I. Overview of Medicaid Program
A. Joint Federal/State Program
i. Program Developed in 1965
The Federal Medicaid Program was first enacted in 1965 as Title XIX of the
Social Security Act, now codified at 42 U.S.C. §1396 et. seq. A new title,
Title XXI, was added in 1997 as part of the Balanced Budget Act of 1997. This
new title created the State Children's Health Insurance Program (SCHIP), amending
the Medicaid statute. SCHIP is codified at 42 U.S.C. §1397aa. Implementing
federal regulations for the Medicaid program begin at 42 C.F.R. § 431.
Regulations for SCHIP are found at 42 C.F.R. § 457.200 et. seq.
Currently, in Maine , there are approximately 215,000 recipients of Medicaid
benefits and another 120,000 recipients of a low cost prescription drug benefit.
Statutes implementing the Medicaid and SCHIP program in Maine are found at
22 M.R.S.A. § 3173- §3174-T.
ii. Shared Funding
The federal government pays a portion of the state's Medicaid costs for services.
The formula for payment is determined based upon the state's per capita income.
For Medicaid services in the State of Maine the federal government pays approximately
66% of the cost. Administrative costs for the program are matched on a 50/50
basis. Under the SCHIP program the federal government pays about 75% of the
cost in Maine for covered services. However, unlike Medicaid which is an unlimited
entitlement, the SCHIP program is a block grant with limited funds. Maine has
been successful at using its entire SCHIP block grant, while other states have
been slow to expand access.
iii. State Compliance with Federal Requirements
Because Medicaid, and SCHIP, are federally funded programs Maine 's program
must comply with federal Medicaid/SCHIP requirements. The law requires that:
certain groups of individuals be covered, e.g. low-income children; certain
services be covered, for children the list of services is extensive; and certain
basic due process procedural protections must be employed. Program applicants
and/or recipients may go directly to court and sue to enforce most provisions
of the Medicaid Act pursuant to 42 U.S.C. § 1983 which allows a plaintiff
to sue a party "acting under color of state law." see e.g. Wilder
v. Virginia Hosp. Ass'n., 496 U.S. 498 (1990)
Medicaid cases discussing whether the party is acting "under color of
state law" have increased as more states enter into contracts with private
entities, such as HMOs, see e.g. Catanzano v.Dowling, 847 F.Supp. 1070 (W.D.N.Y.
1994), sub. app. , 60 F.3d 113, 117 (2d Cir. 1995), later proceeding, 900 F.Supp.
650 (W.D.N.Y. 1995), aff'd in part and vacated in part, remanded by, 103 f.3d
223 (2d . Cir. 1996), on remand 992 F. Supp. 593 (W.D.N.Y. 1998).
iv. Statewide
Absent a federal waiver, the state's Medicaid program must conform to all requirements
of federal law and operate statewide. 42 U.S.C. § 1396a(a)(1); 42 C.F.R.
§431.50
B. Persons Covered
Recipients who are eligible for Medicaid can be divided into three groups:
a) mandatory categorically needy; b) optional categorically needy; and c) medically
needy. 42 U.S.C. § 1396a(a)(10).
Federal law requires states to provide Medicaid to the mandatory categorically
needy. Coverage of the optional categorically needy and the medically needy
is optional. Maine 's program covers all three groups.
The covered groups in Maine are set forth in the state regulations for the
MaineCare program found at Chapter 332 of the regulations for the Department
of Human Services. http://www.state.me.us/sos/cec/rcn/apa/10/ch332.htm See also
the Maine Equal Justice publication found at http://www.mejp.org/medicalprograms.htm
The medically needy are individuals who fit the non-financial criteria of a
particular group, for example they are disabled or are a family with children,
but have income which exceed the guidelines. These people are termed "medically
needy." They can receive Medicaid after paying a deductible, which generally
will range from $3000-7000 per six (6) month period.
C. Covered Services
i. Federal Requirements
Under federal law, states must pay for certain services for those covered individuals.
