?we? UNITED STATES DISTRICT COURT DISTRICT OF MAINE MICHAEL AND SUSAN RISINGER, ON BEHALF OF THEIR MINOR DAUGHTER, JILL ANNMARIE FITZPATRICK, ON BEHALF OF HER MINOR SON, ERIC FITZPATRICK, all on behalf of themselves and all others similarly situated; and THE DISABILITY RIGHTS CENTER OF MAINE, INC, as Maine?s Protection and. Advocacy System, Plaintiffs, V. - KEVIN CONCANNON, COMMISSIONER, MAINE DEPARTMENT OF HUMAN and LYNN DUBY, COMMISSIONER, MAINE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION AND SUBSTANCE ABUSE SERVICES, Defendants. Civil Action Docket No: FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiffs, for their complaint against Defendants Kevin Concannon, Commissioner of the Maine Department of Human Services and Duby, Commissioner of the Maine Department of Mental Health, Mental Retardation and Substance Abuse Services state as follows: NATURE OF ACTION 1. This is a class action by Plaintiffs, the parents of children who are under the age of 21, who are enrolled in the Maine Medicaid program and who are in need of behavioral and mental health services. The Plaintiffs? children have all been diagnosed with severe emotional illnesses or mental health impairments requiring intensive behavioral assistance at home to reinforce positive behavior, to teach daily living skills, and to prevent them from harming themselves and others. 2. Under state and federal Medicaid laws, the State of Maine has made a legally binding and enforceable commitment to provide these children with periodic mental health assessments for diagnostic and treatment purposes, and with corrective or ameliorative treatments, including case management services, mental health behavioral support services, and personal care services. 3. Rather than providing the services and treatments as and when required by federal law, and notwithstanding the good intentions and efforts of many state employees, the Defendants have effectively chosen to ration these essential services and treatments by letting children languish on waiting lists, by providing services, by providing inadequate services, and by maintaining a system of unpredictably unequal access and services, all establishing a general pattern and practice of delayed, inadequate and/or unreliable in-horne mental health services to Maine children. 4. Plaintiffs bring this action seeking declaratory and injunctive relief, and other appropriate relief, on behalf of themselves and the class, to require the Defendants to revise their policies, practices and procedures to meet their obligations under Medicaid. JURISBICTION AND VENUE S. This Court has original jurisdiction over this action pursuant to 28 U.S.C. 1331 because this action arises under federal law. Jurisdiction is also authorized pursuant to 28 U.S.C. l343(a)(3) in all suits authorized by 42 U.S.C. 1983 to redress the deprivation under color of law of any rights guaranteed to Plaintiffs by acts of Congress. 6. This court has jurisdiction over Plaintiffs? action for declaratory and injunctive relief, and for other appropriate relief, pursuant to 28 U.S.C. 2201 and 2202, Federal Rules of Civil Procedure 57 and 65, and 42 U.S.C. 1933. 7. Venue in this Court exists under 28 U.S.C. 1391(a) because a substantial part of the events or omissions giving rise to this action occurred within this judicial district and because both of the Defendants are subject to personaljurisdiction in this District. THE PARTIES 8. Jill Risinger is l3 years old and lives with her family in Winslow, Kennebec County, Maine. Her parents, Michael and Susan Risinger, bring this action on her behalf. Jill suffers from Angelman?s a form of mental retardation. Jill functions at the level of a 20?- to 35-month~old child, is unable to speak, and requires assistance 24 hours a day. 9. Eric Fitzpatrick is 14 years old and lives with his family in Augusta, Kennebec County, Maine. His mother, Annmarie Fitzpatrick, brings this action on his behalf. Eric suffers from Attention Deficit and Hyperactivity Disorder Post Traumatic Stress Disorder sensory? integration dif?culties, and Speech and language de?cits. Eric has a history of neglect and abuse and suffers from fetal alcohol . 1.0.. Plaintiff Disability Rights Center, Inc. is a nonpro?t corporation duly organized under the laws of the State of Maine, designated by the Governor of the State of Maine as the statewide protection and advocacy agency to protect and advocate for the legal and civil right of those citizens who have physical, mental and learning disabilities pursuant to the Developmental Disabilities Assistance and Bill of Rights Act Act?), 42 U.S.C. ?6000 et seq, the Protection and Advocacy for Mentally Ill Individuals Act Act?), 42 U.S.C. ?10801 et seq, and 5 M.R.S.A. ?l9501 et seq. DRC maintains its of?ces at 24 Stone Street, in Augusta, Kennebec County, Maine. 