W. Va. Dept. of Health and Human Resources v. E. H.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term FILED
October 7, 2015
released at 3:00 p.m.
Nos. 14-0664 and 14-0845 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
BUREAU FOR BEHAVIORAL HEALTH AND HEALTH FACILITIES,
Respondent Below, Petitioner
v.
E.H., et al.
Petitioners Below, Respondents
Appeal from the Circuit Court of Kanawha County
Honorable Louis H. Bloom, Judge
Civil Action No. 81-MISC-585
AFFIRMED, IN PART, AND REVERSED, IN PART
Submitted: September 2, 2015
Filed: October 7, 2015
Patrick Morrisey, Esq. Lydia C. Milnes, Esq.
Attorney General Jennifer S. Wagner, Esq.
Elbert Lin, Esq. Mountain State Justice, Inc.
Solicitor General Charleston, West Virginia
Daniel W. Greear, Esq. Attorneys for the Respondents
Chief Counsel
Julie Marie Blake, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. In the context of institutional reform litigation, this Court may choose to
exercise its appellate jurisdiction over an order entered by the circuit court that it deems to
approximate a final order by its nature and effect.
2. “Inherent in the republican form of government established by our State
Constitution is a concept of due process that insures that the people receive the benefit of
legislative enactments.” Syl. Pt. 1, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1982).
3. “It is the obligation of the State to provide the resources necessary to accord
inmates of State mental institutions the rights which the State has granted them under W.Va.
Code, 27-5-9 [1977].” Syl. Pt. 3, E.H. v. Matin, 168 W.Va. 248, 284 S.E.2d 232 (1981).
LOUGHRY, Justice:
This case is before the Court on the consolidated appeals of the petitioner, the
West Virginia Department of Health and Human Resources, Bureau for Behavioral Health
and Health Facilities (the “DHHR,” unless otherwise indicated), seeking relief from the June
3, 2014, and August 13, 2014, orders of the Circuit Court of Kanawha County. As grounds
for this appeal, the DHHR asserts: (1) this Court has appellate jurisdiction to consider these
appeals despite the circuit court’s failure to certify the challenged orders as partial final
judgments; (2) the circuit court exceeded its authority under the separation of powers
doctrine and our West Virginia precedent by compelling compliance with an Agreed Order
entered on July 2, 2009, through the immediate implementation of a pay raise restructuring
plan at two state mental health hospitals; and (3) it reasonably believed the 2009 Agreed
Order only required an increase to the salaries of existing direct care employees. Following
a careful review of the briefs, the arguments of counsel, the lengthy appendix record
submitted, and applicable law, we reverse the circuit court’s refusal to declare the particular
rulings on appeal as partial final judgments, but we otherwise affirm the orders at issue.
1
I. Facts and Procedural Background1
In order to fully appreciate the circuit court’s rulings on appeal, it is necessary
to review the history of this institutional reform litigation that began in 1981 when a group
of patients at the Mildred Mitchell-Bateman Hospital (“Bateman”)2 filed a mandamus action
in this Court seeking judicial intervention for deplorable conditions described as the
“‘Dickensian Squalor’ of unconscionable magnitudes of West Virginia’s mental institutions.”
E.H. v. Matin, 168 W.Va. 248, 249, 284 S.E.2d 232, 233 (1981) (internal citation omitted)
(“Matin I”). The Court stated that it was only being asked “to order the executive branch to
fulfill its obligation under clear and unambiguous statutory provisions[,]” recognizing that
the Legislature had previously “acknowledged its concern for both humane conditions of
custody and effective therapeutic treatment . . .” through its passage of West Virginia Code
§ 27-5-93 in 1977. Matin I, 168 W.Va. at 257, 284 S.E.2d at 237. The Court transferred the
case to the Circuit Court of Kanawha County for the purpose of monitoring compliance while
bearing in mind the following:
(1) W. Va. Code, 27-5-9 [1977] creates specific enforceable
rights in the entire inmate population of the State’s mental
1
The facts and procedural history set forth herein have been gleaned from the parties’
briefs, the appendix record filed in the instant consolidated appeals, as well as the prior
opinions of this Court entered in this institutional reform litigation.
2
At the time this litigation was instituted, Bateman, which is located in Huntington,
West Virginia, was known as Huntington State Hospital.
3
West Virginia Code § 27-5-9 sets forth the rights of patients involuntarily committed
to our state mental health hospitals.
2
hospitals. (2) W. Va. Code, 27-5-9 [1977] requires a system of
custody and treatment which will reflect the competent
application of current, available scientific knowledge. Where
there is a good faith difference of opinion among equally
competent professional experts concerning appropriate methods
of treatment and custody, such differences should be resolved by
the director of the West Virginia Department of Health and not
by the courts. (3) It is the obligation of the [S]tate to provide the
resources necessary to accord inmates of mental institutions the
rights which the State has granted them under W. Va. Code, 27­
5-9 [1977].
Matin I, 168 W.Va. at 259-60, 284 S.E.2d at 238. In 1983, the parties agreed to the West
Virginia Behavioral Health System Plan, which the circuit court accepted. This Plan, which
was designed to address the problems identified by the parties, was to be implemented by the
DHHR with oversight by the circuit court and a court monitor.
Ten years later, the matter was again before this Court. See E.H. v. Matin
(“Matin II”), 189 W.Va. 102, 428 S.E.2d 523 (1993). The circuit court had enjoined the
construction of a new mental health hospital to replace the Weston State Hospital.4
Concluding that the circuit court exceeded its authority, the Court held that “[w]here the
legislature, through the budget process, expressly provides for funding to build a new public
facility, absent some constitutional challenge or an express statutory provision to the
contrary, the courts are not authorized to interfere with the legislative mandate.” Matin II,
4
The circuit court was concerned that the proposed new psychiatric facility would
endanger the overall funding of the Behavioral Health System Plan. Matin II, 189 W.Va. at
104, 428 S.E.2d at 545.
3
189 W.Va. at 103, 428 S.E.2d at 524, syl. pt. 1. Thereafter, the William R. Sharpe, Jr.
Hospital (“Sharpe”) was built. Following additional briefing by the parties regarding
whether continued court monitoring was necessary, the Court issued its opinion in E.H. v.
Matin (“Matin III”), 189 W.Va. 445, 432 S.E.2d 207 (1993), retaining the court monitor for
at least eighteen additional months, or longer if shown to be necessary.
In 2002, the parties and the circuit court agreed to dissolve the office of the
court monitor and removed the case from the circuit court’s active docket, although
jurisdiction to reopen the case was retained to address various unresolved issues. In fact, the
circuit court continued to hold periodic hearings to assess the parties’ progress in that regard.
Around this same time, the position of “Ombudsman for Behavioral Health” was developed
by the DHHR.5 Regular reports were issued by the Ombudsman to both the circuit court and
the DHHR and, in the annual report for 2007-2008, several issues were identified, including
those involving the provision and coordination of case management services and the
treatment of persons with traumatic brain injuries.
On July 3, 2007, the circuit court adopted and entered the parties’ mediated
Consent Order on Services To Individuals With Traumatic Brain Injuries. During hearings
5
The Ombudsman served to oversee the DHHR’s compliance with its statutory duties
relating to the rights of patients confined to state mental health facilities. See W.Va. Code
§ 27-5-9.
4
held in 2008, the circuit court addressed the continuing problem of the DHHR’s compliance
with this consent order. Based upon the significant issues raised in the Ombudsman’s
reports, including non-compliance with the consent order and possible violations of West
Virginia Code § 27-5-9, the circuit court entered an order on August 28, 2008, reopening the
case and scheduled an evidentiary hearing.
