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WEST VIRGINIA RECORD

Friday, March 29, 2024

Justices lay into DHHR for psychiatric hospital 'noncompliance'

Loughry

CHARLESTON – A majority of justices on the West Virginia Supreme Court of Appeals had harsh words earlier this month for the state Department of Health and Human Resources in the agency’s repeated “noncompliance” with prior orders and commitments to better patient care at two of the state’s psychiatric hospitals.

In its Oct. 7 opinion, the majority of the state’s high court mostly upheld Kanawha Circuit Court Judge Louis “Duke” Bloom’s orders against the DHHR. The court, however, reversed Bloom’s refusal to declare the particular rulings on appeal as partial final judgments.

The DHHR, represented by state Attorney General Patrick Morrisey, sought relief from Bloom’s June 3, 2014, and Aug. 13, 2014, orders.

The orders were a result of concerns raised over the agency’s inability to comply with previous orders relating to Mildred-Mitchell Bateman Hospital in Huntington and William R. Sharpe Jr. Hospital, which opened in 1994, replacing the old Weston State Hospital.

Bloom held evidentiary hearings in April 2014 to address various issues, including an increase in staffing vacancies and alleged mandatory overtime at both psychiatric hospitals.

Based on the evidence received, the judge entered an order on June 3, 2014, observing that many of the problems that existed in 2009 continued to exist five years later.

Bloom concluded that the DHHR was in violation of a 2009 agreed order because the agency had taken “no steps to offer competitive market wages in order to recruit and retain full-time employees,” as required by the order and state code.

The circuit court also found that the DHHR failed to comply with a Dec. 18, 2012 order that requires a “special starting salary for the three classes of direct care employees,” as set forth in the 2009 agreed order.

Bloom directed the agency to develop a plan, in consultation with a court monitor, that would significantly reduce the number of staff vacancies at Bateman and Sharpe; discontinue the practice of mandatory overtime except in exceptional and infrequent contexts; and discontinue the reliance on temporary employees and contract workers to fill vacant positions.

The judge warned against a subsequent return to court with a plan requiring legislative approval, given the agency’s years of delay to act.

On June 11, 2014, the DHHR presented three proposals, each requiring years to implement as well as legislative approval. After hearing the plans, the circuit court held the agency in contempt, as confirmed in a June 27, 2014 order.

To purge itself of contempt, the DHHR had to present a remedial plan that could be implemented immediately utilizing current state Division of Personnel policies and procedures.

The DHHR returned to the circuit court on Aug. 1, 2014 for a hearing during which it presented its proposed plan. The plan provided for increased salaries for direct care workers at Sharpe and Bateman that are competitive with prevailing market wages in the hospitals’ respective geographical areas based upon regional market surveys, and for periodic retention incentives for employees who remain employed in their job classification for three or more years.

On Aug. 13, 2014, the court entered an order finding the DHHR had purged itself of the contempt “so long as [it] execute[s] [its] proposed plan.”

Through a second order entered the same day, the circuit court refused the agency’s motion for a stay of the court’s orders entered on June 3 and 27, 2014, as well as its oral ruling made during the Aug. 1, 2014 hearing approving its proposed plan. The court also refused to declare those rulings to be partial final judgments.

The DHHR appealed the circuit court’s June 3, 2014 and Aug. 13, 2014 orders to the state Supreme Court.

The agency argued that the circuit court wrongly decided questions entrusted to the legislative and executive branches, and that the “parameters” set by the lower court for the agency’s plan required more than working towards a reduction in the use of overtime and temporary employees.

But a majority of the justices didn’t buy the DHHR’s arguments.

“Despite the 2009 Agreed Order, the DHHR exhibited an extraordinary lack of initiative to oversee that its commitments were met. Had it actually undertaken to develop a formal plan of action in 2009, there would likely have been no need for the parties’ return to the circuit court in 2014 on these very same issues. Indeed, the circuit court’s frustration with the DHHR was surely exacerbated upon learning of the DOP policies and procedures that could aid the DHHR in achieving compliance -- tools that were untouched during the intervening years,” Justice Allen Loughry wrote in the 42-page majority decision.

