778 S.E.2d 728 (W.Va. 2015), 14-0965, West Virginia Dep't of Health & Human Resources v. E.H.
| Citation | 778 S.E.2d 728 |
| Opinion Judge | LOUGHRY, JUSTICE. |
| Party Name | WEST VIRGINIA DEPARTMENT of HEALTH and HUMAN RESOURCES, BUREAU for BEHAVIORAL HEALTH and HEALTH FACILITIES, Petitioners v. E.H., et al., Respondents |
| Attorney | For DHHR: Patrick Morrisey, Esq., Attorney General, Elbert Lin, Esq., Solicitor General, Julie Marie Blake, Esq., Assistant Attorney General, Charleston, West Virginia. For Respondents: Jennifer S. Wagner, Esq., Mountain State Justice, Inc., Clarksburg, West Virginia; Lydia C. Milnes, Esq., Mount... |
| Judge Panel | JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion. Davis, Justice, dissenting: |
| Case Date | October 15, 2015 |
| Court | West Virginia Supreme Court |
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Submitted: September 15, 2015.
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Appeal from the Circuit Court of Kanawha County. Honorable Louis H. Bloom. Civil Action No. 81-MISC-585.
SYLLABUS
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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." Syl. Pt. 1, West Virginia Dep't of Health and Human Servs. v. E.H., Nos. 14-0664, 14-0845, W.Va., 778 S.E.2d 643, (Oct. 7, 2015).
2. A written agreement between the Department of Health and Human Resources and the provider of patient advocacy services that specifies the legal obligations of the parties, including the manner of payment and the duties associated with the provision of patient advocacy services, constitutes a contract within the meaning of 64 C.S.R. § 59-11.5.1.d. for purposes of permitting patient advocates to access records without the written consent of individuals hospitalized with mental health issues in state facilities.
OPINION
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The West Virginia Department of Health and Human Resources, the Bureau for Behavioral Health and Health Facilities (" DHHR" ), seeks to reverse the August 27, 2014, order of the Circuit Court of Kanawha County, through which the DHHR was directed to immediately restore access to patients and patient records to the patient advocates working at this state's two psychiatric hospitals.1 In challenging this ruling, the DHHR argues that the circuit court's order violates both the patients' constitutional rights to privacy and the Federal Health Insurance Portability and Accountability Act (" HIPAA" ). The respondent advocates for patients at Sharpe and Bateman Hospitals (sometimes referred to as the " hospitals" ) insist that the directives of the circuit court should be affirmed due to the clear lack of constitutional or HIPAA violations. Having reviewed the record in this case to verify the absence of constitutional infirmity as well as the lack of state or federal privacy law violations stemming from the access historically afforded to patient advocates at these facilities, we affirm the circuit court's decision to restore the access afforded to the patient advocates to the level they experienced prior to the abrupt change of course in June 2014. Given the lower court's partial reliance on certain HIPAA definitions and exclusions that we find to be wholly inapplicable, our decision to affirm is grounded solely on state law rather than an amalgam of state and federal law.2
I. Factual and Procedural Background
The underlying litigation had its genesis in 1981 with a petition for a writ of mandamus filed by a group of institutionalized individuals to address the civil rights of patients with mental disabilities.3 See E.H. v. Matin (known as " Hartley" or " Matin I" ), 168 W.Va. 248, 284 S.E.2d 232 (1981). This Court remanded the Hartley case to the Kanawha County Circuit Court to achieve the legislative mandate of providing appropriate care and treatment to those individuals who are involuntarily hospitalized. See W.Va. Code § 27-5-9 (2013). To that end, the West Virginia Behavioral Health System Plan (" BHSP" ), a comprehensive mental health plan, which addressed the various standards, conditions, and facilities, was accepted by the circuit court in 1983.4 See E.H. v. Matin " (" Matin II" ), 189 W.Va, 102, 104, 428 S.E.2d 523, 525 (1993). As part of the BHSP, the DHHR was required to establish a patient advocacy system within the state hospitals to protect the rights of institutionalized patients on an ongoing basis. Originally, the patient advocates were DHHR employees who maintained offices within the hospitals. Due to issues that arose in the late 1980s stemming from improper personal relationships between the patient advocates and the hospital administrators, the court monitor formally recommended that the DHHR be required to contract with an external entity to perform the patient advocacy services. No one objected to this proposal and the recommendation was adopted by order, entered on February 20, 1990 (the " 1990 order" ).5
In accordance with its obligations under the 1990 order, the DHHR immediately contracted with Legal Aid of West Virginia (" Legal Aid" ) to provide patient advocacy services. In this role, which it has occupied since its selection in 1990, Legal Aid assists with and investigates individual grievances,
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conducts abuse and neglect investigations, educates staff and patients about patient civil rights, and monitors Sharpe and Bateman for the purpose of ensuring compliance with this state's guarantee of patient civil rights. See W.Va. Code § 27-5-9. Legislative rules expressly designed to " establish[] the rights of clients of State-operated behavioral health facilities" were adopted in 1995.6 See 64 C.S.R. § 59-1.1. Those rules specify procedures that pertain to the mandated provision of patient advocacy services7 and delineate a litany of patient rights that the hospitals are required to observe, including confidentiality. See id. at § § 59-1 to -20.
