	
  medical	
  supports	
  	
  

	
  

We	
  have	
  attempted	
  not	
  to	
  overdraw	
  conclusions	
  or	
  overreach	
  on	
  recommendations.	
  

Where	
  we	
  have	
  affirmatively	
  stated	
  a	
  point	
  or	
  made	
  a	
  recommendation,	
  it	
  is	
  because	
  

it	
  is	
  supported	
  or	
  validated	
  from	
  this,	
  previous	
  or	
  collateral	
  studies.	
  

	
  	
  

This	
  report	
  is	
  organized	
  with	
  an	
  itemization	
  of	
  the	
  requirements	
  of	
  the	
  Agreement,	
  a	
  

description	
  of	
  the	
  methodology,	
  a	
  report	
  on	
  the	
  findings	
  from	
  this	
  evaluation,	
  and	
  

recommendations	
  to	
  achieve	
  full	
  compliance;	
  suggestions	
  are	
  offered	
  where	
  an	
  area	
  

might	
  be	
  improved.	
  	
  The	
  compliance	
  table	
  on	
  the	
  next	
  page	
  recaps	
  the	
  compliance	
  

assessments	
  made	
  in	
  this	
  review.	
  The	
  compliance	
  ratings	
  have	
  not	
  changed	
  from	
  

prior	
  assessments	
  review	
  for	
  the	
  seven	
  provisions	
  reviewed.	
  	
  

	
  

	
  

152	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 153 of 179 PageID# 7108 	
  

	
   	
   	
   	
   Compliance	
  Table	
   	
  

Settlement	
   Agreement	
  
Section	
   V.C.1	
   	
  
V.D.1	
   	
  
V.D.3	
   	
  
V.E.1	
   	
  
V.E.2	
   	
  
VI.D.	
  

Settlement	
  Agreement	
  Language	
  
The	
  Commonwealth	
  shall	
  require	
  that	
  all	
  Training	
  Centers,	
  CSBs,	
  and	
  other	
   community	
  providers	
  of	
  residential	
  and	
  day	
  services	
  implement	
  risk	
  management	
   processes,	
  including	
  establishment	
  of	
  uniform	
  risk	
  triggers	
  and	
  thresholds	
  that	
   enable	
  them	
  to	
  adequately	
  address	
  harms	
  and	
  risks	
  of	
  harm.	
   The	
  Commonwealth’s	
  HCBS	
  waivers	
  shall	
  operate	
  in	
  accordance	
  with	
  the	
   Commonwealth’s	
  CMS-­‐approved	
  waiver	
  quality	
  improvement	
  plan	
  to	
  ensure	
  the	
   needs	
  of	
  individuals	
  enrolled	
  in	
  the	
  waiver	
  are	
  met....and	
  that	
  there	
  are	
  effective	
   processes	
  in	
  place	
  to	
  monitor	
  participant	
  health	
  and	
  safety.	
  The	
  plan	
  shall	
  include	
   evaluation	
  of	
  level	
  of	
  care...assurance	
  of	
  qualified	
  providers;	
  identification,	
  response	
   and	
  prevention	
  of	
  occurrences	
  of	
  abuse,	
  neglect	
  and	
  exploitation.	
  Review	
  of	
  data	
   shall	
  occur	
  at	
  the	
  local	
  and	
  state	
  levels	
  by	
  the	
  CSBs	
  and	
  DBHDS/DMAS,	
  respectively.	
   The	
  Commonwealth	
  shall	
  begin	
  collecting	
  and	
  analyzing	
  reliable	
  data	
  about	
   individuals	
  receiving	
  services	
  under	
  this	
  agreement	
  selected	
  from	
  the	
  following	
   areas	
  in	
  State	
  Fiscal	
  Year	
  2012....a.	
  Safety	
  and	
  freedom	
  from	
  harm	
  (e.g.	
  neglect	
  and	
   abuse,	
  injuries,	
  use	
  of	
  seclusion	
  or	
  restraints,	
  deaths,	
  effectiveness	
  of	
  corrective	
   actions,	
  licensing	
  violations;	
   The	
  Commonwealth	
  shall	
  require	
  all	
  providers	
  …to	
  develop	
  and	
  implement	
  a	
   quality	
  improvement	
  (“QI”)	
  program,	
  including	
  root	
  cause	
  analysis,	
  that	
  is	
   sufficient	
  to	
  identify	
  and	
  address	
  significant	
  service	
  issues	
  and	
  is	
  consistent	
  with	
  the	
   requirements	
  of	
  the	
  DBHDS	
  Licensing	
  Regulations	
  at	
  12	
  VAC	
  35-­‐105-­‐620	
  in	
  effect	
   on	
  the	
  effective	
  date	
  of	
  this	
  Agreement	
  and	
  the	
  provisions	
  of	
  this	
  Agreement.	
   Within	
  12	
  months	
  of	
  the	
  effective	
  date	
  of	
  this	
  Agreement,	
  the	
  Commonwealth	
  shall	
   develop	
  measures	
  that	
  CSBs	
  and	
  other	
  community	
  providers	
  are	
  required	
  to	
  report	
   to	
  DBHDS	
  on	
  a	
  regular	
  basis,	
  either	
  through	
  their	
  risk	
  management/critical	
   incident	
  reporting	
  requirements	
  or	
  through	
  their	
  QI	
  programs.	
  Reported	
  key	
   indicators	
  shall	
  capture	
  information	
  regarding	
  both	
  positive	
  and	
  negative	
   outcomes	
  for	
  both	
  health	
  and	
  safety	
  and	
  community	
  integration,	
  and	
  will	
  be	
   selected	
  from	
  the	
  relevant	
  domains	
  listed	
  in	
  Section	
  V.D.5	
  above.	
  The	
  DBHDS	
  quality	
   improvement	
  committee	
  will	
  assess	
  the	
  validity	
  of	
  each	
  measure	
  at	
  least	
  annually	
   and	
  update	
  measures	
  accordingly.	
   Upon	
  receipt	
  of	
  notification,	
  the	
  Commonwealth	
  shall	
  immediately	
  report	
  to	
  the	
   Independent	
  Reviewer	
  the	
  death	
  or	
  serious	
  injury	
  resulting	
  in	
  ongoing	
  medical	
  care	
   of	
  any	
  former	
  resident	
  of	
  a	
  Training	
  Center.	
  The	
  Independent	
  Reviewer	
  shall	
   forthwith	
  review	
  any	
  such	
  death	
  or	
  injury	
  and	
  report	
  his	
  findings	
  to	
  the	
  Court	
  in	
  a	
   special	
  report,	
  to	
  be	
  filed	
  under	
  seal	
  with	
  copies	
  to	
  the	
  Parties.	
  The	
  Parties	
  shall	
   seek	
  a	
  protective	
  order	
  permitting	
  these	
  reports	
  to	
  be	
  shared	
  with	
  Intervenors'	
   counsel	
  and	
  upon	
  entry	
  of	
  such	
  order,	
  shall	
  promptly	
  send	
  copies	
  of	
  the	
  reports	
  to	
   Intervenors'	
  counsel.	
  

Compliance	
  as	
  of	
   9/15/2016	
  
Non-­‐Compliance	
   Non-­‐Compliance	
  
Non-­‐Compliance	
   Non-­‐Compliance	
   Non-­‐Compliance	
  
Compliance	
  

Page	
   10	
   10	
  
10	
   10	
   7	
  
17	
  

Section	
   IX.C	
  	
  
	
  

	
  Requires	
  that	
  the	
  Commonwealth	
  maintain	
  “…sufficient	
  records	
  to	
  document	
  that	
   the	
  requirements	
  of	
  the	
  Agreement	
  are	
  being	
  properly	
  implemented…”	
  
	
  

Non-­‐Compliance	
   n.a.	
  

	
  

153	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 154 of 179 PageID# 7109
	
  
Safety	
  	
  
Settlement	
  Agreement	
   Section	
  V.C.1,	
  V.D.1,	
  V.D.3,	
  V.E.1,	
  V.E.2,	
  VI.D.	
   	
  
Goal:	
  	
   To	
  determine	
  if	
  the	
  Commonwealth	
  has	
  made	
  progress	
  ensuring	
  the	
  safety	
  of	
  individuals	
   with	
  intellectual	
  or	
  developmental	
  disabilities	
  (ID/DD)	
  receiving	
  services	
  in	
  the	
  community.	
   	
  	
   Methodology:	
  
 Reviewed	
  CMS-­‐approved	
  waiver	
  quality	
  improvement	
  plan	
  and	
  DBHDS	
  quality	
   management	
  plans	
  under	
  the	
  redesigned	
  waiver,	
  including	
  selected	
  performance	
   measures,	
  
 Interviewed	
  selected	
  administrators/quality	
  assurance	
  managers	
  at	
  ten	
  agencies:	
   three	
  Community	
  Service	
  Boards	
  (CSB)	
  and	
  seven	
  private	
  providers	
  from	
  three	
   Regions	
  regarding	
  risk	
  management	
  and	
  agency	
  quality	
  improvement	
  plans,	
  
 Reviewed	
  Office	
  of	
  Licensing	
  Services	
  (OLS)	
  and	
  Office	
  of	
  Human	
  Rights	
  (OHR)	
  data	
   collected	
  for	
  neglect,	
  abuse,	
  injuries,	
  peer	
  to	
  peer	
  assaults,	
  infectious	
  diseases,	
   seclusion,	
  restraint,	
  deaths,	
  corrective	
  action	
  effectiveness,	
  licensing	
  violations,	
  etc.,	
  
 Conducted	
  an	
  analysis	
  of	
  thirty-­‐five	
  Reports	
  by	
  the	
  Independent	
  Reviewer	
  to	
  the	
   Court	
  on	
  his	
  review	
  of	
  serious	
  injuries	
  and	
  deaths	
  of	
  individuals,	
  who	
  have	
  moved	
   from	
  the	
  Training	
  Centers	
  since	
  4/6/15,	
  
 Reviewed	
  proposed	
  draft	
  (9/16)	
  revisions	
  to	
  OLS	
  Regulations,	
    Reviewed	
  a	
  report	
  by	
  OLS	
  of	
  physical	
  plant,	
  fire	
  drill,	
  evacuation	
  planning,	
  and	
  
cleanliness	
  citations	
  with	
  Corrective	
  Action	
  Plans	
  (CAP)	
  by	
  ID/DD	
  providers	
  during	
   State	
  FY	
  2016,	
    Interviewed	
  six	
  Licensing	
  staff	
  regarding	
  safety,	
    Reviewed	
  HSN	
  Concept	
  Paper	
  (October	
  2014)	
  and	
  updates,	
    Interviewed	
  DBHDS	
  Director	
  of	
  Office	
  of	
  Integrated	
  Health,	
  Assistant	
  Commissioner	
   of	
  Quality	
  Management	
  and	
  Director	
  of	
  Office	
  of	
  Licensing	
  Services.	
  	
  
	
   	
   Quality	
  Improvement	
  Planning	
   	
   Findings:	
  	
   The	
  Commonwealth’s	
  Quality	
  Improvement	
  (QI)	
  Plan	
  (including	
  the	
  approved	
  Appendix	
  H	
   for	
  the	
  Waiver	
  Redesign	
  and	
  the	
  May	
  2016	
  DBHDS	
  Quality	
  Management	
  (QM)	
  Plan)	
  is	
  an	
   expanded	
  document	
  from	
  previous	
  versions	
  we	
  have	
  reviewed.	
  The	
  QI	
  Plan	
  describes	
  the	
   Commonwealth’s	
  commitment	
  to	
  system	
  improvement	
  activities	
  following	
  an	
  analysis	
  of	
   aggregated	
  discovery	
  data	
  and	
  after	
  evaluating	
  system	
  experience	
  and	
  actions	
  to	
  remediate	
   negative	
  outcomes.	
  This	
  Plan	
  also	
  illustrates	
  an	
  understanding	
  of	
  the	
  CMS	
  expectations	
  of	
   Discovery-­‐Remediation-­‐Improvement	
  as	
  the	
  global	
  governing	
  process	
  for	
  QI.	
  	
   	
   	
   	
   	
  

	
  

154	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 155 of 179 PageID# 7110 	
  

The	
  Plan	
  describes	
  a	
  tiered	
  approach	
  to	
  QI.	
  The	
  tiers	
  are	
  case	
  management,	
  Departmental,	
  

and	
  third	
  party	
  reviews.	
  The	
  Departmental	
  tier	
  includes:	
  

	
  

●	
  Quality	
  Review	
  Team	
  (QRT),	
  	
  

●	
  Quality	
  Improvement	
  Committee	
  (QIC)	
  with	
  five	
  Regional	
  Quality	
  

	
  	
  	
  	
  	
  	
  	
  Councils	
  (RQCs),	
  and	
  

●	
  Mortality	
  Review	
  Committee	
  (MRC).	
  	
  

The	
  third	
  tier	
  is	
  a	
  third	
  party	
  (Del	
  Marva)	
  -­‐	
  Quality	
  Service	
  Review	
  (QSR)	
  	
  

	
  

The	
  Commonwealth’s	
  tiered	
  approach	
  to	
  quality	
  improvement	
  has	
  several	
  shortcomings	
  in	
  

implementation.	
  The	
  first	
  revolves	
  around	
  conceptualizing	
  the	
  case	
  manager	
  as	
  the	
  

system’s	
  trip	
  wire	
  for	
  quality	
  assurance.	
  There	
  are	
  three	
  reasons	
  that	
  this	
  is	
  a	
  shortcoming.	
  

First,	
  case	
  managers	
  do	
  not	
  have	
  the	
  authority	
  to	
  obtain	
  the	
  reports	
  of	
  serious	
  incidents	
  that	
  

private	
  providers	
  submit	
  to	
  DBHDS	
  through	
  the	
  Computerized	
  Human	
  Rights	
  Information	
  

System	
  (CHRIS).	
  A	
  good	
  case	
  manager	
  who	
  is	
  oriented	
  to	
  risk	
  management	
  and	
  quality	
  

improvement	
  will	
  want	
  to	
  do	
  an	
  annual	
  review	
  of	
  CHRIS	
  incident	
  reports	
  in	
  order	
  to	
  

prepare	
  for	
  an	
  individual’s	
  annual	
  service	
  planning	
  meeting;	
  this	
  is	
  not	
  currently	
  permitted.	
  

Second,	
  case	
  manager	
  workloads	
  are	
  such	
  that	
  keeping	
  up	
  with	
  behaviorally	
  or	
  medically	
  

complex	
  conditions	
  in	
  annual,	
  quarterly	
  and	
  monthly	
  documentation	
  requirements,	
  

authorizing	
  services,	
  visiting	
  monthly	
  face	
  to	
  face,	
  etc.	
  are	
  difficult	
  given	
  current	
  caseloads.	
  

Previous	
  studies	
  by	
  the	
  Independent	
  Reviewer	
  have	
  found	
  that	
  case	
  managers/support	
  

coordinators	
  performance	
  does	
  not	
  consistently	
  fulfill	
  current	
  Agreement	
  requirements	
  to	
  

assemble	
  the	
  ISP	
  team,	
  to	
  assist	
  individuals	
  to	
  access	
  needed	
  services,	
  and	
  to	
  monitor	
  the	
  

ISP	
  to	
  make	
  timely	
  referrals.	
  And	
  third,	
  the	
  Independent	
  Reviewer’s	
  reviews	
  of	
  serious	
  

injuries	
  and	
  deaths	
  have	
  found	
  that	
  for	
  complex	
  conditions	
  case	
  managers	
  often	
  lack	
  the	
  

clinical	
  expertise,	
  or	
  access	
  to	
  accessible	
  clinical	
  resources,	
  to	
  assess	
  healthcare	
  risks	
  or	
  

changes	
  in	
  status.	
  

A	
  second	
  shortcoming	
  in	
  the	
  Commonwealth’s	
  tier	
  approach	
  is	
  the	
  missing	
  recognition	
  in	
   the	
  description	
  of	
  the	
  QI	
  Plan	
  of	
  the	
  first	
  line	
  role	
  of	
  the	
  direct	
  provider	
  of	
  services	
  in	
  quality	
   improvement.	
  The	
  Settlement	
  Agreement	
  requires	
  that	
  the	
  providers	
  of	
  services	
  fulfill	
  a	
   central	
  role	
  in	
  assuring	
  continuous	
  quality	
  improvement.	
  	
  These	
  provisions	
  require	
  that	
   every	
  provider	
  develop	
  and	
  implement	
  a	
  QI	
  program	
  –	
  and	
  then	
  to:	
  
 report	
  incidents,	
  	
    complete	
  root	
  cause	
  analysis,	
  	
    verify	
  implementation	
  of	
  corrective	
  action	
  plans,	
  and	
    collect	
  and	
  provide	
  data,	
  etc.	
  	
  
	
   This	
  central	
  role	
  is	
  not	
  fully	
  described	
  in	
  the	
  Department’s	
  QI/QM	
  plan,	
  aside	
  from	
  a	
   discussion	
  of	
  the	
  planned	
  Provider	
  Record,	
  a	
  provider-­‐reporting	
  framework.	
  	
  Day	
  to	
  day	
   reality	
  is	
  that	
  the	
  very	
  first	
  layer	
  of	
  QI	
  is	
  within	
  each	
  service	
  provider.	
  The	
  first	
  tier	
  of	
  a	
   systems	
  approach	
  to	
  quality	
  assurance	
  is	
  at	
  the	
  transactional	
  level	
  between	
  individual	
  and	
   support	
  staff.	
  To	
  the	
  extent	
  each	
  service	
  provider	
  “gets	
  it	
  and	
  does	
  it”,	
  then	
  services	
  to	
   individuals	
  will	
  improve.	
  If	
  the	
  service	
  providers	
  are	
  considered	
  secondary	
  to	
  the	
  service	
   system’s	
  quality	
  assurance	
  effort,	
  then	
  all	
  other	
  QI	
  efforts	
  will	
  be	
  noise	
  and	
  reflective	
  of	
  a	
   system	
  destined	
  to	
  repeat	
  the	
  same	
  mistakes	
  over	
  and	
  over	
  again.	
  This	
  	
  is	
  reflected	
  in	
  the	
   lack	
  of	
  emphasis	
  in	
  eighteen	
  QIC/RQC	
  meetings	
  from	
  the	
  past	
  year	
  on	
  redressing	
  gaps	
  in	
   direct	
  support	
  staff	
  training	
  (only	
  six	
  mentions)	
  and	
  in	
  twenty-­‐five	
  OLS	
  safety/abuse-­‐

	
  

155	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 156 of 179 PageID# 7111 	
  

neglect	
  citation	
  CAPs	
  from	
  the	
  past	
  year	
  (only	
  thirteen	
  actions	
  focused	
  on	
  direct	
  support	
   staff	
  training).	
   	
   A	
  third	
  shortcoming	
  in	
  the	
  Commonwealth’s	
  QI	
  Plan	
  is	
  the	
  likely	
  reality	
  that	
  the	
  quality	
  and	
   risk	
  management	
  workgroups:	
  	
  the	
  RQCs,	
  QRT,	
  MRC	
  and	
  QIC,	
  all	
  draw	
  members	
  from	
  the	
   same	
  resource	
  pool	
  of	
  people.	
  This	
  may	
  limit	
  the	
  creativity,	
  divergent	
  thinking	
  and	
   effectiveness	
  in	
  the	
  quality	
  management	
  process.	
   	
  	
   Another	
  shortcoming	
  of	
  the	
  QI	
  process	
  appears	
  to	
  be	
  the	
  absence	
  of	
  clear	
  lines	
  of	
   accountability	
  and	
  parameters	
  of	
  responsibility.	
  In	
  the	
  QI	
  documents	
  provided	
  for	
  this	
   review	
  DBHDS	
  did	
  not	
  include	
  ‘chartering’	
  or	
  ‘charging’	
  strategies	
  to	
  the	
  QI	
  teams	
  to	
  ensure	
   that	
  their	
  purposes,	
  expected	
  outcomes,	
  and	
  timelines	
  are	
  clear	
  and	
  well	
  understood.	
  For	
   example,	
  although	
  it	
  may	
  be	
  clear	
  to	
  some	
  involved	
  in	
  implementation,	
  it	
  is	
  not	
  clear	
  where	
   MRC	
  recommendations	
  go	
  to	
  be	
  assessed.	
  The	
  responsibility	
  and	
  accountability	
  between	
   the	
  QIC’s	
  and	
  RQC’s	
  is	
  also	
  not	
  defined	
  (Can	
  the	
  QIC	
  reject	
  a	
  proposed	
  quality	
  improvement	
   suggested	
  at	
  the	
  regional	
  level?	
  Can	
  the	
  RQC	
  implement	
  an	
  improvement	
  within	
  its	
  Region	
   without	
  the	
  approval	
  of	
  the	
  QIC?).	
  The	
  relationship	
  between	
  the	
  QRT	
  and	
  the	
  QIC	
  is	
  not	
   clear,	
  since	
  both	
  appear	
  authorized	
  to	
  implement	
  improvement	
  activities	
  independent	
  of	
   each	
  other.	
  Time	
  limited	
  QI	
  projects	
  should	
  also	
  be	
  governed	
  by	
  clear	
  directions	
  as	
  to	
   purpose	
  and	
  expected	
  outcomes.	
  	
   	
  	
   Finally,	
  tracking	
  for	
  all	
  Committees,	
  Teams	
  and	
  Councils	
  is	
  critical	
  to	
  ensure	
  tasks	
  are	
   implemented	
  and	
  accomplished	
  as	
  planned.	
  For	
  example,	
  in	
  a	
  1/21/16	
  QIC	
  minutes	
  the	
   Committee	
  decided	
  to	
  put	
  Safety	
  Alerts	
  on	
  letterhead	
  with	
  dates,	
  presumably	
  to	
  enhance	
   their	
  usefulness	
  and	
  presentation.	
  Upgrading,	
  updating	
  and	
  professionalizing	
  their	
   appearance	
  are	
  definitely	
  warranted	
  to	
  ensure	
  continued	
  credibility	
  and	
  utilization.	
  As	
  of	
   this	
  review,	
  however,	
  this	
  Committee’s	
  decision	
  had	
  not	
  been	
  tracked	
  or	
  completed.	
  	
   	
   The	
  CSB	
  and	
  private	
  provider	
  officials	
  interviewed	
  for	
  this	
  study	
  were	
  familiar	
  with,	
  and	
   quoted,	
  these	
  Safety	
  Alerts	
  guidance	
  tools.	
  Other	
  reviews	
  of	
  serious	
  incidents,	
  however,	
   have	
  found	
  that	
  the	
  Alert	
  guidance	
  was	
  not	
  always	
  followed	
  and	
  some	
  individuals	
  have	
   experienced	
  negative	
  outcomes	
  that	
  could	
  have	
  been	
  avoided.	
  However,	
  we	
  recognize	
  that	
   when	
  the	
  Alert	
  guidance	
  has	
  been	
  followed	
  and	
  serious	
  incidents	
  are	
  averted,	
  that	
  does	
  not	
   get	
  reported.	
   	
   Conclusions:	
  	
   The	
  DBHDS	
  Quality	
  Management	
  Plan	
  is	
  a	
  good	
  first	
  step	
  towards	
  overall	
  direction	
  in	
  the	
   system	
  towards	
  quality	
  improvement.	
  It	
  creates	
  a	
  complex,	
  multi-­‐pronged	
  central	
  QI	
   oversight	
  structure	
  for	
  the	
  service	
  system.	
  As	
  described,	
  it	
  t	
  overlooks	
  the	
  importance	
  of	
   provider	
  quality	
  improvement	
  responsibilities	
  that	
  are	
  required	
  by	
  the	
  Agreement	
  (which	
   expectations	
  are	
  more	
  fully	
  addressed	
  in	
  the	
  9/16	
  version	
  of	
  a	
  revision	
  to	
  OLS	
  Regulations),	
   it.	
  Furthermore,	
  the	
  Plan	
  addresses	
  safety	
  and	
  protection	
  from	
  harm	
  concerns	
  and	
   emphasizes	
  prevention	
  and	
  system	
  improvements.	
   	
   DBHDS	
  is	
  not	
  yet	
  in	
  compliance	
  with	
  SA	
  Section	
  V.E.2,	
  relative	
  to	
  regular	
  reporting	
  from	
   providers	
  through	
  risk	
  management	
  and	
  quality	
  improvement	
  programs.	
   	
  

	
  

156	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 157 of 179 PageID# 7112
	
  
Recommendations	
  toward	
  achieving	
  full	
  compliance:	
  	
   Reduce	
  case	
  manager	
  caseload	
  sizes	
  and/or	
  credential	
  case	
  managers	
  (i.e.	
  specialized	
   training,	
  mentoring,	
  etc.)	
  for	
  individuals	
  with	
  complex	
  behavioral	
  and/or	
  intensive	
   healthcare	
  needs,	
  in	
  order	
  to	
  ensure	
  the	
  monitoring	
  function	
  can	
  be	
  prioritized.	
   	
   Remove	
  the	
  obstacles	
  to	
  a	
  case	
  manager	
  pulling	
  CHRIS	
  incident	
  reports	
  from	
  the	
  database.	
   There	
  are	
  no	
  violations	
  of	
  privacy	
  rules	
  if	
  a	
  case	
  manager	
  is	
  authorized	
  to	
  do	
  so	
  only	
  for	
   individuals	
  on	
  his/her	
  caseload.	
  	
   	
   Include	
  a	
  fuller	
  discussion	
  in	
  the	
  next	
  revision	
  of	
  the	
  DBHDS	
  Quality	
  Management	
  Plan	
  of	
   the	
  role	
  and	
  indicators	
  of	
  successful	
  provider	
  quality	
  improvement	
  planning.	
  It	
  should	
  also	
   clarify	
  the	
  lines	
  and	
  processes	
  of	
  accountability	
  across	
  various	
  sections,	
  teams,	
  councils	
  and	
   committees	
  focused	
  on	
  quality	
  improvement	
  activities.	
   	
   The	
  QIC	
  needs	
  to	
  document	
  its	
  annual	
  review	
  of	
  the	
  validity	
  of	
  the	
  measurable	
  indicators	
   that	
  are	
  selected	
  for	
  monitoring,	
  including	
  those	
  in	
  the	
  Data	
  Dashboard.	
   	
   Finalize	
  the	
  proposed	
  revision	
  to	
  OLS	
  regulations.	
   	
   Suggestions	
  for	
  DBHDS	
  Consideration:	
  	
   Additional	
  personnel	
  resources	
  may	
  need	
  to	
  be	
  drawn	
  up	
  the	
  chain	
  from	
  the	
  service	
   delivery	
  system	
  and	
  from	
  outside	
  resources,	
  such	
  as	
  universities,	
  medical	
  associations,	
   school	
  systems,	
  etc.,	
  for	
  the	
  QIC,	
  QRT	
  and	
  MRC.	
  These	
  resources	
  should	
  be	
  deployed	
  to	
  not	
   just	
  expand	
  capacity	
  but	
  to	
  influence	
  diversity	
  of	
  perspective,	
  expertise,	
  etc.	
   	
   DBHDS	
  should	
  upgrade	
  the	
  appearance	
  and	
  usefulness	
  of	
  DBHDS	
  Safety	
  Alerts,	
  since	
  these	
   are	
  important	
  tools.	
  It	
  should	
  also	
  clarify	
  both:	
  the	
  staff	
  person	
  or	
  team	
  that	
  “owns”	
  each	
   Safety	
  Alert	
  and	
  the	
  “owner’s”	
  responsibility	
  for	
  updating,	
  marketing,	
  etc.	
   	
   	
  
Agency	
  Focus	
  on	
  Safety	
   	
   Findings:	
  	
   Table	
  1	
  on	
  the	
  next	
  page	
  illustrates	
  our	
  findings	
  from	
  a	
  review	
  of	
  ten	
  agencies	
  -­‐three	
  CSBs	
   and	
  seven	
  private	
  providers.	
  These	
  agencies	
  were	
  drawn	
  from	
  entities	
  in	
  Virginia’s	
  Health	
   Planning	
  Regions	
  1,	
  3	
  and	
  5,	
  although	
  three	
  of	
  the	
  private	
  providers	
  operated	
  statewide.	
  A	
   check	
  mark	
  in	
  Table	
  1	
  indicates	
  the	
  presence	
  of	
  an	
  item,	
  but	
  not	
  a	
  qualitative	
  assessment	
  of	
   the	
  item.	
  This	
  assessment	
  is	
  based	
  on	
  personal	
  interviews	
  with	
  the	
  staff	
  that	
  are	
  designated	
   as	
  the	
  responsible	
  administrators	
  or	
  as	
  QM	
  managers	
  of	
  the	
  agencies.	
  Because	
  of	
  the	
   significant	
  variability	
  in	
  the	
  interviews	
  about	
  quality	
  assurance	
  processes,	
  it	
  is	
  a	
  reasonable	
   assumption	
  that	
  the	
  quality	
  of	
  the	
  actual	
  processes,	
  plans,	
  training,	
  etc.,	
  also	
  varies.	
  	
   	
   	
  

	
  

157	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 158 of 179 PageID# 7113 	
  

Table 1 Agency Adoption of Protection from Harm Practices and Strategies

	
  

CSB	
  1	
   CSB	
  2	
   CSB	
  3	
   Res.	
  

Res.	
  

Res.	
  

Day	
  

Day	
  

DD	
  

DD	
  

Prov.	
  1	
   Prov.	
  2	
   Prov.	
  3	
   Prov.	
  1	
   Prov.	
  2	
   Agency	
   Agency	
  

1	
  

2	
  

In	
  Place:	
  

Safety-­‐Risk	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
  

Mgt	
  Plan	
  -­‐

Process?	
  

QM	
  Plan-­‐	
  

√	
   √	
   √	
   -­‐	
  

-­‐	
  

√	
   √	
  

-­‐	
  

-­‐	
  

-­‐	
  

Process?	
  

Trained	
  

√	
   √	
   -­‐	
  

-­‐	
  

-­‐	
  

√	
   √	
  

-­‐	
  

-­‐	
  

-­‐	
  

Investigator

s?	
  

Discovery	
  

√	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
  

Process?	
  

Remediatio √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
   √	
  

n	
  Process?	
  

Familiar	
  with:	
  

Root	
  Cause	
   √	
   √	
   -­‐	
  

-­‐	
  

√	
   √	
   -­‐	
  

√	
   -­‐	
  

-­‐	
  

Analysis?	
  

Risk	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

-­‐	
  

Triggers-­‐

Thresholds?	
  

	
  

All	
  CSB	
  and	
  private	
  provider	
  agencies	
  reported	
  having	
  some	
  version	
  of	
  a	
  safety	
  or	
  risk	
  

management	
  plan,	
  committee	
  and/or	
  strategy.	
  This	
  was	
  an	
  expected	
  finding,	
  as	
  the	
  current	
  

OLS	
  regulations	
  require	
  the	
  designation	
  of	
  a	
  person	
  responsible	
  for	
  risk	
  management.	
  

DBHDS’s	
  draft	
  OLS	
  regulations	
  appropriately	
  raise	
  expectations	
  around	
  risk	
  assessment,	
  

incident	
  review,	
  etc.	
  

	
  

Similarly,	
  those	
  interviewed	
  for	
  these	
  ten	
  agencies	
  each	
  had	
  a	
  basic	
  understanding	
  of	
  the	
  

need	
  for	
  continuous	
  discovery	
  efforts	
  that	
  are	
  combined	
  with	
  remediation	
  strategies	
  to	
  

ensure	
  corrective	
  activity.	
  All	
  ten	
  agencies,	
  even	
  the	
  smallest	
  in	
  size,	
  have	
  a	
  fundamental	
  

understanding	
  that	
  this	
  basic	
  discovery	
  to	
  remediation	
  paradigm	
  is	
  essential	
  to	
  achieve	
  

improvements.	
  

	
  

Only	
  two	
  (28.8%)	
  of	
  the	
  seven	
  private	
  providers	
  have	
  in	
  place	
  formalized	
  QI	
  plans	
  or	
  

programs,	
  as	
  required	
  by	
  the	
  Agreement	
  (V.E.1).	
  The	
  extent	
  of	
  the	
  QI	
  program	
  development	
  

varied	
  with	
  the	
  size	
  of	
  the	
  agency	
  in	
  terms	
  of	
  number	
  of	
  individuals	
  served.	
  This	
  review	
  

found	
  a	
  pattern	
  that	
  larger	
  agencies	
  have	
  formalized	
  processes	
  in	
  place,	
  while	
  smaller	
  

agencies	
  have	
  not	
  incorporated	
  a	
  commitment	
  to	
  system	
  improvement	
  into	
  their	
  processes.	
  

As	
  no	
  Commonwealth	
  QI	
  directives	
  to	
  these	
  agencies	
  were	
  found	
  in	
  this	
  review,	
  it	
  appears	
  

that	
  the	
  extent	
  of	
  the	
  development	
  of	
  QI	
  processes	
  was	
  not	
  in	
  response	
  to	
  the	
  

Commonwealth	
  efforts	
  to	
  implement	
  the	
  provisions	
  of	
  the	
  Agreement.	
  Under	
  the	
  DBHDS	
  

	
  

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draft	
  proposed	
  OLS	
  regulation,	
  all	
  providers	
  would	
  have	
  to	
  establish	
  and	
  implement	
   formalized	
  “quality	
  improvement	
  programs”,	
  as	
  required	
  by	
  the	
  Agreement.	
  Based	
  on	
  this	
   review	
  only	
  one	
  provider	
  (a	
  national	
  provider)	
  was	
  able	
  to	
  describe	
  a	
  complete	
  and	
   competent	
  QI	
  program,	
  which	
  should	
  ensure	
  an	
  effective	
  and	
  continuously	
  learning	
   management	
  system	
  within	
  a	
  residential	
  environment.	
   	
   This	
  review	
  found	
  that	
  agency	
  understanding	
  of	
  the	
  process	
  of	
  “root	
  cause	
  analysis”	
   (problem	
  solving	
  that	
  tries	
  to	
  identify	
  the	
  underlying	
  causes	
  of	
  a	
  problem)	
  is	
  variable.	
  One	
   CSB	
  quality	
  management	
  team	
  was	
  unfamiliar	
  with,	
  and	
  obviously	
  not	
  implementing,	
  root	
   cause	
  analysis.	
  Under	
  draft	
  proposed	
  OLS	
  regulation	
  revisions,	
  all	
  providers	
  would	
  have	
  to	
   establish	
  and	
  implement	
  formalized	
  quality	
  improvement	
  programs	
  that	
  include	
  root	
  cause	
   analysis.	
  However,	
  the	
  variability	
  is	
  disappointing.	
  The	
  concepts	
  of	
  root	
  cause	
  analysis	
  are	
   fairly	
  simple	
  and	
  the	
  Department	
  has	
  invested	
  in	
  this	
  topic	
  (see	
  the	
  Clinical	
  Quality	
  and	
  Risk	
   Management	
  tab	
  on	
  the	
  DBHDS	
  website).	
  The	
  Commonwealth’s	
  current	
  efforts,	
  however,	
   appear	
  insufficient	
  at	
  influencing	
  CSB	
  and	
  private	
  provider	
  understanding	
  and	
   performance.	
  	
   	
   This	
  review	
  found	
  a	
  similar	
  situation	
  with	
  the	
  “risk	
  triggers	
  and	
  thresholds”	
  required	
  by	
  the	
   Agreement.	
  The	
  officials	
  from	
  the	
  ten	
  agencies	
  were	
  not	
  familiar	
  with	
  the	
  terms,	
  and	
  clearly	
   have	
  not	
  begun	
  to	
  implement,	
  “risk	
  triggers	
  and	
  thresholds”,	
  which	
  DBHDS	
  defines	
  as	
  ‘risks	
   identified	
  before	
  anyone	
  is	
  injured’.	
  This	
  lack	
  of	
  familiarity	
  was	
  surprising	
  given	
  that	
  this	
   was	
  a	
  four-­‐year	
  old	
  requirement	
  of	
  the	
  Settlement	
  Agreement,	
  and	
  that	
  DBHDS	
  has	
  been	
   working	
  on	
  these	
  concepts	
  for	
  a	
  few	
  years	
  (see	
  the	
  Clinical	
  Quality	
  and	
  Risk	
  Management	
   tab	
  on	
  the	
  DBHDS	
  website).	
  These	
  DBHDS	
  efforts	
  appear	
  insufficient	
  at	
  influencing	
  CSB	
  and	
   private	
  provider	
  performance.	
  Under	
  draft	
  proposed	
  revisions	
  to	
  the	
  OLS	
  regulations,	
  all	
   service	
  providers	
  would	
  be	
  required	
  to	
  collect	
  and	
  review	
  risk	
  trigger	
  and	
  threshold	
  data.	
   	
   Finally,	
  the	
  fundamental	
  building	
  block	
  of	
  an	
  effective	
  risk	
  management	
  and	
  quality	
   improvement	
  system	
  is	
  a	
  competent	
  investigation	
  of	
  the	
  facts	
  of	
  serious	
  incidents.	
  "Agency	
   understanding	
  of	
  the	
  investigation	
  process	
  pursuant	
  to	
  the	
  online	
  'Training	
  for	
  DBHDS	
   Licensed	
  Providers'	
  was	
  variable	
  among	
  providers.	
  For	
  example,	
  one	
  CSB	
  QM	
  Manager	
  was	
   not	
  familiar	
  with	
  the	
  DBHDS	
  online	
  investigation	
  training	
  at	
  the	
  "Human	
  Rights	
  for	
  Service	
   Providers"	
  tab	
  on	
  the	
  Departmental	
  website."	
   	
   Conclusions:	
  	
   The	
  development	
  of	
  a	
  system	
  of	
  services	
  fully	
  committed	
  to	
  quality	
  improvement	
  and	
   protection	
  from	
  harm	
  is	
  incomplete	
  and	
  has	
  only	
  partially	
  been	
  implemented.	
  The	
   Commonwealth’s	
  efforts	
  to	
  date	
  do	
  not	
  seem	
  to	
  have	
  significantly	
  influenced	
  the	
   development	
  or	
  implementation	
  of	
  Quality	
  Improvement	
  programs,	
  of	
  root	
  cause	
  analysis,	
   or	
  of	
  utilizing	
  risk	
  triggers	
  and	
  thresholds.	
   	
   The	
  finalization	
  of	
  the	
  proposed	
  revision	
  to	
  OLS	
  regulations	
  is	
  a	
  key	
  to	
  DBHDS	
  ability	
  to	
   enforce	
  the	
  goal	
  of	
  all	
  programs	
  focused	
  on	
  quality	
  improvement	
  and	
  protection	
  from	
  harm.	
   	
   DBHDS	
  is	
  not	
  yet	
  in	
  compliance	
  with	
  SA	
  Section	
  V.C.1,	
  relative	
  to	
  risk	
  triggers	
  and	
  risk	
   thresholds.	
   	
  

	
  

159	
  

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DBHDS	
  is	
  not	
  yet	
  in	
  compliance	
  with	
  SA	
  Section	
  V.D.1,	
  relative	
  to	
  effective	
  processes	
  to	
   monitor	
  participant	
  safety.	
   	
   DBHDS	
  is	
  not	
  yet	
  in	
  compliance	
  with	
  SA	
  Section	
  V.D.3,	
  relative	
  to	
  the	
  collection	
  of	
  reliable	
   data.	
   	
   DBHDS	
  is	
  not	
  in	
  compliance	
  with	
  SA	
  Section	
  V.E.1,	
  relative	
  to	
  root	
  cause	
  analysis	
  and	
  quality	
   improvement	
  planning	
  by	
  providers.	
   	
   Recommendations	
  toward	
  achieving	
  full	
  compliance:	
  	
   Finalize	
  and	
  implement	
  revisions	
  to	
  OLS	
  regulations	
  that	
  align	
  with	
  the	
  requirements	
  of	
  the	
   Settlement	
  Agreement.	
   	
   Enhance	
  educational	
  efforts	
  focused	
  on	
  provider	
  use	
  of	
  quality	
  improvement	
  strategies,	
   including	
  root	
  cause	
  analysis,	
  risk	
  triggers	
  and	
  thresholds,	
  and	
  investigator	
  training,	
  until	
   revised	
  regulations	
  are	
  promulgated.	
   	
   Suggestions	
  for	
  DBHDS	
  Consideration:	
  	
   Consider	
  sponsoring/cosponsoring	
  an	
  annual	
  conference	
  on	
  quality	
  improvement	
  to	
   motivate	
  and	
  educate	
  the	
  provider	
  community.	
  Such	
  a	
  conference	
  could	
  highlight	
  elements	
   of	
  an	
  effective	
  quality	
  improvement	
  program	
  that	
  other	
  service	
  providers	
  have	
  successfully	
   implemented	
  in	
  Virginia.	
   	
   Identify	
  providers	
  with	
  model	
  QI	
  programs	
  and	
  market	
  them	
  to	
  the	
  broader	
  provider	
   community.	
  
	
   	
   Licensing	
  Specialist	
  Focus	
  on	
  Safety	
   	
   Findings:	
  	
   In	
  order	
  to	
  assess	
  the	
  awareness	
  of	
  Licensing	
  Specialists	
  of	
  the	
  concerns	
  of	
  safety	
  and	
  of	
   protecting	
  individuals	
  from	
  harm,	
  six	
  Specialists	
  were	
  interviewed	
  face	
  to	
  face	
  or	
  by	
   telephone.	
  More	
  than	
  a	
  dozen	
  questions	
  in	
  this	
  area	
  and	
  about	
  their	
  work	
  were	
  posed	
  to	
   them.	
  Selected	
  questions	
  and	
  a	
  summary	
  of	
  their	
  responses	
  are	
  provided	
  below.	
   	
  	
   Is	
  there	
  a	
  safety/risk	
  management	
  committee?	
  	
  	
   All	
  six	
  Licensing	
  Specialists	
  reported	
  knowing	
  that	
  DBHDS	
  has	
  some	
  type	
  of	
  Risk	
  Committee	
   but	
   all	
   six	
   were	
   unclear	
   of	
   the	
   Committee’s	
   duties.	
   	
   They	
   generally	
   thought	
   it	
   had	
   a	
   statewide	
   function,	
   reviewed	
   trends	
   and	
   dealt	
   with	
   safety	
   issues,	
   including	
   issuing	
   Safety	
   Alerts,	
   	
  	
  	
   How	
  do	
  you	
  analyze	
  incident	
  and	
  event	
  data	
  over	
  time,	
  places	
  and	
  individuals?	
  	
   None	
   of	
   the	
   Licensing	
   Specialists	
   reported	
   using	
   an	
   objective,	
   data	
   driven	
   review.	
   	
   All	
   Licensing	
   Specialists	
   indicated	
   that	
   they	
   “knew	
   their	
   providers”;	
   therefore,	
   they	
   watched	
   more	
   closely	
   those	
   providers	
   who	
   had	
   histories	
   of	
   problems.	
   Three	
   of	
   six	
   Licensing	
   Specialists	
  reported	
  using	
  the	
  Computerized	
  Human	
  Rights	
  Information	
  System	
  (CHRIS)	
  to	
   identify	
   repeated	
   incidents	
   that	
   involve	
   an	
   individual.	
   	
   Two	
   reported	
   utilizing	
   Corrective	
  

	
  

160	
  

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Action	
  Plans	
  to	
  identify	
  repeated	
  concerns.	
  	
  Two	
  indicated	
  that	
  the	
  Data	
  Warehouse	
  can	
  be	
   utilized	
  to	
  obtain	
  information	
  about	
  a	
  provider,	
  but	
  also	
  reported	
  that	
  they	
  have	
  found	
  that	
   it	
  is	
  not	
  user-­‐friendly	
  and	
  that	
  they	
  have	
  not	
  yet	
  received	
  training	
  regarding	
  its	
  use.	
   	
   Do	
   you	
   have	
   some	
   examples	
   where	
   your	
   analysis	
   resulted	
   in	
   findings	
   about	
   safety	
   improvements	
  needed	
  in	
  the	
  larger	
  service	
  delivery	
  region?	
   • A	
  group	
  home	
  was	
  struck	
  with	
  lightning	
  during	
  the	
  night	
  resulting	
  in	
  the	
  home	
  catching	
  
on	
  fire.	
  	
  Everyone	
  was	
  successfully	
  evacuated	
  but	
  the	
  incident	
  reinforced	
  the	
  importance	
   of	
   doing	
   fire	
   drills,	
   including	
   evacuation,	
   at	
   all	
   times	
   of	
   the	
   day	
   to	
   ensure	
   a	
   safe	
   evacuation.	
   	
   The	
   Licensing	
   Specialist	
   reminded	
   all	
   providers	
   in	
   the	
   region	
   of	
   the	
   rationale,	
   importance	
   and	
   requirement	
   for	
   emergency	
   evacuation	
   drills	
   at	
   all	
   times	
   of	
   the	
   day,	
   which	
   is	
   included	
   in	
   OLS	
   regulations	
   by	
   cross	
   reference	
   to	
   the	
   applicable	
   Virginia	
   Statewide	
   Fire	
   Prevention	
   code;	
   the	
   Specialist	
   then	
   included	
   it	
   in	
   her	
   routine	
   reviews.	
  	
   • A	
  provider	
  was	
  removing	
  a	
  control	
  medication	
  from	
  the	
  bubble	
  pack	
  and	
  sending	
  it	
  to	
   the	
  day	
  program	
  daily.	
  	
  After	
  the	
  Licensing	
  Specialist	
  identified	
  the	
  problem	
  and	
  ensured	
   that	
   it	
   was	
   corrected	
   by	
   the	
   provider,	
   the	
   Licensing	
   Specialist	
   reported	
   confirming	
   that	
   all	
   providers	
   in	
   the	
   region	
   were	
   sending	
   control	
   medications	
   in	
   the	
   bubble	
   pack	
   in	
   a	
   locked	
  container	
  each	
  day	
  to	
  the	
  work	
  area.	
  	
  	
   	
   Do	
  you	
  use	
  a	
  hierarchy	
  of	
  interventions,	
  corrective	
  actions,	
  and	
  sanctions?	
  	
  	
   • To	
   ensure	
   that	
   problems	
   are	
   corrected,	
   all	
   Licensing	
   Specialists	
   reported	
   sharing	
   verbally	
   with	
   the	
   provider	
   the	
   concerns	
   that	
   they	
   identified.	
   	
   Two	
   of	
   the	
   six	
   also	
   reported	
  doing	
  so	
  in	
  writing.	
   • If	
  the	
  concern	
  is	
  a	
  health	
  or	
  safety	
  issue/regulatory	
  violation,	
  all	
  six	
  Licensing	
  Specialists	
   reported	
   creating	
   a	
   Corrective	
   Action	
   Plan	
   within	
   15	
   days.	
   Three	
   of	
   six	
   stated	
   that	
   a	
   better	
  definition	
  is	
  needed	
  to	
  determine	
  what	
  constitutes	
  a	
  health	
  or	
  safety	
  issue.	
   • Following	
   the	
   issuance	
   of	
   a	
   CAP,	
   all	
   six	
   Licensing	
   Specialists	
   reported	
   that	
   they	
   do	
   follow-­‐up	
  reviews	
  in	
  45	
  days	
  to	
  determine	
  if	
  the	
  CAP	
  has	
  been	
  met,	
  as	
  required	
  by	
  OLS.	
  	
  	
   • If	
   the	
   provider	
   does	
   not	
   fulfill	
   the	
   requirements	
   of	
   a	
   CAP,	
   all	
   six	
   Licensing	
   Specialists	
   reported	
  that	
  they	
  discuss	
  the	
  shortcomings	
  with	
  the	
  provider	
  and	
  then	
  develop	
  another	
   CAP.	
   • If	
   the	
   provider	
   does	
   not	
   fulfill	
   the	
   requirements	
   of	
   the	
   second	
   CAP,	
   then	
   the	
   Licensing	
   Specialists	
   reported	
   that	
   they	
   can	
   pursue	
   a	
   provisional	
   license	
   for	
   that	
   provider.	
   	
   A	
   provisional	
  license	
  can	
  only	
  be	
  renewed	
  for	
  six	
  months.	
  	
  If	
  the	
  provider	
  is	
  not	
  compliant	
   after	
   the	
   issuance	
   of	
   a	
   provisional	
   license,	
   then	
   the	
   revocation	
   of	
   the	
   provider’s	
   license	
   can	
  occur.	
   • All	
   six	
   Licensing	
   Specialists	
   stated	
   that	
   obtaining	
   a	
   provisional	
   license	
   is	
   extremely	
   difficult,	
   is	
   very	
   labor	
   intensive,	
   and	
   is	
   very	
   slow	
   to	
   occur.	
   The	
   Licensing	
   Specialists	
   report	
   that	
   because	
   of	
   these	
   systemic	
   hurdles	
   to	
   the	
   effective	
   use	
   of	
   the	
   provisional	
   license	
   sanction,	
   they	
   avoid	
   the	
   process	
   and,	
   instead,	
   continue	
   to	
   monitor.	
   	
   Although	
   pursuing	
   a	
   provisional	
   license	
   and	
   the	
   revocation	
   of	
   a	
   provider’s	
   license	
   are	
   available	
   options,	
   none	
   of	
   the	
   Licensing	
   Specialists	
   report	
   having	
   initiated	
   either	
   of	
   these	
   sanctions.	
   	
  

	
  

161	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 162 of 179 PageID# 7117
	
  
Do	
  you	
  have	
  any	
  examples	
  of	
  safety	
  matters	
  where	
  you	
  applied	
  what	
  you	
  learned	
  to	
  the	
  larger	
   system?	
  	
   Four	
   of	
   six	
   Licensing	
   Specialists	
   were	
   not	
   able	
   to	
   report	
   any	
   such	
   examples.	
   	
   The	
   two	
   examples	
  were:	
   • Same	
  as	
  question	
  above	
  regarding	
  the	
  group	
  home	
  struck	
  by	
  lightning	
   • A	
  vehicle	
  with	
  individuals	
  had	
  an	
  accident.	
  	
  The	
  staff	
  was	
  injured	
  and	
  could	
  not	
  answer	
  
any	
   questions	
   about	
   the	
   individuals.	
   	
   A	
   procedure	
   was	
   established	
   and	
   implemented	
   region-­‐wide	
   that	
   required	
   individual	
   Information	
   Sheets,	
   including	
   a	
   picture,	
   be	
   taken	
   on	
  all	
  trips.	
   	
   How	
   do	
   you	
   connect	
   the	
   dots?	
   What	
   do	
   you	
   do	
   when	
   you	
   find	
   the	
   same	
   issue	
   in	
   two	
   or	
   more	
   different	
  places?	
   One	
   Licensing	
   Specialist	
   reported	
   not	
   having	
   experienced	
   this	
   issue.	
   	
   Two	
   of	
   the	
   other	
   five	
   reported	
   that	
   they	
   will	
   now	
   be	
   able	
   to	
   obtain	
   direction	
   from	
   the	
   recently	
   established	
   OLS	
   Regional	
  Manager	
  supervisory	
  positions.	
  	
  Two	
  of	
  five	
  might	
  convene	
  a	
  group	
  to	
  discuss	
  the	
   issue,	
  determine	
  a	
  resolution,	
  and	
  then	
  share	
  with	
  all	
  providers.	
  	
  Three	
  described	
  reviewing	
   these	
   issues	
   with	
   the	
   Community	
   Resource	
   Specialist	
   who	
   meets	
   with	
   the	
   providers	
   every	
   other	
  month	
  to	
  discuss	
  and	
  resolve	
  issues.	
   	
   Do	
   you	
   stop	
   everything	
   periodically	
   and	
   assess	
   your	
   operations	
   with	
   your	
   strategic	
   plan,	
   regulatory	
  requirements,	
  hoped	
  for	
  outcomes	
  and	
  make	
  plans	
  to	
  improve?	
  Is	
  there	
  a	
  strategic	
   plan?	
  	
  	
   Two	
  of	
  six	
  do	
  not	
  know	
  whether	
  a	
  strategic	
  plan	
  exists.	
  	
  Four	
  indicated	
  that	
  they	
  are	
  aware	
   that	
  a	
  plan	
  exists,	
  but	
  have	
  not	
  read	
  or	
  been	
  taught	
  about	
  its	
  contents.	
  	
  	
   	
   What	
  have	
  you	
  done	
  to	
  use	
  DBHDS	
  risk	
  triggers	
  and	
  thresholds?	
   All	
   Licensing	
   Specialists	
   identified,	
   incorrectly,	
   that	
   the	
   DBHDS	
   Safety	
   Alerts	
   are	
   the	
   risk	
   triggers.	
  	
  Licensing	
  Specialists	
  were	
  uninformed	
  about	
  and	
  unfamiliar	
  with	
  risk	
  triggers	
  and	
   risk	
  thresholds.	
  This	
  may	
  suggest	
  that	
  no	
  Licensing	
  Specialist	
  is	
  participating	
  on	
  the	
  QI	
  team	
   focused	
  on	
  defining	
  risk	
  triggers	
  and	
  thresholds.	
  This	
  lack	
  of	
  availability	
  also	
  suggests,	
  along	
   with	
   the	
   findings	
   from	
   our	
   agency	
   interviews,	
   that	
   DBHDS’s	
   work	
   developing	
   risk	
   triggers	
   and	
  thresholds	
  may	
  have	
  not	
  yet	
  involved	
  providers.	
   	
   When	
  a	
  DBHDS	
  Safety	
  Alert	
  is	
  developed,	
  four	
  of	
  six	
  of	
  the	
  Licensing	
  Specialist	
  reported	
  that	
   they	
  send	
  them	
  to	
  their	
  assigned	
  providers;	
  two	
  of	
  the	
  six	
  notify	
  the	
  providers	
  that	
  the	
  Alert	
   is	
   available	
   online.	
   	
   For	
   follow-­‐up,	
   four	
   of	
   six	
   reported	
   reviewing	
   the	
   provider’s	
   books	
   to	
   ensure	
  that	
  the	
  Alerts	
  are	
  included.	
  	
  	
  	
  Two	
  of	
  six	
  request	
  that	
  the	
  providers	
  have	
  staff	
  read	
   and	
   sign	
   off	
   on	
   each	
   Alert.	
   All	
   six	
   Licensing	
   Specialists	
   reported	
   concerns	
   that,	
   although	
   Alerts	
  are	
  sent	
  to	
  each	
  organization,	
  they	
  might	
  not	
  get	
  to	
  the	
  direct	
  care	
  staff.	
  	
  	
   	
   How	
  do	
  you	
  use	
  the	
  process	
  called	
  “root	
  cause	
  analysis”?	
   Five	
  of	
  six	
  do	
  not	
  use	
  the	
  entire	
  root	
  cause	
  analysis	
  process,	
  which	
  surprised	
  us	
  because	
  it	
  is	
   an	
   approach	
   to	
   investigations	
   that	
   investigators	
   would	
   find	
   helpful	
   and	
   it	
   is	
   also	
   a	
   Settlement	
  Agreement	
  requirement	
  that	
  the	
  Commonwealth	
  offer	
  guidance	
  and	
  training	
  on	
   the	
  use	
  of	
  root	
  cause	
  analysis	
  to	
  proactively	
  identify	
  and	
  address	
  the	
  risk	
  of	
  harm.	
  Three	
  of	
   six	
  reported	
  that	
  they	
  use	
  a	
  portion	
  of	
  this	
  process	
  when	
  developing	
  CAPs.	
  	
  

	
  

162	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 163 of 179 PageID# 7118 	
  

	
   Does	
  your	
  agency	
  have	
  a	
  QI/QM	
  Plan?	
  	
   Four	
  of	
  six	
  speculated	
  that	
  the	
  QI/QM	
  Plan	
  is	
  probably	
  in	
  the	
  DBHDS	
  Strategic	
  Plan.	
  	
  Two	
  of	
   the	
  six	
  stated	
  there	
  is	
  a	
  plan;	
  however,	
  six	
  of	
  six	
  did	
  not	
  know	
  what	
  was	
  in	
  the	
  Plan.	
   	
   How	
   do	
   you	
   know	
   when	
   to	
   do	
   a	
   desk	
   review	
   with	
   a	
   closure	
   note	
   versus	
   a	
   full	
   onsite	
   investigation?	
   Five	
  of	
  six	
  do	
  a	
  desk	
  review	
  for	
  an	
  expected	
  death	
  (i.e.	
  one	
  that	
  results	
  from	
  an	
  individual’s	
   previously	
   diagnosed	
   terminal	
   condition)	
   of	
   a	
   person	
   not	
   living	
   in	
   a	
   group	
   home.	
   	
   All	
   six	
   Licensing	
  Specialists	
  reported	
  that	
  they	
  do	
  a	
  full	
  investigation	
  for	
  all	
  unexpected	
  deaths	
  and	
   expected	
   deaths	
   for	
   persons	
   living	
   in	
   a	
   group	
   home.	
   	
   The	
   Independent	
   Reviewer’s	
   reviews	
   of	
   deaths	
   of	
   individuals	
   who	
   moved	
   from	
   Training	
   Centers,	
   however,	
   have	
   found	
   that	
   an	
   investigation	
   was	
   not	
   always	
   completed.	
   For	
   serious	
   incidents,	
   all	
   six	
   Licensing	
   Specialists	
   indicated	
   that	
   they	
   use	
   their	
   own	
   judgment.	
   	
   Factors	
   that	
   trigger	
   an	
   investigation	
   include	
   whether	
   the	
   cause	
   is	
   unknown,	
   the	
   incident	
   could	
   affect	
   others	
   in	
   the	
   home	
   or	
   there	
   is	
   a	
   regulatory	
  citation.	
   	
   What	
  are	
  you	
  expected	
  to	
  provide	
  the	
  MRC	
  regarding	
  a	
  death?	
   All	
   six	
   Licensing	
   Specialists	
   reported	
   that	
   they	
   use	
   the	
   MRC	
   checklist	
   that	
   identifies	
   the	
   documents	
  to	
  be	
  submitted.	
  	
  Three	
  of	
  six	
  indicated	
  that	
  they	
  do	
  not	
  send	
  the	
  documents	
  to	
   MRC	
   until	
   all	
   are	
   complete.	
   	
   Two	
   of	
   six	
   stated	
   that	
   it	
   is	
   possible	
   for	
   MRC	
   to	
   review	
   a	
   death	
   without	
   all	
   documents	
   having	
   been	
   submitted.	
   	
   The	
   Settlement	
   Agreement,	
   however,	
   requires	
  that	
  the	
  MRC	
  must	
  review	
  these	
  documents	
  or	
  it	
  must	
  document	
  that	
  these	
  records	
   that	
  are	
  not	
  available.	
  	
  Five	
  of	
  six	
  have	
  never	
  been	
  asked	
  by	
  MRC	
  for	
  additional	
  information.	
   	
   What	
  kind	
  of	
  feedback	
  do	
  you	
  get	
  on	
  your	
  investigation	
  reports?	
   All	
  six	
  Licensing	
  Specialists	
  did	
  not	
  recall	
  having	
  received	
  feedback,	
  but	
  they	
  all	
  would	
  like,	
   and	
  benefit	
  from,	
  feedback.	
   	