Thereafter, the DHHR sought a writ of prohibition in this Court to prevent the
lower court from reopening the case. In addressing the DHHR’s request for extraordinary
relief, the Court recounted the contents of the July 3, 2008, Ombudsman report that identified
violations of patients’ rights that were first identified decades earlier in Matin I. The Court
noted that this report detailed
staff related issues including a practice called “Freezing”, in
which staff members are required to work an additional eight
hour shift on top of the eight hour shift they have just finished.
This “Freezing” process is mandatory and those that refuse to
follow the practice are given written reprimands.6 The staff also
stated that the “90 day temp” employee system does not work.
These 90 day temporary workers are often, if not always,
unqualified and inexperienced staff assigned to deal with violent
and aggressive patients. One of these 90 day temporary
employees was fired for drinking on the job and the regular staff
generally does not feel comfortable working with them.
6
As discussed, infra, the refusal of mandatory overtime can be a basis for termination
of employment, according to evidence presented during the hearings held before the lower
court in April 2014.
5
Matin v. Bloom (“Matin IV”), 223 W.Va. 379, 383-84, 674 S.E.2d 244-45 (2009) (footnote
omitted) and (footnote added). In summarizing the situation existing then, the Court stated
that
[i]n general, the portrait that emerges from the
Ombudsman’s reports is that of a hospital that is overcrowded
with patients, most of whom are frustrated by living on top of
each other, being denied privacy and not having daily access to
basic grooming needs. The regular staff suffers from extremely
low morale due to forced overtime and working with unqualified
temporary workers with questionable backgrounds.
Specifically, the term ‘Dickensian Squalor’ that Justice Neely
used to describe the hospital in 1981 is an apt description of the
hospital that emerges from the Ombudsman’s July 3, 2008
report.
Id., 223 W.Va. at 384, 674 S.E.2d at 245 (emphasis added). The Court refused to issue the
writ on the grounds that the circuit court had “the power to ensure that patients are receiving
the treatment guaranteed to them under W.Va. Code § 27-5-9[,]” as well as the “power to
enforce a Consent Order it previously issued.” See id. at 381; 674 S.E.2d at 242.
Following Matin IV, the circuit court held an evidentiary hearing in April
2009. Dr. Shahid Masood, the clinical director at Bateman, testified that staffing vacancies
were causing unsustainable working hours for clinical staff; that use of temporary employees
was an inefficient use of resources because “by the time they are trained[,] it is time for them
to leave[;]” and that increasing salaries would be an “extremely effective” method for
recruiting additional full-time employees. Dr. Masood further testified that patients were
6
being administered increased amounts of medication, a side effect of which is sedation, to
treat their increased levels of anxiety attributable to understaffing and patient overcrowding.
During this same hearing, the chief executive officer for Bateman at that time,
Mary Beth Carlisle, testified that “consistent vacancies in nursing and in direct care” at the
hospital necessitated the use of employee overtime and the employment of temporary staff.
She agreed and/or suggested that increasing staff salaries to the local prevailing wage,
increasing the number of full-time employees, discontinuing the use of ninety-day temporary
employees, and eliminating mandatory overtime could all aid in improving the staffing
problems. Ms. Carlisle indicated that patients were not receiving community integration trips
as required by West Virginia C.S.R. § 64-59-14.47 due to the chronic vacancies in direct care
positions. Other evidence showed that the DHHR’s failure to reimburse community service
7
West Virginia C.S.R. § 64-59-14.4 provides, as follows:
14.4. Community Integration. Unless specifically
contraindicated by a client’s interdisciplinary program plan or
physician, each client, other than acute psychiatric and
out-of-contact geriatric clients, shall be provided the opportunity
to:
14.4.1. Shop in the community at least monthly;
14.4.2. Eat in a public place in the community at least monthly;
14.4.3. Participate in a major recreational activity in the
community at least monthly;
14.4.4. Attend a public event in the community at least four (4)
times annually;
14.4.5. Worship in the community on a regular basis; and
14.4.6. Visit the local public library on a regular basis.
7
providers resulted in decreased community-based services, including day treatment, which
contributes to patient overcrowding.
Based on the evidence presented during the April 2009 evidentiary hearing, the
circuit court directed the parties to participate in mediation, which resulted in agreements that
were memorialized in an Agreed Order entered by the circuit court on July 2, 2009 (the
“2009 Agreed Order”). This order provided, in part, as follows:
10. Facilities:
(a) DHHR shall provide for increased pay for direct care
workers at Bateman and Sharpe in order to (i) be able to recruit
staff and retain existing staff and (ii) preclude the practices of
mandatory overtime and reliance on temporary workers (except
in exceptional and infrequent contexts). (See Attachment B.)
(b) DHHR will use only full time employees working regular
shifts or voluntary overtime except in exceptional and infrequent
contexts.
Attachment B, which is a part of the 2009 Agreed Order, is a chart setting forth the various
classifications of direct care employees, the number of employees for each classification, the
salary increase for each classification, and the total funding necessary for the DHHR to
implement the increase. The direct care positions designated to receive increased
compensation were psychiatrists, seven different nursing classifications, as well as Health
Service Trainees (“HSTs”), Health Service Workers (“HSWs”), and Health Service
Assistants (“HSAs”), all of which have responsibilities similar to those of a nurse’s aide. In
8
addition to the 2009 Agreed Order, the circuit court entered an order on August 7, 2009,8 in
which it concluded that
[w]ithout the provision of community services, Bateman and
Sharpe Hospitals will continue to suffer from overcrowding and
violations of patients’ rights established by W.Va. Code § 27-5­
9 will continue to occur. . . . The evidence presented reflects that
clients’ rights are being violated because individuals are being
kept in inpatient, locked institutional facilities, despite readiness
for discharge into the community, based on the lack of
community services.9 (Footnote added).
During an extraordinary session of the Legislature held in 2009, West Virginia
Code § 5-5-4a was enacted. This statute provides, in part, as follows:
(a) The Legislature finds that Mildred Mitchell-Bateman
Hospital and William R. Sharpe, Jr. Hospital have extreme
difficulty in recruiting and retaining physicians, physician
specialists, nurses, nursing directors, health service workers,
health service assistants, health service associates and other
employees who assist in the direct provision of medical care to
patients in those facilities.
8
In this same order, the circuit court found that the DHHR had violated consent orders
entered in 2001 and 2007 by failing to make “good faith efforts” to secure funding for a
Medicaid Traumatic Brain Injury (“TBI”) Waiver, failing to apply for that waiver, and failing
to develop a dedicated source of state funding for TBI services. Accordingly, the circuit
court ordered the DHHR to apply to the federal government to obtain a TBI Medicaid waiver
by January 2010 and to request that the Legislature establish a TBI trust fund to meet
additional unfulfilled needs. The DHHR appealed the circuit court’s order, arguing that the
lower court had usurped its authority and violated the separation of powers doctrine. In E.H.
v. Matin, No. 35505 (W.Va. Sup. Ct. Apr. 1, 2011) (Memorandum Decision) (“Matin V”),
we concluded that the separation of powers doctrine was not implicated because the case
involved the enforcement of prior consent orders to which the DHHR had been party.
9
This language was quoted in the circuit court’s order entered June 27, 2014.
9
(b) The West Virginia Division of Personnel and the Department
of Health and Human Resources jointly shall develop pay rates
and employment requirements to support the recruitment and
retention of physicians, physician specialists, nurses, nursing
directors, health service workers, health service assistants,
health service associates or other positions at Mildred
Mitchell-Bateman Hospital and William R. Sharpe, Jr. Hospital.
Pay rates shall reflect the regional market rates for relevant
positions . . . .
(c) Funding for the pay rates and employment requirements shall
be provided from the appropriation to the Department of Health
and Human Resources . . . .
W.Va. Code § 5-5-4a (emphasis added).
