PRELIMINARY PERFORMANCE REVIEW OF THE
COMMISSION FOR THE DEAF AND HARD-OF-HEARING
OFFICE OF LEGISLATIVE AUDITOR
Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex
CHARLESTON, WEST VIRGINIA 25305
The Commission for the Deaf and Hard-of-Hearing was created in 1989
to identify services needed by the hearing-impaired population of West
Virginia. For adequate and appropriate services to be identified and provided,
the Legislature found that cooperation of agencies must exist, and the
hearing-impaired need to be consulted in decisions and programs that affect
This Commission is organized under the Department of Health and Human
Resources by the State budget. There are 15 Commission Members, seven of
whom are appointed by the Governor with the advice and consent of the Senate
(see Table 1). Appointed Members are to serve staggered terms; two Members
serve three years terms, two serve two year terms and one serves a one
year term. Members annually elect a chair and are obliged to meet at least
four times annually (see Appendix A). The Commission is required to have
a minimum of two qualified interpreters present at its meetings.
|Table 1 - Commission Members|
|Joan E. Ohl||Commissioner of Human Resources||Ex officio|
|Steven A. Allred||Commissioner of Labor||Ex officio|
|Henry G. Taylor||Director, Bureau of Public Health||Ex officio|
|Henry R. Marockie||State Superintendent of Schools||Ex officio|
|James S. Jeffers||Director, DRS||Ex officio|
|Pat Kent||Director, Division of Handicapped Children's Services||Ex officio|
|Ken Price||Chair, Advisory Council for the Education of Exceptional Children||Ex officio|
|Jane K. McBride||Superintendent, WV School for the Deaf||Ex officio|
|Nadine Euler||Parent of Deaf child||8-1-95 to 6-30-98|
|Jimmy Harrison||Deaf or Hearing-Impaired||8-15-95 to 6-30-98|
|Delores Pyles||Deaf or Hearing-Impaired||7-3-96 to 6-30-99|
|Ella Jean Martin||Deaf or Hearing-Impaired||3-6-98 to 6-30-00|
|Pierre Sevigny, Chair||Certified teacher of Hearing-Impaired||2-25-98 to 6-30-00|
|Gary Vandevander||Audiologist||8-1-95 to 6-30-98|
|Dr. James Spencer||Otolaryngologist||7-3-96 to 6-30-99|
The Commission has three staff members: an executive director (position
currently vacant), an interpreter and a secretary. The statute expresses
preference that the Executive Director be hearing-impaired and have proficiency
in communicating with hearing-impaired individuals using varying communication
modes. As detailed in §5-14-5, the Commission is charged with the
following six major duties:
As detailed in §5-14-5, the Commission is charged with six major duties. These duties are as follows:
The commission shall maintain a complete register of persons who
are deaf or hard-of-hearing in the state. For each hearing-impaired person,
the register shall describe the condition and cause of the hearing problem,
the person's capacity for education and industrial training and any other
facts the commission considers valuable. Identifying information contained
in the register is confidential: Provided, That information collected and
maintained in the register will be available upon request to other government
in order to facilitate services to their hearing-impaired
clients. Every health, educational and social agency, and physician or
other medical professional serving hearing-impaired individuals shall report
to the commission, in writing, the name, age and residence of persons who
are deaf or hard-of-hearing. (Emphasis added)
The section further reads,
In addition to the register, the commission is responsible for conducting and maintaining a census of both the deaf and hard-of-hearing populations in West Virginia. Such census shall contain state, county, and city figures. (Emphasis added)
The Commission has not maintained the census of the hearing-impaired population in West Virginia, nor has it maintained the required register detailing the cause of the hearing problem for each individual and their capacity for work or industrial training. U.S. Census Bureau numbers from 1990 indicate a West Virginia population of close to 9,000 (ages 16 and over) who are "unable to hear what is said in a normal conversation." There are also 106,508 individuals (16 and over) who have "difficulty hearing what is said in a normal conversation." The former Commission Executive Director choose to use a mailing list, obtained from the West Virginia Association of the Deaf (WVAD), as the Commission's register. There are a total of 426 addresses and 559 individual names on the list. Fourteen of these addresses are for out-of-state residences. Since the list was provided by the West Virginia Association of the Deaf, the Legislative Auditor must presume that the people are listed because of deafness. Thus the list is not representative of the State's hard-of-hearing population. Further, the list does not indicate if both parties of couples are hearing-impaired, one, or if the names are those of the parents of a deaf or hearing-impaired child.
In the November 29, 1995 minutes, one Member "suggested proposing a bill to the Legislature to have a Register for the Deaf." The Commission was apparently unaware that it was already mandated to have a register. A discussion ensued and the Commission passed a motion to research "the Head Injury Foundation [register] in order to get a bill passed for a Register for the Deaf." At the following Commission meeting in February 1996, the Executive Director informed the Commission, "A Deaf Registry is already in the Code, but is not being enforced. A copy of the Code may be obtained through Legislative Services."
