Senate Bill No. 32
(By Senators Blatnik and Bowman)
____________
[Introduced January 11, 1996; referred to the Committee
on Health and Human Resources; and then to the Committee on
Finance.]
____________
A BILL to amend chapter twenty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article
eighteen, relating to the home-based support services law
for mentally disabled adults; short title; purpose;
definitions; home-based support services program for
mentally disabled adults, its establishment and purpose;
standards for the program; application forms; liability of
relatives for charges; submission of an application;
approval of applications; amount of services; services by
community health and developmental service providers;
grounds for cessation of services; annual application; maximization of use of other services; cooperation with
governmental or private service providers; evaluation of
program; notice of denial of application; appeal; judicial
review; financial assistance to implement plan; rules for
uniform availability; powers and duties of department; and
adoption of rules.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eighteen, to
read as follows:
§27-18-1. Short title.
This article may be cited as "The Home-Based Support
Services Law for Mentally Disabled Adults."
§27-18-2. Purpose.
The purpose of this article is to authorize the behavioral
health department to encourage, develop, sponsor and fund
home-based and community-based services for mentally disabled
adults in order to provide alternatives to institutionalization
and to permit mentally disabled adults to remain in their own
homes.
§27-18-3. Definitions.
As used in this article, unless the context requires
otherwise:
(a) "Agency" means an agency or entity licensed by the
department pursuant to this article.
(b) "Department" means the department of health and human
resources.
(c) "Home-based services" means services provided to a
mentally disabled adult who lives in his or her own home. These
services include, but are not limited to:
(1) Home health services;
(2) Case management;
(3) Crisis management;
(4) Training and assistance in self-care;
(5) Personal care services;
(6) Habilitation and rehabilitation services;
(7) Employment-related services;
(8) Respite care; and
(9) Other skill training that enables a person to become
self-supporting.
(d) "Legal guardian" means a person appointed by a court of competent jurisdiction to exercise guardianship or power of
attorney or both guardianship and power of attorney over a
mentally disabled adult.
(e) "Mentally disabled adult" means a person over the age of
eighteen years who lives in his or her own home; who needs
home-based services, but does not require twenty-four hour a day
supervision; and who has one of the following conditions; severe
autism, severe mental illness, severe or profound mental
retardation or severe and multiple impairments.
(f) "In one's own home" means that a mentally disabled adult
lives alone; or that a mentally disabled adult is in full-time
residence with his or her parents, legal guardian or other
relatives; or that a mentally disabled adult is in full-time
residence in a setting with three or fewer other adults unrelated
to the mentally disabled adult who do not provide home-based
services to the mentally disabled adult.
(g) "Parent" means the biological or adoptive parent of a
mentally disabled adult, or a person licensed as a foster parent
under the laws of this state who acts as a mentally disabled
adult's foster parent.
(h) "Relative" means any of the following relationships by blood, marriage or adoption: Parent, son, daughter, brother,
sister, grandparent, uncle, aunt, nephew, niece, great
grandparent, great uncle, great aunt, stepbrother, stepsister,
stepson, stepdaughter, stepparent or first cousin.
(i) "Severe autism" means a lifelong developmental
disability which is typically manifested before thirty months of
age and is characterized by severe disturbances in reciprocal
social interactions; verbal and nonverbal communication and
imaginative activity; and repertoire of activities and interests.
A person shall be determined severely autistic, for purposes of
this article, if both of the following are present:
(1) Diagnosis consistent with the criteria for autistic
disorder in the current edition of the diagnostic and statistical
manual of mental disorders;
(2) Severe disturbances in reciprocal social interactions;
verbal and nonverbal communication and imaginative activity;
repertoire of activities and interests. A determination of
severe autism shall be based upon a comprehensive, documented
assessment with an evaluation by a licensed clinical psychologist
or psychiatrist. A determination of severe autism shall not be
based solely on behaviors relating to environmental, cultural or economic differences.