Following an evidentiary hearing held before the circuit court in July 2011, the
court found that Bateman and Sharpe continued to have staffing vacancies and continued to
use voluntary and mandatory overtime “to maintain a minimum level of staffing[.]”10 The
circuit court further found that both hospitals continued to be overcrowded, causing patients
to be housed on temporary cots in small, windowless classrooms with no access to bathrooms
or closets, and that “[o]vercrowding of the state psychiatric facilities continues to violate
state law, regulations, and the Orders entered in this case.” Five months later, the circuit
court received evidence indicating that between January and November of 2011, Bateman
averaged twenty-eight vacancies in direct care positions on any given day. Similarly, Sharpe
10
These findings were made in the circuit court’s order entered August 19, 2011.
10
had persistent vacancies in direct care workers during this same time period and had required
approximately 40,000 hours of overtime from its direct care staff.
On August 29, 2012, the respondents filed a request for resolution seeking
enforcement of the DHHR’s increased salary commitments as set forth in the 2009 Agreed
Order. Evidence presented during a hearing held on October 12, 2012, demonstrated that the
DHHR had increased salaries for registered nurses and psychiatrists at or above the amounts
set forth in the 2009 Agreed Order and had implemented special hiring rates for these
classifications to aid in recruiting new employees. However, Victoria Jones, then-acting
Commissioner for the Bureau of Behavioral Health and Health Facilities, testified that the
other categories of health service employees had not received the pay increases required
under the 2009 Agreed Order.11 Consequently, by order entered December 11, 2012, the
circuit directed the DHHR to comply with paragraph 10(a) of the 2009 Agreed Order
11
During the October 2012 hearing, Ms. Jones testified that minutes from a meeting
with the court monitor reflected the DHHR’s compliance with the 2009 Agreed Order. The
circuit court judge interjected, noting that regardless of what persons may or may not have
correctly or incorrectly represented during an administrative meeting, the DHHR had just
conceded that it was not compliant with the 2009 Agreed Order. Other evidence presented
at this hearing showed that the DHHR had worked with the West Virginia Division of
Personnel and the Legislature to establish a three percent raise for those health service
employees who had been in their positions for three years or longer, effective July 1, 2010.
For those who qualified, this three percent raise was far less than what was required under
the 2009 Agreed Order. Direct care workers employed less than three years received no
raise. Ms. Jones testified at a subsequent hearing that the DHHR eliminated this three
percent retention incentive after the circuit court directed its compliance with the salary
increases set forth in the 2009 Agreed Order in orders entered on December 11 and 18, 2012.
11
increasing the compensation for the direct care positions at Bateman and Sharpe by no later
than January 1, 2013, in the amounts set forth in Attachment B to the 2009 Agreed Order.12
The circuit court subsequently denied the DHHR’s motion to alter or amend judgment,
finding in its December 18, 2012, order that “employees in the LPN and Health Service
Trainees, Workers, and Assistants classifications employed on or after January 1, 2013, are
entitled to pay raises . . . as provided in the Order entered December 11, 2012.”
The current appeal arises out of concerns raised by the respondents during the
Fall of 2013 and the Spring of 2014 regarding the DHHR’s noncompliance with prior orders
and commitments. In their requests for resolution filed in the circuit court, the respondents
cited, inter alia, an increase in staffing vacancies at Sharpe and Bateman and its
corresponding adverse impact on patient care. On April 24 and 29, 2014, the circuit court
held evidentiary hearings to address these issues.
The circuit court heard testimony regarding the adverse impact that the
hospitals’ staffing shortages were having on employees and patient care. A direct care
employee at Bateman testified that an employee’s refusal of overtime could be a basis for
termination and that requiring employees to work consecutive twelve- to sixteen-hour shifts
12
The circuit court did not require retroactive compensation.
12
affects staff morale. As a result, patient care is adversely impacted when the employees work
at less than their full capabilities.13
Craig Richards, the chief executive officer at Bateman, testified that substantial
amounts of money are being paid for the significant overtime that is routinely being required
of direct care employees. Mr. Richards agreed that Bateman is “habitually short of staff,”14
explaining that recruiting efforts do not produce a sufficient number of qualified candidates.
He added that the DHHR ultimately expends far more funds for contract workers from out­
of-state agencies than what it would cost to hire full-time, permanent employees with
benefits.15 Failing to offer a competitive salary in the market place was identified by Mr.
Richards as the primary reason for the staffing issues,16 although he added that the inability
to offer “flexibility in terms of the availability of different [work] schedules” for employees
13
There was also testimony indicating that during a three-month period in 2014 at
Sharpe, 3,000 to 4,000 hours of overtime were worked each month in each unit of the
hospital.
14
DHHR documents show that Bateman and Sharpe averaged between forty and forty-
eight vacancies in the direct care employee classifications during February and March 2014.
15
The record reflects the DHHR is paying out-of-state contracting agencies millions
of dollars to employ short-term contract workers. These workers typically work five months,
one of which is spent in training. The need to train these contract workers further impacts
the staffing situation by removing employees from their regular duties.
16
The circuit court heard this same testimony in 2009 when Bateman’s clinical director
testified that increasing salaries would be an “extremely effective” method for recruiting
additional employees.
13
had a negative effect on hiring. After acknowledging that policies and procedures allow for
proposals to be made to the West Virginia Division of Personnel (“DOP”) to be able to offer
raises and flexible work schedules,17 Mr. Richards conceded during the April 2014 hearing
that the DHHR had not made any such proposals to the DOP.
Regarding the community integration required under West Virginia Code of
State Regulations § 64-59-14.4, both Mr. Richards and Commissioner Victoria Jones18
testified that this requirement was not being met due to lack of staff.19 Consistent with Mr.
Richards’ testimony, Ms. Jones agreed that the DHHR’s cost for contract workers is
significantly higher than what it would expend on full-time employees in the same positions.
She further testified that the DHHR “failed to implement the [2009] Agreed Order[;]” had
not taken any action on the health service worker classifications to keep the DHHR in
compliance with either the 2009 Agreed Order or West Virginia Code § 5-5-4a; and had not
conducted any salary analysis since 2009. According to Ms. Jones’s testimony, the DHHR
17
Mr. Richards testified that Bateman must maintain compliance with DOP policies
and rules in relation to the hiring process. Although he was aware of DOP’s open fora during
which the DHHR could make suggestions or requests of the DOP in order to meet patient
obligations, he had never participated.
18
At the time of this hearing, Ms. Jones had become the commissioner for the Bureau
of Behavioral Health and Health Facilities, rather than its acting-commissioner.
19
Mr. Richards testified that the staff position responsible for coordinating community
integration had been vacant since April 2012, and that community integration was being
overseen by the hospital’s clinical director. It appears that sometime after the April 2014
hearing, a person was hired for the position in charge of community integration.
14
had not requested either hiring incentives or special hiring rates from the DOP for the direct
care employees during the last four years, other than for nursing classifications, and perhaps
psychiatrists, even though the DHHR has the ability to seek “step rate” increases or wage
increases from the DOP within budgetary allocations. While agreeing that all direct care
classifications at Bateman and Sharpe are not competitive, Commissioner Jones viewed
competitive salaries as a temporary solution to the chronic recruitment and retention issues,
suggesting that the use of sick and annual leave and attendance issues need to be addressed
at the policy level.
Based upon all of the evidence received, the circuit court entered an order on
June 3, 2014,20 in which it observed that many of the problems that existed in 2009 continued
to exist in 2014. The circuit court noted that Bateman and Sharpe continue to require direct
care workers to perform significant, routine, and consistent amounts of mandatory overtime,
in addition to voluntary overtime, due to the persistent and chronic understaffing issues; that
the refusal of mandatory overtime can be a basis for termination; that some direct care
employees are required to work “twelve to sixteen hour shifts, two to three days in a row”;
20
The parties refer to this order as having been entered on June 2, 2014. This order
was entered by the circuit court clerk on June 3, 2014, which is the date that will be used by
this Court. See Syl. Pt. 4, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819 (1974) (“In a
proceeding governed by the Rules of Civil Procedure, a judgment rendered in such
proceeding is not final and effective until entered by the clerk in the civil docket as provided
in Rule 58 and Rule 79(a) of the Rules of Civil Procedure.”).