The Legislative Auditor recommends the Commission begin its census/register
by entering data received from health, educational and social services,
physicians and other medical professionals serving deaf and hard-of-hearing
individuals and infant screening information received from hospitals and
other health care providers as required by Code. In addition, the
Commission could request from the State Superintendent of Schools and the
Superintendent of the West Virginia School for the Deaf the registry of
deaf minors in the State received annually from all county assessors. DHHR
disability and Medicaid payments may also provide an avenue for identifying
deaf and hard-of-hearing individuals. Further, the Commission could make
contact not just with the NAD for additional names as it has, it could
send questionnaires to audiologists, otolaryngologists, hearing aid dealers
and other health care providers who would routinely help hearing-impaired
individuals. Additionally, the Commission could obtain data for survey
purposes from the United States Census Bureau. It is important that the
Commission recognize privacy issues in mandatory registration, and make
provisions to protect the privacy of individuals.
The collection of this information needs to be well planned by the Commission.
While statute requires "[e]very health, educational and social agency,
and physician or other medical professional serving hearing-impaired individuals
shall report to the Commission, in writing, the name, age and residence
of persons who are deaf or hard-of-hearing," the Commission must work to
promote knowledge of this statute and provide appropriate forms to providers.
The Legislative Auditor recommends the Commission maintain the census
and register as one database. Not only should the database include the
statutorily required information of condition and cause of the hearing
problem, individual's capacity for education and industrial training and
state, county, and city statistics, it should include name, birth date,
gender, and address. Above all, the database must be designed to maximize
usability. Queries for specific information must be an option. For the
State to assist this population it must be able to know the size of different
subgroups (i.e., senior citizens or school-aged children) in the multiple
regions or counties of the state.
Further, the Commission must develop a comprehensive procedure to keep
the database up-to-date. This will involve constant additions and deletions
of records from the database, as new hearing-impaired are identified and
others die or move out of State. Periodic cross-matching of data with Vital
Statistics, also arranged under DHHR, would help the Commission to maintain
a current database.
From this requirement flows the ability or inability to fulfill other
statutory mandates. Until the Commission detects the population, determining
its size and demographics it has limited ability to investigate the condition
of the population, or adjust its outreach and clearinghouse of information
accordingly. Until the Commission fulfills this mandate the Legislature
will be limited in its ability to make effective policy for this population
of persons with hearing disabilities.
The Commission should formulate and maintain a census/register database as required by West Virginia Code §5-14-5. The register shall contain such information as the person's name, age, the condition and cause of the hearing problem, the person's capacity for education and industrial training and other facts the Commission considers valuable. As part of the register, the Commission should maintain data on each person's county and city of residence so that it can maintain a census by state, county and city figures.
The Commission should create a comprehensive procedure
on the methods of collecting and maintaining data in the deaf and hard-of-hearing
Issue Area 2: Failure to Investigate the Condition of the Hearing-Impaired
As discussed in Issue Area 1, the Commission was
charged with six primary statutory duties. Issue Area 1 discussed the Commission's
failure to comply with two of these, identifying the deaf and hard-of-hearing
population by a register and a census. This issue discusses the Commission's
failure to meet a third statutory responsibility, investigating the condition
of the State's hearing-impaired. Commission statute, §5-14-5, reads
The Commission shall investigate the condition of the hearing-impaired in this state with particular attention to those who are aged, homeless, needy, victims of rubella and victims of abuse or neglect. It shall determine the means the state possesses for establishing group homes for its hearing-impaired citizens and the need for additional facilities. The commission shall also determine the advisability and necessity of providing services to the multi-handicapped hearing-impaired. (Emphasis added)
An overall population condition has not been investigated.
Neither the Summary of Activities, the Commission's annual report, nor
other documents of the Commission report the investigation on the condition
of the deaf and hard-of-hearing population. Commission staff responded
to Legislative Auditor requests for reports on such investigations by reciting
individual situations. While these anecdotal situations may hold some value
in understanding the condition of the deaf and hard-of-hearing populations,
they do not represent the type of formal investigations directed in Code.
These activities are, however, responsive to the Commission's charge to
provide outreach to the hearing-impaired community. As is clearly worded
in Code, the Legislature intended the Commission to identify specific
groups of the community as are detailed in the paragraphs below.
The Legislature found in §5-14-1 (e),
A rubella epidemic from 1963-1965 caused a number of infants in West Virginia to be born hearing-impaired. These individuals are approaching ages where they will no longer be eligible for educational services, thus requiring services as young adults. The Legislature, therefore, declares that there is an unprecedented and imperative need to plan and prepare for the multiplicity of services required in order to ensure a life-long continuum of services to this particular population.
Commission staff told the Legislative Auditor they were not aware of
the statutory requirement to determine the advisability and necessity of
providing services to the multi-handicapped prior to the performance review.
The Commission has also not determined the means the State has for establishing
group homes and the need for additional facilities. As a result the Legislature
has no way of discerning what condition the lifestyle of the hearing-impaired
population is and if group homes would be appropriate and feasible.
As the Commission failed to investigate the entire hearing-impaired
population and thus the specific groups mentioned in statute, the victims
of the rubella epidemic passed through young adulthood without the Legislature
being aware of what services they could have used. Current school-aged
children will also face the unknown unless the Commission more actively
pursues its statutory duties. The aged hearing-impaired population in the
State is also untracked despite West Virginia having the highest median
age of all states.
The Commission should immediately comply with its charge to investigate the condition of hearing-impaired population.
