RD364 - U. S. Department of Justice Implementation Update Pursuant to Code of Virginia § 37.2-319 (HB2533/SB1486, 2011) and Item 315.V.1. of the 2012 Appropriation Act - December 1, 2012

Executive Summary:
This report was developed to meet the requirements set forth in both Virginia Code § 37.2?319 (HB2533/SB1486, 2011) and Item 315.V.1. of the 2012 Appropriation Act. Specifically, Item 315.V.1 addresses the management of the general fund appropriation for the expansion of community?based services in anticipation of the Settlement Agreement with the U.S. Department of Justice (DOJ), and states:

"The Department of Behavioral Health and Developmental Services shall provide updates on July 1 and December 1 of each year to the Governor and the Chairmen of the Senate Finance and House Appropriations Committees regarding expenditures and progress in meeting implementation targets established in the agreement."

The enactment clause associated with § 37.2?319 addresses the plan to transition individuals with intellectual disability from state training centers to community?based settings, and states:

"The Secretary shall submit reports on the development and implementation of the plan to the Governor and the Chairmen of the House Committee on Appropriations and the Senate Committee on Finance on the first of July and December of each year beginning July 1, 2011."

This report addresses Virginia’s progress in meeting the milestones in the Settlement Agreement for the period of July 1, 2012 – October 31, 2012, and describes expenditures associated with the Agreement for FY12 and FY13.

Current Legal Status of the Settlement Agreement

In August 2008, DOJ initiated an investigation of Central Virginia Training Center (CVTC), a facility operated by the Department of Behavioral Health and Developmental Services (DBHDS), pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA). In April 2010, DOJ notified the Commonwealth that it was expanding its investigation to focus on Virginia’s compliance with the Americans with Disabilities Act (ADA) and Olmstead v. L.C. (US Supreme Court 1999). It first began this phase of the investigation at CVTC and then expanded it to the statewide system serving individuals with intellectual and developmental disabilities (ID and DD, respectively).

In February 2011, DOJ submitted a findings letter to Virginia, concluding that the Commonwealth fails to provide services to individuals with ID and DD in the most integrated setting appropriate to their needs. DOJ found that Virginia lacks the community capacity to support individuals who would choose to live there and prevent unnecessary institutionalization. It also found that Virginia’s current discharge process from training centers was flawed, inconsistent, and not timely.

In March 2011, Virginia entered into negotiations with DOJ. On January 26, 2012, Virginia and DOJ reached a 10 year Settlement Agreement resolving DOJ’s findings. On joint motion of the DOJ and the Commonwealth, the Settlement Agreement was filed with the U.S. District Court for the Eastern District of Virginia for entry as a court order. Several family members of current training center residents were granted permission by the court to intervene in the case.

On March 6, 2012, Judge John A. Gibney, Jr., signed a temporary order entering the Settlement Agreement. Throughout this document that date is used as the start date for purposes of implementation.

On June 8, 2012, Judge Gibney conducted a hearing to determine whether to approve the Agreement. On August 23, 2012, Judge Gibney signed a final order entering the Settlement Agreement (Appendix A).

Implementation Status Update

The 2011 General Assembly provided funds to begin implementation through the Behavioral Health and Developmental Services Trust Fund (the "Trust Fund," §§ 37.2?316 through 319). The 2012 General Assembly continued these efforts by appropriating additional funds for implementation through Item 315 V.1. DBHDS is moving forward with implementation based on these directives and those in the final Settlement Agreement.

Major Accomplishments:


o In November 2011, 60 waiver slots were established out of the Behavioral Health and Developmental Services Trust Fund to move 40 individuals from Southside Virginia Training Center (SVTC) and 20 individuals from Central Virginia Training Center (CVTC) to the community. For the period November 2011 – June 30, 2012, 61 individuals moved from these two training centers to the community using enhanced discharge processes.

o During that same time period, 15 individuals moved from Virginia’s other three training centers to the community.

o All training centers have been actively engaging individuals and families in enhanced discharge processes since March 2012 when the Settlement Agreement was temporarily entered by Judge Gibney. As a result, during the period of July 1, 2012 – October 31, 2012, 41 individuals moved from Virginia’s training centers to the community.

o The following table shows where individuals have moved by type of setting and geographic location since November 2011. (See table at top of numbered page "v.")