15
and that an Executive Summary generated by Sharpe states that “[t]he use of mandatory and
voluntary overtime is causing turn-over and morale issues.”21 The circuit court specifically
noted that chronic understaffing has meant that patients are unable to access community
integration opportunities, which is “an essential component of patient care that ensures that
patients do not become institutionalized and are able to reintegrate into a community-based
setting as quickly as possible.”22
Regarding the DHHR’s continued failure to offer competitive wages to the
direct care workers at Sharpe and Bateman as required by prior orders and West Virginia
Code § 5-5-4a, the circuit court found that recruitment of fulltime staff is greatly hindered
by the DHHR’s internal policies.23 The circuit court recounted the evidence demonstrating
21
The circuit court found that “[r]ather than hiring additional full-time employees, the
[DHHR] employ[s] large numbers of temporary employees and contract workers to fill the
vacancies at Sharpe and Bateman.” The circuit court explained that temporary employees,
who are also required to work overtime, typically work three to five months, one of which
is spent in training. In addition, the circuit court found that the DHHR pays out-of-state
contracting agencies millions of dollars each year for contract workers, paying a significantly
higher hourly wage than what the DHHR expends on full-time employees in the same direct
care positions, even when including benefits.
22
Specifically, the lower court found that the DHHR had “violated the standards of
patient care, as required by West Virginia Code State Regulations sections 64-59-1 to -20 and
the 2009 Agreed Order paragraph 10(d), by failing to provide community integration
activities as required by West Virginia C.S.R. § 64-59-14.4.”
23
DHHR officials testified regarding its internal policy that a new employee’s starting
salary can never be more than the average salary of other employees in the same positions,
regardless of the new hire’s experience. Therefore, a salary increase for current employees
(continued...)
16
that Cabell-Huntington Hospital, a regional market competitor to Bateman, pays its similar
classes of employees significantly higher starting salaries, a cost of living increase each year,
and raises tied to years of service,24 in addition to conducting an annual review and increase
of its average wages.
Rather than the DHHR seeking permission from the DOP to be able to offer
special hiring rates, including rates in excess of the “market rate,” hiring incentives, and
retention incentives,25 the circuit court further found that the base starting rates for three
classes of direct care employees–HSTs, HSWs, and HSAs–were the same as those in effect
prior to the 2009 Agreed Order. Consequently, the circuit court concluded that the DHHR
was in violation of the 2009 Agreed Order because it had taken “no steps to offer competitive
23
(...continued)
raises the average salary, which can mean a higher salary for new hires.
24
As the circuit court recounted in its order, the evidence showed that in 2013, the six
major hospitals in the Huntington, West Virginia, area paid an average hourly wage of
$13.34 for a nursing assistant (compared to Bateman’s base starting salary of $9.37 per hour
for a HSW); $17.06 for an LPN (compared to Bateman’s base starting salary of $12.40 per
hour); and $27.29 for an RN (compared to Bateman’s base starting salary of between $16.47
and $22.03 per hour for its RN classifications).
25
Various DHHR employees, as well as the assistant director of classification and
compensation for the DOP, testified concerning the interaction between the DHHR and the
DOP on employment related issues. For example, while the DOP has sole authority to
determine employee position classification and the salaries for each pay grade, classification
determinations are made with input from the DHHR. Further, the DOP’s “pay plan
implementation policy” allows the DHHR flexibility in hiring and establishing minimum
staring salary rates.
17
market wages in order to recruit and retain full time employees, as required by paragraph 10
of the 2009 Agreed Order and West Virginia Code § 5-5-4a.” The court further found that
the DHHR had failed to comply with the December 18, 2012, Order, which requires a
“special starting salary for the three classes of direct care employees, as set forth in
Attachment B to the 2009 Agreed Order.”
Upon concluding that the DHHR’s “violation of patient care requirements is
caused by the [DHHR’s] failure to maintain adequate and appropriate fulltime staffing at
[Bateman and Sharpe],” the circuit court directed the DHHR to develop a plan,26 in
consultation with the court monitor and the respondents, that will
(1) significantly reduce the number of staff vacancies at Sharpe
and Bateman, (2) discontinue the practice of mandatory
overtime except in exceptional and infrequent contexts; and (3)
discontinue the reliance on temporary employees and contract
workers to fill the vacant positions. Among other things, the
plan should utilize the currently available options, as set forth in
the policies of the Division of Personnel, to implement special
hiring rates and incentives in order to recruit fulltime direct care
employees. In doing so, the [DHHR] shall consider prevailing
market wages in the respective market areas for the two
Hospitals. The Plan must further include requests to the
Division of Personnel for retention incentives to encourage
retention of existing hospital employees. The plan must provide
a schedule for future proposals to the Division of Personnel to
26
At the conclusion of the April 29, 2014, hearing, the circuit court verbally directed
the DHHR to prepare this plan in consultation with the respondents, the Governor’s Office
and the DOP, warning against a subsequent return to court with a plan requiring legislative
approval given its years of delay to act on these matters.
18
ensure that base salaries remain competitive and that additional
retention incentives are distributed.
The circuit court further ordered the DHHR to “immediately implement a special starting
salary for the three categories of health service workers as reflected in Attachment B to the
2009 Agreed Order.”27 Lastly, the circuit court ordered the DHHR to provide community
integration opportunities to all eligible patients at both Sharpe and Bateman and to develop
policies and procedures for community integration that adhere to West Virginia C.S.R. § 64­
59-14.
On June 11, 2014, the parties appeared before the circuit court during which
the DHHR presented three proposals, each requiring years to implement as well as legislative
approval.28 After hearing the proposed plans, the circuit court held the DHHR in contempt,
which finding was confirmed in its June 27, 2014, order.29 To purge itself of contempt, the
27
This was also part of the directive in the circuit court’s order entered December 18,
2012, which was not appealed.
28
These three proposals were: (1) privatization of Bateman and Sharpe; (2) a
“contracted employee option” where all direct care workers would be contracted out to
private companies; and (3) a “hybrid” approach where current employees would be phased
in as “classified-exempt.” The effect of the hybrid approach would be to remove current
employees from civil service classification and the protections afforded by such
classification.
29
In its June 27, 2014, order, the circuit court found that Bateman and Sharpe had
“failed to recruit and retain direct care staff, failed to comply with Court Orders regarding
pay raises for direct care workers, failed to offer community integration services, and have
consequently failed to provide adequate direct care to patients at the Hospitals.”
19
DHHR had only to present a remedial plan that could be implemented immediately utilizing
current DOP policies and procedures.
The DHHR returned to the circuit court on August 1, 2014, for a hearing
during which it presented its proposed plan. The plan provided, inter alia, for increased
salaries for direct care workers at Sharpe and Bateman that are competitive with prevailing
market wages in the hospitals’ respective geographical areas based upon regional market
surveys, and for periodic retention incentives for employees who remain employed in their
job classification for three or more years. Commissioner Jones testified that the DHHR could
implement its plan using existing DOP policies and procedures, and that nothing in the plan
required legislative approval. Monica Robinson, the interim director of the DHHR’s Office
of Human Resources Management, testified that potential sources of funding for the plan
included “various funds . . . within the [DHHR] . . . as controlled by the Secretary” and that
if these proved insufficient, the DHHR would seek additional funding from the Legislature.
Near the conclusion of this hearing, the circuit judge commented on the
DHHR’s proposed plan as being the “appropriate method,” adding that
[i]f there are other solutions that the [DHHR] wishes to proceed
to look at with the legislature, . . . they are free to do that, but
that’s not to delay or cause any disruption in the implementation
of this plan until such time as the legislature and executive
decide some other plan is more appropriate, and then the Court
will review that based on wherever we are at that time.