Examples of mandatory services are: inpatient and out patient hospital services;
rural health clinic services, lab and x-ray services, nursing facility services;
EPSDT (see below); pregnancy related services, physician services, home health
services. 42 U.S.C § 1396d (a) (1-5)(17) and (21); 42 C.F.R. §440.210
States can chose to cover other “optional” services. These services
include: pharmacy services, private duty nursing services, dental services,
durable medical equipment; hospice, case management; and any other medical care
recognized under state law and approved by the Secretary of HHS. 42 U.S.C. §1396d(a)
(6-19, excluding 17) and 42 U.S.C. §1396n(g)
ii. Maine 's Covered Services
Maine 's MaineCare program covers an extensive list of medical services. The
list of services, including the restrictions, criteria, procedural process,
rates of reimbursement, etc. are promulgated pursuant to the APA and are set
forth in the MaineCare Benefits Manual. Chapter 101 of the Rules of the Department
of Human Services. See http://www.state.me.us/sos/cec/rcn/apa/10/ch101.htm
iii. EPSDT for Children (Federal Requirements)
States must cover Early and Periodic Screening, Diagnosis and Treatment (EPSDT)
services for children and adolescents under age 21. 42 U.S.C. §§ 1396a(a)(10(A),
1396a(a)(43), 1396d(a)(4)(B), 1396d(r), 1396r-6(a)((4), (b)(4). EPSDT covers
four separate screening services -- medical, vision, hearing and dental -- and
includes immunizations, laboratory tests (including lead blood tests), and health
education. 42 U.S.C. §§ 1396a(a)(43), 1396d (r), 42 U.S.C. §1396a(a)(62)
Each type of screen must be furnished at pre-set, periodic intervals (periodic
screens) and when a problem is suspected (interperiodic screens). 42 U.S.C.
§§ 1396a(a)(43), 1396d(r)
The treatment component of EPSDT must include any necessary health care, diagnostic
services, treatment, and other measures, described in section 1396d(a) of the
Medicaid Act, to “correct or ameliorate” physical and mental illnesses
and conditions, whether or not such services are covered for adults in the state’s
Medicaid program.
42 U.S.C. §§1396a(a)(43), 1396d(r)(5) EPSDT also includes outreach
and information for children and their families about EPSDT and the importance
of preventive care, and to offer appointment scheduling and transportation assistance,
if needed. 42 U.S.C. §§ 1396a(a)(43)(a); 42 C.F.R. § 441.50 et.
seq.
iv. EPSDT in Maine
Maine 's EPSDT program covers all the listed services in the MaineCare Benefits
Manual and, in addition, covers other services not listed. These other services
are referred to as EPSDT Optional Treatment Services. The process for obtaining
these services is set forth in Chapter V, §2 of the MaineCare Benefits
Manual.
Unlike services for adults, the EPSDT program must engage in "arranging
for . . . corrective treatment" that is needed. 42 U.S.C. § 1396a(a)(43)(C)
Thus, while the state generally is required only to pay for most services when
medically necessary, the state must provide or arrange for EPSDT. This imposes
an affirmative obligation on Maine 's program to ensure that children actually
receive needed care. See e.g. Doe v. Pickett, 480 F.Supp. 1281, 1221 (S.D. W.
Va.1979)
Federal Medicaid regulations, as well as the MaineCare rules, impose an "outer"
limit of six months for the initiation of medically necessary treatment services,
beginning from the date when the request for services is made. 42 C.F.R. §
441.56(e); Chapter V, § 2.04-3 (L) of the MaineCare Benefits Manual.
To assist Maine in meeting its outreach, informing, screening and treatment
goals for children, the state employs the services of an outside private agency,
the Public Consulting Group, Inc., referred to as MaineCare Member Services.
Their toll-free number is 800-977-6740. They can, at times, be involved in not
only providing names of participating MaineCare providers of specific types
of services in specific geographical areas, but also they can help to arrange
for those services.
v. Amount, Duration and Scope of Services
Although Congress mandated the inclusion of specified services in state Medicaid
plans, it did not explicitly define the minimum level of each service to be
provided. Rather, the Medicaid Act requires states to establish reasonable standards,
comparable for all eligibility groups, for determining the extent of medical
assistance, and these standards must be consistent with the objectives of the
Act. 42 U.S.C. § 1396a(a)(17). Federal regulations require that services
be “sufficient in amount, duration, and scope to reasonably achieve their
purpose.” 42 C.F.R. § 440.230(b). In addition, states may not “arbitrarily
deny or reduce the amount, duration, or scope of such services to an otherwise
eligible individual solely because of the diagnosis, type of illness, or condition.”