Issue Area 3: Commission Losing Thousands on Certification of Interpreters
The Commission is testing and certifying individuals according to National
Association of the Deaf (NAD) standards. Since 1996, around 350 individuals
have been evaluated, just 10% have been West Virginia residents (34). These
evaluations have resulted in losses of more than $23,000 since 1996. According
to December 1997 minutes, a Commission Member asked if the NAD Interpreter
Evaluations covered their costs. Commission staff informed the Member that
the program does pay for itself. This statement is plausible, if certain
costs are not considered, such as interpreter training costs, staff time,
and equipment costs and only certain evaluations were considered. Based
on data from the Commission's own records and a more comprehensive review
of the programs costs, the Legislative Auditor has found the certification
program to be subsidized by general revenues and concentrating its energies
on the certification of out-of-state interpreters.
WV Code §5-14-5 states,
The Commission shall establish, maintain and coordinate a statewide
service to provide courts, state and local legislative bodies and others
with a list of qualified and certified interpreters for the deaf...To establish
and maintain these lists the Commission may accept the certification of
the National Registry of Interpreters for the Deaf and/or the state established
quality assurance evaluation.
The statute is somewhat vague concerning the Commission's authority
to conduct NAD interpreter evaluations and collect and expend funds in
this endeavor. However, according to a legal opinion from Legislative Services,
..we believe that the Commission's administering the NAD exam to West Virginia residents, as well as other such activities incidental to certifying interpreters for the deaf, is most likely a legitimate exercise of power by the Commission.
However, of the 353 individuals evaluated, only 34 were West Virginians. As alluded to in the legal opinion from Legislative Services, the Commission lacks explicit statutory authority to work as NAD's evaluation team outside the State's borders. Licensing out-of-state individuals to be interpreters has no benefit for the hearing-impaired population of West Virginia. Further, expenses on one occasion were borne by the Commission with no revenues to offset them. With respect to an August 1997 trip to Washington, D.C., the Commission did not receive payment for the evaluations. According to a letter from NAD,
The agreement between the National Association of the Deaf and the West Virginia Commission for the Deaf pertaining to conducting NAD-IAP evaluations, August 10-12 were carried out as follows: The National Association of the Deaf covered the lodging costs and per diems of each of the evaluators. The Headquarters did not cover the cost incurred by [Executive Director].
Not only did the Commission end up absorbing the cost of sending the Executive Director, mileage and parking were paid to three other evaluators. Additionally, the Commission paid one individual assigned to the warm-up room $900 in per diem for making the trip. Based on the letter from NAD, all evaluators making the trip, except for the Executive Director, were paid a per diem by NAD. All expenses incurred by the Commission were a misuse of State funds.
Revenues and Expenses Pertaining to Certification of Interpreters for the Deaf
Reviewing the Commission's records to determine expenses associated
with the certification program is a difficult and tedious task, since revenues
and expenses are not accounted for in an exclusive special revenue account.
Instead, these revenues and expenditures are spread among both of the Commission's
accounts, a general revenue account and a special revenue account, both
of which are used for other purposes. Further, some expenses borne by the
State for this program, such as long distance phone calls and office supplies,
are not invoiced separately from non-certification-related expenses. Thus,
the above table does not reflect office supplies, staff benefits or staff
time spent preparing for evaluations, nor does it reflect utilities or
long distance telephone charges absorbed by DHHR and thus the state.
In order to determine the amount of staff time committed to the actual
evaluations, the Legislative Auditor consulted time sheets, score sheets
from days of evaluations, summary of activities and paid invoices. Staff
claimed hour for hour compensation of time (frequently in excess of ten
hour workdays). However, due to improper maintenance of time records by
the Commission as discussed in Issue Area 8, the Legislative Auditor assumed
eight hour days, thereby underestimating time actually taken. Revenues
for in-state evaluations were based on evaluation schedules and the Commission's
assessment rates for in-state and out-of-state applicants. Currently the
rate is $50 for West Virginia residents and $100 for non-residents. The
Commission performed four out-of-state evaluations and revenues were determined
by the relevant contractual arrangements. Except for the payments made
for NAD scoring, all expenditures were taken as reported in financial accounting
records. NAD scoring costs were computed at the rate of $25 per test, as
invoiced by NAD.
While it appears the Commission attempted to subsidize in-state evaluations
with out-of-state evaluations, expenses are so high in some cases they
exceed profit. For example, in August 1998 the Commission traveled to Kentucky
to perform evaluations. All evaluators were flown via commercial airlines
to Louisville. Had the Commission car-pooled evaluators from the Kanawha
Valley, the trip could have been less expensive.
The Commission has also absorbed the costs of training evaluators. An
example of the extremity to which the Commission has expended funds is
flying one Commission Member, who winters in Florida, from Florida to West
Virginia, round trip, to receive training. The Legislative Auditor perceives
flying an individual to receive training an unnecessary and impractical
expense. According to Commission staff, two evaluator training sessions
have been held. More than 20 individuals have attended these sessions.
Those providing the training service have been from California, at an expense
of approximately $7,000.
Expenses exceed revenue in part due to time taken by staff for compensation
for the time spent during evenings and weekends participating in these
evaluations. Staff has claimed hour for hour compensation for time spent
at these evaluations. The lost days provide further cause explicit duties
charged to the Commission have not been performed. Had Commission staff
not been taking compensatory days during the work week they could have
been compiling the register and census, then performing investigations
of the condition of the hearing-impaired population.