(j) "Severe mental illness" means the manifestation of all
of the following characteristics:
(1) A primary diagnosis of one of the major mental disorders
in the current edition of the diagnostic and statistical manual
of mental disorders listed below:
(A) Schizophrenia disorder;
(B) Delusional disorder;
(C) Schizo-affective disorder;
(D) Bipolar affective disorder;
(E) Atypical psychosis;
(F) Major depression, recurrent.
(2) The individual's mental illness must substantially
impair his or her functioning in at least two of the following
areas:
(A) Self-maintenance;
(B) Social functioning;
(C) Activities of community living;
(D) Work skills.
(3) Disability must be present or expected to be present for
at least one year.
A determination of severe mental illness shall be based upon
a comprehensive, documented assessment with an evaluation by a
licensed clinical psychologist or psychiatrist, and shall not be
based solely on behaviors relating to environmental, cultural or
economic differences.
(k) "Severe or profound mental retardation" means a
manifestation of all of the following characteristics:
(1) A diagnosis which meets classification in mental
retardation or criteria in the current edition of the diagnostic
and statistical manual of mental disorders for severe or profound
mental retardation. This must be measured by a standardized
instrument for general intellectual functioning;
(2) A severe or profound level of disturbed adaptive
behavior. This must be measured by a standardized adaptive
behavior scale or informal appraisal by a qualified psychologist
or psychiatrist;
(3) Disability diagnosed before age of eighteen.
A determination of severe or profound mental retardation
shall be based upon a comprehensive, documented assessment with
an evaluation by a licensed clinical psychologist or certified
school psychologist or a psychiatrist, and shall not be based solely on behaviors relating to environmental, cultural or
economic differences.
(l) "Severe and multiple impairments" means the
manifestation of all of the following characteristics:
(1) The evaluation determines the presence of a development
disability which is expected to continue indefinitely,
constitutes a substantial handicap and is attributable to any of
the following:
(A) Mental retardation, which is defined as general
intellectual functioning that is two or more standard deviations
below the mean concurrent with impairment of adaptive behavior
which is two or more standard deviations below the mean.
Assessment of the individual's intellectual functioning must be
measured by a standardized instrument for general intellectual
functioning;
(B) Cerebral palsy;
(C) Epilepsy;
(D) Autism;
(E) Any other condition which results in impairment similar
to that caused by mental retardation and which requires services
similar to those required by mentally retarded persons.
(2) The evaluation determines multiple handicaps in
physical, sensory, behavioral or cognitive functioning which
constitute a severe or profound impairment attributable to one or
more of the following:
(A) Physical functioning, which severely impairs the
individual's motor performance that may be due to:
(i) Neurological, psychological or physical involvement
resulting in a variety of disabling conditions such as
hemiplegia, quadriplegia or ataxia;
(ii) Severe organ systems involvement such as congenital
heart defect;
(iii) Physical abnormalities resulting in the individual
being nonmobile and nonambulatory or confined to bed and
receiving assistance in transferring; or
(iv) The need for regular medical or nursing supervision.
Assessment of physical functioning must be based on clinical
medical assessment by a physician licensed to practice medicine
in all its branches, using the appropriate instruments,
techniques and standards of measurement required by the
professional.
(B) Sensory, which involves severe restriction due to hearing or visual impairment limiting the individual's movement
and creating dependence in completing most daily activities.
Hearing impairment is defined as a loss of seventy decibels aided
or speech discrimination of less than fifty percent aided.
Visual impairment is defined as twenty/two hundred corrected in
the better eye or a visual field of twenty degrees or less.
Sensory functioning must be based on clinical medical assessment
by a physician licensed to practice medicine in all its branches
using the appropriate instruments, techniques and standards of
measurement required by the professional.