42 C.F.R. § 440.230(c) Finally, states may place appropriate limits on
a service based on such criteria as “medical necessity” or on utilization
review criteria. 42 C.F.R. § 440.230(d)
Many states have imposed limitations on services, such as a maximum number
of hospital days per year, a maximum number of physician visits per month, or
limitations on the quantity of drugs or prescriptions per month. The issue of
minimum state obligations has become critically important as states frequently
seek to reduce or control Medicaid costs by cutting back on services.
vi. Prior Authorization and Utilization Review
The Medicaid Act allows states to impose a number of utilization controls on
the use of services. 42 U.S.C. § 1396a(a)(30); 42 C.F.R. §§440.230
(d), 456.1 et. seq.
States may require prior authorization for health services to ensure that only
medically necessary services are reimbursed. 42 U.S.C. § 1396a(a)(30) Prior
authorization should be administered by “qualified” professionals.
42 U.S.C. § 1396a(a)(30) Prior authorization should not apply to emergency
services or EPSDT screens. H. Rep. 101-247, 101 st. Cong., 1st Sec. 399-400,
Sept. 20, 1989 ) reprinted in 1989 U.S.C.CA.N. 1906, 2125-26. In addition, the
prior authorization process cannot excessively delay the delivery of services.
See Ladd v. Thomas, 962 F.Supp. 284 (D.Conn. 1997) amended in part, 14 F.Supp.
2d 222 (D.Conn. 1998). Medicaid beneficiaries should receive notices and adequate
hearings following denial, delay, modification, or reduction of prior authorization
requests. Id.
In the MaineCare program prior authorization is handled through written request
made to the Prior Authorization Unit at the Bureau of Medical Services in the
Department of Human Services. The provider must submit the request. The process
is more fully described in Chapter I of the MaineCare Benefits Manual. For prior
authorization of prescription drugs, which increasingly has become a fact of
life, the process is currently handled through Gould Health Systems. See http://www.ghsinc.com/papage.html
vii. Freedom of Choice
Medicaid beneficiaries have the right to choose among a range of qualified
providers who have elected to participate in the Medicaid program. 42 U.S.C.
§ 1396a(a)(23) (Providers may limit the number of MaineCare recipients
they treat.)
viii. Transportation Services
In the administration of their Medicaid programs, states’ Medicaid plans
must specify that the Medicaid agency will ensure necessary transportation for
beneficiaries to and from providers and describe the methods the state will
use. 42 U.S.C. §1396a(a)(4)(A); 42 C.F.R. § 431.55. States must offer
transportation and appointment scheduling assistance to children and their families
as part of the EPSDT service, See, 42 C.F.R. § 441.62.
Transportation services in Maine are provided through regional transportation
agencies. A listing can be obtained through the MaineCare Member Services, 1-800-977-6740.Transportation
can either be provided by the recipient, a family member or friend, a volunteer
driver or van services. Rates of reimbursement differ by provider type. Transportation
services must be requested prior to any scheduled visit to a MaineCare covered
service provided by a MaineCare provider. The recipient must also state a reason
for needing the transportation services; such as they don't have a car, or can't
afford the gas, etc. Virtually any reason will suffice.
ix. Co-payments, Patient Billing
Federal law permits, 42 U.S.C. §1396o(a), and MaineCare imposes "nominal"
co-payments on some services. For example, co-payments for prescription drugs
range from $.50 to $3.00. Co-payments may not be imposed on services to children
under age 21, to pregnant women, to recipients in state custody, etc.
Medicaid is generally a vendor payment program that makes payments directly
to health care providers. Health care providers participating in Medicaid enter
an agreement with the state Medicaid agency. 42 U.S.C. §1396a(a)(27) As
described below, the federal Medicaid Act specifies payment rules that must
be used to reimburse providers for covered services. 42 U.S.C. § 1396a(a)(24)
States must provide methods and procedures relating to utilization of and payment
for Medicaid services to assure that payment rates are consistent with efficiency,
economy, and quality of care and services. 42 U.S.C. §1396a(a)(30)(A);
42 C.F.R. §447.200 et.seq. The “equal access” provision also
requires states to assure that payments are sufficient to attract enough providers
so that care and services are available to the Medicaid population at least
to the extent they are available to the general population in the geographic
area. 42 U.S.C. § 1396a(a)(300(A); 42 C.F.R. §447.204
In the case of services for children, the EPSDT requirement of providing services
within an outer limit of 6 months applies to all services coverable by Medicaid,
even if those services are not available to the general population.
