Did the state violate the Constitution by kicking Aroostook County man off MaineCare?

By Eric Russell, BDN Staff
Posted April 19, 2012, at 1:22 p.m.

PORTLAND, Maine — At the end of the year, Fort Fairfield resident Hans Bruns will be eligible to regain the MaineCare benefits he lost last October.

He could be dead by then.

Bruns, 65, was diagnosed earlier this year with adenoid cystic carcinoma, a rare form of cancer. He needs radiation and chemotherapy. He needs medication to numb the pain that he says makes even simple tasks like eating meals excruciating. He needs health care.

But for that last six months, Bruns has been able to access only emergency care. He, along with as many as 500 others, received a letter from Maine’s Department of Health and Human Services last fall explaining that he no longer was eligible for subsidized health insurance.

“Your coverage is being reduced because state law has changed,” the letter to Bruns reads. “This decision is based on MaineCare Eligibility Manual, Part 2, Section 3. This rule explains that some legal immigrants will only get MaineCare emergency benefits.”

That law change was part of the state’s biennial budget that passed in June 2011 and is one part of Gov. Paul LePage’s administration’s effort to reduce the number of people collecting MaineCare benefits.

Bruns is not a U.S. citizen. He’s a German citizen. But he is a permanent resident of the United States and has been since December 2007.

Because of his immigration status, Bruns is considered a “qualified alien” and, as of October 2011, all qualified aliens must wait five years before they are eligible for full MaineCare under last year’s state change.

But Bruns needs the care now.

“I consider myself to be strong and to be able to bear a lot of pain,” Bruns wrote in a court affidavit. “But on a scale of 1 to 10, my pain level is right now a 23. The pain is unbearable and I feel as though a knife is cutting my neck and a hammer is constantly beating my head when I walk.”

That affidavit is the centerpiece of a civil lawsuit filed Thursday in U.S. District Court in Bangor against Department of Health and Human Services Commissioner Mary Mayhew.

Maine Equal Justice Partners and the American Civil Liberties Union of Maine filed the suit on Bruns’ behalf, claiming that eliminating his benefits violates the Equal Protection Clause of the United States Constitution.

“Without proper treatment, Hans faces a terrifying and painful fight for his life with a very poor prognosis for survival,” said Robyn Merrill, a policy analyst and attorney for Maine Equal Justice Partners. “We are asking the court to restore Hans’ health insurance coverage so he can get the full range of treatment that could result in better health outcomes and ease his suffering.”

The groups hope the suit turns into a class action as more plaintiffs sign on.

DHHS spokesman John Martins said the department typically does not comment on open court cases. He did say that the decision to alter eligibility requirements was difficult but it has resulted in $1.3 million in savings in 2012 and $2.6 million in 2013 to a MaineCare program that is over budget.

Martins also said that the recent law change brings Maine in line with federal law on whether to provide subsidized health care to legal noncitizens who have been in the country for fewer than five years.

Statistics from the Kaiser Family Foundation show that 21 states provide some coverage to legal noncitizens but only 15 offer state-funded services.

Bruns ended up in Maine in 2009 after he and his wife, a U.S. citizen, separated. Seeking a cooler climate, he traveled north from Texas and landed in Aroostook County. He wanted to settle in New Brunswick across the Canadian border but didn’t have a visa.

He became eligible for MaineCare in 2010 after he was deemed physically disabled. But it wasn’t until more recently that he became really sick.

Dr. Danielle N. Margalit, a physician in the Department of Radiation Oncology, Head and Neck Oncology Program, at the Dana-Farber Cancer Institute at Brigham and Women’s Hospital in Boston, diagnosed Bruns with cancer in February.

She wrote in an affidavit filed with the lawsuit that the adenoid cystic carcinoma has created a large tumor in Bruns’ neck. He also has an apparent lesion in his lung, which might be a distant metastases of the cancer.

Bruns has been getting treatment in Presque Isle, but it’s considered charity care. He is not eligible for cost reimbursement for travel from his home to Presque Isle for treatment and his prescriptions are not covered. Without significant treatment, Bruns could die within six to 12 months, Margalit wrote.

“I have to keep begging for [care] and never know if it will be there,” Bruns wrote. “I’m told that this is a somewhat rare form of cancer and that there is a good chance that I might die from it in a short time. I’m told that I need chemotherapy, radiation and maybe surgery. I need a lot of pain medication. But now, when I need MaineCare the most, it is not there to help me.”

Cost of the charity care that Bruns is receiving is shifted onto private health insurance premiums. The same could be said of hundreds of other Mainers who lost benefits last October.

Jeffrey Austin, a lobbyist for the Maine Hospital Association, said anytime someone loses benefits, either in the private sector or through MaineCare, it puts a greater burden on providers.

But Austin also acknowledged that lawmakers have no good choices when it comes to addressing problems within the system.

Rep. Meredith Strang-Burgess, R-Cumberland, House chairwoman of the Health and Human Services Committee, said she remembers the discussion about this line item in last year’s budget.

She said initially the number of noncitizen MaineCare recipients who stood to lose benefits was going to be much higher. Once the committee was done working with the department, the number of people affected was about 500.

“I know every single one is a person with a story,” Strang-Burgess said. “Our thought was that it’s a small enough number, maybe other services will pick up their care.”

In some cases, that has happened. In others, like Bruns’, it hasn’t.

Strang-Burgess said there is an argument to be made that it costs taxpayers more to kick people off MaineCare but she also recognized the need to get MaineCare’s eligibility rolls to a manageable number.

Jennifer Archer, an attorney with Kelly, Remmel & Zimmerman, will take the lead in Bruns’ case and is working pro bono.

“Hans and many others have been improperly, and without sufficient justification, singled out and denied health insurance coverage that provides medically necessary treatment,” she said in a statement Thursday. “Hans’ life hangs in the balance today, but we know that there are hundreds of other Maine residents who also are being wrongly denied necessary medical care.

“We are asking the court to find that current law violates the Constitution and order the Department of Health and Human Services to restore health insurance coverage for Hans and other, similarly situated individuals.”

Follow BDN writer Eric Russell on Twitter at @BDNPolitics.

CORRECTION:

An early version of this story had an incorrect headline which referenced the Maine Constitution, not the U.S. Constitution.

http://bangordailynews.com/2012/04/19/news/state/did-dhhs-violate-constitution-by-kicking-aroostook-county-man-off-mainecare/ printed on August 23, 2014