As the Legislative Auditor's findings show, the interpreter evaluation process has not been limited to certifying interpreters for the hearing-impaired of West Virginia and has lost thousands of dollars qualifying out-of-state interpreters. The Legislative Auditor believes the Commission should devote all of its resources, staff and monetary, to fulfilling clear statutory mandates to aid the West Virginia hearing-impaired population in leading independent and productive lives (§5-14-1).
The Legislature should consider amending Commission statute to clearly indicate Commission power to conduct evaluations and certify interpreters.
The Commission should conduct evaluations of only West Virginia residents and focus more attention on its other statutory mandates.
At the change in the Fiscal Year, the Commission should create a new special revenue account to be used for the exclusive purpose of interpreter certification program. This will help the Commission to better monitor expenses in relation to revenues collected. The Commission should also raise evaluation fees to defray all evaluation-related costs, including estimated staff hours.
Issue Area 4: Commission is Successfully
Implementing Three Statutory Mandates
As discussed throughout this report, the
Commission is charged with six major duties. Issue Areas 1 and 2 discuss
three of the six which remain unfulfilled. This Issue provides an overview
of the Commission's performance regarding the 3 statutory mandates the
Commission is satisfying. These responsibilities are as follows:
The commission shall maintain a clearinghouse
of information, the purpose of which is to aid hearing-impaired persons
and others in obtaining appropriate services or information about such
services including, but not limited to, education, communication (including
interpreters), group home facilities, independent living skills, recreational
facilities, employment, vocational training, health and mental health services,
substance abuse and other services necessary to assure their ability to
function in society. The commission shall consult existing public and private
agencies and organizations in compiling and maintaining the clearinghouse.
The Legislative Auditor finds that the
Commission keeps well-organized information on services specifically mentioned
in statute and other information which might be useful. In order for the
Commission to optimally manage the Clearinghouse and provide policy makers
better information regarding the Commission's efforts to serve the State,
the Legislative Auditor recommends keeping a usage log of requested information
including the frequency with which certain topics are requested.
Another of the major duties the Legislative
Auditor finds the Commission to be performing satisfactorily was its outreach
program. Commission statute, §5-14-5, in part reads,
The Commission shall develop an outreach
program to familiarize the public with the rights and needs of hearing-impaired
people and of available services.
By keeping a usage log of public requests
for information the Commission would have a better understanding of how
to focus its outreach program. Examples of ways the Commission has provided
outreach includes exhibits at the Town Center Mall during Deaf Awareness
Week, and the State Fair in Lewisburg. The Commission has also made speaking
engagements at public schools and taped a regular television program called
On, which aired on a Charleston public access channel. The Commission
ceased taping Signing On in May 1997. Further the Commission, in
collaboration with the Department of Health and Human Resources, has developed
Currently the website provides only very
basic information, such as the Commission's address and activities. A printed
copy of the Commission's website can be found in Appendix D of this report.
The Commission is currently undertaking steps to improve its format. The
Commission's website offers great potential for the Commission to better
serve the public. Information such as rights, responsibilities, hyperlinks
to other sites which may be helpful to deaf and hard-of-hearing individuals,
listings of certified interpreters for the deaf, listings of qualified
teachers of American Sign Language, information pertaining to future interpreter
certifications, information pertaining to telecommunications relay services
and online survey forms to be added to the deaf and hard-of-hearing register/census
could be provided via this website. Commission staff informed the Office
of the Legislative Auditor that the Internet is a choice mode of communication
for many deaf individuals.
The third duty the Commission is performing
satisfactorily is charged in §5-14-5,
The Commission shall establish, maintain
and coordinate a statewide service to provide courts, state and local legislative
bodies and others with a list of qualified and certified interpreters for
the deaf and a list of qualified and certified teachers of American sign
language. To establish and maintain these lists the commission may accept
the certification of the National Registry of Interpreters for the Deaf
and/or the state established quality assurance evaluation.
According to the West Virginia Interpreter
for the Deaf Act "qualified interpreters are those certified by the National
Association of the Deaf or Registry of Interpreters for the Deaf, or, in
the event an interpreter so certified is not available, an interpreter
whose qualifications are otherwise determined." §57-5-7 in part states
a certified interpreter would be
certified by the director [of the
Administrative Office of the Supreme Court of Appeals] shall be interpreters
certified by the national registry of interpreters for the deaf or approved
by the chief of services for the deaf and hearing impaired of West Virginia
of the West Virginia division of vocational rehabilitation, or shall be
such other persons deemed by the director to be qualified by education,
training and experience.
The Commission maintains and publishes
a well constructed Directory of Interpreting Services. It also keeps
a list of qualified teachers of American Sign language, however, there
is not a list of certified teachers of American Sign Language, as none
reside in West Virginia. According to the Staff Interpreter the list of
interpreters kept by the Commission is "a total mailing list of interested
interpreters throughout our state and regional states."
The Legislative Auditor recommends the Commission begin keeping a usage log of its clearinghouse of information to anticipate what areas need focus of resources.
The Legislative Auditor recommends the Commission continue to develop its website to facilitate the implementation of various mandates of the Commission.