Providers who accept MaineCare may not bill patients, even when MaineCare rejects
the claim which the provider has submitted, or pays less than the provider's
usual charge. Providers may not bill for broken appointments. Providers are
responsible for ensuring that the patient is eligible and that the service is
covered and that all preconditions have been met. The only circumstance under
which the provider can bill is if the provider clearly informed the patient
before the provision of services that the service was not covered by Medicaid
and the patient agreed to assume responsibility for the service. This must be
documented in the patient's file. Chapter I, Section 1.05 and 1.06-4 of the
MaineCare Benefits Manual.
D. Bureaucracy in Maine
i. Role of BFI
The Bureau of Family Independence (BFI, within the Department of Human Services
determines a person's basic eligibility for the MaineCare program, as well as
eligibility for Food Stamps and TANF
ii. Application Process
Applicants for Medicaid ordinarily apply through the regional office of the
Department of Human Services. Any individual must be given the opportunity to
apply for Medicaid without delay, 42 U.S.C. § 1396a(a)(8); 42 C.F.R.§
435.906, and must be allowed to bring a representative with him/her to assist
or represent the applicant during the application process. 42 C.F.R. §
435.908 The agency’s standards and methods for determining eligibility
must be consistent with Title VI of the Civil Rights Act, the Americans with
Disabilities Act, and section 504 of the Rehabilitation Act. 42 C.F.R. §435.901
and 42 C.F.R. pt.80.
States must accept and process short-form Medicaid applications for pregnant
women and children at locations other than welfare offices, including disproportionate
share hospitals and federally qualified health centers. 42 U.S.C. § 1396a(a)(55);
42 C.F.R. §§ 435.904, 435.907(c) This function is called “out
stationing.” States should not require a subsequent face-to-face interview,
even if a hospital or health clinic employee takes the application. 42 C.F.R.
§ 435.904(d)(2)
States are required to inform applicants and recipients of the benefits available
under the program and of their rights and obligations, and to assist individuals
who are applying. 42 U.S.C. §§ 1396a(a)(8), (19); 42 C.F.R. §§
935.903, 905 In addition, states are required to inform all Medicaid-eligible
individuals under age 21 of eligibility for EPSDT services. 42 U.S.C. §
1396a(a)(43)(A); 42 C.F.R. § 441.56 States also must inform all Medicaid-eligible
pregnant, postpartum, and breastfeeding women, and children under the age of
five of the availability of WIC benefits. 42 U.S.C. § 1396a (a)(53)
Federal regulations require Medicaid applicants and recipients to obtain any
annuities, pensions, retirement, and disability benefits to which they are entitled,
unless they show good cause for not doing so. 42 C.F.R. § 435.608
Persons who may be eligible under more than one Medicaid category must be allowed
to choose under which category they want their application considered. 42 C.F.R.
§ 435.404
A written application must be completed by the applicant or, if he is incompetent,
a responsible person acting on his behalf. 42 C.F.R. § 435.907 The agency
will ask each applicant (including a child) to furnish his or her social security
number (SSN); applicants who do not have a SSN must apply for one. 42 U.S.C.
§ 1320b-7; 42 C.F.R. § 435.910 The agency cannot deny or delay services
pending verification of the SSN or SSN card issuance, and it must assist an
applicant who does not have a SSN in applying for one. 42 C.F.R. § 435.910
(f)-(g) Non-applicant parents/household members may not be required to provide
a SSN, and assistance to an applicant cannot be denied because the non-applicants
did not provide SSNs.
Applications may either be submitted by mail or in-person at the regional offices
of the Department of Human Services.
Once the application is completed and submitted, along with all necessary documentation,
e.g. proof of income, etc., BFI has 45 days to make an eligibility determination.
If eligibility is not determined by the 45th day then a temporary card is issued
on the 46th day covering services from that day forward until an eligibility
decision is made. (If eligibility is subsequently denied there are no over payments
in the program, so the recipient is not liable.
