Stephen Doane v. Department of Health and Human Services

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 28Docket: Ken-20-163
Argued: February 9, 2021
Decided: May 13, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
STEPHEN DOANE
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
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
2
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
1By unanimous vote, the Board found that Dr. Doane had failed to conduct all required aspects
for evaluation of the patient; failed to create a written treatment plan; failed to discuss with the
patient the risks and benefits of the use of controlled substances; failed to implement a written
agreement outlining patient responsibilities, including urine/medication serum level screening, pill
counts, the number and frequency of all prescription refills, and the reasons for which drug therapy
would be discontinued; and failed to keep accurate and complete medical records. The Board
unanimously found that Dr. Doane demonstrated incompetence in his treatment of the patient and,
by a five-to-one vote, found that he had committed unprofessional conduct by failing to appropriately
follow up on and respond to information obtained from other doctors and reporters, as well as from
events that occurred in his own office, regarding his patient’s overdose on the medications that he
had prescribed.
3
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
2The consent agreement recited that the Board had sufficient evidence from which it could
conclude that Dr. Doane failed to adhere to the Board’s rules on the use of controlled substances for
treatment of pain by “failing to obtain patient A’s previous medical records prior to prescribing
controlled medications to patient A; failing to access and review the [prescription monitoring
program] prior to prescribing the amount and dosage of controlled medications to patient A; failing
to recall the telephone message regarding patient A and her recent hospitalization and accompanying
respiratory distress prior to prescribing medications to patient A; and increasing the dosage
(doubling), frequency, and total amount (doubling) of narcotics prescribed to patient A only four days
after initially prescribing fifteen days’ worth of narcotics to patient A, which was done without
obtaining patient A’s previous medical records or reviewing the [prescription monitoring program].”
Because the basis for termination was grounded in state and federal Medicaid and MaineCare
3
regulations, and no other program has been identified by the parties on appeal, we do not discuss
further any other medical assistance programs.
4
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.
4The locations of various MaineCare Benefits Manual sections have changed during the time
relevant to this appeal, but no such changes impact this appeal. The parties do not contend that any
changes in the Manual affect our analysis. The relevant sections are currently located at 10-144
C.M.R. ch. 101, ch. I, §§ 1.03-10, 1.20-1, 1.20-3 (effective Sept. 17, 2018).
5 Currently located at 10-144 C.M.R. ch. 101, ch. I, § 1.20-1(M), (O), (R) (effective Sept. 17, 2018).
6 Currently located at 10-144 C.M.R. ch. 101, ch. I, § 1.23 (effective Sept. 17, 2018).
5
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 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
6
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].
7
[¶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
8
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
9
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 termination from
participation in MaineCare. The Department regulations and Manual are clear.
Rather, he argues that the authorizing statutes are too broad, so that the
Department improperly acted in a legislative capacity when it issued its
regulations. We therefore analyze his claim as asserting excessive delegation.
[¶19] Dr. Doane is correct in noting that the language contained in the
authorizing statutes is broad. Title 22 M.R.S. § 42(1) provides:
The department shall issue rules and regulations considered
necessary and proper for the protection of life, health and welfare,
and the successful operation of the health and welfare laws. The
rules and regulations shall be adopted pursuant to the
requirements of the Maine Administrative Procedure Act.
Title 22 M.R.S. § 3173 provides, in relevant part:
The department is authorized to administer programs of aid,
medical or remedial care and services for medically indigent
10
persons[,] [and] . . . [t]he department is authorized and empowered
to make all necessary rules and regulations consistent with the
laws of the State for the administration of these programs
including, but not limited to, establishing conditions of eligibility
and types and amounts of aid to be provided, and defining the term
“medically indigent,” and the type of medical care to be provided.
[¶20] At first blush, these statutes seem to provide few limits on the
Department’s ability to enact whatever regulations it might choose, triggering
excessive-delegation concerns. But a more in-depth review shows that
sufficient limitations and safeguards are in place for the statutory framework
to pass constitutional muster.
[¶21] We start with the premise that when evaluating the
constitutionality of a statute we “will, if possible, construe [it] to preserve its
constitutionality.” Friends of Me.’s Mountains. v. Bd. of Env’t Prot., 2013 ME 25,
¶ 21, 61 A.3d 689 (quotation marks omitted).
