DHHR Attempts to Gut Behavioral Health Clients’ Rights and Privatize both Psychiatric Hospitals 

Now, the DHHR is attempting to gut behavioral health client’s rights listed in Title 64 Series 59.  DHHR is obviously attempting to end the Hartley Case and dismantle almost all regulations and patient rights. DHHR is blatantly attempting to bring Title 64 in alignment with Adult Protective Services Guidelines and Forensic Mental Health.

Clearly, these changes are in an attempt to make it easier for DHHR to maintain their accreditation through regulatory agencies. Furthermore, this proposal will make it much easier for DHHR to privatize Sharpe and Bateman hospitals in the near future.

Some background on the case, taken from the Charleston Daily Mail, January 30, 2013)
The “Hartley case,” E.H. v. Matin, commonly was first filed in 1981 by a group of patients at Huntington State Hospital (now Mildred Mitchell-Bateman Hospital). In a written opinion issued in 1982, West Virginia Supreme Court of Appeals Justice Richard Neely referred to “the Dickensian squalor of unconscionable magnitudes of West Virginia’s mental institutions.”

The Supreme Court transferred control of the case to Kanawha County Circuit Court shortly after, which actively monitored Bateman and the William R. Sharpe Jr. Hospital until 2002. It continued to monitor the hospitals’ ongoing issues through an ombudsman, and in 2008, the ombudsman reported that Bateman was operating above capacity, prompting the court to reopen the case.

The 2009 hearings also found that the DHHR had failed to adequately reimburse community service providers, including day treatment, case management and basic living skills. In July 2009, the court ordered the DHHR to increase the pay of direct care staff, as well as to “use only full-time employees working regular shifts or voluntary overtime except in exceptional and infrequent contexts.”

At the June 11, 2014 hearing, Victoria Jones, commissioner of the Bureau of Behavorial Health and Health Facilities, presented three plans for the court’s consideration: privatizing the facilities, making all employees contract workers, or what she referred to as a “hybrid plan” — making all Sharpe and Bateman employees classified as exempt under Division of Personnel code.

Classified-exempt employees would have more flexibility in scheduling and greater payment opportunities and would retain their own health benefits and pension, Jones said. However, they would not have collective-bargaining rights and would become at-will employees, meaning the DHHR would have greater authority in firing employees than it does for its public employees.

Kanawha County Circuit Judge Duke Bloom rejected all three plans. If found in contempt on July 15, 2014, the DHHR could have faced “the appropriate sanction” in a civil contempt case, which state law defines as “an order that incarcerates a contemner for an indefinite term and that also specifies a reasonable manner in which the contempt may be purged thereby securing the immediate release of the contemner, or an order requiring the payment of a fine in the nature of compensation or damages to the party aggrieved by the failure of the contemner to comply with the order.”

Some more background from the Register-Herald of Beckley, August 25, 2019:

Since 2014, DHHR continues to force employees to work mandatory overtime, relies on contractual employees, and refuses to fill hundreds of vacant positions with full-time employees. William R. Sharpe Jr. and Mildred Mitchell-Bateman operate in emergency mode each day due to staffing shortages. These factors affect employee morale and drastically diminish patient continuity of care.

In September 2017, the federal Centers for Medicare and Medicaid Services notified Sharpe Hospital, a state-owned psychiatric facility in Weston, that it would no longer be allowed to accept Medicare and Medicaid funding.

They said Sharpe employees were not showing that they were appropriately caring for patients through proper documentation of treatment plans — a condition of Medicare and Medicaid participation. During one visit, CMS reviewed 10 treatment plans and found that, in seven, they were not ensuring treatment was “based on the individual needs of the patient.”

In response, the state Department of Health and Human Resources began transferring forensic patients, typically those found not guilty of a crime by reason of mental illness, from other hospitals in the state to Sharpe Hospital, and transferring Medicare and Medicaid patients to other hospitals.

DHHR officials said they were contracting with The Greeley Company, a consulting firm, to help Sharpe become re-certified.

Allison Adler, a DHHR spokeswoman, said Sharpe may become re-certified soon, though.

“William R. Sharpe Jr. Hospital (Sharpe) had a recent Centers for Medicare & Medicaid Services (CMS) survey to validate maintaining compliance with CMS enrollment requirements and is awaiting notification from CMS that all requirements were successfully met,” said Adler. “The Greeley Company has been on contract to assist with the recertification for nearly two years.

“Approximately $1.5 million has been spent over that period. DHHR has covered the costs of the Greeley contract by increasing Forensic admissions to Sharpe, resulting in fewer diversions to other hospitals and therefore, lowered state expenditures. DHHR estimates that it has saved more than $2 million in diversion costs since the loss of certification.”

Less than a month later, the DHHR issued this announcement:

The West Virginia Department of Health and Human Resources (DHHR) today (September 11, 2019) announced that William R. Sharpe, Jr. Hospital (Sharpe) has been readmitted to the Medicare program through the U.S. Centers for Medicare and Medicaid Services (CMS).

“This is a huge feat for Sharpe Hospital and DHHR and demonstrates that the Sharpe team is providing quality care to its patients,” said Bill J. Crouch, Cabinet Secretary of DHHR. “It has taken a true team effort to get Sharpe to this point and we will continue to ensure compliance and quality care is continued.”

The action taken by CMS in September 2017 to terminate Sharpe from participation in the Medicare program meant that Sharpe could not admit Medicare patients. The primary issues for termination from the CMS Medicare program were based on inadequate and insufficient documentation relating to patient treatment plans and a lack of interventional follow up.

After nearly two years of the recertification process and CMS surveys, CMS determined that Sharpe successfully met all requirements and is in compliance with the Special Conditions for Psychiatric Hospitals and participation in the CMS Medicare program.

“This accomplishment is a direct result of how our staff has committed to changing the course of Sharpe Hospital,” said Patrick Ryan, CEO of Sharpe.  “The past two years have seen many changes in our approach to delivering patient care and the processes that guide our daily work.  I am confident the Sharpe team is on the right path with the care and treatment we provide to our patients.”

In addition, within the last couple of weeks, the Joint Commission conducted a survey of Sharpe and awarded the hospital a three-year certification.

*  *  *

Now, DHHR has submitted revisions to Title 64 Series 59, submitted July 1.

Public hearings will be scheduled in the very near future. Please follow our Facebook page at UE Local 170, West Virginia Public Workers Union, for updates. Local 170 strongly encourages our members and the public to attend these hearings and contact your local Delegates and Senators and tell them you oppose these changes and privatization of these facilities.

Moreover, please contact the following individuals below and tell them you oppose these changes and privatization of these facilities. Furthermore, please share your current working conditions at your hospital; mention the numerous unfilled full-time vacancies, unbearable amounts of mandatory overtime being forced on employees, and the lack of continuity of care being provided to our patients who are West Virginia’s most vulnerable mental health population.

Additional Contacts:
Governor Jim Justice Office at 304-558-2000
David Sudbeck, Court Monitor, 304-558-2159
Bill Albert, Behavioral Health Advocacy Program Director, Legal Aid, 304-343-3013 ex. 2158
Daniel F. Hedges, Executive Director, Mountain State Justice, 304-344-5564
Lydia C. Milnes, Attorney, Mountain State Justice, 304-326-0188