On Sept. 17, 2019, two lawyers from the legal advocacy organization Disability Rights Maine wrote a scorching 18-page letter to the U.S. Department of Justice listing example after example of how Maine was failing children with behavioral health challenges.
Unable to access timely treatment at homes and with their families, kids and teenagers were forced into more institutional, restrictive environments instead, they wrote, including windowless hospital emergency departments, inpatient psychiatric units, residential treatment facilities, and even Long Creek Youth Development Center, Maine’s only youth prison.
The lawyers, who said they had watched this situation unfold countless times over the previous years, argued that the pattern of unnecessary institutionalization they were describing amounted to widespread violations of the Americans with Disabilities Act — and that Maine officials, despite clear evidence of this prolonged crisis, had not acted with enough urgency to fix it.
“The State has been aware of these issues for years,” the lawyers wrote in their complaint to the Justice Department, a copy of which the Bangor Daily News obtained through a public records request. They hoped the federal government would intervene by enforcing federal disability rights law, thereby forcing a more robust network of children’s mental health services into fruition.
More than five years after that complaint was lodged and investigated, the Justice Department and Gov. Janet Mills announced Tuesday that the state and federal government had reached an agreement in court to fix problems in the children’s behavioral health system, a major development that imposed the most comprehensive and enforceable plan to date.
While many advocates warned that it could still take years for children and families to see real improvements, they said the agreement is a necessary and hopeful step toward holding the state accountable to ending a crisis that has only seemed to worsen in recent years.
Help us raise $100,000 to fund trusted journalism for your community. Make a tax-deductible donation now.
“Today marks a turning point,” Kristen Clarke, the assistant attorney general for the Justice Department’s Civil Rights Division, said in an interview with the Bangor Daily News.
“This will mean more kids who will be able to stay at home and in their communities, more children who will be moved out of detention facilities, and more children who will be less likely to get trapped in the juvenile justice system,” Clarke said. “So real, meaningful and tangible benefits for some of the most vulnerable young people in the state of Maine.”
Atlee Rielly, managing attorney for Disability Rights Maine, agreed.
“If this settlement agreement is fully implemented, Maine children are finally going to have their behavioral health needs met in such a way that they can remain in their homes and communities. That is huge,” he said.
At the same time, it took five years for such an agreement to come together and could take just as many for its goals to be realized. “People really need to understand that this is the beginning of a process,” Rielly said. “But on paper there is a lot to be hopeful about here.”
The settlement agreement came more than two years after the Justice Department notified the state that it had completed its investigation into Disability Rights Maine’s complaint and found that its failure to sustain functioning community-based mental health systems for children amounted to systematic discrimination.
From there, federal authorities and state officials tried to reach an agreement for solving the problems outside of court, but they couldn’t. The Justice Department ultimately sued the state earlier this fall, going into extensive detail in its court complaint about the challenges parents and guardians face when attempting to access community-based services that their children are eligible for under MaineCare, including lengthy waitlists, insufficient provider networks, inadequate crisis services and a lack of support for foster parents.
The lawsuit could have prolonged the process of crafting a plan to implement solutions as both parties geared up for trial. In a statement on Tuesday, Mills, a Democrat, said she didn’t want to put the state through a period of long, expensive litigation. She also defended her administration, saying it had poured millions of dollars into the behavioral health system in recent years, including by increasing reimbursement rates for programs that prevent institutionalization.
But those efforts have not been enough to rebuild a system that has been disintegrating for more than a decade, advocates have said. Programs that provide intensive support to children and families have continued to have months-long waitlists; residential treatment programs have continued to close; crisis services for youth are basically non-existent; and, according to the Justice Department’s lawsuit, the state’s youth prison still serves as a “de facto psychiatric facility” for youth.
Under the agreement, the Mills administration said it will commit an “unprecedented” $237 million into increased reimbursement rates for behavioral health programs under MaineCare, the state’s Medicaid program, and millions to bring additional programs online.
The agreement will remain in effect for six years, and an independent overseer will be appointed to oversee the state’s progress. The federal district court will retain the power to enforce it.
Carrie Woodcock, executive director for the Maine Parent Federation, which helps families navigate services for their children with behavioral health disabilities, said she liked the agreement’s emphasis on ensuring that every Maine child and adolescent who is eligible for community-based services gets them, as well as restoring the state’s “non-existent” mobile crisis system.
“Now they have a deadline holding their feet to the fire,” she said.
But rebuilding a workforce to staff those services won’t be easy, she said. Rate increases will make it easier for providers to offer their staff more money, but the state needs to pursue other means of developing the workforce beyond throwing money at the system, she said.
“Pay makes a difference, but, for a lot of these positions, a license in clinical social work is required, and that’s a master’s,” she said, explaining that the state should also think about how to help people advance professionally. “It is exceptionally hard to get a master’s level education in our state or county without incurring enormous debt that our current payscale doesn’t come close to covering.”
Rachel Wilcox, a nurse practitioner in Rockport, in an area that has been trying to organize a local strategy for supporting struggling youth, also believes that Maine will need to do more than pump money into the system to see real improvements.
“It’s a great start. I am cautiously optimistic to see how the execution goes,” she said. “Money is great, but what are you going to do with it?”
To that end, Reilly said that it’s time for the state to “be honest with itself” about the resources it has and “what is it going to take to deliver on promises and obligations under this agreement.”
The agreement’s emphasis on rebuilding Maine’s eroded community-based programming left some wondering whether it will affect plans the state has to expand more institutional options for children.
For instance, state health officials have expressed a desire to establish a secure residential treatment facility for children as a means to ease pressure on emergency departments and bring home kids who are in secure programs in other states. Lisa Harvey-McPherson, vice president government relations for Northern Light Health, which operates Maine’s second largest hospital system, still wants to see that happen, she said.
“We look forward to working with [Maine Department of Health and Human Services Commissioner Sara Gagne Holmes] and her team to identify investments in this level of children’s behavioral health care,” she said.
Likewise, it is unclear how the agreement could affect the future of the state’s juvenile justice system, which is overseen by the Maine Department of Corrections and plans to unveil a strategic plan to lawmakers in the coming months.
Advocates have urged the state to replace Long Creek with a more therapeutic, secure option for youth for years, citing the high degrees of mental illness and trauma among its population. But the governor and corrections leaders have defended keeping it open, citing public safety. And in recent years, corrections officials have been trying, unsuccessfully, to establish smaller secure residential options for youth in the juvenile system in addition to Long Creek.
“It is striking and worth noting that most children in Maine’s juvenile dentition facility had multiple behavioral health diagnoses,” said Clarke, with the Justice Department. “Our agreement requires kids be placed with families or a foster family where appropriate, and it will mean a reduction in the population of children detained in juvenile justice facilities.”
The federal enforcement action in Maine is part of a larger effort within the Civil Rights
Division of the Justice Department to enforce the Americans with Disabilities Act and prevent people from ending up in institutions, Clarke said.
Clarke assured that state officials have agreed to “move swiftly” to implement the steps outlined in the agreement “so that more children with disabilities going forward are getting what they need to stay at their home and return to their homes.
“Today marks a new day,” she said.
Reporter Callie Ferguson may be reached at [email protected].
