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DRM Secures Continued Access to Free Counseling for Survivors of Abuse at Governor Baxter School for the Deaf

by | Jun 20, 2023 | Deaf Services, Success Stories

In early February 1982, a magazine article was published, which made public the horrific abuse experienced by former students and survivors of the Governor Baxter School for the Deaf (GBSD).

The Attorney General’s Office and the Department of Human Services’ Child Protective Services (CPS) both investigated and issued reports documenting serious physical and sexual abuse of students at the school. However, no criminal charges were filed. According to the AG’s report, this was because the Department of Education had failed to act upon allegations of wrongdoing at the school as early as 1976 which meant that the statute of limitations had expired. The CPS report found that GBSD staff failed to report suspected abuse to CPS as required by law, in all but one case

After those reports were issued, there was public outrage. However, no further action was taken; no services or support were offered to survivors.

In 1998, a group of former GBSD students began informally meeting. They began to discuss ways to help each other develop community resources to promote healing and to seek compensation for former students who experienced abuse. They called themselves “The Safer Place.”

The Safer Place approached the Legislature about changing the statute of limitations so that former students could bring a lawsuit. After a lengthy process of wrestling with this issue, and hearing stories from former students, the Legislature decided not to enlarge the statute of limitations. Instead, the Legislature decided to do two things:

First, the Legislature developed a way to compensate survivors. The Baxter Compensation Authority (BCA) was created in 2001. Claimants had to show a reasonable likelihood that they had endured physical or sexual abuse, and needed to bring their claim before a three-member panel for adjudication. Successful claimants received financial compensation and an official apology.

Second, and less well known, was the Legislature’s passage of a private and special law that provided for continued counseling for former students at no cost to the students. A private and special (P&S) law is a bill that has been passed by the Legislature and signed by the Governor and becomes law, but does not appear in the statute books; it is called an unallocated statute.

While discussing the creation of a compensation program for survivors, the Legislature recognized the importance of continued mental health services for former students, and passed the private and special law to provide them. The state had begun to pay for counseling for former GBSD and Maine School for the Deaf students. The counseling recognized that former students had endured and witnessed severe abuse as children, at the hands of school staff, and the State of Maine had failed to stop or prevent the abuse, which continued for decades.

The Legislature acknowledged that even when a program for financial compensation was created, it would not provide the mental health services that former students would continue to require. So, the P&S law was written to ensure counseling could be accessed by any former GBSD student, even those not compensated under the BCA. DHHS had been paying for counseling services for all former students, with contributions from the Departments of Education and Labor.

The GBSD was a residential school for Deaf students from across the state. Many students experienced physical or sexual abuse while at the school; others experienced emotional and verbal abuse, and/or witnessed the abuse of other students. All of the students lived in a traumatic environment of pervasive fear and intimidation, where they had to live day and night with the abusers.

As a result, access to continued counseling services was never conditioned on submission of a claim to the BCA. These services were intended to be trauma-informed, low-barrier and widely available to all former students, including those who were exposed to non-physical abuse and trauma.

During the spring of 2022, DRM began receiving reports of former students having trouble accessing counseling, and began investigating. DRM reached out to former students and providers of counseling services. We reached out to the Department of Health and Human Services (DHHS), through the Attorney General’s Office, to discuss these issues.

DRM discovered that in 2021, DHHS had revised its contracts with providers to restrict Baxter Fund counseling services to only former students who applied to the BCA for compensation and who were referred for counseling during the claims process. These were entirely new limitations on eligibility that were not intended when the P&S law was enacted in 2001. DHHS did not notify former GBSD students or those providing counseling to the former students of these changes.

In May 2023, on the day Governor Mills announced proposed changes to the budget, the Department of Health and Human Services’ Office of Behavioral Health notified DRM that it was proposing legislation that would permanently alter the counseling program created for former GBSD students. The legislation would have codified the changes reflected in the June 2021 contracts with counseling providers, with only limited exceptions.