Issue Area 5: Commission's Lack of Participation Has Resulted in
In its nine years of existence, the Commission has never met, with a
quorum, four times in a year, as required in statute. In fact, as of December
1, 1998, the Commission has had a quorum only nine times in its almost
10 year history. Over this span of time, the Commission's ex officio Members
have averaged a 34% attendance rate, while appointed Members have averaged
65%. Due in part to this lack of attendance the Commission has not identified
the targeted population or determined that population's needed services.
Further, because of the Commission's troubles in meeting quorum, it has
routinely transacted business without a quorum since its inception.
The West Virginia Commission for the Deaf and Hard-of-Hearing is made
up of 15 Members, eight of which are ex officio. Of the appointed Members
at least three are to be hearing-impaired and another is to be the parent
of a deaf child. The combination of ex officio Members and appointed Members
who are deaf or are closely associated with the deaf is consistent with
the two Legislative findings from West Virginia Code §5-14-1
.... (b) Hearing-impaired people need to be more involved in the
decisions and programs that affect their lives by soliciting and seriously
considering their collective opinion on appropriate matters;
(c) Cooperation among state and local agencies must be facilitated
in an effort to ensure that adequate and appropriate services are available
West Virginia Code §5-14-3 requires, "The commission
shall meet no less than four times annually." Taking into account lack
of quorums the Commission has never met four times in a given year (see
Appendix A for complete meeting attendance record). Table 3 shows that
for calendar years 1994, 1995 and 1997, the Commission failed to have a
single quorum. As shown in Table 4, ex officio Members have poor
attendance; averaging a rate of around 34% since 1990. Of the eight
ex officio's, half have been represented twice or less since 1990. A fifth
has attended only a third of the meetings since 1990. Without ex-officio
Members in attendance, representative agencies will not be aware of the
needs of the hearing-impaired population and those services their agencies
could or should be providing.
Meetings Held with a Quorum
|Calendar Year||Number of Meetings|
|Source: Commission minutes|
Ex-Officio Meeting Attendance Since 1990
|Commissioner of DHHR||16/27||59%|
|Commissioner of Labor||0/27||0%|
|Director of Public Health||2/27||7%|
|State Superintendent of Schools||10/27||37%|
|Director of Division of Rehabilitation Services||21/27||78%|
|Director of Handicapped Children's Services||1/27||4%|
|Chair of Advisory Council for Education Of Exceptional Children||1/27||4%|
|Superintendent of WV School for the Deaf||22/27||81%|
Appointed Members do not have a exemplary participation rate either.
Their participation rate has averaged just under 65%. Without a voice
from the community the Commission was created to serve, governmental agencies
cannot affect change in programs and policies which respond to the needs
of the hearing-impaired population.
The Legislative Auditor conducted a survey of all Commission Members
(see Appendix B for survey form). Twelve of 15 Commission Members responded,
and an additional Member responded to the essay question only. Of the Commission
Members, only the State Superintendent of Schools and the Director of the
Bureau of Public Health failed to respond. On average, appointed Members
felt their participation was valuable, while ex officio Members averaged
a more neutral feeling. In response to "My participation is valuable to
the work of the Commission," six strongly agreed their participation was
valuable to the work of the Commission. One disagreed, explaining,
I have very little understanding and limited knowledge about the
issues faced by individuals who are deaf or hard-of-hearing. Someone experiencedinthisfield
would certainly be more qualified than I to represent the best interests
of this Commission.
One Member who felt neutral about the value of his/her participation
on the Commission responded,
I'm not sure what the purpose/mission of the Commission is to be.
These responses reflect Members lacking the basic information needed
in order for them to affect change. A focus on statutory mandates and the
population to be served could result in a higher level of participation
because more Members may feel their presence was making a difference and
giving the Commission higher charge. In response to the question, "The
major reasons for the lack of participation by Members of the Commission
are...," responses were generally self-describing and schedule conflicts
were mentioned in nine responses. Those that did give their understanding
of why others did not participate mentioned one Member commutes to Florida
during the winter and another has his/her own business and is able to attend
on only one day of the week. Commission staff informed the Legislative
Auditor that meetings for the year are decided one time during the year
and notices are sent out prior to the next meeting. If Members had a better
sense of the Commission's purpose and an understanding that statutory responsibilities
have not been fulfilled, along with a voice in scheduling meetings, it
is possible that participation could increase.
During this review's exit conference, Commission Staff and Members explained
further cause for the lack of participation of ex officio Members and transaction
of business without a quorum. Until a November 1998 meeting with DHHR staff,
the Commission Members understood that the ex officio Members were non-voting
Members. However, the statute does not so designate the ex officio members
as being unable to vote. Because none of the survey responses received
from the ex officio Members discuss this as a reason for their non-participation
and no Commission minutes reflect debate over the matter, it is our understanding
that the ex officio members were also unaware of their power to vote. At
the exit conference, appointed Commission Members explained that they understood
that a quorum of 4 of the 7 appointed Members was all that was needed to
hold a meeting. Between the exclusion of ex officio Members from voting,
failure to hold open meetings as required by the Sunshine Act, and the
transaction of business without a quorum, it is doubtful that the Commission
has completed a single "official" act to date.(2)
This revelation provides further evidence that a basic training program,
as recommended under Issue Area 7, is warranted. Further, the Legislature
may want to give additional consideration to providing majority representation
to persons of the Commission's primary consumer group, since voting ex
officio Members outnumber appointed Members 8 to 7. The Office of the Legislative
Auditor has asked the Commission to provide the Joint Committee on Government
Operations feedback on the issue of Commission composition.