   Are	
  provider	
  investigations	
  done?	
  	
  Do	
  you	
  use	
  them?	
   Four	
   of	
   six	
   Licensing	
   Specialists	
   stated	
   that	
   providers	
   must	
   complete	
   investigations	
   on	
   allegations	
   of	
   abuse	
   or	
   neglect.	
   Two	
   of	
   six	
   stated	
   that	
   providers	
   are	
   expected	
   to	
   do	
   investigations	
   on	
   serious	
   incidents	
   and	
   death,	
   but	
   do	
   not	
   always	
   complete	
   them	
   or	
   they	
   write	
  a	
  short	
  summary	
  on	
  the	
  CHRIS	
  reporting	
  form	
  and	
  do	
  not	
  submit	
  the	
  full	
  investigative	
   report	
   (which	
   is	
   acceptable	
   practice	
   per	
   Departmental	
   Instruction	
   201	
   (RTS)03).	
   	
   Four	
   of	
   six	
  reported	
  using	
  the	
  provider	
  investigation,	
  if	
  available.	
  Licensing	
  Specialists	
  commented	
   that	
  providers	
  would	
  benefit	
  from	
  investigation	
  training.	
   	
   Conclusions:	
  	
   Overall,	
   the	
   Licensing	
   Specialists	
   do	
   not	
   see	
   themselves	
   impacting	
   the	
   service	
   delivery	
   system,	
  except	
  possibly	
  in	
  their	
  own	
  region.	
  This	
  seems	
  to	
  result	
  in	
  their	
  not	
  analyzing	
  data	
   for	
   trends	
   or	
   patterns.	
   	
   They	
   believe	
   that,	
   in	
   fact,	
   OLS	
   has	
   little	
   actual	
   power	
   and	
   cannot	
   effectively	
  sanction	
  providers	
  because	
  the	
  available	
  sanctions	
  are	
  so	
  difficult	
  to	
  utilize.	
  They	
   agreed	
  that,	
  as	
  a	
  result,	
  a	
  very	
  few	
  providers	
  do	
  not	
  implement	
  the	
  agreed	
  upon	
  Corrective	
   Action	
   Plans	
   in	
   a	
   timely	
   or	
   effective	
   manner.	
   The	
   Licensing	
   Specialists	
   believe	
   that	
   they	
   contribute	
   to	
   making	
   needed	
   service	
   changes/improvements	
   by	
   maintaining	
   good	
   rapport	
   with	
  their	
  assigned	
  providers	
  and	
  by	
  adjusting	
  the	
  frequency	
  of	
  their	
  visits	
  as	
  needed.	
  	
  

	
  

163	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 164 of 179 PageID# 7119 	
  

	
   Licensing	
  Specialists	
  would	
  like	
  more	
  training	
  to	
  increase	
  their	
  skills	
  and	
  consistency.	
  	
  They	
   identified	
  training	
  needs	
  for	
  themselves	
  in	
  the	
  use	
  of	
  the	
  Data	
  Warehouse,	
  for	
  providers	
  on	
   writing	
   Corrective	
   Action	
   Plans,	
   and	
   for	
   both	
   providers	
   and	
   OLS	
   on	
   investigations.	
   	
   The	
   Licensing	
  Specialists	
  lacked	
  knowledge	
  of	
  DBHDS’s	
  Risk	
  Management	
  Plans,	
  Strategic	
  Plans	
   and	
   Quality	
   Improvement/Quality	
   Management	
   Plans.	
   As	
   a	
   group,	
   they	
   were	
   also	
   unsure	
   how	
  those	
  plans	
  impacted	
  them	
  and	
  the	
  importance	
  of	
  their	
  role	
  in	
  the	
  service	
  system.	
   	
   Recommendations	
  toward	
  achieving	
  full	
  compliance:	
  	
   DBHDS	
  should	
  retrain	
  Licensing	
  Specialists	
  in	
  root	
  cause	
  analysis,	
  risk	
  triggers	
  and	
   thresholds,	
  and	
  the	
  Department’s	
  approach	
  to	
  quality	
  improvement.	
  The	
  goal	
  of	
  this	
   retraining	
  should	
  be	
  to	
  ensure	
  that	
  Licensing	
  Specialists	
  better	
  understand	
  their	
  roles	
  and	
   how	
  their	
  work	
  fits	
  into	
  DBHDS’s	
  overall	
  approach	
  to	
  improve	
  the	
  quality	
  and	
  effectiveness	
   of	
  services	
  delivered	
  by	
  the	
  providers	
  they	
  are	
  assigned	
  to	
  monitor.	
   	
   DBHDS	
  should	
  assess	
  its	
  Data	
  Warehouse	
  to	
  determine	
  if	
  it	
  can	
  be	
  made	
  more	
  user	
  friendly	
   and	
  if	
  it	
  is	
  feasible	
  to	
  provide	
  additional	
  user	
  training.	
  	
  	
  
DBHDS	
  should	
  clarify	
  in	
  the	
  OLS	
  Office	
  Protocol	
  a)	
  when	
  a	
  full	
  investigation	
  into	
  a	
  death	
   should	
  occur;	
  for	
  example,	
  an	
  expected	
  death	
  may	
  warrant	
  an	
  onsite	
  investigation,	
  if	
  the	
   determination	
  of	
  ‘expected’	
  is	
  not	
  clear	
  cut	
  and	
  obvious	
  (e.g.	
  	
  when	
  an	
  individual	
  dies	
  after	
   life	
  supports	
  are	
  removed	
  by	
  hospital	
  physicians	
  ten	
  days	
  after	
  choking	
  on	
  food	
  and	
  losing	
   consciousness,	
  and	
  later	
  being	
  determined	
  to	
  be	
  brain	
  dead,	
  should	
  be	
  treated	
  as	
  an	
   unexpected	
  death)	
  and	
  b)	
  when	
  others	
  in	
  a	
  home	
  or	
  homes	
  should	
  be	
  assessed	
  by	
  the	
   Licensing	
  Specialist	
  for	
  same	
  or	
  similar	
  risks	
  flowing	
  from	
  a	
  serious	
  incident	
  (e.g.,	
  serious	
   medication	
  errors	
  for	
  one	
  individual	
  should	
  automatically	
  trigger	
  a	
  review	
  of	
  others	
  in	
  a	
   home	
  who	
  receive	
  medication).	
  
DBHDS	
  should	
  retrain	
  Licensing	
  Specialists	
  on	
  a	
  hierarchy	
  of	
  practical	
  interventions	
  that	
   promote	
  expedient	
  remediation	
  of	
  issues	
  including	
  when	
  to	
  initiate	
  a	
  provisional	
  license	
  or	
   a	
  license	
  revocation.	
   	
   DBHDS	
  should	
  clarify	
  for	
  the	
  MRC	
  (and	
  OLS)	
  which	
  documents	
  can	
  be	
  overlooked	
  in	
  its	
   review	
  (e.g.	
  individual’s	
  daily	
  schedule)	
  and	
  which	
  cannot	
  be	
  overlooked	
  and	
  for	
  which	
  the	
   case	
  may	
  not	
  be	
  closed	
  (e.g.	
  all	
  incident	
  reports	
  during	
  the	
  previous	
  three	
  months	
  and	
  the	
   death	
  certificate).	
   	
   Suggestions	
  for	
  DBHDS	
  Consideration:	
  	
   Clarify	
  in	
  the	
  OLS	
  Office	
  Protocol	
  that	
  Licensing	
  Specialists	
  should	
  request	
  and	
  consider	
  the	
   provider	
  investigation	
  in	
  their	
  investigation	
  findings	
  or	
  to	
  document	
  for	
  OHR	
  that	
  the	
   provider	
  did	
  not	
  complete	
  the	
  required	
  investigation.	
  	
   	
   Retrain	
  providers	
  and	
  Licensing	
  Specialists	
  on	
  an	
  investigation	
  protocol	
  that	
  defines	
   expectations	
  regarding	
  when	
  and	
  how	
  to	
  complete	
  a	
  thorough	
  investigation	
  process	
  and	
   investigation	
  report.	
  	
  	
   	
   	
  

	
  

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Serious	
  Incident	
  Analysis	
   	
  
Findings:	
  	
   The	
  Settlement	
  Agreement	
  requires	
  the	
  Independent	
  Reviewer	
  to	
  review	
  the	
  death	
  or	
   serious	
  injury	
  to	
  any	
  former	
  resident	
  of	
  a	
  Training	
  Center	
  (VI.D.).	
  The	
  Independent	
   Reviewer’s	
  thirty-­‐five	
  most	
  recent	
  such	
  special	
  Reports	
  to	
  the	
  Court	
  were	
  reviewed	
  for	
  this	
   study.	
  These	
  injuries	
  and	
  deaths	
  occurred	
  during	
  the	
  nineteen-­‐month	
  period	
  between	
  May	
   2014	
  and	
  December	
  2015.	
  Table	
  II	
  on	
  the	
  next	
  page	
  summarizes	
  the	
  findings	
  from	
  this	
   review.	
   	
   These	
  Special	
  Reports	
  to	
  the	
  Court	
  also	
  included	
  recommendations	
  offered	
  for	
  the	
   consideration	
  of	
  the	
  Commonwealth.	
  Recommendations	
  from	
  all	
  thirty-­‐five	
  Special	
  Reports	
   are	
  recapped	
  in	
  Attachment	
  C.	
  Recommendations,	
  which	
  were	
  made	
  two	
  or	
  more	
  times	
   from	
  this	
  group	
  of	
  thirty-­‐five,	
  included	
  (most	
  to	
  least	
  frequently):	
   	
  
DBHDS	
  should	
  establish	
  investigation	
  minimum	
  standards	
  for	
  OLS	
  for	
  use	
  in	
  the	
  review	
   of	
  deaths	
  and	
  serious	
  incidents.	
   	
   DBHDS	
  should	
  develop	
  a	
  script	
  for	
  case	
  managers	
  and/or	
  providers	
  to	
  use	
  to	
   encourage	
  next	
  of	
  kin	
  to	
  agree	
  to	
  autopsies	
  to	
  determine	
  the	
  cause	
  of	
  unexpected	
   deaths.	
   	
   DBHDS	
  should	
  conduct	
  root	
  cause	
  analysis	
  of	
  selected	
  events	
  when	
  there	
  are	
  negative	
   outcomes	
  for	
  individuals.	
   	
   DBHDS	
  should	
  develop	
  collateral	
  agreements	
  to	
  share/release/disclose	
  investigative	
   findings	
  with	
  relevant	
  sister	
  agencies	
  (Adult	
  and	
  Child	
  Protective	
  Services,	
  Public	
   Health,	
  etc.).	
   	
   DBHDS	
  should	
  maintain	
  a	
  statewide	
  registry	
  of	
  Stage	
  2	
  or	
  higher	
  decubitus	
  ulcers	
  for	
   those	
  living	
  in	
  settings	
  other	
  than	
  their	
  own	
  or	
  family	
  home.	
   	
   DBHDS	
  should	
  cite	
  providers	
  who	
  report	
  serious	
  incidents	
  later	
  than	
  the	
  required	
   “within	
  24	
  hour	
  notice”.	
   	
   	
   	
   	
   	
   	
   	
   	
   	
   	
  

	
  

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Table	
  II	
  

Data	
  from	
  thirty-­‐five	
  serious	
  incidents	
  

	
  

Number:	
  

35	
  -­‐	
  11	
  serious	
  injuries	
  and	
  24	
  deaths	
  

Ages:	
  

Average	
  =	
  55,	
  Range	
  =	
  29	
  to	
  82	
  

Time	
  Period:	
  

Deaths	
  -­‐	
  11.14.14	
  to	
  6.3.15	
  

TC’s:	
  

SVTC	
  –	
  17,	
  NVTC	
  –	
  8,	
  CVTC	
  –	
  5,	
  SWTC	
  –	
  4,	
  SEVTC	
  -­‐	
  1	
  

Discharge	
  to	
  Death	
  

Average	
  =	
  443	
  days,	
  Median	
  =	
  545	
  days,	
  Range	
  =	
  80	
  days	
  to	
  1084	
  days,	
  

Days:	
  

9	
  of	
  24	
  occurred	
  within	
  one	
  year	
  

Expected	
  Deaths:	
  

	
  	
  3	
  

Unexpected	
  Deaths:	
  

21	
  

Causes	
  of	
  Death:	
  

7	
  cardiac	
  arrest/heart	
  failure,	
  heart	
  attack	
  

6	
  sepsis	
  

3	
  cancer	
  

3	
  aspiration/asphyxiation	
  

2	
  respiratory	
  failure	
  

1	
  stroke	
  

2	
  undetermined	
  

CHRIS	
  report	
  type:	
  

24	
  -­‐	
  deaths,	
  4	
  -­‐	
  fractures,	
  3	
  -­‐	
  decubitus	
  ulcers,	
  2	
  –	
  behavioral,	
  	
  

1	
  –	
  burn,	
  1	
  -­‐	
  emergency	
  room	
  visit	
  

Chris	
  report	
  filed	
  timely	
   22	
  -­‐	
  yes	
  

(within	
  24	
  hours):	
  

13	
  -­‐	
  no	
  

OLS	
  Investigation:	
  

28	
  -­‐	
  	
  yes	
  

	
  	
  	
  7	
  -­‐	
  no	
  

Corrective	
  Action	
  Plan:	
   10	
  -­‐	
  yes	
  

24	
  -­‐	
  no	
  

	
  	
  	
  1	
  -­‐	
  	
  unknown	
  

OHR	
  Involved	
  

4	
  

Quality	
  of	
  Investigation	
   	
  	
  1	
  -­‐	
  done	
  well	
  

17	
  -­‐	
  adequate	
  but	
  omissions	
  

10	
  -­‐	
  	
  inadequate	
  

MRC	
  timely:	
  

	
  14	
  -­‐	
  yes	
  

(within	
  90	
  days	
  of	
  death)	
  

	
  	
  	
  7	
  –	
  no	
  

	
  	
  	
  3	
  –	
  unknown	
  

	
  

Conclusions:	
  	
  

The	
  findings	
  from	
  the	
  thirty-­‐five	
  reviews	
  with	
  some	
  degree	
  of	
  confidence	
  can	
  be	
  

generalized	
  to	
  the	
  overall	
  target	
  population	
  who	
  died	
  or	
  experienced	
  injuries	
  that	
  resulting	
  

in	
  on-­‐going	
  medical	
  care	
  to	
  the	
  other	
  nearly	
  600	
  individuals	
  who	
  have	
  also	
  transitioned	
  

from	
  a	
  Training	
  Center	
  under	
  the	
  Settlement	
  Agreement.	
  Deaths	
  and	
  serious	
  injuries	
  for	
  

individuals	
  who	
  entered	
  the	
  Home	
  and	
  Community	
  Based	
  Waiver	
  programs	
  directly	
  from	
  

their	
  family	
  home	
  placement	
  or	
  who	
  moved	
  from	
  a	
  Training	
  Center	
  before	
  May	
  2014	
  or	
  

after	
  December	
  2015	
  may	
  have	
  had	
  different	
  experiences.	
  

	
  

The	
  causes	
  of	
  death	
  among	
  this	
  group	
  of	
  individuals	
  who	
  moved	
  from	
  a	
  TC	
  under	
  the	
  

Agreement	
  (i.e.	
  since	
  10/2011)	
  are	
  similar	
  to	
  those	
  identified	
  in	
  other	
  states.	
  For	
  example,	
  

	
  

166	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 167 of 179 PageID# 7122 	
  

the	
  Connecticut	
  Department	
  of	
  Developmental	
  Services	
  last	
  Annual	
  Report	
  on	
  Mortality2	
  	
   for	
  a	
  larger,	
  statewide	
  population	
  also	
  reported	
  the	
  leading	
  causes	
  of	
  death	
  as	
  Heart	
   Disease,	
  Respiratory	
  Disease,	
  Cancer,	
  Aspiration/Pneumonia	
  and	
  Sepsis.	
   	
   Among	
  the	
  twenty-­‐four	
  deaths,	
  nine	
  occurred	
  within	
  one	
  year	
  of	
  discharge,	
  but	
  it	
  could	
  not	
   be	
  established	
  whether	
  these	
  were	
  a	
  result	
  of	
  a)	
  being	
  high	
  risk	
  individuals	
  regardless	
  of	
   where	
  they	
  lived,	
  b)	
  inadequate	
  transition	
  planning	
  (discharge	
  and	
  post	
  move)	
  or	
  c)	
   substandard	
  care	
  and	
  treatment	
  from	
  their	
  provider	
  or	
  from	
  their	
  community-­‐based	
   physician,	
  Emergency	
  Rooms	
  and	
  hospitals	
  where	
  they	
  received	
  medical	
  care.	
  It	
  is	
  likely	
   that	
  one	
  or	
  more	
  of	
  these	
  factors	
  were	
  present	
  for	
  different	
  individuals	
  at	
  different	
  times.	
  	
   The	
  Mortality	
  Review	
  Committee	
  should	
  be	
  making	
  these	
  assessments	
  and	
  use	
  their	
   findings	
  to	
  determine	
  problems	
  at	
  the	
  individual	
  service	
  level	
  and	
  systemic	
  patterns	
  and	
   trends.	
  The	
  MRC	
  completed	
  its	
  work	
  timely	
  (i.e.	
  within	
  90	
  days)	
  for	
  58%	
  (14)	
  of	
  these	
  24	
   deaths.	
   	
   Individuals	
  formerly	
  living	
  at	
  Southside	
  Virginia	
  Training	
  Center	
  (SVTC)	
  account	
  for	
  almost	
   half	
  (17)	
  of	
  this	
  group	
  of	
  injuries	
  and	
  deaths.	
  This	
  was	
  expected	
  because	
  most	
  of	
  the	
   individuals,	
  who	
  moved	
  from	
  Training	
  Centers,	
  transitioned	
  from	
  SVTC	
  during	
  the	
  first	
   years	
  of	
  the	
  Agreement.	
  Fractures	
  and	
  decubitus	
  ulcers	
  accounted	
  for	
  more	
  than	
  half	
  of	
   serious	
  injuries	
  that	
  were	
  reviewed.	
  	
  Twenty-­‐two	
  of	
  the	
  thirty-­‐five	
  (63%)	
  incidents	
  were	
   reported	
  timely,	
  as	
  required,	
  which	
  confirms	
  other	
  studies	
  of	
  improvements	
  in	
  timeliness;	
   twenty-­‐eight	
  incidents	
  (80%)	
  were	
  investigated	
  by	
  OLS	
  in	
  one	
  fashion	
  or	
  another.	
  However,	
   only	
  rarely	
  did	
  the	
  Licensing	
  Specialists	
  report	
  that	
  they	
  had	
  assessed	
  the	
  safety	
  of	
  other	
   individuals	
  living	
  with	
  the	
  individual	
  who	
  was	
  the	
  subject	
  of	
  the	
  investigation.	
  
	
   Eighteen	
  of	
  the	
  twenty-­‐eight	
  (64%)	
  investigations	
  were	
  assessed	
  by	
  us	
  as	
  minimally	
   adequate,	
  since	
  most	
  investigations	
  contained	
  significant	
  omissions.	
  	
   	
   DBHDS	
  is	
  in	
  compliance	
  with	
  SA	
  Section	
  VI.D.	
   	
   Recommendations	
  toward	
  achieving	
  full	
  compliance:	
   DBHDS	
  should	
  increase	
  the	
  level	
  of	
  case	
  management	
  oversight	
  or	
  competency	
  for	
   individuals	
  over	
  age	
  55	
  or	
  who	
  have	
  intense	
  or	
  complex	
  medical	
  needs.	
   	
   DBHDS	
  Licensing	
  Specialists	
  should	
  automatically	
  address	
  in	
  their	
  investigations	
  the	
  safety	
   of	
  other	
  individuals	
  living	
  with	
  individual	
  being	
  reviewed	
  by	
  stating	
  the	
  affirmative,	
  if	
   accurate,	
  that	
  no	
  ‘risks	
  to	
  others	
  in	
  the	
  home/program	
  were	
  apparent’.	
   	
   DBHDS	
  should	
  establish	
  investigation	
  minimum	
  standards	
  for	
  OLS	
  for	
  use	
  in	
  reporting	
  their	
   review	
  of	
  deaths	
  and	
  serious	
  incidents.	
   	
   	
   	
   	
   	
  
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
 	 
  
2	
  http://www.ct.gov/dds/lib/dds/health/reports/mortality_report_fy_14.pdf	
  

	
  

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   Health	
  and	
  Wellness	
  Initiatives	
  
	
   Findings	
   A	
  key	
  to	
  developing	
  systems	
  of	
  care	
  committed	
  to	
  protecting	
  individuals	
  from	
  harm	
  and	
  to	
  
ensuring	
  their	
  well	
  being	
  is	
  a	
  proactive	
  effort	
  to	
  ensure	
  good	
  health	
  through	
  competent	
  
nursing	
  and	
  medical	
  care.	
  DBHDS	
  has	
  focused	
  its	
  efforts	
  through	
  the	
  development	
  of	
  a	
  
Health	
  Services	
  Network.	
  This	
  network	
  is	
  led	
  by	
  a	
  group	
  of	
  four	
  full	
  time	
  equivalents	
  RN	
  
Care	
  Consultants	
  (RNCC)	
  who	
  are	
  community	
  and	
  integration	
  focused.	
  Its	
  activities	
  since	
  
January	
  have	
  included:	
  
● Onsite technical assistance/consultation to over a dozen providers (81 locations), including information on specific health conditions, writing health protocols, use of lifts, tracking input/output, fall risk planning, bowel movement tracking, medications, writing justifications for durable medical equipment and other supports, ventilator and g-tube care, utilizing nursing services for fractures, decubitus ulcers, diabetes, hospitalizations, and other chronic conditions;
● Onsite technical assistance/consultation to major pharmacies providing services to providers in Regions II, IV, V;
● Formal one-day workshops and trainings on supporting individuals with complex health needs (145 participants to date); consultation to agencies in the access of and coordination of local health services (nutritionists, diabetic management, dental care, health clinics);
● Guidance and support to agencies in lieu of regulatory citations; participation in investigations as requested by CSBs in matters involving health issues;
● Post-move monitoring visits, including individual specific onsite training for those supporting individuals recently placed;
● Development of an Oral Health program for direct support staff (97 participants to date); creation and distribution of oral health brochures;
● Establishment of a Fixed Rate Dental Program in two of Virginia’s five regions (which so far has involved referrals for 382 people); partnered with Oral Health Coalition to provide education seminars to dentists, oral hygienists, etc.; established a Sedation Dental Program at Northern Virginia Training Center (NVTC); 112 referrals have been processed to date; initiated a pilot in remote dentistry in Western Virginia;
● Consultation and guidance to case managers upon request; ● Participation in the development of competencies for staff serving individuals with more
intense medical needs; ● Participation in the development of a Daily Health Checklist, geared to direct support staff
to ensure they report health status changes immediately; ● Participation in the revision of a new Orientation manual for direct support staff; ● Coordination of monthly Community Nursing Meetings in all five Regions; support for
the creation of self-directing local leadership teams; ● Development of region-based Skin Care Workshops using subject matter experts; ● Purchase of two vans to provide mobile services for Mobile Rehabilitation; Engineering
program (engineer, occupational therapist and RN); consultation services to 61 individuals and repairs/adjustments to 93 pieces of equipment.

	
  

168	
  

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The Health Support Network is in the process of defining the measurable outcomes that it will track to determine whether, and the extent that, the HSN has positively impacted improvements in health care. The HSN expects to complete the development of the outcomes during 2017. It expects to be able to begin reporting measurable progress on achieving desirable outcomes by the end of 2017. 	
   Conclusions:	
  	
  	
   The	
  DBHDS	
  Health	
  Services	
  Network	
  has	
  made	
  significant	
  efforts	
  into	
  support,	
  and	
  capacity	
   building,	
  of	
  community	
  providers	
  who	
  have	
  individuals	
  with	
  challenging	
  healthcare	
  needs.	
   This	
  is	
  particularly	
  so	
  in	
  the	
  Dental	
  and	
  Oral	
  Health	
  care	
  arena,	
  where	
  emerging	
  best	
   practice	
  models	
  of	
  efficient	
  care	
  are	
  being	
  piloted.	
  	
   	
   The	
  DBHDS	
  Health	
  Support	
  Network’s	
  efforts	
  had	
  not	
  yet	
  reached	
  the	
  providers	
  or	
   impacted	
  the	
  services	
  provided	
  for	
  the	
  period	
  of	
  serious	
  injuries	
  and	
  deaths	
  that	
  were	
   reviewed	
  by	
  the	
  Independent	
  Reviewer.	
  This	
  is	
  not	
  to	
  conclude	
  that	
  there	
  is	
  no	
  positive	
   effects	
  but	
  rather	
  that	
  its	
  impacts	
  to	
  date	
  have	
  not	
  been	
  observed	
  in	
  the	
  Independent	
   Reviewers’	
  multiple	
  assessments	
  of	
  system	
  performance.	
   	
   We	
  have	
  noted	
  through	
  individual	
  and	
  incident	
  reviews	
  that	
  a	
  transaction	
  point	
  of	
  major	
   difficulty	
  for	
  providers	
  and	
  case	
  managers	
  is	
  working	
  with	
  local	
  hospitals	
  on	
  well	
  done	
   discharge	
  planning.	
   	
   The	
  DBHDS	
  Health	
  Services	
  Network	
  is	
  challenged	
  to	
  sustain	
  support	
  to	
  provider	
  agencies	
   in	
  all	
  regions	
  on	
  all	
  fronts.	
  These	
  efforts	
  are	
  worthy	
  of	
  significantly	
  more	
  resource	
   investment.	
   	
   Recommendations	
  toward	
  achieving	
  full	
  compliance:	
  	
   Because	
  the	
  HSN	
  is	
  action	
  oriented	
  and	
  has	
  limited	
  resources,	
  there	
  needs	
  to	
  be	
  an	
   expanded	
  capacity	
  to	
  demonstrate	
  significant	
  quantitative	
  and	
  qualitative	
  progress.	
  For	
   example,	
  the	
  continuation	
  of	
  planned	
  regional	
  Skin	
  Care	
  Workshops	
  may	
  benefit	
  from	
  a	
   count	
  of	
  decubitus	
  ulcer	
  reports	
  before	
  the	
  training	
  event	
  in	
  a	
  region	
  and	
  after	
  the	
  event	
  in	
   that	
  region	
  in	
  the	
  following	
  months.	
  Impact	
  data	
  will	
  support	
  the	
  long-­‐term	
  sustainability	
  of	
   the	
  Network.	
  Beginning	
  to	
  measure	
  the	
  HSN’s	
  impacts	
  should	
  not	
  be	
  delayed	
  into	
  2017.	
  	
   	
   Develop	
  and	
  market	
  ‘best	
  practices’	
  tools	
  for	
  local	
  hospital	
  discharge	
  planning	
  for	
  case	
   managers	
  and	
  private	
  providers.	
   	
   Suggestions	
  for	
  DBHDS	
  Consideration:	
  	
   DBHDS	
  should	
  clarify	
  in	
  bulletins,	
  brochures,	
  emails,	
  websites,	
  etc.,	
  to	
  families,	
  individuals,	
   and	
  case	
  managers	
  the	
  purposes	
  and	
  limitation	
  of	
  each	
  pilot	
  as	
  it	
  is	
  launched.	
   	
  
	
  
	
  
	
  

	
  

169	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 170 of 179 PageID# 7125 	
  

	
  
Report	
   #	
  	
   34	
   	
  

Move	
   Date	
   May	
  19,	
   2014	
  

35	
  

Jan	
  22,	
  

	
  

2014	
  

36	
  

May	
  19,	
  

	
  

2014	
  

Attachment	
  A	
   Recommendations	
  from	
  Reports	
  #34-­‐#68	
  

Incident	
  or	
   Death	
  Date	
   May	
  19,	
  2014	
  
May	
  23,	
  2014	
  
Sep	
  1,	
  2014	
  

Recommendations	
  
1.	
   The	
  Commonwealth	
  should	
  ensure	
  that	
  all	
  public	
  agencies	
   coordinate	
  their	
  oversight	
  of	
  individuals	
  with	
  ID/DD	
  in	
  the	
   target	
  population.	
  This	
  coordination	
  should	
  include	
  sharing	
  the	
   results	
  of	
  all	
  investigations	
  of	
  serious	
  injuries	
  to	
  or	
  allegations	
   of	
  mistreatment	
  of	
  individuals	
  receiving	
  services	
  under	
  the	
   Agreement.	
  The	
  Commonwealth	
  should	
  promptly	
  receive	
   copies	
  of	
  APS	
  investigations	
  that	
  conclude	
  that	
  an	
  individual	
   whose	
  services	
  are	
  being	
  overseen	
  by	
  DBHDS	
  is	
  at	
  risk	
  of	
  harm	
   should	
  be	
  shared	
  promptly	
  with	
  DBHDS.	
  The	
  Commonwealth	
   cannot	
  comply	
  with	
  the	
  Agreement’s	
  provision	
  ensuring	
  that	
   services	
  include	
  avoidance	
  of	
  harm	
  when	
  information	
  about	
   risks	
  is	
  not	
  shared	
  with	
  those	
  responsible	
  for	
  managing	
  risks.	
  	
  	
  
1.	
   The	
  discharge	
  planning	
  discussions	
  of	
  the	
  barriers	
  to	
  successful	
   community	
  placement	
  should	
  include	
  what	
  might	
  go	
  wrong	
   when	
  planning	
  the	
  transition	
  of	
  medically	
  complex	
  individuals.	
   Post-­‐move	
  monitoring	
  and	
  case	
  management	
  oversight	
   processes	
  should	
  include	
  enhanced	
  monitoring	
  of	
  the	
   individual’s	
  risk	
  factors	
  in	
  relationship	
  to	
  areas	
  of	
  identified	
   concerns.	
  	
  	
  
2.	
   XX	
  was	
  randomly	
  selected	
  for	
  review	
  by	
  the	
  Independent	
   Reviewer’s	
  nurse	
  consultant.	
  On	
  8/18/14,	
  he	
  was	
  observed	
  at	
   the	
  Hiram	
  Davis	
  Medical	
  Center.	
  The	
  HDMC	
  Medical	
  Director	
   and	
  PW’s	
  nurse	
  were	
  interviewed	
  at	
  length.	
  The	
  report	
  from	
   Individual	
  Review	
  site	
  visit	
  was	
  submitted	
  to	
  the	
   Commonwealth	
  on	
  11/15/14.	
  It	
  recommended,	
  and	
  the	
   Independent	
  Reviewer	
  repeats	
  the	
  recommendation	
  here,	
  that	
   the	
  Commonwealth	
  conduct	
  a	
  root	
  cause	
  analysis	
  to	
  determine	
   the	
  issues	
  that	
  contributed	
  to	
  the	
  failure	
  of	
  XX’s	
  community	
   placement	
  and	
  steps	
  that	
  can	
  be	
  taken	
  to	
  avoid	
  such	
  harms	
  in	
   the	
  future.	
  	
  	
  	
  
3.	
   The	
  OLS	
  should	
  document	
  when	
  residential	
  providers	
  do	
  not	
   comply	
  with	
  its	
  SIR	
  reporting	
  requirements	
  and	
  take	
  corrective	
   actions	
  that	
  ensure	
  the	
  provider	
  will	
  fulfill	
  reporting	
   requirements	
  consistently	
  in	
  the	
  future.	
  
	
   1.	
   The	
  DBHDS	
  should	
  complete	
  a	
  root	
  cause	
  investigation	
  of	
  the	
  
events	
  surrounding	
  XX’s	
  discharge	
  and	
  his	
  psychiatric	
   hospitalizations.	
  Its	
  findings	
  and	
  conclusions	
  should	
  address	
   the	
  reasons	
  why	
  essential	
  vocational	
  and	
  behavior	
  supports	
   were	
  not	
  in	
  place	
  prior	
  to	
  his	
  discharge	
  from	
  XXTC.	
  The	
   investigation	
  recommendations	
  should	
  outline	
  the	
  actions	
   needed	
  to	
  ensure	
  that	
  Personal	
  Support	
  Teams	
  do	
  not	
  repeat	
   these	
  gaps	
  in	
  transition	
  and	
  discharge	
  planning	
  and	
   implementation	
  with	
  others.	
  The	
  investigation	
  should	
  also	
   determine	
  whether	
  XX’s	
  first	
  residential	
  provider	
  was	
  negligent	
   in	
  failing	
  to	
  provide	
  psychotropic	
  medication	
  prescribed	
  for	
   him;	
  whether	
  the	
  behavior	
  supports	
  provided	
  met	
  professional	
   standards;	
  and	
  whether	
  the	
  direct	
  support	
  staff	
  implementing	
   these	
  services	
  were	
  trained	
  and	
  competent	
  to	
  implement	
  the	
   elements	
  of	
  XX’s	
  service	
  plans.	
  	
  

	
  

170	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 171 of 179 PageID# 7126 	
  

2.	
   The	
  DBHDS	
  should	
  establish	
  standards	
  to	
  ensure	
  that	
  OLS	
  

investigations	
  are	
  completed	
  when	
  provider	
  staff	
  call	
  the	
  police	
  

rather	
  than	
  REACH	
  crisis	
  services	
  as	
  instructed	
  in	
  the	
  

individual’s	
  service	
  plan.	
  	
  

3.	
   DBHDS	
  should	
  work	
  with	
  its	
  sister	
  agencies	
  to	
  ensure	
  that	
  

police	
  officers	
  are	
  trained	
  in	
  respectful,	
  effective,	
  and	
  least	
  

intrusive	
  means	
  of	
  responding	
  to	
  individuals	
  with	
  a	
  disability	
  in	
  

a	
  behavioral	
  crisis.	
  	
  	
  	
  

37	
  

Mar	
  3,	
   (Sep	
  25,	
  2014)	
   1.	
   DBHDS	
  should	
  set	
  minimum	
  standards	
  for	
  OLS	
  investigations	
  

	
  

2012	
  

into	
  a	
  death.	
  These	
  standards	
  should	
  include	
  a	
  review	
  Case	
  

Manager	
  notes	
  and	
  the	
  gathering	
  of	
  the	
  basic	
  information	
  

required	
  for	
  its	
  mortality	
  review	
  process.	
  

38	
  

Feb	
  8,	
   (Sep	
  24,	
  2014)	
   1.	
   Following	
  an	
  unexpected	
  death	
  OLS	
  Specialists	
  should	
  

	
  

2012	
  

routinely	
  do	
  spot	
  checks	
  for	
  similar	
  issues	
  at	
  other	
  provider	
  

sites.	
  

39	
  

Jan	
  6,	
   (Sep	
  20,2014)	
   1.	
   All	
  OLS	
  investigations	
  of	
  deaths	
  should	
  have	
  a	
  minimum	
  

	
  

2014	
  

standard	
  of	
  reviewing	
  case	
  manager	
  notes.	
  	
  	
  	
  

2.	
   DBHDS	
  should	
  consider	
  issuing	
  a	
  safety	
  alert	
  to	
  all	
  providers	
  

and	
  case	
  managers	
  that	
  the	
  ADA	
  recommends	
  antibiotic	
  

treatment	
  for	
  those	
  with	
  “heart	
  conditions”.	
  

40	
  

May	
  15,	
   Sep	
  30,	
  2014	
   1.	
   DBHDS	
  should	
  establish	
  standards	
  that	
  require	
  an	
  investigation	
  

	
  

2014	
  

when	
  there	
  is	
  a	
  pattern	
  of	
  injuries	
  leading	
  up	
  to	
  a	
  more	
  serious	
  

injury.	
  

41	
  

May	
  28,	
   Nov	
  12,	
  2014	
   None	
  

	
  

2014	
  

42	
  

Dec	
  30,	
   Jan20,	
  2015	
   1.	
   The	
  Commonwealth	
  should	
  establish	
  standards	
  that	
  require	
  

	
  

2013	
  

OLS	
  investigators	
  to	
  broaden	
  their	
  reviews	
  of	
  incidents	
  that	
  

surface	
  multiple	
  regulatory	
  violations	
  that	
  involve	
  health	
  and	
  

safety.	
  The	
  expanded	
  review	
  should	
  include	
  the	
  provider’s	
  

history	
  of	
  regulatory	
  violations	
  and	
  its	
  effectiveness	
  

implementing	
  corrective	
  action	
  plans.	
  The	
  purpose	
  of	
  the	
  

expanded	
  review	
  should	
  be	
  to	
  ensure	
  the	
  well	
  being	
  of	
  other	
  

individuals	
  served	
  by	
  the	
  provider.	
  	
  	
  

2.	
   DBHDS	
  should	
  consider	
  development	
  of	
  an	
  autopsy	
  protocol	
  

that	
  uses	
  the	
  OLS	
  investigator	
  to	
  trigger	
  a	
  formal	
  system	
  

request	
  for	
  autopsy	
  in	
  medical	
  examiner	
  cases	
  where	
  the	
  

circumstances	
  of	
  an	
  unexpected	
  death	
  warrant	
  additional	
  

discovery.	
  

43	
  

Feb	
  18,	
   (Nov	
  14,	
  2014)	
   1.	
   The	
  Commonwealth	
  should	
  establish	
  standards	
  for	
  OLS	
  

	
  

2014	
  

investigation	
  processes	
  and	
  reports	
  of	
  unexpected	
  deaths.	
  

Interviews	
  should	
  occur	
  soon	
  (such	
  as,	
  within	
  72	
  hours)	
  after	
  

an	
  incident	
  so	
  that	
  facts	
  are	
  still	
  fresh	
  with	
  interviewees.	
  	
  	
  	
  

2.	
   OLS	
  should	
  establish	
  standards	
  for	
  Licensing	
  Specialists	
  to	
  cite	
  

providers	
  for	
  late	
  submission	
  of	
  CHRIS	
  reports.	
  DBHDS	
  should	
  

track	
  providers’	
  compliance	
  with	
  DBHDS’s	
  24-­‐hour	
  web-­‐based	
  

reporting	
  requirement.	
  Providers	
  who	
  exhibit	
  a	
  pattern	
  of	
  late	
  

submission	
  of	
  CHRIS	
  reports	
  should	
  be	
  held	
  accountable	
  for	
  

timely	
  submission	
  with	
  escalating	
  consequences.	
  	
  	
  

3.	
   Peanut	
  butter	
  is	
  a	
  high-­‐risk	
  food	
  for	
  choking	
  even	
  for	
  those	
  

with	
  normal	
  diets.	
  DBHDS	
  should	
  consider	
  a	
  general	
  cautionary	
  

alert	
  to	
  the	
  dangers	
  of	
  choking	
  on	
  peanut	
  butter.	
  The	
  American	
  

Academy	
  of	
  Pediatrics	
  has	
  issued	
  cautions	
  

(http://www.med.umich.edu/yourchild/topics/choking.htm)	
  

about	
  the	
  use	
  of	
  peanut	
  butter	
  up	
  to	
  age	
  7.	
  

44	
  

Feb	
  29,	
   (Jan	
  16,	
  2015)	
   1.	
   The	
  Commonwealth	
  should	
  ensure	
  that	
  OLS	
  investigators	
  have	
  

	
  

2012	
  

access	
  to,	
  and	
  utilize	
  the	
  support	
  of,	
  medical	
  professionals	
  to	
  

	
  

171	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 172 of 179 PageID# 7127 	
  

	
  

assist	
  in	
  interpreting	
  medical	
  histories	
  and	
  recent	
  health	
  events	
  

	
  

when	
  investigating	
  deaths	
  and	
  other	
  negative	
  health	
  outcomes	
  

	
  

of	
  individuals	
  with	
  complex	
  medical	
  conditions	
  and	
  treatment	
  

	
  

regimes.	
  	
  	
  	
  

	
  

2.	
   The	
  Commonwealth	
  should	
  establish	
  minimum	
  standards	
  for	
  

	
  

OLS	
  investigations	
  of	
  unexpected	
  deaths.	
  These	
  standards	
  

	
  

should	
  include	
  a	
  review	
  of	
  case	
  manager	
  notes,	
  the	
  relevant	
  

	
  

sections	
  of	
  the	
  ISP,	
  and	
  the	
  health	
  care	
  monitoring	
  records	
  for	
  

	
  

the	
  months	
  preceding	
  an	
  unexpected	
  or	
  unanticipated	
  death.	
  

	
  

These	
  standards	
  should	
  also	
  include	
  a	
  review	
  of	
  previously	
  

cited	
  deficiencies	
  and	
  the	
  extent	
  to	
  which	
  CAPs	
  had	
  been	
  

effectively	
  implemented	
  during	
  the	
  preceding	
  year.	
  OLS	
  

investigations	
  should	
  determine	
  if	
  there	
  are	
  repeat	
  deficiencies	
  

found.	
  If	
  so,	
  then	
  the	
  investigation	
  should	
  be	
  expanded	
  to	
  

determine	
  whether	
  other	
  individuals	
  served	
  by	
  the	
  residential	
  

provider	
  are	
  exposed	
  to	
  similar	
  deficiencies.	
  Consequences	
  for	
  

a	
  provider’s	
  repeated	
  failure	
  to	
  comply	
  with	
  regulations	
  should	
  

increase	
  over	
  time.	
  	
  	
  

3.	
   The	
  Mortality	
  Review	
  Committee	
  should	
  establish	
  a	
  standard	
  

practice	
  of	
  developing	
  and	
  making	
  recommendations	
  based	
  on	
  

its	
  deliberations	
  and	
  findings	
  in	
  individual	
  service	
  delivery	
  

situations	
  and	
  at	
  systemic	
  levels.	
  An	
  established	
  minimum	
  

standard	
  should	
  include	
  communicating	
  to	
  hospitals	
  or	
  medical	
  

practitioners	
  its	
  concerns.	
  DBHDS	
  should	
  inform	
  the	
  hospital	
  

where	
  XX	
  died	
  of	
  the	
  MRC’s	
  reviews	
  of	
  three	
  bowel	
  obstruction	
  

cases	
  that	
  involved	
  an	
  apparent	
  lack	
  of	
  response.	
  

	
  

	
  

	
  

	
  

45	
  

Nov	
  14,	
   May	
  28,	
  2014	
   1.	
  	
  	
  DBHDS	
  should	
  establish	
  clear	
  expectations	
  of	
  residential	
  

	
  

2011	
  

providers	
  and	
  of	
  case	
  managers	
  to	
  ensure	
  timely	
  reassessment	
  

when	
  an	
  individual’s	
  experiences	
  a	
  potentially	
  negative	
  change	
  

in	
  health	
  status.	
  The	
  case	
  manager	
  should	
  ensure	
  that	
  the	
  

individual	
  support	
  plan	
  is	
  amended	
  when	
  the	
  reassessment	
  

indicates	
  that	
  revisions	
  in	
  the	
  plan	
  are	
  needed	
  to	
  address	
  and	
  

meet	
  an	
  individual’s	
  changed	
  needs.	
  The	
  amendment	
  should	
  

include	
  an	
  implementation	
  schedule	
  for	
  the	
  changes	
  needed	
  to	
  

address	
  the	
  individual’s	
  needs	
  	
  	
  

2.	
  	
  DBHDS	
  should	
  review	
  its	
  directives	
  regarding	
  mandated	
  

policies	
  and	
  consider	
  whether	
  additional	
  steps	
  need	
  to	
  be	
  taken	
  

to	
  ensure	
  that	
  all	
  community-­‐based	
  provider	
  agencies	
  actually	
  

develop	
  such	
  policies	
  and	
  train	
  and	
  monitor	
  staff	
  in	
  their	
  

expected	
  performance.	
  	
  	
  	
  

46	
  

Jul	
  24,	
   Feb	
  2,	
  2015	
   1.	
   An	
  autopsy	
  request	
  script	
  for	
  use	
  by	
  case	
  managers	
  and	
  

	
  

2013	
  

providers	
  describing	
  the	
  positive	
  benefits	
  of	
  an	
  autopsy	
  should	
  

be	
  developed	
  in	
  order	
  to	
  enhance	
  the	
  chances	
  that	
  next	
  of	
  kin	
  

will	
  consent	
  to	
  the	
  procedure.	
  Autopsy	
  results	
  would	
  have	
  been	
  

particularly	
  helpful	
  in	
  clarifying	
  XX’s	
  complex	
  conditions,	
  the	
  

actual	
  causes	
  of	
  death,	
  and	
  potentially	
  quality	
  improvements	
  in	
  

provider	
  practices.	
  	
  	
  	
  	
  

2.	
   DBHDS	
  should	
  thoroughly	
  audit	
  the	
  residential	
  provider’s	
  

medication	
  practices	
  to	
  ensure	
  that	
  systems	
  are	
  in	
  place	
  to	
  

ensure	
  that	
  doctors’	
  orders	
  are	
  implemented	
  in	
  a	
  timely	
  

manner	
  that	
  doctor’s	
  prescriptions	
  match	
  the	
  medications	
  

provided	
  by	
  the	
  pharmacist,	
  and	
  that	
  complete	
  medication	
  

administration	
  records	
  are	
  maintained.	
  

47	
  

Nov	
  24,	
   Feb	
  9,	
  2015	
   1.	
   DBHDS	
  should	
  clarify	
  that	
  it	
  requires	
  providers	
  to	
  report	
  all	
  

	
  

2014	
  

Stage	
  2-­‐4	
  decubitus	
  ulcers	
  through	
  the	
  CHRIS	
  system.	
  	
  	
  

	
  

172	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 173 of 179 PageID# 7128 	
  

2.	
   DBHDS	
  should	
  ensure	
  that	
  Licensing	
  Specialists	
  understand	
  

that	
  decubitus	
  ulcers	
  are	
  preventable,	
  that	
  their	
  presence	
  is	
  

always	
  an	
  indication	
  of	
  inadequate	
  physical	
  care,	
  and	
  that	
  

corrective	
  actions	
  should	
  always	
  be	
  required	
  when	
  decubitus	
  

ulcers	
  occur.	
  	
  	
  

3.	
   The	
  post	
  move	
  monitoring	
  protocols	
  should	
  be	
  revised	
  to	
  

ensure	
  that	
  needed	
  health	
  and	
  safety	
  protocols	
  exist	
  and	
  are	
  

effectively	
  and	
  consistently	
  implemented.	
  	
  	
  	
  

4.	
   DBHDS	
  should	
  consider	
  creating	
  a	
  statewide	
  decubitus	
  ulcer	
  

registry,	
  so	
  that	
  these	
  preventable	
  injuries	
  can	
  be	
  monitored	
  

and	
  eliminated.	
  	
  	
  	
  

5.	
   DBHDS	
  should	
  consider	
  modifying	
  its	
  Pressure	
  Ulcer	
  Alert	
  to	
  

add	
  a	
  cautionary	
  note	
  regarding	
  federal	
  non-­‐payment	
  for	
  Stage	
  

3-­‐4	
  pressure	
  ulcers.	
  	
  	
  

6.	
   OLS	
  should	
  consider	
  coordinating/sharing	
  investigation	
  

findings	
  with	
  ICF/IID	
  surveyors.	
  

48	
  

Nov	
  25,	
   Feb	
  2,	
  2015	
   None	
  

	
  

2013	
  

49	
  

May	
  5,	
   (Feb	
  5,	
  2015)	
   1.	
   OLS	
  should	
  coordinate/share	
  with	
  the	
  Department	
  of	
  Health	
  

	
  

2014	
  

survey	
  team	
  findings	
  on	
  ICF/IID	
  homes.	
  	
  	
  	
  

2.	
   An	
  autopsy	
  request	
  script	
  for	
  use	
  by	
  case	
  managers	
  and	
  

providers	
  describing	
  the	
  potential	
  positive	
  benefits	
  of	
  an	
  

autopsy	
  should	
  be	
  developed	
  in	
  order	
  to	
  enhance	
  the	
  chances	
  

that	
  next	
  of	
  kin	
  will	
  consent	
  to	
  the	
  procedure.	
  An	
  autopsy	
  

would	
  have	
  been	
  particularly	
  helpful	
  in	
  clarifying	
  XX’s	
  complex	
  

conditions	
  and	
  in	
  confirming	
  the	
  cause	
  of	
  death.	
  It	
  may	
  have	
  

also	
  provided	
  information	
  about	
  whether	
  health	
  protocols	
  had	
  

been	
  properly	
  implemented.	
  	
  	
  	
  

50	
  

Apr	
  10,	
   Feb	
  7,	
  2015	
  	
   1.	
   An	
  autopsy	
  request	
  script	
  for	
  use	
  by	
  case	
  managers	
  and	
  

	
  

2013	
   (Feb	
  11,	
  2015)	
   providers	
  describing	
  the	
  positive	
  benefits	
  of	
  an	
  autopsy	
  should	
  

be	
  developed	
  in	
  order	
  to	
  enhance	
  the	
  chances	
  that	
  next	
  of	
  kin	
  

will	
  consent	
  to	
  the	
  procedure.	
  An	
  autopsy	
  would	
  have	
  been	
  

particularly	
  helpful	
  in	
  clarifying	
  XX’s	
  complex	
  conditions	
  and	
  in	
  

establishing	
  a	
  cause	
  of	
  death.	
  It	
  may	
  have	
  also	
  provided	
  

information	
  about	
  whether	
  health	
  protocols	
  had	
  been	
  properly	
  

implemented.	
  	
  

2.	
   DBHDS	
  should	
  take	
  systemic	
  action	
  that	
  ensures	
  that	
  all	
  

residential	
  service	
  providers	
  and	
  case	
  managers	
  understand	
  

the	
  importance	
  to	
  nutritional	
  planning,	
  especially	
  for	
  

individuals	
  with	
  weight	
  management	
  issues.	
  For	
  non-­‐

ambulatory	
  individuals	
  who	
  are	
  unable	
  to	
  stand	
  on	
  a	
  typical	
  

scale,	
  mechanical	
  approaches	
  to	
  provide	
  frequent	
  body	
  weights	
  

should	
  be	
  readily	
  available.	
  	
  	
  	
  

51	
  

Sep	
  9,	
   Mar	
  6,	
  2015	
   1.	
   This	
  provider	
  should	
  be	
  required	
  to	
  obtain	
  the	
  services	
  of	
  an	
  

	
  

2013	
  

external	
  health	
  care	
  professional(s)	
  to	
  audit	
  its	
  group	
  home	
  

health	
  care	
  records	
  and	
  operating	
  procedures.	
  The	
  provider	
  

should	
  be	
  required	
  to	
  make	
  needed	
  changes	
  that	
  ensure	
  that	
  

operating	
  systems	
  related	
  to	
  health	
  and	
  safety	
  protocols	
  are	
  

implemented	
  consistently	
  and	
  effectively.	
  Staff	
  training	
  should	
  

be	
  reviewed	
  to	
  ensure	
  that	
  each	
  staff	
  demonstrates	
  competent	
  

implementation	
  of	
  all	
  health	
  and	
  safety	
  service	
  elements	
  of	
  the	
  

individuals	
  served.	
  	
  	
  

2.	
   Although	
  subsequent	
  CAPs	
  have	
  been	
  issued	
  to	
  the	
  CSB	
  case	
  

management	
  services	
  and	
  the	
  CSB	
  group	
  home,	
  these	
  providers	
  

should	
  receive	
  intense	
  oversight	
  (frequent	
  onsite	
  visits)	
  until	
  

all	
  issues	
  have	
  been	
  resolved.	
  

	
  

173	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 174 of 179 PageID# 7129 	
  

52	
  

Oct	
  

Jan	
  25,	
  2015	
  

	
  

20,2014	
  

53	
  

Aug	
  

May	
  9,	
  2015	
  

	
  

21,2013	
  

54	
  

Aug	
  15,	
   Jul	
  14,	
  2015	
  

	
  

2013	
  

55	
  

May	
  29,	
   Oct	
  9,	
  2015	
  

	
  

2013	
  

56	
  

Sep	
  18,	
   Jul	
  31,	
  2015	
  

160715	
   2013	
  

1. DBHDS	
  should	
  develop	
  a	
  protocol	
  for	
  OLS	
  investigations	
  when	
   the	
  person	
  is	
  living	
  in	
  their	
  own	
  or	
  a	
  family	
  home.	
  This	
   protocol	
  should	
  reflect	
  the	
  balance	
  between	
  family	
  privacy	
  and	
   the	
  potential	
  for	
  abuse	
  and	
  neglect.	
  	
  	
  	
  
1.	
   ISPs	
  should	
  clearly	
  define	
  the	
  supports	
  individuals	
  need,	
   including,	
  but	
  not	
  limited	
  to,	
  nursing	
  supports,	
  physical	
  and	
   nutritional	
  management	
  supports,	
  and	
  support	
  coordinators’	
   responsibilities.	
  Objectives	
  for	
  these	
  supports	
  should	
  be	
  stated	
   in	
  measurable	
  terms	
  so	
  that	
  a	
  determination	
  can	
  be	
  made	
   regarding	
  whether	
  the	
  objectives	
  were	
  or	
  were	
  not	
  achieved.	
  	
  	
  	
  
2.	
   DBHDS	
  should	
  develop	
  minimum	
  standards	
  for	
  the	
   investigation	
  review	
  process	
  and	
  for	
  investigation	
  reports.	
  	
  For	
   OLS	
  investigations	
  of	
  deaths,	
  minimum	
  standards	
  should	
   include	
  review	
  of	
  the	
  individual’s	
  ISP;	
  case	
   management/support	
  coordination	
  notes;	
  the	
  provider’s	
   documentation	
  of	
  healthcare	
  monitoring,	
  as	
   ordered/applicable;	
  the	
  death	
  certificate;	
  and	
  relevant	
  hospital	
   records.	
  	
  	
  
3.	
   DBHDS	
  should	
  ensure	
  that	
  Licensing	
  Specialists	
  initiate	
  and	
   complete	
  investigations	
  in	
  a	
  timely	
  manner	
  and	
  that	
  OLS	
  is	
   aware	
  of	
  and	
  takes	
  necessary	
  actions	
  when	
  Licensing	
   Specialists	
  fail	
  to	
  do	
  so.	
  	
  
4.	
   The	
  Mortality	
  Review	
  Committee	
  should	
  document	
  when	
  OLS	
   fails	
  to	
  complete	
  investigations	
  of	
  unexpected	
  and	
  unexplained	
   deaths	
  within	
  ninety	
  days.	
  	
  The	
  MRC	
  should	
  also	
  make	
   recommendations	
  for	
  needed	
  corrective	
  actions	
  by	
  OLS,	
  CSBs,	
   and	
  the	
  GH	
  provider.	
  	
  	
  	
  
5.	
   DBHDS	
  should	
  review	
  and	
  determine	
  whether	
  this	
  Group	
  Home	
   provider	
  is	
  properly	
  implementing	
  and	
  documenting	
  health	
   care	
  monitoring	
  protocols,	
  as	
  ordered	
  by	
  the	
  medical	
   practitioners	
  of	
  the	
  individuals	
  it	
  serves.	
  	
  	
  	
  
1.	
  	
   For	
  injuries	
  of	
  unknown	
  origin,	
  OLS	
  Specialists	
  should	
   document,	
  at	
  a	
  minimum,	
  review	
  of	
  the	
  provider’s	
  investigation	
   and	
  the	
  individual’s	
  ISP,	
  including	
  whether	
  services	
  related	
  to	
   the	
  individual’s	
  known	
  high	
  risk	
  factors	
  were	
  being	
  provided.	
  	
  	
  
2.	
  	
   ISPs	
  should	
  define	
  the	
  supports	
  individuals	
  need,	
  including	
   staffing	
  supports.	
  	
  	
  
3.	
  	
   The	
  Commonwealth	
  should	
  develop	
  and	
  implement	
  standards	
   for	
  provider	
  investigators	
  and	
  investigations.	
  	
  	
  
4.	
  	
   The	
  Commonwealth	
  should	
  take	
  steps	
  to	
  ensure	
  that	
  DBHDS	
   receives	
  information	
  from	
  DSS	
  regarding	
  findings	
  from	
  its	
   investigations	
  of	
  neglect	
  and	
  abuse	
  allegations.	
  
1.	
   Licensing	
  investigations	
  should	
  routinely	
  review	
  and	
  comment	
   on	
  the	
  well-­‐being	
  of	
  other	
  individuals	
  in	
  the	
  setting	
  when	
  a	
   provider	
  is	
  cited	
  with	
  substantive	
  violations	
  that	
  are	
  related	
  to	
   the	
  operations	
  of	
  the	
  group	
  home.	
  	
  	
  	
  
2.	
   The	
  Commonwealth	
  should	
  establish	
  that	
  Licensing	
   investigators	
  of	
  an	
  unexpected	
  death	
  should	
  include	
  the	
  review	
   of	
  the	
  individual’s	
  case	
  manager	
  notes	
  for	
  at	
  least	
  the	
  6-­‐month	
   period	
  preceding	
  the	
  death.	
  	
  
1. Licensing	
  should	
  cite	
  providers	
  for	
  providing	
  inadequate	
  physical	
   care	
  when	
  individuals	
  are	
  known	
  to	
  be	
  at	
  risk	
  for	
  skin	
  breakdowns	
   and	
  when	
  providers	
  do	
  not	
  implement	
  adequate	
  protocols	
  to	
   ensure	
  needed	
  physical	
  care.	
  When	
  a	
  repositioning	
  plan	
  has	
  been	
   recommended	
  and	
  not	
  implemented,	
  the	
  Licensing	
  Specialist	
  

	
  

174	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 175 of 179 PageID# 7130 	
  

should	
  also	
  cite	
  case	
  managers	
  for	
  inadequate	
  monitoring	
  to	
  ensure	
  

that	
  an	
  individual’s	
  known	
  risks	
  are	
  addressed.	
  

2. Licensing	
  should	
  always	
  cite	
  providers	
  who	
  submit	
  CHRIS	
  reports	
  

later	
  than	
  required	
  for	
  significant	
  injuries	
  such	
  as	
  a	
  decubitus	
  ulcer.

	
  

	
  

3. DBHDS	
  should	
  implement	
  a	
  plan	
  to	
  ensure	
  that	
  Licensing	
  staff	
  and	
  

case	
  managers	
  are	
  familiar	
  with	
  and	
  use	
  the	
  DBHDS	
  Safety	
  Alerts.	
  

The	
  DBHDS	
  Safety	
  Alert	
  recommendations	
  to	
  protect	
  the	
  health	
  and	
  

safety	
  of	
  the	
  individuals	
  with	
  known	
  risks	
  should	
  be	
  included	
  in	
  the	
  

individual’s	
  support	
  plan.	
  The	
  individual’s	
  case	
  manager	
  should	
  

monitor	
  to	
  ensure	
  the	
  effective	
  implementation	
  of	
  Safety	
  Alert	
  

recommendations	
  and	
  the	
  Licensing	
  Specialists	
  should	
  include	
  

these	
  in	
  their	
  recommendations	
  to	
  providers.	
  	