MaineCare recipients currently receive a monthly card, which is actually a
8 ½ by 11" piece of paper. It lists the household members who are
covered, whether a co-payment is required and may list whether the person is
in managed care. Beginning in 2003 recipients will receive a plastic card.
iii. Retroactive Coverage
If eligibility is granted then the coverage can date back up to 3 months prior
to the month of application, assuming all eligibility factors were met during
those months. Paid or unpaid bills can then be covered. See MaineCare Eligibility
Manual, Section 1400-1431, available at http://www.state.me.us/sos/cec/rcn/apa/10/ch332.htm
iv. Notice and Hearing Rights
Medicaid applicants and recipients have rights to notice and administrative
fair hearings when their claims for assistance are denied or not acted on with
reasonable promptness. These rights are found in the Medicaid statute and regulations
and also are guaranteed by the Due Process Clause of the United States Constitution.
42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.200, 431.206(c); 42
C.F.R. §431.200-.250
If the Medicaid agency intends to take action that is adverse to an individual,
he or she must receive notice of the intended action that is both adequate in
its content and timely. 42 C.F.R. §§ 431.206(b), 431.210, 435.912,
435.919 An adverse action means a termination, suspension or reduction of Medicaid
eligibility or covered services, and includes decisions by nursing facilities
to transfer or discharge patients. 42 C.F.R. § 431.201.
The notice must contain a statement of the intended action, reasons for the
action, specific legal support for the action, and an explanation of the individual’s
hearing rights, rights to representation and to continued benefits. 42 C.F.R.
§§ 431.206, 431.210
When the intended action involves termination of eligibility or suspension,
termination, or reduction of services, a notice of the intended action generally
must be sent at least ten days before the date of the action. 42 C.F.R. §§
431.206, 431.211, 431.214. The notice may be mailed no later than the day of
the action in exceptional circumstances, including instances when the recipient’s
physician prescribes a change in the level of medical care and when the recipient
has been admitted to an institution where he is ineligible for Medicaid. 42
C.F.R. §431.213
The agency must make available to an applicant or recipient, or his representative,
a copy of the specific policy materials to enable the person to decide whether
to request a hearing. An applicant or recipient must be allowed a reasonable
time to request a hearing, not to exceed 90 days from the date that notice of
adverse action is mailed. 42 C.F.R. § 431.221(d). The agency can require
the request to be in writing. 42 C.F.R. § 431.221(a) ( Maine does not require
requests be in writing if the person is disputing whether they are eligible
for Medicaid. If the person is contesting whether they are eligible for a particular
Medicaid service then the request for a hearing must be in writing.)
If the individual requests a hearing to contest Medicaid eligibility determinations
or the denial of a Medicaid service, he/she must be given recourse to the hearing
process. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.205, 220.
However, the “agency need not grant a hearing if the sole issue is a Federal
or State law requiring an automatic change adversely affecting some or all recipients.”
42 C.F.R. § 431.220(b) In Maine the hearing is before a DHS hearing officer.
The Hearing Officer either renders a final agency decision or makes a recommended
decision to the Commissioner who then renders the final agency decision.
If the hearing request is made prior to the effective date of the adverse action,
the recipient has a right to receive continued benefits pending the result of
the hearing. 42 C.F.R. §§ 431.210(e), 431.230, 435.930(b). In Maine
services are reinstated or maintained until the hearing decision if the individual
requests a hearing after the adverse action has taken place, and if the request
is made no more than 12 days after the date of the notice of adverse action.
See Section 1180, page 9 of the MaineCare Eligibility Manual.
Prior to the hearing, the applicant or recipient must have an opportunity to
examine his or her case file, as well as all documents and records that will
be used at the hearing by the state or local agency. 42 C.F.R. § 431.242(a)
The hearing must be conducted at a reasonable time, date, and place by an impartial
hearing official. 42 C.F.R. § 431.240(a) At the hearing, the claimant must
be allowed to present witnesses, establish facts, present argument, and cross-examine
adverse witnesses. 42 C.F.R. §§ 431.242(b)-(e) If a hearing involves
medical issues, an independent medical assessment must be obtained at agency
expense and made part of the hearing record if the hearing officer considers
it necessary to have a medical assessment in addition to that already made.