Commission staff are to serve at the direction of the Commission. Without
Commission Members participating and directing them, staff has not been
held accountable for what work they have and have not done. The Commission,
by not having a higher participation rate, has failed the hearing-impaired
population of West Virginia by not giving its staff prioritized directives.
As a result the population is unknown and their circumstances are as well.
The Legislature should consider reformulation of the West Virginia
Commission for the Deaf and Hard-of-Hearing to enhance participation. The
Legislature may want to give additional consideration to providing majority
representation to persons of the Commission's primary consumer group, since
voting ex officio Members outnumber appointed Members 8 to 7. The Commission
should provide the Joint Committee on Government Operations insight in
Members should diligently attend or send designees and participate
in meetings to respond to the needs of the deaf and hard-of-hearing population.
Issue Area 6: Commission Purchased TDDs with General Revenues to
be Given Away to the Public; Commission Distributed TDDs to Public without
a Defined Criteria
In 1995, the Commission received $3,000 from Bell Atlantic to purchase
TDDs. Commission minutes indicate Bell Atlantic wanted to "be sure the
really needy get the TDDs." Criteria used to distribute these TDDs is questionable
and Commission records indicate only three were given to people with low
income. Some devices were given away as "drawing prizes" and awards to
"outstanding students." In 1998 the Commission spent 5.2% of its general
revenue ($7,900) on the purchase of 50 TDDs, all of which await distribution.
A legislative finding in the Commission's statute reads (5-14-1(g)),
There must be more emphasis on the use of telecommunication devices
for the deaf (tdds) and means to provide them for hearing-impaired people;
According to a Legislative Services' legal opinion this finding does
not mean the Legislature has directed the Commission to purchase and give
away TDDs. Legislative Services stated,
...we believe that the action undertaken by the Commission in purchasing
and giving away TDDs is more problematic. We don't believe that a general
reference in the legislative findings in §5-14-1 to placing "...more
emphasis on the use of telecommunication devices for the deaf (tdds) and
meant to provide them for hearing-impaired people" is tantamount to a legislative
directive for the Commission to purchase and give away TDDs. Even when
looking to the whole legislative intent in §5-14-1 and 10, and the
above statutes and rules, it is difficult to justify the Commission's actions
as a legitimate or reasonably necessary application of legislative intent.
Thus, it appears that the Commission may have exceeded its statutory authority
with respect to the 50 TDDs that it purchased and is giving to hearing-impaired
persons. We would note that the distribution of the 20 TDDs acquired through
a Bell Atlantic grant is more likely a valid exercise of authority under
§5-14-10, which provides the commission may expend any grants received
to "effectuate any purpose of this article."
Fifty of 70 telecommunication devices were purchased with general revenue. The $7,900 spent on these devices was encumbered on June 29, 1998, the second to last day of the fiscal year. At the time the Commission purchased the 50 devices it had still not distributed all it had purchased three years earlier. Therefore, not only is it questionable whether the Commission has authority to use General Revenues to purchase devices to be given away, it is concerning that the Commission took three years to distribute 18 of 20 devices and would still see the need to purchase an additional 50 machines. Had the Commission fulfilled the statutory directives of maintaining a register, census and investigating the condition of the State's hearing-impaired, distribution of the TDDs could have been improved.
Summary of TDD Purchases
|Funding||# of TDDs||Unit Price||Cost|
|Purchased with Grant||20||$145.00||$3,000.00|
|Purchased with General Revenues||50||$158.00||$7,900.00|
The Legislative Auditor maintains that TDD's purchased with General
Revenues are State property and the Commission is not authorized to give
such property to the public. In addition, West Virginia Code
The agency [Surplus Property Division] shall have the exclusive
power and authority to make disposition of commodities or expendable commodities
now owned or in the future acquired by the state when such commodities
are or become obsolete or unusable or are not being used or should be replaced.
Commission minutes discuss Commission efforts to work with companies
such as AT&T and Bell Atlantic concerning TDD rental and placement
of TDDs at rest stops. Further, the minutes communicate work with the Public
Service Commission to have a portion of all telephone bills go towards
purchasing TDD's. A Commission Member repeated a conversation she had with
the PSC which offered to give money for TDD's for deaf, but the offer stipulated
the return of the equipment upon the recipient's relocation.
Lack of Criteria for Distributing the Devices and Poor Record
The criteria for distributing the TDDs and poor record keeping are perhaps the most disturbing parts of this finding. The following excerpt from the minutes of the Commission's November 1995 meeting discuss TDD's being given to a deaf club for distribution:
[Executive Director] reported he still has 15 TDDs in his office that need to be distributed to a needy person within the deaf community. He mentioned that the TDDs were being given to a Deaf Club in that area and the Deaf Club was responsible for locating the needy person. There were some concerns about that because one club allowed the President to receive a free TDD.
[Board Member A] suggested asking for a list of names and addresses of low income individuals to send to [Executive Director] instead of allowing the Deaf Clubs to handle it.
[Board Member B] made motion to support [Executive Director] in distributing TDDs within the Deaf Community through contact with the Deaf Clubs.