  

57	
  

May	
  19,	
   (Jun	
  7,	
  2015)	
   1. An	
  autopsy	
  request	
  script	
  for	
  use	
  by	
  case	
  managers	
  and	
  

	
  

2014	
  

providers	
  describing	
  the	
  positive	
  benefits	
  of	
  an	
  autopsy	
  

should	
  be	
  developed.	
  Having	
  a	
  script	
  will	
  enhance	
  the	
  chances	
  

that	
  next	
  of	
  kin	
  will	
  consent	
  to	
  the	
  procedure.	
  An	
  autopsy	
  

would	
  have	
  been	
  particularly	
  helpful	
  in	
  clarifying	
  FG’s	
  

complex	
  conditions	
  and	
  cause	
  of	
  death.	
  

58	
  

Dec	
  1,	
   (Jul	
  11,	
  2015)	
   1.	
   OLS	
  should	
  track	
  unexpected	
  deaths	
  centrally	
  and	
  should	
  

	
  

2014	
  

monitor	
  for	
  timely	
  and	
  complete	
  Licensing	
  Specialist	
  

investigation	
  reports,	
  Corrective	
  Action	
  Plans,	
  if	
  applicable,	
  and	
  

follow-­‐up	
  visits	
  that	
  verify	
  any	
  needed	
  corrective	
  actions	
  have	
  

been	
  effectively	
  implemented.	
  	
  	
  	
  

2.	
   The	
  Licensing	
  Office	
  Protocol	
  should	
  require	
  a	
  written	
  findings	
  

report	
  for	
  unexpected	
  deaths	
  even	
  when	
  no	
  violations	
  are	
  

noted.	
  In	
  addition,	
  the	
  required	
  components	
  of	
  an	
  Investigation	
  

Findings	
  Report	
  (documents	
  reviewed,	
  individuals	
  

interviewed,	
  findings,	
  recommendations,	
  etc.)	
  should	
  be	
  

specified	
  in	
  the	
  Office	
  Protocol.	
  	
  	
  

3.	
   DBHDS	
  Health	
  Safety	
  Alert	
  #15	
  should	
  be	
  modified	
  to	
  include,	
  

“a	
  normal	
  blood	
  pressure	
  range	
  should	
  be	
  established	
  for	
  each	
  

individual	
  with	
  hypertension,	
  so	
  that	
  staff	
  know	
  when	
  they	
  

should	
  contact	
  a	
  physician	
  or	
  EMS”.	
  Licensing	
  staff	
  and	
  case	
  

managers	
  should	
  be	
  familiar	
  with	
  Safety	
  Alerts,	
  in	
  order	
  to	
  

include	
  them	
  in	
  their	
  monitoring	
  of	
  services	
  provided	
  and	
  

recommendations	
  to	
  providers.	
  	
  	
  	
  

4.	
   When	
  an	
  individual,	
  who	
  has	
  transitioned	
  from	
  a	
  Training	
  

Center,	
  experiences	
  a	
  subsequent	
  change	
  in	
  placement	
  within	
  a	
  

year,	
  the	
  post-­‐move	
  monitoring	
  process	
  should	
  activate	
  a	
  

‘checkup’	
  process	
  to	
  ensure	
  transition	
  planning	
  documents	
  and	
  

processes	
  are	
  made	
  available	
  to	
  the	
  new	
  provider.	
  	
  	
  

5.	
   An	
  autopsy	
  request	
  script	
  for	
  use	
  by	
  case	
  managers	
  and	
  

providers	
  that	
  describes	
  the	
  positive	
  benefits	
  of	
  an	
  autopsy	
  

should	
  be	
  developed	
  to	
  enhance	
  the	
  chances	
  that	
  next	
  of	
  kin	
  

will	
  consent	
  to	
  the	
  procedure.	
  An	
  autopsy	
  would	
  have	
  been	
  

particularly	
  helpful	
  in	
  clarifying	
  XX’s	
  complex	
  conditions	
  and	
  

the	
  cause	
  of	
  death.	
  	
  	
  	
  

59	
  

Nov	
  19,	
   (Sep	
  3,	
  	
  2015)	
   1.	
   DBHDS	
  should	
  establish	
  a	
  Request	
  for	
  Review	
  process	
  that	
  is	
  

	
  

2014	
  

pre-­‐arranged	
  with	
  the	
  appropriate	
  licensing	
  jurisdiction	
  for	
  

skilled	
  nursing	
  facilities.	
  	
  	
  	
  

60	
  

Oct	
  28,	
   (Jul	
  27,	
  2015)	
   1.	
   The	
  OLS	
  should	
  revise	
  its	
  Office	
  Protocol	
  to	
  require	
  a	
  written	
  

	
  

2014	
  

findings	
  report	
  for	
  unexpected	
  deaths.	
  The	
  MRC	
  should	
  also	
  

require	
  written	
  findings	
  reported	
  for	
  unexpected	
  deaths.	
  	
  	
  

2.	
   OLS	
  should	
  establish	
  standards	
  that	
  require	
  an	
  assessment	
  of	
  

the	
  well	
  being	
  of	
  co-­‐residents	
  of	
  a	
  GH	
  when	
  there	
  is	
  a	
  CAP	
  that	
  

	
  

175	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 176 of 179 PageID# 7131 	
  

involves	
  a	
  violation	
  of	
  a	
  regulation	
  that	
  indicates	
  that	
  

inadequate	
  care	
  was	
  provided	
  by	
  the	
  group	
  home.	
  	
  

61	
  

Jun	
  17,	
   (Oct	
  11,	
  2015)	
   1.	
   The	
  Mortality	
  Review	
  Committee	
  and	
  OLS	
  should	
  establish	
  

	
  

2014	
  

processes	
  to	
  request	
  a	
  review	
  of	
  an	
  incident	
  by	
  the	
  

Commonwealth’s	
  appropriate	
  licensing	
  bodies	
  of	
  hospitals,	
  

nursing	
  homes	
  or	
  other	
  outside	
  health	
  care	
  facilities.	
  	
  The	
  

processes	
  should	
  also	
  include	
  a	
  mechanism	
  for	
  communicating	
  

concerns	
  to	
  health	
  care	
  facilities	
  or	
  medical	
  practitioners	
  and	
  

for	
  collaborating	
  to	
  problem	
  solve	
  issues.	
  These	
  processes	
  are	
  

needed	
  to	
  reduce	
  mortality	
  rates	
  and	
  to	
  enhance	
  the	
  quality	
  

services	
  for	
  people	
  with	
  ID/DD.	
  	
  

2.	
   The	
  OLS	
  minimum	
  standards	
  for	
  investigations	
  should	
  include	
  

a	
  review	
  of	
  medical	
  records	
  including	
  physician	
  case	
  notes	
  and	
  

nursing	
  notes	
  from	
  hospitalizations	
  and/or	
  nursing	
  home	
  stays	
  

for	
  the	
  months	
  preceding	
  an	
  unexpected	
  death.	
  	
  	
  	
  

62	
  

Oct	
  23,	
   (Dec	
  3,	
  2015)	
   1.	
   Licensing	
  should	
  establish	
  a	
  sampling	
  audit	
  protocol	
  for	
  

	
  

2013	
  

supervisors	
  of	
  Licensing	
  Specialists	
  investigation	
  reports	
  as	
  a	
  

quality	
  control	
  measure	
  to	
  ensure	
  that	
  the	
  investigation	
  

process	
  and	
  reports	
  meet	
  standards.	
  

63	
  

Jun	
  23,	
   (Sep	
  12,	
  2015)	
   1.	
   OLS	
  should	
  establish	
  a	
  process	
  that	
  tracks	
  the	
  status	
  of	
  its	
  

	
  

2015	
  

investigations.	
  This	
  process	
  should	
  identify	
  for	
  OLS	
  supervisors	
  

when	
  an	
  investigation	
  has	
  not	
  been	
  initiated,	
  has	
  not	
  been	
  

completed,	
  or	
  has	
  not	
  been	
  submitted,	
  as	
  expected.	
  It	
  should	
  

also	
  identify	
  when	
  a	
  needed	
  Corrective	
  Action	
  Plan	
  (CAP)	
  has	
  

not	
  been	
  developed	
  or	
  has	
  not	
  been	
  implemented,	
  as	
  expected.	
  

The	
  implementation	
  of	
  a	
  tracking	
  system	
  should	
  result	
  in	
  OLS	
  

learning	
  when	
  it	
  should	
  initiate	
  follow-­‐up	
  action	
  to	
  ensure	
  that	
  

the	
  performance	
  of	
  its	
  Licensing	
  Specialists’	
  adheres	
  to	
  OLS	
  

expectations	
  and	
  standards.	
  	
  	
  	
  

64	
  

Mar	
  10,	
   Dec	
  29,	
  2015	
   1. DBHDS	
  should	
  maintain	
  a	
  statewide	
  registry	
  of	
  all	
  individuals	
  

	
  

2015	
  

with	
  ID/DD	
  who	
  are	
  receiving	
  out	
  of	
  home	
  care	
  and	
  who	
  

experience	
  at	
  least	
  Stage	
  II	
  decubitus	
  ulcers	
  and	
  track	
  their	
  

progress.	
  If	
  XX’s	
  first	
  wound	
  occurred	
  on	
  a	
  statewide	
  registry	
  

with	
  no	
  prior	
  history,	
  Licensing	
  staff	
  might	
  have	
  been	
  

prompted	
  to	
  evaluate	
  whether	
  services	
  were	
  meeting	
  his	
  

needs	
  early	
  on	
  and,	
  possibly,	
  prevented	
  worsening	
  of	
  the	
  ulcer	
  

and	
  further	
  complications.	
  

65	
  

May	
  15,	
   Dec	
  25,	
  2015	
   1.	
   Post-­‐move	
  and	
  case	
  management	
  monitoring	
  should	
  include	
  a	
  

	
  

2013	
  

review	
  of	
  the	
  person’s	
  safety	
  risks	
  and	
  whether	
  safety	
  

protocols	
  are	
  understood	
  and	
  consistently	
  implemented.	
  If	
  

monitors	
  find	
  disagreements	
  and	
  inconsistent	
  use	
  of	
  health	
  and	
  

safety	
  protocols,	
  then	
  the	
  issue	
  should	
  be	
  documented,	
  the	
  

individual’s	
  service	
  planning	
  team	
  should	
  be	
  convened	
  to	
  

address	
  it,	
  and	
  the	
  resolution	
  should	
  be	
  documented.	
  	
  

2.	
   The	
  OLS	
  should	
  establish	
  standards	
  for	
  investigations	
  that	
  

include	
  a	
  review	
  of	
  the	
  person’s	
  risk	
  factors	
  and	
  safety	
  

protocols	
  to	
  determine	
  if	
  preventative	
  measures	
  were	
  being	
  

implemented	
  as	
  expected.	
  

66	
  

Mar	
  26,	
   (Dec	
  23,	
  2015)	
   1. Licensing	
  should	
  establish	
  a	
  sampling	
  audit	
  protocol	
  for	
  

	
  

2015	
  

supervisors	
  of	
  Licensing	
  Specialists’	
  investigation	
  reports,	
  in	
  

order	
  to	
  ensure	
  that	
  the	
  process	
  and	
  reports	
  meet	
  

expectations.	
  

	
  

	
  

67	
  

Mar	
  11,	
   (Dec	
  13,	
  2015)	
   1. OLS	
  should	
  establish	
  processes	
  that	
  require	
  OLS	
  investigators	
  

	
  

2015	
  

to	
  broaden	
  their	
  investigations	
  to	
  include:	
  •	
  whether	
  case	
  

	
  

176	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 177 of 179 PageID# 7132 	
  

managers	
  were	
  monitoring,	
  as	
  required,	
  for	
  whether	
  the	
  ISP	
  

was	
  being	
  properly	
  implemented	
  for	
  known	
  health	
  risks,	
  

especially	
  those	
  that	
  are	
  known	
  to	
  contribute	
  to	
  avoidable	
  

deaths,	
  and	
  •	
  other	
  individuals	
  in	
  the	
  home	
  who	
  may	
  be	
  

affected	
  when	
  OLS	
  discover	
  regulatory	
  violations	
  that	
  involve	
  

health	
  and	
  safety.	
  

68	
  

Jan	
  13,	
   (Dec	
  27,	
  2015)	
   1.	
   The	
  MRC	
  should	
  ensure	
  the	
  review	
  of	
  the	
  records	
  of	
  an	
  

	
  

2013	
  

individual’s	
  health	
  status	
  and	
  the	
  care	
  provided	
  for	
  the	
  weeks	
  

prior	
  to	
  an	
  individual’s	
  unexpected	
  death.	
  The	
  MRC	
  should	
  

establish	
  a	
  procedure	
  that	
  requires	
  obtaining	
  this	
  information	
  

to	
  identify	
  and	
  to	
  help	
  answer	
  health	
  care	
  questions	
  that	
  arise	
  

during	
  the	
  mortality	
  review	
  process.	
  	
  	
  

2.	
   The	
  DBHDS	
  should	
  revise	
  the	
  OLS	
  Investigation	
  protocol	
  to	
  

require	
  a	
  full	
  investigation	
  findings	
  report	
  in	
  the	
  case	
  of	
  an	
  

unexpected	
  death.	
  

	
  

	
  

	
   	
  

	
  

177	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 178 of 179 PageID# 7133 	
  
APPENDIX G.
LIST OF ACRONYMS

APS AR AT BSP CAP CEPP CHRIS CIL CIM CIT CM CMS CPS CRC CSB CSB ES CTH CVTC DARS DBHDS DD DMAS DOJ DS DSP DSS ECM EDCD EFAG EPSDT ES ESO FRC GH GSE HCBS HPR HR/OHR HSN ICF ID

Adult Protective Services Authorized Representative Assistive Technology Behavior Support Professional Corrective Action Plan Crisis Education and Prevention Plan Computerized Human Rights Information System Center for Independent Living Community Integration Manager Crisis Intervention Training Case Manager Center for Medicaid Services Child Protective Services Community Resource Consultant Community Services Board Community Services Board Emergency Services Crisis Therapeutic Home Central Virginia Training Center Department of Rehabilitation and Aging Services Department of Behavioral Health and Developmental Services Developmental Disabilities Department of Medical Assistance Services Department of Justice, United States Day Support Services Direct Support Professional Department of Social Services Enhanced Case Management Elderly or Disabled with Consumer Directed Services Employment First Advisory Group Early and Periodic Screening Diagnosis and Treatment Emergency Services (at the CSBs) Employment Service Organization Family Resource Consultant Group Home Group Supported Employment Home and Community Based Services Health Planning Region Office of Human Rights Health Services Network Intermediate Care Facility Intellectual Disabilities

	
  

178	
  

Case 3:12-cv-00059-JAG Document 225 Filed 12/23/16 Page 179 of 179 PageID# 7134 	
  

IFDDS IFSP IR ISE ISP LIHTC MRC NVTC ODS OHR OLS PASSR PCP POC PMM PST QI QIC QSR RAC REACH RNCC RST RQC SA SC SELN AG SEVTC SIS SW SRH START SVTC SWVTC TC WDAC

Individual and Family Developmental Disabilities Supports (“DD” waiver) Individual and Family Support Program Independent Reviewer Individual Supported Employment Individual Supports Plan Low Income Housing Tax Credit Mortality Review Committee Northern Virginia Training Center Office of Developmental Services Office of Human Rights Office of Licensure Services Preadmission Screening and Resident Review Primary Care Physician Plan of Care Post-Move Monitoring Personal Support Team Quality Improvement Quality Improvement Committee Quality Service Review Regional Advisory Council for REACH Regional Education, Assessment, Crisis Services, Habilitation RN Care Consultants Regional Support Team Regional Quality Council Settlement Agreement US v. VA 3:12 CV 059 Support Coordinator Supported Employment Leadership Network, Advisory Group Southeastern Virginia Training Center Supports Intensity Scale Sheltered Work Sponsored Residential Home Systemic Therapeutic Assessment Respite and Treatment Southside Virginia Training Center Southwestern Virginia Training Center Training Center Waiver Design Advisory Group
	
  

	
  

179	
  

 </s> Case 3:12-cv-00059-JAG Document 242 Filed 08/01/17 Page 1 of 3 PageID# 7208
REPORT OF THE INDEPENDENT REVIEWER ON COMPLIANCE WITH THE
SETTLEMENT AGREEMENT UNITED STATES v. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia
Civil Action No. 3:12 CV 059 September 30, 2016 – March 31, 2017
Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
August 1, 2017

Case 3:12-cv-00059-JAG Document 242 Filed 08/01/17 Page 2 of 3 PageID# 7209
This is the Independent Reviewer’s tenth Report on the status of compliance with the Settlement Agreement (Agreement) between the Parties to the Agreement: the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This Report provides an update on the Independent Reviewer’s monitoring activities during the tenth review period and plans for the eleventh period.
Due to the Independent Reviewer’s need to attend to his family health concerns, and after consulting with the Parties and the Court, the Independent Reviewer modified plans for monitoring and reporting to the Court for the tenth review period. The most substantive modification was to reschedule, until after the eleventh review period, the Independent Reviewer’s next determinations of whether the Commonwealth is in compliance with the provisions of the Agreement.
The Independent Reviewer maintained important aspects of his monitoring methods that he utilized during previous review periods. The Independent Reviewer prioritized and selected the specific provisions of the Agreement that would be studied by independent consultants. The Independent Reviewer again retained the same consultants who had previously studied the Commonwealth’s efforts and progress related to these selected provisions. He also planned the scope of each planned study, and the process for information gathering, data verification and analysis. As in previous periods, the consultant’s studies included review of whether, and to what extent, the Commonwealth had considered and implemented the recommendations that the Independent Reviewer included in his previous Reports to the Court.
The Independent Reviewer modified the span and the process of the planned studies. Each was designed as a yearlong study that would be conducted in two phases. The first phase of each study was conducted during the tenth period; the second phase will be completed during the eleventh review period. The consultants’ reports of the first phases of the studies included Findings only. After conducting the second phases, the consultants will report on the findings from both phases and the conclusions from their analysis regarding the status of the Commonwealth’s compliance. The consultants’ reports of these yearlong studies will be included in the Appendix of the Independent Reviewer’s next Report to the Court, on December 13, 2017.
For the tenth and eleventh review periods, the Independent Reviewer prioritized monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: Case Management; Integrated Day Activities and Supported Employment; Licensing and Investigations; Independent Housing; Quality/Provider Training; Crisis Services for Children and Adults; Regional Support Teams; Mortality Review, and an Individual Services Review study of individuals with complex medical and behavioral needs.

Case 3:12-cv-00059-JAG Document 242 Filed 08/01/17 Page 3 of 3 PageID# 7210
During the tenth review period, as with studies during previous periods, the Independent Reviewer requested that the Commonwealth provide all records documenting that it had properly implemented the related requirements of the Agreement. The consultants reviewed information provided by the Commonwealth and gathered information from other sources as well. These include the service records of individuals, case managers’ notes, on-site observations, focus groups, and interviews with individuals, families, caregivers, service providers, and state officials. If there was additional information that was not provided by the Commonwealth, it was not considered in the consultants’ reports.
The consultants’ “Findings” reports from the first phase studies have been provided to the Parties. To ensure its understanding of the reports, the Commonwealth also completed separate exit interviews with each of the consultants. The second phases of each of these studies will be completed during the eleventh review period. As noted earlier, the consultant’s reports from the tenth period include findings only and do not include determinations of compliance. The first and second phase reports will be included in the Appendices of the Independent Reviewer’s Report to the Court in December 2017.
The Commonwealth’s staff and all stakeholders continued during the tenth review period, to be accessible, forthright and responsive. The attorneys from the Department of Justice and the Commonwealth successfully negotiated outcomes and timelines for achieving the some provisions of the Agreement, and continue to negotiate others. Overall, the willingness of both Parties to openly and regularly discuss implementation issues, as well as the involvement and contributions of other stakeholders, has been important to making progress towards shared goals. The Independent Reviewer greatly appreciates the assistance from individuals at the center of this Agreement and their families, case managers andservice providers. He also is forever grateful for the support of the Parties and the Court, which allowed him to attend to his family’s needs during an extended and difficult period.
	
  

 </s> Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 1 of 19 PageID# 7275

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

COMMONWEALTH OF VIRGINIA, )

)

Defendant,

)

)

PEGGY WOOD, et al.,

)

)

Intervenors

)

Civil Action No. 3:12CV59-JAG

COMMONWEALTH’S RESPONSE IN OPPOSITION TO INTERVENORS’ MOTION FOR INJUNCTIVE RELIEF
Intervenors’ Motion purports to be an attempt to enforce the Settlement Agreement between the United States and the Commonwealth. But in substance it seeks to litigate new state law claims. Intervenors lack standing to enforce the Settlement Agreement and fail to raise a federal question invoking this Court’s jurisdiction. Thus, the Commonwealth respectfully asks this Court to deny Intervenors’ Motion for Injunctive Relief (“Intervenors’ Motion”). In support thereof, the Commonwealth states as follows: I. Background
In 2012, the United States and the Commonwealth of Virginia (“Commonwealth”) entered into a Settlement Agreement to resolve the Department of Justice’s investigation of whether the Commonwealth’s system of services for individuals with developmental disabilities complied with the Americans with Disabilities Act. The Settlement Agreement

1

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 2 of 19 PageID# 7276
established a ten-year plan for expansion of the availability of existing community services for individuals with developmental disability.
Shortly after the United States and the Commonwealth filed the Settlement Agreement with the Court for approval, thirteen residents of the Commonwealth’s stateoperated training centers petitioned for and were granted the right to intervene. (Dk. No. 65 at pp. 1-2.) The Memorandum Order names the following as Intervenors in this case: Peggy Wood, Barbara Susan Fallis, Tami Lassiter, Teresa Koury, Jonathon Speilberg, Marinda Lewis, Adam Samuel Bertman, Jason Kinzler, Kevin Patrick Moran, Neal Hampton, Sean Johnson, Kent Olsen, and Amber Robinson. (Dk. No. 65 at pp. 1-2.) The Intervenors were never certified as a class to include all residents of the training centers. The only Intervenor who was a resident of the nursing facility unit at Central Virginia Training Center (“CVTC”) is Peggy Wood.
In accordance with the Commonwealth’s plan to cease residential operations at four of its five training centers by the end of state fiscal year 2021, CVTC is scheduled to close in 2020. In recent years, CVTC has experienced significant difficulty maintaining staff, particularly in the nursing facility unit where Intervenor Peggy Wood resided. Despite efforts to retain existing employees and attract new hires, in calendar year 2015, fourteen registered nurses, thirteen licensed practical nurses, and fifty certified nurse assistants separated from the entire CVTC facility, including the nursing facility unit. In calendar year 2016, sixteen registered nurses, sixteen licensed practical nurses, and thirty-four certified nurse assistants separated from the entire CVTC, including the nursing facility unit. See Exhibit 1, Declaration of Jack Barber (hereinafter referred to as “Barber Decl.”) Upon careful consideration of the needs of the CVTC nursing facility unit residents and the risks faced by those residents in the context of a declining nursing staff, the decision was made to decertify the skilled nursing beds and close the nursing facility unit.
2

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 3 of 19 PageID# 7277
By letter dated August 26, 2016, the Department of Behavioral Health and Developmental Services (“DBHDS”) notified authorized representatives of individuals residing in the CVTC nursing facility unit, including Intervenor Peggy Wood and others mentioned in the Intervenors’ Motion, about its plans to decertify the nursing facility unit. See Barber Decl. ¶ 8. This notice was sent months prior to the scheduled decertification to provide time for affected families and CVTC to work together to identify alternate placements, develop appropriate transfer and discharge plans, and ensure safe and orderly transfers. See id.
Families of several individuals, including that of Intervenor Peggy Wood and others mentioned in the Intervenors’ Motion, were unwilling to work with DBHDS and CVTC to consider other options. A November 28, 2016 letter from DBHDS Acting Commissioner Barber to affected individuals acknowledged that although several options for alternate placements had been discussed with each of them, no decision had been communicated to DBHDS or CVTC. Acting Commissioner Barber advised them that if a decision was not communicated by a specified date, they would be transferred, in accordance with Virginia Code § 37.2-840, to a skilled nursing facility bed at Hiram Davis Medical Center, another facility operated by DBHDS that qualifies as a training center. Those who did not choose an alternative placement, including Intervenor Peggy Wood, were transferred to Hiram Davis Medical Center. See Barber Decl. ¶ 9.
Intervenor Peggy Wood, and other individuals mentioned in the Intervenors’ Motion, sought to challenge the transfer and filed an appeal with the Virginia Department of Medical Assistance Services (“DMAS”). (Appeal of Peggy Wood, Case # 990011908012, Department of Medical Assistance Services.) In her appeal, Wood asserted that Virginia Code § 37.2-837 and Chapter 639 of the 2014 Acts of Assembly barred her transfer to Hiram Davis Medical Center. After an administrative hearing, a DMAS hearing officer remanded
3

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 4 of 19 PageID# 7278
the case to DBHDS with instructions on December 30, 2016.1 (Appeal of Peggy Wood, Case # 990011908012, Department of Medical Assistance Services, Appeal Decision, December 30, 2016.) Wood neither sought judicial review of the hearing officer’s decision nor appealed DBHDS’s new decision after remand.
More than four months after being notified that the CVTC nursing facility unit would be decertified yet less than one month before their scheduled transfers to Hiram Davis Medical Center, Intervenor Peggy Wood and others mentioned in the Motion filed two motions for injunctive relief in state court to prevent their transfers. (Bryant, et al. v. Commonwealth, Case No. 17000005, Circuit Ct. for Amherst County.) The Commonwealth filed timely responses in opposition to the state court motions, but the motions were not scheduled for hearing. Therefore, those state court actions were never ruled upon by the court and are still pending.
Intervenors now ask this Court for various forms of injunctive relief to prevent further discharges and transfers from training centers. Intervenors also ask that other individuals, including individuals who are not named Intervenors, be returned from current placements to their previous training center placements. In effect, Intervenors ask this Court to direct they be placed in the training centers of their choice, even training centers that have already been closed.
For the reasons stated below, Intervenors’ Motion should be denied.
1 The hearing officer remanded the case to DBHDS with instructions to document a finalized written discharge plan, note in her medical record that Wood had been examined by her attending physician, orient Wood to her discharge from the nursing facility, and provide a written notice of discharge consistent with Medicaid regulations.
4

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 5 of 19 PageID# 7279
II. Argument A. Claims of Individuals Who Were Not Granted the Right to Intervene Are Not Properly Before this Court. It is unclear whose interests are being represented in the Intervenors’ Motion, which
appears to assert claims on behalf of all Intervenors, some Intervenors, and even other individuals who have not been recognized by this Court as Intervenors.
Throughout the Motion and Brief in Support, there are references to Peggy Wood, Taylor Bryant, Tyler Bryant, thirty-six unnamed residents transferred from the CVTC nursing facility unit to the intermediate care facility at CVTC or to the community, and six patients transferred from the CVTC nursing facility unit to Hiram Davis Medical Center. See, e.g., Intervenors’ Mot. ¶¶ 4, 16, 18, 20-22, 46-48, 50. Peggy Wood, however, is the only individual specifically mentioned in the Intervenors’ Motion who has been recognized by this Court in the Memorandum Order as an Intervenor in this case. Taylor Bryant and Tyler Bryant are not Intervenors.
Moreover, this Court has not certified all training center residents as a class for purposes of this case nor held that the Intervenors have associational standing to represent the interests of all training center residents. To the extent individuals are referenced either expressly or implicitly in the Intervenors’ Motion but have not been recognized by the Court as Intervenors, and to the extent Intervenors request relief for individuals other than the Intervenors, these claims are not properly before this Court. Peggy Wood is the only Intervenor who resided in the CVTC nursing facility unit and was transferred to Hiram Davis Medical Center when the unit closed.
5

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 6 of 19 PageID# 7280
B. Intervenors Lack Standing. A federal court’s power to hear cases is limited “to the resolution of ‘Cases’ or
‘Controversies.’”2 “An essential element of this bedrock principle is that any party who invokes the court’s authority must establish standing.”3 The well-worn standard for establishing standing4 is muddied in the case of an intervenor. An intervenor is allowed to “piggyback” upon the standing of the party on whose side the intervenor enters the case.5
While a case is actively being litigated, an intervenor, while considered a party, does not have to establish an independent basis for standing.6 Once a final judgment or consent decree is
entered, however, the opposing parties are no longer adversarial and the case no longer
presents an ongoing case or controversy. If the intervenor wishes to continue as a party in the
case, either to appeal the final judgment or enforce a consent decree at some later date, she
may no longer latch onto the original party’s standing. Instead, she must “independently satisf[y] the requirements of constitutional standing.”7 “The mere existence of a permanent
injunction or consent decree [] is insufficient to provide an ongoing case or controversy upon which an intervenor may ride ‘piggyback.’”8
The Court entered the Settlement Agreement in 2012, ending the case or controversy.
The Intervenors must therefore present an independent basis for standing. The Intervenors’
Motion contains no evidence or allegations that the Intervenors possess an independent basis
for standing. Their failure to plead the basis for standing to seek injunction alone warrants
2 Ansley v. Warren, 2017 U.S. App. Lexis 11511, at *5 (4th Cir. June 28, 2017). 3 Id. (citing Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011)). 4 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 5 Diamond v. Charles, 467 U.S. 54, 64 (1986) 6 Diamond, 467 U.S. at 68 (1986) (citing Mine Workers v. Eagle-Picher Mining & Smelting Co., 325 U.S. 335, 338 (1945)); see also Shaw v. Hunt, 154 F.3d 161, 165-66 (4th Cir. 1998). 7 See Doe v. Public Citizen, 749 F.3d 246, 262 (4th Cir. 2014) (citing Arizonans for Official English v. Ariz., 520 U.S. 43, 65 (1997)). 8 Dillard v. Chilton Cty. Com’n., 495 F.3d 1324, 1337 (11th Cir. 2011), cert. denied, Green v. Chilton Cty. Com’n., 554 U.S. 918 (2008) (quoting Diamond, 467 U.S. at 64).
6

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 7 of 19 PageID# 7281
dismissal of this action for lack of standing.9 The Intervenors, however, also lack standing in
fact.
“[A] well-settled line of authority from [the Supreme] Court establishes that a consent
decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it.”10 “In order to have enforcement
rights, third parties to a consent decree must demonstrate that they are intended beneficiaries, as opposed to merely incidental beneficiaries.”11 Settlement agreements involving the government are almost always viewed as treating third parties like incidental beneficiaries.12
To establish that she is an intended beneficiary, a third party must “demonstrate that the
contracting parties ‘intended [her] to be able to sue to protect the benefit’ the consent
judgment conferred on the third party; it is not sufficient to show simply that the parties had some intent to benefit the third party.”13
The Intervenors are not a party to the Settlement Agreement, which was entered into
between the United States and the Commonwealth of Virginia. (Dk. No. 112 at p. 1.) The
Intervenors intervened in this suit as defendants on the side of the Commonwealth, the very
same party against whom they now seek to enforce the Consent Decree. As non-parties to
the Settlement Agreement, they can only seek an injunction if the parties to the Settlement
9 Beck v. McDonald, 848 F.3d 262, 269 (4th Cir. 2017) (citing David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)). 10 Kalisz v. Am. Express Centurion Bank, No. 1:15-cv-01578, 2016 U.S. Dist. LEXIS 46246, *5 (E.D. Va. Apr. 5, 2016) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975)) (alterations in original). 11 Rehbein v. CitiMortgage, Inc., 937 F. Supp. 2d 753, 761 (E.D. Va. 2013) (quoting SEC v. Prudential Sec., 136 F.3d 153 (D.C. Cir. 1998); but see Aiken v. City of Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) (finding that even intended third-party beneficiaries of a consent decree lack standing to enforce its terms). 12 Id. (quoting Prudential Sec., 136 F.3d at 158) (“third parties [to consent decrees involving the government] are presumed to be incidental beneficiaries,” not intended beneficiaries) (alteration in citation in original). 13 Id. (quoting Prudential Sec., 136 F.3d at 159) (alteration in original).
7

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 8 of 19 PageID# 7282
Agreement considered the Intervenors as intended beneficiaries. The Intervenors are not intended beneficiaries for four reasons.
First, the parties expressly agreed that “[n]o person or entity is intended to be a thirdparty beneficiary of the provisions of this settlement agreement . . . .” (Dk. No. 112, Ex. A at § I, ¶ G.) When paired against the general principle that third parties are not intended beneficiaries of government contracts, the plain language of the contract is strong evidence that the Intervenors are not intended beneficiaries, and, consequently, do not have an independent basis for standing.
Second, the United States is the only person or entity given the power to file suit to enforce the agreement–individuals are not mentioned in any way. (Dk. No. 112, Ex. A at § VII.) The principle of expressio unius est exclusion alterius therefore counsels this Court to find that under the terms of the Settlement Agreement, the Intervenors are not eligible to bring an enforcement action.14
Finally, the nature of the suit and the Settlement Agreement are strong evidence that the Intervenors are not intended beneficiaries. Specifically, the United States filed suit, alleging that Virginia was violating the law as a general matter in the operation of its training centers. The complaint did not contain specific allegations relating to individual patients, but rather alleged violations in Virginia policies and procedures. The eventual settlement also did not mention individual patients, focusing instead on the general policies and procedures that the Commonwealth would employ to manage its training centers and expand community services.
14 See Rehbein, 937 F.Supp.2d at 762 (“The Consent Judgment specifies that any enforcement action under this Consent Judgment may be brought by any Party to this Consent Judgment or the Monitoring Committee. Third party borrowers are conspicuously absent from this list. Under the principle of expressio unius est exclusio alterius, it follows that, pursuant to the Consent Judgment’s own terms, individual borrowers are not eligible to bring enforcement actions.”) (internal quotations and alterations omitted).
8

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 9 of 19 PageID# 7283
Lastly, the Court itself implicitly found that the Intervenors did not have an independent ability to challenge the Settlement Agreement. Peggy Wood, along with several other Intervenors who may be part of the present Motion, opposed the Settlement Agreement because she feared that it would result in her being transferred from her training center. (Dk. No. 112 at p. 8.) That is the exact claim that the Intervenors make in their injunction motion. In its Order Approving Consent Decree (“Order”), however, this Court found that should the Intervenors’ fears come to pass, their remedy was not through the Settlement Agreement but rather in state law. (Dk. No. 112 at p. 9.) The Court itself therefore implicitly found that the Intervenors are not intended beneficiaries of the Settlement Agreement.
Because the Intervenors are not parties to the Settlement Agreement, they must establish an independent basis for standing. They are not intended beneficiaries of the Settlement Agreement, and therefore do not have an independent basis for standing. The Court therefore lacks jurisdiction to hear their claim.
C. The Court Does Not Have Jurisdiction Over the Subject of Intervenors’ Motion. The Court lacks subject-matter jurisdiction over the Intervenors’ Motion. The
Intervenors have failed to allege any basis for federal question jurisdiction.15 The sole basis for the requested relief is a violation of state statutes and regulations, which plainly do not “arise under federal law.” If the Intervenors attempt to base jurisdiction on the Court’s ongoing jurisdiction to enforce the Settlement Agreement, the Court should reject this attempt for two reasons.
First, outside of the fact that the Intervenors filed suit in the instant closed case, the Motion does not claim that the Commonwealth is non-compliant with any term of the
15 See Comm. of Va. v. SupportKids Svs., Inc., No. 3:10-cv-73, 2010 U.S. Dist. LEXIS 30726 at *6 (E.D. Va. Mar. 29, 2010) (citing Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 487 (1894)) (“[U]nder well-settled law a state is not considered a ‘citizen’ for purposes of 28 U.S.C. § 1332 and therefore there is no diversity of citizenship as long as it is considered a real party in interest in the controversy.”).
9

Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 10 of 19 PageID# 7284
Settlement Agreement. It does not ask that the Commonwealth be held in contempt or that the Settlement Agreement be modified in any way. The lack of any allegations tying the Motion to the Settlement Agreement in any way falls far short of meeting the Intervenors’ burden of establishing subject-matter jurisdiction.16
Second, while Intervenors bring their Motion under the purview of the Court’s jurisdiction to enforce the Settlement Agreement, it is not enforcement they seek. In fact, rather than seeking enforcement of the Settlement Agreement, the Motion sets forth new allegations against the Commonwealth that are not related to the Commonwealth’s compliance with the Americans with Disabilities Act, the sole federal law upon which the Complaint giving rise to the Settlement Agreement is based. These new allegations are grounded solely in state law and make no reference to federal law. While the Court retains jurisdiction to enforce the Settlement Agreement, the United States is the only party that has the authority to challenge the Commonwealth’s compliance with the Settlement Agreement. Non-parties to the Settlement Agreement, such as the Intervenors, cannot enforce it. Further, this Court does not have jurisdiction under the Settlement Agreement to consider purely state law claims between the Commonwealth and her citizens that do not implicate the Commonwealth’s compliance with the Settlement Agreement.
Even if the Court finds that the Intervenors do have authority under the Settlement Agreement to challenge the Commonwealth’s compliance, the Court does not have jurisdiction over the Intervenors’ Motion. The Court’s jurisdiction over state-law claims in civil actions under 28 U.S.C. § 1367(a) extends only to those claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or
16 “The burden of establishing subject matter jurisdiction is on [] the party asserting jurisdiction.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).
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controversy under Article III of the United States Constitution.”17 The claims asserted in
Intervenors’ Motion are not related to the Commonwealth’s compliance with the Americans
with Disabilities Act. Instead, they allege and ask this Court to find that the Commonwealth
has violated Virginia Code § 37.2-837 and Chapter 639 of the 2014 Acts of the Assembly.
They also claim that Hiram Davis Medical Center does not qualify as a training center, as that term is defined in Virginia Code § 37.2-100.18 These claims do not form part of the same
case or controversy on which this Court currently exercises jurisdiction in this case.
D. Intervenors Have Failed to Meet the Standard for Injunctive Relief.
Even assuming, arguendo, that Intervenors have standing and this Court has
jurisdiction, Intervenors have not made a clear showing that they are entitled to injunctive
relief. Injunctive relief is an extraordinary remedy and is not appropriate in this case, which
centers not on the issues raised by Intervenors in their Motion for Injunctive Relief, but on
expansion of the availability of existing community services for individuals with
developmental disability.
The Fourth Circuit has stated that, “[a] preliminary injunction is an extraordinary
remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial.”19 To obtain such relief, a plaintiff must prove four
elements: “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in
17 28 U.S.C. § 1367(a). 18 In fact, Intervenor Peggy Wood, and other individuals mentioned in the Intervenors’ Motion but who are not named Intervenors, filed for an injunction in Amherst County Circuit Court raising the same issues that are alleged in this Motion. Technically, even though the state court action has not been fully prosecuted, it would provide this Court a basis for abstention. Additionally, Intervenor Peggy Wood, and other individuals mentioned in the Intervenors’ Motion but who are not named Intervenors, also filed state administrative appeals with the Virginia Department of Medical Assistance Services, raising the same issues that are alleged in this Motion. The administrative hearing officer issued final decisions, and these individuals did not seek further judicial review of those decisions. 19 Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
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his favor, and (4) that an injunction is in the public interest.”20 Furthermore, “[a] preliminary injunction is . . . never awarded as of right.”21 Rather, “injunctive relief . . . may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”22 “In exercising
their sound discretion, courts . . . should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”23 “Federal injunctive relief is an extreme remedy,”24 and, ultimately, it should be “applied only in the limited circumstances which clearly demand it.”25 In light of these principles, Intervenors cannot clearly prove the four
elements necessary to obtain the extraordinary remedy of a preliminary injunction.
1. Intervenors are unlikely to succeed on the merits. Intervenors cannot demonstrate that the transfers complained of were in violation of
state law or the Settlement Agreement.
a. Intervenors’ claims based on Virginia Code § 37.2-837 do not provide grounds for relief.
Intervenors allege that, “The forced transfer of individuals out of the NF at CVTC to
Hiram Davis, which is not a training center, violates [Virginia Code § 37.2-837(A)(3)].
Intervenor’s Mot. ¶ 88. Intervenors are incorrect. Hiram Davis Medical Center meets the definition of a Training Center in Virginia Code § 37.2-10026 and provides the same nursing
facility level of care as the nursing facility unit at CVTC. Therefore, as discussed below,
discharges and transfers of Intervenors were consistent with state law.
20 Id. (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). 21 Winter, 555 U.S. at 24. 22 Id. at 22. 23 Id. at 24. 24 Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir. 1995). 25 Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991) (citations omitted). 26 “‘Training center’ means a facility operated by the Department that provides training, habilitation, or other individually focused supports to persons with intellectual disability.” Virginia Code § 37.2-100.
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Virginia Code § 37.2-837(A)(3) says: …[T]he director of a state hospital or training center may discharge, after the preparation of a discharge plan: … Any individual in a training center who chooses to be discharged or, if the individual lacks the mental capacity to choose, whose legally authorized representative chooses for him to be discharged. Pursuant to regulations of the Centers for Medicare & Medicaid Services and the Department of Medical Assistance Services, no individual at a training center who is enrolled in Medicaid shall be discharged if the individual or his legally authorized representative on his behalf chooses to continue receiving services in a training center. Some Intervenors remain in their original training centers and have not been discharged or transferred. Some Intervenors chose to be transferred to other training centers or to be discharged to community placements. None of the Intervenors were discharged from a training center to a community placement without their consent in accordance with Virginia Code § 37.2-837(A)(3). Peggy Wood is the only Intervenor who resided in the CVTC nursing facility unit. Because she had not selected another placement at the time it was decertified, she was transferred to Hiram Davis Medical Center. As noted above, Hiram Davis Medical Center meets the definition of a training center. Pursuant to Virginia Code § 37.2-840(A), “The Commissioner [of DBHDS] may order the transfer of an individual receiving services…from one training center to another.” This provision does not require the consent of the individual or his authorized representative to transfer. Thus, Peggy Wood’s transfer to Hiram Davis Medical Center was consistent with Virginia Code § 37.2-837 and clearly within the Commissioner’s authority under Virginia Code § 37.2-840. In addition, Intervenors have not alleged any violation of the Settlement Agreement; regardless, it does not provide a basis for relief, either. Section IV.B.10 of the Settlement Agreement states, in part: Nothing in this Agreement shall prevent the Commonwealth from closing its Trainings Centers or transferring residents from one Training Center to another….
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Thus, the transfer of residents from one training center to another, including from CVTC to
Hiram Davis Medical Center, does not violate the Settlement Agreement.
For these reasons, Intervenors are unlikely to succeed on their claims based upon
Virginia Code § 37.2-837.
b. Intervenors’ claims based on Chapter 639 of the 2014 Acts of Assembly do not provide grounds for relief.
Intervenors allege that the Commonwealth failed to provide certifications required by
Chapter 639 of the 2014 Acts of the Assembly. Intervenor’s Mot. ¶ 98.
Chapter 639 of the 2014 Acts of the Assembly states:
§ 1. That the Department of Behavioral Health and Developmental Services shall, before transferring any training center resident to another training center or to community-based care, provide written certification to such training center resident or his legally authorized representative that (i) the receiving training center or community-based option provides a quality of care that is comparable to that provided in the resident’s current training center regarding medical, health, developmental, and behavioral care and safety and (ii) all permissible placement options available under the Commonwealth's August 23, 2012, settlement agreement with the U.S. Department of Justice, including the option to remain in a training center, have been disclosed to the training center resident or his legally authorized representative. A training center resident or his legally authorized representative may waive the certification requirement imposed in clause (i).27
Contrary to Intervenors’ assertions, after this requirement went into effect, the
Commonwealth provided the required certifications to all Intervenors who were discharged
or transferred.28 See Exhibit 2 for the certification provided for Peggy Wood.29 Any
assertion that any Intervenors still residing in a training center will not receive the required
certifications before future transfers is mere speculation. In addition, even had the
27 2014 Va. Acts ch. 639. 28 Intervenors’ allegations include the assertion that certifications were defective and inadequate because they omitted the name of the receiving facility. Intervenor’s Mot. ¶ 98. These issues are not germane to the Settlement Agreement and serve to illustrate that this case is not the proper setting for raising these issues. 29 The Commonwealth has provided only the certification for Peggy Wood because she is the only Intervenor who was transferred from the CVTC nursing facility unit to Hiram Davis Medical Center, which is the primary focus of the Intervenors’ claims. The Commonwealth will gladly provide certifications of other Intervenors if the Court would like them.
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Commonwealth violated this provision of state law, it would not give rise to a cause of action.
2. Intervenors fail to show they are likely to suffer irreparable harm. Intervenors’ allegations that they are likely to suffer irreparable harm at Hiram Davis Medical Center are mere speculation. Intervenors argue that Hiram Davis Medical Center provides a lesser level of care than the nursing facility unit at CVTC. This is simply not the case. Hiram Davis Medical Center is certified by the Centers for Medicare and Medicaid Services as both a nursing facility and ICF/IID, which are the same certifications that were held by CVTC. Any inspection deficiencies that may have been cited in the past have been corrected. Peggy Wood receives the same level of care at Hiram Davis Medical Center as she received at CVTC. Most importantly, Hiram Davis Medical Center, unlike CVTC, currently has the staffing necessary to meet the needs of Intervenors. Commissioner Barber proactively ordered Intervenor Wood’s transfer from the CVTC nursing facility unit to Hiram Davis Medical Center precisely to avoid the harm that could result if she remained there without adequate staff to meet her needs. Further, Intervenors merely allege but fail to show that Intervenors who were transferred to other training centers or to community settings are likely to suffer irreparable harm if they remain in those training centers or community settings. 3. The Balance of Equities tips in favor of the Commonwealth. The balance of equities inquiry consists of a balance of the hardships imposed on the defendant if the injunction is granted versus the hardships imposed on the plaintiff if the injunction is denied. Intervenors merely allege and imply that Intervenors’ current training center and community placements are inferior to their previous training center placements. Intervenors currently reside in various community homes and training centers, including Southwestern
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Virginia Training Center, Southeastern Virginia Training Center, and Central Virginia Training Center but they have failed to make a showing that these settings are inferior.
If the Commonwealth was directed, as requested by Intervenors, to return Intervenors to their previous training center placements, the Commonwealth would be in the untenable position of having to return Peggy Wood to a CVTC nursing facility unit that has been decertified and other Intervenors to Southside Virginia Training Center or Northern Virginia Training Center, which closed in 2014 and 2016, respectively. In addition, the issuance of an injunction will not solve the staffing problems that had been faced by the CVTC nursing facility unit.
Where the harm alleged by Intervenors is speculative, the balance of the equities has not been clearly shown to tip in their favor.
4. An injunction is not in the public interest. Intervenors have failed to even allege, let alone clearly show, that an injunction is in the public interest. The only interest they have raised is their own personal interest in residing in the specific training center of their choosing. The Commonwealth has already determined that it is in the public’s interest to close four training centers and redirect those resources to provide services in the community. Intervenors have failed to make a clear showing that they are entitled to injunctive relief. III. Conclusion Based on the arguments above, the Commonwealth respectfully requests this Court to deny the Intervenors’ Motion for Injunctive Relief in its entirety.
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The Honorable Mark R. Herring Attorney General of Virginia
Cynthia V. Bailey Deputy Attorney General
Allyson K. Tysinger Virginia State Bar No. 41982 Senior Assistant Attorney General/Chief
Braden J. Curtis Virginia State Bar No. 78413 Assistant Attorney General 202 North 9th Street Richmond, Virginia 23219 (804) 786-0144 Fax (804) 371-8718 bcurtis@oag.state.va.us

Respectfully submitted, COMMONWEALTH OF VIRGINIA
By: _________/s/_______________ Braden J. Curtis, Counsel Attorney for the Defendant Virginia Office of the Attorney General 202 North 9th Street Richmond, Virginia 23219 (804) 786-0144 (804) 371-8718 (Fax) bcurtis@oag.state.va.us

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Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 18 of 19 PageID# 7292
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of August, 2017, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to the following:
Thomas B. York, Esq. Attorney for the Intervenors York Law, PA
10320 X Way Road Laurinburg, North Carolina 28352
70 North Yale Street York, Pennsylvania 17403 tyork@yorklegalgroup.com
Gerard Schafer Schafer Law Group 5265 Providence Road Suite 303 Virginia Beach, Virginia 23464 rschafer@schaferlawgroup.com
Benjamin Tayloe Jessica Polansky Kyle Smiddie Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave., NW Washington, D.C. 20530 benjamin.tayloe@usdoj.gov jessica.polansky@usdoj.gov kyle.smiddie@usdoj.gov
Robert P. McIntosh Assistant United States Attorney 600 East Main Street, Suite 180 Richmond, Virginia 23219 Robert.McIntosh@usdoj.gov
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Case 3:12-cv-00059-JAG Document 249 Filed 08/18/17 Page 19 of 19 PageID# 7293
______/s/__________________ Braden J. Curtis Virginia State Bar #78413 Attorney for Defendant Virginia Office of the Attorney General 202 North 9th Street Richmond, Virginia 23219 (804) 786-0144 (804) 371-8718 (Fax) bcurtis@oag.state.va.us
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 </s> Case 3:12-cv-00059-JAG Document 267 Filed 12/13/17 Page 1 of 80 PageID# 7617
REPORT OF THE INDEPENDENT REVIEWER ON COMPLIANCE WITH THE
SETTLEMENT AGREEMENT UNITED STATES v. COMMONWEALTH OF VIRGINIA
United States District Court for Eastern District of Virginia
Civil Action No. 3:12 CV 059 October 1, 2016 – September 30, 2017
Respectfully Submitted By
Donald J. Fletcher Independent Reviewer
December 13, 2017

Case 3:12-cv-00059-JAG Document 267 Filed 12/13/17 Page 2 of 80 PageID# 7618

TABLE OF CONTENTS

I. EXECUTIVE SUMMARY…………………………….……………………………… 3
II. SUMMARY OF COMPLIANCE: ……………………………..…………………….. 7
Section III. Serving Individuals with IDD in the most integrated settings................ 7 Section IV. Discharge Planning and Transition from Training Centers…............ 18 Section V. Quality and Risk Management………...……………………..…….... 25 Section VI. Independent Reviewer……………………………….....…..………... 32 Section IX. Implementation………………………………………………….….... 32
III. DISCUSSION OF COMPLIANCE FINDINGS………………………………… 33
A. Methodology……………………………………………………………….. 33 B. Compliance Findings……………………………………………………..... 35

1. Providing Waiver Slots ………………………………………..…… 35 2. Serving Individuals with Complex Needs ………………….……..….... 39 3. Behavioral Supports ..………………………………...….………..…40 4. Case Management .……………………………………..…..….…... 42 5. Crisis Services……………………..…………………….…..……... 44 6. Supported Employment ………………………………….……..….... 49 7. Independent Housing…………………………………….…...….…. 54 8. Regional Support Team………………………………….………..... 56 9. Transportation…...……………………………………..………..... 57 10. Quality and Risk Management………….……………….…...…..…. 59 11. Licensing and Human Rights……….……………………...…….… 66 12. Mortality Review …….……………………………..…….….….... 69 13. Provider Training ..……………………………..…………..…...... 74
IV. CONCLUSION……………………………………………………………………… 77

V RECOMMENDATIONS…………………………………………………………… 78

VI. APPENDICES……………………………………………………....………………. 81

A. Individual Services Review……..………………………………………...… 82

B. Behavioral Supports…………………………………………………….…... 88

C. Case Management …..………………………………………………….…. 101

D. Crisis Services………………………….……………………………............114

E. Integrated Day Activities and Supported Employment ..……………….….162

F. Independent Housing ……………………………………………………....197

G. Transportation …………………………………………………….............. 200

H. Regional Support Teams ………………………………………….............. 203

I.

Quality and Risk Management ……………………….…..……………..… 212

J.

Licensing and Human Rights …………………………………………...... 248

K. Mortality Review ……………………………………………………….…. 260

L. Provider Training ……………………………………………………….…. 278

M. List of Acronyms …………….…………………………….…..….………... 296

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I. EXECUTIVE SUMMARY
This is the Independent Reviewer’s eleventh Report on the status of compliance with the Settlement Agreement (Agreement) between the Parties to the Agreement: the Commonwealth of Virginia (the Commonwealth) and the United States, represented by the Department of Justice (DOJ). This Report documents and discusses the Commonwealth’s efforts and the status of its progress and compliance during the review periods from October 1, 2016 to September 30, 2017.
The Independent Reviewer reported previously that the Commonwealth’s various regulations and its Home and Community Based Services (HCBS) Waiver programs had impeded its compliance with provisions of the Agreement. On September 1, 2016, the federal Center for Medicare and Medicaid Services (CMS) approved the Commonwealth’s redesigned HCBS Waiver programs for individuals with intellectual and developmental disabilities (IDD). The Commonwealth’s goal for its redesign is to “provide for a flexible array of community-based options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” The Commonwealth has not yet approved revisions to its DBHDS Licensing Rules and Regulations.
The Commonwealth redesigned its HCBS Waivers with new and/or revised eligibility criteria, service definitions and expectations, payment rates, service limits, and cost caps. Once approved, implementation has required extensive statewide systemic changes, training and communication, all of which must continue to achieve the goals of the redesign. In the coming year, the Commonwealth plans to add to its array of services that support integrated day opportunities. It also will prepare applications to renew two Waivers. These renewal applications will provide the Commonwealth an opportunity to update its quality improvement plan to be current with its developing quality management system. Putting the redesigned system in place will require an ongoing and multi-year effort. As of June 30, 2017, however, substantial changes were clearly evident. DBHDS had issued 183 licenses to providers to increase opportunities for individuals to participate in community engagement services and it had approved 1,708 authorizations for individuals to receive either Community Engagement or Community Coaching. This trend continued with 1950 such authorizations as of September 30, 2017. This substantial increase in the number of individuals participating in new integrated community-based day services is evidence of both the considerable interest among individuals and families and the demonstrated ability of providers to respond to their interests.
The impact of the redesigned Waivers will occur more slowly in several areas, including on the available array of integrated residential service options. Due to the Commonwealth’s housing development initiatives in recent years, however, changes are emerging in the residential options now available. A higher percentage of the individuals who transitioned from Training Centers are moving to smaller homes of four or fewer individuals. The DBHDS provider development efforts will continue to result in more smaller group homes. The Commonwealth has created 553 additional independent housing options. The 2015 Low Income Housing Tax Credit set-aside units have been constructed and are becoming available. In addition, the sponsor homes reviewed have provided strong supports for individuals, including those with complex needs.
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The DBHDS Licensing Regulations have long been, and continue to be, an obstacle to substantial progress toward compliance with many provisions of the Settlement Agreement. The Commonwealth understands the problem; it has been drafting revisions to the OLS Rules and Regulations for several years, while it has been exploring other mechanisms. The Commonwealth has revised some of its regulations to align, where possible, its monitoring and investigation systems with the requirements of the Agreement. Its licensing regulations continue, however, to restrict the Commonwealth from requiring submission of information or attendance at trainings related to developing the required quality and risk management processes. Its most recent draft revisions to the Licensing Regulations, dated July 17, 2017, show an improved alignment with some provisions of the Agreement, including a clarification of expectations around root cause analysis, risk triggers and thresholds, risk management programs and quality improvement programs. This most recent draft, however, does not include criteria that align with the Agreement’s requirements for enhanced case management, case manager/support coordinator responsibilities at face-to-face meetings, and an assessment of the “adequacy of individualized supports and services.” It is the Independent Reviewer’s considered opinion that, without revisions to its Licensing Rules and Regulations, the Commonwealth will continue to be unable to make substantial progress toward implementing the required quality and risk management system. For example, the Commonwealth has not yet informed the CSBs and other providers of its requirement that they implement risk management processes, or its expectations regarding their roles and responsibilities to contribute to a system to “adequately address harm and risks of harms.”
Although the Commonwealth cannot make substantial progress toward compliance without making needed revisions to its licensing regulations, the DBHDS, Division of Quality Management and Development (DQMD) staff are doing important, necessary and appropriate groundwork that will be beneficial over the long-term. During the tenth and eleventh review periods, the DQMD staff:
• Expanded and improved its ability to collect and analyze consistent, reliable data; • Defined relevant measures for each “domain”; • Outlined a new course on how to identify and address risk; • Improved the mortality review data collection, analysis, and the quality of reviews; and • Implemented a thoughtful approach with subject matter experts to evaluate data elements for
accuracy, completeness and usefulness.
It is important to note that effective implementation of the Quality and Risk Management provisions of the Agreement are crucial to fulfilling the goals of addressing harm and risk of harm and improving service quality. The Commonwealth is in the midst of making substantial changes in complex service systems. During such periods, effective quality improvement and risk management programs are essential to learn what is, and is not, working as expected as well as what revisions are needed. Risk management programs ensure that harm and risks of harm are adequately addressed. Changes in new programs and settings, like all transitions, involve new opportunities and, frequently, new risks. It is the considered opinion of the Independent Reviewer that the Commonwealth will not be able to accomplish major advances toward achieving compliance without changes to the DBHDS Licensing Rules and Regulations.
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The data reported by DBHDS and the findings from studies by independent consultants have shown that the overall performance of the Community Service Boards has not made substantial progress toward fulfilling provisions of the Agreement. By adding terms to its Performance Contract with the CSBs, the Commonwealth assigned them responsibility for fulfilling many of the Agreement’s requirements, including case management, crisis services, and some of the Quality and Risk Management provisions. During the past three years, the CSBs have not made sufficient progress in offering a choice of service providers, including of case manager annually; developing and discussing employment services and goals; submitting timely referrals to the Regional Support Teams; assessing the individual’s previously “unidentified risks … or other changes in status” or “assessing whether the individual’s support plan is being implemented appropriately.” For the Quality and Risk Management provisions, overall, the data submitted by the CSBs have not been reliable. The CSBs have not implemented and reported data through risk management systems, as required. Data reporting that the overall performance of CSBs is below standard may result from a subset of CSBs whose performance, as currently measured and reported, is consistently below standards. The Commonwealth’s Performance Contracts with CSBs do not appear to have improved CSB performance as reported.
The Commonwealth utilizes the CSBs’ twenty-four hours per day Emergency Services, including CSB hot lines. The CSBs, through various collaboration models, operate the Commonwealth’s crisis services and the REACH programs for children and adults. During the period of the REACH programs being developed and becoming more fully operational, there has been a significant increase in the number of children who are assessed at hospitals and admitted to state psychiatric facilities. The CSB and REACH protocols contribute to increased hospitalizations by completing assessments after most individuals have been transported to hospitals. This adverse outcome indicates that the crisis planning and prevention strategies have not prevented individuals with IDD from being removed from their home settings.
The Individual Services Review study found two previously identified problems that have persisted under the redesigned Waivers. Families of individuals with IDD, who live at home, were not able to hire or retain nurses or direct support professionals to provide essential supports, especially in more rural areas. Many families, especially of individuals with intense medical and behavioral needs, could not fill support hours that the Commonwealth had approved as needed to address an essential service. Family members frequently reported that the people who are qualified will not work for such low hourly pay, especially given the extra costs of travel and the extended commuting time in rural areas. Many families whose family members’ behaviors were not under control could not find a qualified behavior specialist. For those who receive behavioral services, the elements of the behavior programming provided did not meet generally accepted standards.
The Commonwealth has worked diligently, has made substantial improvements, and for the first time, gained a determination of compliance for its development of independent housing options and for improving and implementing its Community Engagement Plan to increase integrated day opportunities. For independent housing, the Commonwealth has created 553 units of independent housing and is a year ahead of its planned schedule to create 847 additional units by 2021. For integrated day opportunities, having gained CMS approval of its redesigned Waivers, the Commonwealth improved its implementation plan; clarified the roles, involvement and expectations of both DBHDS and the CSBs; completed extensive training with families, providers, and case managers; approved 183 new licenses; and authorized 1950 individuals to participate in Community Engagement and Community Coaching services, two new integrated day options.
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Although, compliance was not achieved, the Commonwealth made notable progress in other areas as well. Examples include:
• Improved medical services, especially in the more densely populated areas (i.e., Tidewater). Mobile crisis teams responded to more crisis calls, from children and adults, and did so within the average response required time of one or two hours, for urban and rural areas, respectively.
• Crisis Stabilization Homes (i.e., Crisis Therapeutic Homes) were made available to more individuals by reducing length-of-stays in excess of the maximum allowed thirty-days.
• Regional Support Teams helped to reduce barriers and to locate more integrated options, when it received referrals in sufficient time to identify and address barriers.
• The Offices of Licensing and Human Rights implemented increased supervision, look-behind protocols, 45-day follow-up visits and/or focused studies, which strengthened the effectiveness in their oversight functions.
The following “Summary of Compliance” table provides a rating of compliance and an explanatory comment for each provision. The “Discussion of Compliance Findings” section includes additional information to explain the compliance ratings, as do the consultant reports, which are included in the Appendix. The Independent Reviewer’s recommendations are included at the end of this Report.
During the next review period, the twelfth, the Independent Reviewer will prioritize monitoring the status of the Commonwealth’s compliance with the requirements of the Agreement in the following areas: the status of the Commonwealth’s creation of 325 Community Living Waiver slots in Fiscal Year 2018; the Individual and Family Support Program, Licensing Rules and Regulations; REACH and the state’s Residential Treatment Facilities; the transition of children from living in Nursing Homes and ICFs; the status of the Commonwealth’s renewal and approval of its application(s) to CMS; the effectiveness of the Commonwealth’s Performance Contracts with the Community Service Boards; and an Individual Services Review study of individuals who have completed Discharge and Transition from the Training Centers.
Throughout the recent review period, the Commonwealth’s staff have been accessible, forthright and responsive. Attorneys from the Department of Justice continued to gather information that has been helpful to effective implementation of the Agreement. They continue to work collaboratively with the Commonwealth in negotiating outcomes and timelines for achieving the provisions of the Agreement. Overall, the willingness of both Parties to openly and regularly discuss implementation issues, and any concerns about progress towards shared goals, has been important and productive. The involvement and contributions of the advocates and other stakeholders continues to be vitally important to the progress that the Commonwealth has made. The Independent Reviewer greatly appreciates the assistance that was so generously given by the individuals at the center of this Agreement and their families, their Case Managers and their service providers.
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II. SUMMARY OF COMPLIANCE

Settlement Agreement Reference
III

Provision

Rating

Comments

Serving Individuals with Developmental Disabilities in the
Most Integrated Setting

Compliance ratings for the fifth, sixth, seventh, eighth and ninth review periods are presented as:
7th period 8th period
(9th period) 11th period

Comments include examples to explain the ratings and status. The Findings Section and attached consultant reports include additional explanatory information.
The Comments in italics below are from the prior period when the compliance rating was determined.

