No. 16-0738 - State of West Virginia ex rel. Pressley Ridge, et al. v. West Virginia
Department of Health and Human Resources, et al.
                                                                        FILED
                                                                   November 17, 2016
                                                                      released at 3:00 p.m.
LOUGHRY, Justice, dissenting:                                       RORY L. PERRY, II CLERK
                                                                  SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA

               The majority unwisely invokes this Court’s “inherent authority” to interject

itself into a contractual dispute between the respondents, the West Virginia Department of

Health and Human Resources and its Bureau for Medical Services and Bureau for Children

and Families (collectively “respondents” or “the Department”), and the petitioners, private

companies that provide facilities for the residential care and treatment of juveniles in West

Virginia. While I will continue to act, as I always have, in the best interests of the children

in our state, mandamus relief is unwarranted in this instance. Accordingly, I am impelled to

dissent.



               To be sure, this matter is essentially a contractual dispute involving changes

to the reimbursement of youth residential services under an amendment to the State Medicaid

Plan. As the circuit court aptly recognized in its order denying the petitioners’ request for

injunctive relief:1

                      The discretion to contract on behalf of the State lies in
               the executive branch. West Virginia law vests the Secretary [of


       1
        The petitioners did not appeal the circuit court’s order. Having enjoyed a test run
before the circuit court, and evading appellate review of their unsuccessful attempt to obtain
injunctive relief, the petitioners now seek a writ of mandamus in this Court.


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              the Department] with the sole authority and discretion to
              contract in the name of the Department on the State’s behalf.
              Specifically, State law authorizes the Secretary to “[s]ign and
              execute in the name of the state by the State Department of
              Health and Human Resources any contract or agreement with
              the federal government or its agencies, other states, political
              subdivisions of this state, corporations, associations,
              partnerships or individuals[.]” W.Va. Code § 9-2-6(4). Yet
              Petitioners ask this Court to disregard that authority and instead
              commandeer the Department’s executive authority to contract
              for residential treatment services without identifying how the
              Department has purportedly violated the law. Such an
              injunction would clearly violate the separation of powers
              between the executive and the judiciary.2

Nonetheless, the petitioners have managed to create a quagmire of speculation that juveniles

being housed in these residential facilities will be harmed under the respondents’ new

provider agreements, absent the respondents’ promulgation of new or revised legislative

rules. They do so as a means of attacking what is within the sole prerogative of the executive

branch: administration of the state Medicaid program. Again, as the circuit court found:

                     This interference in executive discretion is amplified
              because Petitioners are also asking this Court to interfere with
              the Department’s authority in administering the West Virginia
              Medicaid program. Medicaid is a federal-state partnership, and
              federal law requires each state to designate a “single state
              agency” to operate their respective Medicaid programs. 42
              U.S.C. § 1396a(a)(5). That entity in West Virginia is the Bureau
              for Medical Services. W.Va. Code §§ 9-1-2(n) & 9-2-13(a)(3).
              Critically, federal law prohibits the designated single state


       2
        See W.Va. Const. art. V, § 1 (“The legislative, executive and judicial departments
shall be separate and distinct, so that neither shall exercise the powers properly belonging to
either of the others; nor shall any person exercise the powers of more than one of them at the
same time[.]”).

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              agency delegating its authority to “issue policies, rules, and
              regulations on program matters,” 42 C.F.R. § 431.10. Yet
              Petitioners are asking this Court to interfere in the Department’s
              administration of the Medicaid program and place the decision
              of how providers are to be reimbursed with the providers
              themselves. Simply put, Petitioners cannot command such
              interference in the Medicaid program.

(Footnote added.).



              The petitioners have presented this Court with myriad assertions concerning

the interplay between various new policies and existing statutory and regulatory law.

Critically, however, the petitioners have utterly failed in their burden to show a clear legal

right to the relief they seek: a writ compelling the respondents to engage in legislative rule-

making prior to implementation of the new policies/contracts. See Syl. Pt. 2, State ex rel.

Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970) (citation omitted) (“‘To entitle one

to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and

a corresponding duty on the respondent to perform the act demanded.’”). While the

petitioners have endeavored to mask this monetary, contractual dispute with various

allegations, such as the potential for risk to the well-being of juveniles placed in their care

and the potential exclusion of multi-disciplinary teams in placement decisions, the first

allegation is speculative, at best, and the second was arguably disabused by the Department’s




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counsel during oral argument.3 Importantly, this Court must be circumspect on matters

affecting the function of the executive branch of government and must act only upon a

specific, existing duty that a state officer has violated. Indeed, this Court should not issue

a writ in anticipation of some theoretical omission of duty.



              Although the majority relies upon this Court’s decision in E.H. v. Matin, 168

W.Va. 248, 284 S.E.2d 232 (1981), as support for invoking this Court’s “inherent powers”

and granting a moulded writ, the case at bar is nothing like Matin. In Matin, a group of

patients filed a mandamus action in this Court, alleging they were “confined as mental

patients in Huntington State Hospital under conditions which violate W.Va. Code, 27-5-9

[1977] which accords all patients a right to both humane conditions of custody and

therapeutic treatment.” Matin, 168 W.Va. at 249, 284 S.E.2d at 233. These patients sought

judicial intervention for the deplorable conditions, which were described as the “‘Dickensian

Squalor’ of unconscionable magnitudes of West Virginia’s mental institutions.”4 168 W.Va.

at 249, 284 S.E.2d at 232-33 (internal citation omitted). Unlike Matin, the petitioners are not

       3
        During oral argument, when this Court pressed the petitioners’ counsel for a specific
example of how a particular Department regulation conflicts with a particular provision in
the new provider agreements, as opposed to the generalized concerns that had been voiced,
counsel deferred the question to his co-counsel, who was equally unable to provide the Court
with an adequate response. Surely, the evidentiary hearing ordered by the majority of this
Court is unnecessary to answer this fundamental question.