[Member C] seconded.
motion carried (emphasis added)
The February 1996 minutes, as well as a letter from the Commission's
interpreter, list low income as a reason for someone receiving a device.
Yet the minutes also state, "[Executive Director] stated that he looks
at the individual's job situation, age, income and uses his own judgement."
The Commission has maintained records which, when complete, show recipients
of the devices and identifying information, the serial number of the device,
income (rarely completed), whether it is "on loan" or has been "given away,"
and the reason for getting the TDD. As shown in Table 6 below, four devices
were given away without a disclosed reason, three were given to outstanding
students of the WV School for the Deaf, two were given away as drawing
prizes, and one was distributed under the rationale that the recipient
was a Member of the West Virginia Association for the Deaf. Three of the
devices have been recorded as being "on loan." It is likely some of the
devices were loaned for some period and later returned, but the records
have not been updated as such. The TDDs outstanding should total 18, since
the staff claims to have two of the original purchase of 20 on hand at
Reasons Given for Providing TDDs
|Outstanding WV School for the Deaf Student||3|
|No job - independence, personal use||2|
|Other (Deaf Children, citizens, patients, church members)||4|
Four of the distributed TDDs do not have recorded serial numbers. This
is poor record keeping, particularly since the Commission "loans" devices
out occasionally. When serial numbers are not recorded it is difficult
to determine whether the device was returned or "loaned" permanently. The
Commission's distribution form has a blank for "DATE RETURNED." The blank
is captioned "(ONLY if you move out-of-state OR your income status changes.)"
Only one distribution form has an entry indicating the return of a TDD.
The Legislative Auditor recommends the Commission develop a loan
program for the purpose of distributing TDDs purchased by the Commission.
A model for consideration by the Commission is the Library of Congress'
program administered through the West Virginia Library Commission for loaning
audio equipment for books on tape to blind and disabled individuals.
Should the Commission receive donations in the future with which
to purchase additional TDDs for distribution to the needy, it should develop
a needs test and require applicants to provide reasonable verification
of all assertions to be copied to the Commissions records. The Commission
should also maintain complete, accurate and up-to-date records of who receives
the devices (and identifying information), evidence that the needs tests
were satisfied and serial numbers for the TDDs.
Issue Area 7: The Commission is Not in Compliance With the
Open Meetings Law
West Virginia Code §6-9A-1, as amended, the Open Meetings
Law reads as follows:
The Legislature hereby finds and declares that public agencies, boards,
commissions, governing bodies, councils and all other public bodies in
this state exist for the singular purpose of representing citizens of this
state in governmental affairs, and it is, therefore, in the best interest
of the people of this state for all proceedings of all public bodies to
be conducted in an open and public manner. The Legislature hereby further
finds and declares that the citizens of this state do not yield their sovereignty
to the governmental agencies which serve them. The people in delegating
authority do not give their public servants the right to decide which is
good for them to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over the instruments
of government created by them.
Further, West Virginia Code §6-9A-3, as amended, states:
Each governing body of the executive branch of the state shall file
a notice of any meeting with the secretary of state for publication in
the state register.
The Administrative Law Division of the Secretary of State's Office found
no record of any meeting notices filed by the Commission for the Deaf and
Hard-of-Hearing since the Commission's creation.
The Open Meetings Law applies to all public bodies and guarantees public
accountability. By failing to notify the Secretary of State's office of
its meetings, the Commission for the Deaf and Hard-of-Hearing has failed
to conduct a single open meeting, as defined and required by statute. While
it is evident that some deaf clubs are occasionally informed of meetings,
the only group of people the Commission routinely informs of upcoming meeting
dates are the Members themselves.
The Commission should immediately comply with the requirements of
the Open Meetings Law.
As stated in the Legislative Auditor's 1998 Reports on the Board
of Examiners for Speech Language Pathology and Audiology and Tree Fruit
Industry Self Improvement Assessment Board, in lieu of the existing lack
of coordination and training of members of professional and occupational
licensing boards and other State organizations, the Legislature should
consider amending the Code to require training for members of professional
or occupational licensing boards and other State organizations to be conducted
by the State Auditor's Office, with the cooperation of the Budget and Purchasing
Divisions of the Department of Administration, the Ethics Commission, the
Attorney General's Office, and the Secretary of State's Office. Training
should include budgeting, purchasing, open meetings, ethics, filing annual
reports, and records management.
Issue Area 8: Commission is Not Properly Filing Annual Reports with Governor and Legislature
While statute requires the Commission to file annual reports with the
Legislature and Governor, records of the House and Senate Clerks and the
Governor's Office indicate this has not been done. Further, the annual
reports prepared by the Commission titled Summary of Activities,
do not provide information in a format which is most usable to policy makers
and the Chief Executive, but rather, reads as the daily diary of the Executive
West Virginia Code §5-14-9, as amended, requires:
The commission shall make an annual report to the governor
and the Legislature which shall include its recommendations and programs.
The Legislative Auditor requested the Commission to provide copies of
all annual reports to the Legislature and Governor since its inception
in 1989. In response, the Commission provided only four years of documents
(Fiscal Years 1993, 1996, 1997, and 1998). The document provided for Fiscal
Year 1993 is titled West Virginia Commission for the Hearing-impaired
Report July1, 1992 - June 30, 1993 and provides some basic information
about the Commission's programs, but lacks recommendations and statistics
which would be useful to policy makers. The reports provided for Fiscal
Years 1996, 1997 and 1998 are each titled Summary of Activities.