[¶22] Greater flexibility is also allowed with respect to delegations of
authority to state agencies by the acts of the Legislature than to delegations of
authority to boards and committees by municipalities. See Uliano, 2009 ME 89,
¶ 26, 977 A.2d 400. This is because the “state’s delegation of authority to an
executive agency . . . is subject to the Maine Administrative Procedure Act [APA]
and its procedural protections.” Id. In Uliano, we noted that because the
Department of Environmental Protection is required to promulgate rules
11
complying with the APA that are “subject to public notice, modification, and
judicial review,” these regulatory processes provided significant protection
against abuse. Id. ¶ 28; see also Bangor Educ. Ass’n, 433 A.2d at 387 (“Especially
where it would not be feasible for the Legislature to supply precise standards,
the presence of adequate procedural safeguards may be properly considered in
resolving the constitutionality of the delegation of power.”); State v. Boynton,
379 A.2d 994, 995 (Me. 1977) (“[T]he presence of adequate procedural
safeguards to protect against an abuse of discretion by those to whom the
power is delegated compensates substantially for the want of precise
guidelines and may be properly considered in resolving the constitutionality of
the delegation of power.”). The possibility of arbitrary administrative
decision-making common to both void-for-vagueness and excessive-delegation
concerns is assuaged by the formal APA rulemaking process.
[¶23] Also, because the subject matter of the regulation at issue here
concerns public health and safety, a wide amount of rulemaking latitude may
be necessary. See Kovack v. Licensing Bd., 157 Me. 411, 418, 173 A.2d 554, 558
(1961) (“As compared to a delegation of authority to regulate businesses
generally, the [L]egislature may be less restricted when it seeks to delegate
authority of a legislative nature to an administrative body created for a
12
particular purpose, such as the care of public health.” (quotation marks
omitted)). This point is driven home by two decisions rejecting an
excessive-delegation claim involving 22 M.R.S. § 42. See Lewis, 433 A.2d 743;
Ne. Occupational Exch., Inc. v. State, 540 A.2d 1115 (Me. 1988).
[¶24] In Lewis, the plaintiff contended that the absence of specific
standards within the enabling legislation, section 42, made the Department’s
adoption of the Maine State Plumbing Code an unconstitutional delegation of
authority. 433 A.2d at 746. In rejecting that argument, we considered the
entire legislative scheme, noting “that the Department of Human Services is
charged with the general responsibility of supervising the interests of health
and life of the citizens of the State” and that “[s]uch responsibility quite
obviously includes the prevention and control of disease and irresponsible
human waste disposal.” Id. at 746-47 (quotation marks omitted). The
delegation of authority to promulgate plumbing and sewage regulations was
constitutional because it was contained within a general statutory scheme, was
confined to a clearly defined area, and resulted in regulations that were limited
to what was necessary and proper. Id. at 747-48. We concluded that a
legislative delegation is not excessive when “the legislation clearly reveals the
purpose to be served by the regulations, explicitly defines what can be
13
regulated for that purpose, and suggests the appropriate degree of regulation.”
Id. at 748.
[¶25] In Northeast Occupational Exchange, we applied this three-part
test from Lewis to decide whether the Community Mental Health Services Act,
34-B M.R.S. §§ 3601-3606 (1988), was an unconstitutional delegation of
authority. 540 A.2d at 1116-17. We rejected the claim that the delegation was
unconstitutional, reasoning that the clear purpose of the Act was “to encourage
an increased availability of and participation in local community mental health
services”; the Act clearly defined the services that could be regulated for that
purpose; and, because the rules promulgated under the Act were subject to the
APA, there was an appropriate degree of regulation to compensate for the lack
of precise guidelines. Id.[¶26] In the instant case, the latitude that the Legislature has bestowed
upon the Department is further informed by MaineCare’s role within the federal
Medicaid framework. As the Manual notes, “The Maine Department of Health
and Human Services . . . is responsible for administering MaineCare in
compliance with Federal and State statutes[] and administrative policies.”
