PORTLAND, Maine — Possibilities Counseling, a once-thriving, now-shuttered Auburn mental health agency, is likely to be the subject of a class-action lawsuit, despite the fact that most of its social workers and other affiliates have now been paid what they were owed.
In Portland on Tuesday, a Business and Consumer Court judge said he’ll likely allow hundreds of social workers, counselors and other affiliates of Possibilities Counseling to band together in a class-action lawsuit against the agency and its former billing company, Affiliate Funding. But justice Andrew M. Horton also said he will likely set criteria that limits who can join such a suit.
The two sides will submit their arguments regarding that criteria over the next week. Horton will rule sometime after that.
Located on Center Street in Auburn, Possibilities Counseling had about 550 affiliate therapists and case managers serving 10,000 mental health clients around Maine. Possibilities was supposed to bill the state and private insurance agencies on behalf of the affiliates and then pay those affiliates.
But last fall, a pair of surprise Maine Department of Health and Human Services inspections found that 16 of 18 office staffers had walked out and were replaced largely by the untrained family and friends of Possibilities owner Wendy Bergeron. The state issued a conditional license and gave Bergeron a number of conditions she had to meet over the next year. Instead, Bergeron closed the agency.
During that time, hundreds of affiliates claimed Possibilities Counseling wasn’t paying them, and some said the company hadn’t paid for months. They said they were owed between several hundred dollars and tens of thousands of dollars.
Since then, with the help of a court ordered “referee,” nearly all of the affiliates have been paid, an amount that totals more than $1 million. Much of that money was paid by the state and private insurers who hadn’t been properly billed before.
But there are still unresolved issues, including interest on the recent payments, agency fees that affiliates feel Possibilities shouldn’t get to keep, and attorneys’ fees. Those will be the likely focus of any class action lawsuit.
Lawyers for Possibilities Counseling and Affiliate Funding argued Tuesday that a class-action lawsuit would help only the lawyers — who would make money from attorneys’ fees — not the affiliates or the court system. They urged the judge to deny the class action and force each affiliate to file a separate lawsuit, likely through Small Claims Court. They believe most of the 550 affiliates won’t file, and won’t win if they do.
“You could be [defending] that for the next six years,” Horton pointed out.
“I don’t mind,” said Russell Pierce, lawyer for Possibilities Counseling.
Lawyers for the affiliates argued that the affiliates have the right to a class-action lawsuit, and they balked at the idea a class action was of personal interest.
“This lawsuit isn’t about lawyers getting paid, it’s about clinicians getting paid,” said Gregory Hansel, a lawyer for the affiliates.
At one point during the morning-long hearing, Horton said he was leaning toward approving the class action, and he asked the two sides to try to agree on the criteria for inclusion in such a suit. But after nearly 30 minutes of discussion, no agreement could be reached.
Horton said he will likely approve a class action and set the criteria himself after reading the arguments from both sides. A ruling won’t be announced for at least a week.