20
. . . this is the plan that you all developed. I don’t intend
to usurp the authority of the executive or the legislative branch.
. . . I want to solve the immediate problem that we have for the
care of this very vulnerable population. And moving in the
direction as the [DHHR] has outlined appears to be within their
means and within their power to begin to move on at a
deliberate pace, and I think that solves the problem that I have
with the prior plans.
The DHHR’s counsel responded that this plan was not preferred by the DHHR, at which
point the court reiterated that it was “not foreclosing [the DHHR from] pursuing other plans
if that’s what you want” but emphasized that “this one needs to be implemented with
deliberate speed.”
On August 13, 2014, the circuit court entered an order finding the DHHR had
purged itself of the contempt “so long as [it] execute[s] [its] proposed plan.” In this same
order, the circuit court echoed comments it previously expressed during the August 1, 2014,
hearing:
13. The [DHHR] may wish to pursue other solutions
which would require legislation to implement. Nothing in this
Order or any prior Orders of this Court impedes the ability of
the Legislature to change the manner in which the Hospitals are
operated, nor do the Orders prohibit the [DHHR] from seeking
such legislative action.
14. Until such time as the Legislature changes the law,
however, the current plan, which utilizes the current legal
structure to address the ongoing violations of the 2009 Agreed
Order, should be implemented without delay or disruption.
21
Through a second order entered on August 13, 2014, the circuit court refused the DHHR’s
motion for a stay of the court’s orders entered on June 3 and 27, 2014, as well as its oral
ruling made during the August 1, 2014, hearing approving the DHHR’s proposed plan;30 it
also refused to declare those rulings to be partial final judgments.
The appendix record reflects that additional hearings were held during the Fall
of 2014 to monitor the DHHR’s progress on its plan, which was approved by the State
Personnel Board on October 10, 2014. During the hearing held on October 14, 2014, the
DHHR advised that the requisite regional market studies had been completed; that new salary
ranges had been established; and that new starting salaries and raises for existing employees
were expected to be implemented by January 1, 2015. The DHHR further advised that it
anticipates funding for the increased salaries to be obtained, in part, through savings in
expenditures currently being paid to short-term contract employees.31
The DHHR appeals the circuit court’s June 3, 2014, and August 13, 2014,
orders.32 The Court has consolidated these appeals for consideration.
30
The DHHR also sought a stay in this Court, which was refused by order entered on
August 26, 2014.
31
The DHHR again indicated that additional funding could be sought from the
Legislature.
32
Two orders were entered by the circuit court on August 13, 2014. One purged the
(continued...)
22
II. Standard of Review
In reviewing the challenged orders issued by a lower court, we will review the
“ultimate disposition under an abuse of discretion standard. We review challenges to
findings of fact under a clearly erroneous standard; conclusions of law are reviewed de
novo.” Syl. Pt. 4, in part, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
Under these well-established precepts, we proceed to address the parties’ arguments to
determine whether the lower court committed error.
III. Discussion
A. Appellate Jurisdiction
We first address the parties’ arguments regarding the Court’s appellate
jurisdiction over the rulings subject to this appeal. In one of its August 13, 2014, orders, the
circuit court refused to declare its June 3 and 27, 2014, orders as a partial final judgment
under Rule 54(b).33 The lower court similarly ruled with regard to its oral ruling made during
the August 1, 2014, hearing, which approved the DHHR’s proposed plan for immediate
32
(...continued)
DHHR of contempt and confirmed the oral ruling made during the August 1, 2014, hearing
approving the DHHR’s proposed plan, and the other refused the DHHR’s request for a stay
and for entry of partial final judgments. Both of these orders are attached to the DHHR’s
notice of appeal for case number 14-0845.
33
Rule 54(b) of the West Virginia Rule of Civil Procedure provides, in part, that “ the
court may direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just reason for delay and
upon an express direction for the entry of judgment.”
23
implementation. The circuit court reasoned that these orders were not final because they
continued to address the same problems that had existed since 2009. Both parties offer
varying theories under which this Court should exercise its appellate jurisdiction,34 as the
DHHR contends,35 or should refuse to do so, as the respondents assert.
Although not cited by the parties, in syllabus point five of Riffe v. Armstrong,
197 W.Va. 626, 477 S.E.2d 535 (1996), we held that
[a]n order dismissing fewer than all of the parties or
fewer than all the claims in a civil action which contains a
determination by a circuit court that the order not be considered
final will be reviewed by this Court only upon application for a
writ of prohibition. The party seeking such a writ must show
any such abuse clearly and convincingly, because this Court
greatly favors having before it all matters in controversy when
reviewing the issues raised before it.
Id. (emphasis added). At first blush, Riffe would suggest that we decline to consider the
instant appeals because the DHHR should have sought our original jurisdiction by seeking
34
Our appellate jurisdiction extends to “civil cases at law where the matter in
controversy, exclusive of interest and costs, is of greater value or amount than three hundred
dollars” and we “shall have such other appellate jurisdiction, in both civil and criminal cases,
as may be prescribed by law.” W.Va. Const. art. VIII, § 3; see also W.Va. Code § 51-1-3
(2008) (“[the Supreme Court of Appeals] shall have appellate jurisdiction in civil cases
where the matter in controversy, exclusive of costs, is of greater value or amount than one
hundred dollars” as well as “such other appellate jurisdiction . . . as may be prescribed by
law.”).
35
One of the theories offered by the DHHR in support of our appellate jurisdiction is
the collateral order doctrine. We find that this doctrine cannot be applied because the orders
on appeal do not resolve issues that are “completely separate from the merits of the action.”
Credit Acceptance Corp. v. Front, 231 W.Va. 518, 523, 745 S.E.2d 556, 561 (2013).
24
extraordinary relief in prohibition. While we could consider these appeals as seeking relief
in prohibition, as we have done in other matters,36 we find that course of action unnecessary
for the reasons set forth below.
The case at bar is distinct from the personal injury action in Riffe,37 or any other
civil action, where the litigation is likely to reach its finality within an indefinite, but
generally reasonable amount of time. In contrast to the typical litigation matter such as that
involved in Riffe, it is essentially impossible for this Court, or even the lower court, to have
“all matters in controversy when reviewing the issues raised before it” in the context of this
institutional-centered litigation. Moreover, unlike a typical civil action, institutional reform
litigation involves court orders requiring prospective action by the government.
The institutional reform undertaken in the case at bar has been, and is being,
achieved through the circuit court’s entry of a variety of orders over the course of decades.
As reflected in the procedural history set forth above, we have already reviewed numerous
36
See State ex rel. Register-Herald v. Canterbury, 192 W.Va. 18, 19 n.1, 449 S.E.2d
272, 273 n.1 (1994) (“In this case, it is logical to treat the appeal . . . as a prohibition. . . .”).
37
Although the claims asserted in Riffe arose in the context of an involuntary
commitment, it was a civil action seeking damages for false imprisonment and for medical
malpractice arising out of a physician’s certificate for the involuntary commitment
proceedings.
25
orders entered in this matter.38 Most recently, we ruled on the DHHR’s appeal in Matin V,
notwithstanding the absence of any language expressly providing that the order at issue was
a “final” ruling. Because the process of formulating and implementing various remedies in
this proceeding has required extraordinary expenditures of time and funds by the parties; the
circuit court; and this Court, we must necessarily assume a practical approach to our
appellate jurisdiction. At the same time, we must act in recognition of the circuit court’s
discretion to ensure efficient judicial administration and justice for the parties. During the
pendency of this litigation, the circuit court has clearly gained an intimate understanding of
the parties, the subject hospitals, and the changes required to achieve the goals initially
identified in Matin I and the litany of commitments made by the DHHR through the 2009
Agreed Order.