(C) Behavioral, which involves behavior that is maladaptive
and presents a danger to self or others, is destructive to
property by deliberately breaking, destroying or defacing
objects, is disruptive by fighting, or has other socially
offensive behaviors in sufficient frequency or severity to
seriously limit social integration. Assessment of behavioral
functioning may be measured by a standardized scale or informal
appraisal by a clinical psychologist or psychiatrist.
(D) Cognitive, which involves intellectual functioning at a
measured IQ of seventy or below. Assessment of cognitive
functioning must be measured by a standardized instrument for general intelligence.
(3) The evaluation determines that development is
substantially less than expected for the age in cognitive,
affective or psychomotor behavior as follows:
(A) Cognitive, which involves intellectual functioning at a
measured IQ of seventy or below. Assessment of cognitive
functioning must be measured by a standardized instrument for
general intelligence;
(B) Affective behavior, which involves over and under
responding to stimuli in the environment and may be observed in
mood, attention to awareness, or in behaviors such as euphoria,
anger or sadness that seriously limit integration into society.
Affective behavior must be based on clinical assessment using the
appropriate instruments, techniques and standards of measurement
required by the professional;
(C) Psychomotor, which includes a severe development delay
in fine or gross motor skills so that development in self-care,
social interaction, communication or physical activity will be
greatly delayed or restricted.
(4) A determination that the disability originated before
the age of eighteen years.
A determination of severe and multiple impairments shall be
based upon a comprehensive, documented assessment with an
evaluation by a licensed clinical psychologist or psychiatrist.
If the examiner is a licensed clinical psychologist,
ancillary evaluation of physical impairment, cerebral palsy or
epilepsy must be made by a physician licensed to practice
medicine in all its branches.
Regardless of the discipline of the examiner, ancillary
evaluation of visual impairment must be made by an
ophthalmologist or a licensed optometrist.
Regardless of the discipline of the examiner, ancillary
evaluation of hearing impairment must be made by an
otolaryngologist, or an audiologist with a certificate of
clinical competency.
The only exception to the above is in the case of a person
with cerebral palsy or epilepsy who, according to the eligibility
criteria listed below, has multiple impairments which are only
physical and sensory. In such a case, a physician licensed to
practice medicine in all its branches may serve as the examiner.
(m) "Twenty-four hour a day supervision" means twenty-four
hour-a-day care by a trained mental health or developmental disability professional on an ongoing basis.
§27-18-4. Home-based support services program for mentally
disabled adults; establishment; purpose.
The department shall establish a home-based support services
program for mentally disabled adults (the program) under this
article. The purpose of the program is to provide alternatives
to institutionalization of mentally disabled adults and to permit
these individuals to live in their own homes. The department
shall implement the purpose of the program by providing
home-based services to mentally disabled adults who need
home-based services and who live in their own homes.
§27-18-5. Standards for program; application forms; liability of
relatives for charges.
The department shall establish eligibility standards for the
program, taking into consideration the disability levels and
service needs of the target population. The department shall
create application forms which shall be used to determine the
eligibility of mentally disabled adults to participate in the
program. The forms shall be made available by the department and
shall require at least the following items of information which
constitute eligibility criteria for participation in the program:
(a) A statement that the mentally disabled adult resides in this state and is over the age of eighteen years;
(b) Verification that the mentally disabled adult has one of
the following conditions: Severe autism, severe mental illness,
severe or profound mental retardation, or severe and multiple
impairments;
(c) Verification that the mentally disabled adult has
applied and is eligible for federal supplemental security income
or federal social security disability income benefits;
(d) Verification that the mentally disabled adult resides
full-time in his or her own home or that, within two months of
services under this article, he or she will reside full-time in
his or her own home.
The department may by rule adopt provisions establishing
liability of responsible relatives of a recipient of services
under this article for the payment of sums representing charges
for services to such recipient.
§27-18-6. Submission of application; approval; amount of
services.