III.C.1.a.i-vii

The Commonwealth shall create a minimum of 805 waiver slots to enable individuals in the target population in the Training Centers to transition to the community … vii. In State Fiscal Year 2018, 90 waiver slots

Compliance Compliance
(Compliance)
Compliance

The Commonwealth shall create a minimum of 2,915 waiver slots to prevent the institutionalization of individuals with intellectual disabilities in the target population who are on the urgent waitlist for a waiver, or to transition to the community, individuals with intellectual disabilities under 22 years of III.C.1.b.i-vii age from institutions other than the Training Centers (i.e., ICFs and nursing facilities) … vii. In State Fiscal Year 2018, 325 waiver slots.

Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth created 100 waiver slots during FY 2018, ten more than the minimum number required for individuals to transition from Training Centers.
The Commonwealth created 80 waiver slots in FY 2018, which does not yet meet the quantitative requirements of this provision. A few children in nursing facilities and ICFs had used the prioritized waiver slots. The substantive change, expected by the Spring of 2017 from implementing the Commonwealth’s plan, has not occurred. See comment immediately below.

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Settlement Agreement Reference
III.C.1.c.i-vii

Provision
The Commonwealth shall create a minimum of 450 waiver slots to prevent the institutionalization of individuals with developmental disabilities other than intellectual disabilities in the target population who are on the waitlist for a waiver, or to transition to the community individuals with developmental disabilities other than intellectual disabilities under 22 years of age from institutions other than the Training Centers (i.e., ICFs and nursing facilities) … vii. In State Fiscal Year 2018, 25 waiver slots, including 10 prioritized for individuals under 22 years of age residing in nursing homes and the largest ICFs

III.C.2.a-b

The Commonwealth shall create an Individual and Family Support Program (IFSP) for individuals with IDD whom the Commonwealth determines to be the most at risk of institutionalization. In the State Fiscal Year 2018, a minimum of 1000 individuals will be supported.

Rating

Comments

Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth created 344 waiver slots in FY 2018 for individuals with DD, other than ID, 319 more than required. The Commonwealth’s expected results from implementing its plan to transition children living in ICFs and nursing facilities has not occurred. For III.C.1. b. and c., only 23 of the180 (12.8%) prioritized slots in FY 13 FY18, have been used.

Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth continues to meet the quantitative requirement. DBHDS developed a plan; implementation will be evident during 2018.

III.C.5.a

The Commonwealth shall ensure that individuals receiving HCBS waiver services under this Agreement receive case management.

For the purpose of this agreement, case III.C.5.b. management shall mean:

Compliance Compliance
Compliance

51 (100%) of the individuals reviewed in the individual services review studies during the 10th and 11th periods had case managers and had current Individual Support Plans.

III.C.5.b.i.

Assembling professionals and nonprofessionals who provide individualized supports, as well as the individual being served and other persons important to the individual being served, who, through their combined expertise and involvement, develop Individual Support Plans (“ISP”) that are individualized, person-centered, and meet the individual’s needs.

Non Compliance
Non Compliance
Non Compliance

The Individual Services Review and Case management studies found continuing inadequacies in case management performance. See Compliance Findings: Serving Individuals with Complex Needs” and “Case Management”.

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Settlement Agreement Reference
III.C.5.b.ii

Provision
Assisting the individual to gain access to needed medical, social, education, transportation, housing, nutritional, therapeutic, behavioral, psychiatric, nursing, personal care, respite, and other services identified in the ISP.

Monitoring the ISP to make timely additional referrals, service changes, and amendments III.C.5.b.iii to the plans as needed.

III.C.5.c

Case management shall be provided to all individuals receiving HCBS waiver services under this Agreement by case managers who are not directly providing such services to the individual or supervising the provision of such services. The Commonwealth shall include a provision in the Community Services Board (“CSB”) Performance Contract that requires CSB case managers to give individuals a choice of service providers from which the individual may receive approved waiver services and to present practicable options of service providers based on the preferences of the individual, including both CSB and non-CSB providers.

Rating

Comments

Non Compliance
Non Compliance

See comment immediately above.

Non Compliance
Non Compliance
Non Compliance
Non Compliance

See comment regarding III.C.5.b.i.

Compliance (Deferred)
Non Compliance

The Individual Services Review case study found that case managers had offered choices of residential and day providers, but whether 34 (67%) of 51 individuals were offered a choice of case managers was not documented. The Commonwealth has made this offer contingent on the individual or AR informing the current case manager of dissatisfaction with his or her services.

III.C.5.d

The Commonwealth shall establish a mechanism to monitor compliance with performance standards.

The Commonwealth shall develop a statewide crisis system for individuals with intellectual and developmental disabilities. The crisis system shall:
i. Provide timely and accessible support …
III.C.6.a.i-iii ii. Provide services focused on crisis prevention and proactive planning …

Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

The DBHDS licensing regulations and monitoring protocols do not align with the Agreement’s requirements.
This is an overarching provision. Compliance will not be achieved until the Commonwealth is in compliance with the components of Crisis Services as specified in the provisions of the Agreement.

iii. Provide in-home and community-based crisis services that are directed at resolving crises and preventing the removal of the individual …

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Settlement Agreement Reference
III.C.6.b.i.A

Provision
The Commonwealth shall utilize existing CSB Emergency Services, including existing CSB hotlines, for individuals to access information about referrals to local resources. Such hotlines shall be operated 24 hours per day, 7 days per week.

III.C.6.b.i.B

By June 30, 2012, the Commonwealth shall train CSB Emergency Services (ES) personnel in each Health Planning Region on the new crisis response system it is establishing, how to make referrals, and the resources that are available.

Mobile crisis team members adequately trained to address the crisis shall respond to individuals at their homes and in other community settings and offer timely III.C.6.b.ii.A. assessment, services, support, and treatment to de-escalate crises without removing individuals from their current placement whenever possible.

III.C.6.b.ii.B

Mobile crisis teams shall assist with crisis planning and identifying strategies for preventing future crises and may also provide enhanced short-term capacity within an individual’s home or other community setting.

III.C.6.b.ii.C

Mobile crisis team members adequately trained to address the crisis also shall work with law enforcement personnel to respond if an individual with IDD comes into contact with law enforcement.

Mobile crisis teams shall be available 24 hours per day, 7 days per week and to III.C.6.b.ii.D respond on-site to crises.

Rating

Comments

Compliance Compliance
(Compliance)
Compliance

CSB Emergency Services are utilized. REACH hotlines are operated 24 hours per day, 7 days per week, for adults and for children with IDD.

Compliance Compliance
(Compliance)
Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Non Compliance
Compliance Compliance (Compliance)
Compliance

REACH trained 324 CSB staff and 186 ES staff during this period. The Commonwealth requires that all ES staff and case managers are required to attend training.
The Commonwealth’s training programs are in place. Training has not been sufficient to de-escalate crises “without removing individuals.” There has been a significant increase in admissions to state psychiatric hospitals.
REACH programs did not provide effective prevention plans and strategies to prevent future crises. Assessments are completed after individuals have been transported to hospitals, which has contributed to a significant increase in admissions to state psychiatric hospitals.
During the review period, REACH continued to train law enforcement personnel. A total of 511 law enforcement personnel was trained by the five Regions’ REACH Teams.

Compliance (Compliance)
Compliance

REACH Mobile crisis teams for children and adults are available around the clock and respond on-site at all hours of the day and night.

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Settlement Agreement Reference
III.C.6.b.ii.E

Provision
Mobile crisis teams shall provide local and timely in home crisis support for up to three days, with the possibility of an additional period of up to 3 days upon review by the Regional Mobile Crisis Team Coordinator

By June 30, 2014, the Commonwealth shall

have a sufficient number of mobile crisis

teams in each Region to respond to on-site to

III.C.6.b.ii.H

crises as follows: in urban areas within one hour, in rural areas within two hours, as

measured by the average annual response

time.

Crisis Stabilization programs offer a shortterm alternative to institutionalization or III.C.6.b.iii.A. hospitalization for individuals who need inpatient stabilization services

Crisis stabilization programs shall be used as a last resort. The State shall ensure that, prior to transferring an individual to a crisis stabilization program, the mobile crisis team, in collaboration with the provider, has first III.C.6.b.iii.B. attempted to resolve the crisis to avoid an out-of-home placement and, if that is not possible, has then attempted to locate another community-based placement that could serve as a short-term placement.
Crisis stabilization programs shall have no more than six beds and lengths of stay shall not exceed 30 days.
III.C.6.b.iii.D.

Rating

Comments

Compliance Compliance (Compliance)
Compliance

Four Regions provided adults with IDD with more than an average of three days in-home supports. Region IV has provided only an average of 2.6 days of support.

Compliance (Compliance) Compliance
Compliance (Compliance) Compliance

The Commonwealth did not create new teams. It added staff to the existing teams. REACH teams in all five Regions responded within the required average annual response times during the eleventh review period. All Regions continue to have crisis stabilization programs that are providing short-term alternatives for adults with IDD.

Compliance Compliance (Compliance)
Compliance

For adults with IDD admitted to the programs, crisis stabilization programs continue to be used as a last resort. For these individuals, teams attempted to resolve crises and avoid out-of-home placements.

Non Compliance
(Non Compliance)
Non Compliance

Each Region’s crisis stabilization programs significantly reduced its average length of stay; some stays continue to exceed 30 days, which are not allowed. Two homes that allow long term stays are being developed.

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Settlement

Agreement

Provision

Reference

With the exception of the Pathways Program

at SWVTC … crisis stabilization programs

shall not be located on the grounds of the

Training Centers or hospitals with inpatient

psychiatric beds. By July 1, 2015, the

III.C.6.b.iii.E. Pathways Program at SWVTC will cease

providing crisis stabilization services and shall

be replaced by off-site crisis stabilization

programs with sufficient capacity to meet the

needs of the target population in that Region.

Rating

Comments

Substantial Compliance
Non Compliance
Non Compliance

The Commonwealth does not have sufficient community-based crisis stabilization service capacity to meet the needs of the target population in the Region.

By June 30, 2012, the Commonwealth shall develop one crisis stabilization program in III.C.6.b.iii.F. each Region.
By June 30, 2013, the Commonwealth shall develop an additional crisis stabilization program in each Region as determined necessary by the Commonwealth to meet the needs of the target population in that Region.
III.C.6.b.iii.G.

Compliance (Compliance)
Compliance

Each Region developed and currently maintains a crisis stabilization program for adults with IDD.

Non Compliance
Non Compliance (Compliance)
Non Compliance

The Commonwealth has determined that it is not necessary to develop additional “crisis stabilization programs” for adults in each Region. It has decided to add two programs statewide to meet the crisis stabilization needs of individuals who require longer stays. These programs have not been developed.

III.C.7.a

To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under this Agreement with integrated day opportunities, including supported employment.

Non Compliance
(Non Compliance)
Non Compliance

This is an overarching provision. Compliance will not be achieved until the component provisions of integrated day, including supported employment, are in compliance.

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Settlement Agreement Reference
III.C.7.b

Provision
The Commonwealth shall maintain its membership in the State Employment Leadership Network (“SELN”) established by the National Association of State Developmental Disabilities Directors. The Commonwealth shall establish a state policy on Employment First for the target population and include a term in the CSB Performance Contract requiring application of this policy… (3) employment services and goals must be developed and discussed at least annually through a person-centered planning process and included in the ISP.

Rating

Comments

Non Compliance
(Non Compliance)
Non Compliance

The Individual Services Review study found that employment services and goals were not developed and discussed for 15 of 40 individuals (40%). ISPs frequently include checked boxes that indicate employment was discussed, but there were no records that possible goals were developed and discussed, which would ensure a meaningful discussion.

III.C.7.b.i.

Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First Policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreation opportunities, and other integrated day activities.

Provide regional training on the Employment
First policy and strategies through the III.C.7.b.i.A. Commonwealth.

Non Compliance
Non (Compliance)
Compliance

The Commonwealth had previously developed a plan for Supported Employment. It has revised and improved its implementation plan with stronger and required elements for integrated day opportunities/activities.

Compliance
(Compliance)
Compliance

DBHDS continued to provide regional training on the Employment First policy and strategies.

Establish, for individuals receiving services through the HCBS waivers, annual baseline information regarding:
III.C.7.b.i. B.1.

The Commonwealth has significantly improved its method of collecting data. For the third consecutive period, data were reported by 100% of the employment service providers. It can now report the number of individuals, length of time, and earnings as required in III.C.7.b.i.B.1.a, b, c, d, and e below.

III.C.7.b.i. B.1.a.

The number of individuals who are receiving supported employment.

Non

See answer for

Compliance

III.C.7.b.i.B.1.

(Compliance)

Compliance

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Settlement Agreement Reference
III.C.7.b.i. B.1.b.

Provision
The length of time individuals maintain employment in integrated work settings.

Rating

Comments

Non Compliance
(Compliance) Compliance

See answer for III.C.7.b.i.B.1.

III.C.7.b.i. B.1.c.
III.C.7.b.i. B.1.d.
III.C.7.b.i. B.1.e.

Amount of earnings from supported employment;
The number of individuals in pre-vocational services.
The length-of-time individuals remain in prevocational services.

Non

See answer for

Compliance

III.C.7.b.i.B.1.

(Compliance)

Compliance

Compliance

See answer for

(Compliance) III.C.7.b.i.B.1.

Compliance

Compliance

See answer for

(Compliance) III.C.7.b.i.B.1.

Compliance

III.C.7.b.i. B.2.a.
III.C.7.b.i. B.2.b

Targets to meaningfully increase: the number of individuals who enroll in supported employment each year.
The number of individuals who remain employed in integrated work settings at least 12 months after the start of supported employment.

Non Compliance
Non Compliance (Compliance)
Non Compliance

The Commonwealth set targets to meaningfully increase the number of individuals receiving waiverfunded services. It did not make substantial progress toward achieving the targets. During the most recent sixmonth period, the number of individuals in supported employment declined. The Commonwealth has not identified or addressed the systemic obstacles to increasing employment.

Non Compliance Compliance
(Compliance)
Compliance

The Commonwealth has improved data collection. 84% of the individuals had worked at their job for at least twelve months, one percent short of its goal of 85%.

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Settlement Agreement Reference
III.C.7.c.
III.C.7.d.
III.C.8.a.
III.C.8.b.
III.D.1.

Provision
Regional Quality Councils (RQC), described in V.D.5. … shall review data regarding the extent to which the targets identified in Section III.C.7.b.i.B.2 above are being met. These data shall be provided quarterly … Regional Quality Councils shall consult with providers with the SELN regarding the need to take additional measures to further enhance these services.
The Regional Quality Councils shall annually review the targets set pursuant to Section III.C.7.b.i.B.2 above and shall work with providers and the SELN in determining whether the targets should be adjusted upward.
The Commonwealth shall provide transportation to individuals receiving HCBS waiver services in the target population in accordance with the Commonwealth’s HCBS Waivers.
The Commonwealth shall publish guidelines for families seeking intellectual and developmental disability services on how and where to apply for and obtain services. The guidelines will be updated annually and will be provided to appropriate agencies for use in directing individuals in the target population to the correct point of entry to access services.
The Commonwealth shall serve individuals in the target population in the most integrated setting consistent with their informed choice and needs.

Rating

Comments

Non Compliance
(Compliance) Compliance
Non Compliance
(Compliance) Compliance

The RQCs met during each quarter of the tenth and eleventh review periods. They consulted with the DBHDS Employment staff, both members of the SELN (aka EFAG). The RQCs completed required quarterly reviews.
The RQCs reviewed the employment targets and the State’s progress for FY 2017. The RQCs discussed and endorsed the future FY 2016 – 2019 targets.

Non Compliance
(Non Compliance)
Non Compliance

A review found that DMAS /Broker have implemented previous recommendations and DMAS added them to its RFP, which it has had to reissue. Sustained improvements and a functioning quality improvement program will not be able to be evaluated until 2019.

Non Compliance
Non Compliance
(Non Compliance)

The Commonwealth will not revise its guidelines until after implementing its redesigned HCBS waivers.

Non Compliance
(Non Compliance)
Non Compliance

This is an overarching provision. The need for more integrated settings will not be resolved until full implementation of the redesigned waivers and additional provider development, especially to serve individuals with intense needs.

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Settlement Agreement Reference
III.D.2.

Provision
The Commonwealth shall facilitate individuals receiving HCBS waivers under this Agreement to live in their own home, leased apartment, or family’s home, when such a placement is their informed choice and the most integrated setting appropriate to their needs. To facilitate individuals living independently in their own home or apartment, the Commonwealth shall provide information about and make appropriate referrals for individuals to apply for rental or housing assistance and bridge funding through all existing sources.

III.D.3.

Within 365 days of this Agreement, the Commonwealth shall develop a plan to increase access to independent living options such as individuals’ own homes or apartments.

III.D.3.a.

The plan will be developed under the direct supervision of a dedicated housing service coordinator for the Department of Behavioral Health and Developmental Services (“DBHDS”) and in coordination with representatives from the Department of Medical Assistance Services (“DMAS”), Virginia Board for People with Disabilities, Virginia Housing Development Authority, Virginia Department of Housing and Community Development, and other organizations ...

III.D.3.b.i-ii

The plan will establish for individuals receiving or eligible to receive services through the HCBS waivers under this Agreement: Baseline information regarding the number of individuals who would choose the independent living options described above, if available; and Recommendations to provide access to these settings during each year of this Agreement.

III.D.4

Within 365 days of this Agreement, the Commonwealth shall establish and begin distributing from a one-time fund of $800,000 to provide and administer rental assistance in accordance with the recommendations described above in Section III.D.3.b.ii.

Rating

Comments

Non Compliance
Non Compliance
Compliance

The Commonwealth has created 553 independent housing options and is almost a year ahead of its goal to achieve 847 new options by FY2021.

Compliance (Compliance)
Compliance

The Commonwealth developed a plan, created strategies to improve access, and provided rental subsidies.

Compliance (Compliance)
Compliance

A DBHDS housing service coordinator developed and updated the plan with these representatives and with others.

Compliance Compliance (Compliance)
Compliance

The Commonwealth estimated the number of individuals who would choose independent living options through FY 2015. It again revised its Housing Plan with new strategies and recommendations.

Compliance (Compliance)
Compliance and
Completed

The Commonwealth established the one-time fund, distributed funds, and demonstrated viability of providing rental assistance. The individuals who received these one-time

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Settlement Agreement Reference
III.D.5
III.D.6
III.D.7
III.E.1

Provision
Individuals in the target population shall not be served in a sponsored home or any congregate setting, unless such placement is consistent with the individual’s choice after receiving options for community placements, services, and supports consistent with the terms of Section IV.B.9 below.
No individual in the target population shall be placed in a nursing facility or congregate setting with five or more individuals unless such placement is consistent with the individual’s needs and informed choice and has been reviewed by the Region’s Community Resource Consultant (CRC) and, under circumstances described in Section III.E below, the Regional Support Team (RST).
The Commonwealth shall include a term in the annual performance contract with the CSBs to require case managers to continue to offer education about less restrictive community options on at least an annual basis to any individuals living outside their own home or family’s home …
The Commonwealth shall utilize Community Resource Consultant (“CRC”) positions located in each Region to provide oversight and guidance to CSBs and community providers, and serve as a liaison between the CSB case managers and DBHDS Central Office…The CRCs shall be a member of the Regional Support Team ...

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

funds have been provided permanent rental assistance.
Family-to-family and peer programs were not active for individuals who live in the community and their families.

Non Compliance
Non Compliance
Non Compliance

Children and adults were placed in settings of five or more, including nursing facilities and ICFs, without the prior review of the CRC or the Regional Support Teams.

Compliance Compliance (Compliance)
Compliance
Compliance Compliance (Compliance)
Compliance

The Commonwealth included this term in its performance contracts with CSBs. This offer is outlined in the ISP which is acknowledged, approved and signed by the individual/Authorized Representative. Community Resource Consultants (CRCs) are located in each Region, are members of the Regional Support Teams, and are utilized for these functions.

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Settlement Agreement Reference
III.E.2
III.E.3.a-d
IV

Provision
The CRC may consult at any time with the Regional Support Team (RST). Upon referral to it, the RST shall work with the Personal Support Team (“PST”) and CRC to review the case, resolve identified barriers, and ensure that the placement is the most integrated setting appropriate to the individual’s needs, consistent with the individual’s informed choice. The RST shall have the authority to recommend additional steps by the PST and/or CRC. The CRC shall refer cases to the Regional Support Teams (RST) for review, assistance in resolving barriers, or recommendations whenever (specific criteria are met).
Discharge Planning and Transition

Rating

Comments

Non Compliance
Non Compliance
Non Compliance

Case Managers frequently did not submit referrals, as required, to allow the CRCs and the RSTs to review cases prior to the placement. DBHDS reports that 18%48% of referrals were late during the four quarters of 2017. Late referrals largely nullify the purpose of the RST review.

Compliance (Compliance)
Compliance

DBHDS established the RSTs, which meet monthly. The CRCs refer cases to the RSTs regularly.

Compliance ratings for the seventh, eighth ninth and eleventh review periods are presented as:
7th period 8th period (9th period) 11th period

Note: The Independent Reviewer gathered information about individuals who transitioned from Training Centers and rated compliance during the fifth, seventh and ninth review periods.
The Comments in italics below are from the period when the compliance rating was determined.

IV. IV.A

By July 2012, the Commonwealth will have implemented Discharge and Transition Planning processes at all Training Centers consistent with the terms of this section
To ensure that individuals are served in the most integrated setting appropriate to their needs, the Commonwealth shall develop and implement discharge planning and transition processes at all Training Centers consistent with the terms of this Section and personcentered principles.

Compliance
(Compliance)
Compliance

The Commonwealth developed and implemented discharge planning and transition processes prior to July 2012. It implemented improvements in response to concerns the IR identified.

Non Compliance
(Non Compliance)

The Commonwealth had just begun to implement the redesigned HCBS waivers to come into compliance. Most integrated residential and day options are not available for individuals with intense needs.

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Settlement Agreement Reference
IV.B.3.
IV.B.4.
IV.B.5.
IV.B.5.a. IV.B.5.b. IV.B.5.c.

Provision
Individuals in Training Centers shall participate in their treatment and discharge planning to the maximum extent practicable, regardless of whether they have authorized representatives. Individuals shall be provided the necessary support (including, but not limited to, communication supports) to ensure that they have a meaningful role in the process.
The goal of treatment and discharge planning shall be to assist the individual in achieving outcomes that promote the individual’s growth, wellbeing, and independence, based on the individual’s strengths, needs, goals, and preferences, in the most integrated settings in all domains of the individual’s life (including community living, activities, employment, education, recreation, healthcare, and relationships).
The Commonwealth shall ensure that discharge plans are developed for all individuals in its Training Centers through a documented person-centered planning and implementation process and consistent with the terms of this Section. The discharge plan shall be an individualized support plan for transition into the most integrated setting consistent with informed individual choice and needs and shall be implemented accordingly. The final discharge plan will be developed within 30 days prior to discharge.
Provision of reliable information to the individual and, where applicable, the authorized representative, regarding community options in accordance with Section IV.B.9;
Identification of the individual’s strengths, preferences, needs (clinical and support), and desired outcomes;
Assessment of the specific supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes, regardless of whether those services and supports are currently available;

Rating

Comments

(Compliance
(Compliance)

The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision. The discharge plans reviewed were well organized and well documented.

Non Compliance
(Non Compliance)

Discharge plan goals did not include measurable outcomes that promote integrated day activities for most individuals. The Commonwealth had just begun to provide integrated day services and some progress was apparent.

Compliance
(Compliance)

The Independent Reviewer’s Individual Services Review studies found that DBHDS has consistently complied with this provision. The discharge plans are well documented. All individuals studied had discharge plans.

Compliance
(Compliance)
Compliance
(Compliance)

The documentation of information provided was present in the discharge records • for 26 (100%) of the individuals studied during the ninth review period.
The discharge plans included this information.

Compliance
(Compliance)

• for 76 of 77 individuals (98.7%) studied during the fifth, seventh, and ninth review periods, the discharge records included these assessments.

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Settlement Agreement Reference
IV.B.5.d.

Provision
Listing of specific providers that can provide the identified supports and services that build on the individual’s strengths and preferences to meet the individual’s needs and achieve desired outcomes;

Rating

Comments

Compliance The PSTs select and list specific (Compliance) providers that provide identified
supports and services.

IV.B.5.e.

Documentation of barriers preventing the individual from transitioning to a more integrated setting and a plan for addressing those barriers.

Compliance
(Compliance)
Compliance

The Training Centers document barriers in six broad categories as well as more specific barriers.

IV.B.5.e.i. IV.B.5.e.ii.
IV.B.6 IV.B.7

Such barriers shall not include the individual’s disability or the severity of the disability.
For individuals with a history of re-admission or crises, the factors that led to re-admission or crises shall be identified and addressed.
Discharge planning will be done by the individual’s PST…Through a personcentered planning process, the PST will assess an individual’s treatment, training, and habilitation needs and make recommendations for services, including recommendations of how the individual can be best served.
Discharge planning shall be based on the presumption that, with sufficient supports and services, all individuals (including individuals with complex behavioral and/or medical needs) can live in an integrated setting.

Compliance
(Compliance)
Compliance

The severity of the disability has not been a barrier in the discharge plans.

(Compliance
(Compliance)
Non Compliance
(Non Compliance)

DBHDS has identified the factors that led to readmission and has implemented steps to support individuals with intensive needs.
The Individual Services Review Study found that the discharge plans lacked recommendations for services in integrated day opportunities. DBHDS implemented improvements that led to more plans that included skill development goals.

Compliance
(Compliance)
Compliance

The Commonwealth’s discharge plans indicate that individuals with complex needs can live in integrated settings.

IV.B.9. IV.B.9.a.

In developing discharge plans, PSTs, in collaboration with the CSB case manager, shall provide to individuals and, where applicable, their authorized representatives, specific options for types of community placements, services, and supports based on the discharge plan as described above, and the opportunity to discuss and meaningfully consider these options.
The individual shall be offered a choice of providers consistent with the individual’s identified needs and preferences.

Compliance
(Compliance)
(Compliance
(Compliance)

The Individual Services Review studies during the fifth seventh, and ninth review periods found that ☐78 (100%) of individuals and their ARs were provided with information regarding community options and had the opportunity to discuss them with the PST.
Discharge records included evidence that the Commonwealth had offered a choice of providers.

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Settlement Agreement Reference
IV.B.9.b.
IV.B.9.c.
IV.B.11.
IV.B.11.a.

Provision
PSTs and the CSB case manager shall coordinate with the … community providers identified in the discharge plan as providing appropriate community-based services for the individual, to provide individuals, their families, and, where applicable, their authorized representatives with opportunities to speak with those providers, visit community placements (including, where feasible, for overnight visits) and programs, and facilitate conversations and meetings with individuals currently living in the community and their families, before being asked to make a choice regarding options. The Commonwealth shall develop family-to-family peer programs to facilitate these opportunities.
PSTs and the CSB case managers shall assist the individual and, where applicable, their authorized representative in choosing a provider after providing the opportunities described above and ensure that providers are timely identified and engaged in preparing for the individual’s transition.
The Commonwealth shall ensure that Training Center PSTs have sufficient knowledge about community services and supports to: propose appropriate options about how an individual’s needs could be met in a more integrated setting; present individuals and their families with specific options for community placements, services, and supports; and, together with providers, answer individuals’ and families’ questions about community living.
In collaboration with the CSB and Community providers, the Commonwealth shall develop and provide training and information for Training Center staff about the provisions of the Agreement, staff obligations under the Agreement, current community living options, the principles of person-centered planning, and any related departmental instructions. The training will be provided to all applicable disciplines and all PSTs.

Rating

Comments

Non Compliance
(Compliance)

Reviews found that • 22 of 26 individuals (84.5%) and their ARs did have an opportunity to speak with individuals currently living in their communities and their family members. All 100% received a packet of information with this offer, but discussions and followup were not documented for four individuals.

Compliance
(Compliance)
Compliance
(Compliance)

PST’s and case managers assisted individuals and their Authorized Representative. For 100% of the 26 individuals studied, providers were identified and engaged; provider staff were trained in support plan protocols.
During the fifth, seventh, and ninth review periods, the reviews found that • 70 of 78 individuals /Authorized Representatives (89.7%) who transitioned from Training Centers were provided with information regarding community options.

Compliance
(Compliance)

The Independent Reviewer confirmed that training has been provided via regular orientation, monthly and ad hoc events at all Training Centers, and via ongoing information sharing.

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Settlement Agreement Reference
IV.B.11.b.
IV.B.14
IV.C.1 IV.C.2

Provision

Rating

Comments

Person-centered training will occur during initial orientation and through annual refresher courses. Competency will be determined through documented observation of PST meetings and through the use of person-centered thinking coaches and mentors. Each Training Center will have designated coaches who receive additional training. The coaches will provide guidance to PSTs to ensure implementation of the personcentered tools and skills. Coaches … will have regular and structured sessions and personcentered thinking mentors. These sessions will be designed to foster additional skill development and ensure implementation of person centered thinking practices throughout all levels of the Training Centers.

Compliance
(Compliance)

The Independent Reviewer confirmed that staff receive required person-centered training during orientation and annual refresher training. All Training Centers have person-centered coaches. DBHDS reports that regularly scheduled conferences provide opportunities to meet with mentors. An extensive list of trainings was provided and attendance is well documented.

In the event that a PST makes a recommendation to maintain placement at a Training Center or to place an individual in a nursing home or congregate setting with five or more individuals, the decision shall be documented, and the PST shall identify the barriers to placement in a more integrated setting and describe in the discharge plan the steps the team will take to address the barriers. The case shall be referred to the Community Integration Manager and Regional Support Team in accordance with Sections IV.D.2.a and f and IV.D.3 and such placements shall only occur as permitted by Section IV.C.6.
Once a specific provider is selected by an individual, the Commonwealth shall invite and encourage the provider to actively participate in the transition of the individual from the Training Center to the community placement.
Once trial visits are completed, the individual has selected a provider, and the provider agrees to serve the individual, discharge will occur within 6 weeks, absent conditions beyond the Commonwealth’s control. If discharge does not occur within 6 weeks, the reasons it did not occur will be documented and a new time frame for discharge will be developed by the PST.

Non Compliance
Compliance
(Compliance)
Compliance
(Compliance)

See Comment for IV.D.3.
The Independent Reviewer found that the residential staff for • 100% of the 26 individuals participated in the pre-move ISP meeting and were trained in the support plan protocols. During the fifth, seventh, and ninth period, the Independent Reviewer found that • 75 of 78 individuals (96.2%) had moved within 6 weeks, or reasons were documented and new time frames developed.

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Settlement Agreement Reference
IV.C.3
IV.C.4
IV.C.5

Provision

Rating

Comments

The Commonwealth shall develop and implement a system to follow up with individuals after discharge from the Training Centers to identify gaps in care and address proactively any such gaps to reduce the risk of re-admission, crises, or other negative outcomes. The Post Move Monitor, in coordination with the CSB, will conduct postmove monitoring visits within each of three (3) intervals (30, 60, and 90 days) following an individual’s movement to the community setting. Documentation of the monitoring visit will be made using the Post Move Monitoring (PMM) Checklist. The Commonwealth shall ensure those conducting Post Move Monitoring are adequately trained and a reasonable sample of look-behind Post Move Monitoring is completed to validate the reliability of the Post Move Monitoring process.
The Commonwealth shall ensure that each individual transitioning from a Training Center shall have a current discharge plan, updated within 30 days prior to the individual’s discharge.
The Commonwealth shall ensure that the PST will identify all needed supports, protections, and services to ensure successful transition in the new living environment, including what is most important to the individual as it relates to community placement. The Commonwealth, in consultation with the PST, will determine the essential supports needed for successful and optimal community placement. The Commonwealth shall ensure that essential supports are in place at the individual’s community placement prior to the individual’s discharge.

Compliance
(Compliance)
Compliance
(Compliance)
Non Compliance
(Non Compliance)

The Independent Reviewer determined the Commonwealth’s PMM process is well organized. It functions with increased frequency during the first weeks after transitions. • for 76 (100%) individuals PMM visits occurred. The monitors had been trained and utilized monitoring checklists. The look-behind process was maintained during the seventh period.
The Individual Services Review studies during the ninth review period found that • for 25 of 26 individuals (96.2%), the Commonwealth updated discharge plans within 30 days prior to discharge.
The Individual Review study found that essential supports were not in place prior to discharge for 5 of 26 individuals (19.2%) in the ninth review period. Four individuals did not have a day program and one individual did not have behavior supports in place before they moved.

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Settlement Agreement Reference
IV.C.6
IV.C.7
IV.D.1 IV.D.2.a
IV.D.3

Provision
No individual shall be transferred from a Training Center to a nursing home or congregate setting with five or more individuals unless placement in such a facility is in accordance with the individual’s informed choice after receiving options for community placements, services, and supports and is reviewed by the Community Integration Manager to ensure such placement is consistent with the individual’s informed choice.
The Commonwealth shall develop and implement quality assurance processes to ensure that discharge plans are developed and implemented, in a documented manner, consistent with the terms of this Agreement. These quality assurance processes shall be sufficient to show whether the objectives of this Agreement are being achieved. Whenever problems are identified, the Commonwealth shall develop and implement plans to remedy the problems.
The Commonwealth will create Community Integration Manager (“CIM”) positions at each operating Training Center.
CIMs shall be engaged in addressing barriers to discharge, including in all of the following circumstances: The PST recommends that an individual be transferred from a Training Center to a nursing home or congregate setting with five or more individuals.
The Commonwealth will create five Regional Support Teams, each coordinated by the CIM. The Regional Support Teams shall be composed of professionals with expertise in serving individuals with developmental disabilities in the community, including individuals with complex behavioral and medical needs. Upon referral to it, the Regional Support Team shall work with the PST and CIM to review the case and resolve identified barriers. The Regional Support Team shall have the authority to recommend additional steps by the PST and/or CIM.

Rating

Comments

Compliance
(Compliance)

The discharge records reviewed in the ninth review period indicated that individuals who moved to settings of five or more did so based on their informed choice after receiving options.

Compliance
(Compliance)

The Independent Reviewer confirmed that documented Quality Assurance processes have been implemented consistent with the terms of the Agreement. When problems have been identified, corrective actions have occurred with the discharge plans.

Compliance (Compliance)
Compliance
(Compliance)

Community Integration Managers are working at each Training Center.
CIMs reviewed PST recommendations for individuals to be transferred to a nursing home or congregate settings of five or more individuals.

Non Compliance

The Commonwealth has created five Regional Support Teams. All RSTs are operating and receiving referrals. The Independent Reviewer found, during the seventh period, that • for 0 (0.0%) of 12 individuals referred to the RST, there was sufficient time to work with the PST and CIM to resolve identified barriers.

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Settlement Agreement Reference
IV.D.4.

Provision

Rating

Comments

The CIM shall provide monthly reports to DBHDS Central Office regarding the types of placements to which individuals have been placed.

Compliance
(Compliance)
Compliance

The CIMs provide monthly reports and the Commonwealth provides the aggregated information to the Reviewer and DOJ.

V.
V.B. V.C.1 V.C.2

Quality and Risk Management

Rating
Compliance ratings for the seventh, eighth ninth and eleventh review periods are presented as:
7th period 8th period (9th period) 11th period

Comments
The Comments in italics below are from the prior period when the compliance rating was determined.

The Commonwealth’s Quality Management System shall: identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.

Non Compliance
(Non Compliance)
Non Compliance

This is an overarching provision of the Agreement. Compliance will not be achieved until the component sub-provisions in the Quality section are determined to be in compliance.

The Commonwealth shall require that all Training Centers, CSBs, and other community providers of residential and day services implement risk management processes, including establishment of uniform risk triggers and thresholds, that enable them to adequately address harms and risks of harm.

Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth is charting a new course. It will work with the CSBs and providers to build a risk management system of triggers and thresholds at all levels of the service system.

The Commonwealth shall have and implement a real time, web-based incident reporting system and reporting protocol.

Non Compliance Compliance
Compliance

DBHDS implemented a web-based incident reporting system. Providers now report 87% of incidents within one day of the event. Some late reports are duplicates of reports submitted timely.

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Settlement Agreement Reference
V.C.3
V.C.4
V.C.5

Provision
The Commonwealth shall have and implement a process to investigate reports of suspected or alleged abuse, neglect, critical incidents, or deaths and identify remediation steps taken.
The Commonwealth shall offer guidance and training to providers on proactively identifying and addressing risks of harm, conducting root cause analysis, and developing and monitoring corrective actions.
The Commonwealth shall conduct monthly mortality reviews for unexplained or unexpected deaths reported through its incident reporting system. The …mortality review team … shall have at least one member with the clinical experience to conduct mortality re who is otherwise independent of the State. Within ninety days of a death, the mortality review team shall: (a) review, or document the unavailability of: (i) medical records, including physician case notes and nurse’s notes, and all incident reports, for the three months preceding the individual’s death; … (b) interview, as warranted, any persons having information regarding the individual’s care; and (c) prepare and deliver to the DBHDS Commissioner a report of deliberations, findings, and recommendations, if any. The team also shall collect and analyze mortality data to identify trends, patterns, and problems … and implement quality improvement initiatives to reduce mortality rates to the fullest extent practicable.

Rating

Comments

Non Compliance
Non Compliance
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

The DBHDS Licensing investigations do not align with the requirements of the Agreement. Investigation oversight and follow-up has improved.
The Commonwealth is charting a new course on how it will identify individuals at risk. It is moving away from identifying triggers and thresholds based on harm that has occurred to a more proactive approach.

Non Compliance
(Non Compliance)
Non Compliance

A Mortality Review Committee (MRC) has significantly improved its data collection, data analysis, and the quality of mortality reviews. It has begun a quality improvement program. The MRC rarely completed such reviews within 90 days; and it did not include a member, who was independent of the State.

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Settlement Agreement Reference
V.C.6
V.D.1
V.D.2.a-d
V.D.3.a-h

Provision

Rating

Comments

If the Training Center, CSBs, or other community provider fails to report harms and implement corrective actions, the Commonwealth shall take appropriate action with the provider.
The Commonwealth’s HCBS waivers shall operate in accordance with the Commonwealth’s CMS-approved waiver quality improvement plan to ensure the needs of individuals enrolled in a waiver are met, that individuals have choice in all aspects of their selection of goals and supports, and that there are effective processes in place to monitor participant health and safety. The plan shall include evaluation of level of care; development and monitoring of individual service plans; assurance of qualified providers. Review of data shall occur at the local and State levels by the CSBs and DMAS/DBHDS, respectively.

Non Compliance
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

DBHDS cannot effectively use available mechanisms to sanction providers, beyond use of Corrective Action Plans. DBHDS is making progress by increasingly taking “appropriate action” with agencies which fail to report timely.
This is an overarching provision that requires effective quality improvement processes to be in place at the CSB and state level, including monitoring of participant health and safety.

The Commonwealth shall collect and analyze consistent, reliable data to improve the availability and accessibility of services for individuals in the target population and the quality of services offered to individuals receiving services under this Agreement.

Non Compliance
(Non Compliance)
Non Compliance

DBHDS continues to expand and improve its ability to collect and analyze consistent, reliable data. These are first steps. Data elements must be defined so they can be objectively measured.

The Commonwealth shall begin collecting and analyzing reliable data about individuals receiving services under this Agreement selected from the following areas in State Fiscal Year 2012 and will ensure reliable data are collected and analyzed from each of these areas by June 30, 2014. Multiple types of sources (e.g., providers, case managers, licensing, risk management, Quality Service Reviews) can provide data in each area, though any individual type of source need not provide data in every area (as specified):

Non Compliance
(Non Compliance)
Non Compliance

DBHDS defined relevant measures for each domain. Staff report that efforts to produce reports based on the indicators in the eight domains are in their infancy.

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Settlement Agreement Reference
V.D.4
V.D.5

Provision

Rating

Comments

The Commonwealth shall collect and analyze data from available sources, including the risk management system described in V.C. above, those sources described in Sections V.E-G and I below (e.g. providers, case managers, Quality Service Reviews, and licensing), Quality Service Reviews, the crisis system, service and discharge plans from the Training Centers, service plans for individuals receiving waiver services, Regional Support Teams, and CIMs.
The Commonwealth shall implement Regional Quality Councils (RQCs) that shall be responsible for assessing relevant data, identifying trends, and recommending responsive actions in their respective Regions of the Commonwealth.

Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

This is an overarching provision. It will be in noncompliance until reliable data are provided from all the sources listed and cited by reference in V.C. and in V.E-G.
DBHDS shared and RQCs reviewed data including: employment, OLS, OHR, and other data. The RQCs, however, had limited and frequently unreliable data
available for review.

V.D.5.a V.D.5.b V.D.6
V.E.1

The Councils shall include individuals experienced in data analysis, residential and other providers, CSBs, individuals receiving services, and families, and may include other relevant stakeholders.
Each Council shall meet on a quarterly basis to share regional data, trends, and monitoring efforts and plan and recommend regional quality improvement initiatives. The work of the Regional Quality Councils shall be directed by a DBHDS quality improvement committee.
At least annually, the Commonwealth shall report publically, through new or existing mechanisms, on the availability … and quality of supports and services in the community and gaps in services, and shall make recommendations for improvement.
The Commonwealth shall require all providers (including Training Centers, CSBs, and other community providers) to develop and implement a quality improvement (“QI”) program including root cause analysis that is sufficient to identify and address significant issues.

Compliance
(Compliance)
Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

The five Regional Quality Councils include all the required members.
The RQCs met quarterly, but had limited discussion. Data available were frequently not complete or reliable. The DBHDS Quality Improvement Committee directed the RQCs work.
The Commonwealth is restructuring its website. DBHDS expects that its updated public reporting page will be available by March 2018.
The Commonwealth has not yet informed providers that they are required to implement QI programs or root cause analysis.

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Settlement Agreement Reference
V.E.2
V.E.3
V.F.1
V.F.2

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall develop measures that CSBs and other community providers are required to report to DBHDS on a regular basis, either through their risk management/critical incident reporting requirements or through their QI program.

Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth requires providers to report deaths, serious injuries and allegations of abuse and neglect. DBHDS does not yet require reporting through the risk management and provider QI programs.

The Commonwealth shall use Quality Service Reviews and other mechanisms to assess the adequacy of providers’ quality improvement strategies and shall provide technical assistance and other oversight to providers whose quality improvement strategies the Commonwealth determines to be inadequate.

(Non Compliance
(Non Compliance)
Non Compliance

The Commonwealth’s contractor completed the second annual QSR process. There are problems with the validity of the contractor’s tools and process and, therefore, with the reliability of data collected and the accuracy of the results.

For individuals receiving case management services pursuant to this Agreement, the individual’s case manager shall meet with the individual face-to-face on a regular basis and shall conduct regular visits to the individual’s residence, as dictated by the individual’s needs.
At these face-to-face meetings, the case manager shall: observe the individual and the individual’s environment to assess for previously unidentified risks, injuries, needs, or other changes in status; assess the status of previously identified risks, injuries, needs, or other change in status; assess whether the individual’s support plan is being implemented appropriately and remains appropriate for the individual; and ascertain whether supports and services are being implemented consistent with the individual’s strengths and preferences and in the most integrated setting appropriate to the individual’s needs….

Compliance Compliance
Compliance

The case management study found that 24 (96%) of the 25 case managers were in compliance with the required frequency of visits. DBHDS has reported data that frequency and type of case manager visit for some CSBs are below target

Non Compliance
Non Compliance
Non Compliance

The study of case management confirmed a high percent of discrepancies between the services individuals are receiving and those described in his/her ISP. All essential supports were not listed in the ISP. The behavioral supports study found that inadequacies in implementation of BSPs had not been identified, or corrective actions steps had not been taken.

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Settlement Agreement Reference
V.F.3.a-f
V.F.4
V.F.5
V.F.6 V.G.1 V.G.2.a-f

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the individual’s case manager shall meet with the individual face-to-face at least every 30 days, and at least one such visit every two months must be in the individual’s place of residence, for any individuals (who meet specific criteria).

Compliance (Compliance)
Compliance

The Individual Services Review study found that 20 of the 21 individuals’ case managers (95.2%) were in compliance with the required frequency of visits. All individuals studied had received monthly face-to-face meetings as required.

Within 12 months from the effective date of this Agreement, the Commonwealth shall establish a mechanism to collect reliable data from the case managers on the number, type, and frequency of case manager contacts with the individual.

Non Compliance
Non Compliance
Non Compliance

DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to assess CSB compliance with their performance standards relative to case manager contacts.

Within 24 months from the date of this Agreement, key indicators from the case manager’s face-to-face visits with the individual, and the case manager’s observation and assessments, shall be reported to the Commonwealth for its review and assessment of data. Reported key indicators shall capture information regarding both positive and negative outcomes for both health and safety and community integration and will be selected from the relevant domains listed in V.D.3.

Non Compliance
Non Compliance
Non Compliance

DBHDS does not yet have evidence at the policy level that it has reliable mechanisms to capture case manager/support coordinator findings regarding the individuals they serve.

The Commonwealth shall develop a statewide core competency-based training curriculum for case managers within 12 months of the effective date of this Agreement. This training shall be built on the principles of selfdetermination and person-centeredness.

Compliance Compliance

The Commonwealth developed the curriculum with training modules that include the principles of selfdetermination. The modules are being updated.

The Commonwealth shall conduct regular, unannounced licensing inspections of community providers serving individuals receiving services under this Agreement.

Compliance
Compliance
Compliance

OLS regularly conducts unannounced inspection of community providers.

Within 12 months of the effective date of this Agreement, the Commonwealth shall have and implement a process to conduct more frequent licensure inspections of community providers serving individuals ...

Compliance
Compliance
Compliance

OLS has maintained a licensing inspection process with more frequent inspections.

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Settlement Agreement Reference
V.G.3
V.H.1
V.H.2
V.I.1.a-b V.I.2 V.I.3

Provision

Rating

Comments

Within 12 months of the effective date of this Agreement, the Commonwealth shall ensure that the licensure process assesses the adequacy of the individualized supports and services provided to persons receiving services under this Agreement in each of the domains listed in Section V.D.3 above and that these data and assessments are reported to DBHDS.

Non Compliance
(Non Compliance)
Non Compliance

The DBHDS Licensing regulations and protocols do not align with the Agreement’s specific requirements.

The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self-determination awareness, and required elements of service training.

Non Compliance
Non Compliance
Non Compliance

The Commonwealth has created a plan and has made progress developing and disseminating competencies. Some training requirements and identified competencies cannot be consistently measured and, therefore, cannot be effectively implemented, monitored, or result in reliable reporting.

The Commonwealth shall ensure that the statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.

Non Compliance
Non Compliance

Same as V.H.1 immediately above.

Non Compliance

The Commonwealth shall use Quality Service Reviews (“QSRs”) to evaluate the quality of services at an individual, provider, and system-wide level and the extent to which services are provided in the most integrated setting appropriate to individuals’ needs and choice.
QSRs shall evaluate whether individuals’ needs are being identified and met through person-centered planning and thinking (including building on individuals’ strengths, preferences, and goals), whether services are being provided in the most integrated setting
The Commonwealth shall ensure those conducting QSRs are adequately trained and a reasonable sample of look-behind QSRs are completed to validate the reliability of the QSR process.

Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance
Non Compliance
(Non Compliance)
Non Compliance

Same as Comments for V.E.3. Compliance will be achieved when results are based on valid and reliable data and are used to improve quality.
Same as Comments for V.E.3 and for V.I.1. which is immediately above.
Same as Comments for V.E.3 and for V.I.1.

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Settlement Agreement Reference
V.I.4
VI
VI.D.
IX
IX.C.

Provision
The Commonwealth shall conduct QSRs annually of a statistically significant sample of individuals receiving services under this Agreement.
Independent Reviewer
Upon receipt of notification, the Commonwealth shall immediately report to the Independent Reviewer the death or serious injury resulting in ongoing medical care of any former resident of a Training Center. The Independent Reviewer shall forthwith review any such death or injury and report his findings to the Court in a special report, to be filed under seal with the, … shared with Intervenor’s counsel.
Implementation of the Agreement
The Commonwealth shall maintain sufficient records to document that the requirements of this Agreement are being properly implemented …

Rating

Comments

Non Compliance
(Compliance)
Compliance

The Commonwealth’s contractor completed the second annual QSR process based on a statistically significant sample of individuals.

Rating
Compliance (Compliance)
Compliance

Comment
The DHBDS promptly reports to the IR. The IR, in collaboration with a nurse and independent consultants, completes his review and issues his Report to the Court and the Parties. DBHDS has established an internal working group to review and follow-up on the IR’s recommendations.

Rating
Non Compliance
(Non Compliance)
Non Compliance

Comment
The Independent Reviewer has determined that the Commonwealth did not maintain sufficient records to document proper implementation of the provisions, including mortality review, quality and risk management, and Quality Service Reviews.

Notes: 1. The independent Reviewer does not monitor services provided in the Training Centers. The following provisions are related to internal operations of Training Centers and were not monitored: Sections III.C.9, IV.B.1,
IV.B.2, IV.B.8, IV.B.12, IV.B.13, IV.D.2.b.c.d.e.f.and IV.D.3.a-c. The independent Reviewer will not monitor Section
III.C.6.b.iii.C. until the Parties decide whether this provision will be retained.

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III. DISCUSSION OF COMPLIANCE FINDINGS
A. Methodology:
The Independent Reviewer and his independent consultants monitored the Commonwealth’s compliance with the requirements of the Agreement in several ways by:
 Reviewing data and documentation produced by the Commonwealth in response to requests by the Independent Reviewer, his consultants and the Department of Justice;
 Discussing progress and challenges in regularly scheduled Parties’ meetings and in work sessions with Commonwealth officials;
 Examining and evaluating documentation of supports provided to individuals;  Visiting sites, including individuals’ homes and other programs;  Interviewing individuals, family, provider staff, and stakeholders.
During this tenth and eleventh review periods, the Independent Reviewer prioritized the following areas for review and evaluation:
 Serving Individuals with Complex Medical and Behavioral Needs;  Behavioral Supports;  Case Management;  Crisis Services;  Supported Employment;  Independent Living Options;  Transportation;  Regional Support Teams;  Quality and Risk Management;  Office of Licensing Services-Office of Human Rights;  Mortality Review; and  Provider Training.
The Independent Reviewer retained thirteen independent consultants to conduct the reviews and evaluations of these areas. The Independent Reviewer modified both the span and process of the planned studies during the tenth and the eleventh review periods. Each was designed as a yearlong study that would be conducted in two phases. The first phase of each study was conducted during the tenth period; the second phase was completed during the eleventh review period. The consultants’ reports of the first phases included Findings only; these were shared with the Commonwealth and with the Department of Justice. After conducting the second phases, the consultants reported on their findings from both phases as well as their analyses and conclusions regarding the Commonwealth’s progress toward achieving the requirements of the Agreement. The consultants’ reports of these studies are included in the Appendices of this Report.
For each study, the Independent Reviewer requested that the Commonwealth provide specific documents and all related records that the Commonwealth maintains to confirm that it has properly implemented the requirements of the Agreement. Information that was not provided by the Commonwealth was not considered in the consultants’ reports or in the Independent Reviewer’s findings, conclusions, and determinations of compliance.
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The Independent Reviewer utilized his Individual Services Review (ISR) study process and Monitoring Questionnaire to evaluate the status of services for a selected sample of individuals during the tenth and eleventh periods. By reviewing these findings, the Independent Reviewer has identified and reported themes. For this Report, the Individual Services Review study was focused on the status of services for individuals with complex medical and/or behavioral needs, as determined by the results of each individual’s scoring on the Supports Intensity Scale (SIS) evaluations which placed them in the two highest levels of need; that is, level six for individuals with intense medical support needs and level seven for intense behavioral support needs. During the tenth review period, twenty-six individuals were selected randomly from the cohort of forty-six individuals with intense medical needs, who live in Regions I, III, or V. For phase two, twenty-five individuals were randomly selected from a cohort of forty-two individuals whose SIS evaluations indicated that they had intense behavioral needs. The individuals in both cohorts had service enrollment dates since the beginning of Fiscal Year 2016. A separate supplemental study was also conducted of the behavioral supports being provided to a subset of the sample of individuals with intense behavioral needs.
The other studies completed by the Independent Reviewer’s consultants for this Report examined the status of the Commonwealth’s progress toward achieving or sustaining compliance with specific prioritized provisions that were targeted for review and evaluation. The Independent Reviewer shared with the Commonwealth the planned scope, methodology, site visits, document review, and/or interviews and requested any suggested refinements.
The Independent Reviewer’s consultants reviewed the status of program development to ascertain whether the Commonwealth’s initiatives had been implemented sufficiently for measurable results to be evident. The consultants conducted interviews with selected officials, staff at the State and local levels, workgroup members, providers, families of individuals served, and/or other stakeholders. To determine the ratings of compliance, the Independent Reviewer considered information provided prior to October 30, 2017. This information included the findings and conclusions from the consultants’ topical studies, the Individual Services Review study, planning and progress reports from the Commonwealth and other sources. The Independent Reviewer’s compliance ratings are best understood by reviewing the comments in the Summary of Compliance table, the Findings section of this report, and the consultant reports included in the Appendix.
During the twelfth review period, the Independent Reviewer will study the status of the Commonwealth’s progress toward achieving compliance with most provisions that were not studied during the tenth and eleventh periods. These provisions include: Individual and Family Support Program; Discharge Planning and Transitions from the Commonwealth’s Training Centers; Transitions of children from living in Nursing Facilities and large Intermediate Care Facilities; CSB/DBHDS performance contracts, Crisis Services/trend of increased admissions of individuals with IDD to state-operated psychiatric and other hospitals; and Integrated Day Activities, including Supported Employment.
Finally, as required, the Independent Reviewer submitted this Report to the Parties in draft form for their comments. The Independent Reviewer considered any comments before finalizing and submitting this eleventh Report to the Court.
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B. Compliance Findings
1. Providing Home and Community Based Services (HCBS) Waivers
The federal Centers for Medicare and Medicaid Services Home and Community-Based Services 1915(c) waiver program provides community-based services as an alternative to living in an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID). Individuals with IDD may receive HCBS waiver-funded services once they are awarded a waiver slot. In the Agreement, the Commonwealth was required to create a total of 4,170 additional waiver slots; a minimum number of additional waiver slots was required in each Fiscal Year and in each of the following three categories:
• Community Living (formerly ID) waiver slots to enable to transition to live in the community individuals from Training Center and those under twenty-two years of age from large ICFs and nursing facilities; and
• Community Living (formerly ID) waiver slots to prevent the institutionalization of individuals with ID on the urgent waiting list; and
• Family and Individual Services (formerly Individual and Family DD - IFDD) waiver slots to prevent the institutionalization of individuals with DD on the waiting list.
Historically, there were problems with many aspects of the Commonwealth’s former HCBS waiver programs. The waiver programs included a diagnosis-based split between the ID and DD waivers. Both waivers provided funding for an array of services. The former ID waivers, however, provided funding for residential services, whereas the IFDD waiver did not. The historic lack of access to waiver-funded residential services caused problems for individuals with DD; for example, some individuals with DD and complex behavioral needs were not able to transition from Crisis Stabilization programs because they did not have funding for a residential program. The diagnosisbased waivers created a bifurcated system that was confusing for families, especially those with children who were not yet diagnosed as ID. It was also inefficient for providers. Those which offered similar services to individuals with ID and DD had to operate under two sets of rules, regulations and monitoring systems. The pay rates for some essential services were significantly underfunded; and, the rate structure created financial incentives to congregate large numbers of individuals into segregated settings. Although, a waiver slot was intended to be a ticket to a wide array of services that could meet an individual’s needs, families often found that the services that they most wanted, such as in-home nursing and behavioral supports, were not actually available.
Recognizing these problems, the Commonwealth identified HCBS waiver redesign as its primary strategy to come into compliance with the Agreement’s requirements to meet individuals’ needs in community settings to prevent the unnecessary institutionalization of individuals with IDD. After completing a multi-year planning process, the Commonwealth redesigned its HCBS waiver programs. It amended the former ID and IFDD waivers so that each allowed eligibility for individuals with ID or DD, other than ID. After the Commonwealth’s amendments to its ID and IFDD waivers were approved, the Commonwealth posited that, because its redesigned waivers each now allows eligibility for individuals with either ID or DD, it is no longer required to create the promised number of slots in the waiver category that includes funding for residential services. It is the determination of the Independent Reviewer that the Commonwealth is in non-compliance if it does not create, during FY 2018, the required number of waiver slots for each of the three waiver categories cited above, as specified in III.C.1.a, b, and c.
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The cost of the required number of waiver slots was a primary consideration of the Commonwealth’s when it negotiated the Agreement. The average cost of a waiver slot that includes residential services is substantially greater that the average cost of slots that do not fund this more comprehensive array of services. The Commonwealth’s amendment of the higher per-person cost ID waiver program to allow individuals with DD to have access to waiver-funded residential service options is not a basis for reducing the required number of slots that provide funding for residential services.
The Commonwealth created, or exceeded, the required number of slots in each category in each of the first six Fiscal Years. For Fiscal Year 2018, however, the General Assembly funded only eighty additional Community Living waiver slots that include waiver-funding for residential services. Therefore, the Commonwealth has created 245 fewer than the required number of waiver slots in the waiver program category that provides funding for residential services. The Commonwealth did create 319 more of the Family and Individual Services waiver slots than required as well as sixty new Building Independence waiver slots. Under the Agreement, the Commonwealth has created a total of 3,373 new waiver slots; 863 more than required. The table below shows a comparison between the number of slots that were required to be created and the number that the Commonwealth actually created for each Fiscal Year and in each waiver category.

