A state senator who has fought to restore Maine’s corps of public health nurses is suing Gov. Paul LePage’s administration for failing to comply with a 2017 law that required the state to hire more than two dozen nurses and rebuild a public health program the administration largely dismantled in its first six years in office.
Sen. Brownie Carson filed a lawsuit in Kennebec County Superior Court on Monday asking the court to order LePage’s administration to hire the nurses within 90 days. The lawsuit also requests that the court appoint a special auditor to ensure the Maine Department of Health and Human Services complies with any court order.
Carson and two nurses who are joining him in the lawsuit as plaintiffs “are seeking nothing more than what the law already requires,” reads the suit against Health and Human Services Commissioner Ricker Hamilton.
Traditionally, public health nurses in Maine have conducted home visits with at-risk mothers and infants, including addicted mothers and drug-affected babies, to monitor their health; provided school nurse services in rural schools without their own school nurses; worked to contain infectious diseases such as tuberculosis; and assisted in responses to public health emergencies.
“The new law requires DHHS to hire these nurses to protect the health of Maine people,” Carson, a Harpswell Democrat, said in a statement. “DHHS is clearly violating this law.”
[Read the full lawsuit here.]
The two nurses who are part of the suit, Sarah DeCato of Bethel and Donna Ellis of Alfred, both applied for public health nursing positions after the 2017 law took effect but were never hired.
Both have master’s degrees in nursing and decades of experience in public health. DeCato worked six years as a state public health nurse before taking another job in 2014. Ellis, whose public health experience includes stints working on U.S. Army bases, interviewed twice for a job in the program. The supervisor who interviewed her later wrote in an email, “We still need you (desperately).”
“There’s funding there to hire nurses,” said DeCato. “I don’t understand why the department isn’t hiring highly qualified nurses to work.”
Lawmakers have continued to provide funding for public health nurse positions throughout the LePage administration, but the administration has filled few of the positions that have become vacant, diminishing the public health nursing program’s reach.
At the 2011 start of the LePage administration, the state employed about 50 public health nurses, plus their supervisors, program consultants and a director. As of June, according to the Legislature’s Office of Fiscal and Program Review, 19 of the state’s 42 current public health nurse positions were filled. Half of the program’s four supervisor positions were vacant as well.
Carson last year sponsored legislation requiring that Maine DHHS fill the public health nursing positions for which the Legislature provided funding, after reading a 2016 Bangor Daily News article about the program’s dismantling.
“Once people understand the value, the importance, the humanity, the medical necessity of having a full complement of public health nurses,” Carson said, “you almost have to be from another planet not to see that the need is legitimate and the value is high.”
The legislation overcame a veto by LePage to become law. It set a March 1, 2018, deadline for the state to make the required hires, but the state still had more than 20 positions to fill when the deadline passed, and it had stopped advertising the open positions.
In May, a public health nursing supervisor told Ellis, who was inquiring about the status of the position she had interviewed for in January, that the LePage administration had “put a pause on [hiring] at the beginning of February,” according to an email included in Ellis’ affidavit filed with the court.
When asked about the stalled hiring earlier this month at a Government Oversight Committee hearing, Hamilton, the DHHS commissioner, told lawmakers his department had recently hired a public health nursing program director but that the department had to receive approval from LePage’s office before it could hire public health nurses.
“This is really about the rule of law,” said Tim Shannon, the plaintiffs’ lawyer. “Everyone has to follow the law, even the laws they don’t like. Even this administration.”
Shannon, a Portland-based lawyer for Verrill Dana who took on the public health nursing case pro bono, said the legislation sponsored by Carson removed any question in Maine law about DHHS’ obligation to hire public health nurses.
“Whatever discretion the department had previously, or once had, the Legislature concluded it was abusing that discretion,” he said.
“What’s unusual about this case is, rarely do you see an executive branch agency so directly undermine the Legislature’s intent. There’s not a lot of precedent for this level of intransigence.”
A spokeswoman for DHHS said Monday she couldn’t comment on pending litigation.
A spokeswoman for Attorney General Janet Mills didn’t immediately respond to a question about whether Mills would defend the state against the lawsuit or authorize the LePage administration to hire a private lawyer, as she’s done in a number of other cases. Mills testified in favor Carson’s legislation when it was pending before the Legislature.
DHHS has released little information about its management of the public health nursing program and the actions it’s taken in response to the 2017 law. In May, the department said it would cost Carson more than $67,000 to fulfill a public records request for much of this information. That’s why the lawsuit requests that the court appoint a special auditor “to quickly spot the kind of intransigence, evasion, foot-dragging, and misinformation the Department has exhibited to date,” the filing reads.
“Unfortunately, we do not trust the department to implement the court’s order if left to its own devices,” said Shannon, who is a candidate for attorney general. “This is a serious situation that requires monitoring.”
DeCato wanted to return to the program she had left in 2014 to participate in its rebuilding. While DHHS leaders have cited a shortage of qualified nurses as an obstacle, DeCato said her and Ellis’ experiences show that qualified, experienced nurses wanted to work in public health nursing, and the state turned them down.
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