Class action nursing care suit settled

By John O'Brien | Sep 21, 2006

CHARLESTON - At the behest of Gov. Joe Manchin, the state's Department of Health and Human Resources settled a lawsuit against it that claimed the department's eligibility requirements for in-home nursing care were unfair.

The lawsuit was filed July 3 in Kanawha Circuit Court by Jackie Fleshman, a 65-year-old mildly mentally retarded Summers County man who was no longer eligible for the Aged and Disabled Waiver Program when the DHHR toughened the eligibility requirements.

Manchin was looking to cut the budget of the program. The settlement that was reached Wednesday 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.

Attorney General Darrell McGraw decided to intervene with the lawsuit days before, saying he wanted to protect the interests of those affected by the program cuts.

"This action involves the impact of state action against one of the most vulnerable and dependent sections of West Virginia society, the elderly and disabled," Assistant Attorney General Barry Koerber wrote. "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."

After that motion was filed, it didn't take long for Manchin's office to settle the lawsuit. Mounting complaints and an upcoming protest may have helped, too.

McGraw had appointed another assistant attorney general, Charlene Vaughan, to represent the DHHR. Had the case progressed and Koerber was allowed to intervene, two lawyers from the Attorney General's office would have gone against each other.

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."

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