1 1. As the duly designated statewide protection and advocacy agency for individuals with physical, mental and learning disabilities in the State of Maine, DRC has the authority and responsibility to pursue legal remedies or relief as may be necessary to protect and advocate for the rights of those persons within the State of Maine who are, or who may be, eligible for treatment, services or habilitation due to their physical, mental and/or learning disabilities. 42 U.S.C. ?6000 et seq; 42 U.S.C. ?10801 et seq; 5 M.R.S.A. ?19501 et seq. 12. Defendant Concannon is the Commissioner of the Maine Department of Human Services the single state agency responsible for the administration of Maine?s Medicaid program. Commissioner Concannon?s responsibilities include the administration and preper implementation of the Maine Medicaid program. 13. Commissioner Concannon is also responsible for ensuring that other state agencies that provide or arrange for services paid for under the Medicaid program comply with all Medicaid laws and policies. These other state agencies include the to which DHS has delegated the administration of certain mental health components of the Medicaid program. 14. Defendant Duby is the Commissioner of the through its contracts and a Joint Memorandum of Understanding, jointly administers the Maine Medicaid program with DHS. As such, Commissioner Baby is also responsible for the administration and implementation of the Maine Medicaid program. 15. Commissioner Concannon and Commissioner Duby have acted and continue to act at all times relevant to this Complaint in their official capacities and under color of state law. Plaintiffs bring this action against them in their of?cial capacities only. CLASS ACTION ALLEGATIONS l6. Plaintiffs bring this action on behalf of themselves and all persons similarly situated pursuant to Federal Rule of Civil Procedure 23(a) and The class is de?ned as follows: All current or future recipients of Medicaid in the State of Maine who are under the age of twentyaone (21), who have a mental health impairment, and for whom the State of Maine is failing to provide or arrange for screening services andfor medically necessary mental health services as and to the extent required in order to correct or ameliorate the mental health impairment. 17. The Plaintiff class is so numerous and geographically diverse throughout the State of Maine that joinder of all members is impracticable. 18. There are at least 500 class members in the State of Maine who are in need of in- home mental health services and who are currently not receiving needed services. Unmet Needs Identified on the Child ?5 Individual Service Plan (March 24, 2000) 19. There are questions of law and fact common to the class, such as, without limitation, whether the general policies, practices and procedures of the Defendants are such that they result in a widespread failure to arrange for or provide to class members in? home mental health services as and to the extent required in order to correct or ameliorate . mental impairments. This failure affects and/or threatens all members of the class. 20. The named representative Plaintiffs? claims are typical of the claims of the class. Plaintiffs and members of the proposed class are suffering from the inability to obtain screening arid/or mental health services as and to the extent required in order to correct or ameliorate their mental impairments. 21. The named representative Plaintiffs will fairly and adequately represent the interests of the proposed class. Plaintiffs have a clearly de?ned and personally vital controversy with the Defendants which dictates that they will fully and vigorously prosecute this action. At stake for Plaintiffs is their ability to obtain needed screening and/or mental health services as and to the extent required in order to correct or ameliorate their mental impairments. 22. Plaintiffs are represented by attorneys experienced in federal class action litigation and public assistance benefits, and particularly the Maine Medicaid program. The named Plaintiffs seek relief that will inure to the benefit of the class as a whole. 23. Plaintiffs seek certi?cation of the class under Federal Rule of Civil Procedure 23(b)(2) in that Defendants? policies, practices and procedures in meeting the mental health needs of Medicaid-eligible children under the age of 21 impermissibly limit and deny Plaintiffs access to needed mental health services, have generally affected the entire class, thereby making ?nal injunctive and declaratory relief appropriate with respect to the class as a whole. MEDICAID PROGRAM: STATUTORY BACKGROUND Federal'Medicaid Requirements 24. The Medicaid program, under Title XIX of the Social Security Act, is a joint federal-state rnedical assistance program for certain groups of low-income persons. See 42 U.S.C. 1396 et seq. One of the purposes of the Medicaid program is to provide ?services to help such families and individuals attain or retain capability for independence or self-care.? Id. at 1396. 