The Summary of Activities reports do not include recommendations
and programs as required by §5-14-9, as amended. Further, the documents
read as the journal of the Executive Director, detailing everything done
during the year on a daily basis from the vacation of the Executive Director
to attendance at deaf association conventions. Statistics on the state's
deaf population are not included, nor are total numbers of interpreters
evaluated by the Commission, budgetary information, findings from research
of the deaf and hard-of-hearing population, usage statistics on the Commission's
information clearinghouse, and other relevant activities. While some of
this information may be gleaned from the report after extensive summary
analysis, it is not in a readily usable form. So that readers of this report
may fully appreciate the nature of the Summary of Activities reports,
Summary of Activities for FY 98 has been included in Appendix
C of this report. A passage from the Summary of Activities follows in Table
7 on the next page.
As of September 1998, the Office of the Senate Clerk and the Office of the House Clerk had no record of ever receiving an annual report from the Commission. Statute also requires the Commission to file its annual report with the Governor's Office. The current administration reports that the Commission has not filed an annual report with the Governor's Office. Further, the Governor's Office states that it has no such data from previous administrations. The Office of the Legislative Auditor has been informed by Commission staff that the former Executive Director always provided the Governor's Office, WVCDHH Board Members and the Secretary of DHHR copies of this report.
The requirement to file annual reports with the Governor and Legislature guarantees accountability to the citizens of West Virginia. It is the way public commissions make their information available to the public, which it serves, and to governmental entities, which provide oversight. Most importantly, this entity was created to identify ways in which the state can better serve its deaf and hard-of-hearing population. The Governor and Legislature can do little to affect positive change without the information the Commission was created to provide.
Excerpt from FY 1998 Summary of Activities
|July 1, 1997|
|[Executive Director] hired [Staff Interpreter] as his Staff Interpreter. [Staff Interpreter] is an NAD Certified Level 5 Interpreter, President of the WV State NAD Interpreters Section, Vice President on the National Level, she serves on the Commission as an NAD Evaluator, and she is also a CODA (child of deaf adults). [Staff Interpreter previously worked for Kanawha County Schools for approximately 10 years as a Sign Language Specialist in the Mainstream setting. [Staff Interpreter] has been working closely with the Commission for many years. We are honored to have her as a member of our staff.|
|July 7-18, 1997|
|[Executive Director] was on vacation|
|July 11-13, 1997|
|The WV Commission for the Deaf and Hard-of-Hearing with [Executive Director's] support hosted the first National Association of the Deaf State Interpreters Sections Meeting. It was held at the WVCDHH/DHHR Building. In attendance were NAD Staff and Board Members, [person A] from Washington, D.C., [person B] from California and [Executive Director], President of the NAD Interpreter Section is [person C] from South Dakota, Vice President is [Staff Interpreter] from West Virginia, Secretary-Treasurer is [person D] from Washington State. Members-at-large were from various regions of the United States. Every NAD region was represented. Discussion on By-Laws, purposes, and advice from [Executive Director] and other Board Members was greatly appreciated among members present.|
|August 4, 1997|
|[Executive Director] and [Temporary staff] went to the Hurricane Trophy Store in Hurricane, WV to help WVNAD President [person X] with choosing the appropriate awards and plaques for the upcoming WVAD Convention. They also stopped to visit with [person E], a deaf businessman in Teays Valley. Interpreting services were provided by Staff Interpreter.|
|August 6, 1997|
|WVAD President [person X] and [Executive Director] met for a business luncheon to discuss issues for completion of plans on the WVAD Convention, this was also [person X's] birthday so [Executive Director] treated him to lunch at the Panda House in South Charleston.|
Commission should comply with West Virginia Code §5-14-9
and file annual reports with the Governor and Legislature.
The Commission should change the format of its annual reports to
provide summary information of programs, recommendations, including statistics
on the State's deaf and hard-of-hearing population (census and register
information), statistics on the interpreter evaluation program (number
tested, disposition of those tests, number of registered interpreters in
WV, frequency of testing, etc.), budgetary information, findings and discussion
of research of the deaf and hard-of-hearing population, usage statistics
of the Commission's information clearinghouse, and other relevant activities.
The Commission should report back to the Joint Committee on Government Operations at the May 1999 Interim meeting, to brief the membership on its progress regarding issues discussed in this report.
Because of the Commission's failure to address three of its six primary statutory directives within its first 10 years of existence; general revenue subsidizing of NAD interpreter evaluations provided primarily to out-of-state interpreters; the purchase of TDDs with general revenue to be given away without proper authority and the giving of TDDs purchased with grant proceeds without an objective criteria for such distribution; lack of participation by Commission Members and failure to meet the required four times per year; noncompliance with the Open Meetings Law; and failure to file an annual report as required by statute, the Legislature should consider terminating the Commission or continuing it for the minimum of one year pursuant to the Sunset Law.
1. Includes out-of-state residents tested in West Virginia.
2. Minutes indicate that, on occasion, ex officio Members were permitted to vote by majority vote of the appointed Members. Initially review staff understood the activity to be the Commission's way of recognizing irregular stand-in designees as bona fide Commission Members.