       In Matin, this Court had the benefit of depositions of hospital staff and experts who
       4

had evaluated the clinical and custodial program at the hospital. 168 W.Va. at 251, 284
S.E.2d at 234.

                                              4
a group of juveniles alleging some mistreatment arising out of their involuntary placement

in the petitioners’ residential facilities; instead, they are companies objecting to the change

in the method of reimbursement for their provider services. Specifically, rather than

reimbursing these providers based on a “bundled” rate, as had previously been done, the

petitioners will be required to bill for medical treatment separately from room, board, and

supervision under the respondents’ new provider agreements. In short, the instant matter is

nothing like the deplorable conditions that compelled the Court to act in Matin, where there

was a clear legislative mandate “for both humane conditions of custody and effective

therapeutic treatment” in West Virginia Code § 27-5-9 (1977). Matin, 168 W.Va. at 257, 284

S.E.2d at 237.



               In addition, the majority excuses the petitioners’ failure to institute a mandamus

proceeding in the circuit court, which would have provided them with a record that may or

may not have supported their arguments. Instead, the majority embraces this fundamental

failure as the basis for awarding a moulded writ. Not only could the petitioners have

simultaneously sought mandamus relief in the circuit court when they filed their petition for

injunctive relief, they could have sought mandamus relief in the circuit court after they were

denied injunctive relief. In short, this Court should not award mandamus relief to correct

strategic errors that resulted in the petitioners’ inability to demonstrate a clear legal right to

the relief they seek. Moreover, and perhaps most importantly, the petitioners are not entitled


                                                5
to relief in mandamus because they have another adequate remedy. See Syl. Pt. 2, in part,

State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969) (“A writ of

mandamus will not issue unless three elements coexist . . . (3) the absence of another

adequate remedy.”). Rather than seeking mandamus relief to avoid what the petitioners

undoubtedly believe are unfavorable contractual terms, the respondents posit that the

petitioners

               should simply exercise their contractual right to refuse to sign
               the new provider agreements. That negotiation process has a
               natural give and take. On the one hand, if enough providers
               refuse to sign,5 then the Department will have to bend to their
               terms because the Department needs a certain number of
               providers to give services; on the other hand, if a majority of
               providers sign such that the Department can ensure adequate
               residential services for its children, then the protesting providers
               need to decide whether they can accept the new terms.

(Footnote added).




       5
         I recognize there is a great need in this state for qualified, residential facilities where
circuit courts may place juveniles when that need arises. By the same token, the petitioners
are in the business of providing those services and, thus, have a strong motivation for
contracting with the Department to provide those services. In fact, as the respondents point
out, the majority of residential treatment providers in West Virginia have already signed
contracts with the Department on these new terms. Out of the twenty-four providers in West
Virginia, the respondents report that all five emergency shelters have signed contracts, and
that twelve out of nineteen residential treatment providers have done so, as well. The
majority does not address whether its decision impacts those signed contracts.

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              Lastly, I am concerned that the majority has essentially directed6 the Juvenile

Justice Commission to participate in some undefined and unspecified manner in the

proceeding that the majority orders to be docketed in the circuit court “as if it were an

original proceeding in mandamus in that court.”7 While I believe that the Juvenile Justice

Commission serves an important purpose, interjecting itself into this contractual dispute is

not one of them.



              The Juvenile Justice Commission is charged with “reviewing facilities and

programs operated or contracted by the Division of Juvenile Services and the Department of

Health and Human Resources. . . . and look[ing] at strengths, gaps and needs within West

Virginia’s juvenile justice processes.”8 Although the Commission’s original mission

statement provides that “[t]hrough collaboration and communication between the Court, the

Legislature, and the Executive agencies, West Virginia’s investment of energy and resources



       Although the majority uses the term “encourage,” the circuit court will most
       6

assuredly receive the message behind that word, which is that the Juvenile Justice
Commission and the Commission to Study the Residential Placement of Children should be
made to participate in the circuit court proceeding. See infra note 7.

       The majority also directs another commission, the Commission to Study the
       7

Residential Placement of Children, to participate in this case. This particular Commission
is under the auspices of the Department. See W.Va. Code § 49-2-125(b) (Supp. 2016)
(“There is created within the Department of Health and Human Resources the Commission
to Study the Residential Placement of Children . . . .”).
       8
        http://www.courtswv.gov/court-administration/juvenlie-justice-commission/History.
html (last visited Nov. 15, 2016).

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into children who are in trouble will result in the best possible future for the State,”9 said

mission cannot constitutionally extend into active participation in litigation between

residential providers and the Department or to taking any action that usurps the sole statutory

authority of the Department’s Secretary to enter into contracts on behalf of the Department.

W.Va. Code § 9-2-6(4). Indisputably, the children of this state benefit from cooperation

among all three branches of government, and while I encourage that cooperation, there is also

no requirement that the Department seek this Court’s imprimatur on every action taken by

it.



              For the reasons set forth herein, I respectfully dissent. I am authorized to state

that Justice Benjamin joins in this separate opinion.




       http://www.courtswv.gov/court-administration/juvenlie-justice-commission/pdf/
       9

Mission%20Statement.pdf (last visited Nov. 15, 2016)

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