Fiscal Year
Community Living Waiver
(formerly ID) Training Centers
Community Living Waiver
(formerly ID)
Family and Individual Support
Waiver (formerly IFDD)
Building Independence
Waiver
Total

TABLE 1
Waiver Slot Allocation Summary Fiscal Years 2012 - 2018 Settlement Agreement – required /actually created

2012

2013

2014

2015

2016

2017

2018

60/60

160/160 160/160

90/90

85/85

90/90

90/100

275/275 150/165

225/300 (***25)
25/50 (***15)

225/575 (***25)
25/130 (***15)

250/25 (***25)
25/15* (***15)

275/325 (***25)

300/300

325/80

25/40 (***25)

25/340** (***10)

25/344

60

485/500 410/510 410/865 365/130 385/650 415/530 440/584

Total 735/745 1875/1880 300/1088
0/60 2910/3773

* From reserves ** Additional 200 for individuals on the chronological Wait List for the Family and Individual Support/DD Waiver *** Prioritized slots for children living in large ICFs and nursing homes.

The Commonwealth restructured its HCBS waivers, “to provide for a flexible array of communitybased options with a rate structure that supports the cost of new and existing services and provides incentives to providers for offering expanded integrated options.” The Commonwealth expects that improved access and availability of support services for individuals with intense behavioral or medical needs will result in decreased demand for crisis intervention and institutional levels of care. During the tenth and eleventh periods, the Independent Reviewer’s Individual Services Review studies found indications that the Commonwealth’s shift to more individualized and more integrated service arrangements has begun. Many individuals’ day services have transitioned from occurring in large congregated to integrated settings.

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During the waiver redesign planning process, the Commonwealth retained a national consulting company to study Virginia’s waiver rates compared to market rates for various staff roles and functions, including for “skilled nursing.” The consulting firm determined that Virginia’s rate for “skilled nursing” was substantially below the market rate. In Fiscal Year 2015, the firm recommended a substantial increase to $45.53/hour. Since then, the Commonwealth has increased its rate for “skilled nursing” services. In Fiscal Year 2018, the Commonwealth’s rate for “skilled nursing” is $32.20/hour, 70% of the “market rate” for 2015. Many families caring for family members with complex medical needs continue not to be able to secure nurses to provide essential in-home nursing for their family members for the number of hours approved by the Commonwealth. Family members report similar difficulty in hiring direct support staff to work in their homes with their family member, and in being able to secure qualified behavioral support staff. There was no evidence found during the Independent Reviewer’s studies during the that the implementation of redesigned waivers has improved the availability of in-home nursing services or the availability and adequacy of behavioral supports programming. In fact, the demand increased for crisis services and institutional level of care.
DBHDS reported during the ninth period that a few children had begun to use the prioritized waiver slots to transition from living in nursing homes and large ICFs. DBHDS expected that, with full implementation of the redesigned waivers, and its plan to facilitate transitions of these children, substantive change would occur by the Spring of 2017. DBHDS has reported, however, that only one child utilized a waiver slot to transfer from a nursing home during all of Fiscal Year 2017 and that only two children transferred during the first quarter of Fiscal Year 2018. Five children were reported to have utilized waiver slots to transition from large privately operated ICFs to the community since January 1,2017, when the DBHDS began its initiative to provide waivers to allow these children to live in non-institutional settings. The total number of children living in these institutions has increased from 108 to 111. For nursing homes, DBHDS reports that since its initiatives began in December 2014 many children have been diverted successfully from being admitted to nursing homes and none have been admitted for long-term care.
During the thirteenth reporting period, the fall of 2018, the Independent Reviewer will monitor and report on the extent to which the Commonwealth’s redesigned waivers are able to provide these critical services in order to achieve its goals and its compliance with provisions of the Agreement related to integration and the prevention of unnecessary institutionalization.
The Independent Reviewer’s Individual Services Review studies have consistently found that waiver slots provide individuals and families with critical supports that significantly improve their quality of life and prevent institutionalization. Many families have waited for years “on a wait list” before their family member was awarded a slot. Since these 3,773 new slots have been created since Fiscal Year 2011, the census of the Training Centers has declined from 1084 to 269, as of September 30, 2017. However, the number of individuals who are eligible for the waivers, whose names have been placed on waiting lists, has significantly increased. As of the fall of 2015, the names of more than a thousand individuals had been added to the waiting lists in each of the previous four years. The widely publicized increase in the incidence of Autism Spectrum Disorders in recent decades has been, and will continue to be, a significant contributing factor to this increase. The table below shows that, between July 1, 2011 and October 23, 2015, there were significant overall increases in both the number of individuals with IDD (6,283 or 39.5%), and in the number of individuals on the waiting lists (4,457 or 77.1%). Since then, the annual increases have continued at approximately the same
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pace. As of June 30, 2017, the number of individuals with IDD had increased further (9,386 or 59.5%) as had the number of individuals on the wait lists (6,392 or 77.1%).

TABLE 2 Increase in the Number (2) of Individuals with IDD

# Individuals
Waiver Slots
(1)
Wait Lists (5)
Training Centers

7/1/11 9,035 5,783 1,084

7/1/1110/23/15
11,490
10,240 (3)
455

# change
+2,455 +4,457
-628 (4)

% change

7/1/119/30/17

+27.2%

12,844

+77.1%

12,175

-58%

269

# change +3in,809
+6,392
-628 (2)

% change
+42.2% + 111%
- 75.2%

Total (2)

15,902 22,185 +6,283 +39.5%

25,288 +9,386

+59.5%

Notes (1) All waiver slots are not being used on specific dates. Slots are held in reserve for emergencies and for individuals who will transition from Training Centers, Nursing Facilities, and large ICFs.
(2) The total number of individuals is the sum of the numbers: of slots, on waiting lists, and living in Training Centers (3) The decline in the census at the Training Centers is greater than the number of individuals who moved to live in
community settings. The two primary reasons for the difference are that 134 residents of Training Centers on June 30, 2011 had died by September 30, 2017 and some residents were discharged to skilled nursing facilities. (4) All individuals have a level of need that makes them eligible for institutional care. (5) More than a third of these individuals are receiving some services through either the EDCD or Tech waivers.

In the four-year period between July 2011 and October 2015, the increased number of individuals with IDD who met Virginia’s comparatively strict Medicaid eligibility standards increased at a much faster pace than the number of newly created waiver slots. While the number of waiver slots increased by 636 per year, the number of individuals on the waiting lists continued to increase by more than 1,114 per year. Although some expected that the growth in the waiting lists would slow, this has not occurred. Since 2015, an annual average of 677 additional slots have been created for individuals on the wait lists; the number of eligible individuals on the waiting lists also increased by 967 per year. Since July 2011, some of the individuals who have been awarded slots have been able to transition to live in the community from living in institutions; i.e. Training Centers, large private operated ICFs and nursing facilities. In these six and a quarter years, since the Settlement Agreement commitments began, there has been an overall increase of 9,386 individuals with IDD who either live in Training Centers, have waiver slots in the community, or who are on waiting lists. In July 2011, there were 15,902 individuals; as of September 2017, there are 25,288, a 59.5% overall increase.

The Commonwealth is in compliance with Section III.C.1.a.vii. The Commonwealth is in non-compliance with Section III.C.1.b. vii. It is in non-compliance with the qualitative aspects of both III.C.1.b. and III.C.1.c. The Commonwealth had not yet created the required number of slots in the Community Living waiver category, which provides waiver-funding for a more comprehensive array of services.

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2. Serving Individuals with Complex Medical and Behavioral Needs
The Individual Services Review studies during the tenth and eleventh periods studied the service outcomes for individuals with intense service needs. For the tenth review period: individuals who scored a level 6 (intense medical needs) on the SIS evaluation, were living in Regions I, III, or V, and were newly enrolled in the Waiver-funded services between June 2016 and May 2017. All scored a level 6 on the SIS. For the eleventh review period: individuals scored a level 7 on the SIS, were living in Regions I, III, or IV, and were enrolled in the Waiver between July 2015 and December 2016. Therefore, all individuals studied had the highest level of need in terms of either intense medical/healthcare need (level 6) or behavioral need (level 7).
Themes from the ISR Studies during the tenth and eleventh review periods
Although there were individual exceptions, the two studies identified the themes listed below:
Positive Findings: Receiving HCBS Waiver slots and Waiver-funded services has significantly improved the quality of life for individuals with urgent and complex medical and/or behavioral needs and their families.
Overall, the individuals’ support plans were current and were person-centered. Case Managers typically documented making the required onsite visits, including those to the individuals’ homes, as based on the level of case management specified. Additionally, Case Managers often documented many other collateral contacts.
In the more densely populated Tidewater area, there were sufficient medical resources to allow the ten individuals in the sample with complex medical needs to live with their families. The necessary assessments, consults and treatments were provided for/to these individuals.
Five sponsored residential homes were providing good quality supports to individuals, including those with the most intense support needs. The individuals living in these homes received strong supports, more integration opportunities, and a higher quality of life than most of the individuals in the samples who were living in congregate residential programs. Of the fifty-one individuals whose services were studied, twenty-one did not live in their own or family home. Of these twenty-one, only one quarter were living in sponsored residential homes.
Areas of Concern: Many individuals, with Waiver funding, who lived in group homes or in their families’ homes lacked adequate services. Their Case Managers, who identified the absence of needed services, frequently were not able to resolve the obstacles. Examples of gaps in services/supports include the inability to secure or maintain needed and qualified behavioral supports, in-home nursing services, in-home direct support professionals and needed equipment. Some Case Managers did not identify needed assessments or inadequately delivered services. Those who included such observations in their notes were frequently not able to resolve the issue. For example, in the months following the Case Manager’s notes that data were not being collected as needed regarding implementation of an essential behavior plan, there was no evidence that the author of the behavior plan or the residential service provider made the necessary and expected changes. There also did not appear to be a mechanism to report systemic obstacles to receiving needed and appropriately delivered services to the Commonwealth so that appropriate and timely action could be taken by relevant officials.
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In rural areas many individuals, with identified needs, lacked available and accessible healthcare. In all areas of the Commonwealth behavioral support services did not meet generally accepted practices. It was reported that there was a lack of community clinicians with expertise and familiarity with individuals with I/DD. This appeared to be particularly true for in-home nursing and Board-Certified Behavior Analysts.
Structured behavioral supports that met generally accepted practices were not provided to individuals with aggressive, dangerous, and disruptive behaviors that negatively impacted their ability to learn new skills, impeded their ability to participate in their communities, reduced their quality of life, or impeded their progress in becoming more self-sufficient. The supports being provided frequently lacked the essential elements expected of good quality behavioral programming. The missing elements included a functional behavior assessment in the current setting, data collection to determine whether planned interventions are working, or the identification of replacement behaviors and new adaptive skills to be learned.
Providers and families experienced great challenges finding and retaining in-home nurses and direct support professionals who would work for the currently available low rates of pay. In rural areas, families frequently reported that the additional high cost of travel and extended unpaid travel time added to the challenge of recruiting and retaining qualified staff. A few cases were found in rural areas of support staff who had served the same individual for several years and knew him/her very well.
For many of the individuals studied, the Case Managers did not fulfill several requirements of the Agreement. These requirements included:
• The outcomes in ISPs were not specific and measurable; • A choice of Case Managers was not offered or was contingent on the AR first expressing
dissatisfaction with the current Case Manager’s performance; • ISPs were not modified as necessary in response to major life events; • Employment service goals were not developed and discussed; • Integrated day opportunities were not offered; and • Some Case Managers did not take an active role in assisting individuals to gain access to
needed services, including adaptive equipment.
Case Managers did not appear to have the expertise, or ready access to needed clinical expertise, to identify certain health care and behavioral service needs, the need for assessments in these areas, or the required elements of effective related protocols/supports. For individuals in need of behavioral programming, many Case Managers did not identify that the programming currently in place lacked key elements essential to appropriate implementation. There also appeared to be a systemic obstacle to assembling clinicians with specialized knowledge so that the ISP Team could benefit from the expertise and experience of these credentialed professionals when it met to develop the goals and expectations for behavioral programming that would meet generally accepted practices.
The lack of dental care remains a concern for approximately one third of the individuals visited. In addition, of the individuals who were receiving dental care, more than one-third had not had the dentist’s recommendations implemented within the time frame recommended.
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3. Behavioral Programming and Supports
The Independent Reviewer retained an independent consultant to review the behavioral services for eight individuals, a subset of the twenty-five individuals with intensive behavioral needs who were randomly selected for the Individual Services Review study. The consultant compared the behavioral programming and supports that were reported to be in place with generally accepted standards and practice recommendations with regard to the components of effective behavioral programming and supports.
These components included: • Level of need (i.e., based on behaviors that are dangerous to self or others, disrupt the environment and negatively impact his/her quality of life and ability to learn new skills and gain independence); • Functional Behavior Assessment (FBA); • Behavioral Support Plan (BSP); • Ongoing data collection, including regular summary and analysis; and • Care provider and staff training.
The individuals sampled had significant maladaptive behaviors that were not under control. Specifically, of those sampled:
• Eight (100%) engaged in behaviors that injured self or others; • Eight (100%) engaged in behaviors that disrupted the environment; • Seven (88%) engaged in behaviors that impeded his/her ability to access a wide range of
environments; and • Six (75%) engaged in behaviors that impeded their abilities to learn new skills or generalize
already learned skills.
Positive Findings: • Most of the five BSPs identified potential antecedents and consequences of target behaviors as well as contained proposed hypotheses regarding the underlying function(s) of behavior. These BSPs identified a method of measurement for target behaviors as well as described data collection procedures, including when the author was expected to summarize and analyze target behavior data. • All of the BSPs included environmental modifications and supervision strategies aimed at preventing or reducing the likelihood of maladaptive behavior, as well as proactive and reactive strategies aimed at preventing and responding to target behavior. The BSPs identified potential reinforcers and prescribed the use of positive reinforcement. • Some of the BSPs included specific strategies designed to promote skill acquisition (i.e. more adaptive responses).
Areas of Concern: • Of these eight individuals, however, only five (63%) individuals were receiving formal behavioral programming through Behavior Support Plans (BSPs) at the time of the on-site visit. Overall, all (100%) of the individuals sampled appeared to demonstrate significant maladaptive behaviors that negatively impacted their quality of life and greater independence. Consequently, it appeared that all of these individuals would likely benefit
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from positive behavioral programming and supports implemented within their homes or residential programs. • Of the five (63%) individuals who had BSPs, the BSPs for two (40%) of these individuals had not been revised as planned, during their transitions from Training Centers, after sixty days in their new setting. More troubling was the fact that the development and implementation of a BSP for one individual was inexplicably delayed for almost one-year after her admission to a group home. • Only three (60%) of the eight individuals appeared to have had Functional Behavior Assessments (FBA) completed within their current settings. When closely examined, of the three FBAs, only two (66%) appeared to have been completed using descriptive methods consistent with generally accepted practice recommendations. • Of the five BSPs, the prescribed behavioral programming appeared inadequate (see Individual Summary of Findings for specific information). For example, although all of the BSPs identified target behaviors for decrease, none (0%) of the BSPs clearly identified and operationally defined specific functionally equivalent replacement behaviors (FERB), which are generally considered necessary for efficient and effective behavioral programming. Although evidence was provided demonstrating ongoing data collection and review of target behaviors for two (40%) of these five individuals, evidence that similar data collection and regular review were completed for functionally equivalent replacement behaviors was not found for any (0%) of the individuals sampled. Overall, of the individuals sampled, zero (0%) appeared to have adequate behavioral programming in place consistent with standards of acceptable or expected practice. Only two (40%) of the five BSPs had been developed and monitored by a Board-Certified Behavior Analyst (BCBA).
Conclusions: • Many of the individuals were not receiving formal behavioral supports (e.g., BSPs) to address unsafe and disruptive behaviors, as well as skill deficits, that would likely improve their independence and quality of life. • Most of the individuals identified as receiving formal behavioral supports did not have adequate functional behavioral assessments and their behavioral programming did not meet standards of generally accepted practice.
4. Case Management
Case Management is the most important single resource for individuals served and their families. Accordingly, the first service listed in the Settlement Agreement assigns the Case Manager responsibility to assemble the Individual Support Team to develop the support plan for the individual; to assist the individual and family to gain access to needed services; and to monitor service delivery and to make service changes, as needed. Because of the central importance of the Case Manager to the individual and family, the Agreement also includes provisions to ensure that:
• Case Managers do not have a conflict of interest; • Individuals and families are offered a choice of, and can change, Case Managers; • Case Managers offer education about less restrictive community options annually to any
individual living outside their own or family’s home;
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• Case Managers observe and assess whether each individual’s support services are properly implemented, address risks, are in the most integrated setting appropriate to the individual’s needs, report and document any identified concern, and, as necessary, assemble the ISP team to address the concern and to document its resolution;
• There is a licensing process that assesses the adequacy of individualized supports; and • The Commonwealth establishes a mechanism to monitor the delivery of Case Management
services to ensure that they comply with performance standards.
The Independent Reviewer retained a team of independent consultants to complete a year-long two-phase evaluation of the Commonwealth’s compliance with the Agreement’s Case Management provisions. During each phase of their study, the consultants focused on more that forty individuals with intensive needs. The first phase of the study focused on individuals with complex medical needs; the second on individuals with intensive behavioral challenges. Each review included at least a qualitative review of the Individual Support Plan (ISP) and recent Case Manager/Support Coordinator progress notes. They also conducted a discrepancy analysis to determine what gaps exist between the individual’s assessed needs and ISP goals, as documented in the Case Management/Support Coordination system reports and documents, and the services and supports that were actually being provided.
The discrepancy analysis suggested that the most frequent shortcomings in the Individual Support Plans remains:
• ISP has specific and measurable outcomes.
Other significant systemic trouble spots were: • Documentation of being offered choice to change Case Managers/Support Coordinators; • Employment services and goals must be developed and discussed; • Modifying the ISP as needed; • All essential supports listed in ISP.
These findings of the Case Management study are consistent with the findings of the Individual Services Review study. Both studies found that the Commonwealth had addressed and resolved a previously identified trouble spot: the annual offer of education “about less restrictive community options to any individual living outside their own or family home.” This offer is now documented in the ISP which is reviewed, and if approved, is signed by the individual or his/her Authorized Representative.
Finally, DBHDS has proposed that its Data Dashboard serve as the systemic measurement of the achievement of goals in the Agreement. Previous studies by an independent consultant have raised concerns about the use of the Data Dashboard reporting as a response to the Agreement’s requirements to report data. DBHDS has made efforts to drill down on these reporting issues and has identified some potential sources of the unreliable data and the under-reporting. To improve the reliability of the information in the Data Dashboard, DBHDS staff have worked to improve CSB data entry rates. However, this period’s review identified eleven CSBs which have not met the DBHDS face-to-face goal of 90% since 2015. DBHDS has identified flaws in electronic data interfaces that may account for some of this under-reporting. DBHDS projects that the system improvements associated with the interfaces should be evident later in Fiscal Year 2018. It is not
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clear, however, that the issue of complete and accurate reporting will be fully resolved through the implementation of data entry edits and improved electronic interfaces. While the Data Dashboard reports that most CSBs have achieved 90% or better on the critical measure of face-to-face visits, eleven (11) CSBs did not report over 86% between October 2015 and March 2017. This suggests the possibility that, in these eleven underreporting CSBs with an extrapolated enhanced Case Management caseload of 1,547, at least 217 individuals each month may have not received the monthly face-to-face visit required under Enhanced Case Management or, alternatively, that their face-to-face visits may have occurred, but not have been reported or registered. It is important to note that the statewide average on this measure does not appear to have improved much beyond 86% for the past two years, probably because of reported under-performance of these eleven CSBs.
The consultants found that, during the tenth and eleventh periods, DBHDS had exerted concentrated efforts on additional Case Manager/Support Coordinator training. It has also generated an invigorated emphasis on supporting Case Managers/Support Coordinators in the Provider Development Section of the DBHDS, Division of Developmental Services. To improve future Case Management performance, DBHDS has contracted for support from Virginia Commonwealth University (VCU) to complete a manual, a supervisory review tool, core competencies and to update the Case Management Modules for online training.
The Commonwealth is in compliance with Section V.F.1 and 3. The Commonwealth remains in non-compliance with V.F.2.
5. Crisis Services
For the tenth and eleventh review periods, the Independent Reviewer retained an independent consultant to complete a year-long two-phase study of the Commonwealth’s crisis services system. This review gathered facts and analyzed the Commonwealth’s status toward implementing the following Agreement requirements that the Commonwealth:
• Develop a statewide crisis system for individuals with ID and DD; • Provide timely and accessible supports to individuals who are experiencing a crisis; • Provide services focused on crisis prevention and proactive planning to avoid potential crises;
and • Provide in-home and community-based crisis services to resolve crises and to prevent the
removal of the individual from his or her current setting, whenever practical.
All areas of the crisis services requirements for both children and adults were reviewed regarding accomplishments and compliance. The consultant’s review included a qualitative assessment of the crisis supports and other needed and related community services for thirty-six individuals who were referred to REACH. The review was intended to determine what services were needed and provided, how effective the supports were and whether community service capacity is sufficient to assist individuals to remain in their homes with appropriate ongoing services.
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The consultant’s review focused on: • The Commonwealth’s ability to provide crisis prevention and intervention services to children with intellectual or developmental disabilities, including the status of providing outof-home crisis stabilization services. • The Commonwealth’s plan to reach out to law enforcement and criminal justice personnel to effectively work with individuals with intellectual and developmental disabilities to address crises and crisis intervention services to prevent unnecessary arrests or incarceration. • The quality of the crisis services that individuals received from the eight Regional REACH programs. (Three Regions have combined their REACH programs for children and adults under one administration. Regions III and IV have separate programs for children and adults.)
In prior Reports to the Court, the Independent Reviewer has reported compliance with the Agreement’s crisis services provisions based only on the statewide crisis services for adults. In this Report, however, the Commonwealth’s compliance with the Agreement’s crisis services requirements are based on the status of these services for both children and adults.
In Fiscal Year 2012, prior to the reaching a settlement and a year before the Agreement was approved by the Court, the Commonwealth had funded and begun development of its crisis services for adults only, a substantial undertaking in itself. The Independent Reviewer monitored the status of the Commonwealth’s development of the new crisis services for adults and determined compliance with the crisis services provisions based only on the status of these services for adults. In this Report, however, and for the first time, the Independent Reviewer has made compliance determinations with consideration of the status of the Commonwealth’s crisis services for the entire target population including children, adolescents and adults. Because the Commonwealth has separate crisis services programs (REACH) for children in two of its Regions, the consultant continued to gather and report information separately for children and adults (See Appendix 4, “Crisis Services Requirements” for detailed information.)
The status of the crisis services system components that the Commonwealth committed to provide is as follows:
Crisis Point of Entry
The REACH programs, both for children and adults, in all Regions continue to be available twenty-four hours each day and to respond onsite to crises. The Commonwealth continues to utilize CSB Emergency Services as one means to access information. REACH hotlines are also operated twenty-four hours per day, 7 days per week for adults and for children with IDD. The number of crisis referral calls continues to increase.
The REACH programs have continued to train CSB Emergency Services staff in each Region. The Children and Adult REACH teams trained 705 CSB employees and 186 CSB Emergency Services staff during the eleventh review period.
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Mobile Crisis Teams
The REACH Mobile Crisis Team members continue to be trained by either the National Center for START Services or through similar training using a curriculum reviewed and approved by DBHDS. The DBHDS standards for the REACH programs require comprehensive staff training with set expectations for topics to be addressed within 30, 60 and 120 days of hire. Staff must complete and pass an objective comprehension test. Ongoing training is required and each staff must have clinical supervision, shadowing, observation and must conduct a case presentation and receive feedback from a licensed clinician on their development of Crisis Education and Prevention Plans.
However, the facts gathered indicate that this training has not been sufficient in several areas. For example, REACH staff are charged with de-escalating crises without removing individuals from their current home setting, yet REACH assesses most of the individuals after they been transported from their home to the hospital. A significantly higher percent of these individuals are hospitalized. The Commonwealth reports that the number of individuals with IDD who are removed from their home setting continues to increase. For example, there were 426 admissions of adults to state operated psychiatric hospitals during the second half of Fiscal Year 2017, twenty-six percent more than the 339 admissions during the previous six months. This increase occurred during a period when REACH staff were involved with the pre-admission screening of an increased percentage of the individuals who were admitted. DBHDS reported that 207 admissions of children to state operated psychiatric hospitals during the eleventh reporting period. This is a 51% increase over the 137 such admissions during the tenth period, which was a 37% increase over one hundred admissions in the ninth period. As some children may have been admitted more than once, the number of admissions exceeds the number of different individuals who were admitted. The Commonwealth cannot determine the number of different individuals with IDD who were admitted to its state operated facilities. The Independent Reviewer’s studies have also found a substantial number of families refused REACH services after completing the initial process. For children, the consultant found that the REACH crisis services did not result in reducing the percent of children who were hospitalized at the time of the crisis assessment.
This reported increase in admissions to psychiatric admissions during Fiscal Year 2017 occurred after the REACH programs for children and adults were fully operational, providing supports and services intended to de-escalate crises without removing individuals from their current placement. The Independent Reviewer has not determined that REACH staff did not make valiant efforts and cannot determine what percentage of these admissions was clinically appropriate, but the expected and desired outcome of this provision has not been achieved. Of the reported increase in the number of individuals admitted to psychiatric institutions, thirty-nine percent were previously known to REACH, sixty-one percent were new cases. The increase in admissions of those known to REACH is an indication that the REACH prevention plans and treatment strategies for preventing future crises had not been effective in achieving the planned outcome of preventing future crises for these individuals. The increase in admissions may also reflect the way the Commonwealth has structured and implemented its CSB Emergency Services assessment process for admission to stateoperated psychiatric facilities. The Commonwealth’s system results in most REACH assessments occurring after the individual has been taken to the hospital. This arrangement results in REACH assessing whether the individual can be supported in his or her home after the individual has been removed from the home to be taken to the hospital. The Commonwealth reported that 37% (176/479) of children were admitted to state-operated psychiatric hospitals at the time of the
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REACH assessment, compared with 15% (55/367) who were admitted after receiving REACH mobile crisis services. For adults with IDD 31% (314/1001) were hospitalized at the time of the REACH assessment, compared with 4% after receiving REACH mobile crisis supports. The Commonwealth should carefully study the root causes of 37% of children and 31% of adults being admitted to psychiatric hospitals after their initial interaction and assessment by REACH.
The Commonwealth reported that 37% (176/479) of children were admitted to state-operated psychiatric hospitals at the time of the REACH assessment, compared with 15% (55/367) who were admitted after receiving REACH mobile crisis services. For adults with IDD 31% (314/1001) were hospitalized at the time of the REACH assessment, compared with 4% after receiving REACH mobile crisis supports. The Commonwealth should carefully study the root causes of 37% of children and 31% of adults are admitted to psychiatric hospitals after their initial interaction and assessment by REACH.
The consultant also reported that the families for five of twenty individuals (25%) in a randomly selected sample of individuals refused to continue REACH services. These families had been referred to REACH, and had completed the intake process and the development of an interim or full Crisis Education and Prevention Plan,. This unexpected high percentage of refusals, coupled with an increased number of admissions to psychiatric facilities, should be carefully studied by the Commonwealth to determine its root causes and whether these causes can be more effectively addressed by improved training. Families of children with intense behavioral needs, who were interviewed during the Individual Services Review process, reported that the REACH services for their children had limited value. These families emphasized the need to have a place where their children could stay overnight on occasion to give them a break from their twenty-four hour a day responsibilities for a child who demonstrates dangerous and destructive behaviors, often during overnight hours.
Response Times
Mobile crisis teams for children and adults responded to more than 95% of all crisis calls within two hours and to 71% within one hour. All Regions achieved average annual response times of less than two hours in areas designated as “rural” and less than one hour in areas that the Commonwealth designated as “urban”.
Crisis Stabilization Programs
The Commonwealth has continued to provide a statewide crisis stabilization program. Each Region provides a six-bed crisis stabilization home, which DBHDS now calls Crisis Therapeutic Home (CTH). These homes offer short-term alternatives to living in an institutional setting for adults.
The Commonwealth still does not provide crisis stabilization homes for children in any of the Regions. In the Agreement, the Commonwealth committed to develop such programs for children as of June 30, 2012. The Commonwealth’s development of crisis services, and crisis stabilization homes, was underway for adults before the Settlement was reached. DBHDS later determined that it would be inappropriate to provide crisis stabilization services for children in the same home with adults, many of whom exhibit challenging behaviors. Eventually, DBHDS issued an RFP, on May 1, 2016, to develop and begin out-of-home crisis respite services during Fiscal Year 2017. There is also funding available to develop two homes in the Commonwealth; each with the capacity to serve
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six children. DBHDS believes that these two homes when supplemented with respite services and therapeutic host home options will be sufficient to meet the needs of children who need time out of their family homes to stabilize. DBHDS did not receive suitable responses, however, from prospective providers to its initial RFP. At the time of this review, DBHDS was in the process of finalizing contracts with recently identified providers.
In the spring of 2017, DBHDS reported that out-of-home respite services will be available in the Fall of 2017 and that two CTHs will open early in calendar year 2018. However, these scheduled developments have both been delayed. The planned opening of the two CTHs for children is now delayed until the end of Fiscal Year 2018. The design of these two new CTHs will be based on the existing architectural plan of the Region IV CTH for adults. The sites for both of the new CTHs have been selected. The Richmond and Rappahannock/Rapidan CSBs will operate these two crisis stabilization homes. DBHDS is planning to execute sole source contracts for the out-of-home therapeutic respite, because it did not receive suitable responses to the RFP. DBHDS is now projecting that these services will become available as early as January 2018, but no later than June 2018.
Crisis Stabilization: Length-of-Stay for Adults
The Crisis Stabilization Programs (CTHs) were designed to offer short-term alternatives to institutionalization. Stays greater than thirty days are not allowed. The premise for capping the length of stay is that the setting is most effective as a short-term crisis service. The Independent Reviewer has previously determined that the Commonwealth is not in compliance with this requirement because many lengths of stay have exceeded the thirty-day maximum allowed. The Commonwealth had determined that additional homes were required for individuals who needed temporary housing for up to six months to make a positive transition to a new permanent residence. DBHDS has not been able to open the two transition homes for adults that it had planned. It now anticipates opening the homes by the end of Fiscal Year 2018.
The REACH crisis stabilization homes continue to have individuals who stay longer than the thirtyday maximum allowed. Therefore, the Commonwealth remains in non-compliance. The REACH Teams, however, have substantially shortened the average length of stay. The final three months of the eleventh review period was the first quarter in which the average in every Region has not exceeded the 30-day expectation. With shorter average lengths of stay, the CTHs have been available for more individuals who require crisis stabilization, prevention, or step-down from psychiatric hospitalization.
DBHDS did not have sufficient capacity in its five Crisis Stabilization Programs. Individuals with IDD, who were ready for discharge, continued to be institutionalized as a result of a lack of available beds in the existing Crisis Stabilization Programs (CTH). Evidence that supported this concern was also found in the clinical case reviews completed for twenty selected adults, in the tenth review period, who were referred for crisis services. The regional REACH teams all acknowledged that it might have been possible to divert some individuals who were hospitalized, if the CTH had an opening
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6. Integrated Day Activities and Supported Employment
As required by the Settlement Agreement, the Commonwealth established the state Employment First policy for the target population. It has been included as a requirement in the CSB Performance Contract requiring application of this policy.
During the tenth and eleventh review periods, the Independent Reviewer retained ten independent consultants to complete three studies related to employment requirements of the Employment First policy and the Integrated Day Activities and Supported Employment provisions of the Settlement Agreement. Each study reviewed aspects of the Commonwealth’s progress and status toward achieving these requirements. During the tenth and eleventh periods, the Individual Services Review and the Case Management studies both included focus, respectively, on the extent to which Case Managers effectively implemented these requirements for individuals with complex medical and behavioral needs, if these individuals were between eighteen and sixty-four years of age. Both studies determined whether Case Managers implemented the principle that individual supported employment was the first and priority service option for the individuals they support and whether “employment services and goals” were “developed and discussed at least annually,” with the individual, his/her Authorized Representative and, if so, whether employment service and goals were included in the ISP.
The third study of Integrated Day Activities and Supported Employment focused on the following:
• The refinement of the Commonwealth’s implementation plan to increase integrated day activities for members of the target population, including the strategies, goals, action plans, interim milestones, resources, responsibilities, and a timeline for statewide implementation;
• The expectation that individuals in the target population are offered employment as the first option by Case Managers and their ISP teams during the individualized planning process in which they develop and discuss employment services and goals;
• The Commonwealth’s success meeting the Fiscal Year 2017 targets it set for the number of people, members of the target population, who are in supported employment, the number who remain employed for at least twelve months, and the average earnings for those in supported employment;
• The exchange of information regarding employment accomplishments and barriers between the Regional Quality Councils (RQCs) and the Employment First Advisory Group (E1AG); and
• The Commonwealth’s progress in offering community engagement and community coaching to individuals who do not work or as a supplement to employment.
(Note: The reports of these studies are included in Appendix A, C, and E.)
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The eleventh period’s Individual Services Review and the Case Management studies found that, of the forty individuals (age 18-64) reviewed, employment services and goals were not developed or discussed with fifteen individuals (40.0%). Case Managers frequently checked boxes in the ISP document indicating that employment had been discussed. There was no evidence, however that that possible employment goals were developed and discussed to ensure that there was a meaningful, rather than a cursory, discussion. Of the twenty-five individuals with whom employment goals were developed and discussed, nine (36%) had employment goals included in their ISPs..
The Commonwealth is in non-compliance with III.C.7.b.
Integrated Day Activities Plan
The Settlement Agreement states: “To the greatest extent practicable, the Commonwealth shall provide individuals in the target population receiving services under the Agreement with integrated day opportunities, including supported employment.” One of the component provisions included in the Agreement to support achievement of this overarching goal requires, “Within 180 days of this Agreement, the Commonwealth shall develop, as part of its Employment First policy, an implementation plan to increase integrated day opportunities for individuals in the target population, including supported employment, community volunteer activities, community recreational opportunities, and other integrated day activities.”
The Commonwealth met the 180-day timeline; its plan, however, focused only on increasing employment opportunities for individuals with IDD. The Independent Reviewer directed DBHDS to develop a plan by March 31, 2014 to describe its approach to create integrated day activity programs, including developing the capacity throughout its provider community to ensure that individuals in the target population, who were not engaged full-time in employment services, could participate in community volunteer activities, community recreational opportunities, and other integrated day activities as the foundation of their day programs. The Commonwealth submitted the requested plan.
The Independent Reviewer determined, however, that it did not include all essential elements of an effective plan, such as strategies, goals, action plans, interim milestones, resources, responsibilities and a timeline for statewide implementation. During this review period, DBHDS submitted its revised plan for providing integrated day activities, “Community Engagement Plan FY2016FY2018,” which includes status updates through the first quarter of Fiscal Year 2018. The foundation for providing integrated day activities, which DBHDS now calls “community engagement,” is its plan to implement its redesigned HCBS waivers, through which the Commonwealth will offer community engagement, community coaching and related services with reasonable rates.
Waiver Redesign
The Commonwealth submitted its HCBS waiver amendments to CMS in March 2016. The federal Center for Medicare and Medicaid Services (CMS) approved the Commonwealth’s amendments for implementation during Fiscal Year 2017. The Commonwealth’s General Assembly, however, delayed implementation of two employment-related services, benefits planning and non-medical transportation, until Fiscal Year 2018. DBHDS had planned to submit amendments to initiate transportation, community guide and benefits planning in October 2017; however, it now projects that submission will occur in December 2017. DBHDS projects that these services will become
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available before the end of Fiscal Year 2018. The actual date of availability will depend on when the application is submitted and the length of time required to secure CMS approval.
During the tenth and eleventh review periods, the Commonwealth has implemented its approved redesigned HCBS waiver amendments for serving individuals with I/DD. With the input of the Community Engagement Advisory Group, DBHDS drafted a comprehensive Community Inclusion Policy. This policy sets the direction and clarifies the values of community inclusion for all individuals with IDD, regardless of the severity. The policy requires the involvement of both DBHDS and the CSBs:
• To establish outcomes with specific percentage goals; • To identify strategies to address barriers; • To expand capacity of providers; • To collaborate with the State Department of Education (and schools to promote transition
planning); and • To conduct a statewide education campaign about Community Engagement.
Implementation requires DBHDS to provide training and consultation; to work with DMAS to incorporate these services in the waivers; to continue the role of the CEAG; to develop an implementation plan; and to maintain membership in the national SELN.
The DBHDS Community Engagement Plan, as revised December 29, 2105, was updated to reflect the status of achieving the goals, as of September 30, 2017.
1. There is an overall goal to develop a common understanding and philosophy among stakeholders, providers, and state agencies of Community Engagement (CE) based on accepted national standards and in compliance with federal regulations. Policies will be established to promote and encourage CE Activities.
2. Develop funding sources that promote and encourage implementation of CE.
3. Ensure that structures, at both the state and provider level, will support delivery of CE in the least restrictive and most integrated settings that are appropriate to the specific needs of the individual, as identified through the person-centered planning process.
4. Ensure CE services are being offered and provided to individuals across the state in the most integrated community settings, based on the needs of the individual, as determined through the person-centered planning process.
5. Ensure that there is an increase in meaningful CE for each individual. Virginia’s vision is to have an array of integrated service opportunities available for individuals with disabilities and wants individuals to be able to choose to have services delivered to them in the least restrictive and most integrated setting.
The status report as of progress toward achieving the goals of the Community Engagement Plan, as of September 2017, is included in the consultant’s report (Attachment E).
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DBHDS and the CEAG have developed a robust definition of Integrated Day Activities, which it now calls Community Engagement. These services have been approved by CMS and offered to waiver participants since September 2016. There is a total of 8981 individuals authorized for waiver-funded day services including center-based day services. As of June 30, 2017, 1708 (19%) of these individuals are authorized for CE and community coaching. This significant increase, in a nine-month period, illustrates a strong interest among individuals and families. With 183 licensed provider locations of community engagement (non-center based day), it is clear that the provider community is responding to the direction set by DBHDS to transition its system of day supports away from large and segregated congregate center-based settings to services that support individuals with I/DD to participate in inclusive community opportunities. Transportation, which is included but not yet available, will be a key element to successfully offering these services.
During the tenth and eleventh review periods, DBHDS and the CEAG improved its Community Engagement plan, did considerable work that achieved important milestones and implemented new community engagement services for hundreds of individuals.
As a result, the Commonwealth has newly achieved compliance with III.C.7.b.i.
Regional Training on the Employment First Policy
DBHDS provided significant training regarding the Employment First policy and strategies throughout the Commonwealth during several consecutive review periods. These trainings, as well as technical assistance to Employment Service Organizations (ESOs), continued during the tenth and eleventh review periods. Fewer trainings were provided, however, because DBHDS focused intensely on providing training related to implementation of the newly approved Community Engagement services. DBHDS does plan to hold town hall meetings throughout Virginia in the Spring of 2018 for families and individuals. The town hall meetings will be related to the Employment First policy and strategies related to addressing attitudinal, cultural and environmental barriers to employment from the perspective of the individual.
The Commonwealth has sustained compliance with III.C.7.b.i.A.
Establishing Baselines and Targets to Increase Supported Employment
As previously reported, the Commonwealth established baselines for the number of individuals receiving supported employment services through the HCBS waivers, the length of time these individuals maintain employment in integrated settings, the amount of earnings from supported employment, the number of individuals receiving pre-vocational services, and the length of time people remain in prevocational services.
The Commonwealth is in, and will remain in, compliance with III.C.7.b.i.B.1.a.-e., as it has fulfilled the requirements of these provisions.
The Commonwealth also previously set employment targets for two groups: 1. individuals with IDD with HCBS waiver-funded services, and for 2. the larger group that also includes individuals on the IDD waiting lists. Compliance determinations for the provisions related to supported employment have been, and will continue to be, based on the smaller group of individuals with IDD HCBS waiver-funded services, as required by the Agreement. The individuals with waiver-funded services
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tend to have greater needs than the larger group that includes individuals on IDD waiting lists. The Independent Reviewer’s compliance determinations for the employment related provisions are also based on the Commonwealth’s effectiveness at achieving these targets to meaningfully increase participation in supported employment for individuals who are eighteen to sixty-four years of age, with a goal of earning minimum or competitive wages.
The Commonwealth set targets on June 30, 2015 for June 30, 2019. The target set for the larger group of individuals was that 25% of them would be employed, in either Individual or Group Supported Employment (i.e., 3,935 of 15,739 individuals). As of June 2017, 3,806 individuals are so employed, or 24% of 15,739. This increased number of individuals with IDD who are employed is evidence of steady progress. This number of employed individuals is an increase of 234 individuals in Individual or Group Supported Employment since December 2016. Twenty-four percent employed represents steady and excellent progress over the past three six month periods, when twenty percent were employed in December 2015, twenty-two percent in June of 2016 and twentythree percent in December 2016.
The Commonwealth’s progress toward achieving its targets to increase the number of individuals who are employed through HCBS waiver-funded programs, however, has significantly slowed. The targets depicted in the table below are for the total number of individuals with waiver funded services in Individual and Group Supported Employment for each of five Fiscal Years. DBHDS and the Supported Employment Leadership Network VA set these targets in March 2014.

TABLE 3

Employment Targets in HCBS Waiver Programs: FY16 – FY20

End of FY 16 17 18 19 20
Total Increase FY ’16- ‘20

ISE 211 301 566 830 1095
884

GSE 597 631 731 831 931
334

Total 808 932 1297 1661 2026
1218

As of June 2017, 826 individuals were participating in HCBS waiver-funded Individual or Group Supported Employment. This is eighteen more that the target for June 2016 but only fourteen percent of the planned target increase of 132 participants between June 2015 and June 2016, and 106 fewer individuals than the target of 932. As of December 2016, more individuals were employed than the Commonwealth’s targets for the end of Fiscal Year 2017. However, by June 2017, there were nearly 100 fewer individuals in supported employment programs. The dramatic slowdown in the Commonwealth’s progress toward achieving its employment targets is an indication of systemic obstacles. The Commonwealth will need to identify, address and resolve such obstacles if it is to meaningfully increase the number employed by June 2018 to achieve the target of 1,297 individuals employed.

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The Commonwealth is not in compliance with III.C.7.b.i.B.2.a., as it has not made sufficient progress toward achieving its target for individuals in HCBS waiver-funded services; and, it has not yet addressed systemic obstacles needed to continue to meaningfully increase the number of individuals participating in waiver-funded supported employment.
Length of Time Employed
The Commonwealth established the target of eighty-five percent of individuals with disabilities would “remain employed in integrated work sites for one year or more after the start of supported employment.” The Commonwealth exceeded this expectation in the tenth reporting period. Eightyseven percent of individuals reportedly worked at their job for one year or more in ISE, as did ninety-six percent in Group Supported Employment (GSE). This changed, however, in the eleventh reporting period. While ninety-five percent of individuals in GSE had been employed in their job for one year or more, only eighty percent of individuals in ISE were so employed. Overall, eightyfour percent of individuals were continuously employed in the current position.
The Commonwealth is in compliance with III.C.7.b.i.B.2.b.
Regional Quality Councils
All five Regional Quality Councils met in both quarters of the eleventh review period. Employment data were presented. The RQCs completed the required annual review of the employment targets during the tenth reporting period. Additionally, the statewide Quality Improvement Committee had a meaningful discussion about the employment targets at its meeting in June 2017 and made recommendations that were shared with the Employment First Advisory Group.
Attendance records and minutes of the RQC meetings reflect a lack of engagement of individuals, families and employment providers in Committee meetings. Stakeholder membership and participation in the RQCs ensures that local and regional concerns and recommendations for quality improvement are being reviewed, refined, and recommended to the Quality Improvement Committee. Limited stakeholder participation is a current obstacle to the RQCs being able to effectively fulfill their designated role in the DBHDS quality improvement process.
DBHDS is in compliance with III.C.7.d.
7. Independent Housing
The Independent Reviewer retained the same independent consultant who previously reviewed the status of Virginia’s Plan to Increase Independent Living Options in November of 2013 and November 2014. For this review, the consultant completed a year-long two-phase study. In June 2017, the consultant found that the Commonwealth had made substantial progress, as the DBHDS independent housing development was ahead of its development schedule. At that time, he noted concerns about whether DBHDS and its Regional Housing teams were tracking the development of units set aside in the 2015 Low Income Housing Tax Credit Program (LIHTC) and would soon be coming online. The consultant had heard anecdotal concerns about whether there were a sufficient number of proficient providers interested and available to provide a package of supports needed by individuals in their own apartments; such
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providers are essential to meet the needs of the growing independent housing locations. An ample supply of providers is key to addressing the potential for a geographic disparity in the provision of housing and support services.
In October 2017, the consultant found that, with having created 553 housing options, the DBHDS Outcome-Timeline Report shows development almost a year ahead of its projected path to achieve 847 new options by Fiscal Year 2021. The consultant acknowledged that, in past reports (November 2013, 2014), he had been critical of the lack of progress in the actual development of housing options during those review periods; during the past two years, however, DBHDS has made substantial and commendable progress in this area. DBHDS appears well on its way to meeting its projected development targets.
During the June 2017 review, the consultant remained concerned that the ability of the Commonwealth and its providers to align individuals in need of more independent housing options with providers who would have an available and appropriate package of the needed support services, and at the time and geographic location where the LIHTC set-aside units became available. In October 2017, the consultant found that DBHDS currently has a monitoring system, which is capable of tracking the availability of units, which have a DD housing preference, as they come on line. This system makes the units available to members of the Agreement in a timely manner. The 2015 LIHTC allocation has set aside 95 units with a leasing preference for individuals with DD. The 2016 LIHTC allocation has a set aside preference of 53 units. To date, seven individuals in the Agreement’s target population have been able to access LIHTC units, which are beginning to become available as the two-year development cycle reaches the point of actual unit production. It should be noted that some individuals in the target population may choose other locations in which to live with the support of a rent subsidy. DBHDS appears to have effectively begun the process to closely monitor the LIHTC development process from unit production to the occupancy of individuals with IDD who will benefit from them.
DBHDS staff have also created a “working draft” of an Integrated Living Plan (FY 2017 – FY 2019). Primary projected long-term outcomes of the plan include a 3% annual increase in the number of providers who support individuals in independent housing statewide. The plan includes several initial activities intended to achieve long-term stated outcomes. As this plan matures, a more detailed baseline measurement tool should be developed to clearly delineate geographic areas and services around the Commonwealth that are struggling with limited available housing and provider capacity problems. The tool will assist in ascertaining the impact that proposed independent housing development activities are having in identified geographic areas with limited resources. Once this aspect of reporting is firmed up, there will be a clearer and more comprehensive picture as to whether the Commonwealth is effectively responding to the identified provider development/geographic service disparity.
The Commonwealth has sustained compliance with Sections III.D.3., 3a,.3bi-ii., and 4
The Commonwealth has newly achieved compliance with Section III.D.2.
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8. Regional Support Teams
The Independent Reviewer’s consultant completed a year-long two-phase follow-up review of the Regional Support Team (RST) requirements of the Agreement.
There are several themes in the Settlement Agreement that guide Regional Support Teams: • Identifying, addressing and resolving barriers and ensuring placement in the most integrated setting; • Diverting individuals to more integrated settings prior to placements in nursing homes, intermediate care facilities and other larger congregate settings of five or more individuals; and • Ongoing quality improvements in discharge planning and the development of communitybased services.
In order to meet the RST expectations of the Agreement, Community Resource Consultants (CRCs), who staff the RSTs, operate at the micro level of individual situations and then generate insights and actions at the macro level.
The effective functioning of the RSTs depends, at a minimum, on Case Managers submitting referrals to the CRCs and the RSTs with sufficient time to review them prior to an individual being placed in a large congregate setting. Each late referral largely nullifies the purpose of the RSTs for that individual. RSTs report receiving referrals “too late” for between two and five out of every ten referrals throughout Fiscal Year 2017. The RST did not effectively review other referrals due to non-responsiveness by Case Managers/Support Coordinators.

