By Esteban Fernandez, Times West Virginian
FAIRMONT — The sale of the John Manchin Sr. Health Care Center will go forward.
Marion County Circuit Court Judge Matt Delligatti vacated the temporary restraining order he issued late last week that prevented the Department of Health Facilities from completing the sale of the Manchin Center to the Marx Development Group at a hearing Tuesday afternoon.
“The court finds the language clear and unambiguous, the secretary does have the authority to sell the building with statutory language,” Delligatti said, “There are harms on both sides, but this court is of the opinion harm to the facility is greater than that of the plaintiff.”
Delligatti referred to the 2023 law which split the Department of Health and Human Services into three smaller agencies. The Department of Health Facilities was one of the new departments that emerged from the split, and under the language of the statute had the power to sell the facility.
Joey Garcia, attorney fo plaintiff Mary Devito, argued the language of the statute was not as expansive as the Department of Health Facilities claimed. He cast his case in terms of of legislative versus executive power, arguing that under W. Va. Code § 26-1-3(a)(2), the language of the law restricted the secretary of the Department of Health Facilities to managing and operating the building, meaning they could sell off the building’s assets in the course of operating the building, but not the building itself since the department was responsible for managing it.
However, Ryan Donovan, attorney for the state, argued the secretary’s powers under the law were expansive enough to include selling the building to a third party. Furthermore, Donovan pointed out there would be serious consequences for the facility’s patients if the sale to Marx did not go through. Aaron Snodgrass, health facilities finance officer, said 110 vendor contracts stood to expire on Oct. 31 if the sale remained paused.
“It would be a nightmare for patients if the contracts lapse,” Snodgrass said. ,
Snodgrass said vendors provide various services to the facility that staff and patients rely on. Furthermore, 23% of staff at the facility work under contract, Snodgrass said, meaning if those contracts lapse, the facility would also face a labor shortage.
He said the facility isn’t allowed to do stop-gap contracts, and the contracts have to be sent through certified mail so entering into new ones on short term notice would be difficult. Garcia questioned this, which led Snodgrass to acknowledge the facility found ways to keep itself going when an earlier Sept. 30 deadline passed.
Snodgrass also provided some information on the facility’s operation.
The service the Manchin Center costs $175,000 a year to operate, with the cost rising every year. Furthermore, the Manchin Center is approaching its end of life, and replacing the building would cost around $110 million, Snodgrass said. Snodgrass framed the building’s operating cost as a revenue loss, which Garcia pushed back on, arguing the point of operating a public service isn’t to generate revenue.
However, there was a wedge between Garcia and his client that Donovan exploited. Garcia’s argument hinged on examining statutory language and how it applied to the powers of the legislature and the executive. His client’s daughter, who stood in for her 94-year-old mother, approached the lawsuit from a personal dimension.
Cathie Metheny, DeVito’s daughter, framed the lawsuit in terms of how a sale of the Manchin Center could negatively impact her mother. Metheny said she worried the sale of the facility to a private operator would lead to discrimination against Medicare patients, or the closure of the facility or the transfer of her mother to a new facility much farther from where Metheny can easily travel on a daily basis. Metheny said her mother’s care at the Manchin Facility has been exemplary.
However, throughout the hearing, information came out that addressed Metheny’s concerns. Donovan pointed this out, asking her if her concerns had been allayed by the new information. By doing so, he narrowed the scope of the lawsuit from the potential harm to patients and the community at large to potential harm to Metheny’s mother. The state argued that Marx was under contract to keep the facilities open for a certain period of time, keep all the current patients and staff and build three new facilities to replace the aging care centers.
Metheny replied that if the state had been more forthcoming with that information earlier, the situation today might be much different.
Donovan asked Metheny if she still thought the injunction was a good idea after learning what she did at the hearing.
“That’s something I would have to discern and pray about,” she said. “Not completely fair to answer that, it’s a lot to weigh, a lot to think about. I do have angst but an about face? I would have to discuss with my family. Is it something I’m leaning toward? Probably. Could I make that decision now? I don’t want to answer that.”
Metheny said the ramifications of what could happen to other people as a result of the sale also weighed on her. Garcia tried expanding the scope of the suit again, adding that there would irreparable harm to the state if the injunction was removed.
“I was trying to argue, how could the legislature have intended that as a matter of interpreting the statutory languages with other code sections,” Garcia said. “I don’t think that was how it was interpreted by those voting on it.”
Donovan used Metheny’s uncertainty to make his final point against preventing the sale of the facility.
“If Ms. Metheny is not sure the injunction is the right thing to do, how can anyone else?” he said.