An Act To Protect Access to Services for Adults with Serious and Persistent Mental Illness
Maine Legislature, Session 129, LD 1822
Committee: Health and Human Services
Sponsors: GATTINE
Amends: 34-B MRSA §3613

Legislative Document
No. 1822
H.P. 1299
House of Representatives, June 3, 2019
An Act To Protect Access to Services for Adults with Serious and 
Persistent Mental Illness
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204.
Reference to the Committee on Health and Human Services suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative GATTINE of Westbrook.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  34-B MRSA §3613 is enacted to read:
§3613.  Access to services
1.  Mental health services. For purposes of this section, "mental health service" 
includes only the following services, as described in the department's MaineCare rules or 
in the provider's contract with the department:
A.  Assertive community treatment;
B.  Behavioral health homes;
C.  Community integration;
D.  Community rehabilitation;
E.  Crisis services, including any crisis stabilization unit;
F.  Daily living support;
G.  Skills development;
H.  Day support;
I.  Medication management; and
J.  Residential treatment.
2.  Department review and dispute resolution. An adult with serious and persistent 
mental illness, as defined in rules adopted by the department pursuant to this section, who 
is receiving or is eligible to receive any mental health service from a provider pursuant to 
a contract with the department to provide such a service may obtain upon request, with 
prior notice to the provider, an informal review by the department of the provider's 
actions under the following circumstances:
A.  When a hospital's treatment or discharge planning team has determined that a 
mental health service is necessary for the adult with serious and persistent mental 
illness to transition from a hospital into the community and has made a referral to a 
provider under contract with the department to provide the service and the provider 
has refused to accept the referral in violation of the terms of the provider's contract;
B.  When the adult with serious and persistent mental illness is not hospitalized and 
has applied for or been referred to a provider under contract with the department to 
provide community integration services or assertive community treatment and the 
provider has refused to accept the referral or application in violation of the terms of 
the provider's contract; or
C.  When the adult with serious and persistent mental illness is receiving a mental 
health service and has that service terminated or suspended by a provider in violation 
of the terms of the provider's contract with the department to provide that service.
An adult with serious and persistent mental illness may not obtain department review of a 
provider's refusal to provide residential treatment if there was no vacancy or if the 
department did not authorize the service.
The informal review process must include an opportunity for the provider and the person 
requesting the review to provide relevant information to the department and for informal 
dispute resolution by the department to facilitate access to the service.
3.  Department findings.  At the conclusion of the informal review and dispute 
resolution process provided for in subsection 2, if access to the service has not been 
provided, the department shall issue written findings regarding whether the provider's 
action is in violation of the provider's contract with the department.  These findings do 
not constitute final agency action as defined in Title 5, section 8002, subsection 4 and are 
not appealable.
4.  Private right of action.  An adult with serious and persistent mental illness who 
is aggrieved by the action of a provider as described in subsection 2 and who has not been 
provided access to the mental health service by the provider within a reasonable period of 
time in response to department review may bring a private civil action in Superior Court 
for declaratory and injunctive relief to enforce by restraining order or injunction, 
temporarily or permanently, the terms of the provider's contract with the department.  The 
department must be notified of the action in writing prior to filing.
A.  To be accepted for filing, an action filed under this subsection must be 
accompanied by true and accurate copies of the department's findings issued pursuant 
to subsection 3 and the provider's contract, both of which are admissible as evidence 
in the proceeding.
B.  Nothing in this section may be construed to create a cause of action by the 
provider or the individual plaintiff against the department.  The department may not 
be named by the provider or the individual plaintiff as a defendant, 3rd-party 
defendant or party in interest in an action filed under this section, but the department 
is not precluded from bringing an action to enforce the provider's contract with the 
department or moving to intervene in a private right of action under this section.
C.  An individual bringing an action under this subsection is not required to allege or 
prove that the refusal, termination or suspension of services would cause irreparable 
injury or harm to that individual, but to obtain injunctive relief the individual must 
prove by a preponderance of the evidence that the provider's action violates the terms 
of the provider's contract with the department.
D.  An individual bringing an action under this subsection is not required to post a 
bond.
E.  The remedies available in an action under this subsection include both mandatory 
and prohibitory injunctive relief.
F.  An individual who obtains injunctive relief in an action under this subsection may 
recover reasonable attorney's fees and costs, not to exceed $1,000, from the provider 
against whom judgment was entered.
G.  An individual who brings an action under this subsection is not liable to the 
provider for damages resulting from bringing or pursuing the action unless the action 
was brought in bad faith or without a reasonable belief that the provider was not 
acting in compliance with its obligations under its contract with the department.
H.  The members of an individual's hospital treatment or discharge planning team 
may not be compelled by subpoena to appear in person to testify in an action brought 
under this subsection but may submit sworn testimony by affidavit unless otherwise 
ordered by the court upon a showing of good cause.
I.  There may be no discovery in any action filed pursuant to this subsection unless 
agreed to by the parties or ordered by the court upon a showing of good cause.
J.  Court proceedings in any action filed pursuant to this subsection must be closed to 
the public unless the individual plaintiff has requested a public hearing, and the 
court's case file must be kept confidential and may not be released except to the 
department, subject to confidentiality protections, without the written permission of 
the individual plaintiff.
5.  Rulemaking.  The department shall adopt routine technical rules pursuant to Title 
5, chapter 375, subchapter 2-A governing the process for informal department review 
described in this section, which must include a definition of "adult with serious and 
persistent mental illness."
SUMMARY
This bill establishes the right of an adult with serious and persistent mental illness 
who is denied access to certain services by a provider contrary to the terms of the 
provider's contract with the Department of Health and Human Services to seek informal 
department review of the provider's action and informal dispute resolution by the 
department to facilitate access to the service.  If the adult continues to be denied access to 
the mental health service following department review, the adult may bring a private civil 
action in Superior Court for injunctive relief to enforce the terms of the provider's 
contract with the department.  The bill requires the department to adopt routine technical 
rules governing the process for informal department review, which must include a 
definition of "adult with serious and persistent mental illness."