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DHHR faces thousands in contempt of court fines

CHARLESTON, W.Va. - Unless the state Department of Health and Human Resources rapidly grants pay raises to staffers caring for the mentally ill, the state's largest agency faces thousands of dollars a day in contempt of court fines.

The DHHR has repeatedly failed to comply with a 2009 court order meant to help state-run psychiatric hospitals hire and keep quality staff.

Kanawha County Circuit Judge Duke Bloom told the department three years ago to give $500,000 in raises to key employees at the state-run hospitals. The department gave some raises but has yet to fully obey the order.

The fed-up judge ordered DHHR this month to cut the bigger paychecks by Jan. 31 - or else.

If the department continues to fail, Bloom said he would hold the department in contempt of court and fine the department $50 per employee per day.

Bloom's contempt threat is a dramatic first in the so-called Hartley Case, a 1981 case that remains open and centers on the treatment of the mentally ill.

Bloom's threat covers hundreds of state hospital employees - between 280 and 400, according to differing sources. That means fines of up to $20,000 a day for DHHR. By March, DHHR could owe $1 million in court fines.

On Dec. 14, the same day DHHR was in court fighting efforts to improve conditions inside its mental health facilities, a shooter walked into a Connecticut elementary school and killed 20 children and six adults. The mass shooting sparked political talk about improving the nation's treatment of the mentally ill.

Currently, William R. Sharpe Jr. Hospital in Weston and Mildred Mitchell-Bateman Hospital in Huntington are shorthanded and rely on staffers to work long hours, according to court testimony and records.

Bateman alone pays more than $1 million a year in overtime.

One Sharpe employee testified in an October hearing that overworked employees at Sharpe "get a short fuse."

In summer 2009, Bloom told the state to give raises of $1,000 or $2,000 to about 280 hospital employees. (Participants in this month's hearing said the number of employees might be about 400 now.)

On Oct. 17, Bloom ruled DHHR must comply with his 2009 order by Jan. 1, 2013.

But instead of working to make the raises happen after three years of delay, DHHR sought to again delay the pay raises, citing logistical issues.

DHHR is on one side of the lawsuit. Charleston-based public interest law firm Mountain State Justice is on the other side.

DHHR's legal tactics led lawyers on the other side of the case to accuse the department of intentionally dilly-dallying to buy time to prepare legal filings designed to thwart Bloom's October ruling.

Here's how it went down, according to an order Bloom entered on Dec. 18:

On Oct. 17, Bloom told DHHR attorney Wendy Elswick to draft a document outlining his bench ruling from that day that the department must raise salaries by Jan. 1.

DHHR took six weeks to do that. On Nov. 28, the department circulated a two-page document on the ruling.

Nine days later, on Dec. 7, DHHR asked Bloom to reconsider the ruling - even though the two-page order had yet to be filed.

Four days later, on Dec. 11, the two-page order was officially filed. The same day, DHHR's Elswick filed a separate court document asking Bloom to halt enforcement of the very two-page order she had just written.

In that filing, DHHR argued it did not have time to give the pay raises before Jan. 1.

Deborah Weston, a lawyer for Mountain State Justice, blasted DHHR's behavior.

"It appears very little of that time was actually spent on the order," Weston said.

Instead, Weston accused DHHR of spending weeks preparing the Dec. 7 and Dec. 11 filings designed to thwart Bloom's October ruling.

Mountain State Justice attorney Jennifer Wagner said DHHR's delays were "really offensive."

"The department itself agreed these pay increases were necessary and set forth the amounts they were going to increase in 2009 and just blatantly turned around and didn't do it," Wagner said in a telephone interview Wednesday.

The department argues it has done a number of things to raise some employees' pay and that it faces logistical hurdles to raise pay for others.

DHHR also argues that no one complained about its failure to follow the 2009 order.

Mountain State Justice argues it did not know until recently that DHHR had reneged on following the 2009 order's requirements.

DHHR has said it could not give the raises because the Legislature failed to give the agency enough money.

If the department indeed has to wait on the Legislature, the department could rack up hundreds of thousands of dollars in fines by the time lawmakers come to town for their 60-day session in February. This comes as Gov. Earl Ray Tomblin is asking agencies to tighten their belts.

Following the flurry of court filings, Bloom dismissed DHHR's latest reasons for not giving pay raises during a Dec. 14 morning hearing.

Unbeknownst to those in the courtroom, a shooter had killed 26 people at a Connecticut elementary school that morning.

Since the Dec. 14 shooting, politicians have called for new measures to treat the mentally ill.

"As a nation, we must reconsider the treatment of the mentally ill," U.S. Sen. Joe Manchin wrote last week in a Washington Post editorial.

For about 16 months while Manchin was governor, DHHR did not fully comply with Bloom's 2009 court order.

For a year and counting, Tomblin's administration has not fully complied with the 2009 court order.

A DHHR spokeswoman did not comment Wednesday in detail.

"The department is aware of the specific court order you are asking about below," department spokeswoman Marsha Dadisman said in an email. "It is DHHR policy to comply with all orders from the court. It is also DHHR policy to refrain from issuing detailed comments on matters pending litigation."

Contact writer Ry Rivard at ry.rivard@dailymail.com or 304-348-1796. Follow him at www.twitter.com/ryrivard.


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