CHARLESTON -- Kanawha Circuit Judge Duke Bloom expects to hear by the end of the month from lawyers in a case challenging whether the state is doing all it should for West Virginians with traumatic brain injuries.
But in an evidentiary hearing in the case, Bloom already indicated his impatience and irritation with the state's position.
The case is related to another one concerned with overcrowding in state psychiatric hospitals and problems with the state's mental health system in general. Bloom's expressed disappointment that a 2001 mediated agreement failed to resolve the traumatic brain injury case could affect his ruling in the other case.
The judge had wanted to hold evidentiary hearings into both cases more than a year ago, but an appeal to the state Supreme Court by DHHR put them on hold. In January, the court gave Bloom approval to proceed with his probe into both cases. He held a two-day hearing on the problems in the state hospitals and the mental health system in April.
During testimony by the only witness put on the stand on behalf of the state in the traumatic brain injury case in late May, Bloom took over the questioning from lawyer Charles Dunn of the attorney general's office – and the judge's questions were very pointed. Dunn was only minutes into examining Pat Winston, program manager in the Division of Developmental Disabilities, when Bloom began taking over the interrogation.
Winston is the person in the Bureau for Behavioral Health and Health Facilities who oversees traumatic brain injury programs. Before the judge interrupted, she had been explaining how she had been gathering reports from the Center for Excellence in Disabilities on the needs of West Virginians with traumatic brain injuries and was just beginning to see some trends that would help her determine what programs are needed.
"You could study things to death," Bloom said. "When will you do something?"
The judge noted that earlier testimony had mentioned that the state had developed a plan in 1998 for helping people with traumatic brain injuries, plus the state had entered into the 2001 consent agreement to improve services for such people.
"We've missed several legislative opportunities for this department and this bureau to do something," Bloom said.
When Bloom asked if she was ready to recommend a traumatic brain injury waiver, Winston said she wanted to look at a trust fund first. A waiver program would allow people in the Medicaid program to receive services in their homes or communities instead of having to be institutionalized. The state already has a waiver program for mentally retarded/developmentally disabled (MR/DD) people.
"Your department doesn't like waivers, does it?" Bloom asked.
Winston responded that for someone to qualify for a waiver that person must meet that requirements for nursing home care, but Bloom fired back that there was no evidence in the record the requirements would be the same for a traumatic brain injury waiver as they are for in the MR/DD waiver program. He also noted that he had heard many MR/DD cases as a judge.
"Is this just another belabored effort to delay doing something with TBI?" Bloom asked. "We don't know what the rules are going to be."
Winston responded that the meaning of a waiver is that it waives institutional care. She added that she was concerned that many military veterans returning from overseas with TBI might need services but not a waiver. That prompted Bloom to ask what would be wrong with having both a traumatic brain injury trust fund and a waiver program.
"Why would you not want to have that?" he asked, adding that a trust fund would not be eligible for matching federal funds but a waiver program would at a rate of almost $3 in federal money to every $1 in state money.
Winston responded that some people need services but would not meet the eligibility requirements for a waiver. She said she was interested in providing a continuum of services. When Bloom asked how much that would cost, Winston said she didn't know.
Bloom then suggested that the state was already spending a lot of money on nursing home care for people with traumatic brain injuries and asked what the human cost of that is. Winston said she couldn't say whether the Department of Health and Human Resources would agree to apply for a waiver and again said she was interested in having a continuum of care.
"That's a wonderful thing to say but how are you going to do it?" Bloom asked. "It's clear you all have not complied with the consent agreement."
Further comments failed to mollify Bloom, who then said, "It doesn't look like much has been done at all of substance. What have we made advances in?"
Winston's main response was that some counselors have been trained to help people with brain injuries, but Bloom was not impressed. "Your department hasn't lifted a finger to secure funding," he said.
"We have not progressed to the point we should have or could have, but progress has been made," Winston replied. "We support dedicated funding sources."
Bloom noted that the department let three legislative sessions go by without making any effort to obtain additional funding. Winston said her agency did support efforts to work with the Center for Excellence in Disabilities and the Better Brain Injury Care Coalition, but Bloom said earlier testimony from people associated with those organizations indicated that they were not aware of any such support.
Throughout Winston's testimony, she faced many more questions from Bloom than from Dunn.
On cross examination, plaintiff's attorney Jennifer Wagner asked Winston who has the authority to decide on funding for traumatic brain injury programs. Winston said she wasn't sure but it is probably DHHR Secretary Martha Walker.
When Wagner asked if Winston was aware that DHHR had agreed in 2001 to apply for a waiver, Winston said she had become aware of that agreement just two weeks before the hearing.