Court monitoring of the Hartley case continued until 2002 when, by agreement of the parties, the case was removed from the active docket of the court.8 See E.H. v. Matin (" Matin III" ), 189 W.Va. 445, 432 S.E.2d 207 (1993) (approving continued circuit court monitoring). In that same year, the DHHR decided to create the Office of the Ombudsman (" Ombudsman" )--an office charged with overseeing compliance with the statutory duties related to operation of the state hospitals. As the direct result of the Ombudsman's July 3, 2008, report, documenting deplorable conditions and treatment of patients at Sharpe and Bateman, the circuit court reopened the Hartley case. See State ex rel. Matin v. Bloom (" Matin IV" ), 223 W.Va. 379, 383-84, 674 S.E.2d 240, 244-45 (2009) (identifying issues of overcrowding, lack of privacy, and denial of patients' daily grooming and cleanliness needs).
Systemic violations of patient rights, including the use of " chemical restraints," were demonstrated during a two-day evidentiary hearing held before the circuit court in April 2009. At the conclusion of the hearing, the trial court ordered the parties to participate in mediation which resulted in an agreement between the parties covering multiple issues. Under that court-approved agreement, commonly referred to as the " 2009 Agreed Order," the Ombudsman is charged with the duty to oversee implementation of the specific terms of the agreement. Included in those terms is a provision requiring Sharpe and Bateman to fully comply with the state regulations that address issues of patient care and patient advocacy services. See 64 C.S.R. § § 59-1 to -20. The 2009 Agreed Order requires that " [p]eriodic review shall be established for compliance with [specified] sections." 9 In recognition of this duty, the DHHR contracted with Legal Aid to " produce a report to inform Judge Bloom, [and] the Hartley Court Monitor . . . of any progress or lack of progress in implementing areas of Legislative Rule Title 64 Code of State Rules (CSR) Series 59 . . . within Sharpe and Bateman by the end of the grant period." 10
On January 5, 2010, the parties agreed that the patient advocates would create an assessment tool for the hospital audits necessary to enable the DHHR to comply with the periodic review contemplated by the 2009 Agreed Order. On March 31, 2010, the DHHR agreed that quarterly audits should be conducted by providing the patient advocates with complete access to at least two patients from each unit independent of any actual grievances filed. On May 5, 2010, the parties agreed that the audit instrument was finalized and the patient advocates were instructed " to begin implementation."
For more than a decade, the DHHR provided the patient advocates with full access to computerized patient records, to the patient wards, and other areas of the hospitals. Then, in June 2014, with no prior notice, the DHHR began requiring the patient advocates to obtain signed releases from each
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patient, the patient's guardian, and/or the person with the medical power of attorney before obtaining any information from or about the patient.11 Under the altered procedures, a newly-executed release specifying the basis of inquiry was required each time the advocates sought to review a patient's records. Legal Aid stated that even if the inquiry pertained to a previously-authorized matter, a new release was required for each successive day a patient advocate sought access to a patient's records.12 In addition to this novel procedure of requiring a release in advance of any records inspection, Legal Aid was denied access to the network of patient records-access required for conducting the systemic reviews or audits of the two facilities.
In response to this abrupt change of policy regarding access to patient records, the patient advocates filed a motion for emergency relief with the circuit court and a hearing was held on August 1, 2014. After finding no violation of federal or state law, the circuit court directed the DHHR, by order of August 24, 2014, to immediately restore Legal Aid to...
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