25. At the federal level, the Medicaid program is administered by the US. Department of Health and Human Services? Health Care Financing Administration. 26. States are not required to participate in Medicaid, but once a state agrees to participate in Medicaid, it must comply with the requirements imposed both by the act itself and by the Secretary of Health and Human Services. 27; All states participating in Medicaid must make available Early and Periodic Screening, Diagnosis and Treatment services for Medicaid?eligible children under the age of 21. 42 U.S.C. 1396a(a)(43), l396d(a)(4)(B) and 1396d(r). 28. The purpose of EPSDT services is to ascertain children?s physical or mental defects, and to arrange for or provide such health care, treatment and other measures to correct or ameliorate defects and chronic conditions discovered through EPSDT screenings. The policy underlying the EPSDT mandates is to assure that health problems are diagnosed and treated early, before they become more complex and their treatment more costly. 29. The Medicaid Act requires participating states to provide an EPSDT program consisting of the following services: (A) informing all persons in the State who are under the age of 21 and who [are] eligible for medical assistance . . ., of the availability of early and periodic screening, diagnostic, and treatment services as described in section l396d(r). . . . (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services . . . . 42 U.S.C. 1396a(a)(43). 30. In addition, the Medicaid Act requires states to arrange for ?[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [section 1396d(a)] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.? 42 U.S.C. 1396d(r)(5). These services include, without limitation, home health care therapy and related services, rehabilitative services ?for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level,? case management services, and personal care services. See, eg, 42 U.S.C. 1396d(a)(7), (13), (19) and (24). 31. States must provide Medicaid bene?ts to all eligible individuals with reasonable . promptness. See 42 U.S.C. l396a(a)(8); 42 CPR. 32. In order to provide these required services, ?[t]he agency must make available a variety of individual and group providers quali?ed and willing to provide EPSDT services.? 42 C.F.R. 441.6103). 33. The agency must additionally ?provide such methods and procedures . . . to assure that payments [to providers] are consistent with ef?ciency, economy, and quality of care and are suf?cient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general pepulation in the geographic area.? 42 U.S.C. l396a(a)(30)(A). 34. Apart from the EPSDT services requirements, participating states are additionally required under the Medicaid Act to provide home health care services, personal care services and case management services to Medicaid~eligible individuals when medically necessary. 42 U.S.C. 1396d(a)(7), (l9) and (24). Maine?s Medicaid Program . 35. The State of Maine has opted to participate in the Medicaid program. DHS is the single state agency that administers the Maine Medicaid program. Maine Medical Assistance Manual, Chapter V, 2.01?17. 36. As a Medicaid participant, the State of Maine must make available throughout the state EPSDT services, including screening, treatment and case management services, for Medicaid?eligible children under the age of 21. See 42 U.S.C. 1396a(a)(1) and 1396d(a)(4)(B); see also Maine Medical Assistance Manual, Chapter V, 2.01-7 and 2.044. 37. As a participating state, the State of Maine is also required to provide home health care services, personal care services and case management services to Medicaid? eligible individuals when medically necessary and in a manner ensuring equal access. See 42 U.S.C. l396d(a)(7), (l9) and (24). 38. The State of Maine must provide these and other Medicaid bene?ts to all eligible individuals with reasonable promptness. See 42 U.S.C. l396a(a)(8); 42 C.F.R. see also Maine Medical Assistance Manual, Chapter V, and (L). 39. In addition, the State of Maine must make available avariety of individual and group providers quali?ed and willing to provide EPSDT services. See 42 CPR. Part of this requirement entails payments to providers that are suf?cient to enlist enough providers so that care and services are available at least to the extent that such care and services are available to the general population in the geographic area. See 42 U.S.C. l396a(a)(30)(A). 