The Department of Justice has filed a federal lawsuit against Maine for “unnecessarily segregating children with behavioral health disabilities in hospitals, residential facilities and a state-operated juvenile detention facility.”

The lawsuit, filed Monday in U.S. District Court in Portland, says Maine is violating the Americans with Disabilities Act and the Supreme Court’s Olmstead decision. Federal authorities had notified the Mills administration in June 2022 that it was violating the civil rights of disabled children and could face legal action.

“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,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “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.”

Carol Garvan, legal director of the American Civil Liberties Union Maine, said it is unusual for federal authorities to take this step, as typically when states lack services for children with disabilities, the deficiencies are most often resolved prior to a federal lawsuit.

“The situation here is dire,” Garvan said “We have been raising concerns about a lack of behavioral health access for years.”

Among the examples of substandard care that federal officials highlighted in Maine in the 2022 letter, the Justice Department wrote that Maine was using the Long Creek Youth Development Center as a “de facto children’s psychiatric facility.”

A representative of Long Creek declined to comment on the suit when reached by phone Monday evening, saying that questions should be directed to the Maine Department of Corrections. The department did not reply to emailed questions about the complaint and previous concerns about understaffing and child safety.

But Lindsay Hammes, spokesperson for the Maine Department of Health and Human Services, said in an email response to questions that the Mills administration agrees that Maine “like every state – has an obligation to protect children with behavioral health disabilities and that such services should be provided within communities to the greatest extent possible.”

“That is why over the past six years (Gov. Janet Mills) and the Legislature have provided significant new investments to strengthen children’s behavioral health services, and why the Maine Department of Health and Human Services had been working closely with the Department of Justice to address its initial allegations from March, 2022.”

Hammes said state officials are “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 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.”

But Atlee Reilly, managing attorney of Disability Rights Maine, said in a statement that Maine has not heeded calls to improve services for “more than a decade” and that the lawsuit was the “necessary result of that continued failure.”

“Twenty-five years after the landmark Supreme Court decision Olmstead v. L.C., which found that unnecessarily segregating people with disabilities into institutional settings violated the Americans with Disabilities Act, Maine children and their families are still waiting for a legally compliant behavioral health system,” Reilly said.

Federal law mandates that state and local governments provide community-based services to children with disabilities in the “most integrated setting appropriate for each child’s needs,” the Department of Justice said in a statement.

“Absent these services, Maine children with disabilities enter emergency rooms, come into contact with law enforcement and remain in institutions when they could remain with their families if Maine provided them sufficient community-based services,” the Department of Justice said.

WORKFORCE SHORTAGE

Advocates have long decried Maine’s behavioral health system, arguing that there are not enough services available for the demand, in part due to a systemic workforce shortage. The crux of the problem, advocates say, is that reimbursement rates the state sets for Medicaid mental and developmental health services – while they have improved in recent years – have not kept up with what other employers are paying. That has led to the closures of group homes and restricted services while demand grows.

The lawsuit detailed wait lists for an array of community- and home-based mental and developmental services, and found that average wait times to receive help ranged from a low of slightly under six months to nearly a year. Some children were waiting nearly two years to get help. Monthly wait lists for certain services had more than 400 children waiting for care.

In the face of limited services, the complaint alleges that Maine crisis staff have told parents to call the police when requesting help for their children, increasing the chance that they end up at places like Long Creek.

“As a result, most children at Long Creek have behavioral health disabilities,” the suit alleges.

A 2016 Department of Corrections report found that nearly 85% of children admitted to Long Creek arrive with at least three mental health diagnoses, the suit states.

“Law enforcement officers are not mental health professionals and so, in general, they cannot effectively provide behavioral health services,” the suit says. “They may interpret the child’s disability-related behaviors, such as not responding to police commands, as criminal activity.”

Amber Miller, a juvenile defense attorney who works with Heron Legal Youth Advocacy, said police may lack background about a child’s needs or what may trigger certain responses from them, which can worsen crises. She added that the state lacks options for intervention before behavioral issues reach crisis levels.

“We have to start providing a continuum of services,” including home visits and family-based treatment, Miller said.

STUCK IN THE JUSTICE SYSTEM

Miller said the longer children are isolated in places like Long Creek, the harder it can be to reenter the outside world. That can create a cycle of behavior that effectively keeps some children stuck in the justice system.

“Everything in their life is sort of organized by Long Creek and the DOC, and that is a very structured, very restrictive environment. And so, the longer that you’re in that, you become reliant on that,” Miller said. “You really miss that peer-modeling, that typical family structure, your typical school day. … If all you see modeled is this very closed universe in Long Creek, then how are you supposed to learn those (appropriate) behaviors if you don’t see them?”

Long Creek staff sent a letter to the Department of Corrections earlier this year, outlining “a crisis” in which chronic understaffing and poor working conditions have undermined the safety of staff and children.

Miller said “a surprisingly high percentage” of her clients are placed on suicide-watch after arriving at Long Creek.

Abby Bedard, 13, is comforted by her father Mike at Redington Fairview General Hospital in July, where Abby has been staying for more than 200 days. Abby has cerebral palsy and epilepsy and struggles with emotional/mental health issues. Derek Davis/Staff Photographer

Many children with mental health needs end up in hospitals while waiting for placement in community-based group homes, including the recent case of Abby Bedard, a 13-year-old Bingham girl who has spent several months living at the Redington-Fairview General Hospital emergency department while waiting placement.

Nancy Cronin, executive director of Maine’s Developmental Disabilities Council, a quasi-government agency funded by federal and state dollars, who has advocated on behalf of the Bedard family, said no one in the Mills administration is taking charge to solve the problem. That lack of responsibility has led to long wait lists, and many children not getting the help they need, she said.

“We need to figure out a system of care to take care of these kids before they reach crisis levels. Abby should have had services five years ago,” Cronin said. “This should be an outrage.”

According to the lawsuit, “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.”

DETRIMENTAL TO DEVELOMENT

Miller agreed, and she said the impact of that lost time can be extremely detrimental to a child’s development.

Miller said her own son, now 16, spent around three weeks at Spring Harbor Hospital when he was 12 years old. She said her son was having a mental health crisis, to which police responded.

Before being offered a place at Spring Harbor, Miller’s son spent at least three weeks in an adult emergency room – longer than his actual stay would last. He sat on a cot in the hallway for his first two days there, she said.

“I think it’s more typical than we know,” Miller said.

Eventually, the boy was discharged “to services that weren’t available,” Miller said, adding that the family has never “been given an effective step-down plan” from inpatient care.

Miller, who has a strong family support network and is familiar with the system, said she could hardly imagine how difficult navigating it would be if she lacked that familiarity or did not speak English.

“Many families don’t have the support to be able to provide the amount of advocacy that’s necessary,” Miller said. “Or they are not provided with enough of the knowledge to understand what to do.”