42 C.F.R. § 431.240(b) A request for a hearing means a clear expression
by the applicant or recipient or his representative that he wants the opportunity
to present his case to a reviewing authority. 42 C.F.R. § 431.201
A fair hearing decision can be based only on the evidence presented at the
hearing, and a decision must be provided in writing to the claimant within 90
days of the request for the hearing. 42 C.F.R. §§ 431.244(a), (f)
The decision notice must inform the individual of the reasons for the decision
and any additional administrative or judicial review that is available. 42 C.F.R.
§§ 431.244(d), (e), 431.245 If the decision is favorable to the claimant
or if the agency decides in her favor prior to the hearing, corrective payments
must be made retroactive to the date that the incorrect action was taken. 42
C.F.R. § 431.246
v. Role of BMS
Under federal Medicaid law a state is required to have a “single-state
agency” which is overall responsible for the state's implementation of
the Medicaid program. 42 U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10.
The single state agency must provide methods of administration that assure the
proper and effective operation of the state Medicaid plan. 42 U.S.C. §1396a(a)(4).
The agency cannot delegate its authority for exercising discretion in the administration
or supervision of the program or for the issuance of policies, rules, and regulations
on program matter. 42 C.F.R. § 431.10(e)
The Department of Human Services is Maine 's "single-state agency."
The Bureau of Medical Services, (BMS), within the Department of Human Services,
is overall responsible for ensuring that services under Maine 's MaineCare program
comply with federal requirements. BMS writes the policies which set forth the
covered services and BMS controls the funding for MaineCare covered services.
vi. Role of BDS
The Department of Behavioral and Developmental Services (DBDS) is overall responsible
for the provision of services to children who suffer from mental illness and
mental retardation, including developmental disabilities, such as autism.
Through a Memorandum of Understanding (MOU) DBDS and DHS have entered into
an agreement whereby DBDS is the "lead" agency in charge of ensuring
that children who are DD/MR/MI receive appropriate services. This MOU was required
by the 34-B M.R.S.A. §15003(1)
II. Children's Services
A. Organization of DBDS
The Department of Behavioral and Developmental Services (DBDS) is divided into
several bureaus. Adults are served either through the Bureau of Mental Retardation
or the Bureau of Mental Health. There is also a division for substance abuse
services. Children are served through the Division of Childrens and Youth Services.
Children are served through three regions. In each regional office there is
a Regional Director, a Childrens Team Leader, a Mental Health Team Leader and
a Mental Retardation Team Leader. For further information go to http://www.state.me.us/bds/
B. BDS Mission- Medicaid and non-Medicaid
The Department philosophically seeks to treat all children, regardless of source
of payment, in the same manner. 34-B M.R.S.A. §15002(2)(D) ("Each
child has access to the same choices for care . . .") However, children
who receive MaineCare benefits clearly have greater rights to services as the
establishment of the Childrens Mental Health Program "does not create any
new entitlements to care or services . . . ." 34-B M.R.S.A. §15002.
The Department is also philosophically committed to treating children in the
less restrictive and appropriate setting. Generally, the Department will seek
to maintain children in their home. 34-B M.R.S.A. §15002 (2) (A-B). Therefore,
parents who seek an out-of-home placement for their children, particularly a
permanent out-of home placement will have the burden of demonstrating why in-home
placement will not work.
C. Historic and Evolving Relationship Between DBDS and DHS
Historically, DHS viewed DBDS as the poor cousin who did not know how to handle
money. Since DHS is the "single-state agency" under federal Medicaid
rules, and therefore controlled all Medicaid funding and all Medicaid policies,
DBDS had to try to live within its budget or go begging to DHS for additional
funding.
To control costs, DBDS, in its contracts with providers of mental health treatment
services, sought to limit expenditures both for the Medicaid and the non-Medicaid
population. Since Medicaid is an entitlement any such limitations were illegal.
Nevertheless, for years children were placed on waiting lists due to a lack
of funding. One outcome of the French et. al. v. Concannon, 97-CV-24-B-C (D.Me.,
July , 1998, Order of Dismissal) lawsuit is that contracts between mental health
providers and DBDS no longer contain any funding limitations for Medicaid covered
services provided to MaineCare children.
