Read the DHHR's brief "here". : http://www.state.wv.us/wvsca/briefs/feb11/35671appellant.pdf
Read Shawn Shumbera's response "here". : http://www.state.wv.us/wvsca/briefs/feb11/35671appellee.pdf
CHARLESTON, W.Va. -- If the state Supreme Court determines that a developmentally disabled man was wrongly declared eligible for a federally funded assisted living program, he may have to return to a state mental hospital where he was sexually assaulted last month, his lawyer told justices Tuesday.
In November 2009, Kanawha Circuit Judge Tod Kaufman ruled that Shawn Shumbera is mentally retarded, and therefore eligible for a Medicaid Mental Retardation and Developmental Disabilities Waiver Program. The state Department of Health and Human Resources appealed Kaufman's order, arguing that Shumbera's disability is due to his mental illness, and not retardation.
While he awaited placement in another facility, as Kaufman had ordered, Shumbera was raped last month by another patient at Mildred Mitchell-Bateman Hospital, according to his mother, Kim Crose, and court filings.
Arguing on behalf of DHHR Tuesday, Assistant Attorney General Michael Bevers said that there was no evidence produced during a 2007 hearing to support Kaufman's finding of Shumbera's mental retardation.
Charles Painter, a psychologist who treated Shumbera at Bateman for years, testified that he had originally misdiagnosed Shumbera by assuming that Shumbera's involvement in special education programs in Florida as a child was based on mental retardation, rather than his deafness and behavioral issues, he said.
Painter concluded that when Shumbera's hearing deficiencies were factored in, his intellectual functioning was in the average range, not at a level that would indicate mental retardation, Bevens said.
Painter said that his initial diagnosis of "mild retardation," made in 1999, was wrong, and that a diagnosis of impulse control disorder was what kept Shumbera institutionalized, according to Bevens' brief.
Bren Pomponio, Shumbera's attorney, said that Painter had treated Shumbera for six years before his change of heart, which came after DHHR lawyers visited him the day before a hearing was scheduled.
Kaufman had plenty of evidence of Shumbera's mental retardation in his medical history, which included numerous evaluations from psychologists, social workers and others who treated him over the years, Pomponio said.