TABLE 4

Placements Made Before or Concurrent with RST Review

SAMPLE CY16

Q4 FY16

Q1 FY17

Q2 FY17

Q3 FY17

Late referrals 43%

36%

18%

19%

30%

Q4 FY17
48%

Although the impact of the RST process continues to be limited by late referrals, when referrals are submitted with sufficient time for barrier identification and resolution., the RSTs are carrying out functions that support the goal of placements in the most integrated setting possible for individuals with HCBS waiver funded services. Overall, when the RSTs have received timely referrals, its process has had positive impacts on the system and on some individual cases. RST members were unanimous in reporting that they consider the RSTs effective at identifying and resolving barriers in some individual cases. For example, during the nine-month period from April to December 2016, seventeen individuals reviewed by RSTs were diverted from placement in large group homes, or other congregate settings, into integrated, smaller settings.
The quality of the operating data collection and analysis system that DBHDS uses to determine actions to improve the quality and effectiveness of RST performance has matured. Trending analyses are more reliable now; definitions have been clarified for the field and reporting formats
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have been improved. DBHDS has developed the WaMS System for use in waiver slot management, service plan storage and pre-authorizations. It is important for the RST staff to acquire the technical expertise to take maximum benefit of access to this system. This expertise is critical to early identification of potential placement events that CRCs could plan for and anticipate.
As we learned two years ago, the quality improvement processes used for RSTs are still in a developmental phase. RST staff had drafted formalized protocols/procedures for processes and quality assurance in 2015; however, they had not yet been finalized or approved by DBHDS.
Community Resource Consultant (CRC) functioning is still missing the formalized aspects of the “ongoing planning and development of community-based services.” The CRCs continue to perceive this planning and development role as one that exists in their area, but not one for which they have a direct responsibility. CRCs, RSTs and managers in the Provider Development Section at DBHDS all generally perceive that service system gaps and local needs are well known from the CSB level up to the state level. The Commonwealth, however, did not provide documentation that it has identified these gaps. The continuing, and most frequent, reason that larger congregate settings are chosen by individuals and their Authorized Representatives is the absence of more integrated settings that include needed supports and services, especially for individuals with intense medical and behavioral needs, that are in the geographic area of the individual’s family/AR. Only a clear plan for development and needed expansion in services can begin to redress this core problem.
9. Transportation Services
During the Fall of 2016, the Independent Reviewer’s consultant completed his second evaluation of whether the Commonwealth provides effective transportation services for members of the target population who receive waiver-funded services. The Virginia Department of Medical Assistance (DMAS) administers Non-Emergency Medical Transportation (NEMT), which provides these required transportation services through a brokerage system. The DMAS contracts with Logisticare, a multi-state private sector contractor, to manage the brokerage system. The effective functioning of the DMAS transportation brokerage is critical to achieving the goal of improving the lives of people with intellectual and developmental disabilities and to achieving compliance with the Agreement.
The consultant’s previous evaluation found that DMAS/Logisticare:
• Did not separate out individuals with IDD with waiver slots in its databases; • Had not completed an analysis related to the delivery of transportation services for these
members of the target population; and • Was not able to undertake the required quality improvement processes without information
about the transportation experiences of individuals with IDD waiver slots.
In December of 2015, the Independent Reviewer determined that the Commonwealth was in noncompliance with the transportation requirements of the Agreement. At that time, the Independent Reviewer requested that the Commonwealth develop a plan to address improvements needed “to ensure that its transportation services are of good quality, appropriate, available and accessible to the target population.”
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DMAS and Logisticare implemented a number of changes during 2016 and maintained these changes during 2017. DMAS has planned to institutionalize needed improvements to achieve compliance with the Settlement Agreement requirements through an RFP process; it issued a new RFP for NonEmergency Medical Transportation on November 1, 2016. DMAS expected to award its new contract, including the Agreement’s requirements, with a July 1, 2016 start date for transportation broker services that incorporates needed improvements. The Commonwealth recognized that a delay in the award of a new contract would extend the period before the effectiveness of needed changes could be evaluated. Unfortunately, the Commonwealth’s original RFP for transportation services was withdrawn and cancelled due to procurement issues. Subsequently, DMAS issued a new RFP on September 25, 2017; it now expects that the new contract will be awarded in December 2017 for implementation on July 1, 2018.
Based on the Commonwealth’s revised implementation schedule, the Independent Reviewer projects that an evaluation of the DMAS/contractor quality improvement program for the required transportation services will be possible after a full year of implementation, in the fall of 2019. The Commonwealth projects in its new RFP that transportation for HCBS waiver-funded service recipients, as provided under its contract for non-medical transportation, will transition to managed care organizations beginning July 2019, but no later than July 2020.The Independent Reviewer will plan future independent evaluations to determine whether the DMAS/contractor brokerage system or, if applicable, whether the managed care organizations, has instituted needed improvements and demonstrates:
• The ability to separate out information regarding transportation services for individuals with IDD with waiver-funded services;
• Improved effectiveness of the planned transportation system changes for these individuals; and
• Completion of a full annual cycle of its quality improvement program.
Under its new RFP, DMAS will require the Contractor to adhere to the following terms specific to NEMT services for the IDD populations:
• Separate out IDD Waiver users in data collection and reporting and in the quality improvement processes to ensure that transportation services are being properly implemented for the members of the target population;
• Encourage more users, including IDD Waiver users and/or their representatives, to participate in the Advisory Board process;
• Periodically survey a sample of transportation users to assess satisfaction and to identify problems; and
• Conduct focus groups with the IDD Waiver population in order to identify problems. Until completion of the waiver redesign, the Contractor shall provide NEMT services to waiver services for these members.
During 2017, DMAS reports that it has continued to meet weekly with Logisticare staff to troubleshoot problems. It also reports that Logisticare continues to analyze utilization and complaint trends for the distinct IDD user population, to survey a sample of IDD users who may have satisfaction issues and that Logisticare has implemented some other service and customer survey procedures.
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The Commonwealth is in non-compliance with III.C.8.a. It will remain so until it demonstrates an effective quality improvement program for its transportation services for individuals with IDD with HCBS waiver funded services.
10. Quality and Risk Management
The Settlement Agreement requires the Commonwealth to develop and implement a Quality and Risk Management System that will:
V.B. “… identify and address risks of harm; ensure the sufficiency, accessibility, and quality of services to meet individuals’ needs in integrated settings; and collect and evaluate data to identify and respond to trends to ensure continuous quality improvement.”
The Independent Reviewer retained two consultants to assess the Commonwealth’s progress toward meeting four discrete areas of Quality and Risk Management:
1. Risk triggers and thresholds; 2. Data to assess and improve quality; 3. Providers; and 4. Quality Service Reviews.
Overall, the Commonwealth’s Quality and Risk Management initiatives in these four areas are in the process of development and implementation. As a result, the consultants’ review of a number of draft documents formed the basis for their report (Appendix I).
Risk triggers and thresholds
The consultants review found that the Commonwealth had not yet “established or required service providers to risk management processes to establish uniform risk triggers and thresholds, that enable them to adequately identify and address harms and risk of harms.” The Commonwealth had previously developed draft risk triggers and thresholds, which were largely based on harms that had already occurred. The Commonwealth staff recognized the need for a more proactive approach and one that involves building stronger quality and risk management systems at all levels of the system: state, CSBs, and other service providers. The DBHDS staff drafted the outline of a framework for this new approach, which they recognize requires significantly more work before the framework can be finalized and implemented. Given the size and structure of Virginia’s intellectual and developmental disabilities (IDD) system and the need to develop a sustainable risk management system, the Commonwealth’s plan to work with CSBs and providers to structure their risk management systems, and then develop mechanisms to ensure those systems are working correctly, is a reasonable one. In the experience of the Independent Reviewer, service providers that build effective quality and risk management systems into their operations generally provide more consistent high-quality services; state service systems ensure high quality services when the service provider agencies are expected to have effective quality and risk management systems in place and the state monitors to ensure that they do.
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As the Commonwealth fills in the details of its outlined framework for a quality and risk management system, it should ensure the system has the necessary data and the analysis processes:
• To identify areas of risk and/or harm proactively, as well as retroactively; • To utilize that data efficiently and effectively to identify the need for interventions; and • To provide sufficient oversight to ensure that when CSBs or providers need to take action,
that they do so and that those actions are effective.
As has been previously reported, the Agreement requires the Commonwealth to implement an effective multi-level quality and risk management system. The Commonwealth’s regulations, however, provide significant obstacles to achieving compliance. The existing regulations restrict what the Commonwealth can require of private providers. For example, the regulations do not allow the Commonwealth to require the submission of information, or the attendance of CSB and private provider staff at trainings, needed to implement the risk management and quality improvement system. To achieve compliance, the Commonwealth must address these weaknesses. The consultants’ recommendations to improve and strengthen the DBHDS Framework are attached at Appendix I.
The consultants found that the CSBs and private providers interviewed were largely unfamiliar with the concept of risk triggers and thresholds or the Commonwealth’s work to develop a risk management framework or system. They were also largely unfamiliar with the resources that DBHDS had posted on its website related to, for example, root cause analysis.
The Commonwealth is charting a new course to address the Agreement’s requirements related to tracking of risk triggers and thresholds. This new course will include the involvement of the CSBs and providers and the strengthening of their quality and risk management systems. The DBHDS Quality Management staff recognize that the next phases of DBHDS work to solicit stakeholder feedback and to finalize and then implement the framework, will be substantial; the roll-out of the requirements and related training and monitoring will be keys to its success.
The Commonwealth remains in non-compliance with V.C.1, and, therefore, with V.D.4.
Data to assess and improve quality
V.D.1. The consultants reviewed the status of the Commonwealth’s Quality Improvement Strategy, which was approved on September 1, 2016, when the federal Center for Medicare and Medicaid Services (CMS) approved Virginia’s amendments to redesign its HCBS waivers. The Quality Improvement Strategy outlines the basic assurances the Commonwealth agreed to provide to CMS to measure the quality provision of protections, services, and supports through the implementation of the Waivers. These assurances include data and information regarding:
• Case Management; • The inter-agency Quality Review Team; • The DBHDS Quality Improvement Committee and Regional Quality Councils; • Quality Services Reviews; and • The DBHDS Mortality Review Committee.
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The Commonwealth’s Quality Improvement Strategy, which included many of the Agreement’s requirements related to quality improvement, is consistent with and not in contradiction to the provisions of the Agreement. Staff report that two HCBS waivers are scheduled for renewal in 2018. The Commonwealth’s renewal applications will, reportedly, incorporate a description of numerous changes in the Commonwealth’s quality assurance system and will include revised and expanded data measurements. The Commonwealth provided a copy of the most recent draft Quality Management Plan, updated on October 20, 2016. The plan, in its current iteration, presents a comprehensive, high-level description of how the agency structures its Quality Management program. The draft plan has not yet been updated to incorporate some of the more recent modifications made to the way in which DBHDS collects and analyzes data.
The consultants found that both the existing and the draft plans are not the central repository of DBHDS/DMAS efforts to advance the structure and implementation of a data-driven quality improvement system. The plan does not provide a roadmap for DBHDS to expand and improve its ability to collect and analyze data to measure improvement. The consultants recommend that DBHDS consider incorporating a roadmap (e.g., annual plan) as well as this greater level of detail as an attachment to the Quality Management Plan. DBHDS should ensure that the plan is kept up-todate and reflects its most current plans and initiatives.
The Commonwealth remains in non-compliance with V.D.1.
DBHDS continues to expand and improve its ability to collect and analyze consistent, reliable data to measure:
• The availability and accessibility of services for individuals in the target population; and • The quality of services offered to individuals receiving services.
To date, DBHDS has focused primarily on identifying measures related to data that are currently available. DBHDS has used a thoughtful approach with a group of subject matter experts to begin evaluation of identified data elements to determine whether the data are accurate and complete and to ascertain how useful these data will be to measure the quality and quantity of services being provided. DBHDS staff recognize that their development of these initial measures was the first step in a much larger project. DBHDS plans for the subject matter experts, working with data analysts, to continue to develop measures, to evaluate the accuracy and completeness of the data and, through analysis, to evaluate further the efficacy and utility of the data measures.
DBHDS’s current efforts to identify, analyze and expand the use of data are appropriate first steps. DBHDS has not developed a structured plan, however, that includes specific goals, objectives, tasks and timelines to guide the efforts necessary to identify, define, collect, analyze, report, and effectively use relevant data to evaluate and improve services. Without a formal plan to establish the parameters, objectives and timelines for the project, it is difficult to determine whether the significant resources and efforts that the Commonwealth is dedicating to this initiative are in meaningful progress. It is recommended that DBHDS formulate a formal plan that captures current and future goals, objectives, milestones and timelines to expand and to improve effective use of data. The plan should be maintained as an attachment to the DBHDS Quality Management Plan. Reporting on the status of goal, objective, and milestone achievement should then flow from this plan.
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Feedback from interviews with staff at four CSBs and five community-based private providers indicated they are not familiar with specific data measures that the Commonwealth is using to measure quantity and quality of services. They are not familiar with the processes DBHDS is developing or considering expanding to improve data reporting and analysis. The Commonwealth continues to be challenged by the absence of a uniform means for reporting key operational data across the provider system. To advance its efforts to establish meaningful data measures of its service delivery system, DBHDS should direct considerable effort. It should clearly define each data element and it should ensure both that each data element can be objectively measured and that an electronic data reporting system exists that will allow providers to consistently and accurately report data, without taking excessive staff time and effort.
The Commonwealth remains in non-compliance with V.D.2.a.-d.
DBHDS produced the “Report on the Eight Domains” in October 2017. The report includes a greatly expanded set of twenty-six data measures with the following number of measures for each Domain:
• Safety and Freedom from Harm – four measures; • Physical, Mental and Behavioral Health and Well-being – four measures; • Avoiding Crises – five measures; • Stability – four measures; • Choice and Self-determination – two measures; • Community Inclusion – two measures; • Access to Services – three measures; • Provider Capacity – two measures.
The Report on the Eight Domains shows that DBHDS has done solid work in defining relevant measures for each domain, while recognizing some of the limitations of the data currently available. The workgroup took care to develop definitions, as needed, to allow a common and clear understanding of terms. Completing this initial groundwork to expand and refine data measures shows great promise. This is essential to achieving the goal of providing more useful data to assist the Quality Improvement Committee (QIC) and Regional Quality Councils (RQCs) in evaluating services on a broad scale throughout the Commonwealth.
DBHDS staff report that these efforts to produce reports based on the indicators in the eight domains are in their infancy at the present time. Given the expanding set of data measures, it was positive to find that data analysis efforts are now beginning to include cross-referencing of data to verify its consistency/accuracy and to identify inter-relationships between processes and outcomes.
The Commonwealth remains in non-compliance with V.D.3.a.-h.
V.D.5. The five RQCs are operational, have the required membership. Each RQC met during each quarter.
The RQCs use a consistent agenda format to guide the structure and discussion of each meeting. Minutes reflect that some discussion items focus specifically on data review. The use of data as the primary focus of discussion in these meetings continues to be in its infancy. An ongoing focus on
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structuring the meetings around data analysis presentations will enhance the capabilities of each RQC to identify trends and to recommend responsive actions to address identified issues. As its use of data continues to evolve, DBHDS should identify data measures/reports that allow comparative presentation of information across Regions and over time. These comparisons will improve the ability of each RQC to provide substantive and meaningful response to DBHDS regarding regional impacts of various new initiatives and process changes that DBHDS implements, or is considering to improve, the service delivery system. DBHDS should consider focusing attention in the RQC meetings on a small number of key measures that lend themselves to comparability and measurement over time. Through this narrower initial focus, the process of data review within the RQC structure can evolve and mature more rapidly. The Commonwealth remains in non-compliance with V.D.5. At least annually, the Commonwealth is required to “report publicly, through new or existing mechanisms, on the availability (including the number of people served in each type of service described in the Agreement) and quality of supports and services in the community and gaps in services, and make recommendations for improvement.” Although DBHDS established a page on the DBHDS website, and previously posted some information, the documents contained under this tab are not current; do not include an analysis of available data to identify gaps in services; and do not identify recommendations to address identified gaps. DBHDS has stated that, due to upcoming changes to the website, reports previously included on the website have been deleted. After the new website comes on line by January 1, 2018, DBHDS expects to add the annual report information in March 2018. The Commonwealth is in non-compliance with V.D.6 In conclusion, DBHDS continues to expand and improve use of data to guide its assessment of necessary service delivery improvements. The expanded number of measures that DBHDS has established over the past year is evidence of considerable progress. It is critical that DBHDS create a comprehensive data quality improvement plan that provides a roadmap and specific milestones to guide its ongoing efforts to expand and improve the quantity and quality of data to measure performance, provide a structure for greater accountability of effort, and assist in appropriate allocation of resources to develop better data reporting systems, better analysis of data and to support the Department’s effective use of data in its performance measurement.
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Providers
The Settlement Agreement established the requirement for providers to monitor and to evaluate service quality; it references the DBHDS Licensing Regulations at 12 VAC 35-105-620. Specifically, the regulations require: “The provider shall implement written policies and procedures to monitor and evaluate service quality and effectiveness on a systematic and ongoing basis. Input from individuals receiving services and their authorized representatives, if applicable, about services used and satisfaction level of participation in the direction of service planning shall be part of the provider's quality assurance system. The provider shall implement improvements, when indicated.”
Beginning with Fiscal Years 2015 and 2016, the Commonwealth added quality improvement program requirements to the draft Performance Contract with CSBs.
The Commonwealth’s oversight of community providers’ quality improvement programs remains a work in progress. The Commonwealth previously surveyed 900 service providers. This survey, which asked foundational questions to establish baselines regarding the status of service providers’ quality improvement and risk management practices, provided some insights. The low provider response rate and questions that lacked precision undermined the utility of the survey results. DBHDS reports that it is planning a second survey with more clearly stated questions and with strategies to improve the response rate.
Although at the time of this current review, some work was underway, the Commonwealth has not yet established expectations for CSBs’ and private providers’ quality improvement programs. In addition, the Agreement’s provision requiring formal training and technical assistance to CSBs and private providers had not yet begun.
The Commonwealth remains in non-compliance with V.E.1. and 2. It has not required providers to implement Quality Improvement Programs or to report its findings from such programs.
Quality Service Reviews
The Independent Reviewer retained two independent consultants to review the adequacy of DBHDS’s revised Quality Service Review (QSR) process, the extent to which this process aligns with the Agreement (e.g., to evaluate the “quality of services” and to complete assessments, including via face-to-face interviews with individuals, professional staff, and others involved in the individual’s life, and assessments of treatment records, incident/injury data, etc.), and the status of its implementation.
DBHDS completed a review of its QSR Contractor’s first year of work and first report. Subsequently, DBHDS decided to focus on realigning some of the contractor’s indicators for the key performance areas. DBHDS and QSR Contractor staff worked together to review the driver indicators within the audit tools to link them to these key performance indicators. By August 15, 2017, the QSR contractor had completed all 400 Person-Centered Reviews and fifty Provider Quality Reviews, which focused on providers of day program. A preliminary QSR report was issued on October 16, 2017.
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The Independent Reviewer’s consultants found that staff expended considerable time, thought, and effort to attempt to address concerns raised previously about the contractor’s audit tools and the reports it generated. Although some limited progress was made in defining measurable drivers and the relationship of the measures to DBHDS’ key performance areas, it is not evident, overall, that the current QSR process generates valid and reliable results. These problematic results are a consequence of inadequate development of the underlying infrastructure. For example, there was a lack of sufficiently qualified staff and of valid audit tools that are designed to collect reliable information. Another major area of concern is that the audit tools do not offer CSBs or providers a roadmap of what the QSR contractor will assess or the standards by which performance will be evaluated. In addition, the contractor’s audit tools do not lend themselves to the production of reports that are concise and that clearly identify findings or specific information about needed actions to make improvements on an individual, provider, and aggregate level.
The problems with the contractor’s planned approach, which the Independent Reviewer first described in August 5, 2015, continue to persist. For example:
• Lack of Definition of Standards/Terms – Standards need to be well defined in audit tools to ensure inter-rater reliability, as well as to clearly articulate expectations for providers and CSBs.
• Lack of Definition of Methodology – Similarly, the audit tools do not consistently identify the methodology that auditors would use to answer questions.
• Lack of Criteria for Compliance – auditors continue to use met/not met as the scoring mechanism for many indicators, but the audit tools do not explain how this rating is determined.
• Scope of Review without Definition of Auditor Qualifications The audit tools and resulting reports require staff to make clinical judgments regarding assessments of the adequacy and appropriateness of behavior support plans, nursing care, clinical and medical supports. The audit staff, however, do not have clinical qualifications.
• Missing Components - The audit tools do not comprehensively address services and supports to meet individuals’ needs, especially with regard to clinical services. For example, indicators to assess the quality of clinical assessments, as well as service provision, are not evident. This calls into question the validity of the findings.
The consultant’s previous report of the QSR process included concerns related to the reliability of the contractor’s data, which in part, could be attributed to weak inter-rater reliability. Since the previous review, the contractor made progress in instituting a formal inter-rater reliability process that is more consistent with standard practice. In a document entitled: “Rater Reliability Process Virginia Quality Service Reviews,” dated March 10, 2017, the contractor describes informal as well as formal means for ensuring the reliability of the QSR audit data. Based on the consultant’s review of its revised inter-rater reliability process, the contractor now has in place a system that should enable it, generally, to confirm the reliability of the data that its audits generate. Based on the summary inter-rater score spreadsheet shared with the consultant, the contractor had identified issues with inter-rater reliability and subsequently completed re-testing.
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On October 2016, the contractor issued a preliminary “Virginia Quality Service Reviews Annual Report,” which represented its second annual report. This report clearly reflected an intense amount of work. Like the previous report, in summarizing the results of the PCRs, the newest report made broad statements, such as: “Individuals’ basic needs were consistently met… Over 90 percent of individuals received needed services… Safety needs were mostly met and individuals were free from harm…” Unfortunately, due to the problems identified above with regard to the validity of the tools and the process, the reliability of data collected, and the lack of clinical qualifications of reviewers, it remained unclear whether the findings of the QSR report were accurate.
In summary, although it is clear that the Commonwealth and its contractor staff worked diligently to make necessary changes and to complete the QSR process, the quality of the results of the reviews completed is highly questionable. Additional work is needed to improve the audit tools that the contractor uses, as well as the resulting reports. An important missing piece continues to be the lack of clinical review of individuals’ physical, therapeutic, and behavioral health supports and outcomes. Specific and detailed recommendations are offered to rework the entire QSR process.
11. Licensing Services and Human Rights
It is the individual’s Case Manager who ensures that an individual’s essential needs are identified, that service providers are in place, that services are properly implemented and meet the individual’s needs. The residential, day/employment and clinical service providers that implement elements of the individual’s support plan are expected, and are usually licensed to, provide individualized and person-centered services that meet the individual’s needs. The quality of these services will largely determine whether an individual’s ISP goals are met and whether the quality of his or her life is improved.
The DBHDS Office of Licensing Services (OLS) and Office of Human Rights (OHR) are the Commonwealth’s primary systems for regulating the conduct of service provider agencies. The OLS system is also the primary compliance mechanism for Community Service Board (CSB) performance under their contracts with the Commonwealth for the provision of Case Management/Support Coordination services. Consequently, the effective functioning of OLS and OHR in accordance with the requirements of the Settlement Agreement (SA) is critical to improving individuals’ lives and to achieving compliance.
During the tenth and eleventh review periods, the Independent Reviewer retained an independent consultant to complete a year-long two-phase review of that status of the Commonwealth’s compliance with the provisions related to licensing and investigations.
The Independent Reviewer has previously identified, and the Commonwealth has acknowledged, that the DBHDS Licensing Rules and Regulation do not align with the requirements of the Settlement Agreement. DBHDS has continued to draft needed revisions. Its most recent draft (dated July 17, 2017) shows an improved alignment with some of the provisions of the Settlement Agreement, including a clarification of expectations around root cause analysis, risk triggers and thresholds, risk management programs and quality improvement programs. This most recent draft, however, does not include criteria that align with the Agreement’s requirements for enhanced Case Management, Case Manager responsibilities at face-to-face meetings, and an assessment of the
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“adequacy of individualized supports and services.” Also, the Case Management checklist used by OLS to operationalize the requirements of the Agreement does not include assessment of the “adequacy of individualized supports and services.” In addition, this checklist is documentationfocused, rather than outcome-focused, and does not include specific probes of the following Case Management requirements: identifying risks to the individual, offering choice among providers (including for Case Management), assembling professionals and non-professionals who provide supports, and amending the ISP when needed.
The first phase of the consultant’s study found that the newly established Regional Manager positions in OLS have been incorporated into the functioning of OLS and into the current version of the OLS Office Protocol. Analysis of one randomly selected investigation/corrective action plan suggests that Regional Managers may be relieving enforcement frustrations at the Licensing Specialist level. Following review by the Regional Manager, the Licensing Specialists had looped back to review and cite the Case Managers/Support Coordinator’s handling of challenging cases for which the residential provider may have originally been cited. In both phases of his study, the consultant found an increased frequency of OLS citing CSBs and required corrective actions related to Case Management performance problems.
The consultant’s study found that OLS placed six IDD (intellectual and developmental disability) provider settings on provisional status during Fiscal Year 2017. OLS trend reports suggest that timely reporting (i.e. within 24 hours) of SIRs has remained at about 86-88% during most of 2016. In the consultant’s review of a sample of fifty-five OLS investigations that were closed with a CAP during April 2017, sixteen (29%) providers were cited and required to submit corrective action plans for late reporting (160C.2). OLS data for 2016 also continues to show a significant voluntary closure rate of about twenty (20) agencies/services/settings per quarter. Voluntary closures are frequently a positive byproduct of system oversight in that many marginal agencies will self-select to surrender a license.
As reported previously, OLS appears to have the necessary regulatory tools to force improvements among substandard providers and to eliminate substandard providers who have demonstrated a refusal or inability to improve their services. Interviews with OLS staff confirmed previous findings of a continued systemic reluctance by OLS to pursue use of these other tools, including provisional status, because of the due process burdens on Licensing staff. The occasional use by DBHDS of Service Agreements with problematic providers is potentially a quasi-legal vehicle for leveraging provider improvements, if OLS monitors frequently and strictly during the period of the agreement.
The addition of OLS Regional Managers and an increased number of Licensing Specialists, and changed or additional citations following 45-day reviews, will likely contribute to changes in the patterns and trends. These changes will reflect the increased activity and refocused attention encouraged by the use of new monitoring tools (e.g. Mortality Review Guidance Document) by Licensing Specialists. It appears that the OLS Regional Managers have already had a positive qualitative impact on the work of Licensing Specialists.
The OHR Abuse Allegation Report database has improved due to the implementation of the retrospective look-behind process. Additional focus studies by OHR have yielded useful information that enabled OHR to generate both targeted and general educational and technical assistance efforts to improve the quality of provider investigations.
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The consultant’s study again found that DBHDS does not have evidence at the policy level that OLS is identifying systemic patterns of compliance problems with the Agreement, including its “data and assessments” across the eight (8) domains described in Section V.D.3.
DBHDS reported that its attempted collaboration between OLS and the Virginia Department of Health (VDH) regarding overlapping service recipients in hospitals, nursing homes, etc., was unsuccessful due to the Commonwealth’s HIPAA policy constraints. Reportedly, VDH is not allowed to disclose information to DBHDS due to HIPPA protections against disclosing personal health information. As this was a request that emerged from the Mortality Review Committee, DBHDS reports that it intends to begin situationally filing formal complaints on behalf of individuals served in VDH regulated facilities, in order to surface or identify quality outcome concerns. VDH has indicated they would be responsive to these complaints. The Commonwealth’s Office of Licensing Services and its Office of Human Rights have improved their oversight mechanisms (i.e., adding Regional Managers, OLS creating its supervisory evaluation tool, OHR implementing a supervisory retrospective look-behind process, OLS implementing the Mortality Review Guidance Document increasing the number of citations for inadequate case management performance, OLS increasing citations of providers for late reporting to DBHDS of serious injuries or deaths.) It is not clear whether any enforcement mechanisms included in the Commonwealth’s performance contracts with the CSBs have been utilized to make progress toward fulfilling the requirements of the Agreement.
The DBHDS process of drafting planned revisions to the OLS regulations has continued. The most recent draft (version dated July 17, 2017) includes emphasis on root cause analysis, risk triggers and thresholds, risk management programs, and quality improvement programs. It does not include detailed requirements for Enhanced Case Management, Case Manager/Support Coordinator responsibilities at face-to-face meetings, an assessment of the “adequacy of individualized supports and services,” and direct support staff core competencies (these competencies are apparently in the new Waiver regulations). DBHDS is finalizing its new HCBS Waiver Regulations (12VAC30-50440 to 490) for Case Management/Support Coordination, which show alignment with the Agreement. However, it still appears OLS is the primary monitoring entity for DBHDS regulations.
The Independent Reviewer’s studies of Individual Services, Case Management and the DBHDS Licensing and investigation systems have found several problem areas in CSB performance. These areas of continued CSBs’ performance problem areas include a lack of offering choice of Case Managers annually, monitoring for risk, ensuring that programs are being properly implemented, assembling, assisting, ensuring that ISPs include all essential needs. In spite of the presence of the Commonwealth’s Performance Contract with the CSB, and any enforcement or sanction provisions, CSB performance has not improved substantially, and, as a result, the Commonwealth remains in non-compliance with these provisions.
The Commonwealth is not currently in compliance with III.C.5.d, the requirement to have a mechanism to monitor CSB compliance with Case Management performance standards. DBHDS continues to be in compliance with Section V.G.1. and 2.
DBHDS is not currently in compliance with the requirements of Section V.G.3. Based on this review, DBHDS is moving towards, but does not have evidence yet at the policy level, that OLS is identifying systemic patterns of compliance problems with the Agreement, including its “data and assessments” across the eight (8) domains at Section V.D.3.
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The Commonwealth is also not currently in compliance with Section IX.C, which requires that there be “…sufficient records to document that the requirements of the Agreement are being properly implemented…”
The Commonwealth is in compliance with V.C.2.
DBHDS is not in compliance with V.C.3, but DBHDS is making progress toward compliance with implementing requirements that its Licensing Specialists verify the implementation of corrective actions that have to do with “health and safety”.
DBHDS is not in compliance with V.C.6., but DBHDS is making progress toward compliance by increasingly taking “appropriate action” with agencies which fail to timely report.
12. Mortality Review
The Independent Reviewer retained an independent consultant to complete a year-long two-phase study to assess the status of the Commonwealth’s progress related to the Mortality Review requirements of the Settlement Agreement. The assessment included review of the Commonwealth’s planning, development, and implementation of the Mortality Review Committee (MRC) membership, process, documentation, reports, and quality improvement initiatives.
When this consultant reviewed the status of the Commonwealth’s compliance with the mortality review provisions during the ninth review period, he identified significant inadequacies. At that time, the records that the Commonwealth maintained related to mortality review lacked information needed for a thorough review; the Mortality Review Committee was categorizing some cases as ‘pending”, due to lack of information, but not adding information at a later date, or closing the case. The MRC tracking data base had significant gaps and had included conflicting information that did not provide when cases were closed. During 2015 and 2016, the MRC had met an average of twelve or more times each year, but had not met during some months. During 2016 and the first phase of this review, the membership of the MRC included all required members, except one. It did not have a member with the clinical experience to conduct mortality reviews who was independent of the state. During 2015 and 2016, the percent of the mortality reviews completed within 90 days, as required, had declined significantly and, during the first phase of this review in May 2017, the MRC had established an “operating procedure” that resulted in closing cases at 90 days, when it had not yet received sufficient information to complete mortality reviews of clinical value. Although intended to ensure the MRC completed reviews within ninety days, or document the unavailability of needed records, the procedure did not focus on fulfilling the Agreement’s requirement. These factors contributed to the conclusion that a “significant percentage of cases closed without adequate information and deliberation” to allow the MRC to “effectively identify problems at the individual” and the “systemic level or the systemic trends and patterns.” During the second of the two-phase study, to establish the baseline context for the changes and progress which has occurred, the consultant reviewed and confirmed the current status of:
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• The stated purpose and role of the MRC mortality reviews and its role; • The process for community-based providers’ reports of deaths to DBDHDS within 24 hours; • The clinical review of all information available about the death; • The presentation of a summary of findings to the Mortality Review Committee; • The MRC process to categorize each death as expected or unexpected; • The MRC options for action steps that may occur, machining recommendations; and • The provision of the outcome of the MRC process (i.e., findings, recommendations. etc.) to
the Quality Management Committee and to the Commissioner for review and action.
Details of the consultant’s findings, analysis and conclusions are included in Appendix J.
During the second phase of the study, in October, the consultant found that DBHDS had made substantial progress. The MRC had replaced its operating procedure to ensure a focus on “initiating the mortality review within ninety days of the death” and “meetings as often as necessary are reviewed within ninety days with a report prepared and delivered to the Commissioner.” The MRC had also instituted a much-improved review process. The MRC now focuses on
• Gathering a standard packet of information in a timely manner; • Having a nurse reviewer complete a clinical review; • Summarizing findings following a standard format; and • Presenting this information to the Mortality Review Committee.
Since the information gathered is now sufficiently complete, when the requested documents are submitted, the new clinical review process has contributed to a trend of the MRC having fewer “pending cases” and timely completion of mortality review with clinical value.
The results of the improved mortality review process are evident in the table below. During the most recent six-month period, the number of cases with “outcome pending” or “outcome blank” has been reduced and the number of cases with “pending resolved” has increased.

Calendar Year 2015 2016 2017*
(Jan-Mar) 3-months
2017 (Apr-Sep) 6-months

TABLE 5

Mortality Review Committee

Cases - Outcomes - Pending

# Cases Outcome Outcome Pending

reviewed pending blank resolved

307

48

15

31

295

9

57

4

Action Steps/Alerts, etc. 75 80

50

2

9

0

23

91

8

3

5

52

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The MRC process, however, continues to lack a structure or process to rapidly review unexpected deaths. The DBHDS Office of Licensing Services staff are involved in a timely review of such deaths timely, however, Licensing Specialists do not have the clinical expertise to complete a quality mortality review. The MRC has discussed the criteria for Licensing Specialists to use to determine whether medical consultation is needed, “to determine if other individuals in the home may be at risk.” Providing such needed clinical consultation to Licensing Specialist, when needed, could provide a rapid review that ensures the health and safety of housemates; there is no documentation that any action has been taken to implement this recommendation.
During 2017, the MRC has met during at least once every month, as required. Attendance of MRC members has improved during all three quarters of 2017 and minutes of meetings now include the name, expertise and affiliation of each meeting participant.
DBHDS reported that the MRC has not recruited “at least one member with the clinical experience to conduct mortality reviews who is otherwise independent of the State.” The MRC process for timely completion of the mortality reviews remains a challenge. At the time of the consultant’s interviews with the DBHDS staff, the nurse (LPN) reviewer was completing reviews for the deaths that occurred in April 2017. However, this nurse reviewer had only been in the position for a few months; DBHDS projects that the MRC backlog will be resolved over the next few months. It was unclear if additional nurse reviewer hours need to be assigned, temporarily or permanently, to resolve the backlog of cases needed to meet compliance in this area.

Year 2014 2015 1/1/2016-6/30/2016 7/1/2016-12/31/2016 1/1/2017-3/31/2017 4/1/2017-9/30/2017

TABLE 6

Mortality Reviews

Completed within 90 days

Within 90 days Exceeds 90 days

123

103

71

216

37

127

1

107

1

72

1

64

% compliance 54% 24% 23% 1% 1% 2%

Previous reviews found significant gaps in the MRC data base, “Mortality Tracker.” Many columns were blank, data indicated that documents that were the custody of the Commonwealth were reported as not available, and it was not clear whether “no maltreatment” meant that records were not available or that no maltreatment had occurred. The second phase of this study found significant improvement. DBHDS data analysts have created systems to review the data for completeness, accuracy, and consistency. To improve the completeness and integrity of the data available, it has limited the number of staff with privileges to enter/edit data to improve consistency, streamlined the review process, and added a layer of review to check data reliability. The need for definitions for each data field, however, remains unaddressed and a challenge. DBHDS limited the number of staff with privileges to enter/edit data to improve consistency, streamlined the review process, and added a layer of review to check data reliability. The need for definitions for each data field, however, remains unaddressed and a challenge.

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The MRC is continuing to make further improvements in data collection. Currently DBHDS is working toward capturing death certificate information electronically. The table below depicts the improvement as of October 2017 in the information available for the mortality reviews.

TABLE 7

Mortality Review Committee

Information Reviewed

YR

#

Med Drs’ Nurses IRs IPP Mal PE Death

cases rec notes notes

tx

re-

cert

data cord

2014

226 0

0

0

00 0 0

4

2015

289 1

1

1 289 3 40 0

2

2016* 164 1

1

2 161 2 39 1 15

2016** 108 17 15

6 93 23 29 14 6

2017*** 138 58 29 36 137 76 4 44 21

*1/1/2016-6/30/2016, **7/1/16-12/31/16, ***1/1/17-6/27/17

Autopsy
1 1 7 1 4

interview
0 0 3 4 0

The MRC has also established a process for tracking follow-up to its recommendations using its “Follow up Action Documentation and Reporting Process.” This process includes specific tracking of each recommendation. This tracking includes identification of the lead office assigned to each recommendation, the completion date and any actions taken.

The MRC has significantly improved its process, which has positively impacted the quality and completeness of required documentation and data integrity and the quality of the MRC reviews. These improvements have allowed the MRC to discuss and determine findings more effectively and efficiently, to improve the accuracy of its categorization of each death and to make needed recommendations. The MRC has been able to significantly increase its ability to obtain and to review the needed documents given the increased staff support that DBHDS has provided to the MRC. The current MRC processes appear to be a much more effective and efficient process and to be improving the quality of the mortality review process and outcomes.

Annual Report of Mortality

DBHDS finalized and published the annual report Mortality Among Individuals with a Developmental Disability: DBHDS Annual Mortality Report for January 1, 2015 – June 30, 2016.” This “Annual Report” included an eighteen-month period, so that the time period of future annual reports would align with the twelve months of the Commonwealth’s Fiscal Year. The most recent report includes a review of available MRC data, analysis and a summary of findings. The Report also included several recommendations that were based on MRC findings and which provide direction for future endeavors by the MRC.

The MRC, however, did not include information in its “Annual Report” or in the Mortality Review Committee Tracking document to indicate what action steps have been taken (the Safety Alerts, the assistance/action steps taken in response to deaths in the provider agencies, etc.) to implement the MRC’s past recommendations. In addition, the “Annual Report” did not prioritize needs that the DBHDS Commissioner should consider to facilitate implementation and completion of the MRC recommendations.

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Quality Improvement Program
The MRC completed the “Mortality Review Committee Quality Improvement Plan March 2017,” prior to the first phase of the consultant’s study. The Improvement Plan listed eight goals that were based on the recommendations included in its “Annual Report.” Each goal had from one to eight action steps to be completed in order to achieve the goal. The plan identified the office responsible for implementing each action and the date when it was expected to be completed. At that time, two of the action steps for one of the goals had been completed. The MRC provided and updated its document, “Mortality Review Committee: Quality Improvement Plan Calendar Year.” At the end of the eleventh review period, September 30, 2017, DBHDS reported progress and the completion dates for one or more action steps toward achieving each of three of the goals. No progress was reported on the implementation of the action steps listed for the other five goals.
The DBHDS Quality Improvement Committee reviews the MRC recommendations every sixmonths. At its July 6, 2017 meeting, an update was provided to the QIC on the progress that the MRC has made and its recommendations. The QIC did not identify any actions that it would take or recommend based on the information provided.
Offer Guidance and Training to Providers
The Office of Integrated Health Services (OIHS) also provided ongoing technical assistance to the community service providers. The MRC makes recommendations that OIHS follow-up on issues identified in mortality reviews, including developing safety alerts and providing training and/or technical assistance. OIHS was in the process of finalizing, and/or updating, several Alerts, since phase I of this review in May 2017. The consultant reported that the alerts were of high quality. They were written for easy understanding by the lay public and included source references. OIHS had also created one page, “in a nutshell,” summaries of these alerts. These revised Alerts are an indication of an ongoing quality improvement approach: the periodic review of what has been learned since the implementation of a policy and practice that addresses a complex issue, whether it had achieved the intended outcome, and whether it can be improved, and, if so to identify and make needed revisions. It is important that OIHS recognizes that its safety Alerts should be periodically updated (e.g. every 2 to 3 years).
Collecting and Analyzing Mortality Data
MRC has significantly improved its processes for collecting and for documenting data. The second phase of this review found positive result from the work of DBHDS staff in this area. The MRC’s Mortality Tracker data base includes additional categories and is more complete. This progress is due, in part, to access to autopsies, death certificates, and improved documentation, as well as to the MRC reliably entering the information that it has received. Having more complete information will allow DBHDS to more effectively identify trends, patterns, and problems at the individual servicedelivery and systemic levels and develop and implement quality improvement initiatives.
The Commonwealth is not in compliance with Section V.C.5. The MRC has made important and positive progress. It has improved its processes for gathering needed documents, for collecting data, for documenting the records of its deliberations, findings, and recommendations; it has begun elements of a quality improvement program to reduce mortality rates. The MRC membership does not meet the requirements of the Agreement.
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13. Provider Training
The Settlement Agreement provides specific direction to the Commonwealth regarding the provision of core competency-based training for all staff who provide services under the Agreement. It states:
“V.H.1. The Commonwealth shall have a statewide core competency-based training curriculum for all staff who provide services under this Agreement. The training shall include person-centered practices, community integration and self-determination awareness, and required elements of service training.
V.H.2. The statewide training program includes adequate coaching and supervision of staff trainees. Coaches and supervisors must have demonstrated competency in providing the service they are coaching and supervising.”
In the Fall of 2014, 2015, and again in 2017, the Independent Reviewer retained an independent consultant to review the status of the Agreement’s requirements related to competency based training. Between May and November 2017, two consultants completed a two-phase study that included extensive review of documentation and interviews with senior staff at DBHDS, four CSBs, and five private community-based IDD service providers. The CSBs and private providers that were included in the study were selected by the Independent Reviewer.
DBHDS began implementing its Provider Training Plan in December 2015. DBHDS updates list the six strategies and updates on completion of major milestones and tasks. A brief description of the DBHDS strategies and status reports for each, the areas of focus for the interviews at DBHDS, CSBs and service providers, are included at Appendix K.
Overall, DBHDS, through an organized planning and implementation effort, has taken some important steps in the development and implementation of a statewide core competency-based curriculum for staff who provide direct services and supports for individuals in its various programs for persons with intellectual and developmental disabilities.
DBHDS leadership staff have begun to evolve the role of DBHDS from one of provider training to “provider development.” Specific to training initiatives, DBHDS plans to establish expectations, and develop or coordinate the development of some curricula. CSBs and providers are expected to develop additional curricula as needed, and provide or purchase training. This shift in responsibility will redirect human resources within DBHDS from the role from providing direct training to supporting the development of each provider’s staff training capacity. This shift appears necessary as the system of community-based services grows larger and more complex across the Commonwealth. In the experience of the Independent Reviewer, the best providers have dependable systems in place that ensure that each staff can demonstrate competence when proving the elements of each individual’s services. The service system should include oversight mechanisms (i.e., case management, licensing, post move monitoring, investigations) that ensure that each service provider has such competencybased staff training systems in place.
DBHDS established mechanisms to obtain input from and participation of providers and other relevant stakeholders in developing the Provider Training Plan, the training curriculum, and the training manual. DBHDS also implemented a communication plan to provide information to its
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network of impacted community-based providers and CSBs about the training plan, the providers’ responsibilities to ensure effective use of the revised training curricula, for both new and incumbent staff, and the requirements for providers to measure competency of staff initially and on an ongoing basis. DBHDS reports devoting considerable effort to share information with provider organizations through its ListServe. Consultant interviews found that providers and CSB staff were aware of this information source and, as the revised core competency-based training processes have evolved, they shared increasing references to and familiarity with the information promulgated by the Department through this information source.
DBHDS developed an orientation training curricula and competency-based measures for direct support professionals and their supervisors, which represented significant revisions to the previous orientation training manual. DBHDS began initial implementation of this revised curricula and checklists in the fall 2016; and it expected all service providers to train or retrain all staff by February 28, 2017. DBHDS continued to review and revise these curricula and, on September 25, 2017, issued revised curricula for behavioral and autism competencies for Direct Support Professionals and Supervisors.
The Commonwealth made emergency modifications to regulatory requirements to establish an initial mechanism for review and enforcement, if necessary, of providers’ adherence to the training requirements. Emergency regulations (i.e., 12VAC30-120-515) related to the Waiver implementation, which are in effect from September 1, 2016 through February 28, 2018, set forth the requirements for competency-based training. DBHDS staff anticipate that final regulations will be approved in advance of the February 28, 2018 expiration date of the emergency regulations.
The Commonwealth has continued to review, improve and expand its provider and Case Manager training curricula. It has streamlined two sets of competencies, updated the Supervisors’ training requirements, and is revising the Case Manager training modules. DBHDS provided training for Case Managers on August 30, 2017 and the Office of Integrated Health Services continued to provide training related to significant health issues and dental services.
As the full implementation of the revised training competencies and supervisory coaching matures, DBHDS has not yet, but must, develop mechanisms for determining whether CSBs and providers are implementing the competency-based training, whether the training results in staff being able to demonstrate competence, and whether the competencies developed are having the intended impact in more positive and fewer negative outcomes for the individuals served.
DBHDS reported considering utilizing its Office of Licensing Services, which provides regulatory oversight of community-based providers, as the primary means to measure compliance with the newly revised competency-based training requirements for staff. DBHDS has not yet established the indicators of compliance or what measures Licensing Specialists would utilize to determine the extent to which a provider has adhered to the indicators that training requirements had been met and, if not, how it would remediate any issues identified. The DBHDS Quality and Risk Management Division staff recognize the need to incorporate training and the outcomes of training into the measures they are developing.
The DBHDS Quality and Risk Management Division staff recognize the need to incorporate training and the outcomes of training into the provider training measures they are developing.
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The Commonwealth staff have made progress in developing and disseminating a set of competencies designed to improve the quality of services and supports provided to individuals with IDD that the system services. However, after completing their recent review, the consultants reported several concerns:
• Many of the competencies that the Commonwealth has developed are not measurable. This lack of measurability is a serious flaw. If not addressed, it will negatively impact both providers’ ability to consistently ensure their staff have the necessary competencies and the Commonwealth’s ability to reliably measure providers’ compliance with, and otherwise hold providers accountable to fulfill, the requirements.
• The Commonwealth has not identified or created the mechanisms, or the responsibility, to develop additional competencies necessary for staff to fully support individuals with complex medical and behavioral needs.
• The consultants were not able to determine whether supervisors had actually assessed whether staff could demonstrate competencies after the staff had “completed” the new competency-based trainings. All staff were required to complete by February 28, 2017. The consultants’ study was also too limited to make definitive findings about providers’ ability to assess and modify their staff training curricula and delivery mechanisms to ensure that all staff can demonstrate competence.
DBHDS has taken a number of important steps to develop and to begin implementation of a reasonable plan to ensure the competency of all staff who provide services for individuals under the terms of the Settlement Agreement. The Commonwealth developed the plan with input from stakeholders and established milestones to measure the completion of required elements. The plan contains methods to ensure effective communication of plan requirements, implementation efforts, and, to a limited extent, resources available to service providers to deliver effective competencybased training. DBHDS’s implementation has continued to demonstrate that its staff have become aware of necessary additions and/or improvements, and has made some of these revisions as its implementation has progressed. However, DBHDS has not yet implemented mechanisms to fully measure CSBs’ and providers’ implementation of the training requirements.
The Commonwealth has not identified a set of measurement criteria, data indicators to measure the quality or impact of the revised competency-based training, or specific positive or negative outcomes that will be measured to determine the efficacy of the competency-based training plan. The Commonwealth has not yet finalized how the Office of Licensing Services, DMAS, and the DBHDS Quality and Risk Management Division will assess various components of CSB and provider training. While the monitoring portion of the plan is being finalized, the Commonwealth must develop specific data indicators and measurement criteria. Training requirements and identified competencies that cannot be consistently measured cannot be effectively implemented, or monitored or result in reliable reporting. This review did not assess the quality of the training provided and/or the outcome of the training in terms of the competency of staff.
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IV. CONCLUSION
During the tenth and eleventh review periods, the Commonwealth made a concerted, statewide and multisystem effort to implement its redesigned HCBS waiver programs. Although not expected to immediately impact many aspects of service provision, the redesigned waivers have resulted in substantial change in the provision of integrated day services. Individuals and families have shown significant increased interest and providers have demonstrated the ability to implement this new model. The Commonwealth will continue to implement the redesigned waivers and will incorporate other planned changes in its two waiver renewal applications in 2018. Planned changes include new services to support the provision of the new integrated day services and additional quality strategies to strengthen its quality management system as required by the Agreement.
The Commonwealth’s previous initiatives to create more integrated housing options have resulted in a significant increase in the availability of independent living options and smaller more integrated group home serving four or fewer individuals. The Commonwealth has made substantial progress in other areas as well: medical care, Office of Licensing Services and Human Rights oversight, ground work for a quality management system, diversion of children from admissions to Nursing Homes, and timely responses by mobile crisis teams. XXX The Commonwealth is currently in noncompliance with many provisions due to or more of the following factors: the lack of planning, development, implementation, effectiveness or adequacy. Six core areas of concern that the Independent Reviewer will prioritize these areas for monitoring and review during the twelfth and thirteenth review periods:
• CSB Case Management and the Commonwealth performance contract • Crisis Services, ongoing behavior support services, and psychiatric hospitalizations • Pay rates for in-home nursing and direct support professionals • Children living in nursing homes and ICFs • DBHDS Licensing Regulations and Quality and Risk Management and Quality
Improvement Programs at the provider and CSB levels. • Provider training and staff competency in the elements of each individual’s services
The Commonwealth’s leaders are pleased with the progress and accomplishments that it has achieved during the first year of implementing the redesigned HCBS waivers. The Commonwealth has initiatives underway, or under consideration, to address most of the six core areas of concern listed above. As systemic changes will continue during the coming year and beyond, it is critical that the Commonwealth revise its Licensing regulations as soon as possible and inform the CSBs and providers of its requirement that they implement quality and risk management and quality improvement programs. Effectively implementing these programs, as required by the Agreement, will provide important safeguards as the Commonwealth implements system change efforts that will fulfill the requirements of the Agreement and its promises to all Virginians, especially those with intellectual and developmental disabilities and their families.
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V. RECOMMENDATIONS
The Independent Reviewer’s recommendations to the Commonwealth regarding services for
individuals in the target population are listed below. The Independent Reviewer requests a report regarding the Commonwealth’s actions to address these recommendations and the status of implementation by March 31, 2018. The Commonwealth should also consider the recommendations and suggestions included in the consultants’ reports included in the Appendices. The Independent Reviewer will study the implementation and impact of these recommendations during the thirteenth review period (April 1, 2018 –September 30, 2018).
Behavioral Support Services Recommendations:
1. The Commonwealth should establish basic expectations for the adequacy of behavioral programming. The Commonwealth’s expectations should address the following issues: • developing, training, and monitoring by a qualified professional, • completing a comprehensive functional behavioral assessment in the current setting, • including key components in a behavior support plan, • including clear specification of measurement procedures regarding data collection, • ongoing data collection on target and replacement behaviors, and • including evidence based strategies
2. The Commonwealth should establish basic expectations for the adequacy of Behavior Support Plans. The Commonwealth’s expectations should address the following issues: • developing, training, and monitoring by a qualified professional; • individualizing (e.g., based on the individual’s needs as well as skills, preferences, etc.); • emphasizing positive behavior interventions and supports; • targeting behaviors for decrease, using observable and measureable terms; • targeting behaviors for increase, including functionally equivalent replacement behaviors; • measuring and reviewing procedures for data collected on target and replacement behaviors • modifying the environment to prevent or lessen the likelihood of target behaviors and to support adaptive behavior. • identifying antecedents (or ‘triggers’) and the provision of related preventative strategies, • teaching strategies aimed at teaching and/or eliciting adaptive behavior.
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Case Management 3. The Commonwealth should provide additional support and technical assistance to CSBs that
do not meet DBHDS Data Dashboard targets over time. The Commonwealth should require quality improvement plans for CSBs that achieve less than the DBHDS targets, as follows: • require a quality improvement plan, including a “data entry improvement plan”, for CSBs
that achieve less than 80% on all Data Dashboard measures. • require a “Case Management/Support Coordination” performance improvement plan for
CSBs that achieve less than 90% on all Data Dashboard measures. 4. DBHDS should require documentation of the Case Manager’s annually required to “offer of
choice among providers, including of case managers”, as it has with the annual requirement to provide education of less restrictive services. The annual ISP process would include a meaningful discussion of choice. The ISP document would include a standard offer of choice of service providers, which would be reviewed and signed, if approved, by the individual/Authorized Representative.
Office of Licensing Services
5. The Commonwealth should complete and publish needed revisions to its Licensing Regulations. The revised regulations should align with all related requirements of the Agreement and ensure that the Commonwealth can and does take appropriate actions, as needed.
6. The Office of Licensing Services should modify its Individual Served Record Review Form checklist to specifically include: probes identifying risks to the individual, offering choice among providers, assembling professionals and non-professionals who provide supports, amending the ISP when needed, and determining the adequacy of individual supports and services.
Training
7. The Commonwealth should review and confirm that all competencies are measurable that are developed for the competency-based training curricula.
8. DBHDS should implement look-behind protocols to ensure that “successful completion” of any competency-based training requires staff to demonstrate the trained competencies.
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Regional Support Teams 9. DBHDS should revise its approach to RST review of true emergency placements (i.e. those that
could not have been anticipated and threaten the individual’s well-being if not addressed immediately). Placements that are considered true “emergencies” should not be delayed to process a referral to the RST. These emergency placements, however, should be sorted differently and be distinguishable in the data analytics for RST.
Supported Employment 10. The Commonwealth should study the recent decline in the number of individuals with
Wavier-funded supported employment services; and it should identify and address the barriers to achieving its employment targets.
Crisis Services 11. The Commonwealth should study and determine the root causes of the significant increase in
admissions of individuals with IDD to state operated psychiatric facilities. Studies found two related factors: an unexpected high rate of families refusing REACH services and not all CSB ES Teams informed REACH of individuals with IDD being screened for psychiatric admission.
Quality and Risk Management 12. DBHDS should create a comprehensive data quality improvement plan that provides a
roadmap and specific milestones. This plan should guide its ongoing efforts to expand and improve the quantity and quality of data collected, and the Department’s effective use of data in its measurement of performance.
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 </s> Case 3:12-cv-00059-JAG Document 275 Filed 02/02/18 Page 1 of 12 PageID# 8012

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA, Plaintiff,

v.

Civil Action No. 3:12-cv-59-JAG

COMMONWEALTH OF VIRGINIA, Defendant,

and

PEGGY WOOD et al., Intervenor-Defendants.

OPINION

This case began when the United States, through the Department of Justice ("DOJ"), filed

a complaint alleging that the Commonwealth of Virginia violated the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. The parties simultaneously submitted a

consent decree for the Court's consideration, which would change the way the Commonwealth

provides services to its intellectually and developmentally disabled populations. The Court

permitted a group of certain disabled citizens to intervene (the "Intervenors") and oppose the

proposed decree. After careful consideration, the Court approved the consent decree. (Dk. No.

112.) The Court closed the case, but continues to monitor the parties' progress under the decree.

The Commonwealth has since decided to close four of its five training centers, which housed large disabled populations. The Intervenors 1 filed a motion for injunctive relief to

1 The Court notes that Peggy Wood is the only individual mentioned in the motion for injunctive relief whom the Court recognized as an Intervenor. (See Dk. No. 65.) Nevertheless, this Opinion will refer to the individuals whose interests the motion seeks to protect as "Intervenors."

Case 3:12-cv-00059-JAG Document 275 Filed 02/02/18 Page 2 of 12 PageID# 8013
prevent discharges and transfers from the training centers as they close. The Commonwealth opposed the motion.2 For the reasons stated below, the Court denies the Intervenors' motion.
I. BACKGROUND The Court described the background of this case at length in the Order approving the consent decree (Dk. No. 112), but will reiterate pertinent facts here. The Commonwealth developed training centers decades ago to provide safe living environments for disabled citizens. The Intervenors resided in these training centers, and their families appreciated the treatment and safety that the training centers provided. Over time, experts in the field developed new modalities of care and preferred to allow disabled citizens to live in the broader community, rather than in restricted facilities. Moreover, Congress, through the ADA, "explicitly identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination."' Olmstead v. L.C., 527 U.S. 581, 600 (1999). The ADA thus encouraged "opportunities for people with developmental disabilities to enjoy the benefits of community living." /d. at 599. As a result, the Commonwealth accepted fewer individuals into training centers, and discharged many residents to community facilities. In 2008, the DOJ began investigating Virginia's training centers and ultimately concluded that the centers violated the ADA by preventing disabled citizens from being part of the community. The DOJ demanded that Virginia change its system, and the Commonwealth essentially concurred with the DOJ' s goal of community-based services. The DOJ and Commonwealth agreed to a consent decree. Their agreement calls for the Commonwealth to increase the number of Medicaid waivers in Virginia, which assist disabled
2 The Court also considered the disAbility Law Center of Virginia's amicus brief, filed on behalf of Virginia residents with intellectual and developmental disabilities, opposing the Intervenors' motion. (Dk. Nos. 261, 262.)
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citizens by subsidizing the care and services they need. The decree focuses the Commonwealth's efforts on keeping disabled individuals in the community, and outlines how the Department of Behavioral Health and Developmental Services ("DBHDS"), and the local community service boards ("CSBs"), will share responsibility for community services. It further requires an independent reviewer to report to the Court regarding the decree's implementation.
The Intervenors opposed the decree because they believed its terms would not benefit residents of the training centers. They argued that the decree would require their removal from the training centers, which would harm their well-being, as they regarded the training centers as their homes. The Court considered these arguments, reviewed letters and amicus briefs for and against the decree, and toured facilities. The Court also held a fairness hearing, during which it allowed the United States, the Commonwealth, and the Intervenors to share their positions. Following these proceedings and after careful consideration, the Court approved the consent decree in August 2012.
Since that time, the Commonwealth has planned to cease residential operations at four of its five training centers, including the Central Virginia Training Center ("CVTC"). In August 2016, DBHDS notified authorized representatives of CVTC residents that its nursing facility would close. If the residents or their representatives did not select alternative placement within the time allotted, DBHDS transferred them to Hiram Davis Medical Center.
Citing two deaths that occurred after the transfers from CVTC began, the Intervenors now argue that Hiram Davis is inferior to CVTC. The Intervenors ask the Court for various forms of injunctive relief, with the goal of undoing and preventing further allegedly forcible or illegal transfers to Hiram Davis or other facilities that do not provide care comparable to the care CVTC provided.
3

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II. DISCUSSION The Intervenors' motion asserts violations of (1) Virginia Code § 37.2-837(A)(3), which provides that individuals shall not be discharged from training centers against their will; and (2) Chapter 639 of the 2014 Acts of Assembly (the "Act"), which requires DBHDS to certify, before transferring training center residents, that the receiving facility provides a comparable quality of care, and that DBHDS has disclosed all legal placement options. The Commonwealth opposes the motion on the grounds that (1) the Intervenors lack standing; (2) the Court does not have subject matter jurisdiction over the motion; and (3) the Intervenors do not meet the standard for injunctive relief. The Court will consider each argument in tum.
A. Standing Article III limits federal courts to hearing cases or controversies, which means that parties invoking a federal court's authority must establish standing. Ansley v. Warren, 861 F.3d 512, 517 (4th Cir. 2017) (citing Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011)). To do so, a party must prove a "concrete and particularized injury that is fairly traceable to the challenged conduct of the defendant and is likely to be redressed by a favorable judicial decision." Id. (internal quotations and citations omitted). Courts consider intervenors parties to lawsuits until the party on whose side intervention occurred no longer remains in the suit. Diamond v. Charles, 476 U.S. 54, 68 (1986). At that point, intervenors must demonstrate that they independently fulfill the standing requirements. ld. In other words, intervenors continue as parties as long as the suit is "alive." Shaw v. Hunt, 154 F.3d 161, 166 (4th Cir. 1998). This Court permitted the Intervenors to intervene before entering the consent decree, and added them as defendants to this suit. (Dk. No. 65.) Certain out-of-circuit cases have deemed a consent decree insufficient to establish an ongoing case or controversy, but this case is distinct.
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E.g., Dillard v. Chilton Cty. Comm 'n, 495 F.3d 1324, 1336 (11th Cir. 2007). Here, the Court did not merely retain jurisdiction in case the parties asked the Court to enforce the decree; rather, the Court actively monitors implementation of the decree. Thus, the Court finds that the Intervenors remain parties to this suit and have standing to bring their motion for injunctive relief.
B. Subject Matter Jurisdiction The party asserting subject matter jurisdiction bears the burden of proving it. Adams v. Bain, 691 F.2d 1213, 1219 (4th Cir. 1982). If a federal court does not have federal question or diversity jurisdiction over a claim, it may assert supplemental jurisdiction if that claim is "so related" to another claim over which the court has original jurisdiction, meaning the claims form "part of the same case or controversy." 28 U.S.C. § 1367(a). In other words, a federal court has supplemental jurisdiction over state law claims if they arise out of "'a common nucleus of operative fact' such that the plaintiff would ordinarily be expected to try the claims in one judicial proceeding." White v. Cty. of Newberry, 985 F.2d 168, 171 (4th Cir. 1993) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). The Intervenors assert their motion is part of the same controversy as the underlying case because the Court's Order approving the consent decree stated that Virginia Code § 37.2837(A)(3) provided "bedrock assurance" that the Commonwealth would not evict individuals from training centers. (Dk. No. 112, at 9.) While the Intervenors' motion might relate to the facts underlying the DOJ's case against the Commonwealth, the claims are not "so related" that they form "part of the same case or controversy." 28 U.S.C. § 1367(a). The Intervenors' motion does not pertain to the Commonwealth's ADA violations. Nor does the motion seek to enforce the terms of the consent decree, which aims to improve the Commonwealth's ADA compliance. Moreover, one would not ordinarily expect a party to try claims regarding the training centers'
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non-compliance with the ADA in the same proceeding as a claim under Virginia Code § 37.2837(A)(3), which prevents the Commonwealth from forcibly removing residents from these training centers.
Even if the Intervenors' claims were "so related" to the underlying claims in this case, this Court would not have jurisdiction. Eleventh Amendment sovereign immunity insulates states from suits by its own citizens, Bockes v. Fields, 999 F.2d 788, 790 (4th Cir. 1993), and prevents federal courts from enjoining states based on state law claims. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 124 (1984). Moreover, "neither pendent jurisdiction nor any other basis ofjurisdiction may override the Eleventh Amendment."3 Pennhurst, 465 U.S. at 121. Thus, even if the Intervenors' state claims formed part of the same case or controversy as the DOJ's ADA claims, the Eleventh Amendment and Pennhurst bar the Court from exercising supplemental jurisdiction over them, as it does not have jurisdiction to enjoin the Commonwealth for violations of Virginia law.
For these reasons, the Court does not have subject matter jurisdiction over the Intervenors' motion. Nevertheless, the Court will discuss the merits of the Intervenors' motion for injunctive relief.
C. Injunctive Relief The Intervenors appear to request both permanent and preliminary injunctive relief, so the Court will address both. As a threshold matter, an injunction is an extraordinary remedy, which a court should only grant after carefully balancing the competing interests involved. Vol/ette v. Watson, 978 F. Supp. 2d 572, 583 (E.D. Va. 2013).
3 Congress abrogated states' sovereign immunity under Title II of the ADA, but this does not affect the immunity analysis regarding allegedly pendent state law claims. See Willoughby v. Henrico Cty., No. 3:14-cv-223, 2014 WL 2925332, at *4 (E.D. Va. June 27, 2014), aff'd, 584 F. App'x 180 (4th Cir. 2014) (considering ADA and state law sovereign immunity separately).
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I. Permanent Injunction A party seeking a permanent injunction must establish: (I) the remedies available at law, such as monetary damages, are inadequate compensation for the injury suffered; (2) the movant suffered irreparable harm; (3) the balance of equities tips in the movant's favor; and (4) the injunction is in the public interest. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 39I (2006). Courts often consider the first two factors together. Vollette, 978 F. Supp. 2d at 583. In other words, "generally, 'irreparable injury is suffered when monetary damages are difficult to ascertain or are inadequate."' MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 55 I (4th Cir.l994) (quoting Danielson v. Local 275, 479 F.2d I033, I037 (2d Cir. I973)), abrogated on other grounds. Certainly, the serious bodily injury and death that the Intervenors allege constitutes irreparable harm, but this case involves further complexities. See Columbia Gas Transmission, LLC v. Robert Borror Logging, LLC, No. 2:I2-cv-39, 20I2 WL 2294870, at *2 (N.D. W.Va. June I5, 20I2). Due to staffing inadequacies, which would expose residents to serious harm if left unaddressed, the Commonwealth planned to close CVTC. The DBHDS Commissioner transferred CVTC residents who did not select alternative placement to Hiram Davis, and Virginia Law authorizes the Commissioner to transfer individuals from one training center to another.4 Va. Code§ 37.2-840(A). It is not clear that the Commonwealth's lawful acts led to the particular irreparable harm the Intervenors allege, especially in light of the CVTC staffing crisis.
4 The Court assumes without deciding that Hiram Davis qualifies as a training center pursuant to the definition in Virginia Code§ 37.2-IOO. To the extent the parties dispute this definition, a state court would be a more appropriate venue to resolve the issue. See Louisiana Power & Light Co. v. City ofThibodaux, 360 U.S. 25, 27 (I959) (noting that federal courts should abstain from deciding unsettled issues of state law).
7

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Thus, with sympathy to the tragic circumstances the Court observed at the hearing on this motion, the Court finds the Intervenors have not carried their burden with regard to this element.
In determining whether the third factor, the balance of equities, tips in the movant's favor, courts must weigh the effects on each party of granting or withholding the requested relief. Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 24 (2008). This entails balancing the harm the movant established under the second factor, with any harm the non-movant would suffer if the court granted the injunction. Manning v. Hunt, 119 F.3d 254, 263 (4th Cir. 1997).
The Court struggles to reconcile the competing interests in this case. To begin, the Intervenors have not shown that the Commonwealth's actions pursuant to the consent decree led to the irreparable harm alleged. On the other hand, granting injunctive relief would require the Commonwealth to return Intervenors to training centers that have closed or soon will close. It would also prevent the Commonwealth from lawfully transferring residents from training centers that it plans to close. The consent decree does not preclude the Commonwealth from closing training centers; instead, it envisions a community-based scheme for disabled citizens, which will comply with the ADA. Moreover, Virginia law permits the Commonwealth to transfer training center residents, an especially salient principle for those who do not select alternative placement as the centers close. Va. Code§ 37.2-840(A). Thus, pursuant to the ADA and Virginia law, the Commonwealth acted on its compelling interests to protect CVTC residents from harmful conditions at an understaffed facility and move toward community-based care. For these reasons, the balance of equities tips in the Commonwealth's favor.
Finally, courts must consider the public consequences of "employing the extraordinary remedy of injunction." Winter, 555 U.S. at 24. While the Court understands the Intervenors' concerns, the Commonwealth and DOJ have determined that closing the training centers serves
8

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the public interest. Doing so will direct resources toward broader community-based services for Virginia's disabled residents, as set forth in the consent decree. The Commonwealth and DOJ agree that the preferred treatment modality allows disabled individuals to assimilate into their communities by providing quality community-based care, consistent with the ADA. When the Court approved the decree, it recognized that working toward these goals could entail a difficult transition period, but that ultimately the decree served the public interest, and that remains true. Granting the Intervenors' injunction would not serve the public interest, as it would undo the progress the parties have made toward goals the Court deemed in the best interest of the public when approving the decree.
Considering all four factors, the Intervenors have not carried their burden to establish that the Court should award permanent injunctive relief.
2. Preliminary Injunction A party moving for a preliminary injunction must show: (1) the movant will suffer irreparable harm if the court does not grant relief; (2) the balance of equities tips in the movant's favor; (3) the injunction is in the public interest; and (4) the movant is likely to succeed on the merits. Winter, 555 U.S. at 20. The Court incorporates its prior discussion of the balance of equities and public interest factors, as preliminary injunctive relief requires the Court to consider those factors as well. For a preliminary injunction, however, rather than determining whether irreparable harm has occurred, the Court must decide whether irreparable harm will likely occur if it denies the injunction. Direx Israel, Ltd v. Breakthrough Med Corp., 952 F.2d 802, 812 (4th Cir. 1991). This irreparable harm must be "neither remote nor speculative, but actual and imminent." Id (quotation omitted). "The likelihood of the predicted harm is the central consideration" in
9

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whether to grant a preliminary injunction. Emmett v. Johnson, 489 F. Supp. 2d 543, 550 (E.D. Va. 2007). If the Court cannot say confidently that the harm will more likely than not occur, it should find that the movant did not satisfy their burden. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 530 (4th Cir. 2007), abrogated on other grounds.
The Intervenors have not shown that serious bodily injury and death are "actual and imminent," and will occur if the Court does not grant this injunction. Direx Israel, Ltd., 952 F.2d at 812. In other words, the Intervenors have not demonstrated that the Commonwealth's lawful training center closures and transfer of residents will likely result in the threatened harms. Because the Court cannot confidently say that failing to grant injunctive relief will more likely than not cause imminent harm, the Intervenors have not satisfied this element.
To receive a preliminary injunction, a movant must also make a clear showing that the case will likely succeed on the merits at trial. Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d 342, 345 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
The Intervenors first claim a violation of Virginia Code § 37.2-837(A)(3), which prevents the Commonwealth from discharging individuals on Medicaid from training centers if they choose to remain. The Intervenors have not shown this claim will likely succeed, as they have not demonstrated that DBHDS discharged an Intervenor without consent. Peggy Wood had not selected another placement within the time provided, so DBHDS transferred her to Hiram Davis, but did not discharge her. The Intervenors thus have not made a "clear showing" that DBHDS violated § 37.2-837(A)(3) by discharging individuals who chose to remain in training centers. Real Truth About Obama, Inc., 575 F.3d at 345 (quotation omitted).
The Intervenors also allege that the Commonwealth violated Chapter 639 of the 2014 Acts of Assembly. The Act requires DBHDS to certify that a receiving training center or
10

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community-based option provides comparable medical, health, developmental, and behavioral care and safety, prior to transferring training center residents. Act of April 4, 2014, ch. 639, 2014 Va. Acts (uncodified). The Act also requires DBHDS to disclose all permissible placement options available under the consent decree to residents or authorized representatives before any transfer. !d.
The Intervenors have not clearly shown that their second claim will succeed. Their motion does not demonstrate that DBHDS failed to certify that Hiram Davis provides comparable care prior to transferring residents, especially in light of CVTC's staffing shortages. Moreover, the Act requires DBHDS to certify that the receiving treatment option provides comparable care, but it is not clear that the Act establishes a right of action for individuals who deem any certification false or improper.5 The Intervenors also claim that DBHDS omits the name of the receiving training center on certification forms. Peggy Wood, however, received a certification form naming Hiram Davis, the receiving facility. (Dk. No. 249, Exh. 2.) The Intervenors thus have not made a clear showing that this claim will likely succeed on the merits.
For the foregoing reasons, the Intervenors have not established that these circumstances warrant preliminary injunctive relief.
III. CONCLUSION The Court recognizes the tragic situation at the heart of this case. The Commonwealth opened training centers with the best intentions for its disabled citizens, and those citizens and their families adjusted to the training centers, appreciating the safety the centers provided. Over
5 Virginia state courts are better suited to resolve unsettled questions of state law regarding the Act. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 7I7 (I996) ("[F]ederal courts have the power to refrain from hearing... cases raising issues intimately involved with [the States'] sovereign prerogative, the proper adjudication of which might be impaired by unsettled questions of state law.") (internal quotation and citation omitted).
II

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time, new treatment modaliti es that better serve the public interest developed, replacing training centers as the preferred living arrangement. The Commonwealth now seeks to embrace a treatment philosophy focused on community-based services, and the transition fl-om the training centers is naturally difficult for those who are accustomed to that way of life. The Court approved these goa ls under the consent decree because it fo und they served the public interest and aligned w ith the ADA's objective to encourage community li ving.
Perhaps the law is ill suited to accommodate the complex Issues 111 this case. Nevertheless, the Court must adhere to the law. For the reasons stated in thi s Opinion, the Court finds that, although the Intervenors have standing to pursue their motion for injunctive relief, the Court does not have subj ect matter jurisdiction over that motion. Even if the Court had jurisdiction, the Intervenors would not succeed on their claims for injunctive reli ef. Therefore, the Court denies the Intervenors' motion for injunctive relief.
The Court w ill enter an appropriate Order. Let the Clerk send a copy of thi s Opinion to all counsel of reco rd.

