Doane v. Dep't of Health & Human Servs.

• Decision Date: 13 May 2021
• Docket Number: Docket: Ken-20-163
• Citation: 250 A.3d 1101
• Parties: Stephen DOANE v. DEPARTMENT OF HEALTH AND HUMAN SERVICES
• Court: Maine Supreme Court

250 A.3d 1101

Stephen DOANE

v.DEPARTMENT OF HEALTH AND HUMAN SERVICES

Docket: Ken-20-163

Supreme Judicial Court of Maine.

Argued: February 9, 2021

Decided: May 13, 2021

Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC, Portland, for appellant Stephen Doane

Aaron M. Frey, Attorney General, and Thomas C. Bradley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Maine Department of Health and Human Services

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

CONNORS, J.

[¶1] Stephen Doane, MD, appeals from a judgment of the Superior Court (Kennebec County, Murphy, J. ) affirming, pursuant to M.R. Civ. P. 80C and 5 M.R.S. § 11007(4)(A) (2021), a decision by the Department of Health and Human Services excluding him from participation in and reimbursement from Maine's Medicaid program, MaineCare. We affirm the decision of the Superior Court.

I. BACKGROUND

[¶2] The following facts are drawn from the Department's final decision, which adopted the findings of fact made by the presiding hearing officer in his recommended decision, and the procedural facts are taken from the court's record. See Palian v. Dep't of Health and Hum. Servs. , 2020 ME 131, ¶ 3, 242 A.3d 164.

A. The Board's 2015 Censure Decision and 2012 Consent Agreement

[¶3] On March 10, 2015, Dr. Doane was censured by the Board of Licensure in Medicine based on his prescription practices leading up to the death, by apparent overdose, of a patient in May 2012.¹

[¶4] Although the Board voted to allow Dr. Doane to retain his medical license, it imposed serious restrictions on his ability to practice medicine. He was required to have a "practice monitor" review all of the cases in which he prescribed controlled substances and report to the Board every four months.

[¶5] These restrictions were in addition to previous restrictions imposed by a 2012 consent agreement following the death of a different patient who, in 2011, had also died of an apparent drug overdose. In entering that consent agreement, Dr. Doane conceded that the conduct at issue, "if proven, could constitute grounds for discipline and the denial of his application to renew his Maine medical license for unprofessional conduct pursuant to 32 M.R.S. § 3282-A(2)(F)."² Pursuant to the consent agreement, among other things, he could "no longer prescribe controlled medications for pain, including all opioids and benzodiazepines, except for patients in skilled nursing facilities or long-term care facilities, patients in hospice care, or patients with metastatic cancer

."

B. The Department's 2015 Decision to Terminate Dr. Doane's Participation in MaineCare

[¶6] In a letter dated April 9, 2015, approximately one month after Dr. Doane's censure and the imposition of additional restrictions by the Board, the Department notified him that it was terminating his participation in medical assistance programs, most significantly for this appeal, MaineCare.³ The Department stated that it took this action pursuant to the MaineCare Benefits Manual, 10-144 C.M.R. ch. 101, ch. I, §§ 1.03-6, 1.19- 1, 1.19-3 (effective January 1, 2014),⁴ and the "authority granted [to it] in the Code of Federal Regulations." The Department relied specifically on section 1.19-1(M), (O), and (R) of the Manual, which provides for sanctions based on the violation of any law, regulation, or code of ethics governing the conduct of occupations or professions of regulated industries; failure to meet standards required by state or federal law for participation; and formal reprimand or censure by an association of the provider's peers for unethical practices. See id. § 1.19-1(M), (O), (R).⁵

[¶7] Dr. Doane requested an informal review of the termination decision, which is the first step of the multi-tiered framework for an administrative appeal under the Manual. See id. § 1.21;⁶ Palian , 2020 ME 131, ¶ 5, 242 A.3d 164. The Department affirmed its decision by a letter dated September 11, 2015.

C. Doane I

[¶8] On September 23, 2015, Dr. Doane filed a complaint in the Superior Court seeking a declaratory judgment that the Department lacked jurisdiction to terminate his MaineCare participation and contending that the District Court—not the Department—had exclusive jurisdiction over licensing decisions pursuant to 4 M.R.S. § 152(9) (2021) and M.R. Civ. P. 80G. The Superior Court agreed with Dr. Doane that the Department lacked jurisdiction, and the Department's administrative proceedings were stayed pending the resolution of the Department's appeal of the Superior Court's decision. Doane v. Dep't of Health & Hum. Servs., No. CV-15-168, 2016 WL 4151867 at *1, 2016 Me. Super. LEXIS 125, at *3 (June 30, 2016).