40. DHS may not limit EPSDT services delivered under contract or agreement by EPSDT providers based on any ?nancial limitation in the contract or agreement. See Maine Medical Assistance Manual, Chapter V, 2.03. 4-1. Many of these requirements were the subject of another class action lawsuit, French v. Concannon, No. (D. Me. ?led May 12, 1997), challenging practices of placing children with mental retardation and mental illnesses on waiting lists for case managers and behavioral services due to budgetary constraints. . 42, As a result of the French lawsuit, DHS agreed, among other things, to provide EPSDT screenings, treatments and case managers and to provide these services with reasonable promptness. 43. To implement the French settlement, last August adopted a uniform EPSDT screening tool called the Child and Adolescent Level of Care Utilization System CALOCUS is supposed to be used for determining the appropriate level of behavioral health services to be provided to these children, based upon measurements concerning the Risk of Harm, Functional Status, Comorbidity or complicating medical, or substance abuse disorders, Recovery Environment Stress and Support, Resiliency, and Acceptance and Engagement on the part of the child and parents or caregivers. 44. DHS additionally agreed as part of the French settlement that it would not use ?nancial limitations in provider contracts to limit the availability of medically necessary Medicaid and EPSDT services. 10 FACTUAL ALLEGATIONS Jill Risiuger 45. Jill Risinger, age 13, has Angelman?s which is characterized by mental retardation, sleep disorders, behavioral disorders, and the inability to speak. 46. Jill is non-verbal, functions at a level far below her age and requires full-time assistance with her activities of daily living, including toileting, eating, bathing and dressing. 47. She receives Medicaid under the "Katie Beckett" program because she meets the de?nition of disability, would otherwise be institutionalized in an Intermediate Care Facility for the Mentally Retarded, but, with appropriate services, she can be cared for safely at home. See 42 U.S.C. ?1396a(e)(3). 48. Through Medicaid, Jill has a case manager and has been diagnosed under the EPSDT program at the highest level of need for in-home behavioral support services. 49. Since about miduDecember 1999, Jill has not been receiving consistent in~horne behavioral support services. From rnid~Decernber 1999 until late January 2000, Jill received no in-horne behavioral support services. Although her plan of care indicates a need for roughly 20 to 28 hours of in?home behavioral support services per week during the school year, from late January until late February of this year, Jill averaged only 10 hours per week of such services. 50. Since Jill began receiving EPSDT services, she has consistently experienced problems with reliability, having had to settle for on-again-off?again services. 51. Without these services Jill's behavior regresses and she becomes increasingly frustrated. Unable to verbalize her frustrations, she acts out her frustrations in inappropriate behaviors. ll 52. Jill?s most recent EPSDT assessment from January 2000 indicates that her condition has worsened since her last assessment of June 1.999. Upon information and belief, this regression is the result of the lack of adequate and reliable in~home mental health services. Eric Fitzpatrick 53. Eric Fitzpatrick, now 14 years old, was born with fetal alcohol As a young child, he suffered from abuse and neglect and was placed in foster care with Annmarie Fitzpatrick at the age of ?ve. Annmarie adopted Eric in October of 1998, when Eric was 12. 54. Eric currently has Post Traumatic Stress Disorder, Attention De?cit and Hyperactivity Disorder, sensory integration issues, and speech and language deficits. Because of his fetal alcohol Eric has neurological problems making him mentally de?cient. He cannot read and has dif?culty processing language. 55. In February 1999, Annmarie contacted the State of Maine to request a case manager for Eric. Eric has not been assigned one to date. 56. From April 1999 until August 1999, Eric received some limited behavioral support services at about half of the level he was authorized to receive. From late August 1999 until February 2000, Eric had no behavioral support services and, since that time, Eric has only sporadically been provided these services. 57. Annmarie inquired of DHS about a CALOCUS assessment for Eric, but was told that Eric may not receive this screening service until he is assigned a case manager. 58. For each of the children in the class, in~home behavioral supports are needed to correct and/or ameliorate each?s mental health impairment. 