Federal judge says lawsuit against DHHS now class action

Posted Feb. 02, 2011, at 7:13 p.m.

BANGOR, Maine — More than 40 Maine residents with cerebral palsy, epilepsy and other related conditions will join a lawsuit seeking to force the Maine Department of Health and Human Services to provide opportunities for them to live independently outside of nursing homes.

U.S. District Judge John Woodcock on Monday granted class-action status to a lawsuit filed more than a year ago by three men with cerebral palsy who want to live on their own but retain support services.

Filed in December 2009 in U.S. District Court in Bangor, the lawsuit alleges that DHHS, in the operation of its Medicaid program, violated the Americans with Disabilities Act and the Nursing Home Reform Act because it failed to offer people with cerebral palsy, epilepsy and other related conditions opportunities to live out-side of nursing homes.

In addition, the plaintiffs have claimed that for those who do live in nursing homes, DHHS has failed to provide necessary services required under federal law.

“If the [supposed] class members were to proceed on an individual basis, they might obtain the individual service they seek without obtaining systemic changes to DHHS’s conduct that would benefit the class as a whole, a result that could lead to countless individual claims seeking the exact same relief,” Woodcock wrote in his decision. Obtaining relief on a classwide basis ensures an efficient judicial remedy to any deficiency in DHHS’s conduct.”

Eric Reeves, 34, of Penobscot is one of the three named plaintiffs. He lives in Penobscot Nursing Home. The other named plaintiffs are Jake Van Meter, 27, who lives in a nursing home in Ellsworth, and Adam Fletcher, 29, who lives in a similar facility in Braintree, Mass.

A trial date has not been set.

“Judge Woodcock’s decision represents a landmark victory for people with disabilities unnecessarily confined to nursing facilities,” attorney Jeffrey Neil Young of Topsham, who represents the plaintiffs, said in an e-mail Tuesday. “All individuals, regardless of age, should be able to elect to live in the community, not in nursing facilities, if they so desire. Regardless of where individuals with disabilities choose to live, they are entitled to obtain the services they need to allow them to live as independently as possible.

“For over 20 years, Maine has shirked its responsibilities to individuals with cerebral palsy, epilepsy and similar conditions,” he continued. “Judge Woodcock’s ruling is the first step in a journey to compel the state to live up to its responsibilities to its citizens with disabilities.”

Efforts on Wednesday to reach attorneys in the Maine Attorney General’s Office representing DHHS were unsuccessful due to inclement weather. However, it is the practice of the office not to comment on cases until they have concluded.

Assistant Attorney General James Fortin argued against class certification on several grounds including that there were not more than 40 class members in Maine — the number required for class certification — and that by the time the case was concluded, it would be moot because of a current construction project.

In recent months, Jake Van Meter’s mother, Linda Elliott of Ellsworth, has partnered with Community Housing of Maine and the Charlotte White Center in Bangor to renovate the former Knights of Columbus headquarters on Court Street in Bangor.

Elliott said this week the housing project is moving steadily ahead and could be completed within a year, about the time the lawsuit might be ready for trial.

“I’m happy that there are a lot of other people we are representing and fighting for,” Reeves said when told of Woodcock’s decision.

Young, Reeves’ attorney, said that it “makes no sense to fix the problem for some, but not fix it for everyone.

“This ruling will allow the type of broad relief our clients want for themselves and for others,” Young said. “Nursing homes are not places for young people. If you have to be there, you want to make sure you get the services you need.”

Young’s co-counsels in the case include attorneys from Maine Equal Justice Partners, the Disability Rights Center and the National Health Law Program.

BDN writer Eric Russell contributed to this report.

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