Sen. Brownie Carson, D-Harpswell, talks to other members of the Senate about the budget at the Maine State House in Augusta in this June 30, 2017, file photo. Credit: Ashley L. Conti

Gov. Janet Mills’ administration wants a court to throw out a lawsuit a state legislator brought against the state last year to compel then-Gov. Paul LePage to restore the state’s staff of public health nurses.

In a brief filed this week in Kennebec County Superior Court, the Maine Department of Health and Human Services asked a judge to dismiss the lawsuit state Sen. Brownie Carson brought against the LePage administration last July after it missed a legal deadline to bring the state’s public health nursing program back to full staffing. Lawyers in the state attorney general’s office, who are representing the department, said the lawsuit is moot because the department has launched multiple recruitment efforts to fill vacant positions.

Carson, a Democrat from Harpswell, sponsored the 2017 law that ordered the public health program’s restoration by March 1, 2018. The ranks of public health nurses had dropped from about 50 to fewer than 20 during LePage’s tenure even as the Legislature continued to fund the nursing positions. Top DHHS officials at one point also eliminated nurses’ office space and barred the nursing program’s director from emailing his staff without approval from then-Commissioner Mary Mayhew’s office.

Public health nurses visit at-risk mothers and their infants in their homes, provide school nurse services in rural schools without their own nurses, work to contain infectious diseases such as tuberculosis, and assist in responses to public health emergencies.

The brief, filed Monday by Attorney General Aaron Frey’s office on DHHS’ behalf, argues that the state has “substantially complied” with the 2017 law, especially since Mills took office in January. The state has launched a handful of radio and online advertising campaigns and recently formed a public health nursing stakeholder group to contemplate the program’s future.

Since September, when the state launched its most recent hiring effort and returned public health nurse job postings to DHHS’ website, the department has received 53 applications and hired 11 nurses and supervisors, according to the legal brief. However, due to turnover, 22 nursing vacancies remain. There is funding available for 48 positions.

Between late January and September 2018, the state stopped hiring public health nurses despite the 2017 law’s requirements because LePage had not personally approved requests to fill the positions, according to the attorney general’s brief. The hiring only resumed after Carson filed his suit in late July.

Even as the state went months without filling public health nursing positions, the attorney general’s brief argues that the state was not in violation of the 2017 law, which passed over LePage’s veto. That law was “directory,” not “mandatory,” the brief reads, and the March 1, 2018, deadline for complying with the law was “aspirational.”

Carson said he’s seen a good-faith effort to restore public health nursing since Mills took office, but the lawsuit shouldn’t be dismissed yet, especially in light of the attorney general’s latest argument.

“The legal argument is, they can flaunt the law and there’s nothing we can do about it,” Carson said.

He’s also concerned by the number of vacancies that remain and by the fact that DHHS employees who participated in the program’s dismantling during the LePage administration still work at the department.

“There is a defensive perimeter around public health nursing that makes it very difficult for the public and, in particular, those of us who are advocating for the restoration of this service to truly understand what’s being done beyond an explanation of pure numbers, and that’s a problem,” he said. “I am so hopeful that we can get past this litigation and that we can figure this out.”

A spokesman for the attorney general’s office declined to answer questions from the BDN about the office’s arguments in the motion to dismiss the lawsuit. A DHHS spokeswoman said, “The department is committed to strengthening the public health nursing program and is in the process of hiring nurses as expeditiously as possible.”