Feds sue Maine for allegedly segregating children with disabilities

The U.S. government sued Maine on Monday for allegedly unnecessarily institutionalizing children with behavioral health disabilities, separating them from their families and segregating them from their communities.

The lawsuit comes more than two years after the U.S. Department of Justice  notified Maine in June 2022 that its failure to provide timely and appropriate behavioral health services for children amounted to systematic discrimination. The escalation indicates that federal authorities and state officials were unable to come up with a plan to resolve the problems without going to court.

In its 24-page complaint, filed Monday in U.S. District Court, the Justice Department accused Maine of violating the Americans with Disabilities Act and a 1999 U.S. Supreme Court decision, which require state and local governments to provide services to children with disabilities in the least restrictive setting appropriate to their needs. The Justice Department said Monday that community-based services, such as programs where behavioral health clinicians work with children in their homes, can prevent them from ending up in institutions like emergency rooms, psychiatric hospitals, residential facilities in and out of state, or the state’s youth prison.

In the complaint, the Justice Department said that Maine “in theory” uses Medicaid and other public funds to support such services, but in reality, the state administers them in a way that offers parents and guardians “no meaningful choice” other than institutions, separating those children from their families and segregating them from their communities.

“When Maine children are placed in institutions, such as psychiatric hospitals, juvenile detention, and other residential facilities, they miss the chance to wake up in their own beds, to develop bonds with family and friends, and to go to school with their siblings and peers,” the Justice Department wrote.

The allegations echoed the findings of previous reports, including a critical review of Maine’s behavioral health system for children in 2018 which identified long waiting lists for community-based services, increasing the likelihood of a behavioral health crisis that prompted  families to call police or seek the hospital.

In 2020, a comprehensive assessment of the state’s juvenile justice system found that far fewer adolescents would end up in Long Creek Youth Development Center in South Portland, the state’s only juvenile detention center, if the state had a more robust behavioral health system.

“Maine children and their families are still waiting for a legally compliant behavioral health system,” Atlee Reilly, a lawyer with Disability Rights Maine, the organization that drew the Justice Department’s attention to Maine in a 2019 complaint, said in a statement on Monday. “And despite calls for more than a decade to ensure the availability of those services, Maine has failed to do so. Unfortunately, this lawsuit was the necessary result of that continued failure.”

Lindsay Hammes, a spokeswoman for the Maine Department of Health and Human Services, which oversees the children’s behavioral health system, said in a statement that the department was “deeply disappointed that the U.S. DOJ has decided to sue the State rather than continue our collaborative, good-faith effort to strengthen the delivery of children’s behavioral health services.”

The department had been “working closely with the Department of Justice to address its initial allegations from March 2022,” she said. Now, “The State of Maine will vigorously defend itself and, throughout the litigation, will continue to work hard to strengthen the delivery of what we all agree are vital services.”

Hammes said the Gov. Janet Mills’ administration and the Maine Legislature has worked to strengthen community-based services for children in recent years investing more money into behavioral health programs. In 2022, a spokesperson told the Bangor Daily News the problems Maine faces in providing care for children go back decades, and the COVID-19 pandemic set back the state as it made it difficult for providers to hire and maintain staff.

But the Justice Department argued in its complaint Monday that the state’s investments have been insufficient, backing up complaints from families and advocacy groups that inadequate access to services has persisted, if not worsened, in recent years.

Carrie Woodcock, executive director for the Maine Parent Federation, which helps families navigate services for their children with behavioral health disabilities, had hoped the Justice Department’s letter to the state in June 2022 might be a turning point, but it wasn’t, she said.

“When that letter first came out, the families in our organization thought, “OK, they are being duly noted, we are going to see some progress. And we’ve seen nothing,” Woodcock said.

When families have called over the past year, “all I could say to them was, ‘Here is the number for our contact at [the Department of Justice] leading the investigation into the state. We recommend you call and talk to them,’” she said.

The Justice Department’s complaint goes into extensive detail about the challenges that 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.

For example, one program called Children’s Home and Community Based Treatment, which provides individual and family counseling for children with emotional disturbances in their home, had an average waitlist of 172 days between March and June 2024, the complaint states.

When children go into crisis, the state operates a 24/7 hotline for parents to call — but crisis response teams are frequently unavailable, or no one answers the phone, lawyers for the Justice Department wrote.

For children in state custody, the state has failed to recruit and support enough therapeutic foster homes, a program where foster families are trained and provided the resources to house kids with behavioral health disabilities. As a result, some foster children “have been dropped off at homeless shelters because Maine did not secure community-based services for their care, including Therapeutic Foster Care.”

When children don’t get the interventions they need at home, they are at greater risk of hospitalization, incarceration or lengthy stays in residential treatment facilities, both in and out of state. Those options are often more traumatizing and expensive than serving youth in their homes and communities, the complaint states. It accused the state of using Long Creek in South Portland as a “de facto psychiatric hospital” for adolescents with behavioral health disorders who can’t find help anywhere but inside the state’s youth detention center.  

The Justice Department suggested that Maine has missed opportunities to fill gaps in its community-based system that would prevent unnecessarily institutionalization, the complaint states. Instead, the state “has prioritized expanding its institutional services” by committing to establishing the state’s first secure residential program.

“The State of Maine has an obligation to protect its residents, including children with behavioral health disabilities, and such children should not be confined to facilities away from their families and community resources,” Assistant Attorney General Kristen Clarke, who serves in the Justice Department’s civil rights division, said Monday.

“The Civil Rights Division is committed to ensuring that people with disabilities can get the services they need to remain at home with their families and loved ones, in their communities.”