10-144 C.M.R. ch. 101, ch. I, § 1.02-1 (effective Sept. 17, 2018). The federal
government appropriates money to Maine to furnish medical, rehabilitation,
14
and other assistance “on behalf of families with dependent children and of aged,
blind, or disabled individuals, whose income resources are insufficient to meet
the costs of necessary medical services.” 42 U.S.C.S. § 1396-1 (LEXIS through
Pub. L. No. 116-344). Maine must adhere to federal requirements for the use of
the appropriated funds. See 42 U.S.C.S. § 1396a (LEXIS through Pub. L. No.
116-344). For instance, federal law requires Maine to “comply with provider
and supplier screening, oversight, and reporting requirements,”
id. § 1396a(a)(77), (kk), and to notify the Secretary of Health and Human
Services and the state licensing board “whenever a provider of services or any
other person is terminated, suspended, or otherwise sanctioned or prohibited
from participating under the State plan,” id. § 1396a(a)(41). As we noted in
Doane I:
Some providers, pursuant to the federal Medicaid
regulations, must or may be excluded from the Medicaid program
by the federal Office of Inspector General. See 42 C.F.R.
§§ 1001.101, 1001.201–1001.951 (2016). The Inspector General’s
office must exclude from participating in the Medicaid program
providers who have been convicted of certain types of crimes, see
id. § 1001.101, and may exclude from participation providers who
have committed other misconduct, including providers who have
had their state professional licenses revoked or suspended, see id.
§§ 1001.201-1001.951. The federal regulations are not to be
“construed to limit a State’s own authority to exclude an individual
or entity from Medicaid for any reason or period authorized by
State law.” 42 C.F.R. § 1002.2(b) (2016) (redesignated as 42 C.F.R.
§ 1002.3(b) by 82 Fed. Reg. 4100 § 36 (Jan. 12, 2017)).
15
2017 ME 193, ¶ 22, 170 A.3d 269 (emphasis in original).7
[¶27] In sum, while the amount of discretion the Legislature can bestow
upon a state agency is not boundless, latitude must be given in areas where the
statutory enactment of detailed specific standards is unworkable. When the
subject matter is public health, agency regulations are subject to APA review,
and the scope of the regulatory authority is limited by context, purpose, and a
comprehensive federal regulatory regime. Department regulations that call
for potential exclusion from a medical assistance program based on
incompetence and failure to comport with professional standards should not
surprise a physician-participant and fall squarely within the goals articulated
by the Legislature in the authorizing statutes for the protection of life, health,
and welfare; the successful operation of the health and welfare laws; and safe
care for the medically indigent population. See 22 M.R.S. § 42(1).
7 By federal law, generally speaking, individuals eligible for medical assistance under Medicaid
may choose any “qualified” provider. 42 U.S.C.S. § 1396a(a)(23) (LEXIS through Pub. L. No. 116-344).
The definition of “qualified” is not included in the federal statute. Federal regulations provide that
states may set “reasonable standards relating to the qualifications of providers,” 42 C.F.R.
§ 431.51(c)(2) (2019), and “qualified” is interpreted to mean capable of performing needed medical
services in a professionally competent, safe, legal, and ethical manner, Planned Parenthood of Ind. Inc.
v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 978 (7th Cir. 2012). Thus, states have
“considerable discretion” in establishing qualifications based on professional competency and
patient care. Planned Parenthood of Kan. & Mid-Missouri v. Andersen, 882 F.3d 1205, 1230 (10th Cir.
2018); see also Dube v. Dep’t of Health & Hum. Servs., 97 A.3d 241, 248 (N.H. 2014) (noting that states
have “considerable authority” to establish qualifications).
16
C. Issue Preclusion
[¶28] Dr. Doane next contends that the Board made a factual
determination that he was competent and met minimum professional
standards; that the Department must accept this finding; and that the finding
requires the Department to continue his participation in MaineCare. This
argument misapprehends the distinct roles played by the two agencies.
[¶29] We review de novo whether issue preclusion, also known as
collateral estoppel, applies to the Board’s decision. Portland Water Dist. v. Town
of Standish, 2008 ME 23, ¶ 7, 940 A.2d 1097. The doctrine “prevents the
relitigation of factual issues already decided if the identical issue was
determined by a prior final judgment, and the party estopped had a fair
opportunity and incentive to litigate the issue in a prior proceeding.” Id. ¶ 9
(quotation marks omitted). The doctrine can apply to administrative agencies.
