Class-action filed on behalf of state's mentally retarded citizens

CHARLESTON - A class-action lawsuit has been filed on behalf of mentally retarded state citizens who have been denied Medicaid benefits through the MR/DD Waiver Program in West Virginia.

Attorney Bren Pomponio filed a suit Aug. 24 in Kanawha Circuit Court, on behalf of Shawn Shumbera, and other similarly situated. The suit was filed against Martha Walker, the secretary of the West Virginia Department of Health and Human Resources. Walker is responsible for administering part of the waiver benefits.

The West Virginia Medicaid MR/DD Waiver program is designed to provide in-home and community services to individuals with mental retardation or developmental disabilities as an alternative to institutionalization.

To be eligible for the benefits, one must be either mental retarded or have a related condition that constitutes a severe and chronic disability.

Shumbera is a 27-year-old diagnosed with mental retardation. He was diagnosed at 4 years old with mixed developmental and behavior disorder, and was already exhibiting moderate to severe deficits in social and adaptive behaviors. At 14, he was diagnosed with mental retardation. He also has a behavior disorder and visual and hearing impairments.

He has received numerous hospitalizations due to his mental retardation and behavioral disorders, including stays at Highland Hospital, Beckley Appalachian Regional Hospital, River Park Hospital and the Barboursville School.

Shumbera is currently in Mildred Mitchell-Bateman Hospital in Huntington, where he has been since 2001. During his time there, he has undergone no fewer than six psychological evaluations, conducted by at least five different licensed psychologists, the suit says. Every evaluation has confirmed a diagnosis of mild mental retardation, manifested during the developmental period, with significant accompanying adaptive deficits. Every evaluation recommended an ICF/MR level of care.

During his institutionalization, Shumbera has submitted applications for participation in the MR/DD Waiver Program.

"Despite ample documentation of his eligibility, Mr. Shumbera has been denied participation in the MR/DD Waiver Program because he has been diagnosed with an ancillary mental illness," the suit says.

He has been deemed eligible for discharge from Bateman if an appropriate placement and adequate community supports are arranged. However, according to the suit, because he cannot obtain MR/DD Waiver Program services, he and his treatment team have been unable to satisfy the conditions of his discharge.

"Consequently, with no supports in place and nowhere to go, Mr. Shumbera has been forced to remain institutionalized for six consecutive years, with no alternative means for returning to a less restrictive community placement," the suit says.

According to the suit, Walker violated the rights of the class members in several ways. Included are: routinely denying that the class members have adequately documented their diagnosis of mental retardation, when the defendant is aware that all individuals certified as Medley class members have been diagnosed with mental retardation during the developmental period;

Requiring that the application demonstrate they require or receive 24-hour direct supervision, when no such requirement is in State policy;

And disqualifying individuals from the program who are otherwise eligible because the individual has been diagnosed with a mental illness, when there is no such disqualification in policy.

"Despite having been overruled by the circuit court on repeated occasions, the defendant continues to deny eligibility to members of the class," the suit says.

Pomponio seeks to have the court enjoin the defendant from terminating MR/DD program benefits to any member of the class until the practice and policy of terminating or denying MR/DD program benefits comports with the requirements of due process of law, equal protection and the West Virginia Human Rights Act.

Pomponio also seeks to have the court declare that the practice of denying MR/DD benefits discriminates against the class. The class seeks adjustments of benefits, attorney and court fess and other relief.

The case has been assigned to Judge Tod Kaufman.

Kanawha Circuit Court case number 07-C-1807