Kaufman's decision, which did not extend his finding about Shumbera's eligibility for the waiver program to other similarly situated patients but did instruct the DHHR to revise the way it determined eligibility, was a compromise, Pomponio said. In appealing Kaufman's order, the DHHR was only asking the justices to change the eligibility of one person.
"There's really no rhyme or reason why they would appeal this one person's determination," Pomponio said. "If this decision is overturned, [Shumbera] would have to be placed back in an institution."
After the assault, Shumbera was admitted to Cabell Huntington Hospital, his mother told the Gazette. He has been staying at a crisis center, where he has not had any PRNs, the shorthand term for when a patient requires an immediate intervention by hospital staff.
Crose said that hospital staff at Bateman goaded and provoked Shumbera until he acted out, then used the PRNs as proof that he was not ready to leave the institution.
Consequently, due to being heavily medicated, Shumbera became lethargic and despondent during his final months at Bateman, his mother said. He has lived there since 2001.
The patient who assaulted him is a forensic mental patient who was institutionalized following an attempted murder, Crose said.
Bevers conceded Tuesday that Shumbera was a member of the Medley class, a group of people identified in a 1980 case as "all persons under the age of 23 years who suffer from mental retardation, who are citizens of the State of West Virginia, who are unable to live in their homes due to lack of resources in their homes or home communities to fulfill their special needs arising from their mental retardation, and who are now or will in the future be institutionalized."
But that does not automatically mean that Shumbera is eligible for the MR/DD waiver, Bevens said.
"He does not fit the target population," he said. "He's got a dual diagnosis."
Reach Andrew Clevenger at acleven...@wvgazette.com or 304-348-1723.