See Fitanides v. Perry, 537 A.2d 1139, 1140 (Me. 1988) (“Absent a specific
contrary statutory provision, an adjudicative determination of a legal or factual
issue by an administrative tribunal has the same effect of issue preclusion as a
court judgment if the administrative proceeding resulting in that determination
entailed the essential elements of adjudication.” (quotation marks omitted)).
The Restatement (Second) of Judgments § 36 cmt. f (Am. L. Inst. 1982) notes,
17
however, that “a prior determination that is binding on one agency and its
officials may not be binding on another agency and its officials . . . [i]f the second
action involves an agency or official whose functions and responsibilities are so
distinct from those of the agency or official in the first action that applying
preclusion would interfere with the proper allocation of authority between [the
two agencies].”
[¶30] Applying these principles here, we conclude that the Department
and the Board serve distinct functions and that the issue decided by the Board
was not identical to that before the Department.
1. Distinct Functions
[¶31] We noted the differences between the functions of the Board and
the Department in Doane I, 2017 ME 193, ¶ 29, 170 A.3d 269. The Board is a
licensing authority. It is composed primarily of physicians, see 32 M.R.S. § 3263
(2021), sets standards of practice for physicians, and investigates complaints,
see 32 M.R.S. § 3269 (2021). Its investigations of complaints can result in
various restrictions on a physician’s license or in consent agreements, which
are designed both to protect the general public and to rehabilitate or educate
the licensee. See 32 M.R.S. § 3282-A(1) (2021).
18
[¶32] In contrast, the Department is a procurer of services. It
administers the Medicaid program, among other activities, and is “authorized
to administer programs of aid, medical or remedial care and services for
medically indigent persons.” 22 M.R.S. § 3173. “To implement the MaineCare
program, the Department contracts with health care providers, who bill the
Department for MaineCare-covered services pursuant to the terms of those
contracts, Department regulations, and federal law.” AngleZ Behav. Health
Servs., 2020 ME 26, ¶ 2, 226 A.3d 762; see 42 U.S.C.S. § 1396a (LEXIS through
Pub. L. No. 116-344).
[¶33] As we held in Doane I, the Board’s licensing function is not the same
as the Department’s procurement function. 2017 ME 193, ¶ 16, 170 A.3d 269.
We noted that “the dispute [in Doane I] focuse[d] not on Doane’s medical license
but on his capacity to participate in and receive compensation from Maine’s
Medicaid program, MaineCare.” Id. The state exercises its police power to
regulate the medical profession on behalf of the general public through the
Board’s professional licensing. Id. ¶ 29. The Department’s decision-making
relates only to those citizens receiving services through MaineCare, and in
keeping with that goal, making the best use of state funds received from the
federal government. Id. ¶¶ 29-30.
19
2. Different Issues
[¶34] Dr. Doane next argues that in order to determine that he was fit to
practice medicine, “the [Board] necessarily had to conclude that in 2015, he was
a ‘competent and honest practitioner’ who satisfied the ‘minimum standards of
proficiency in the [medical] profession.’” To support this proposition, he cites
10 M.R.S. § 8008 (2021), which provides:
The sole purpose of an occupational and professional
regulatory board is to protect the public health and welfare. A
board carries out this purpose by ensuring that the public is served
by competent and honest practitioners and by establishing
minimum standards of proficiency in the regulated professions by
examining, licensing, regulating and disciplining practitioners of
those regulated professions. Other goals or objectives may not
supersede this purpose.
[¶35] As a threshold matter, the Board’s censure decision includes no
affirmative or express finding that Dr. Doane is fit to serve any population, let
alone the constituency served under MaineCare. The Board specifically found
that Dr. Doane demonstrated incompetence in his opioid prescription practice
and imposed sanctions, although not the sanction of license revocation.
Although we can reasonably infer that the Board implicitly concluded that
Dr. Doane could meet minimum standards of proficiency with monitoring,
frequent reporting, and a practice limited to certain discrete populations, this
20
implicit finding is not an issue identical to the Department’s determination
whether to continue a physician’s participation in MaineCare.
