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Yarcheski v. Department of Health & Human Services

Superior Court of Maine, Cumberland

June 27, 2018

THOMAS J. YARCHESKI, as Representative of B.K.Y. Petitioner/Appellant
v.
DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondent/Appellee

          Plaintiff-Pro Se Thomas Yarcheski

          Defendant's Attorneys: Kevin Beal, AAG Halliday Moncure, AAG

          DECISION

          A. M. HORTON, JUSTICE

         These three consolidated appeals from administrative agency actions are before the court for decision.

         In addition, Petitioner's Motion to Sanction Respondent's Attorney and Respondent's Motion to Dismiss are before the court.

         The court elects to decide these appeals and the pending motions without oral argument. See M.R. Civ. P. 7(b)(7), 8OC(1) (oral argument to be scheduled "[V]nless the court otherwise directs." See also Lindemann v. Comm'n on Governmental Ethics & Election Practices, 2008 ME 187, ¶26, 961 A.2d 538 (Rule 8OC permits court to direct that oral argument not be scheduled).

          Background

         1. B.K. T. 's MaineCare Services

         Petitioner Thomas Yarcheski is the husband of B.K.Y.[1] B.K.Y. is the recipient of home health services under the State of Maine's MaineCare program.

         The MaineCare program is the state component of the joint state-federal program known as Medicaid, codified as Title XIX of the Social Security Act. See 42 U.S.C. §§ 1396-1396v (2017); 42 C.F.R. § 430.0 (2017). See also Biewald v. State, 451 A.2d 98, 99 (Me. 1982). The MaineCare program is administered by the Respondent in these appeals, the Maine Department of Health and Human Services (DHHS). DHHS has promulgated a set of regulations known as the MaineCare Benefits Manual and codified at 10-144 Code of Maine Regulations chapter 101. See https://www.maine.gOv/sos/cec/rules/l 0/chl 01 .htm

         B.K.Y. receives services under the DHHS Section 19 program, which offers services in the home and community for elderly and disabled adults. See 10-144 C.M.R. ch. 101(11), § 19.01 et seq. Services rendered to a Section 19 recipient are coordinated by a "service coordination agency" (SCA) that assesses the recipient's needs and develops a plan for in-home services by direct care providers. In B.K.Y.'s case, the SCAs have been Elder Independence of Maine (EIM) and AlphaOne.

         Recipients of Section 19 home services can elect to have an agency arrange for and manage the direct care providers who come to the home, or can elect the Participant-Directed Option and arrange for and manage providers on their own.

         B.K.Y. elected the Participant-Directed Option. The regulations define the participant-directed option as "a choice offered to members to manage their Attendant Services. Specifically, the member hires, discharges, trains, schedules and supervises the Attendant(s) providing services. A member who chooses to engage in the Participant-Directed Option is considered the employer of his or her Attendant(s)." 10 C.M.R. ch. 101(11), § 19.01-23.

         A MaineCare recipient of Section 19 services who has elected the Participant-Directed Option may designate a "representative" to manage the recipient's care. The MaineCare Benefits Manual defines a "representative" as "an individual responsible for managing Attendant Services on ...


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