Certainly, we do not intend to exercise our appellate jurisdiction over every
order entered in this matter. Nonetheless, this Court must be able to review orders that are
properly demonstrated to have the necessary degree of finality in the context of this long-
standing institutional reform litigation to warrant review, and certainly those which
necessitate the expenditure of significant state monies. Otherwise, a state agency may be
denied timely appellate review. As we have previously explained, where “an order . . .
38
Similarly, we reviewed various circuit court orders over a period of years in the
long-term prison reform litigation that began with Crain v. Bordenkircher, 176 W.Va. 338,
342 S.E.2d 422 (1986).
26
completely disposes of any issues of liability . . . the absence of language prescribed by Rule
54(b) . . .’directi[ng] . . . entry of judgment’ will not . . . bar appeal provided that this Court
can determine from the order that the trial court’s ruling approximates a final order in its
nature and effect.” Syl. Pt. 2, in part, Durm v. Heck’s, Inc., 184 W.Va. 562, 401 S.E.2d 908
(1991). Accordingly, we now hold that in the context of institutional reform litigation, this
Court may choose to exercise its appellate jurisdiction over an order entered by the circuit
court that it deems to approximate a final order by its nature and effect.
The record reflects that subsequent orders have been entered with regard to the
DHHR’s progress on implementing its plan, and that further rulings are contemplated.
Notwithstanding the possibility of subsequent decrees, we find that the orders being appealed
establish responsibility on the DHHR for a remedy that requires administrative action and
the expenditure of significant funds to meet obligations ineluctably established by prior
orders, statutes, and regulations. Accordingly, we conclude that the DHHR has demonstrated
that appellate review is warranted; therefore, we reverse the circuit court’s August 13, 2014,
order to the extent it refused to certify its prior rulings on appeal as partial final judgments.
B. Separation of Powers
In the current consolidated appeals, the DHHR argues, as it has in prior
appeals, that the circuit court wrongly decided questions entrusted to the legislative and
27
executive branches. Specifically, the DHHR argues that the “parameters” set by the lower
court for the DHHR’s plan required more than working towards a reduction in the use of
overtime and temporary employees, as contemplated under paragraph 10(b) of the 2009
Agreed Order.39 Instead, the DHHR contends that the lower court directed it to increase the
pay of direct care workers to market rates and to “restructure”40 employee salaries and job
classifications, without providing it with an opportunity to develop any necessary, remedial
plan to solve overtime and permanent staffing issues. Citing various institutional reform
cases, including Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971),
the DHHR asserts that a court can devise its own plan in institutional reform cases only if the
executive branch agency has been given multiple opportunities to devise a plan or
mechanism to correct its past violations in prisons, schools, and other state-operated
facilities. The DHHR adds that whether the plan currently being implemented is better than
the proposals it made during the June 11, 2014, hearing is irrelevant because where there is
a good faith difference of opinion, “differences should be resolved by the direction of the
[DHHR] and not by the courts.” Matin I, 168 W.Va. at 259-60, 284 S.E.2d at 238.
Given the DHHR’s admitted failure to comply fully with either the 2009
Agreed Order or the December 18, 2012, order, the respondents argue that the circuit court
39
Paragraph 10(b) provides that the “DHHR will use only full time employees working
regular shifts or voluntary overtime except in exceptional and infrequent contexts.”
40
This term is used by the DHHR; it is not included in the circuit court’s order.
28
had the authority to act, just as it did regarding the implementation of a TBI Medicaid waiver
program and trust fund in Matin V.41 The respondents emphasize that despite the DHHR’s
agreed upon commitments made in 2009 to discontinue its use of mandatory overtime and
temporary workers, as well as its agreement that the best way to meet that commitment was
through competitive salaries realized through wage increases, it failed to honor either of these
obligations. The respondents cite evidence in the record demonstrating how DOP policies
and procedures could be used to correct these problems and how the DHHR admittedly made
no effort to work with the DOP to achieve these objectives.42 Upon receiving all of this
evidence, the respondents assert that rather than mandating a specific remedy, the circuit
court simply ordered the DHHR to develop a plan to ensure compliance with its prior
agreements and the law. Because increased salaries were again cited by the parties during
the April 2014 hearings as a solution to employee recruitment and retention issues, the
respondents argue that the circuit court’s guidance in this regard was appropriate and did not
encroach on the authority of either the executive or the legislative branch. In particular, the
respondents note that the circuit court made clear that none of its orders preclude the DHHR
from working with the Legislature to develop a different plan for the court’s consideration.
41
See supra note 8.
42
There was evidence that through the DHHR’s efforts with the DOP, the salaries of
RNs and psychiatrists at Bateman and Sharpe were increased to rates that actually exceeded
what was required under the 2009 Agreed Order. However, the DHHR did not work with
DOP to raise the salary rates for the other direct care workers–the HSTs, HSWs, and
HSAs–as required under the 2009 Agreed Order.
29
In addressing the parties’ arguments, we first observe that the separation of
powers doctrine states, in part, that “[t]he legislative, executive and judicial departments shall
be separate and distinct, so that neither shall exercise the powers properly belonging to either
of the others; nor shall any person exercise the powers of more than one of them at the same
time[.]” W.Va. Const. art. V, § 1. As we concluded in Matin I, IV, and V and as discussed
below, we again find that this doctrine is not implicated in the instant appeals.
In Matin IV, we found that “[t]he regular staff suffers from extremely low
morale due to forced overtime and working with unqualified temporary workers with
questionable backgrounds.” Matin IV, 223 W.Va. at 384, 674 S.E.2d at 245. We further
observed that “many of the same issues that were present in 1981 at the time of the Matin I
decision continue to be problems today, according to the Ombudsman’s report. . . .
includ[ing] . . . the numerous staffing issues . . . .” Id. at 285, 674 S.E.2d at 246. We also
observed that “the term ‘Dickensian Squalor’ . . . used to describe the hospital in 1981 [was]
an apt description . . . that emerges from the Ombudsman’s July 3, 2008 report.” Id.
Thereafter, the parties were directed to participate in mediation that resulted in several
agreements, subsequently memorialized in the 2009 Agreed Order.
Despite the 2009 Agreed Order, the DHHR exhibited an extraordinary lack of
initiative to oversee that its commitments were met. Had it actually undertaken to develop
30
a formal plan of action in 2009, there would likely have been no need for the parties’ return
to the circuit court in 2014 on these very same issues. Indeed, the circuit court’s frustration
with the DHHR was surely exacerbated upon learning of the DOP policies and procedures
that could aid the DHHR in achieving compliance—tools that were untouched during the
intervening years.43
Compelling the DHHR to develop a plan to meet its previous commitments and
the law, after years of delay, does not demonstrate an encroachment on executive branch
authority. Instead, it supports the DHHR’s decision to enter into the contractually binding
2009 Agreed Order. Given the DHHR’s failure to correct problems that have existed for
more than thirty years, the institutional reform cases cited by the DHHR44 would arguably
support the circuit court crafting a plan for the DHHR’s implementation. Nonetheless, the
lower court’s June 3, 2014, order directed the DHHR to develop a plan to “(1) significantly
reduce the number of staff vacancies at Sharpe and Bateman, (2) discontinue the practice of
mandatory overtime except in exceptional and infrequent contexts; and (3) discontinue the
reliance on temporary employees and contract workers to fill the vacant positions.” What
cannot be overlooked is the fact that the DHHR had already committed itself to accomplish
43
Again, the DHHR worked with the DOP to raise the salaries for RNs and
psychiatrists pursuant to the 2009 Agreed Order, including special hiring rates, but not for
the other direct care worker classifications.
44
See, e.g., Swann, supra.
