The West Virginia Supreme Court has issued a stay that will keep the state's Department of Health and Human Resources from implementing new provider agreements for 19 residential psychiatric care facilities for children as planned, after lawyers representing several of the agencies appealed a circuit court decision issued late last month.
Charles Johnson, an attorney for the residential facilities, said the DHHR has until Aug. 25 to respond to the Supreme Court's stay, which halts changes the agency plans to make to its reimbursement rates to facilities, as well as the deadline that providers were given to sign the contracts, which was Monday, the same day the court announced the stay.
Lawyers for the facilities also filed a petition for a writ of mandamus, which the Supreme Court has not responded to. A writ of mandamus from the court could compel the DHHR to follow any recommendations it makes in the case.
The facilities appealed to the Supreme Court after Kanawha County Circuit Court Judge Tod Kaufman denied a request for injunctive relief made on behalf of seven youth-services agencies in the state on July 29, writing in his decision that lawyers for the agencies failed to justify their request for an injunction as an "emergency" and, therefore, did not give the required 30 days notice to the DHHR before filing.
Kaufman also wrote that "despite being aware of [the DHHR's] anticipated changes to the state Medicaid plan for months, petitioners failed to provide the state with pre-suit notification." Providers argued that although they had been aware of potential changes to their contracts for more than a year, they were not aware of what exactly contract would contain until it was presented to them on July 1 with an original signing deadline of July 25.
The original deadline for the new contracts, July 25, fell two days before a Juvenile Justice Commission hearing on the changes. The commission issued a news release two days after its hearing with providers, citing testimony from several involved parties that indicated the DHHR had tried to keep the changes secret from the judiciary.
"The DHHR will honor the stay issued by the West Virginia Supreme Court of Appeals," said Allison Adler, communications director for the DHHR. "Just over a week ago, a small group of providers made a similar argument in Kanawha County Circuit Court, and that argument was rejected. The DHHR is hopeful that the Supreme Court will ultimately rule in the department's favor."
The pending DHHR contract would replace bundled rates of $250 a day for residential placements to a standard rate of $178 a day for room, board and supervision, while requiring residential care facilities to bill separately for other services provided to each child on a fee-for-service basis.
It also would eliminate the three classifications of children based on level of treatment needed. Instead, children would be classified as either "standard" or "enhanced." Additionally, reimbursement for room, board and supervision would be at two rates that have not yet been determined, Johnson said in July. The changes also include a 180-day limit on treatment, Johnson said.
Linda Watts, deputy commissioner of the Bureau of Children and Families, testified in circuit court that the changes would not interfere with judges' oversight of children remanded to state care, and said the providers' contention that the new contracts prevent providers from discharging children with serious behavioral or medical issues is unfounded.
Reach Lydia Nuzum at
lydia.nuzum@wvgazettemail.com, 304-348-5189 or follow
@lydianuzum on Twitter.