Date ~~ 2
Richmond, VA

. 2018

lsi
John A. Gibney, Jr. United States Dis . t

12

 </s> Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 1 of 24
CLOSED,PROTO
U.S. District Court Eastern District of Virginia − (Richmond) CIVIL DOCKET FOR CASE #: 3:12−cv−00059−JAG

United States of America v. Commonwealth of Virginia Assigned to: District Judge John A. Gibney, Jr Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 01/26/2012 Date Terminated: 09/28/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Robert P. McIntosh United States Attorney's Office SunTrust Building 919 East Main Street Suite 1900 Richmond, VA 23219 (804) 819−5400 Email: Robert.McIntosh@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Zisser U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave NW PHB 5519 Washington, DC 20530 **NA** (202) 305−3355 Fax: (202) 514−4883 Email: aaron.zisser@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Alison Barkoff U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave NW Room 5537 Washington, DC 20530 **NA** (202) 307−3216 Fax: (202) 514−4883 Email: alison.barkoff@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Benjamin O. Tayloe , Jr. U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave NW PHB 5030 Washington, DC 20530 **NA** (202) 514−8103 Fax: (202) 514−4883 Email: benjamin.tayloe@usdoj.gov PRO HAC VICE

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 2 of 24
ATTORNEY TO BE NOTICED
Jennifer Wu Keen US Department of Justice Civil Rights Division, Special Litigation Section 950 Pennsylvania Avenue NW PHB 5421B Washington, DC 20530 NA (202) 353−1118 Fax: (202) 514−6273 Email: jennifer.keen@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Polansky US Department of Justice Civil Rights Division 950 Pennsylvania Avenue, PHB 5427A Washington, DC 20530 **NA** (202) 353−1280 Fax: (202) 514−4883 Email: jessica.polansky@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle Edward Smiddie US Department of Justice Civil Rights Division, Special Litigation Section 601 D Street NW Washington, DC 20004 NA (202) 307−6581 Fax: (202) 514−0212 Email: kyle.smiddie@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Richard James Farano US Department of Justice Civil Rights Division, Special Litigation Section 950 Pennsylvania Avenue, NW PHB 5020 Washington, DC 20530 NA (202) 307−3116 Fax: (202) 514−0212 Email: richard.farano@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Vincent P. Herman United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Ave NW PHB 5519 Washington, DC 20530 NA (202) 305−3318 Fax: (202) 514−6273

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 3 of 24

Email: vincent.herman@usdoj.gov TERMINATED: 05/09/2013 PRO HAC VICE

Defendant Commonwealth of Virginia

represented by Allyson Kurzmann Tysinger Office of the Attorney General 900 E Main St Richmond, VA 23219 (804) 786−2071 Email: atysinger@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Braden Jon Curtis Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−0144 Fax: (804) 371−8718 Email: bcurtis@oag.state.va.us ATTORNEY TO BE NOTICED

Defendant Robert F. McDonnell

Defendant
VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES

Defendant William A. Hazel, Jr.

Defendant
Virginia Department of Behavioral Health and Developmental Services

Defendant James W. Stewart, III

Interested Party disAbility Law Center of Virginia

represented by Melissa Charnes Gibson Disability Law Center of Virginia 1512 Willow Lawn Avenue Suite 100 Richmond, VA 23230 (804) 662−7242 Fax: (804) 662−7431 Email: charnes.melissa@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary Scott DeVore Disability Law Center of Virginia 1512 Willow Lawn Avenue Suite 100 Richmond, VA 23230 (804) 662−7099 Fax: (804) 662−7431 Email: zachary.devore@dlcv.org

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 4 of 24

ATTORNEY TO BE NOTICED

Amicus ARC of Virginia

represented by Deborah Alyse Dorfman Center for Public Representation 22 Green Street Northampton, MA 01060 **NA** (413) 586−6024 Fax: (413) 586−5711 Email: ddorfman@cpr−ma.org PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Dixon Fleischner Center for Public Representation 22 Green Street Northampton, MA 01060 **NA** (413) 586−6024 Fax: (413) 586−5711 Email: rfleischner@cpr−ma.org PRO HAC VICE ATTORNEY TO BE NOTICED

Steven Jay Schwartz Center for Public Representation 22 Green Street Northampton, MA 01060 **NA** (413) 586−6024 Fax: (413) 586−5711 Email: sschwartz@cpr−ma.org PRO HAC VICE ATTORNEY TO BE NOTICED

Victor Michael Glasberg Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 (703) 684−1100 Fax: 703−684−1104 Email: vmg@robinhoodesq.com ATTORNEY TO BE NOTICED

Amicus Autism Society of Central Virginia

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Autism Society Northern Virginia

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Autism Society Tidewater Virginia

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 5 of 24

Amicus Peninsula Autism Society
Amicus Virginia Down Syndrome Alliance
Amicus Virginia Office for Protection and Advocacy

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Gerald Martinis Virginia Office for Protection and Advocacy 1910 Byrd Ave Suite 5 Richmond, VA 23230 (804) 225−2042 Email: jonathan.martinis@vopa.virginia.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Peggy Wood

represented by Gerard Thomas Schafer Schafer Law Group 5265 Providence Rd Suite 303 Virginia Beach, VA 23464 (757) 490−7500 Fax: (757) 490−9770 Email: rschafer@schaferlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cordelia Elias The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 **NA** (717) 236−9675 Fax: (717) 236−6919 Email: celias@yorklegalgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED
Donald Zaycosky The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 **NA** (717) 236−9675 Fax: (717) 236−6919 Email: dzaycosky@yorklegalgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas York

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 6 of 24

The York Legal Group LLC 3511 North Front Street Harrisburg, PA 17110 **NA** (717) 236−9675 Fax: (717) 236−6919 Email: tyork@yorklegalgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Barbara Fallis

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Tami Lassiter

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Teresa Koury

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 7 of 24

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Jonathon Speilberg

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Marinda Lewis

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Adam Bertman

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 8 of 24

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Jason Kinzler

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Kevin Moran

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Neal Hampton

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 9 of 24

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Sean Johnson

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Kent Olsen

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant Amber Robinson

represented by Gerard Thomas Schafer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cordelia Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 10 of 24
Donald Zaycosky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas York (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 01/26/2012
01/26/2012 01/26/2012 01/26/2012 01/26/2012 01/27/2012 01/30/2012 01/30/2012
01/30/2012 02/06/2012 02/17/2012 02/21/2012 02/22/2012
02/23/2012

# Docket Text
1 COMPLAINT against Commonwealth of Virginia, filed by United States of America. (Attachments: # 1 Civil Cover Sheet)(kyou, ) (Main Document 1 replaced on 6/8/2016) (sbea, ). Clerk replaced with correct document on 11/3/2017) (sbea, ). (Entered: 01/27/2012)
2 Joint MOTION for Entry of Settlement Agreement and Brief in Support by Commonwealth of Virginia, United States of America. (Attachments: # 1 Proposed Order, # 2 Settlement Agreement)(kyou, ) (Entered: 01/27/2012)
3 Motion to appear Pro Hac Vice by Aaron Zisser and Certification of Local Counsel Robert McIntosh by United States of America. (kyou, ) (Entered: 01/27/2012)
4 Motion to appear Pro Hac Vice by Benjamin O. Tayloe, Jr. and Certification of Local Counsel Robert McIntosh by United States of America. (kyou, ) (Entered: 01/27/2012)
5 Motion to appear Pro Hac Vice by Alison Barkoff and Certification of Local Counsel Robert McIntosh by United States of America. (kyou, ) (Entered: 01/27/2012)
6 Summons Issued as to Commonwealth of Virginia (sent to U.S. Marshal for service) (kyou, ) (Entered: 01/27/2012)
7 So Ordered re 3 Motion to appear Pro Hac Vice by Aaron Zisser and Certification of Local Counsel Robert McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 1/27/12. (kyou, ) (Entered: 01/30/2012)
8 So Ordered re 4 Motion to appear Pro Hac Vice by Benjamin O. Tayloe, Jr. and Certification of Local Counsel Robert McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 1/27/12. (kyou, ) (Entered: 01/30/2012)
9 So Ordered re 5 Motion to appear Pro Hac Vice by Alison Barkoff and Certification of Local Counsel Robert McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 1/27/12. (kyou, ) (Entered: 01/30/2012)
10 SUMMONS Returned Executed Commonwealth of Virginia served on 1/31/2012, answer due 2/21/2012 (Original Summons not returned by U.S. Marshal service) (kyou, ) (Entered: 02/06/2012)
Set Hearing: Status Conference set for 2/23/2012 at 10:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney Jr. (wtuc) (Entered: 02/17/2012)
11 MOTION for Extension of Time to File Answer by Commonwealth of Virginia. (Tysinger, Allyson) (Entered: 02/21/2012)
12 ORDER granting 11 Motion for Extension of Time to Thursday, February 23, 2012, for the defendant to answer; a further extension may be warranted, however the Court will address that issue at the status conference scheduled for Thursday, February 23, 2012. Signed by District Judge John A. Gibney, Jr on 2/21/21. (kyou, ) (Entered: 02/22/2012)
13 ORDER that the defendant's filing of an answer is STAYED pending either disposition of the Joint Motion for Entry of Settlement Agreement, or upon further order of the Court. Signed by District Judge John A. Gibney, Jr on 2/23/12. (kyou, ) (Entered: 02/23/2012)

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 11 of 24

02/23/2012 03/02/2012 03/02/2012 03/02/2012 03/02/2012 03/02/2012 03/02/2012 03/05/2012
03/06/2012

14 Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Status Hearing held on 2/23/2012. (Court Reporter K. Liscio, OCR.) (wtuc) (Entered: 02/23/2012)
15 Notice of Appearance as Counsel by Gerard Schafer as to Peggy Wood, Barbara Fallis, Tami Lassiter, Teresa Koury, Jonathon Speilberg, Marinda Lewis, Adam Bertman, Jason Kinzler, Kevin Moran, Neal Hampton, Sean Johnson, Kent Olsen, Amber Robinson. (Schafer, Gerard) Modified on 3/12/2012− was originally docketed as a motion (wtuc). (Entered: 03/02/2012)
16 Motion to appear Pro Hac Vice by Thomas B. York and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934953. by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 03/02/2012)
17 Motion to appear Pro Hac Vice by Donald B. Zaycosky and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934969. by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 03/02/2012)
18 Motion to appear Pro Hac Vice by Cordelia Elias and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934980. by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 03/02/2012)
19 MOTION to Intervene by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit A)(Schafer, Gerard) (Entered: 03/02/2012)
20 Memorandum in Support re 19 MOTION to Intervene filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 03/02/2012)
21 TRANSCRIPT of proceedings for dates of 2/23/12, before Judge John Gibney, Court Reporter/Transcriber Krista Liscio, Telephone number 804 916−2296. NOTICE RE REDACTION OF TRANCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 4/4/2012. Redacted Transcript Deadline set for 5/7/2012. Release of Transcript Restriction set for 6/4/2012.(liscio, krista) (Entered: 03/05/2012)
22 ORDERS the following:(1) Interested people and groups shall have until April 6, 2012, to submit written comments or amicus curiae briefs to this Court regarding the proposed agreement;(2) The Joint Motion for Entry of Settlement Agreement (the "agreement") (Dk. No. 2) is PROVISIONALLY GRANTED, subject to final approval after the submission of comments andbriefs to the Court;(3) The defendant shall make available and provide public notice of this Order by: (1)maintaining it on the website of the Virginia Department of Behavioral Health andDevelopmental Services until at least April 6, 2012; (2) transmitting it to parent groupsassociated with the Defendant's Training Centers, the Arc of Virginia, the Virginia Office for Protection and Advocacy, and the Virginia Association of Community Services Boards; and (3)transmitting it to such other interested persons as the Court identifies to the defendant. The defendant shall certify that it has provided such notice; and (4) The defendant will provide to the Court a list of all ICF/MRs and private facilities equipped to deal with profoundly disabled people within thirty (30) miles of the State Capitol. (See Order for specific details). Signed by District Judge John A. Gibney, Jr on 3−6−12. (kyou, ) (Entered: 03/06/2012)

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03/12/2012 03/12/2012
03/12/2012
03/14/2012
03/16/2012 03/16/2012 03/19/2012 03/19/2012 03/19/2012
03/19/2012
03/20/2012
03/20/2012 03/21/2012 03/21/2012

23 NOTICE by Commonwealth of Virginia Certificate of Compliance (Tysinger, Allyson) (Entered: 03/12/2012)
24 So Ordered re 16 Motion to appear Pro Hac Vice by Thomas B. York and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934953. filed by Sean Johnson, Tami Lassiter, Barbara Fallis, Peggy Wood, Neal Hampton, Teresa Koury, Marinda Lewis, Kevin Moran, Amber Robinson, Adam Bertman, Jonathon Speilberg, Jason Kinzler, Kent Olsen. Signed by District Judge John A. Gibney, Jr on 3/10/12. (kyou, ) (Entered: 03/12/2012)
25 So Ordered re 18 Motion to appear Pro Hac Vice by Cordelia Elias and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934980. filed by Sean Johnson, Tami Lassiter, Barbara Fallis, Peggy Wood, Neal Hampton, Teresa Koury, Marinda Lewis, Kevin Moran, Amber Robinson, Adam Bertman, Jonathon Speilberg, Jason Kinzler, Kent Olsen. Signed by District Judge John A. Gibney, Jr on 3/10/12. (kyou, ) (Entered: 03/12/2012)
26 So Ordered re 17 Motion to appear Pro Hac Vice by Donald B. Zaycosky and Certification of Local Counsel Gerald T. Schafer Filing fee $ 75, receipt number 0422−2934969. filed by Sean Johnson, Tami Lassiter, Barbara Fallis, Peggy Wood, Neal Hampton, Teresa Koury, Marinda Lewis, Kevin Moran, Amber Robinson, Adam Bertman, Jonathon Speilberg, Jason Kinzler, Kent Olsen. Signed by District Judge John A. Gibney, Jr on 3/13/12. (kyou, ) (Entered: 03/14/2012)
27 RESPONSE in Opposition re 19 MOTION to Intervene filed by Commonwealth of Virginia. (Tysinger, Allyson) (Entered: 03/16/2012)
28 RESPONSE in Opposition re 19 MOTION to Intervene filed by United States of America. (McIntosh, Robert) (Entered: 03/16/2012)
29 Letters to Judge (Attachments: # 1 Letters, # 2 Letters, # 3 Letters, # 4 Letters, # 5 Letters)(wtuc) Modified on 6/11/2012 to make public(wtuc). (Entered: 03/19/2012)
30 MOTION for Leave to File Excess Pages of Reply Briefs by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 03/19/2012)
31 REPLY to Response to Motion re 19 MOTION to Intervene filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Schafer, Gerard) (Entered: 03/19/2012)
32 REPLY to Response to Motion re 19 MOTION to Intervene filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Schafer, Gerard) (Entered: 03/19/2012)
33 So Ordered re 30 MOTION for Leave to File Excess Pages filed by Sean Johnson, Tami Lassiter, Barbara Fallis, Peggy Wood, Neal Hampton, Teresa Koury, Marinda Lewis, Kevin Moran, Amber Robinson, Adam Bertman, Jonathon Speilberg, Jason Kinzler, Kent Olsen. Signed by District Judge John A. Gibney, Jr on 3/20/12. (kyou, ) (Entered: 03/20/2012)
34 MOTION for Leave to File A Brief Amici Curiae In Opposition to the Motion to Intervene by ARC of Virginia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit A)(Glasberg, Victor) (Entered: 03/20/2012)
35 NOTICE by ARC of Virginia re 34 MOTION for Leave to File A Brief Amici Curiae In Opposition to the Motion to Intervene Exhibit 3 to Motion for Leave to File A Brief Amici Curiae (Attachments: # 1 Exhibit 3)(Glasberg, Victor) (Entered: 03/21/2012)
36 So Ordered 34 MOTION for Leave to File A Brief Amici Curiae In Opposition to the Motion to Intervene filed by the Arc of Virginia, Autism Society of Central Virginia, Autism Society Northern Virginia, Austism Society Tidewater Virginia, Peninsula

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03/22/2012 03/27/2012 03/28/2012 03/29/2012
03/29/2012 03/29/2012 03/29/2012 03/29/2012
04/02/2012 04/02/2012 04/02/2012 04/02/2012 04/03/2012 04/03/2012 04/03/2012

Autism Society, Virginia Down Syndrome Alliance; Signed by District Judge John A. Gibney, Jr on 3/21/12 (lsal) (Entered: 03/21/2012)
37 Opposition to Motion to Intervene filed by ARC of Virginia, Autism Society Northern Virginia, Autism Society Tidewater Virginia, Autism Society of Central Virginia, Peninsula Autism Society, Virginia Down Syndrome Alliance. (Glasberg, Victor) (Entered: 03/22/2012)
38 Letters to Judge (Attachments: # 1 Letters, # 2 Letters, # 3 Letters)(wtuc) Modified on 6/11/2012 to make entry public(wtuc). (Entered: 03/27/2012)
39 MOTION for Leave to File Reply to Amici Brief by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit 1)(Schafer, Gerard) (Entered: 03/28/2012)
40 So Ordered re 39 MOTION for Leave to File Reply to Amici Brief in Opposition to Proposed Intervenors' Motion to Intervene and Motion to Exceed Page Limit filed by Sean Johnson, Tami Lassiter, Barbara Fallis, Peggy Wood, Neal Hampton, Teresa Koury, Marinda Lewis, Kevin Moran, Amber Robinson, Adam Bertman, Jonathon Speilberg, Jason Kinzler, Kent Olsen. Signed by District Judge John A. Gibney, Jr on 3/29/12. (kyou, ) (Entered: 03/29/2012)
41 Motion to appear Pro Hac Vice by Deborah Alyse Dorfman and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971750. by ARC of Virginia. (Glasberg, Victor) (Entered: 03/29/2012)
42 Motion to appear Pro Hac Vice by Robert Dixon Fleischner and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971780. by ARC of Virginia. (Glasberg, Victor) (Entered: 03/29/2012)
43 Motion to appear Pro Hac Vice by Steven Jay Schwartz and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971793. by ARC of Virginia. (Glasberg, Victor) (Entered: 03/29/2012)
44 REPLY to Response to Motion re 19 MOTION to Intervene filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Schafer, Gerard) (Entered: 03/29/2012)
45 Letters to Judge (Attachments: # 1 Letters, # 2 Letters)(wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 04/02/2012)
46 So Ordered re 43 Motion to appear Pro Hac Vice by Steven Jay Schwartz and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971793. filed by ARC of Virginia. Signed by District Judge John A. Gibney, Jr on 3/30/12. (kyou, ) (Entered: 04/02/2012)
47 So Ordered re 42 Motion to appear Pro Hac Vice by Robert Dixon Fleischner and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971780. filed by ARC of Virginia. Signed by District Judge John A. Gibney, Jr on 3/30/12. (kyou, ) (Entered: 04/02/2012)
48 So Ordered re 41 Motion to appear Pro Hac Vice by Deborah Alyse Dorfman and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−2971750. filed by ARC of Virginia. Signed by District Judge John A. Gibney, Jr on 3/30/12. (kyou, ) (Entered: 04/02/2012)
49 Motion to appear Pro Hac Vice by Vincent P. Herman and Certification of Local Counsel Robert P. McIntosh by United States of America. (McIntosh, Robert) (Entered: 04/03/2012)
50 Memorandum in Support re 2 MOTION for Settlement filed by Virginia Office for Protection and Advocacy. (Martinis, Jonathan) (Entered: 04/03/2012)
51 So Ordered re 49 Motion to appear Pro Hac Vice by Vincent P. Herman and Certification of Local Counsel Robert P. McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 4/3/12. (kyou, ) (Entered: 04/03/2012)

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04/05/2012
04/05/2012 04/06/2012 04/06/2012
04/06/2012 04/09/2012 04/09/2012 04/09/2012 04/11/2012 04/13/2012 04/16/2012 04/27/2012 05/01/2012 05/09/2012
05/09/2012

52 Brief in Support Brief Amici Curiae on Behalf of the National Association of State Directors of Developmental Disability Services, The American Association of Intellectual and Developmental Disabilities, The Association of University Centers on Disabilities, TASH and Robert M. Gettings In Support of the Settlement Agreement filed by ARC of Virginia. (Attachments: # 1 Exhibit Exhibit 1)(Glasberg, Victor) (Entered: 04/05/2012)
53 Letters to Judge (Attachments: # 1 Letters, # 2 Letters, # 3 Letters)(wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 04/05/2012)
54 Letters to Judge (Attachments: # 1 Letters, # 2 Letters)(wtuc) Modified on 6/11/2012 to make entry public(wtuc). (Entered: 04/06/2012)
55 Memorandum to 22 Order on Motion for Settlement,,,,, filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit G−1, # 8 Exhibit G−2)(Schafer, Gerard) (Entered: 04/06/2012)
56 MOTION to Seal by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 04/06/2012)
57 ORDER granting 56 Motion to Seal Exhibit A of 55 Memorandum. Signed by District Judge John A. Gibney, Jr on 4/9/12. (kyou, ) (Entered: 04/09/2012)
58 NOTICE by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood re 55 Memorandum, (Attachments: # 1 Exhibit G−2)(Schafer, Gerard) (Entered: 04/09/2012)
59 Sealed Exhibit A re 55 Memorandum filed by filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (kyou, ) (Entered: 04/09/2012)
60 Letters to the Judge (Attachments: # 1 Letters, # 2 Letters, # 3 Letters)(wtuc) Modified on 6/11/2012 to make entry public(wtuc). (Entered: 04/11/2012)
61 Letters to Judge (Attachments: # 1 Letters, # 2 Letters)(wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 04/13/2012)
62 Letters to Judge (wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 04/16/2012)
63 Letters to Judge. (wtuc) Modified on 6/11/2012 to make entry public(wtuc). (Entered: 04/27/2012)
64 Letter to Judge (wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 05/01/2012)
65 ORDER granting 19 Motion to Intervene; Petitioners' Motion to Dismiss (Dk. No. 19−1) filed as Exhibit A to the Motion to Intervene is DEEMED filed; Plaintiff and Defendant are DIRECTED to respond to the Petitioners' Motion to Dismiss within ten (10) days from the entry of this Memorandum Order; A reply brief to each response from the plaintiff or defendant may be filed by thePetitioners, due no later than six (6) days from the filing of the respective response;As the Court will decide the Petitioners' Motion to Dismiss on the papers, a hearing is unnecessary; and All parties are DIRECTED to contact the chambers within five (5) days of the entry of this Memorandum Order to set a hearing date for evaluation of the Agreement. Signed by District Judge John A. Gibney, Jr on 5−9−12. (kyou, ) (Entered: 05/09/2012)
66 MOTION to Dismiss by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (kyou, ) (Entered: 05/09/2012)

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 15 of 24

05/09/2012 05/15/2012 05/16/2012 05/16/2012
05/16/2012 05/16/2012 05/16/2012 05/17/2012
05/18/2012 05/18/2012 05/21/2012 05/21/2012 05/21/2012

67 Memorandum in Support re 66 MOTION to Dismiss filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(kyou, ) (Entered: 05/09/2012)
Minute Entry for proceedings held before District Judge John A. Gibney, Jr:Conference Call held on 5/15/2012. (Court Reporter G. Halasz, OCR.)(wtuc) (Entered: 05/16/2012)
Set Hearing: Fairness Hearing set for 6/8/2012 at 09:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 05/16/2012)
68 ORDER that the Court hereby ORDERS the following:(1) All discovery is stayed until the Court's decision on the consent decree in this case is finalized; (2) The fairness hearing on the Joint Motion for Entry of Settlement Agreement shall be held on June 8, 2012, at 9:00 a.m.,(3) For the hearing on June 8, 2012, each party shall be allotted a total of ninety (90) minutes of time to present evidentiary matters including direct and cross−examination; After the presentation of evidentiary matters, the Court will hear oral argument from the parties;(4) The parties may file declarations or affidavits on behalf of any individual, whether or not that person appears as a witness at the fairness hearing. Such declarations or affidavits shallbe due no later than fourteen (14) days prior to the Court's fairness hearing; (5) The parties shall submit witness lists and summaries of witness testimony no later than fourteen (14) days prior to the fairness hearing (See Order for further details) Signed by District Judge John A. Gibney, Jr on 5/16/12. (kyou, ) (Entered: 05/16/2012)
69 MOTION For Leave to Participate At Hearing by ARC of Virginia. (Glasberg, Victor) (Entered: 05/16/2012)
70 Memorandum in Support re 69 MOTION For Leave to Participate At Hearing filed by ARC of Virginia. (Glasberg, Victor) (Entered: 05/16/2012)
71 ORDER denying 69 Motion for Leave to Participate at Hearing on Whether to Approve Settlement. Signed by District Judge John A. Gibney, Jr on 5/16/12. (kyou, ) (Entered: 05/16/2012)
72 TRANSCRIPT of proceedings for dates of 05/15/2012, before Judge Hon. John A. Gibney, Jr., Court Reporter Gil Halasz, Telephone number 804 916−2248. NOTICE RE REDACTION OF TRANCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 6/18/2012. Redacted Transcript Deadline set for 7/17/2012. Release of Transcript Restriction set for 8/15/2012.(halasz, gil) (Entered: 05/17/2012)
73 MOTION for Leave to Appear and Participate in Hearing by Virginia Office for Protection and Advocacy. (Martinis, Jonathan) (Entered: 05/18/2012)
74 Memorandum in Support re 73 MOTION for Leave to Appear and Participate in Hearing filed by Virginia Office for Protection and Advocacy. (Martinis, Jonathan) (Entered: 05/18/2012)
75 RESPONSE to Motion re 66 MOTION to Dismiss filed by Commonwealth of Virginia. (Tysinger, Allyson) (Entered: 05/21/2012)
76 RESPONSE in Opposition re 66 MOTION to Dismiss by Intervenors filed by United States of America. (McIntosh, Robert) (Entered: 05/21/2012)
77 ORDER denying 73 Motion for Leave to Present Argument on June 8, 2012 Hearing on Proposed Settlement Agreement. Signed by District Judge John A. Gibney, Jr on 5/21/12. (jtho, ) (Entered: 05/21/2012)

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05/21/2012 05/25/2012 05/25/2012 05/25/2012
05/25/2012 05/25/2012
05/29/2012 05/29/2012 05/31/2012
06/01/2012 06/01/2012 06/01/2012

78 ORDER that the Court, sua sponte, APPOINTS Mary Ann Bergeron as an expert in the above matter; Ms. Bergeron shall prepare a report for the Court prior to the fairness hearing on Friday, June 8, 2012. She will also testify at the hearing. Signed by District Judge John A. Gibney, Jr on 5/21/12. (jtho) (Entered: 05/21/2012)
79 Witness List by United States of America. (McIntosh, Robert) (Entered: 05/25/2012)
80 Witness List by Commonwealth of Virginia. (Tysinger, Allyson) (Entered: 05/25/2012)
81 AFFIDAVIT in Support re 2 MOTION for Settlement [PREHEARING SUBMISSION OF DECLARATIONS] filed by United States of America. (Attachments: # 1 Affidavit Boose, # 2 Affidavit Brandt, # 3 Affidavit Childress, # 4 Affidavit Clark, # 5 Affidavit Cramer, # 6 Affidavit Evans, # 7 Affidavit FLetcher, # 8 Affidavit Jones, # 9 Affidavit Laios, # 10 Affidavit Nagy, # 11 Affidavit Nannini, # 12 Affidavit Poe, # 13 Affidavit Seagle, # 14 Affidavit Sparrow, # 15 Affidavit Thaler, # 16 Affidavit Wright, # 17 Affidavit Young−Chavez, # 18 Affidavit Yost)(McIntosh, Robert) (Entered: 05/25/2012)
82 Witness List by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 05/25/2012)
83 AFFIDAVIT re 68 Order,,,, by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Attachments: # 1 Exhibit Affidavit of V. Choudhary, # 2 Exhibit Affidavit of K. Walsh, # 3 Exhibit Affidavit of T. Kastner, # 4 Exhibit Affidavit of C. Fallis, # 5 Exhibit Declaration of H. Spielberg, # 6 Exhibit Declaration of E. Seidman, # 7 Exhibit Declaration of R. Black, # 8 Exhibit Declaration of J. Powell, # 9 Exhibit Affidavit of W. Wood, # 10 Exhibit Declaration of M. Houser, # 11 Exhibit Declaration of D. Micheletti, # 12 Exhibit Affidavit of C. Lewis, # 13 Exhibit Declaration of R. Anthony, # 14 Exhibit Declaration of R. Evett, # 15 Exhibit Declaration of M. Bryant, # 16 Exhibit Declaration of J. Scott, # 17 Exhibit Affidavit of L. Koury, # 18 Exhibit Affidavit of M. Marek)(Schafer, Gerard) (Entered: 05/25/2012)
84 REPLY to Response to Motion re 66 MOTION to Dismiss filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 05/29/2012)
85 REPLY to Response to Motion re 66 MOTION to Dismiss filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 05/29/2012)
86 NOTICE the Court hereby notifies the parties that Mary Ann Bergeron has been appointed solely for the purpose of providing information with respect tothe proposed settlement of this case (see Order for details); The appointment of Ms. Bergeron does not indicate in any way whether the Court will approve the settlement. Rather, the Court will only ask her for information regarding theimplementation of the Settlement Agreement, if approved. Signed by District Judge John A. Gibney, Jr on 5/31/12. (kyou, ) (Entered: 05/31/2012)
87 ORDER that United States and Intervenor−defendants to file amended witness lists which identify a maximum of 3 potential witneses for the June 8, 2012 hearing; amended witness lists shall be filed no later than June 5, 2012; Clerk SEND copy of this Order to all counsel of record; Signed by District Judge John A. Gibney, Jr on 5/31/12 (lsal) (Entered: 06/01/2012)
88 NOTICE of Court's Concerns Regarding Implementation of Settlement Agreement. Signed by United States District Judge John A. Gibney 6/1/12; Clerk send copy of this Notice to all counsel of record; (Copies distribued by ECF) (lsal) (Entered: 06/01/2012)
89 NOTICE to parties of the filing of the court−appointed expert's report in preparation for the June 8, 2012 hearing; Ms. Bergeron's report is attached as Exhibit A to this

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06/05/2012 06/05/2012 06/05/2012 06/05/2012 06/05/2012 06/05/2012
06/06/2012 06/06/2012 06/07/2012
06/08/2012 06/13/2012 06/19/2012 06/19/2012 06/25/2012

Notice; Clerk send copy of this Notice to all counsel of record; Signed by District Judge John A. Gibney, Jr on 6/1/12 (Attachments: # 1 Exhibit A)(lsal) (Entered: 06/01/2012)
90 MEMORANDUM ORDER denying 66 Motion to Dismiss. Signed by District Judge John A. Gibney, Jr on 6/4/12. (kyou, ) (Entered: 06/05/2012)
91 Letter to Judge. (wtuc) Modified on 6/11/2012 to make entry public (wtuc). (Entered: 06/05/2012)
92 AMENDED Witness List by United States of America. (McIntosh, Robert) (Entered: 06/05/2012)
93 Revised Witness List by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 06/05/2012)
94 MOTION for Reconsideration re 87 Order, and Clarification by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 06/05/2012)
95 Brief in Support to 87 Order, 94 MOTION for Reconsideration re 87 Order, and Clarification MOTION for Reconsideration re 87 Order, and Clarification filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 06/05/2012)
96 RESPONSE to Motion re 94 MOTION for Reconsideration re 87 Order, and Clarification MOTION for Reconsideration re 87 Order, and Clarification filed by Commonwealth of Virginia. (Attachments: # 1 Exhibit A)(Tysinger, Allyson) (Entered: 06/06/2012)
97 ORDER that the Court DENIES requests 1 through 5 and 7 of 94 MOTION for Clarification and Reconsideration (see Order for further details). Signed by District Judge John A. Gibney, Jr on 6/6/12. (kyou, ) (Entered: 06/06/2012)
98 ORDER Upon due consideration, the Court hereby ORDERS that no more than two−hundred and fifty (250) people shall be admitted into the Spottswood W. Robinson, III and Robert R. Merhige, Jr., Federal Courthouse for the purpose of observing the Court's fairness hearing on June 8, 2012. The number of litigants in this matter and the media representatives who wish to observe the proceedings shall not be counted towards this limitation. It is so ORDERED. Signed by District Judge John A. Gibney, Jr on 6/7/12. (tdai, ) (Entered: 06/07/2012)
99 Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Fairness Hearing held on 6/8/2012; the Court will approve the settlement but with changes; a conference call will be conducted in three weeks regarding suggested changes (Court Reporter G. Halasz, OCR.)(wtuc) (Entered: 06/08/2012)
100 Letter and Settlement Agreement from U.S. District Judge John A. Gibney, Jr. (kyou, ) (Entered: 06/13/2012)
101 Letter to Judge. (wtuc) (Entered: 06/19/2012)
102 Intervenors' ANSWER to 1 Complaint by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood.(Schafer, Gerard) (Entered: 06/19/2012)
103 TRANSCRIPT of proceedings for dates of 06/08/2012, before Judge Hon. John A. Gibney, Jr., Court Reporter Gil Halasz, Telephone number 804 916−2248. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 18 of 24

06/25/2012 06/26/2012 06/28/2012 06/29/2012 07/03/2012
07/10/2012 07/11/2012 07/12/2012
07/17/2012 07/19/2012
08/23/2012 08/28/2012 08/31/2012

the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/25/2012. Redacted Transcript Deadline set for 8/27/2012. Release of Transcript Restriction set for 9/24/2012.(halasz, gil) (Entered: 06/25/2012)
104 Response to Court's Proposed Amendments to Settlement Agreement filed by Commonwealth of Virginia. (Tysinger, Allyson) (Entered: 06/25/2012)
105 Response to 100 Settlement Agreement filed by United States of America. (Attachments: # 1 Proposed Order Entering Settlement Agreement as Modified)(Prillaman, Debra) (Entered: 06/26/2012)
106 Response to 100 Settlement Agreement and Court's Proposed Amendments filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 06/28/2012)
Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Conference Call held on 6/29/2012. (Court Reporter G. Halasz, OCR.)(wtuc) (Entered: 06/29/2012)
107 Third Party Complaint against Robert F. McDonnell, VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, William A. Hazel, Jr, Virginia Department of Behavioral Health and Developmental Services, James W. Stewart, III, filed by Kent Olsen, Jonathon Speilberg, Neal Hampton, Sean Johnson, Marinda Lewis, Adam Bertman, Kevin Moran, Teresa Koury, Barbara Fallis, Jason Kinzler, Amber Robinson, Tami Lassiter, Peggy Wood. (Attachments: # 1 Civil Cover Sheet, # 2 Verifications)(Schafer, Gerard) (Entered: 07/03/2012)
108 Letter to Judge. (wtuc) (Entered: 07/10/2012)
109 MOTION for Extension of Time in Which to File Motion to Strike by United States of America. (Attachments: # 1 Proposed Order)(McIntosh, Robert) (Entered: 07/11/2012)
110 ORDER granting 109 Motion for Extension of Time; the deadline for the United States' Motion to Strike Answer of Intervenors is extended until two weeks after the Court has made a final ruling about the Settlement Agreement between the United States and the Commonwealth of Virginia. Signed by District Judge John A. Gibney, Jr on 7/12/12. (kyou, ) (Entered: 07/12/2012)
Minute Entry for proceedings held before District Judge John A. Gibney, Jr.:Conference Call held on 7/17/2012. (Court Reporter G. Halasz, OCR.)(wtuc) (Entered: 07/17/2012)
111 TRANSCRIPT of proceedings for dates of 07/17/2012, before Judge Hon. John A. Gibney, Jr., Court Reporter Gil Halasz, Telephone number 804 916−2248. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/20/2012. Redacted Transcript Deadline set for 9/18/2012. Release of Transcript Restriction set for 10/17/2012.(halasz, gil) (Entered: 07/19/2012)
112 ORDER Approving the Decree and GRANTS 2 JOINT MOTION for Entry of Settlement Agreement (See Order for Details) Signed by District Judge John A. Gibney, Jr on 8/23/12. (kyou, ) (Entered: 08/23/2012)
113 Letter to Judge. (wtuc) (Entered: 08/29/2012)
114 MOTION to Bifurcate Attorneys' Fees Proceedings by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 08/31/2012)

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 19 of 24

08/31/2012
09/05/2012
09/05/2012 09/06/2012
09/28/2012 12/07/2012 03/18/2013 03/20/2013 04/19/2013
05/09/2013 05/09/2013 06/11/2013 12/12/2013 03/26/2014 03/26/2014 03/26/2014 03/28/2014
03/28/2014

115 Memorandum in Support re 114 MOTION to Bifurcate Attorneys' Fees Proceedings filed by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 08/31/2012)
116 First MOTION for Extension of Time to File Petition for Attorneys' Fees, Costs and Litigation Expenses by Adam Bertman, Barbara Fallis, Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (Schafer, Gerard) (Entered: 09/05/2012)
118 Letter to Judge. (wtuc) (Entered: 09/07/2012)
117 ORDER denying 114 Motion to Bifurcate Attorneys' Fees Proceedings; denying 116 Motion for Extension of Time to to File Petition for Attorneys' Fees, Costs and Litigation Expenses; this Court now denies the intervenors' motion for attorneys' fees. Signed by District Judge John A. Gibney, Jr on 9/6/12. (kyou, ) (Entered: 09/06/2012)
119 ORDER that with exception of the required reporting to the Court that is detailed in the Settlement Agreement, the Court directs the Clerk to close this case. Signed by District Judge John A. Gibney, Jr on 9/28/12. (kyou, ) (Entered: 09/28/2012)
120 Report of Independent Reviewer on Compliance with the Settlement Agreement. (kyou, ) (Entered: 12/07/2012)
125 Joint MOTION for Protective Order (proposed AGREED QUALIFIED PROTECTIVE ORDER to be lodged by hard copy with the Clerk) by United States of America. (McIntosh, Robert) (Entered: 03/18/2013)
126 AGREED QUALIFIED PROTECTIVE ORDER. Signed by District Judge John A. Gibney, Jr on 3/20/13. (kyou, ) (Entered: 03/20/2013)
127 ORDER that the matter is before the Court on Independent Reviewer's submission of Fiscal Year 2014 Budget; the Court finds that the budget complies with the terms of Consent Decree, the Court approves the budget. Signed by District Judge John A. Gibney, Jr on 4/19/13. (jtho, ) (Entered: 04/19/2013)
128 MOTION to Withdraw as Attorney Vincent Herman by United States of America. (Attachments: # 1 Proposed Order)(McIntosh, Robert) (Entered: 05/09/2013)
129 ORDER granting 128 Motion to Withdraw Vincent P. Herman as Counsel for the United States. Signed by District Judge John A. Gibney, Jr on 5/9/13. (kyou, ) (Entered: 05/09/2013)
130 Report of Independent Reviewer on Compliance with the Settlement Agreement. (kyou, ) (Entered: 06/11/2013)
137 Report of Independent Reviewer on Compliance with the Settlement Agreement. (kyou, ) (Entered: 12/12/2013)
142 Motion to appear Pro Hac Vice by Kyle Edward Smiddie and Certification of Local Counsel Robert P. McIntosh by United States of America. (McIntosh, Robert) (Entered: 03/26/2014)
143 Motion to appear Pro Hac Vice by Richard James Farano and Certification of Local Counsel Robert P. McIntosh by United States of America. (McIntosh, Robert) (Entered: 03/26/2014)
144 Motion to appear Pro Hac Vice by Jennifer Wu Keen and Certification of Local Counsel Robert P. McIntosh by United States of America. (McIntosh, Robert) (Entered: 03/26/2014)
145 So Ordered re 143 Motion to appear Pro Hac Vice by Richard James Farano and Certification of Local Counsel Robert P. McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 03/27/14. (kyou, ) (Entered: 03/28/2014)
146 So Ordered re 144 Motion to appear Pro Hac Vice by Jennifer Wu Keen and Certification of Local Counsel Robert P. McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 03/27/14. (kyou, ) (Entered:

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 20 of 24

03/28/2014
04/10/2014 06/09/2014 07/14/2014 08/18/2014 12/08/2014 12/10/2014
06/11/2015 07/17/2015 07/21/2015 07/21/2015 09/23/2015
09/23/2015
09/24/2015 10/05/2015 10/06/2015 10/09/2015

03/28/2014)
147 So Ordered re 142 Motion to appear Pro Hac Vice by Kyle Edward Smiddie and Certification of Local Counsel Robert P. McIntosh filed by United States of America. Signed by District Judge John A. Gibney, Jr on 3/27/14. (kyou, ) (Entered: 03/28/2014)
148 Letter from Carol Skelly. (kyou, )(mailed and/or sent electronically to Tayloe, Fletcher, Tysinger and York per chambers) (Entered: 04/10/2014)
149 REPORT of the Independent Reviewer on Compliance with the Settlement Agreement. (kyou, ) (Entered: 06/09/2014)
151 Letters to judge. (wtuc) (Entered: 07/14/2014)
152 Letter . (Schafer, Gerard) (Entered: 08/18/2014)
158 REPORT Of The Independent Reviewer On Compliance With Settlement Agreement. (sbea, ) (Entered: 12/08/2014)
160 ORDER that the Independent Reviewer's submission of a Fiscal Year 2015 Budget. The parties have not filed any objections to the proposed budget. The Court finds that the budget complies with the terms of the Settlement Agreement. Upon mature consideration, the Court approves the budget. Signed by District Judge John A. Gibney, Jr. on 12/10/2014. (sbea, ) (Entered: 12/10/2014)
177 Report of the Independent Reviewer On Compliance With the Settlement Agreement. (sbea, ) (Entered: 06/11/2015)
182 Motion to appear Pro Hac Vice by Jessica Polansky and Certification of Local Counsel Robert P. McIntosh by United States of America. (McIntosh, Robert) (Entered: 07/17/2015)
Set Hearing: Status Hearing set for 10/23/2015 at 10:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 07/21/2015)
183 ORDER granting 182 Motion for Pro hac vice. Appointed Jessica Polansky for United States of America. Signed by District Judge John A. Gibney, Jr. on 7/20/2015. (sbea, ) (Entered: 07/21/2015)
186 Motion for Court−Ordered Schedule With Incorporated Statement of Issues and Memorandum in Support by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (filed under seal), # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 (filed under seal), # 7 Exhibit 7, # 8 Exhibit 8 (filed under seal), # 9 Exhibit 9, # 10 Exhibit 10)(McIntosh, Robert). Clerk replaced Sealed Exhibits 2, 6, and 8 on 10/22/2015. (sbea, ) (Entered: 09/23/2015)
187 Notice of Filing of Exhibits 11 through 22 re: 186 Motion for Court−Ordered Schedule With Incorporated Statement of Issues and Memorandum in Support by United States of America. (Attachments: # 1 Exhibit 11 (filed under seal), # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14 (filed under seal), # 5 Exhibit 15 (filed under seal), # 6 Exhibit 16 (filed under seal), # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22)(McIntosh, Robert). Clerk replaced Sealed Exhibits 11, 14, 15, and 16 on 10/22/2015. (sbea, ) (Entered: 09/23/2015)
Notice of Correction: re 187 In the future, please include as an attachment a Notice of Filing along with a separate Certificate of Service and link it to the document. (sbea, ) (Entered: 09/24/2015)
188 Intervenors' Statement of Issues. (Schafer, Gerard). Modified to correct docket text on 10/6/2015. (sbea, ) (Entered: 10/05/2015)
Notice of Correction: Clerk notified filing attorney re: 188 Intervenors' Statement of Issues to include nine−element signature block with every document filed electronically. (sbea, ) (Entered: 10/06/2015)
189 MOTION for Leave to File Amicus Curiae Brief by disAbility Law Center of Virginia. (Attachment: # 1 Exhibit Proposed Brief). (Charnes, Melissa). PLEASE NOTE: Attachment 1 REPLACED on 10/09/2015 at the request of Counsel for disAbility Law

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 21 of 24

10/13/2015
10/13/2015 10/23/2015 10/23/2015 11/12/2015
12/06/2015 12/07/2015 12/29/2015 01/08/2016 01/08/2016
04/04/2016 06/06/2016

Center of Virginia. NEF regenerated. (walk, ). (Entered: 10/09/2015)
190 ORDER that the Court DENIES the 189 motion, as it does not see a need for an amicus brief for a status conference. If the Court sets a formal hearing on the Commonwealth of Virginia's compliance with the Settlement Agreement, however, the disAbility Law Center of Virginia may renew its motion. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 10/13/2015. Order electronically sent to all counsel of record. (sbea, ) (Entered: 10/13/2015)
191 RESPONSE in Opposition re 186 MOTION FOR COURT−ORDERED SCHEDULE (with Statement of Issues and Memorandum in Support) filed by Commonwealth of Virginia. (Attachments: # 1 Affidavit Declaration of William A. Hazel, # 2 Letter Jennifer Keen to Allyson Tysinger)(Tysinger, Allyson) (Entered: 10/13/2015)
192 Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Status Conference held on 10/23/2015; a hearing has been set on the request for a court ordered time line for December 22, 2015 at 10:00 a.m. (Court Reporter G. Halasz, OCR.)(wtuc) (Entered: 10/23/2015)
Set as to 186 MOTION FOR COURT−ORDERED SCHEDULE: Motion Hearing set for 12/22/2015 at 10:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 10/23/2015)
193 TRANSCRIPT of proceedings held on 10/15/2015, before Judge Hon. John A. Gibney, Jr., Court Reporter/Transcriber Gil Halasz, Telephone number 804 916−2248. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/14/2015. Redacted Transcript Deadline set for 1/12/2016. Release of Transcript Restriction set for 2/10/2016.(halasz, gil) (Entered: 11/12/2015)
204 Report of the Independent Reviewer on Compliance With the Settlement Agreement. (sbea, ) (Entered: 01/11/2016)
Set as to 186 MOTION FOR COURT−ORDERED SCHEDULE (with Statement of Issues and Memorandum in Support): Motion Hearing set for 1/12/2016 at 11:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 12/07/2015)
196 Second MOTION for Leave to File Amicus Curiae Brief by disAbility Law Center of Virginia. (Attachments: # 1 Exhibit A)(Charnes, Melissa) (Entered: 12/29/2015)
202 Withdrawal of Motion by United States of America re 186 MOTION FOR COURT−ORDERED SCHEDULE (with Statement of Issues and Memorandum in Support) (Attachments: # 1 Exhibit)(McIntosh, Robert) (Entered: 01/08/2016)
203 ORDER. This matter comes before the Court on the United States' Motion for Court−Ordered Schedule. (Dk. No. 186 ) On January 8, 2016, the United States withdrew this motion. (Dk. No. 202 ) Thus, the Court CANCELS the motion hearing scheduled for January 12, 2016. The Court also DENIES as MOOT the disAbility Law Center of Virginia 's renewed Motion for Leave to File an Amicus Curiae Brief in Support of the United States' Motion for Court−OrderedSchedule. (Dk. No. 196 ) It is so ORDERED. Signed by District Judge John A. Gibney, Jr on 01/08/2016. (nbrow) (Entered: 01/08/2016)
207 ORDER re: Independent Reviewer's submission of a proposed budget for fiscal year 2017, attached as Exhibit A. The parties have no objections to the proposed budget. The Court FINDS that the budget complies with the terms of the Settlement Agreement and hereby APPROVES the budget. Signed by District Judge John A. Gibney, Jr on 4/4/2016. (jsmi, ) (Entered: 04/04/2016)
208 Report of the Independent Reviewer on Compliance With the Settlement Agreement. (sbea, ) (Entered: 06/08/2016)

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 22 of 24

07/21/2016
12/23/2016 04/05/2017
04/20/2017 08/01/2017 08/04/2017 08/04/2017 08/04/2017 08/07/2017 08/18/2017 08/18/2017 08/18/2017 08/25/2017
08/25/2017

213 ORDER that the Court ORDERS that the beginning and ending dates for each review period be moved back six (6) days. Accordingly, the ninth review period will run from April 7, 2016 through September 30, 2016−as opposed to October 6, 2016. The tenth review period will run from October 1, 2016 through March 31, 2017. Future review periods will then continue on a six−month cycle. Additionally, the Court AMENDS the first sentence of Section VI.C of the Settlement Agreement as follows: The Independent Reviewer shall file with the Court a written report on the Commonwealth's compliance with the terms of this Agreement within 73 6−0 days of the close of each review cycle. Settlement Agreement, § VI.C (emphasis added). See Order for details. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 7/21/2016. (sbea, ) (Entered: 07/21/2016)
225 Report of the Independent Reviewer on Compliance With the Settlement Agreement. (sbea, ) (Entered: 01/09/2017)
233 ORDER that this matter comes before the Court on the Independent Reviewer's submission of a proposed budget for fiscal year 2018, attached as Exhibit A. The parties have no objections to the proposed budget. The Court FINDS that the budget complies with the terms of the Settlement Agreement and hereby APPROVES the budget. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 4/5/2017. (Attachment: # 1 Exhibit A). (sbea, ) (Entered: 04/05/2017)
234 Reply to 202 Withdrawal of Motion "JOINT SUBMISSION OF SCHEDULES" filed by United States of America. (Attachments: # 1 Exhibit Attachment A)(McIntosh, Robert) (Entered: 04/20/2017)
242 Report of the Independent Reviewer on Compliance With the Settlement Agreement. (sbea, ) (Entered: 08/03/2017)
243 ORDER that the Court FINDS that the budget complies with the terms of the Settlement Agreement and hereby APPROVES the revised budget. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 8/4/2017. (Attachments: # 1 Exhibit A). (sbea, ) (Entered: 08/04/2017)
244 INTERVENOR'S MOTION for Injunctive Relief by Peggy Wood. (Schafer, Gerard). Modified docket text on 8/7/2017 (sbea, ). (Entered: 08/04/2017)
245 Brief in Support of Intervenors' Motion for Injunctive Relief filed by Peggy Wood. (Schafer, Gerard) (Entered: 08/04/2017)
Notice of Correction re: 244 INTERVENOR'S MOTION for Injunctive Relief and 245 Brief in Support; Clerk notified filing attorney that Pro Hac Vice Attorneys are not allowed to sign any pleading filed in this Court. No further action is required. (sbea, ) (Entered: 08/07/2017)
247 NOTICE of Appearance by Braden Jon Curtis on behalf of Commonwealth of Virginia (Curtis, Braden) (Entered: 08/18/2017)
248 CERTIFICATE of Service re 247 Notice of Appearance by Braden Jon Curtis on behalf of Commonwealth of Virginia (Curtis, Braden) (Entered: 08/18/2017)
249 RESPONSE in Opposition re 244 MOTION for Permanent Injunction filed by Commonwealth of Virginia. (Attachments: # 1 Exhibit 1 − Declaration of Jack W. Barber with Attachment 1−3, # 2 Exhibit 2 − Certification for Peggy Wood)(Curtis, Braden) (Entered: 08/18/2017)
252 ORDER; the Court EXEMPTS Thomas B. York from the requirements of Local Civil Rule 83.1 (C) and (D) and the policies and procedures that govern registering for e−filing with this Court; the Court directs Mr. York to complete the attached ECF Certification Form and submit it to the Clerk's Office; upon receipt of the form, the Court DIRECTS the Clerk to issue an ECF login identification and password to Mr. York for electronic filings in this case only; the Clerk shall deactivate this login identification upon completion of this case or Mr. York's termination from this case. Signed by District Judge John A. Gibney, Jr. on 8/25/17. (Attachments: # 1 ECF Certification Form)(wtuc) (Entered: 08/25/2017)
253 MOTION for Extension of Time to File Reply as to 249 Response in Opposition to Motion, 244 MOTION for Permanent Injunction by Adam Bertman, Barbara Fallis,

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 23 of 24

08/28/2017 08/31/2017 08/31/2017 08/31/2017 09/06/2017 09/22/2017 09/25/2017 10/27/2017 10/30/2017 10/31/2017 11/06/2017
11/14/2017
12/05/2017

