Clarification of Rules and Contract Provisions Regarding the Bates Consent Decree  

The Department of Health and Human Services is in the process of updating Office of MaineCare Services’ (OMS) rules in the MaineCare Benefits Manual (MBM) and Rider E of the Office of Behavioral Health’s (OBH) mental health services contracts to better conform with the Bates v. AMHI Consent Decree that is binding on the State. These requirements have already been added to MBM Chapter II, Section 65 (Behavioral Health Services), effective August 19, 2020; the changes are included in proposed rulemakings for Section 97 (Private Non-Medical Institutions, Appendix E, posted January 20, 2021), Section 17 (Community Support Services, filed with the Secretary of State April 13, 2021), and Section 92 (Behavioral Health Home Services, filed with the Secretary of State April 13, 2021). Changes described below will be incorporated into the Rider E Section of Office of Behavioral Health mental health services contracts beginning on July 1, 2021, or the next scheduled contract renewal. 

In 2004, the Maine Law Court held in Bates v. Department of Behavioral and Developmental Services (2004 ME 154, ⁋ 68) that the State must provide the same community mental health services to qualifying non-class members as are required for class members under the Consent Decree, and that qualifying non-class members are all Adults with Serious and Persistent Mental Illness. More information on the Consent Decree and the Department’s response can be found here.  

The Consent Decree provides, and MaineCare rules will require, upon adoption, that providers of mental health services must obtain written approval from the Director of OBH or designee prior to terminating services for members with Serious and Persistent Mental Illness or refusing a referral of an Adult with Serious and Persistent Mental Illness. These terms - which are already in place for Section 65 services for Department referrals for medication management and Crisis Residential, and for providers operating under OBH contracts -  mean providers must accept referrals for all Adults with Serious and Persistent Mental Illness. The provider shall either accept the referral or obtain permission from the Director of OBH to decline the referral within seven (7) calendar days. Permission may be sought for reasons such as program eligibility or lack of openings. Providers must request authorization through the Kepro Atrezzo system.    

These terms –  which are already in place for Section 65 services and for providers operating under OBH contracts – also mean providers shall not terminate services of class members without authorization from the Director of OBH in order to ensure that services are provided in a manner consistent with the Department's obligations under the Consent Decree. Written approval is not required in cases where the terminating provider has successfully facilitated a member’s transfer, with the member’s consent, to a new provider. Providers must request authorization through the Kepro Atrezzo system. Admission of a member to an acute care hospital does not constitute a transfer or a discharge under OBH contracts or MaineCare rules.   

In addition, Critical Incident Reports for both Adult OBH-funded and Adult MaineCare-funded members should now be submitted through the Atrezzo portal for OBH review and follow up. Critical Incident Report forms should no longer be faxed or emailed to OBH.  

Training for all new Atrezzo functions can be found at https://me.kepro.com.    

The Department will notify providers when rule makings associated with these requirements for Sections 17, 92, and 97 (Appendix E) take effect.