An application for the program shall be submitted to the
department by the mentally disabled adult or, if the mentally
disabled adult requires a guardian, by his or her legal guardian. If the application for participation in the program is approved
by the department and the mentally disabled adult is eligible to
receive services under this article, the mentally disabled adult
shall be made aware of the availability of a community support
team and shall be offered case management services. The amount
of the home-based services provided by the department in any
month shall be determined by the service plan of the mentally
disabled adult, but in no case shall it be more than either:
(a) Three hundred percent of the monthly federal
supplemental security income payment for an individual residing
alone if the mentally disabled adult is not enrolled in a special
education program by a local education agency; or
(b) Two hundred percent of the monthly supplemental security
income payment for an individual residing alone if the mentally
disabled adult is enrolled in a special education program by a
local education agency.
§27-18-7. Services by community health and developmental service
providers.
Services supported by this article shall be offered by
community health and developmental service providers which have
been approved and designated by the department.
§27-18-8. Grounds for cessation of services.
Services provided by the department under the program shall
cease:
(a) If the mentally disabled adult no longer meets the
eligibility criteria; or
(b) If the mentally disabled adult submits false information
in an application or reapplication for participation in the
program.
§27-18-9. Annual application.
Reapplication for participation in the program shall be made
annually.
§27-18-10. Maximization of use of other services.
Before eligible mentally disabled adults receive services
under this article, they shall maximize use of other services
provided by other governmental agencies, including, but not
limited to, educational services, vocational services and
supplemental social security, where applicable.
§27-18-11. Cooperation with governmental agencies or private
service providers.
The department is authorized to enter into necessary
agreements with other governmental agencies or private service
providers for the provision of training, employment placement and employment referral services for the mentally disabled adults
served under this article.
§27-18-12. Evaluation of program.
By the first day of January, one thousand nine hundred
ninety-nine, the department shall prepare an evaluation of the
program, including information based upon a survey of
participating clients, demographic information, impact of the
program on utilization of home-based services, and resource
utilization.
§27-18-13. Notice of denial of application; appeal; judicial
review.
If the department denies an application for participation in
the program, the department shall give written notice of the
denial to the person who signed the application. The person who
signed the application may appeal the department's denial within
twenty days after receipt of the department's written notice by
mailing a written appeal request to the department. The
department's denial of an appeal shall constitute a final
administrative decision. Final administrative decisions shall be
subject to judicial review exclusively as provided in the
administrative procedures act as set forth in chapter twenty-nine-a, except that any petition for judicial review of a
final administrative decision by the department under this
article shall be filed within thirty days after receipt of notice
of the department's final administrative decision.
§27-18-14. Financial assistance to implement plan; rules for
uniform availability.
The department shall make available financial assistance to
developmentally disabled adults to effectuate implementation of
the provisions of this article. The department shall develop a
plan and make rules for making home-based services uniformly
available to eligible adults throughout the state to the extent
that appropriations allow.
§27-18-15. Powers and duties of department.
The department shall have all powers and duties necessary to
implement this article.
§27-18-16. Adoption of rules.
The department shall adopt rules pursuant to the state
administrative procedure act to implement the home-based support
services program for mentally disabled adults. The rules shall
include intake procedures, application process and eligibility
requirements for mentally disabled adults who apply for services
under the program.
NOTE: The purpose of this bill is to create a mechanism
regulated by government to facilitate adult persons with mental
impairments to remain in a residential environment outside the
confinement of an institutional surrounding. The article includes
provisions to effectuate a program overseen by the department of
mental health to promote and oversee this goal. Specifically, it
sets forth provisions dealing with standards to be followed, an
application procedure, grounds for terminating service,
encouragement for the department to cooperate with other agencies
of government and with private service providers to facilitate
its purpose, administrative and judicial review process for
persons whose applications have been denied, financial
assistance, rule making and uniformity in availability.
This article is new; therefore, strike-throughs and
underscoring have been omitted.