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.

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.