In earlier testimony, John Sassi, manager of the state's MR/DD waiver program and formerly the official who worked with traumatic brain injury programs, said the state had agreed in 2001 to provide a dedicated funding stream for traumatic brain injury services, and DHHR had provided $1 million for that.
The agreement also called for establishment of a self-advocacy group, which Sassi said was done, but he said DHHR discontinued funding to the group, the Better Brain Injury Care Coalition, after its first year.
Lori Risk, assistant director at the Center for Excellence in Disabilities and manager of the center's traumatic brain injury programs, confirmed that the Better Brain Injury Care Coalition received some funding in 2007 but DHHR would not fund it the following year.
Risk said legislation was introduced this year to help people with TBI, but the bill never got out of a committee. She said she was not aware of any support from the executive branch, which might have helped that bill get passed.
Although about half of the states have Medicaid waiver programs to provide traumatic brain injury services to people in their communities, West Virginia does not have such a program because the state has not applied for a waiver, Risk said. Upon reviewing a list of essential services for people with brain injuries, she said all of them were included in the plan the state developed in 1998, and they are included in other states' waiver programs.
Among the services not sufficiently available in West Virginia, Risk said, are cognitive rehabilitation and wrap-around supports. She said such services can't be maintained without an ongoing funding stream.
On cross-examination, when Dunn asked Risk if she had supported the traumatic brain injury legislation, she said that is not part of her job. Her role is just to provide information, but she did work with the West Virginia Traumatic Brain/Spinal Cord Injury Rehabilitation Fund Board and the Better Brain Injury Care Coalition. "We were there to educate," she said.
In response to further questioning from Wagner, Risk said not enough traumatic brain injury services are available in West Virginia. She also said the Better Brain Injury Care Coalition has not been very active since funding for its consulting firm was discontinued after DHHR declined to approve it.
Dr. Robert Voogt, chairman of the North American Brain Injury Society, testified that people with traumatic brain injuries in West Virginia tend to end up in nursing homes at much younger ages than other residents, in psychiatric hospitals, in prisons and in the streets as homeless people because of the lack of appropriate services for them. If the state had a waiver program, many of those people could be helped through services available in their homes and communities, he said.
A model of how that would work is already in place in West Virginia, Voogt said, because individuals who have received traumatic brain injuries before the age of 18 are covered by the MR/DD waiver. But he said for those injured at older ages, Medicaid won't pay for direct services, so many of them end up in nursing homes.
"This patient should be served in this community near his family," Voogt said. "You go to nursing homes to die; you don't go to nursing homes to live."
Instead of paying about $500 a day for someone in a nursing home, the cost could be lowered to as little as $50 a day for community-based services, he said, and under Medicaid as much as 81 percent of that could be paid with federal funds.
Ginger Dearth, chairwoman of the West Virginia Traumatic Brain/Spinal Cord Injury Rehabilitation Fund Board, told the court the board was created in 1996 and she has been on it since 1996, but the state currently is not funding it. Two years ago, the state provided funding for consulting services, which helped establish the Better Brain Injury Care Coalition, but when the board requested a renewal of that funding for a second year, DHHR denied it, she said.
When asked if DHHR supported the traumatic brain injury legislation, Dearth said the department offered no support for it. Nor has DHHR made any effort to modify its Medicaid plan to improve services for people with traumatic brain injuries, she said.
In addition to expressing support for a Medicaid waiver, Dearth also said a traumatic brain injury trust fund would be helpful for complementing the waiver program and permitting a menu of services to be available to more people. She said it's not possible to provide a comprehensive system of services without a waiver and a trust fund.
When asked if it would have been helpful for the executive branch to support traumatic brain injury legislation, Dearth said bills are more likely to pass in the Legislature when they have support from the executive branch.
At the end of the hearing, Bloom set June 30 as the deadline for the lawyers to file their findings and conclusions in the case. Responses to those filings will be due on July 7.
In the other case, the lawyers were scheduled to submit their proposed findings, conclusions and recommendation to Bloom by June 1 and have their responses to each other filed by June 8. Bloom also urged both sides to submit to mediation and have a mediator's report to him by June 8. He said it would be better for the parties to develop their own solutions rather than have him impose solutions. He called the testimony he heard "startling."
However, following Bloom's statements that the state had not lived up to the 2001 mediation agreement on traumatic brain injury issues, there are questions about whether he will trust the state to adhere to any agreement mediated in the other case. For several years, a court-appointed ombudsman has been watching over how the state handles people in the mental health system in a case that dates back to the 1980s. Another option for the judge would be to appoint a monitor with more authority to oversee implementation of reforms.