• The following reflects the current and historical census in all five training centers: (See table in middle of numbered page "v.")

ESTABLISHING CRISIS SERVICES: DBHDS is implementing the Systemic Therapeutic Assessment Respite and Treatment (START) program to provide crisis services to individuals with ID/DD statewide. Program operations in all five regions of the Commonwealth began in July 2012. Three of five regions are already providing 24 hour mobile crisis support (Regions 3, 4, and 5). Regions 1 and 2 are using a private provider who received a license in October 2012 and will begin 24 hour operations imminently.

The program will provide 24 hour/7 day a week support to individuals in crisis, including an onsite assessment with an individual within one hour in urban regions and two hours in rural areas by June 30, 2014. The program will provide in?home supports and out?of?home crisis respite services when they are needed. The goal of the program is to maintain individuals in their homes and prevent crises when possible. At the time of this report, over 282 individuals had been referred to these programs for assessment and support.

• DEVELOPMENT OF CASE MANAGEMENT STANDARDS: The Settlement Agreement requires enhanced case management for individuals receiving Home and Community Based (HCBS) waiver services in the target population who meet certain criteria (Section V.F.3.a?f). DBHDS will issue guidance to community services board (CSB) case managers and DD case managers in early December regarding these criteria and their implementation. The enhanced case management standards will take effect on March 6, 2013.

• ISSUING CASE MANAGEMENT CORE COMPETENCY?BASED TRAINING CURRICULUM: Six core competency based training modules have been completed and released for case managers across Virginia to complete on?line. Over 3,400 individuals have completed all six modules since they were established in May 2012. The Settlement Agreement requires Virginia to develop a core?competency based curriculum for case managers by March 6, 2013.

• DBHDS STRATEGIC PLAN FOR EMPLOYMENT FIRST: The Settlement Agreement required DBHDS to develop an implementation plan to improve integrated day opportunities, including supported employment, for individuals in the target population of the Agreement. DBHDS published the plan on November 8, 2012. The Strategic Plan provides baseline data regarding individuals receiving supported employment under HCBS waivers and outlines annual strategic goals to improve employment and other integrated day opportunities for individuals in the target population as well as those with other disabilities (Appendix B).

The body of the report describes in detail these and other activities that DBHDS and its partner agencies are undertaking to implement the Settlement Agreement.

Barriers to Implementation:

At the time of this report, Virginia has encountered few barriers to implementing the milestones in the Settlement Agreement. The following items are either delayed in implementation or will require additional attention to address:

• CRISIS SERVICES FOR CHILDREN WITH ID/DD IN THE TARGET POPULATION: Virginia is required to implement a “statewide crisis system for individuals with intellectual and developmental disabilities.” This system should include children. DBHDS is currently implementing the START program for adults with ID/DD. Expanding the program to include children will likely create new challenges and barriers for DBHDS to overcome.

• CRISIS STABILIZATION PROGRAMS: The crisis stabilization programs as designed in the Settlement Agreement were to be established on or before June 30, 2012. The crisis stabilization programs, which are dependent on the construction or renovation of homes in each of the five regions, have been delayed. The first program began operation in November 2012 in Region 3. The programs in Regions 1, 2, and 4 will begin operation during the winter of 2012. Region 5’s program will not begin until summer 2013.

• EMPLOYMENT FIRST IMPLEMENTATION PLAN TARGETS: DBHDS is required to use baseline data to establish targets for improving integrated day opportunities, including supported employment, for the target population under the Settlement Agreement. DBHDS encountered difficulty and delays in collecting data in order to establish a baseline and develop targets. DBHDS will work with stakeholders to establish these targets by March 31, 2013.