WEST VIRGINIA RECORD

CHARLESTON - A class action lawsuit has been filed against the West Virginia Department of Health and Human Resources over the agency's new policies.

Jackie Fleshman, described in his lawsuit as a 65-year-old mildly mentally retarded man living alone in Green Sulphur Springs, filed the lawsuit July 3 in Kanawha Circuit Court through attorney Bren J. Pomponio of Mountain State Justice, a nonprofit legal agency.

"This case arises out of the defendant's policy of discriminating against qualified recipients of and applicants to the Medicaid Home and Community Based Aged/Disabled Waiver Program on the basis of mental disability and denial of due process to applicants and recipients of the program," the complaint says.

"The ADWP provides benefits to individuals who qualify for Medicaid nursing home care so that the individuals may receive community-based skilled nursing care. The defendant conducts annual eligibility determinations to verify that recipients still qualify for ADWP services."

In the case of Fleshman, the lawsuit says he was a member of the program from 2000 until earlier this year, when he was told he no longer meets the eligibility requirements.

The lawsuit says modifications to several of the requirements that Fleshman previously met left him without care.

Previously, the DHHR demanded that an applicant meet at least five of its requirements. After changes were made that made that the eligibility requirements more stringent, Fleshman, and members of the class he is representing, no longer met five requirements, the lawsuit says.

It claims that the DHHR now discriminates against applicants with mental disabilities, a violation of the West Virginia Constitution and the West Virginia Human Rights Act, by making changes in the areas of: The ability 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.

Pomponio writes in the lawsuit that without care, Fleshman, who has a history of paranoia, brain atrophy and seizures, now faces the possibility of dying.

According statistics from the DHHR, about one-third of the previous members of the program were dropped after the modifications were made to its eligibility requirements.

The program received the attention of Governor Joe Manchin, who said it needed to reduce its size to make its budget, which was frozen in 2003 at $60 million.

He plans to cut the number of members in the program from 5,400 to 3,500.

The lawsuit seeks: The DHHR being found in violation of equal protection and the West Virginia Human Rights Act; the DHHR being found of denying due process; an order enjoining the DHHR from terminating the ADWP benefits to any member of the plaintiff class; and forward adjustments of benefits.

Judge Charlie King has been assigned the case.

Kanawha Circuit Court case number 06-C-1331