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West Virginia lawmakers raise concerns over DHHR shared services, emails

Dr. Cynthia Persily, cabinet secretary for the Department of Human Services, told lawmakers Tuesday that the Office of Technology was not deleting former state employee emails following legal issues where DHHR emails for former officials were deleted. (Photo courtesy of WV Legislative Photography)

CHARLESTON — As the West Virginia Department of Health and Human Resources prepares to split into three new departments at the end of the year, lawmakers are concerned the split is in name only, with the departments maintaining the same bureaucracy.

Meanwhile, some lawmakers remain troubled by recent issues within DHHR to hold onto emails being sought in a federal foster care class action lawsuit which were deleted after DHHR failed to follow up with the state’s IT provider to save the emails of former high-level officials.

Members of the Legislative Oversight Commission on Health and Human Resources Accountability met Tuesday afternoon during December interim meetings at the Capitol.

House Bill 2006, relating to reorganizing DHHR, was passed by the Legislature during the 2023 regular session and signed into law by Gov. Jim Justice earlier this year. The bill went into effect in May.

HB 2006 terminates DHHR and splits it into the three new departments effective Jan. 1: the Department of Health, the Department of Human Services and the Department of Health Facilities. The new cabinet secretaries for the three departments will directly report to the governor.

Justice announced the three new cabinet secretaries in May: Dr. Sherri Young (Department of Health), Dr. Cynthia Persily (Department of Human Services) and Michael Caruso (Department of Health Facilities). The three departments will share one central Office of Shared Administration for administrative support services similar to the current structure of the departments of Commerce, Tourism and Economic Development.

The new DHHR departments have until June 30, 2024, to create this new Office of Shared Administration, but the incoming secretaries presented lawmakers Tuesday with draft organizational charts for the Office of Shared Services, consisting of an Office of Finance, an Office of Human Resources Management, an Office of Constituent Services, an Office of Communications, an Office of Operations and an Office of Management Information Services.

According to Young, who is interim DHHR cabinet secretary until Jan. 1, the Office of Shared Administration will have 422 full-time employees. But while lawmakers were hoping splitting DHHR into three departments and sharing services would cut down on bureaucracy, the Office of Shared Administration appears similar to what already exists within the DHHR Office of the Cabinet Secretary.

“In the restructuring of DHHR, how is this office different and more efficient than how it was in the past,” asked LOCHHRA Co-Chair Amy Summers, R-Taylor.

“We have folks that are doing jobs that with their years of experience, it would be very difficult for us to either break it or replicate it,” Young said. “So, parts of it, I think, are at its maximum efficiency…As far as having the shared administration, that allows us to kind of function within our departments and all be able to utilize that expertise at the top level, so not putting any of the three departments at a disadvantage.”

An organizational assessment and strategic plan released last November by Gov. Jim Justice from The McChrystal Group recommended a change to DHHR’s core organizational structure and prioritized administrative process improvements, such as unifying individual bureau administrative services underneath a chief operating officer position. It also recommended partnering with other state agencies, such as the Division of Personnel.

“Did you get a chance to read the McChrystal report now that you’ve been here for a little bit of time to read some of the analysis of the necessity of all these different positions?” Summers asked.

“I have viewed the McChrystal report, but I don’t know it well enough to quote it or to make any comparisons,” Young said. “I’m certainly open for the discussion and to maximizing those efficiencies. It’s a very difficult question and I apologize. I do wish I had a more solid answer.”

“I would be less than honest if I didn’t say that It seems like there’s a lot of duplication of services in these organizational charts,” said Delegate Heather Tully, R-Nicholas. “It seems like this organization is very top heavy.”

“I think when you have issues with retention and recruitment, which we know that the DHHR has had historically, I think nothing is more frustrating for those workers in the field than to see an organizational chart that looks like this when they are out there actually being the legs on the ground, putting forth the work,” Tully continued.

Lawmakers also asked Persily, the new Department of Human Services cabinet secretary, about issues surrounding the retention of emails from former high-level DHHR officials. Attorneys representing the state’s foster children in a federal class action lawsuit filed in 2019 are seeking sanctions against DHHR for not preserving emails.

In an Oct. 6 letter to the foster care attorneys, attorneys representing DHHR admitted that emails for seven named defendants were deleted by the state Office of Technology (OT) despite litigation holds sent to OT by DHHR’s general counsel. OT has a policy of deleting emails for former state employees after 30 days, providing time for departments and agencies to download and preserve those electronic files.

The DHHR attorneys apologized to both opposing counsel and the court for not preserving the electronically stored information (ESI) despite what they called “reasonable efforts” to preserve it. But attorneys for the foster children are seeking sanctions, accusing DHHR of “deliberate indifference” in ensuring the files were preserved.

Persily said that DHHR attorneys are now sending litigation holds to employees subject to those holds and OT, which has now developed a new litigation hold request form requiring the names of those employees whose electronic files must be preserved.

“Right now…the state is not removing any emails for any employee who leave the service of the state until they get a system in place…where they can archive the emails of individuals who are under a litigation hold or who could potentially be under a litigation hold,” Persily said. “There are probably people, regardless of whether or not they’re under a specific litigation hold, whose emails should not be destroyed.”

This is the second time a state department has come under file for mismanaging their role as custodians for its public records. The Division of Corrections and Rehabilitation settled a federal lawsuit recently over conditions at the Southern Regional Jail near Beckley after a federal magistrate criticized state officials for not persevering emails and other electronic files in that case.

DHHR officials plan to have a roundtable discussion Friday to finalize its organizational tree for the Office of Shared Administration. But Tully said she sees no real change to how the department will operate once it splits into three.

“I think when you have a bloated bureaucracy like this, it increases your likelihood of having errors, like losing your litigation holds and that sort of thing,” Tully said. “We’ve certainly seen things slip through the cracks. I think it dilutes a sense of responsibility and creates confusion. So, I hope that maybe Friday we may have more clarity, but I do have very, very grave concerns about this.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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