McGraw's tactics questioned in DHHR case
John O'Brien Sep. 29, 2006, 2:45am
CHARLESTON - In helping settle a class action lawsuit brought on by seniors and disabled citizens against the state's Department of Health and Human Resources, state Attorney General Darrell McGraw claimed to be protecting one of the most vulnerable sections of society.
One group, however, says it was just an act.
Citizens Against Lawsuit Abuse Executive Director Steve Cohen said there should have been no reason to settle the suit, which called into question the more stringent health requirements that Gov. Joe Manchin implemented to cut the Aged and Disabled Waiver Program. The program provided in-home nursing care to several thousand elderly and disabled state residents.
Having already appointed Assistant Attorneys General Alva Page III and Charlene Vaughan to represent the DHHR, McGraw filed a motion Sept. 18 to intervene on behalf of the plaintiffs against the DHHR. That would have set up a situation where McGraw's employees were working both sides of the case.
Two days later, Manchin decided to settle the suit, giving into the plaintiffs' demands. Reinstating the in-home care to those left without it when they failed to qualify for the program last November would be cheaper than having those individuals settle into nursing homes, it was argued.
"West Virginia's Medicaid program may not have been short of funds to help our seniors if Darrell McGraw had turned over the share of the $10 million Purdue Pharma settlement which was owed to (DHHR) Secretary (Martha) Walker's department," Cohen said.
In 2004, Purdue Pharma paid the state $10 million to solve the problem of in-state drug addicts snorting OxyContin. Lawyers took one-third of the money, and McGraw kept the rest.
Cohen argues that had McGraw paid that money to the DHHR as he was supposed to, the ADWP never would have had to have cut approximately 1,900 users.
"Darrell McGraw has masterfully played the Dr. Jekyll and Mr. Hyde role here, turning against his own client," Cohen added.
Chief Deputy Attorney General Fran Hughes did not return a phone call for this story.
In his motion to appear as an intervenor, McGraw wrote that "This action involves the impact of State action against one of the most vulnerable and dependant sections of West Virginia society, the elderly and disabled."
He added that he had "a substantial interest in participating in this case so as to assert his position on these important legal issues. Indeed, the interests of the people of the State of West Virginia would best be protected and represented by allowing the Attorney General to fully participate as an intervening litigant in this case."
The lawsuit was filed on behalf of Jackie Fleshman, a 65-year-old mildly mentally retarded Summers County man who no longer qualified for the ADWP.
Bren Pomponio, of the non-profit legal group Mountain State Justice, wrote in the lawsuit that about one-third of those who were enrolled in the ADWP had their benefits taken when the new requirements were installed. Manchin had wished to cut the amount of members in the program from 5,400 to 3,500, and froze its budget in 2003 at $60 million.
The new eligibility requirements went into place in November, cutting hundreds of people from the program.
Previously, the DHHR demanded that an applicant meet at least five of its requirements. After the changes that were made, Fleshman, like others, no longer met five requirements.
In the lawsuit, Pomponio wrote that the DHHR discriminated against applicants with mental disabilities, a violation of the West Virginia Constitution and West Virginia Human Rights Act, by making changes in the areas of: The ability to vacate premises in case of emergency; continence; transfer (requiring one or two persons' assistant in the home at all times); walking; and the ability to self-administer medications.
On July 21, the DHHR attempted to move the case to federal court, saying the program's functions were at the mercy of federal guidelines. U.S. District Judge Joseph Goodwin did not agree and sent it back to Kanawha Circuit Court.
Pomponio claimed the agency was only attempting to stall and called that argument "confusing at best."
The Sept. 20 settlement will allow reinstatement of members who were cut from the program because of medical evaluations taken after Nov. 1. Also, anyone who tried to join after Nov. 1 but were denied can try again, using the program's old requirement system.
Pomponio said he was surprised and pleased to hear news of the settlement.
"We're just glad the Governor - I give him a lot of credit - stepped up voluntarily and did what we were trying to accomplish with the case, and that is to get everybody back on the program that needs service."
Manchin legal counsel Carte Goodwin said the Governor's changes to the ADWP did not go as planned, and the decision to settle was based on a re-evaluation of the program.
"The Governor has always maintained that the more people who can stay in their homes and receive necessary health care, the better," Goodwin said. "That's been his policy since day one.
"With the programs the DHHR administers and cuts in funding, you have to prioritize for the most needy individuals. The change didn't quite work as it was anticipated. That's really what triggered this."
When asked his thoughts on McGraw's employees working on both sides of the case, Goodwin declined comment.
Pomponio, however, felt that had McGraw's assistant attorneys generals had to argue against each other, they could have kept it professional.
"When you step back and look at it, it's two distinct entities," he said. "The two separate roles he has (to represent the State and represent the best interest of citizens) seem coincidentally crossed in this one case."
Cohen, though, wasn't as complimentary.
"West Virginia deserves professional standards in the legal profession, not politically expedient schizophrenia," he said.