31
each of these goals during the mediation, as reflected in the 2009 Agreed Order. The circuit
court also mandated the DHHR to “consider prevailing market wages in the respective
market areas for the two Hospitals.” This requirement, along with the “special hiring rates
and incentives” for the direct care workers, were clearly intended to bring the DHHR into
compliance with prior orders, as well as West Virginia Code § 5-5-4a.45 Given the stark
absence of any constructive planning to date, let alone any demonstration of long-range
planning efforts, the circuit court reasonably acted within its discretion by directing the
DHHR to create a schedule for future proposals to the DOP to ensure that base salaries
remain competitive and that additional retention incentives are distributed46 to remain
compliant with agreed to commitments, prior orders, and statutory obligations.
45
As indicated previously, the Legislature expressly recognized in this statute the
“extreme difficulty” that Sharpe and Bateman have in recruiting and retaining direct care
workers; mandated the DHHR and the DOP to develop “pay rates and employment
requirements to support the recruitment and retention” of psychiatrists, nurses, HSTs, HSWs,
HSAs, or other positions at Bateman and Sharpe; and required those pay rates to reflect
“regional market rates for relevant positions.” W.Va. Code § 5-5-4a.
46
The DHHR asserts that West Virginia Code § 5-5-4a does not create a continuing
obligation to keep pay rates in line with regional market rates for the direct care employees
at the subject hospitals. We find no language in that statute supports this argument. See
Martin v. Randolph Cty. Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414 (1995),
quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“‘[C]ourts must
presume that a legislature says in a statute what it means and means in a statute what it says
there.’”). Moreover, it is unclear how the DHHR believes that its chronic staffing issues can
be resolved on a long-term basis without competitive pay rates.
32
Based on our review, the only “new” directive included in the June 3, 2014,
order is the requirement that the DHHR comply with its earlier agreements by utilizing
methods and procedures previously established by the legislative and executive branches to
address the personnel problems at Bateman and Sharpe. See W.Va. Code § 5-5-4a; W.Va.
Code §§ 29-6-1 to -28 (establishing civil service system and requiring DOP to create system
of classification and compensation for civil service employees); W.Va. C.S.R. §§ 143-1-1
to -26 (adopting DOP rules for purpose of implementing W.Va. Code §§ 29-6-1 to -28.).
Consequently, we find this requirement to be well within the circuit court’s authority
considering the DHHR’s prior unfulfilled agreements, the pertinent statutory and regulatory
mandates discussed herein, and the continued adverse impact that the DHHR’s delay has had
on patient care.47
That the DHHR can be compelled to act in accordance with its prior
agreements, as well as prior court orders, is beyond dispute. See Matin IV, 223 W.Va. at 381,
674 S.E.2d at 242 (“The circuit court . . . has the power to enforce a Consent Order it
47
As indicated above, Bateman’s clinical director testified in 2009 that patients were
being administered increased amounts of medication, a side effect of which is sedation, to
treat their increased levels of anxiety attributable to understaffing and patient overcrowding.
In 2014, the chief executive officer at Bateman could not “rule out” the possibility that
patients were continuing to be sedated for these same reasons. The patient overcrowding is
partially attributable to the failure to provide patients with the community integration services
required under West Virginia C.S.R. § 64-59-14.4. The evidence showed that patients were
not being evaluated to determine whether they would be eligible to receive community
integration services because no such services were planned due to the chronic understaffing.
33
previously issued.”). Furthermore, “a trial court always has inherent authority to regulate and
control the proceedings before it and to protect the integrity of the judicial system.” Clark
v. Druckman, 218 W.Va. 427, 435, 624 S.E.2d 864, 872 (2005); see also Beto v. Stewart, 213
W.Va. 355, 362, 582 S.E.2d 802, 809 (2003), quoting Bartles v. Hinkle, 196 W.Va. 381,
389, 427 S.E.2d 827, 835 (1996) (“[A] trial court has broad authority to enforce its orders .
. . .”). Indeed, it is axiomatic that a circuit court has the inherent power to do those things
necessary to compel a party’s compliance with prior agreements, to enforce its prior orders,
and to protect the court from acts obstructing the administration of justice, including the use
of its contempt powers.
The instant, and prior, appeals in this litigation depict an agency that is either
well-intended, or one that makes agreements as the exigencies demand; in either case, its
follow-through efforts are abysmal. The DHHR’s pattern of failing to fulfill its commitments
and obligations undermines the efficacy of such agreements and further serves to discourage
negotiation-based resolution. Despite being held in contempt for its failure to develop a plan
for immediate implementation after years of noncompliance, the DHHR continues to assert
that the plan it developed was offered only to purge the contempt, but it was not its preferred
course of action.48 Certainly, the executive branch should lead reform efforts, but courts are
48
The appendix record reflects that all parties agreed in 2009, 2012, and 2014 that
offering competitive market rate salaries to direct care workers would aid in correcting the
chronic staffing issues. While there was some testimony from the DHHR suggesting that the
(continued...)
34
by necessity required to intervene when those efforts fall short. See, e.g., State ex rel. Smith
v. Skaff, 187 W.Va. 651, 655, 420 S.E.2d 922, 926 (1992) (directing Division of Corrections
to develop plan to provide “some temporary arrangement to meet its obligation to house and
detain all those lawfully sentenced to a state penal facility until such time as the new prison
[the Mt. Olive Correctional Complex] is completed.”); Crain v. Bordenkircher, 180 W.Va.
246, 248, 376 S.E.2d 140, 142 (1988) (addressing prior rulings that conditions of
confinement violated constitutional prohibition against cruel and unusual punishment and
concluding that if Court failed to act “after more than eight years of waiting for the
legislative and executive branches to act to solve the problem, we would be abdicating our
responsibility to uphold and guard the Constitutions of the United States and West
Virginia[;]” and compelling construction of new prison by July 1, 1992); Crain v.
Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986) (finding Department of Corrections’
compliance plan devised under consent decree to be inadequate and ordering future remedial
48
(...continued)
state’s leave policies also contribute to the staffing problems, favorable leave policies could
arguably be used by the DHHR as an additional recruitment incentive. Moreover, the
problem appears not to be the leave policies, per se, but the pervasive and routine use of
mandatory overtime due to habitual understaffing. Even the DHHR agrees that mandatory
overtime is harming employee morale; is contributing to employee turnover; and is probably
causing employees to use their leave to avoid being required to work a sixteen-hour, rather
than a scheduled eight-hour, work day. If recruitment of individuals for permanent direct
care positions can be achieved through competitive market salaries, and perhaps favorable
leave policies, as well, then the need for temporary and contract workers, as well as
mandatory overtime, would be reduced to “exceptional and infrequent contexts.”
35
action by directing Department of Corrections to revise its compliance plan to include
development of new facilities).
In the case at bar, the DHHR seemingly ignores the fact that when it appeared
before the circuit court in 2014, five years had elapsed during which it essentially sat idle.
It certainly had not formulated any concrete plan to meet its commitments and other court­
ordered, regulatory, and statutory obligations. Although the circuit court certainly made clear
that the DHHR could move forward with developing another plan for the court’s
consideration, either with or without legislative involvement, it made equally clear that
additional years of noncompliance would not be condoned. We agree.
It is both inexcusable and disheartening for the DHHR to be before this Court
on some of the same issues that were identified more than thirty years ago—issues that
continue to adversely impact the very vulnerable patient population committed to our state
mental health hospitals. “[W]hen the executive persists in indifference to, or neglect or
disobedience of court orders . . . it is the executive that could more properly be charged with
contemning the separation principle.” Perez v. Boston Housing Auth., 400 N.E.2d 1231,
1252 (Mass. 1980). Consequently, we are compelled to find that requiring the DHHR to
develop a plan for immediate implementation, which would allow it to comply with court-
ordered, statutory, and regulatory obligations–obligations previously consented to by the
36
DHHR–does not transform the DHHR’s plan into the circuit court’s plan. Neither does it
violate the separation of powers doctrine.