[¶9] On appeal, we ruled that the Department had jurisdiction. See Doane v. Dep't of Health & Hum. Servs. , 2017 ME 193, ¶¶ 31-32, 170 A.3d 269 ( Doane I ). In so concluding, we noted "the functional distinctions between a [Board] license revocation and a [Department] termination of participation in a program through a provider agreement." Id. ¶ 29.

D. Further Administrative and Judicial Review of the Department's Decision

[¶10] With the administrative process revived after the issuance of Doane I , in 2018, the presiding officer for the Department issued his recommendation following an evidentiary hearing that had been held in 2016 prior to the stay. In his findings of fact, the presiding officer acknowledged the Board's previous findings of serious professional deficiencies but nevertheless recommended reversal of the Department's decision to terminate Dr. Doane's participation in MaineCare.

[¶11] The acting Commissioner disagreed with the presiding officer's recommendation. In a decision dated October 10, 2018, the acting Commissioner stated:

I hereby adopt the findings of fact but I do NOT accept the Recommendation of the Hearing Officer. Instead, for the reasons set forth below, I find that the Department was correct when it terminated Stephen Doane, M.D., from participation in the MaineCare program.

Pursuant to the MaineCare Benefits Manual, Chapter I, section 1.19- 2(A), the Department has independent authority to exclude a provider from participation in the MaineCare program based on its consideration of factors set forth in section 1.19-3(A)(1). This authority arises out of the Department's administration of the MaineCare program which provides reimbursement for medical services provided to vulnerable low-income, disabled, and high-risk populations. The Department properly exercised its authority to exclude Dr. Doane from participation in the MaineCare population by basing the exclusion on the undisputed serious and multiple incidents of professional incompetence by Dr. Doane over an extended period of time as set forth in [the Board's censure decision and preceding consent agreement].

[¶12] On November 9, 2018, Dr. Doane filed a Rule 80C petition in the Superior Court. The court affirmed the Department's decision, and Dr. Doane timely appealed. See 5 M.R.S. § 11008 (2021) ; M.R. App. P. 2B(c).

II. DISCUSSION

[¶13] Dr. Doane argues the following: (1) the Legislature did not articulate sufficient guidance when it delegated authority to the Department to regulate MaineCare pursuant to 22 M.R.S. § 42 (2021) and 22 M.R.S. § 3173 (2021) ; (2) the Department's decision to exclude him is precluded by the Board's decision not to withdraw or suspend his license; (3) there was insufficient evidence to support the Department's final decision; and (4) the acting Commissioner provided insufficient reasoning for her decision.

[¶14] We disagree.

A. Standard of Review

[¶15] "When the Superior Court acts in an intermediate appellate capacity pursuant to M.R. Civ. P. 80C, we review the administrative agency's decision directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Manirakiza v. Dep't of Health & Hum. Servs. , 2018 ME 10, ¶ 7, 177 A.3d 1264 (quotation marks omitted). "We review questions of law de novo," Palian , 2020 ME 131, ¶ 10, 242 A.3d 164, but we will not substitute our judgment for that of the Department, AngleZ Behav. Health Servs. v. Dep't of Health & Hum. Servs. , 2020 ME 26, ¶ 12, 226 A.3d 762.

B. Vagueness and Excessive Delegation

[¶16] Dr. Doane first argues that the statutes authorizing the Department's action are insufficiently specific. This argument invokes two constitutional doctrines—that a statute is void if it is too vague or if it delegates too much authority to the administering body. While these concepts overlap, see Uliano v. Bd. of Env't Prot. , 2009 ME 89, ¶ 15, 977 A.2d 400, they have different sources of authority and emphases.

[¶17] A goal of both doctrines is to avoid arbitrary decision-making. See Lentine v. Town of St. George , 599 A.2d 76, 78 (Me. 1991) ; Superintending Sch. Comm. v. Bangor Educ. Ass'n. , 433 A.2d 383, 387 (Me. 1981). A "void for vagueness" claim is based on the due process protections set forth in the United States and Maine Constitutions and focuses on the need for adequate notice. See Town of Baldwin v. Carter , 2002 ME 52, ¶ 10, 794 A.2d 62 ("[T]hose subject to sanction by law [must] be given fair notice of the standard of conduct to which they can be held accountable." (quotation marks omitted)). An "excessive delegation" claim is based on the separation of powers clause of the Maine Constitution, which precludes a statutory delegation to a regulator so broad or amorphous that it amounts to a surrender of legislative authority to the executive branch. See Me. Const. art. III § 2 ; Lewis v. Dep't of Hum. Servs. , 433 A.2d 743, 747 (Me. 1981) ("We have consistently endorsed the fundamental constitutional requirement that legislation delegating discretionary authority to administrative agencies must contain standards sufficient to guide administrative action.").

[¶18] Here, Dr. Doane does not complain that he lacked notice as to the type of conduct that would expose him to sanctions, including...