WEST VIRGINIA RECORD

CHARLESTON - West Virginia Advocates has filed a suit against several state agencies seeking information about a death that occurred at a state hospital.

The suit, filed Aug. 28 in Kanawha Circuit Court, was filed against Martha Walker, the secretary of the West Virginia Department of Health and Human Resources; John E. Bianconi, the commissioner of the West Virginia Bureau for Behavioral Health and Health Facilities; and Victoria Parlier Jones, the deputy commissioner of the West Virginia Bureau for Behavioral Health and Health Facilities.

Jones is also the interim Chief Executive Officer of William R. Sharpe Jr. Hospital in Weston.

The suit arises because of failure to report "serious occurrences" to West Virginia Advocates, and refusal to provide access to records and information concerning the death of a patient at Sharpe Hospital, a state institution.

According to the suit, the incident falls under the Protection and Advocacy of Persons with Mental Illness Act.

According to the suit, on Aug. 9, 2007, Margie Diekmann, an advocate for WVA, was informed a patient had died at Sharpe. The next day, Diekmann contacted Jones and requested information regarding the death, but Jones did not cooperate.

After Diekmann received no information, Susan Given, the program director of WVA, contacted Jones via e-mail on four separate occasions. Given explained what WVA is, what they are seeking and provided information regarding the federal law, which requires "serious occurrences" at psychiatric residential treatment facilities such as Sharpe, to be reported.

As of Aug. 13, Given suggested that she and Jones should talk and resolve the problem. Jones was not in contact with Given after that. Jones never at any time denied that a death had occurred, the suit says.

Regenia L. Mayne, an attorney for WVA, contacted Jones again Aug. 21, by letter sent by fax and U.S. mail, explaining what WVA is and by what federal statute and regulation WVA was revoking access to the information regarding the death at Sharpe. Jones was given 48 hours to respond, which she did not do.

The suit also says Mayne attempted to contact Charles Dunn, Sharpe's attorney in the Attorney General's Office, and left him a message. The call was not returned.

Bianconi was contacted Aug. 24, and informed of the situation. He was told WVA was being forced to file a lawsuit in order to conduct the investigation that was required by federal law. According to the suit, Bianconi claimed he knew nothing about the occurrences at Sharpe, but promised to look into it. He said he would call Mayne on Aug. 27.

"Nothing further has been heard from Mr. Bianconi as of close of business on Aug. 27, 2007," the suit says.

According to the Code of Federal Regulations, any psychiatric residential treatment facility such as Sharpe must report "serious occurrences" (which term encompasses the death of a patient) to both the State Medicaid Agency and the State-designated Protection and Advocacy System, no later than by the close of business the next day after a serious occurrence happens.

According to the suit, WVA is mandated to investigate the death of any person with developmental disabilities and/or mental illness. The refusal by the defendants to provide WVA with access to the person whose death WVA needs to investigate violates the PAIMI Act.

WVA claims the court declare the defendants are in violation and issue an injunction requiring the defendants to conform their actions to the law.

WVA also seeks that the court declare the refusal to provide access to the requested records and their failure to respond promptly violates the PAIMI Act, and an injunction ordering the defendants to provide all records of the unknown person who died at Sharpe.

Mayne filed the suit against the defendants. The case has been assigned to Judge Charlie King.

Kanawha Circuit Court case number 07-C-1829