Class action nursing care case sent back to Circuit Court

CHARLESTON - Federal vs. state court, according to one Charleston attorney, is an issue that recently had more to do with time.

Fortunately for him, it was dealt with in a timely manner.

U.S. District Judge Joseph R. Goodwin decided Aug. 7 to remand a class action lawsuit filed by Bren Pomponio of the non-profit group Mountain State Justice, against the state's Department of Health and Human Resources back to Kanawha Circuit Court.

Pomponio argued back and forth with the defense that Jackie Fleshman's case belonged in Circuit Court, suggesting the only reason it was moved to federal court was to waste time.

Fleshman is the listed plaintiff on a class action lawsuit against the DHHR that was filed July 3 in Kanawha Circuit Court that claims his ADWP benefits were unfairly taken from him.

Fleshman is a 65-year-old Green Sulphur Springs mildly mentally retarded man with a history of dementia who originally qualified for the ADWP, which provided nursing care to his home to assist with the administering of his medications. The lawsuit says modifications to several of the requirements that Fleshman previously met left him, and several others, without care.

After only two weeks in federal court, Goodwin sent the case back to the State, where Circuit Judge Charlie King was originally assigned the case.

"The question of federal law is not substantial in this case because no federal cause of action exists under the Medicaid statutes," Goodwin decided.

Deputy Attorney General Charlene Vaughan and Assistant Attorney General Alva Page III had the case moved to federal court July 21 because they say the ADWP involves the federal Medicaid program.

In arguing jurisdiction, Pomponio writes that the State accomplished only one thing.

"In the end, the defendant (DHHR Secretary Martha Walker) has been successful only in delaying Mr. Fleshman's ability to substantively address his wrongful termination from the Aged and Disabled Waiver Program," Pomponio says.

In a memorandum in opposition to remanding the case back to Kanawha Circuit Court, Vaughan writes, "Defendant's Medicaid agency has a relationship with the federal Department of Health and Human Resources, and that relationship originates from, is governed by and terminates according to federal law, not the West Virginia Constitution and not the West Virginia Human Rights Act."

Citing previous case law, she says "this case is within the 'small number of cases where, even though the cause of action is not created by federal law, the case's resolution of a federal question sufficiently substantial to arise under federal law…'"

Pomponio wasn't convinced, and neither was Goodwin.

"The defendant claims that the instant case requires a determination as to whether the (DHHR) provided reasonable standards for determining eligibility for the (ADWP) pursuant to (federal law)," Goodwin wrote. "The defendant also claims that this question of federal law is substantial.

"Even if the Court found that the plaintiff's right to recover necessarily depends on a determination that the Department of Health and Human Services provided reasonable standards pursuant to (federal law), the court cannot find that the question of federal law is substantial."

Pomponio had called the defendant's argument "confusing at best."

"The two cases cited in support of removal do not provide any legal rationale why jurisdiction exists in this case," he wrote.

"Defendant essentially argues that because the ADWP is a program that receives federal funding, she is not subject to any state law or the state constitution in administering the program."

According to statistics from the DHHR, about one-third of the program's previous 5,400 recipients lost their benefits. Pomponio argues that the cut discriminates against individuals with mental disabilities and violated Fleshman's right to due process.

Despite federal funding, Governor Joe Manchin triggered the changes by declaring the program needed to reduce its size. Its budget was frozen in 2003 at $60 million. A five-year plan was submitted to the federal government outlining the changes.

Goodwin denied Pomponio's request for the defense to pay the plaintiff's court costs and attorneys fees because, he decided, the area of preemption law is "difficult" and that kind of restitution should only be ordered when a motion for removal lacks an unreasonable position.