WEST VIRGINIA RECORD

CHARLESTON -- An attorney representing the state Department of Health and Human Resources has asked the state Supreme Court to tell a Kanawha County Circuit judge to back off from his attempt to require the department to change the way it deals with people with mental illness.

During arguments Jan. 27, Deputy Attorney General Charlene Vaughan said she wasn't contesting whether Judge Duke Bloom has jurisdiction in the case, but she was contending that he was exceeding his powers. If allowed to continue, she said, he would violate the separation of powers doctrine.

Last year, Bloom scheduled evidentiary hearings to determine whether the department was treating people with traumatic brain injury properly, He also wanted to look further into conditions at state psychiatric hospitals based on a report from court-appointed ombudsman David Sudbeck on conditions at Margaret Mitchell-Bateman Hospital in Huntington.

The department halted Bloom's effort by appealing to the Supreme Court for a writ of prohibition against him. Vaughan said the department had no other option, because Bloom denied a request to vacate his order for the evidentiary hearings.

Arguing that the department would be flooded with appeals if Bloom had his way, Vaughan said such a scenario would damage the department. The department has already agreed to spend $60 million to resolve over-bedding problems at Bateman, but the department "can't print money," she said.

"In what way is the court exceeding its jurisdiction," acting Justice Thomas McHugh asked. McHugh is a retired justice who is sitting in for ailing Justice Joseph Albright.

Bloom is exceeding his authority by simply accepting the ombudsman's solution for the problem, Vaughan said. She noted that Sudbeck is a former court employee who was involved in the development of the unresolved issues before the court.

Vaughan further explained that, in a 1993 plan, the department set out what it would do to address mental health issues. That 1993 plan resulted from a 1981 court order that required the state to establish a delivery plan for mental health care. Vaughan complained that Bloom keeps adding issues to the plan that prevents the department from getting out from under the 1981 court order.

Saying Bloom's orders are "clearly erroneous," Vaughan argued that he had unlawfully encroached on how the department should address traumatic brain injury.

Noting that Vaughan was asking the Supreme Court to vacate the order from circuit court, McHugh asked, "Are you saying the court should never step in?"

Vaughan denied that was the department's position but said the Legislature has already determined what the policy should be. She said Bloom was attempting to interject his own plan. She urged the justices "to remind him he's not the super-secretary of DHHR."

"These are trying times," Vaughan added, noting that soldiers are coming back from war with traumatic brain injury. Bloom should let the department and the Legislature address traumatic brain injury, she said.

Further, Vaughan questioned whether Sudbeck is really a state employee. She said the department is required to pay his salary and provide an office for him, but it has no control over him.

McHugh asked whether the hearings Bloom wants to call would determine whether the department has complied with the 1981 court order and the 1993 plan, as Vaughan contended. She replied that Bloom already had decided that the department wasn't in compliance. She added that the issue of over-bedding at Bateman "came out of the blue. It was never part of the plan."

After McHugh said he still was having trouble understanding the specifics of the case, Vaughan stated again that Bloom was encroaching on statute over how to address the traumatic brain injury issue. She said that is to be left up to the department and the West Virginia Traumatic Brain/Spinal Cord Injury Rehabilitation Fund Board.

Attorney Jennifer Wagner, who along with Dan Hedges represents advocates for people with mental health problems, then told the court that Vaughan and the department had misstated the issues. She said there had not been any evidentiary hearings to show whether the department was in compliance with court orders. Bloom had simply ordered such hearings and had not yet decided the case, she said.

Wagner said Bloom was looking into a consent order on traumatic brain injury that the department itself helped create. She said Bloom even took follow-up to the 1981 case off of his court's active docket at one point because he thought the department had only a few remaining issues to address.

The only three remaining issues, Wagner said, involve:

* Provision of services to people with traumatic brain injury;

* Case management services, which include a decline in community-based care that led to over-bedding at the state hospitals; and

* Forensic services, which are not at issue in this case.

"The department is using this to throw out the whole case," Wagner said. She urged the Supreme Court to reject the department's request and let Bloom proceed to gather evidence.

Justice Margaret Workman asked whether Bloom was reviewing compliance with the agreed-upon plan. Wagner said he was. She explained that there was a 2007 consent order that was based on a previous order in 2001.

"This is black-letter law," she said, saying it was simply to enforce a consent order.

Workman wanted to know what kind of hearings had been held so far. Wagner said they were just annual reviews of the case until Bloom issued an order that the department challenged. She added that the case means a lot for many citizens around West Virginia.

"What is the difficulty with case management?" McHugh asked.

Wagner responded that for every attempt the Legislature makes to give the department more money to deal with the problem, the department instead slashes funding for providing the needed services. The Legislature wants the department to provide those services, she said. Last week, she added, a woman died at Bateman after being denied the services she needed.

"Patients are being warehoused and drugged," Wagner said, instead of getting needed services.

Workman asked what services have been funded but not provided. Wagner cited community-based mental health care. She also said the department could apply for a Medicaid waiver for traumatic brain injury services, as 22 other states have done. Instead, she said, the department is trying to get out from under the order that it helped create, resulting in an "abysmal" situation.

"We understand your position," Justice Robin Davis said in dismissing Wagner.

Wagner finished by reiterating her request for the Supreme Court to deny the writ of prohibition sought by the department and to allow Bloom to proceed with evidentiary hearings.

In her response, Vaughan contended that the patient advocates had admitted in the 2001 consent order that the traumatic brain injury issue was resolved. "Things change, but the issue has been resolved," she said.

McHugh asked whether it wouldn't be better to go ahead with evidentiary hearings to determine what the situation is. But Vaughan responded that the Supreme Court should prevent Bloom from abusing his power.

"Has the record been developed sufficiently?" McHugh asked. Vaughan said it had, concluding arguments in the case.

Wallace is Senior Counsel for Public Relations for TSG Consulting in Charleston.