CHARLESTON, W.Va. -- The mother of a developmentally disabled man says he was raped last month at Mildred Mitchell-Bateman Hospital, even though a judge ordered him into a treatment program and out of the hospital 15 months ago.

Kim Crose, Shawn Shumbera's mother, said that just days prior to the assault, hospital officials at Bateman had placed a forensic mental patient who was institutionalized following an attempted murder in the same room as her son.

In addition to being mentally disabled and mentally ill, Shumbera is profoundly deaf and blind in one eye, she said. He was also heavily medicated, leaving him lethargic and unable to defend himself, she said.

"And they're putting him in with [an attempted] murderer?" she said.

Crose first learned of the assault after a Bateman employee called her and said that her son was being transferred to Cabell Huntington Hospital, but did not say why. A few hours later, someone from Cabell Huntington called and asked for permission to perform a rape test on him, she said.

In November 2009, Kanawha Circuit Judge Tod Kaufman ruled the state Department of Health and Human Resources had wrongly denied Shumbera entry into the Medicaid Mental Retardation and Developmental Disabilities Waiver Program, a federally funded assisted living program designed to facilitate more independent living for people with mental disability.

The DHHR had repeatedly refused to let Shumbera, 31, into the program, saying that his disability was a product of his mental illness and not his mental disability. He has been in Bateman Hospital since 2001.

In 2007, his attorneys appealed his case to Kanawha Circuit Court, arguing that the DHHR was failing to follow its own policies in deciding whom to admit to the MR/DD program. Kaufman would not certify the case as a class action on behalf of others in similar situations, but he did rule that Shumbera qualified for the program

The judge also found that the DHHR's policy that determines eligibility is vague, particularly regarding patients diagnosed with both mental disability and mental illness.

DHHR has appealed Kaufman's ruling that Shumbera is eligible for the waiver program to the state Supreme Court. Oral arguments in the case are scheduled for today.

"It's like a prison"

Shumbera's mother says care providers at Bateman sabotaged her son's efforts to take the necessary steps to prepare for placement in a community-based living arrangement.

"They did everything they could to set him off, so they could say he was too violent to get out of the hospital," she said.

Since Kaufman's ruling, she has noticed an increase in PRNs, the shorthand term for when a patient requires an immediate intervention by hospital staff.

"And they expect him to act like he's normal to prove to them that he can get out of the hospital," she said.

DHHR spokesman John Law declined to comment on Monday, saying that he could not discuss any specific patient's case.

People with dual diagnoses of mental disability and mental illness, like Shumbera, are particularly vulnerable to being exploited, said Rachel Fetty, a program attorney for the West Virginia Medley Hartley Advocacy Program, which advocates for the mentally ill.

They don't always know how to process their experiences, and they don't always understand the personal boundaries that can define social interaction, Fetty said. They seek approval, can be suggestible, and don't always know what is inappropriate.

Consequently, they need continuing cues and reminders from service providers to help them accomplish routine daily tasks, she said. But with the proper support -- like the services provided under the MR/DD waiver program -- they can live in the community, she said.

In Shumbera's case, he was admitted to the waiver program in July 2010, but he still needed a detailed treatment plan, and a spot in an appropriate facility, before he could leave the hospital where he'd been institutionalized for a decade.

"It's like prison. It's a terrible place for people with dual diagnoses," Fetty said of mental institutions. Their complicated rules, particularly for earning certain privileges, can be incredibly confusing for people with dual diagnoses, sometimes resulting in a build-up of frustration at being unable to enjoy the same freedoms as others in the hospital, she said.

Shumbera grew despondent over staying in the hospital when he knew a judge had ruled he was eligible to leave, she said.

All the while, officials at Bateman maintained that he was not fit to be released to managed care, Fetty said. They cited incidents where he was given a PRN -- which involves the administration of a sedative via injection -- because he spit or swore, she said.

"They just drugged him up so that they don't have to deal with him," Crose said.

After Shumbera was released from Cabell Huntington, he was taken to a crisis center and remains there, Fetty said. During that time, he has not had any PRNs for acting out, she said.

"Based on what we've seen so far, he is capable of living in the community with service providers. He has a service provider who is with him 24 hours a day," she said. "He is able to manage his behaviors."

Ironically, it took the sexual assault and subsequent removal from Bateman to give Shumbera the opportunity to demonstrate that he can handle life outside of a mental institution, his mother said.

"This is a shame that it had to happen, but the only good thing about it all is it got him out of the hospital," she said.

Reach Andrew Clevenger at acleven...@wvgazette.com or 304-348-1723.