D. Problem Areas in Childrens Services
i. Psychiatric hospitalization to residential treatment to in-home services
to outpatient services- the continuum of care
Historically, Maine has had rates of psychiatric hospitalization of children
that far exceed national averages. Many of the children were sent to out-of-state
facilities. One reason for this was that Maine lacked services in less restrictive
settings, such as in residential treatment facilities or in the home.
Beginning in 1998, Maine embarked on a program to develop services in less
restrictive settings. This effort came about both because of new legislation
and because of a lawsuit French et. al. v. Concannon, 97-CV-24-B-C (Order, July,
1998). Since that time Maine has developed 400+ residential in-state treatment
beds. In addition, Maine has added a new service--in-home behavioral support
services--to assist families in dealing with children with mental health issues
and behavioral issues.
ii. MR vs. MI
DBDS divides children between the MR/DD population and the mentally ill (MI)
population. Services for the MR/DD population is generally covered by Chapter
II, Section 24 and services for the MI population are covered by Chapter II,
Section 65 of the MaineCare Benefits Manual. Services not found therein, or
in other sections of policy such as Section 37 for home-based mental health
crisis services or Section 21 for home and community based services for persons
with mental retardation, may be coverable through optional EPSDT. See Chapter
V, Section 2 of the MaineCare Benefits Manual.
iii. Case Management Services
Case Management services are Medicaid covered services, See Chapter ;II, Section
13.12 of the MaineCare Benefits Manual, which assist the child and the family
in accessing services. It is the job of the case manager to come up with a service
plan outlining all the services that the family believes they need. Then the
case manager helps to arrange for any needed screening or assessments and helps
to arrange for implementation of treatment services. The case manager is not
generally a mental health professional and should not be determining whether
the child is eligible for any particular service. These services are provided
through private agencies under contract with DBDS.
iv. Lack of Providers
Despite the progress made, there are still significant problem areas. There
is a lack of providers of needed services. The lack of providers creates waiting
lists for services and results in children receiving inappropriate services,
e.g. being unnecessarily hospitalized, or going without any services. Often
when a child is to be released from a hospital and needs home or community based
services there are no providers.
v. EPSDT Mandate
As noted above, state Medicaid programs are legally obligated to provide for,
or arrange for, medically necessary treatment services with “reasonable
promptness” at an “outer limit of six (6) months.” This legal
mandate creates the legal mechanism for getting services to children.
Two recent class action lawsuits in Maine were based upon this mandate and
resulted in favorable settlements leading to the creation of home-based mental
health services for children, the expansion of case management services for
children and a requirement for the timely provision of those services. French
et. al. v. Concannon, 97-CV-24-B-C (Order, July, 1998); Risinger et.al. v. Concannon
et. al., 00-CV-116-B-C (Order of Dismissal, 7/22/02 )
vi. Grievance Process (Lack of Awareness)
State law provides for an expedited grievance (fair hearing) process for children
who are denied a service or have other complaints about the quality of a service,
scope of the service, etc. See 34-B M.R.S.A. § 15002(4)
a. Rules
The rules implementing the children's services grievance process are found
in the Rights of Recipients of Mental Health Services Who Are Children In Need
of Treatment, Chapter I of the rules of the Bureau of Children with Special
Needs. The rules can be accessed at ftp://ftp.state.me.us/pub/sos/cec/rcn/apa/14/472/472c001.doc
The rules provide for a hearing to be held within five calendar days of receipt
of the grievance form. The grievant can chose to waive the five-day limit. The
hearing officer’s decision must be issued within seven days from the filing
of the grievance. Unfortunately the Hearing Officer’s decision is only
a recommended decision to the Commissioner who then has seven (7) days to issue
a final decision. Decisions can then be appealed pursuant to the Maine Administrative
Procedures Act and Rule 80B.
vii. Other Resources
For a greater understanding of the Medicaid program, including EPSDT, the National
Health Law Program maintains both a website, see http://www.nhelp.org/ and publishes
informative guides to the program. See e.g. An Advocates Guide to the Medicaid
Program, June 2001 and Representing Clients who Need Medicaid Early and Periodic
Screening, Diagnosis and Treatment, September 2001.
Dated: November 2002