12 S9. Appropriate and consistent in~horne behavioral supports for the plaintiff children, when and to the limited extent provided, have resulted in improved behavior, better grades and overall school performance, decreased after~school detentions, increased school attendance, and the avoidance of crisis contacts and hospitalizations. And, for many of these children, their relationship with an appropriate in?home behavioral specialist is the first exposure to unconditional positive feedback. Defendants? Administration of the Medicaid Program 60. With respect to these Plaintiffs and the Plaintiff class, Defendants have failed to meet statutory and regulatory requirements for Medicaid services, including, but not limited to, by failing to provide case managers, by failing to provide or to arrange for the provision of screening services, and by failing to provide or to arrange for necessary corrective or ameliorative treatment, such as in-home behavioral support services. 61. Defendants have failed to meet the additional statutory and regulatory requirement that such services be provided with reasonable promptness, instead allowing the Plaintiffs to languish on waiting lists. See, ag, 42 U.S.C. 1396a(a)(8) (?assistance shall be furnished with reasonable promptness to all eligible individuals?) 62. Defendants have failed to meet the statutory requirement that they make available a variety of individual and group providers quali?ed and willing to provide EPSDT services. 63. Defendants have failed to make adequate payments to providers to enlist enough providers so that care and services are available as required by federal law. 64. Defendants have determined that the types of services generally required by members of the plaintiff class require a person who has either a Bachelors degree or a high school degree and three years of clinically-supervised experience, as compared to 13 the high school degree that the State says is required to provide in?home services to adults. Yet, Defendants? general policy and practice is to pay providers of in?home services-to members of the plaintiff class approximately $5 less, rather than more, per heat, than that which the State allows for the provision of in-horne services to adults by persons with lesser quali?cations, thereby creating an arti?cial shortage of persons and providers available to meet the needs of the plaintiff class. 65. This arti?cial shortage of persons available to provide the necessary services is further exacerbated by Defendants? failure to pay amounts suf?cient to cover travel costs, resulting in even fewer available services for children in Maine?s rura}. areas. 66. The Defendants? administration of the EPSDT program is inefficient in the sense that it is not in the best interests of the bene?ciaries, it imposes financial, administrative and procedural barriers that diminish participation by EPSDT providers, it diminishes opportunities for Maine to bene?t from matching federal funds, and in the long run it increases the cost to the State of addressing the numerous problems that could be remedied or ameliorated if the services provided were as required by the reasonable medical needs of the members of the plaintiff class. 67. Plaintiffs have no adequate remedy at law and, therefore, seek immediate and permanent injunctive relief to compel the Defendants to arrange for the medically necessary in~home behavioral supports. 68. Plaintiffs have suffered and continue to suffer immediate and irreparable harm due to the Defendants? policies, practices and procedures that cause the denial of or delay in the provision of medically necessary in?home Medicaid covered services. 14 DRC 69. Plaintiff DRC has standing to bring this action on its own behalf, as well as a representative of the plaintiff class, because of the refusal of the Defendants to provide services to legally protected interest. This injury is concrete, particularized, actual and imminent. There is a causal relationship between the injury and Defendants? challenged conduct, and a favorable decision will redress the injury. COUNT I (Violation of EPSDT and Related Provisions of the Medicaid Act) 70. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 69 as though fully set forth herein. 71. Defendants have failed to arrange for, either directly or through referral to appropriate organizations or individuals, corrective or ameliorative treatment for the plaintiffs? children, the need for which was disclosed-during screening and/or assessment, in violation of 42 U.S.C. 1396a(a)(43). 