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Maine settles lawsuit to clear waitlists for adults with autism, intellectual disabilities

Bangor Daily News (ME) - 11/26/2014

Nov. 25--AUGUSTA, Maine -- Hundreds of adults with autism or other developmental disabilities will receive housing assistance and other services due to them under the Medicaid program thanks to a legal settlement signed Monday that forces the state to find the necessary funding.

Some of the adults covered by the suit have been eligible for services for years but have been forced to wait because of a lack of available state funding.

The agreement, signed Monday by Maine Superior Court Justice Michaela Murphy, gives the Maine Department of Health and Human Services until Dec. 19 to determine whether providing the services can be accomplished with existing resources or whether the Legislature and Gov. Paul LePage will have to enact a supplemental budget bill.

At issue is a class-action lawsuit filed in February 2013 that sought to force the state to expand Section 21 and Section 29 Community-based Service Waivers. Under an agreement between the state and the federal government, individuals in these programs forgo institutionalization in favor of group homes or assistance that helps them live with family or on their own.

According to a 2013 BDN analysis of the issue, the Section 21 waiver provides the highest level of support to those who require housing in group homes or other settings with near-constant oversight. The Section 29 waiver offers in-home services and work support for those with the same disabilities who require less intense support.

This group of individuals has been the subject of considerable debate in the past two years as Maine lawmakers considered proposals to expand Medicaid eligibility under the provisions of the federal Affordable Care Act five times. The LePage administration and others opposed to expansion argued that the Section 21 and 29 waitlists should be eliminated before taxpayer-funded health care is offered to low-income Mainers they described as being "able-bodied."

In June 2013, lawmakers passed a biennial budget that provided $9 million over two years to reduce Section 21 and 29 waitlists, but the funding possibly wasn't enough. This week's court settlement ensures that the "Priority 1" Section 21 waitlist as well as the entire Section 29 waitlist will be eliminated and that anyone who qualifies for the support between now and June 2015 also will be covered.

The Priority 1 waitlist includes people, according to the state's definition, who are at risk of exploitation, abuse or neglect if they don't receive services.

"Many of these people were desperate, and they absolutely needed these services," said Nancy Cronin, executive director of the Maine Developmental Rights Council. "It really was very bad for many of them."

Attorney General Janet Mills agreed and said her office, the administration and DHHS worked "amicably" toward the agreement for months.

"This is a really big step forward for a very heartbreakingly needy segment of our population," said Mills. "Getting them off the waitlists with this additional money serves a big social purpose and fulfills our commitment to the Section 21 and 29 waiver recipients."

Data provided by DHHS on Tuesday indicated that on Tuesday there were 19 people on the Priority 1 waitlist in Section 21 -- which Mills said was at least double that a few months ago -- though nearly 1,000 people remain on the Priority 2 and 3 lists. There were about 500 people on the Section 29 waitlist, and a total of 316 people on both.

The Priority 2 and Priority 3 waitlists in the Section 21 waiver program were not addressed in the lawsuit. Gerald Petruccelli of the Portland law firm Petruccelli, Martin & Haddow LLP said it's up to those individuals to file another lawsuit if they so choose.

The suit, which names LePage and DHHS Commissioner Mary Mayhew as defendants, was filed on behalf of 18 plaintiffs but represents a class of several hundred Mainers.

Mayhew said in a written statement that the settlement will continue progress that was already underway.

"Gov. LePage has allocated millions of dollars in additional financial support over the last three years to move more than 800 people with intellectual and developmental disabilities off of waitlists," said Mayhew. "His efforts and those of the department to improve the services and supports for these vulnerable Mainers well preceded this lawsuit and will remain a significant focus."

Petruccelli praised the LePage administration for being willing to work through the issue and ultimately sign the settlement agreement.

"I think that the assistant attorney general, the attorney general, the commissioner and her staff and the governor were all interested in solving this problem," he said. "We played a part by precipitating the focus by filing this suit, but they were on their own thinking this is a problem that needed a solution."

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