Neal Hampton, Sean Johnson, Jason Kinzler, Teresa Koury, Tami Lassiter, Marinda Lewis, Kevin Moran, Kent Olsen, Amber Robinson, Jonathon Speilberg, Peggy Wood. (wtuc) (Entered: 08/25/2017)
254 SO−ORDER granting Intervenors' 253 Motion for Extension of Time to File Reply Brief until September 1, 2017. Signed by District Judge John A. Gibney, Jr on 8/28/17. (jtho, ) (Entered: 08/28/2017)
255 Second MOTION for Extension of Time to File Response/Reply by Peggy Wood. (Schafer, Gerard) (Entered: 08/31/2017)
Notice of Correction re: 255 Second MOTION for Extension of Time to File Response/Reply; Clerk notified filing attorney that the login did not match the signature block on the document. Attorney was informed of proper filing procedures for this Court. No further action is required. (sbea, ) (Entered: 08/31/2017)
256 SO ORDERED granting Intervenors' Second Uncontested Motion for Extension of Time to Reply Signed by District Judge John A. Gibney, Jr. on 8/31/2017. (sbea, ) (Entered: 08/31/2017)
257 REPLY to Response to Motion re 244 MOTION for Permanent Injunction filed by Peggy Wood. (Schafer, Gerard) (Entered: 09/06/2017)
260 ORDER that this matter comes before the Court on the intervenors' motion for injunctive relief. (Dk. No. 245.) The Court now sets a hearing on this motion for November 6, 2017, at 9:00 a.m. It is so ORDERED. Signed by District Judge John A. Gibney, Jr., on 09/22/2017. (ccol, ) (Entered: 09/22/2017)
Set as to 244 MOTION for Permanent Injunction: Motion Hearing set for 11/6/2017 at 09:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 09/25/2017)
261 MOTION for Leave to File brief Amicus Curiae by disAbility Law Center of Virginia. (Attachments: # 1 Proposed Brief Amicus Curiae)(DeVore, Zachary) (Entered: 10/27/2017)
262 ORDER granting 261 Motion for Leave to File an amicus brief. The Court GRANTS the motion, and the amicus brief attached to the motion shall be deemed filed. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 10/30/2017. (sbea, ) (Entered: 10/30/2017)
Set Hearing: Status Conference set for 12/19/2017 at 10:00 AM in Richmond Courtroom 6000 before District Judge John A. Gibney, Jr. (wtuc) (Entered: 10/31/2017)
263 Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Motion Hearing held on 11/6/2017 re 244 MOTION for Permanent Injunction filed by Peggy Wood; evidence adduced; in lieu of argument the parties shall submit briefs: intervenors shall file their brief within 21 days of receipt of the transcript; the CW has 14 days to reply and any rebuttal is due 7 days thereafter. (Court Reporter G. Halasz, OCR.)(wtuc) Modified on 11/7/2017 (Main Document 263 replaced on 11/7/2017) (wtuc) (Entered: 11/07/2017)
264 TRANSCRIPT of proceedings held on 11/06/2017, before Judge Hon. John A. Gibney, Jr., Court Reporter/Transcriber Gil Halasz, Telephone number 804 916−2248. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter/transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 12/14/2017. Redacted Transcript Deadline set for 1/16/2018. Release of Transcript Restriction set for 2/12/2018.(halasz, gil) (Entered: 11/14/2017)
265 First MOTION for Extension of Time to File Post−Hearing Brief by Peggy Wood. (Schafer, Gerard) (Entered: 12/05/2017)

Case: 3:12-cv-59 As of: 09/16/2018 05:41 PM EDT 24 of 24

12/05/2017
12/13/2017 12/19/2017 12/19/2017 01/05/2018 01/09/2018
01/16/2018 01/16/2018 01/18/2018 02/02/2018 02/02/2018 02/27/2018 03/26/2018

266 ORDER that this matter comes before the Court on the intervenors' uncontested motion for extension of time to file a post−hearing brief and for revision of briefing schedule (Dk. No. 265 ). Upon due consideration, the Court GRANTS the motion. The intervenors shall submit their posthearing brief by December 19, 2017, the Commonwealth shall respond by January 5, 2018, and the intervenors shall reply by January 12, 2018. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 12/5/2017. (sbea, ) (Entered: 12/05/2017)
267 Report of the Independent Reviewer On Compliance With the Settlement Agreement. (Attachment: # 1 Appendices). (sbea, ) (Entered: 12/13/2017)
268 Minute Entry for proceedings held before District Judge John A. Gibney, Jr.: Status Conference held on 12/19/2017. (Court Reporter D. Daffron.)(wtuc) (Entered: 12/19/2017)
269 Brief in Support to 244 MOTION for Permanent Injunction Post−Hearing filed by Peggy Wood. (Schafer, Gerard) (Entered: 12/19/2017)
270 Response to 269 Brief in Support Commonwealth's Response In Opposition To Intervenors' Post−Hearing Brief In Support Of Intervenors' Motion for Injunctive Relief filed by Commonwealth of Virginia. (Curtis, Braden) (Entered: 01/05/2018)
271 TRANSCRIPT of proceedings held on December 19, 2017, before Judge John A. Gibney, Jr., Court Reporter Diane Daffron, Telephone number 804 916−2893. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 2/8/2018. Redacted Transcript Deadline set for 3/12/2018. Release of Transcript Restriction set for 4/9/2018.(daffron, diane) (Entered: 01/09/2018)
272 First MOTION for Extension of Time to File Response/Reply as to 244 MOTION for Permanent Injunction by Peggy Wood. (Schafer, Gerard) (Entered: 01/16/2018)
273 ORDER that the Court GRANTS the 272 motion. The Intervenors shall submit their reply by January 17, 2018. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 1/16/2018. (sbea, ) (Entered: 01/16/2018)
274 REPLY to Response to Motion re 244 MOTION for Permanent Injunction filed by Peggy Wood. (Schafer, Gerard) (Entered: 01/18/2018)
275 MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 2/2/18. (wtuc) (Entered: 02/02/2018)
276 ORDER re 244 MOTION for Permanent Injunction filed by Peggy Wood; the Court DENIES the motion. Signed by District Judge John A. Gibney, Jr. on 2/2/18. (wtuc) (Entered: 02/02/2018)
281 STATUS REPORT "Joint Submission of Schedule" (Complex Behavioral) by the United States and the Commonwealth of Virginia by United States of America. (Attachments: # 1 Exhibit A)(McIntosh, Robert) (Entered: 02/27/2018)
289 ORDER that the Court FINDS that the budget complies with the terms of the Settlement Agreement and hereby APPROVES the budget. It is so ORDERED. Signed by District Judge John A. Gibney, Jr. on 3/26/2018. (Attachment: # 1 Exhibit A). (sbea, ) (Entered: 03/26/2018)

 </s> U.S. Department of Justice Civil Rights Division
Assistant Attorney General 950 Pennsylvania Ave, NW - RFK Washington, DC 20530

February

10, 2011

The Honorable Robert F. McDonnell Office of the Governor Patrick Henry Building, 3rd Floor 1111 East Broad Street Richmond, Virginia 23219
Re: Investigation of the Commonwealth of Virginia’s Compliance with the Americans with Disabilities Act and of Central Virginia Training Center
Dear Governor McDonnell:
We write to report the findings of the Civil Rights Division’s investigation of the Central Virginia Training Center (“CVTC”) and of the Commonwealth of Virginia’s (“State” or “Commonwealth”) compliance with Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, as interpreted by Olmstead v. L.C., 527 U.S. 581 (1999), requiring that individuals with disabilities receive services in the most integrated setting appropriate to their needs. Our investigation was conducted pursuant to Title II of the ADA, U.S.C § 12133, and the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA gives the Department of Justice authority to seek a remedy for a pattern or practice of conduct that violates the constitutional or federal statutory rights, including those under the ADA, of institutionalized individuals.
We write to provide you notice of the Commonwealth’s failure to comply with the ADA and of the steps Virginia needs to take to meet its obligations under the law. 42 U.S.C. ' 2000d1 (incorporated by 42 U.S.C. ' 12133). This letter also serves as formal notice under CRIPA of the findings of our investigation, the facts supporting them, and the minimum steps necessary to remedy the deficiencies. 42 U.S.C. ' 1997b(a). The Commonwealth’s implementation of the remedies discussed in this letter will correct the identified deficiencies in its compliance with the ADA, fulfill its commitment to individuals with disabilities, and protect the public fisc.
I. SUMMARY OF FINDINGS
We have concluded that the Commonwealth fails to provide services to individuals with intellectual and developmental disabilities in the most integrated setting appropriate to their needs in violation of the ADA. The inadequacies we identified have resulted in the needless and prolonged institutionalization of, and other harms to, individuals with disabilities in CVTC and in other segregated training centers throughout the Commonwealth who could be served in the community. Systemic failures causing this unnecessary institutionalization include:

- 2 -
 The Commonwealth’s failure to develop a sufficient quantity of community-based alternatives for individuals currently in CVTC and other training centers, particularly for individuals with complex needs;
 The Commonwealth’s failure to use resources already available to expand community-based services and its misalignment of resources that prioritizes investment in institutions rather than in community-based services; and
 A flawed discharge planning process at CVTC and other training centers that fails to meaningfully identify individuals’ needs and the services necessary to meet them and address barriers to discharge.
The Commonwealth also places individuals currently in the community at risk of unnecessary institutionalization at CVTC and other training centers, in violation of the ADA. Systemic failures causing this violation include:
 The Commonwealth’s failure to develop a sufficient quantity of community services to address the extremely long waiting list for community services, including the 3,000 people designated as “urgent” because their situation places them at serious risk of institutionalization; and
 The Commonwealth’s failure to ensure a sufficient quantity of services, including crisis and respite services, to prevent the admission of individuals in the community to training centers when they experience crises.
Reliance on unnecessary and expensive institutional care both violates the civil rights of people with disabilities and incurs unnecessary expense. Community integration will permit the Commonwealth to support people with disabilities in settings appropriate to their needs in a more cost effective manner.
II. INVESTIGATION
On August 21, 2008, we notified then-Governor Tim Kaine of our intent to conduct an investigation of CVTC, pursuant to CRIPA, 42 U.S.C. § 1997. We conducted on-site tours of CVTC on November 18-21, 2008, December 17-18, 2008, and April 27-29, 2009, with the assistance of expert consultants in the fields of protection from harm, habilitation, and treatment programming.
On April 23, 2010, we notified the Commonwealth that we were expanding our investigation to focus on the State’s compliance with the ADA and Olmstead with respect to individuals at CVTC. On August 17-20, 2010, we conducted a tour to examine whether the State is serving individuals confined to CVTC, and those discharged from CVTC, in the most integrated setting appropriate to their needs. We were assisted by consultants with expertise in discharge planning and serving individuals with intellectual and developmental disabilities in the community.
During the course of the expanded investigation, however, it became clear that an examination of the Commonwealth’s measures to address the rights of individuals at CVTC under the ADA and Olmstead implicated the statewide system and required a broader scope of

- 3 -
review. We received information regarding the Commonwealth’s efforts both to discharge individuals to more integrated settings and to prevent unnecessary institutionalization. While much of our review focused on CVTC, many of the policies and practices we examined are statewide in their scope and application. For example, the same community-based services are necessary to facilitate discharge of individuals from the other training centers, and individuals are discharged from CVTC to regions throughout the State.
While on site, we interviewed persons in statewide leadership positions in the Department of Behavioral Health and Developmental Services (“DBHDS”); CVTC administrators, professionals, staff, and residents; community providers; Community Service Board directors; and individuals receiving services in more integrated settings in the community. We observed individuals receiving services in a variety of settings, including in their residences and day activity areas. Before, during, and after our visits, we reviewed policies, procedures, individual records, and other material related to the care and treatment of individuals at CVTC. At the end of each of our inspections, consistent with our pledge of transparency and to provide technical assistance where appropriate, we provided an exit presentation at which our consultants conveyed their initial impressions and concerns about CVTC – and Virginia’s system for providing services to individuals with intellectual and developmental disabilities – to the Commonwealth’s counsel, CVTC administrators and staff, and other Commonwealth officials.
III. BACKGROUND
CVTC is a State-operated institution in Madison Heights, Virginia, operating as an intermediate care facility for persons with developmental disabilities (ICF/DD). CVTC is the largest of Virginia’s five State-operated institutions, with approximately 400 individuals there. A total of approximately 1,100 individuals are in these five ICF/DDs. CVTC and the other training centers are operated by DBHDS. Approximately 8,600 individuals receive services through two different types of Medicaid “waivers”1 in the community, and another 6,400 are on a waitlist. Services are coordinated through the 40 locally-run community service boards (“CSBs”) that provide direct services and link consumers to services provided by other direct providers.
The average cost of institutionalizing a person at CVTC and other training centers is approximately $194,000 per year. By contrast, the cost of services to people in the community through the use of a waiver averages $76,400. Virginia can serve nearly three people in the community for each person in a training center.
Commonwealth officials are aware of the deficiencies that we identified during our investigation and have acknowledged the need for significant improvements. We are encouraged that Virginia leadership, both at CVTC and at DBHDS, acknowledged the problems and indicated a strong desire to work with the United States Department of Justice toward an amicable resolution. We are further encouraged by your recent statements and by positive measures in your budget proposal that support a transition to a community-based system for

1

Section 1915(c) of the Social Security Act permits the waiver of certain Medicaid

statutory requirements to enable states to cover a broad array of home and community-based

services (HCBS) for targeted populations as an alternative to institutionalization.

- 4 -
serving individuals with intellectual and developmental disabilities as an alternative to institutionalization.
IV. FINDINGS
We conclude that the Commonwealth fails to provide services to individuals with intellectual and developmental disabilities in the most integrated setting appropriate to their needs as required by the ADA. The quantity of available services in the community is deficient, preventing individuals from being discharged from CVTC and other institutions and placing others at risk of unnecessary and expensive institutionalization. Discharge and transition planning is plagued with deficiencies, resulting in very few discharges from CVTC and the other training centers in the last several years. These inadequacies have resulted in needless and prolonged institutionalization of individuals with disabilities who could be served in the community with more independence and dignity at a fraction of the cost. While needlessly institutionalized, these individuals suffer harms and are exposed to the risk of additional harm.
Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity , or be subjected to discr imination by any such entity.
42 U.S.C. § 12132. “The ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them.” Helen L. v. DiDario, 46 F.3d 325, 335 (3rd Cir. 1995).
One form of discrimination prohibited by Title II of the ADA is violation of the “integration mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the regulations of the Attorney General implementing Title II,2 and the Supreme Court’s decision in Olmstead, 527 U.S. at 586. In Olmstead, the Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607.

2

The regulations provide that “a public entity shall administer services, programs

and activities in the most integrated setting appropriate to the needs of qualified persons with

disabilities.” 28 C.F.R. § 35.130(d); see also 28 C.F.R. § 41.51(d). The preamble discussion of

the ADA “integration regulation” explains that “the most integrated setting” is one that “enables

individuals with disabilities to interact with nondisabled persons to the fullest extent possible.”

28 C.F.R. § 35.130(d), App. A. at 571 (2009).

- 5 -

In so holding, the Court explained that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. It also recognized the harm caused by unnecessary institutionalization: “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.3 The Fourth Circuit has also clearly stated that federal law requires “plac[ing] the recipient in the least restrictive environment.” Doe v. Kidd, 501 F.3d 348, 358 (4th Cir. 2007) (citing Olmstead, 527 U.S. 581), cert. denied, 522 U.S. 1243 (2008).
The Commonwealth is failing to provide services to individuals with intellectual and developmental disabilities in the most integrated setting appropriate to their needs, in violation of its obligations under the ADA and Olmstead. Individuals are unnecessarily institutionalized at CVTC and the other training centers, and individuals in the community are placed at risk of unnecessary institutionalization. The principal causes of Virginia’s departure from the ADA’s integration mandate are a lack of services in the community, particularly for individuals with complex needs, and a slow and muddled discharge and transition planning process.
A. Individuals with Intellectual and Developmental Disabilities Are Unnecessarily Institutionalized at CVTC and Other Training Centers
The Commonwealth is violating the ADA by unnecessarily institutionalizing hundreds of individuals at CVTC and other training centers who could be served in more integrated settings. Olmstead, 527 U.S. at 607.
1. CVTC and the Other Training Centers are Segregated, Institutional Settings that Expose Individuals to Harm
CVTC is a segregated, institutional setting. Approximately 400 individuals with intellectual disabilities are congregated together at CVTC. Individuals are assigned to units of eight to 12 people. Bathroom areas are congregate, with towels and other items often stored in separate areas not readily available to residents. As a result, individuals have very limited privacy. CVTC has the physical appearance of an institution, not a home. Day rooms are bare and impersonal, with minimal decorations and little home-like furniture. Accord Disability Advocates Inc. (DAI) v. Paterson, 653 F. Supp. 2d 184, 200-07 (E.D.N.Y. 2009) (describing characteristics of institutions to include, inter alia, large numbers of individuals with disabilities congregated together, an institutional appearance, and lack of privacy).
Individuals at CVTC live segregated lives. Most spend their entire day in the institution, with the vast majority participating in facility-based day activities. Individuals are offered very

3

Olmstead therefore makes clear that the aim of the integration mandate is to

eliminate unnecessary institutionalization and enable individuals with disabilities to participate in

all aspects of community life. Accord Press Release, The White House, “President Obama

Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans

with Disabilities” (June 22, 2009) (In announcing the Year of Community Living Initiative,

President Obama affirmed “one of the most fundamental rights of Americans with disabilities:

Having the choice to live independently.”).

- 6 -
limited opportunities for meaningful employment and have virtually no opportunities to interact with their non-disabled peers. CVTC limits individuals’ autonomy and provides few opportunities for individuals to make choices. Individuals eat together in dining areas at set mealtimes, where they cannot choose what or when they eat. Staff determine what programs individuals watch on the television set in the day room. Id. (institutional characteristics include, inter alia, regimented daily activities, little autonomy and opportunity for choices, and limited opportunities to interact with individuals outside the institution); Benjamin v. Dep’t of Pub. Welfare of the Commonwealth of Pa., Memorandum and Order, Case No. 09-1182 (Docket Entry 88) (M.D. Pa. Jan. 27, 2011) (finding that the Commonwealth of Pennsylvania unnecessarily institutionalizes individuals in large ICF/DDs in violation of the ADA and holding that such placements are segregated, where individuals are congregated together in living units, primarily receive day services on the grounds of the facilities, and have limited opportunities to interact with non-disabled peers and limited access to community activities). The Commonwealth has acknowledged, in interviews with officials and in reports, that nearly all individuals at the training centers could and should be served in smaller community-based settings.
Individuals are harmed at CVTC. Unnecessary segregation not only violates individuals’ rights under the ADA, but also causes irreparable harm. “[O]ne of the harms of long-term institutionalization is that it instills ‘learned helplessness,’ making it difficult for some who have been institutionalized to move to more independent settings.” DAI, 653 F. Supp. 2d at 265; accord Marlo M. v. Cansler, 679 F. Supp. 2d 638 (E.D.N.C. 2010) (finding unnecessary institutionalization leads to regressive consequences that cause irreparable harm); Long v. Benson, 2010 WL 2500349 (11th Cir. June 22, 2010) (affirming district court’s granting of preliminary injunction based on irreparable injury of unnecessary institutionalization).
Moreover, CVTC compounds this harm by exposing individuals to unsafe conditions while they are needlessly institutionalized. See Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (finding that the Fourteenth Amendment’s due process clause requires an institution to provide “adequate food, shelter, clothing, and medical care,” along with “conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests”). Individuals at CVTC are subjected to significant harms, including repeated accidents and injuries, inadequate behavioral and psychiatric interventions, and inadequate physical and nutritional management supports. An overarching cause of these harms is CVTC’s failure to identify individuals’ needs, identify root causes of bad outcomes, and respond to prevent their recurrence. These harms not only evidence the need for CVTC to put in place adequate quality assurance mechanisms, but underscore the urgency of moving individuals with disabilities out of inappropriate institutional placements.
Particularly concerning during our initial tours in 2008-09 was CVTC’s use of restraints. The right to be free from undue bodily restraint is the core of the liberty interest protected from arbitrary governmental action by the Due Process Clause. Id. at 316. Restraints may only be applied in emergency situations necessary to prevent harm and for only the length of time necessary for the emergency to subside. 42 U.S.C. § 290ii(b) (federal rules regulating the use of restraints on individuals in ICF/DDs). Yet, at CVTC, restraints were not limited to emergency situations. Instead, planned restraints were part of many individuals’ treatment plans, where they were used as an intervention of first, rather than last, resort. We also found evidence that several

- 7 -
individuals resisted efforts of staff to get them to use what CVTC termed “voluntary” restraints, raising questions about whether these restraints are voluntary at all.
2. Individuals at CVTC and the Other Training Centers Could be Served in More Integrated Settings
Individuals at CVTC and the other training centers could be served in more integrated settings. The Commonwealth has acknowledged this both explicitly and implicitly through its efforts, albeit incomplete, to serve individuals in the community who have needs similar to those of individuals at CVTC and the other training centers. We conclude that the vast majority of individuals could be – and have a right to be – living in community settings with appropriate services and supports but are instead languishing in the institution.
Virginia already has a range of community-based services for individuals with intellectual and developmental disabilities. These community services cost substantially less than institutional care. See supra. Virginia has developed a Medicaid-funded waiver program, known as the ID Waiver, to provide home and community-based services to individuals with intellectual disabilities who meet the level of care for ICF/DDs (which include the training centers) and are in or at imminent risk of entering such facilities. Waiver services include assistive technology; companion services; crisis stabilization and crisis supervision; day support; environmental modifications; in-home residential support services; residential support services; respite services; personal assistance; personal emergency response system; prevocational services; skilled nursing; supported employment;4 therapeutic consultation; and transition services.5
Residential options under the waiver include small group homes, sponsored homes where a licensed provider contracts with a family to provide services for up to two individuals, in-home residential support programs to serve individuals in their own homes or their families’ homes, and adult foster care programs that are similar to sponsored homes and provide room and board, supervision, and services in the provider’s home for up to three adults.6 We found that, among

4

While we recognize that the State provides integrated supported employment

opportunities, our tours raised serious initial concerns about the over-reliance on segregated,

sheltered workshops for individuals with intellectual and developmental disabilities in the

community. Many of the day programs we visited also did not provide individuals with

opportunities for meaningful work. These deficiencies place individuals at risk of continued

segregation even once they are discharged.

5

Virginia has a separate waiver for individuals who have a developmental

disability (such as autism), but not an intellectual disability, called the Individual and Family

Developmental Disabilities Support Waiver (DD Waiver). Like the ID waiver, the DD waiver

contains a range of support services including in-home residential support, day support, skilled

nursing, crisis services, respite, personal attendant care, and supported employment.

6

Virginia also offers congregate, more institutional-like settings in the community,

including ICF/DDs that serve between five and 12 individuals and assisted living facilities that

provide or coordinate personal and health care services with 24 hours per day of supervision in a

- 8 -
the placements we visited, individuals were generally kept safe and provided appropriate supports and services.7
The Commonwealth has acknowledged that most people at the training centers, including nearly every individual at CVTC, could be served in the community. In its recent study, Creating Opportunities: Plan for Advancing Community-Focused Services in Virginia (June 25, 2010), the Commonwealth noted, “Individuals in training centers could be served in the community if adequate supports, including targeted medical and behavioral interventions, were available to them.” Similarly, the Director of Developmental Services, Lee Price, told us during our August 2010 visit that he believed that everyone at CVTC could be served in the community. CVTC staff has already determined that more than 170 individuals at CVTC could be served in more integrated settings, and the number is undoubtedly far higher due to CVTC’s inadequate discharge assessment process.
The needs of individuals at CVTC – including individuals with complex medical or behavioral needs – are the same as the needs of other individuals who are currently served in the community in Virginia and in other states, including in states that have no institutional settings. Community providers confirmed that the vast majority of individuals from CVTC could be served in the community with appropriate supports and services. They also stated that they currently serve individuals who have similar needs to people at CVTC, including individuals with complex medical or behavioral needs. While the pace of discharge to the community of individuals from CVTC and the other training centers has been unacceptably slow, see infra, the individuals who have transitioned have similar needs to those individuals who remain at CVTC.8 Thus, providers and the Commonwealth have already demonstrated an ability and a willingness

larger group setting. These placements are not funded using waivers. For many individuals, these are not the most integrated settings appropriate to their needs.

7

Recently, most individuals have been discharged into sponsored homes or small

group homes, with only a small number of individuals moving to larger ICF/DD facilities.

While our sample size was too small to make any firm conclusions, we were encouraged by the

overall quality of the community placements we visited. However, we had concerns regarding

two of the residential placements, including one larger congregate setting. In that case, the

Commonwealth had investigated reports of abuse, the primary responsible staff member was

terminated, but the Commonwealth did not provide adequate follow-up to ensure that appropriate

corrective action was taken with respect to other staff who may have been present during or

known about the abuse. Just as it must do at the training centers, the Commonwealth must

ensure that its investigation, monitoring, and licensing procedures adequately address any

potential harms at community-based placements. See infra.

8

The Commonwealth’s own reports have indicated, and other information

confirms, that individuals at other institutions have similar needs and could be served in the

community and that individuals with needs similar to individuals at other training centers are

likewise receiving services in the community. See Northern Virginia Training Center Diversion

Pilot, DBHDS, Nov. 1, 2010; Information Brief: Virginia SIS Comparisons for SEVTC and

Comprehensive Community Waiver Populations, Human Services Research Institute (on behalf

of DBHDS), June 23, 2009.

- 9 -
to serve people with complex needs in community settings. Accord Benjamin, Memorandum and Order, Case No. 09-1182 (Docket Entry 88), at 6 (“With appropriate community services, all of the named Plaintiffs [with developmental disabilities] could live in more integrated community settings rather than institutions because they would still have available all services and supports that are currently available to them.”).
During our tours, we met former CVTC residents living and otherwise participating in more integrated settings. The needs of these former CVTC residents are no different than those of the individuals currently at CVTC. Many of them have complex medical and/or behavioral needs but nonetheless are successfully living in community-based settings, where they live with more independence, dignity, and self-determination. We observed that these individuals were living in home-like environments; were able to make choices like how to spend their day, what to eat, and how to decorate their rooms; had access to community-based services and activities; and were safe from harm. Former CVTC residents whom we met included:
 AA, whom we met in a sponsored home and who owns his own bowling shoes and bowling ball, has a membership at the local “Y,” has lunch at a senior center twice a week, frequently visits a friend in a nursing home, and goes to a recreation center each week.9
 BB, a deaf woman whom we met in a sponsored home who goes into the community nearly every day. Her sponsored family includes her in family life through their use of modified sign language.
 CC, who engages in community activities, including church several days a week.
 DD, whom we met at a day program, who volunteers at a local fire department.
 EE, who enjoys bowling despite having cataracts and hearing impairment.
3. Few Individuals Are Discharged from CVTC or the other Training Centers to More Integrated Settings
Virginia relies heavily on institutional care for individuals with intellectual and developmental disabilities. Despite the Commonwealth’s recognition that individuals at CVTC and the other training centers could be served in more integrated settings, Virginia citizens with intellectual and developmental disabilities remain institutionalized, and very few individuals are actually transitioned into the community. This use of institutional care has significant financial costs for the Commonwealth.
The Commonwealth continues to spend far more proportionally on institutional than community care, in large part due to the substantially higher average cost of serving individuals in institutions than in the community. It continues to invest millions of dollars in new construction and remodeling of its training centers instead of seriously investing in the

9

To protect individuals’ privacy, we identify them by initials other than their own.

We will separately transmit to the Commonwealth a schedule that cross-references the initials

with individuals’ full names.

- 10 -
community services necessary to transition people. The Commonwealth’s long-range plan for CVTC is that it maintain a census of 300. As noted earlier, however, CVTC staff already have determined that 170 of the 400 current residents are ready for discharge. Virginia is one of only five states that continue to operate multiple large (16+ beds) state-run institutions for individuals with intellectual and developmental disabilities and of only a handful of states that has yet to close a single state-operated facility.
Individuals who could be served in more integrated settings languish at CVTC. Between July 1, 2008, and July 1, 2010, there was a net reduction in the CVTC population of only 10 individuals, a reduction rate of approximately five people annually. There were only 31 discharges in that two year period,10 despite CVTC itself designating another 170 individuals as being capable of being served in more integrated settings. This unreasonably slow rate of discharge has remained fairly steady since 2004. Between July 1, 2008, and July 1, 2010, there were nearly as many admissions (21 individuals) as discharges, caused in large part by the Commonwealth’s failure to develop sufficient community services to prevent unnecessary institutionalization. Out of the 31 people discharged since July 2008, half of those individuals were people who had been admitted during that same time period. Thus, virtually no one who has been institutionalized long-term in CVTC ever leaves.
Moreover, the large majority of individuals who have been designated as ready for discharge have been waiting for placement for a significant amount of time. Approximately 140 of the 170 so designated were placed on the list in 2007 or earlier. Some individuals have been “ready for discharge” for a decade or more. At the current rate of discharge, the vast majority of individuals at CVTC will not move into the community during their life time. Even those who will ultimately have the chance to move must first endure many more years of unnecessary institutionalization. The other training centers have seen similarly slow discharge rates. Under any standard, this does not constitute discharging at a reasonable pace.
B. A Lack of Services and a Flawed Discharge and Transition Planning Process Cause Unnecessary Institutionalization at CVTC and the Other Training Centers
Our experts identified two primary reasons why so few individuals are discharged from CVTC, and the other training centers, into the community. First, the Commonwealth has failed to develop sufficient community-based services, particularly for individuals with complex needs. Second, the Commonwealth’s process for assessing and transitioning individuals into the community is flawed, creating unreasonable barriers to discharge.
1. The Commonwealth’s Failure to Develop Sufficient Community Services is a Barrier to the Discharge of Individuals at CVTC and the Other Training Centers Who Could Be Served in More Integrated Settings
The lack of sufficient services in the community constitutes one of the primary barriers to discharging individuals from CVTC and other training centers. The Commonwealth already provides the types of services that individuals at CVTC would need to live successfully in the community. See supra. However, existing community services are inadequate and not available in sufficient supply. The Commonwealth should expand existing community programs that
10 At least one of these discharges was made to another training center.

- 11 -
already provide effective services and reject dated models that do not provide opportunities for full integration and self-determination. Community provider agencies have both the capacity and the willingness to develop additional services for individuals at CVTC.
First, the Commonwealth needs additional waiver slots to serve individuals who can be discharged from CVTC and other training centers. The Commonwealth has acknowledged the need for additional waiver slots. See Northern Virginia Training Center Diversion Pilot, DBHDS, Nov. 1, 2010. But few slots are available, and none are specifically designated for individuals leaving the training centers. When a waiver slot becomes available, one of the now 3,000 individuals on the “urgent” wait list – who generally are individuals in the community experiencing crises that put them at risk of entering an institutional setting11 – generally receives it, while individuals at CVTC or other training centers have lower priority. We understand that the Commonwealth makes waiver slots more readily available to those already in the community because it wishes to prevent further admissions. But the Commonwealth may not neglect the institutionalized population. Benjamin, Memorandum and Order, Case No. 09-1182 (Docket Entry 88), at 21 (holding that the State “cannot continue to [prevent admissions] by relegating institutionalized individuals to second-class status” and that the State’s aim cannot “be achieved by discriminating against individuals who have equal rights to community support”). A sufficient number of additional slots, beyond the 275 in the current budget proposal and even beyond the 400 that the Commonwealth has said are the minimum required to address the waitlist, should be allocated to ensure that the institutionalized population is discharged at a reasonable pace.
The Commonwealth continues to direct resources to institutions at the expense of community-based programs, particularly as it underfunds its community-based waiver program. On average, it spends almost $120,000 more per year to serve a person confined to CVTC than in the community using a waiver. Virginia could serve nearly three people in the community for each person in a training center. Even individuals with significant medical needs can be served in the community at approximately half the cost of a training center ($92,000). The provision of community-based services to an individual with the most complex medical and/or behavioral needs, including services 24 hours a day, seven days a week, still costs $64,000 less per year than confining the same individual to a training center.
At the same time that the Commonwealth fails to allocate more resources to communitybased services, it has failed to use a large number of slots made available through the Money Follows the Person (“MFP”) program, which is specifically aimed at facilitating discharge from large institutions like CVTC and benefits from a higher rate of federal matching funds. Based on our experts’ record reviews, there are individuals currently at CVTC who could have been transitioned to the community using MFP program funds. However, while using MFP slots would be a start, more is required.
11 The primary reasons for being placed on the “urgent” waitlist include an aging caregiver, a primary caregiver who can no longer care for the person, risk of abuse or neglect of the individual, or that the individual’s behavioral or physical care needs are putting persons at risk.

- 12 -
Finally, the design of the waiver program has made it difficult to develop sufficient services for individuals with complex needs. This is particularly important for individuals in CVTC and other training centers, many of whom have complex medical and/or behavioral needs and will need significant levels of supports in the community. The Commonwealth itself has acknowledged that “[t]he current ID Waiver does not provide the level of supports and reimbursement rates for targeted services that would make it a truly effective alternative for individuals with needs for high intensity services,” Creating Opportunities:Plan for Advancing Community-Focused Services in Virginia, at 25 (June 25, 2010), and that a more flexible waiver is necessary in order to serve individuals with complex needs, Northern Virginia Training Center Diversion Pilot, DBHDS, Nov. 1, 2010.12
Providers with whom we spoke confirmed this finding. Some providers indicated that the only way to develop adequate services for many people with complex physical, medical, or behavioral needs is for a CSB or private provider agency to create an ICF/DD facility, where funding is provided through an inclusive annual cost adjusted rate instead of through a waiver. This encourages the development of ICF/DD models that tend to be larger than other residential settings, have less community integration, are less homelike (e.g., large “exit” signs, crash bars on doors, and sometimes even nursing stations or staff offices), and provide less flexible programming. These homes are frequently more expensive than smaller, more integrated community residences or sponsored homes. Indeed, the Commonwealth’s own practices appear to prefer the smaller group or sponsored homes, as only a small number of recent CVTC discharges have been made to ICF/DD facilities. Still, this structural problem in the Commonwealth’s services improperly impedes individuals with more complex needs from living in community settings.
2. CVTC’s Inadequate Discharge Planning and Transition Process is a Barrier to the Discharge of Individuals at CVTC Who Could Be Served in More Integrated Settings
CVTC’s inadequate discharge planning and transition process is another significant barrier to serving individuals at CVTC in the most integrated setting appropriate to their needs. The discharge planning process fails to identify individuals who could be served in more integrated settings and creates unreasonable barriers to discharge that lead to an unacceptably slow discharge process. The process also fails to ensure that adequate information is provided to families about community-based options and fails to address families’ questions or concerns.
a. The Commonwealth’s Treatment and Discharge Planning Process Does not Meaningfully Identify People’s Needs, Barriers to Discharge, and Ways to Address Those Barriers
The purpose of the discharge planning process is to identify individuals’ needs, identify what services are necessary to meet those needs in a more integrated setting, and identify barriers
12 Some aspects of the rate system that impede appropriate service development for this complex population include: very short time limits for crisis stabilization services, barriers to funding 24 hour nursing services or supervision, and difficulty obtaining environmental modifications, assistive technology, and adaptive equipment.

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to discharge and strategies to address them. See Kidd, 501 F.3d at 358 (holding that the State “must determine the services required because it must insure that it meets the needs of the recipient and that it places the recipient in the least restrictive environment, as required by state and federal law”) (citing Olmstead, 527 U.S. 581). Discharge planning should start from the presumption that every individual is capable of being served in a more integrated setting. Planning for discharge must begin from the moment of admission and drive treatment planning. Discharge planning and treatment are inextricably tied; the purpose of treatment must be to address the underlying issues that led to the admission and to resolve barriers to discharge to a more integrated setting. We found that significant inadequacies in CVTC’s treatment and discharge planning processes are creating unnecessary barriers to discharging individuals at CVTC who could be served in more integrated settings.
First, we found that treatment plans frequently reflect an outdated view of disability, emphasizing individuals’ deficits rather than identifying needed supports. A team cannot make a determination of the most integrated setting appropriate for an individual unless they meaningfully understand the individual’s needs and the supports necessary to meet them. We also found that many treatment plans do not reflect individualized planning and are not integrated across disciplines. They do not describe the individual’s goals or personal preferences, including goals and desires regarding living in a more integrated setting.13 When goals are listed, they typically are framed as generic treatment goals. Likewise, the discharge planning process inappropriately focuses on the individual’s “readiness” rather than on identifying the community services necessary to meet the individual’s needs.
The monthly review meetings we attended did not include substantive discussion of discharge planning or barriers to placement, and monthly review summaries similarly failed to address these issues. Additionally, we found that the individuals and their families or guardians were not consistently present at monthly review meetings.14 At least two individuals – FF and GG – did not attend their monthly review meetings during our visit. Further, when individuals were present at meetings that we attended, no effort was made to engage them actively in their treatment.
Many of the treatment plans that our expert reviewed failed to provide adequate opportunities to engage in activities aimed at facilitating independence and preventing the regression of skills while the individual is institutionalized.15 We observed individuals who did
13 In addition, on our tours in 2008-09, we found that CVTC failed to provide individuals with appropriate communication services, hindering their ability to express personal goals and preferences and to participate meaningfully in their treatment and discharge, and also creating barriers to community integration. That review revealed that many individuals with significant communication impairments did not have formal communication goals and programs and that CVTC’s speech and language professional resources were inadequate. This deficiency also has implications for individuals’ ability to participate in the discharge planning process and to provide input regarding preferred placements in the community.
14 We use the term “guardian” loosely to apply to the legal guardian or to the “Legally Authorized Representative.”
15 Federal regulations require that:

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not appear to be meaningfully engaged in active treatment, and reviewed individual schedules that included minimal meaningful activities, at best. During our visit, CVTC staff reported that the facility has an expectation that all individuals will participate in four hours of day programming and in two hours of recreation or community activities each day. Our review revealed that this minimum expectation was not met for a significant number of individuals. We also found that only a small number of individuals were actually engaged in meaningful work. For instance, at the time of our visit staff reported that only a total of 42 individuals received pay for work and that there was no wait list for participating in work opportunities. This suggests that CVTC is not actively promoting work opportunities or seeking to ensure that individuals are offered such opportunities.
Further, we found that CVTC’s process for determining the appropriateness of community placement, as set forth in written policy and described by staff, is inconsistently applied.16 As a result, individuals who, according to CVTC’s own criteria, are ready for discharge, remain unnecessarily institutionalized. Our expert reviewed cases in which individuals had identical scores on the “Protocol for Placement of Clients on the Ready for Discharge List,” yet some were placed on the discharge ready list while others were not. In addition, the decision about placement reached on the “Training Center/Community Service Board Needs Upon Discharge Form” was inconsistent with the score on the Protocol. There was no evidence that Quality Assurance activities were in place to ensure consistency. The following examples are illustrative of the ambiguity inherent in determining which individuals are appropriate for discharge:
 HH was admitted to CVTC on April 16, 1956, at age 15. She has met the Discharge Ready Criteria since November 19, 2009; however, for reasons that are unclear, she was not placed on the Discharge Ready List.
 II was admitted on February 19, 1985, at age 36. A progress note on January 27, 2010, indicates that the team would agree that, with necessary supports, II would be able to function in a community setting. Two days later, on a separate form, II did not meet the discharge readiness criteria.
Each client must receiv e a continuous active treatment program, which includes aggressive, consistent implem entation of a program of specialized and generic training, treatment, health services and related services . . . that is directed toward – [t]he acquisition of the behaviors necessa ry for the c lient to f unction with as much self determination and independence as possible; and . . . [t]he prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. § 483.440(a).
16 The practices that are in place at this facility are the same Policies and Procedures that are used at all of the Virginia training centers. The issues and barriers that were found at CVTC are likely to exist at the other training centers, as well.

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 JJ was admitted to CVTC on August 13, 1962, at age 8. On March 16, 2010, she was listed as meeting the Discharge Ready Criteria, and the guardian agreed to consider community placement; however, she was not placed on the Discharge Ready list.
While clarifying the process is advisable, the fundamental point is that the overwhelming majority of individuals at CVTC can be served in the community, including those who have not been formally identified as eligible for discharge. See DAI, 653 F. Supp. 2d at 258-59 (holding that Olmstead does not “create a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting”); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008) (noting that “the language from Olmstead concerning determinations by ‘the State’s treatment professionals’ appears to be based on the particular facts of the case and not central to the Court’s holding”) (internal citation omitted); Frederick L., 157 F. Supp. 2d at 541 (“[The court]do[es] not read Olmstead to require a formal ‘recommendation’ for community placement.”). Indeed, “Olmstead does not allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Id. at 540. See also DAI, 653 F. Supp. 2d at 259; Long v. Benson, No. 08-cv-26 (RH/WCS), 2008 WL 4571905, at *2 (N.D. Fla. Oct. 14, 2008) (noting that the State “cannot deny the right [to an integrated setting] simply by refusing to acknowledge that the individual could receive appropriate care in the community”).
b. CVTC Staff are Not Adequately Knowledgeable of Available Community Services and Do Not Sufficiently Coordinate with Providers
CVTC staff lack knowledge of community services and fail to coordinate with community providers. As a result, CVTC staff do not have the information they need to be able to make recommendations about how an individual’s needs could be met in a more integrated setting, to present families with specific proposals for community residences and services, or to answer families’ questions about community living. Cf. 28 C.F.R. pt. 35, App. A, p.450 (1998) (requiring an individual to have an “option of declining to accept a particular accommodation”) (emphasis added). CVTC staff often fail to explain even the types of services available in the community or the benefits of community living, though such a discussion “could make a substantial difference in the number of referrals for placement.” Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 338 (D. Conn. 2008).
The lack of coordination between CVTC staff and community providers contributes to the long delays in the transition from CVTC to the community. Providers do not have sufficient information about the needs of people at CVTC to develop services for them. Moreover, CVTC staff fail to utilize community providers as resources to educate individuals and their families about community living, such as having providers speak with them, coordinating visits for individuals considering community placement and their families, and facilitating conversations with individuals currently living in the community and their families. Providers want to be more involved in the service development and transition planning process and are more effective when they are.

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We identified individuals for whom discharge took many months, even after a provider and a residence were selected. Several people are still at CVTC despite a provider and residence being selected more than two years ago, and despite guardian approval. The following examples illustrate a pattern of CVTC failing to make meaningful efforts to coordinate discharge, even where the individual has been identified as discharge-eligible and the guardian is in agreement:
 KK was admitted to CVTC on August 30, 1962, at age five. KK met the Discharge Readiness Criteria in May 2006 after the guardian agreed to support placement in April 2006. KK was placed on the Discharge Ready List on June 30, 2006. After three years of being “discharge ready” but not discharged, in May 2009, the guardian changed her mind about community placement. There was no evidence that the team addressed the guardian’s concerns regarding how KK’s health needs would be met in the community.
 LL was admitted to CVTC on October 12, 1959, at age six. He was listed as ready for discharge on June 12, 2007, and also had guardian approval. He was placed on the Discharge Ready List on November 2, 2007. LL’s residential placement has been delayed four times. As of May 2010, he continued to meet the criteria in the placement protocol, including the fact that he can participate in discharge planning. There are no funds available for needed adaptive equipment, so the CSB Case Manager is looking for grants to fund this item. There was no indication that the team considered the Money Follows the Person program that provides funds for start-up services.
 MM was admitted to CVTC on March 1, 1972, at age 12. She was placed on the Discharge Ready List in April 2006 with an indication that the family was in support of discharge. The State form indicated that in March 2008 “nothing is available at this time.” A State form on June 9, 2009, indicates “Nothing available at this time.” The record does not demonstrate any efforts to make something available.
C. Individuals with Intellectual and Developmental Disabilities Currently Being Served in the Community Are At Risk of Unnecessary Institutionalization
The ADA’s integration mandate applies both to people who are currently institutionalized and to people who are at risk of unnecessary institutionalization. See Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (ADA applied to individual at risk of entering a nursing home); Fisher v. Okla. Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) (same); Helen L., 46 F.3d at 325 (holding that the ADA was offended where a person with disabilities was offered personal care services in an institutional setting but not at home). We found that individuals in the community are at risk of unnecessary and costly institutionalization because of the Commonwealth’s failure to provide sufficient community-based services. As Virginia discharges individuals from the training centers, as discussed above, it must redirect expenditures from costly institutional care to address these deficiencies in community services.
More than 6,000 individuals are on a waitlist for services in the community. Nearly 3,000 of those individuals are on the “urgent” list, meaning that they are in situations that place them at significant risk of institutionalization. See fn 11. Some of these individuals have been, and will continue to be, forced into institutions when a crisis arises while they wait for community services. As evidence of this, CVTC has had nearly as many admissions as it has had discharges over the last several years. See supra.

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An inadequate number of waiver slots and the inflexibility of the waiver, particularly for individuals with complex needs, place individuals in the community at risk of unnecessary institutionalization. The Commonwealth admits that “[w]ithout significant changes to [the] waiver program’s services, payments rates, and structure, little more can be done to divert admissions to training centers for the most medically fragile and behaviorally challenging individuals.” Northern Virginia Training Center Diversion Pilot, DBHDS, at 11, Nov. 1, 2010; id. at 10 (“The ability of CSBs to divert an admission to [a] training center can be limited because of insufficient resources to purchase care in the community.”). The Commonwealth must expand slots to address the needs of individuals who face the real threat of unnecessary institutionalization. The Commonwealth’s own reports recommend between 40017 and 1,000 new slots each year over the next several years to address the waitlist alone. Id. at 9; The Cost and Feasibility of Alternatives to the State’s Five Mental Retardation Training Centers, at 4, 18 (2005). The current proposal of 275 waiver slots, while commendable, is far from adequate.
The Commonwealth’s lack of capacity places individuals at risk of unnecessary institutionalization. The number of short term admissions for crisis services underscores the gap in Virginia’s system.
We found that a primary cause of admissions to CVTC is the lack of crisis services for individuals with acute medical or behavioral issues. The Commonwealth recognizes that “additional crisis intervention and crisis response resources are needed to divert behavioral crisis admissions to training centers,” Northern Virginia Training Center Diversion Pilot, DBHDS, at 6, Nov. 1, 2010, and that “[t]here is a documented need for additional crisis intervention and crisis stabilization services,” including to prevent admissions to the training centers or other forms of institutionalization, id. at 8. Respite services are also essential to diverting unnecessary admissions. A shortage of available respite services “may create situations where individuals have no choice but to be admitted” to a training center for respite care. Id. at 10. The Commonwealth’s current budget proposal to significantly cut respite care will make it more difficult for families to keep their loved ones at home and in the community.18
…
In summary, the Commonwealth violates the ADA by unnecessarily institutionalizing individuals at CVTC and other training centers who could be served in the community and by placing individuals currently in the community at risk of unnecessary institutionalization.
17 An increase of 400 slots per year averages to just ten slots per CSB, or less than one per month per CSB.
18 Supported employment and other integrated day activities can also help prevent unnecessary institutionalization by helping individuals build a natural support system and by minimizing boredom and feelings of isolation that can contribute to behaviors that require crisis responses. Moreover, meaningful day activities, including supported employment, help individuals pursue their preferences and goals and feel challenged and stimulated. As discussed above, the State appears to be overly reliant on segregated sheltered workshops and day programs that offer little opportunity for real community integration, even though the State also offers more integrated supported employment opportunities.

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Individuals suffer harm and are placed at risk of harm while needlessly institutionalized. The Commonwealth has failed to ensure an adequate supply of community-based services, particularly for individuals with complex needs, necessary for the discharge of individuals from the training centers and for the prevention of unnecessary admissions of individuals waiting for services in the community. Moreover, the rate of discharge of individuals from CVTC and other training centers into the community is far too slow, caused in significant part by a flawed discharge planning process and the lack of sufficient community-based alternatives. The Commonwealth’s violations of the ADA come at a huge financial cost to all of its citizens.
V. RECOMMENDED REMEDIAL MEASURES
To remedy the deficiencies discussed above and protect the constitutional and federal statutory rights of both individuals in CVTC and, where appropriate, other training centers, and those at risk of being institutionalized at CVTC and other training centers, the Commonwealth should promptly implement the minimum remedial measures set forth below:
A. Serving Individuals with Intellectual and Developmental Disabilities in the Community
The Commonwealth must increase community capacity by allotting additional waivers and expanding community services to serve individuals in or at risk of entering the training centers. A sufficient number of waivers – far more than what the Commonwealth has currently budgeted – must be available to address both individuals confined to the training centers and those on the waitlist in the community. The Commonwealth should also take full advantage of opportunities available to it, including the Money Follows the Person program, to develop services for individuals being discharged from CVTC and the other training centers. As the State downsizes its institutional population, the State should realign its investment in services for individuals with intellectual and developmental disabilities away from institutions to prioritize community-based services.
As a means of preventing institutionalization, the Commonwealth should develop crisis services, preserve the respite services it has been providing, and provide integrated day services, including supported employment. The Commonwealth should move away from its reliance on sheltered workshops.
Virginia should make modifications to its Medicaid waivers or explore the development of additional waivers to facilitate the development of integrated and individualized community services for people with complex physical, medical, and behavioral needs. New targeted waivers for specialty populations could also be developed.
The Commonwealth should ensure that its quality management systems are sufficient to reliably assess the adequacy and safety of treatment and services provided by community providers, the CSBs, and CVTC. The systems must be able to timely detect deficiencies, verify implementation of prompt corrective action, identify areas warranting programmatic improvement, and foster implementation of programmatic improvement.

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B. Discharging Individuals from CVTC and the Other Training Centers
The Commonwealth must implement a clear plan to accelerate the pace of transitions to more integrated community-based settings. The Commonwealth must overcome what has become an institutional bias in its system.
Discharge planning must begin at the time of an individual’s admission. The process should be improved and simplified and should focus on needed services. Rather than determining whether an individual is “ready” for discharge, the Commonwealth must focus on which services each individual will require in the community and should begin constructing a plan for providing such services and facilitating discharge. The default cannot be institutionalization. The discharge and transition plan should include the individual’s preferences, a discussion of how the individual will access services, and a plan on how to coordinate care among multiple providers, if applicable.
Assessment teams must become knowledgeable about community living options and services. During the treatment planning process and in implementing individual treatment plans, the Commonwealth should ensure that barriers to discharge are identified and addressed and, for individuals with a history of re-admission, that factors that led to re-admission are also analyzed and addressed. Treatment planning should be individualized, person-centered, and multidisciplinary, and it should include the individual and his family.
In order to ensure an appropriate transition upon discharge, the Commonwealth should engage identified community providers in the discharge planning process as far in advance of discharge as possible and develop and implement a system to follow up with individuals after discharge to identify gaps in care and address proactively any such gaps to reduce the risk of readmission. The community-based service agencies must be made full partners in the process of planning, developing, and preparing services for individuals, much like the CSBs are currently. The Commonwealth cannot rely primarily on staff at the institution. The Commonwealth must develop a process to clearly identify existing vacancies and explicitly review the physical or programmatic adjustments needed in those vacancies to match this capacity with an individual’s needs as part of individualized discharge planning and to facilitate long-range planning. The Commonwealth should emphasize placement into smaller community homes in its transition planning.
The Commonwealth should also create, revise, and implement a quality assurance or utilization review process to oversee the discharge process. The quality assurance process should include, at a minimum: developing a system to review the quality and effectiveness of discharge plans; developing a system to track discharged individuals to determine if they receive care in the community as prescribed at discharge; and identifying and assessing gaps in community services identified through the tracking of discharge outcomes.
If any individual or guardian opposes placement, the training center should document the steps taken to ensure that they are making an informed choice. The training centers should implement strategies to address individual concerns and objections to placement. Families should be provided the opportunity to visit potential placements and to speak with provider agency staff and with other families whose loved ones live in the community.

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The Commonwealth should make all efforts to prevent new admissions to the training centers, including expanding community services necessary to divert individuals and stabilize them in the community. If an individual is referred to a training center, however, Virginia must ensure that, before an individual is admitted, the person receives a professionally-based assessment to ensure that admission is necessary and that the institution is the most integrated setting appropriate to serve the needs of that individual.
VI. CONCLUSION
Please note that this findings letter is a public document. It will be posted on the Civil Rights Division=s website. Although we will provide a copy of this letter to any individual or entity upon request, as a matter of courtesy, we will not post this letter on the Civil Rights Division’s website until ten calendar days from the date of this letter.
We hope to continue working with the Commonwealth in an amicable and cooperative fashion to resolve our outstanding concerns with respect to the services the Commonwealth provides to persons with intellectual and developmental disabilities at CVTC and other settings across the Commonwealth. Assuming that our cooperative relationship continues, we are willing to send our consultants’ written evaluations – which are not public documents – under separate cover. Although the consultants’ reports do not necessarily reflect the official conclusions of the Department of Justice, the observations, analysis, and recommendations contained therein provide further elaboration of the issues discussed in this letter and offer practical technical assistance to help address them.
We hope that you will give this information careful consideration and that it will assist in facilitating a dialogue swiftly addressing the areas that require attention.
We are obligated to advise you that, in the unexpected event that we are unable to reach a resolution regarding our concerns, the Attorney General may initiate a lawsuit pursuant to the ADA once we have determined that we cannot secure compliance voluntarily, 42 U.S.C. ' 2000d-1, and pursuant to CRIPA to correct deficiencies of the kind identified in this letter 49 days after appropriate officials have been notified of them, 42 U.S.C. ' 1997b(a)(1). We would prefer, however, to resolve this matter by working cooperatively with the Commonwealth and are confident that we will be able to do so. The Department of Justice attorney assigned to this investigation will be contacting the Commonwealth’s attorneys to discuss this matter in further detail. If you have any questions regarding this letter, please call Jonathan Smith, Chief of the Civil Rights Division’s Special Litigation Section, at (202) 514-5393.
Sincerely,
s/Thomas E. Perez
Thomas E. Perez Assistant Attorney General

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cc: James W. Stewart, III Commissioner Department of Behavioral Health and Developmental Services Richmond, Virginia
Heidi Dix Assistant Commissioner, Developmental Services Department of Behavioral Health and Developmental Services Richmond, Virginia
Lee Price Director Office of Developmental Services Richmond, Virginia
Dr. Dale Woods Facility Director Central Virginia Training Center Madison Heights, Virginia
The Honorable Kenneth T. Cuccinelli, II Attorney General of Virginia Richmond, Virginia
Allyson K. Tysinger Senior Assistant Attorney General Richmond, Virginia
The Honorable Timothy J. Heaphy United States Attorney Western District of Virginia Roanoke, Virginia


[CONTENT] February 10, 2011 | the United States Department of Justice | Civil Rights Division | Special Litigation Section | Virginia ||| the Central Virginia Training Center | CVTC | ICF/DD | CVTC | the Civil Rights of Institutionalized Persons Act | ADA ||| DOJ | Virginia | Americans | 1999 | Supreme Court | LC</a ||| DOJ | Medicaid | CVTC ||| DOJ ||| Nearly one year later | Virginia ||| DOJ | the U.S. District Court | the Eastern District | Virginia | January 26, 2012 ||| John A. Gibney | amici curiae ||| March 2, 2012 ||| May 9, 2012 ||| 282 | 403 ||| the United States' | ADA ||| June 5, 2012 | DOJ | ADA ||| August 23, 2012 | the United States | Virginia ||| Virginia |||  ||| Virginia | Home and Community Based Services Medicaid |||  ||| the next three years |||  ||| September 23, 2015 | DOJ ||| Intervenors | State ||| DOJ ||| DOJ | January 2016 ||| August 4, 2017 | Intervenors ||| Intervenors | the State Training Centers | State ||| State | Training Centers | State ||| November 6, 2017 ||| February 2, 2018 | Gibney | Intervenors ||| Intervenors | DOJ | ADA | Eleventh Amendment ||| Intervenors ||| 2019 ||| April 23, 2019 | Gibney ||| April 14, 2020 [SUMMARY] On February 10, 2011, the United States Department of Justice (Civil Rights Division, Special Litigation Section) released a letter of findings detailing the results of its investigation into the institutionalization of individuals with intellectual and developmental disabilities in Virginia.  The investigation focused specifically on the Central Virginia Training Center (CVTC), an intermediate care facility for persons with developmental disabilities (ICF/DD), but also considered the statewide institutionalization of this population (DOJ's involvement began as an investigation of CVTC pursuant to the Civil Rights of Institutionalized Persons Act but later expanded to include the statewide system's compliance with the ADA).  The DOJ concluded that Virginia was systematically violating the Americans with Disabilities Act under the 1999 Supreme Court precedent, <a href="https://www.clearinghouse.net/detail.php?id=11643">Olmstead v. LC</a>, in forcing the unnecessary institutionalization of people with disabilities.  The DOJ found a lack of sufficient community-based services available to this population, an unreasonably long waiting list for Medicaid waiver services, inadequate discharge planning at CVTC, and other deficiencies.  According to the DOJ, these policies lead to a situation in which individuals with developmental disabilities were housed unnecessarily in institutions and were unable to either remain in the community or transition from an institution to a community placement. 

Nearly one year later, the DOJ and Virginia entered into a settlement agreement to remedy the deficiencies outlined in the findings letter.  The DOJ filed a complaint and settlement agreement in the U.S. District Court for the Eastern District of Virginia on January 26, 2012.  The court (Judge John A. Gibney, Jr.) gave preliminary approval to the agreement and allowed interested parties to submit letters and amici curiae briefs to the court in advance of the final approval of the settlement.  On March 2, 2012, several individuals then living in institutions filed a motion to intervene in the litigation, claiming that they wished to remain in institutions and that the proposed settlement would force the closing of their institutions. The court found that they had adequately demonstrated that they stood to be affected by the outcome of the litigation and granted their intervention in the case on May 9, 2012. 282 F.R.D. 403. The intervenors then filed a motion to dismiss, challenging the United States' authority to bring the claim to enforce the ADA.

On June 5, 2012, the court denied the intervenors' motion to dismiss, finding that DOJ's ADA enforcement authority included the ability to investigate and file suit in federal court as had occurred here, and that the government had followed all necessary procedures.  

On August 23, 2012, the court finalized its approval of the settlement between the United States and Virginia.  Under the settlement, Virginia agreed to increase its community-based services for people with intellectual and developmental disabilities.  The goal of the agreement was to prevent individuals living in their communities from being forced into institutions, and to allow those living in institutions to transition to their communities. Virginia agreed to create additional slots on its Home and Community Based Services Medicaid waiver programs and to allow those on the waitlist to begin receiving services.  The state also agreed to provide crisis services and employment training. 

Reports from the independent reviewer over the next three years noted significant progress in certain areas, including the discharge of adults from institutions and development of adult crisis services. However, in other areas, progress lagged. On September 23, 2015, the DOJ submitted a motion for a court-ordered schedule of implementation. Shortly afterward, the Intervenors filed a statement of interest asking that the court suspend the closure of remaining institutions until the State could show that adequate financial and community support structures were in place. 

Before the court made a determination on the DOJ's schedule motion, the parties negotiated and agreed on specific implementation schedules. The DOJ subsequently withdrew its motion in January 2016.

On August 4, 2017, the Intervenors filed a motion for injunctive relief. The Intervenors alleged that several former residents who had never voluntarily consented to a move from the State Training Centers were coerced by the State into transitioning into the community. They asked that the court permanently enjoin the State from forcibly removing residents from Training Centers and that it issue a declaratory judgment stating that the State had acted in violation of state laws. 

A hearing on the motion took place on November 6, 2017. On February 2, 2018, the court (Judge Gibney) denied the Intervenors' motion. The court found that though the Intervenors had standing to pursue their motion for injunctive relief, the court did not have subject matter jurisdiction over the motion because the Intervenors' claims did not form part of the same case or controversy as the DOJ's ADA claims and, further, because Eleventh Amendment sovereign immunity prevents federal courts from enjoining states based on state law claims. Even if it had jurisdiction, the court found that the Intervenors did not meet the standard for an award of injunctive relief.

The court began the process of terminating the case in 2019. After a hearing on April 23, 2019, however, Judge Gibney found that the defendants had not complied with the terms of the consent decree, and that monitoring should continue. As of April 14, 2020, this case is ongoing and the independent reviewer continues to submit reports on compliance with the settlement agreement.