C. Paragraph 10(a) of the 2009 Agreed Order
Paragraph 10(a) of the 2009 Agreed Order states, in part, that the “DHHR shall
provide for increased pay for direct care workers at Bateman and Sharpe in order to (i) be
able to recruit staff and retain existing staff . . . .” (emphasis added.). The DHHR argues
that it did not view paragraph 10(a) as contemplating increased staring salaries for future
hires in direct care positions; rather, this language only applied to increased salaries for
existing employees. To the extent there is any doubt as to the meaning of paragraph 10(a),
the DHHR asserts that constitutional considerations require resolution in its favor. The
DHHR adds that requiring the state to expend additional funds not previously approved or
anticipated raises questions concerning the circuit court’s power to limit the Legislature’s
authority over the DHHR’s budget.
The respondents argue that the circuit court’s unappealed order entered
December 18, 2012, settled any issue as to whether increased salaries for new employees was
required. The respondents assert that the lower court compelled the DHHR’s compliance
with the 2009 Agreed Order in its December 18 ruling by ordering that HSTs, HSWs, HSAs,
37
and LPNs employed “on or after January 1, 2013” were entitled to pay raises. Because this
language clearly contemplates new employees, the respondents maintain the issue is moot.
The DHHR’s extreme difficulty in recruiting persons to permanent positions
at Bateman and Sharpe is undisputed.49 Consequently, the DHHR’s argument that paragraph
10(a) does not require it to increase base salaries for new employees is simply unsupportable
when considering the impetus behind both the 2009 Agreed Order and West Virginia Code
§ 5-5-4a. Testimony offered by the DHHR during the hearings held in 2009, 2012, and 2014
clearly demonstrated a unanimous belief that increasing salaries would aid in employee
recruitment, as well as retention.
The plain language of paragraph 10(a) of the 2009 Agreed Order expressly
requires the DHHR to increase pay for direct care workers in order to “be able to recruit
staff[.]” By common definition, “recruit” means to “enroll (someone) as a . . . worker in an
organization,”50 or to “secure the services of: engage, hire.”51 Further, West Virginia Code
49
The appendix record reflects that when a DHHR official was questioned concerning
the recruitment tools currently being utilized to attract employees, he responded by reciting
traditional methods, such as advertising, attending employment fairs, and maintaining
relationships with schools. The circuit court noted that these were the same tools being used
when the parties were before the court in 2009.
50
See New Oxford American Dictionary 1460 (3rded. 2010).
51
See Merriam-Webster’s Collegiate Dictionary 1041 (11thed. 2005).
38
§ 5-5-4a provides that the DHHR, in conjunction with the DOP, “shall develop pay rates and
employment requirements to support the recruitment and retention of” direct care workers
at Bateman and Sharp. Id. (emphasis added). It is axiomatic that “the word ‘shall,’ in the
absence of language in the statute showing a contrary intent on the part of the Legislature,
should be afforded a mandatory connotation.” Syl. Pt. 1, Nelson v. West Virginia Pub.
Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982).
Consequently, we find no merit to the DHHR’s argument that paragraph 10(a)
of the 2009 Agreed Order did not contemplate an increased salary rate for new direct care
employees. Further, we agree with the respondents that to the extent the DHHR had any
doubt in that regard, it was resolved and clarified through the circuit court’s order entered
December 18, 2012,52 stating: “employees in the LPN and Health Service Trainees, Workers,
and Assistants classifications employed on or after January 1, 2013, are entitled to pay raises
. . . as provided for in the Order entered December 11, 2012.” Evidence presented during the
April 2014 hearings indicated that the DHHR provided the required raises to those employed
on January 1, 2013, but failed to increase the starting salaries for those individuals hired after
that date.
52
The DHHR conceded during a hearing held in October of 2012 that the HSTs,
HSWs, and HSAs did not receive the salary increases required under the 2009 Agreed Order.
39
Notwithstanding the DHHR’s clear obligations under the 2009 Agreed Order,
the December 2012 orders, and West Virginia Code § 5-5-4a, the evidence demonstrated that
in 2014, the base starting salaries for the HSTs, HSWs, and HSAs remain at the same rates
in effect prior to the 2009 Agreed Order. Consequently, we find that the circuit court did not
abuse its discretion by compelling the DHHR to develop a plan that included the means to
accomplish what it agreed to do five years earlier: increase salaries of direct care workers
at Bateman and Sharpe in order to be able to recruit staff and retain existing staff and
eliminate the pervasive and excessive use of mandatory overtime and temporary workers.53
See Matin IV, 223 W.Va. at 381, 674 S.E.2d at 242 (“The circuit court also has the power
to enforce a Consent Order it previously issued.”); Syl. Pt. 1, in part, Seal v. Gwinn, 119
W.Va. 19, 191 S.E. 860 (1937) (“ A court may . . . enter such orders and decrees as may be
necessary to enforce [prior] decrees[.]”).
Turning to the DHHR’s budgetary argument, as we explained in Matin I,
“[w]hen the Legislature enacts a law giving a group of individuals a clear and explicit right,
there is also created an implicit corresponding duty on the part of the State to grant or enforce
that right.” Matin I, 168 W.Va. at 257, 284 S.E.2d at 237. Indeed, “[i]nherent in the
republican form of government established by our State Constitution is a concept of due
process that insures that the people receive the benefit of legislative enactments.” Syl. Pt.
53
Under West Virginia Code § 5-5-4a, the salaries of direct care workers at Bateman
and Sharpe must be at “regional market rates.”
40
1, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1982). Consequently, “[a] legislatively
conferred right is an entitlement that cannot be arbitrarily abrogated by an executive officer.
Such a course of action, or in this case inaction, abhors the concept of rule of law.” Cooper
v. Gwinn, 171 W.Va. 245, 256, 298 S.E.2d 781, 792 (1981). In the context of inmates in our
state prisons, we stated that
the lack of funds is not a valid excuse for denying inmates, and
society as a whole, the constitutional right to the benefit of
legislative enactments which clearly establish the duty of the
Department of Corrections to rehabilitate individuals charged to
its care, and the concommitant [sic] right of those individuals to
demand the benefit of those laws.
Id., 171 W.Va. at 255, 298 S.E.2d at 791-92.
The Legislature has provided certain rights to patients confined in our state
psychiatric hospitals. W.Va. Code § 27-5-9. Accordingly, “[i]t is the obligation of the State
to provide the resources necessary to accord [patients] of State mental institutions the rights
which the State has granted them under W.Va. Code, 27-5-9 [1977].” Matin I, 168 W.Va.
248, 284 S.E.2d 232, syl. pt. 3. To that end, the appendix record reflects the DHHR’s intent
in the fall of 2014 to fund its court-approved plan within its current budget by using “various
funds . . . within the [DHHR] . . . controlled by the Secretary” and through savings on
expenditures that were otherwise paid to short-term contract employees. If those means
41
proved insufficient, then it planned to seek additional funding from the Legislature.54
Consequently, we find no merit in the DHHR’s contention that the circuit court has limited
the Legislature’s authority over the DHHR’s budget.
IV. Conclusion
The circuit court has conscientiously and with great care presided over this
institutional reform litigation since 1981. It is our fervent hope that the DHHR will assume
a proactive, rather than its customary reactive, role in this matter, and that through strong
leadership and innovation, it will move forward with alacrity in meeting its statutory and
regulatory obligations without the continuing need for judicial oversight.
For the reasons expressed herein, the June 3, 2014, and August 13, 2014, orders
of the Circuit Court of Kanawha County are hereby affirmed, in part, and reversed, in part.
AFFIRMED, in part, and REVERSED, in part.
54
If additional funding from the Legislature became necessary, presumably the DHHR
undertook the steps to secure that funding.
42