The state of Maine has been violating the Americans with Disabilities Act by failing to provide sufficient in-home Medicaid services to a disabled adult, the U.S. Department of Justice has concluded.
In a Feb. 10 letter to state officials, the Justice Department’s civil rights division concluded that Maine has been violating the federal law by imposing a cap of 84 hours per week of in-home services, even though the disabled man needs and is eligible for round-the-clock care.
The Justice Department investigated the matter after a complaint was brought in May 2018 by one of the man’s parents. The family was not identified.
“The complainant’s continued receipt of fewer services than he needs is not sustainable,” the letter reads. “Although his parents assist as much as they can, both are aging and have physical limitations that render them unable to consistently or effectively assist their son. To receive the services he needs, the complainant would have to move, but his only options are segregated settings.”
The Justice Department said the state should remedy the violation and offered a list of suggestions.
Maine Department of Health and Human Services spokeswoman Jackie Farwell said the state is evaluating the decision and weighing how it will respond.
“The department’s goal is always to ensure that adults with developmental disabilities and autism receive the necessary services that best meet their needs,” she said in a statement. “To that end, we are reviewing the U.S. Department of Justice’s letter in close consultation with the attorney general’s office to determine next steps.”
The Justice Department’s ruling, first reported by the Bangor Daily News, could have implications for other individuals who want to remain in their home, or in a family home, but need more than 84 hours of services per week.
“We’ll have to see, I guess,” said Rep. Patty Hymanson, D-York, who co-chairs the Health and Human Services Committee. “We share a goal with DHHS to pair services with individual needs, so if this ruling helps get to that goal, that’s good.”
The original complaint was not publicly available, but the Feb. 10 letter indicates that the individual, who lives with his parents, has “several disabilities and medical conditions that result in his need for assistance with all daily life activities.” Maine, like most states, participates in a federal Medicaid waiver program, called Section 21, that delivers these services to adults with developmental disabilities and autism spectrum disorder, including help with eating, hygiene, medical appointments and, sometimes, employment. DHHS oversees the program.
The Justice Department determined that the individual failed to receive adequate services beginning in 2014 when the state, under the administration of former Gov. Paul LePage, imposed a cap of 84 hours of services per week for recipients who live in their own homes. No such cap exists for group homes.
The family challenged that decision. Even though the state acknowledged “that the complainant needs 168 hours of services per week,” the challenge was denied in February 2017 and the state cut services to 84 hours per week.
While the Justice Department was investigating the family’s complaint, the state decided to make an exception to the 84-hour cap for the individual. However, the letter alleges, “the state has failed to ensure that its licensed service provider fulfills the hours or identify additional providers that could fulfill the authorized hours.”
The Justice Department outlines seven steps the state should take to remedy the violation, including modifying the state’s Medicaid waiver to establish a process for individuals to receive an exception to the 84-hour cap. It also said the state should ensure it has sufficient provider capacity to fulfill the individual’s authorized service hours.
That could be a challenge. Many service providers across the state have been dealing with a prolonged workforce shortage that has been exacerbated by what some believe is a insufficient reimbursement rate that keeps providers from paying direct-care workers a competitive wage.
Hymanson said lawmakers are hoping to address that by passing a bill that would set wages for direct-care workers at 125 percent of the state’s minimum wage, but it’s not clear whether that legislation has enough support to pass.
The Justice Department also said the state should pay compensatory damages to the individual “for injuries caused by the state’s actions,” but does not suggest an amount. The state could face a lawsuit if it fails to comply with the recommendations.
In addition to the waiver program known as Section 21, the state administers another Medicaid program, called Section 29, that offers a less-comprehensive level of in-home services. Together, the programs serve more than 5,500 individuals. Additionally, the waitlist for Section 21 services has been growing steadily and is now at 1,621. Many on that wait lists are receiving other services.
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