A hearing was scheduled on the DHHS proposal one week after the budget change proposal was announced. DRM contacted DHHS, advising them that DRM opposed this legislation. DRM explained we opposed this legislation because the counseling program had been created for all former students, not only BCA claimants. In addition, the legislation appeared to exclude former students who had private health insurance from accessing counseling services. DRM identified two individuals with historical knowledge to testify: one individual who had been involved in the creation of the free counseling services for survivors and had provided counseling through the program for years; and, one individual who was a former BCA employee. Both explained why the counseling program was created, and its history of serving all former students.

Following the hearing, DRM and DHHS negotiated language that made it clear that all former students who had graduated or attended the GBSD prior to July 1, 2021 were eligible for counseling, including individuals who had not submitted BCA claims, and individuals with private health insurance coverage. The amended language has been included in the proposed budget and appears headed for passage.

After DRM Brings Suit, DHHS Agrees to Accommodation Process for Sec. 19 Recipients Affected by 40 Hour Cap

by | Jul 31, 2017 | Accessibility, Success Stories

MaineCare members who direct their own services under Section 19, the Adults with Disabilities Waiver, may be able to get some help staying in their own home as a result of a case brought by Disability Rights Maine (DRM).

MaineCare members who receive Sec. 19 services meet nursing home level of care, but are able to, and choose to, live in their own homes.  In order to stay in their homes under Sec. 19, members have help with activities of daily living, such as walking, bathing, eating, etc.  They get the help from Personal Attendants (PAs).

According to the rules governing Sec. 19, PAs can only be paid for providing services for not more than 40 hours in a week; services in excess of 40 hours in a week are a non-covered service.  The 40 hour cap is a problem because if Sec. 19 members don’t get the services from the PAs, they could end up in a nursing home.  For individuals who receive services from an agency, the agency is responsible for hiring and training the PAs.  For individuals who direct their own services, the MaineCare member is responsible for hiring and training the PAs.  It is well documented that Maine has a shortage of direct care workers.

For members who direct their own care, there are a number of reasons why it can be difficult to find PAs.  Alpha One maintains a list of PAs, but this is a limited resource; those on the list may already be working or the list could be out of date.  It is often difficult to find someone to only work a few hours in a week, so called “orphan hours”.  Some members have particular needs that mean that the PA must have specialized training.  Other members live in remote areas of the state where it is difficult to find workers.  Workers sometimes quit, leaving the member without staff to fill all the hours until a new worker is hired.  Travel can also be a problem, particularly in winter.

A woman who lives in a remote area of the state contacted DRM because she wanted to keep the one PA she has had, on and off since 1998, to continue to provide all 86 hours of services a week that she needs.  She had tried to comply with the rule, but was not successful.  She contacted Alpha One, but no PA on the list was available.  She then advertised on Craigslist and hired two PAs.  One stole from her, and the other suddenly quit.  She then hired the PA who had been providing all 86 hours of services to continue to provide the 86 hours; otherwise she would have ended up in a nursing home.

DRM began by sending a letter requesting that the state modify its policy because if she didn’t have all 86 hours of services, she would end up in a nursing home.  When DHHS did not respond, DRM filed suit.

DRM brought suit alleging that the failure to accommodate her violated her rights under the Americans with Disabilities Act (ADA and Section 504 of the Rehabilitation Act of 1973.  In 1998, the U.S. Supreme Court decided that the unnecessary institutionalization of people with disabilities violated the ADA in the Olmstead decision.  DRM claimed that DHHS needed to develop an exception to the rule (ETR) process so that this client, and others like her, could seek an exception to the 40 hour rule, so that they would not end up in a nursing facility.

After DRM sued, DHHS quickly agreed to settle the case.  DHHS agreed to work with DRM to create new language in Sec. 19 so that members who are at risk of institutionalization can seek an exception to the 40 hour cap.   The agreement requires DHHS to develop criteria in making a decision to grant the exception.  The criteria will include, but will not be limited to: the availability of caregivers in the member’s area; the number of hours needed above the cap; whether the member’s condition is unique as compared to other Section 19 members; the length of time for which the exception is requested; and the member’s efforts to find other caregivers.

DHHS agreed to make a decision within 30 days of the request, sooner if needed.  If the request for an exception is denied, the member may file a fair hearing appeal.

Although not part of the settlement agreement, DHHS asked DRM to work together to develop a process so that members can seek reasonable modifications for other MaineCare programs.