“Compelling the DHHR to develop a plan to meet its previous commitments and the law, after years of delay, does not demonstrate an encroachment on executive branch authority. Instead, it supports the DHHR’s decision to enter into the contractually binding 2009 Agreed Order. Given the DHHR’s failure to correct problems that have existed for more than 30 years, the institutional reform cases cited by the DHHR would arguably support the circuit court crafting a plan for the DHHR’s implementation.”

Loughry wrote that the circuit court “reasonably acted within its discretion.”

“The instant, and prior, appeals in this litigation depict an agency that is either well-intended, or one that makes agreements as the exigencies demand; in either case, its follow-through efforts are abysmal,” the justice wrote for the majority. “The DHHR’s pattern of failing to fulfill its commitments and obligations undermines the efficacy of such agreements and further serves to discourage negotiation-based resolution.

“Certainly, the executive branch should lead reform efforts, but courts are by necessity required to intervene when those efforts fall short.”

The DHHR, the majority wrote, “seemingly ignored” that fact that when it appeared before Bloom in 2014 that five years had elapsed “during which it essentially sat idle.”

“Although the circuit court certainly made clear that the DHHR could move forward with developing another plan for the court’s consideration, either with or without legislative involvement, it made equally clear that additional years of noncompliance would not be condoned,” Loughry wrote. “We agree.

“It is both inexcusable and disheartening for the DHHR to be before this Court on some of the same issues that were identified more than 30 years ago -- issues that continue to adversely impact the very vulnerable patient population committed to our state mental health hospitals.”

Justice Robin Davis filed her dissent a day after the majority issued its opinion.

“The majority opinion in this case is a classic example of unconstitutional judicial interference with the exclusive authority of the legislative and executive branches of government,” she wrote in her Oct. 8 opinion. “In this case, the circuit court overstepped its judicial jurisdiction and dictated to the legislative and executive branches of government how to ‘increase hospital pay by unspecified but substantial market amounts and to simultaneously restructure hospital worker salaries and job classification rates.’

“The majority opinion has affirmed the lower court’s imposition of these unprecedented pay raises and management policies, purportedly because the DHHR previously had agreed to these extraordinary remedies. Obviously, had the DHHR agreed to such remedies, it would not now be complaining about the imposition of the remedies by the judicial branch of government. I refuse to violate my oath of office by joining a majority decision that contravenes our state constitution.”

Davis contends the West Virginia Constitution prohibits the judiciary from acting as a “superlegislature.”

“In the instant case, it is clear that the issues of hospital employee wages and overtime management are legislative and executive policy matters,” she explained in her 11-page dissent.

“Under the circuit court’s ruling and the majority opinion, the courts of West Virginia now have authority to mandate the budget and overtime requirements for any government agency in this State.”

Davis said she refused to take part in a “coup d’etat” of exclusive authority granted to the legislative and executive branches.

“The majority opinion in the case at bar has moved into a new realm that dangerously obliterates the bright lines between the constitutional separation of powers,” she concluded.

Davis also dissented to a separate majority ruling issued last week, though she has yet to file her opinion. That makes the third dissent for Davis in the last month. Davis filed a dissent in a venue case before the state’s high court last month.

In its Oct. 15 opinion, the majority -- in another decision written by Loughry -- ruled that the DHHR must follow an order issued by Bloom in August 2014 to immediately restore access to patients and patient records to the patient advocates working at Bateman and Sharpe -- in this case, Legal Aid of West Virginia.

The DHHR’s Bureau for Behavioral Health and Health Facilities -- again represented by Morrisey -- argued that the circuit court’s order violated both the patients’ constitutional rights to privacy and the federal Health Insurance Portability and Accountability Act, more commonly known as HIPAA.

“Given that the first and only complaint concerning an alleged violation of HIPAA was filed in 2014 by the DHHR -- almost 20 years after the federal act became law -- it is clear that inappropriate disclosure of patient information has not been taking place as implied by the DHHR,” Loughry wrote in the 28-page majority decision. “Not only have there been no complaints filed until the DHHR instituted one, but the state privacy officers whose responsibility it is to oversee these matters have failed to either independently identify or confirm the existence of any issues concerning the level of access historically afforded to the patient advocates.”

Loughry noted, “HIPAA was never intended to serve as a hindrance to patient services or civil rights; it was designed to prevent the inappropriate use or dissemination of protected health information. In the case before us, the DHHR has failed to demonstrate that Legal Aid has disseminated any protected health information in violation of federal or state law.”

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