72. Defendants? policies, practices and procedures have meant that there is not a variety of individual and group providers quali?ed and Willing to provide EPSDT services, thereby violating 42 C.F.R. 73. Defendants? failure to adopt policies, practices and procedures to provide EPSDT screening services to diagnose and provide corrective or ameliorative treatment for the Plaintiffs? children?s mental health impairments violates 42 U.S.C. 1396a(a)(43), 1396d(a)(4)(B), 1396d(r)(5), 1396a(a)(30), and 42 C.F.R. 441.50 at seq. 74. Defendants? failure to adopt policies, practices and procedures to ensure the availability of medically necessary case management and in-hon?ie mental health services 15 to correct or ameliorate the Plaintiffs? children?s mental health impairments violates 42 U.S.C. 1396a(a)(43)(C), 1396d(a)(4)(B), 1396d(r)(5) and 1396a(a)(30)(A). COUNT II (Violation of Reasonable Promptness Requirement of the Medicaid Act) 75. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 74 as though fully set forth herein. 76. Plaintiffs? children are entitled to receive EPSDT screenings, case management services and in?home mental health services under the Medicaid Act, 42 U.S.C. 1396 etseq. 77. Plaintiffs? children are not receiving these services in a timely and/or reliable manner as and to the extent necessary in order to correct or ameliorate their mental impairments. 78. Defendants have, therefore, failed to provide such services with reasonable promptness in violation of42 U.S.C. 1396a(a)(8) and 42 C.F.R. 441.5663). COUNT (Violation of 42 U.S.C. 1983) 79. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 78 as though fully set forth herein. 80. Defendants, at all times relevant to this Complaint, were acting under color of law, namely the Medicaid Act and its implementing regulations. 81. Plaintiffs? children are entitled to the provision of case managers, screening services, and medically necessary in~home mental health services under the Medicaid Act. See 42 U.S.C. 1396a(a)(43) (screening and treatment services) and 42 U.S.C. 1396d(r)(5) (case management services). 16 82. Plaintiffs? children are entitled to the provision of Medicaid services with reasonable promptness. See, 42 U.S.C. 1396a(a)(8). 83. Defendants have deprived the Plaintiffs? children of their rights under the Medicaid Act by failing to provide them with case managers, screening services, andfor in~home mental health services and by further failing to provide such services with reasonable promptness as and to the extent necessary to correct or ameliorate their mental impairments in violation of 42 U.S.C. 1396a(a)(8), 13963(a)(10), 1396a(a)(43), l396d(a)(4)(B), l396d(r)(5), 1396a(a)(30) and 42 CPR. 441.50 at 589., 84. Defendants have, therefore, violated 42 U.S.C. 1983. REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: 1. Grant immediate and ?nal injunctive relief requiring the Defendants to establish policies, practices and procedures that are suf?cient to provide case management, screening and mental health services to members of the class as and to the extent necessary to correct or ameliorate their mental impairments, as required by federal law. 2. Grant declaratory relief to the Plaintiffs declaring that the actions of the Defendants violate Plaintiffs? rights in the following manner: A. Defendants? policies, practices and procedures that result in the lack of timely and adequate in?home mental health services for children with mental impairments is unlawful; B. Defendants? policies, practices and procedures that result in the lack of timely case management services for children with mental impairments is unlawful; 17 C. Defendants? policies, practices and procedures that result in the lack of timely assessments being performed on children with mental impairments is unlawful; D. Defendants? delay in providing mental health services, case management services, and assessments for children with mental impairments is unlawful; and E. Defendants? failure to adopt policies, practices and procedures to ensure the provision of the above~mentioned services as and to the extent required to correct or ameliorate the mental impairments of the class members is unlawful. 3. Require Defendants to supply to Plaintiffs and the Court sufficient information on a quarterly basis in order to monitor compliance with the Court?s order; 4. Award Plaintiffs their reasonable attorneys? fees and costs in bringing this action; and 5. Grant Plaintiffs any and all other relief to which they may be entitled. DATE: June 30, 2000 a lived/l Willgm . Kaiaita, Jr. Mar aret Minister O?Keefe Pierce Atwood One Monument Square Portland, ME 04101 207.791.1100 Patrick F. Ende Maine Equal Justice Project PO. Box 5347 Augusta, ME 04332?5347 207.626.7058 18 Peter M. Rice Disability Rights Center of Maine 24 Stone Sireet PO Box 2007 . Augusta, ME 04338-2007 207.626.2774 Of Counsel: Jane Perkins National Health Law Program 211 N. Columbia, 2?d Floor Chapel, NC 27516 919.968.6308 19