[¶36] The Manual lists the grounds for sanctioning a MaineCare
provider. See 10-144 C.M.R. ch. 101, ch. I, §§ 1.19-1(A)–(Y) (effective
Feb. 13, 2011).8 Most of these grounds for sanction do not involve failure to
meet minimum standards of proficiency. See, e.g., id. § 1.19-1(A) (fraudulent
claims for services); id. § 1.19-1(D) (failing to retain or disclose records of
services provided to MaineCare members). This is because, as noted above, the
Department is concerned with risks to the program as well as risks to the health
and safety of the specific population it serves. Grounds for termination cited in
the Department’s termination decision, section 1.19-1(M), and (R) of the
Manual, were met: Dr. Doane violated the standards of his profession and
suffered formal censure. The sanctions available to the Department are listed
in its regulations, and in determining which sanctions to impose, the
Department may consider factors such as the seriousness of the offense, the
extent of violations, the history of prior violations, and consideration of
whether a lesser sanction would be sufficient to remedy the problem, among
8 This provision is currently located at 10-144 C.M.R. ch. 101, ch. I, § 1.20-1 (effective
Sept. 17, 2018).
21
other factors. 10-144 C.M.R. ch. 101, ch. I, § 1.19-3 (A)(1)(a)–(c), (g) (effective
Feb. 13, 2011).9 Irrespective of any implicit Board finding that, with practice
limitations, Dr. Doane met minimum standards for serving certain populations,
from the perspective of the interests and regulations, both state and federal,
governing the Department’s administration of MaineCare, Dr. Doane fell below
the Department’s standards such that it could choose to terminate him.
Although ensuring professional competency is an important consideration in
the decision-making of both the Board and the Department, the agencies may
make different determinations in accordance with their own standards. See
Grant’s Farm Assocs., Inc. v. Town of Kittery, 554 A.2d 799, 803 (Me. 1989) (“It is
therefore often the case that an applicant . . . must simultaneously persuade
different agencies that the same or similar standards are met.” (citing Larrivee
v. Timmons, 549 A.2d 744, 747-48 (Me. 1988))).
D. Substantial Evidence
[¶37] The Department terminated Dr. Doane’s participation in
MaineCare based on “undisputed serious and multiple incidents of professional
incompetence by Dr. Doane over an extended period of time.” Dr. Doane
9 This provision is currently located at 10-144 C.M.R. ch. 101, ch. I, § 1.20-3 (effective
Sept. 17, 2018).
22
contends that this determination was not supported by substantial evidence
and constituted an abuse of the Department’s discretion because the evidence
presented at the Department’s hearing did not show that he currently poses
any risk to MaineCare patients.
[¶38] We review an “administrative agency’s decision directly for legal
errors, abuse of discretion, or unsupported factual findings.” Forest Ecology
Network v. Land Use Regul. Comm’n, 2012 ME 36, ¶ 28, 39 A.3d 74 (quotation
marks omitted). In conducting such a review, we “do[] not substitute [our]
judgment for that of an agency and must affirm findings of fact if they are
supported by substantial evidence in the record.” Int’l Paper Co. v. Bd. of Env’t
Prot., 1999 ME 135, ¶ 29, 737 A.2d 1047. “Substantial evidence exists when a
reasonable mind would rely on that evidence as sufficient support for a
conclusion.” Richard v. Sec’y of State, 2018 ME 122, ¶ 21, 192 A.3d 611(quotation marks omitted). “Upon review of an agency’s findings of fact we
must examine the entire record to determine whether, on the basis of all the
testimony and exhibits before it, the agency could fairly and reasonably find the
facts as it did.” Friends of Lincoln Lakes v. Bd. of Env’t Prot., 2010 ME 18, ¶ 13,
989 A.2d 1128 (quotation marks omitted).
23
[¶39] The Department based its decision to exclude Dr. Doane from the
MaineCare program on its determination that serious incidents of professional
incompetence occurred over an extended period of time. This conduct related
to Dr. Doane’s treatment of a patient between 2003-2012, with particular focus
on events in 2012 leading up to his patient’s overdose. The presiding officer
found, as the Board had previously, that Dr. Doane had “committed
unprofessional conduct,” “demonstrated incompetence in his treatment” of a
patient who “died of oxycodone and cyclobenzaprine intoxication,” and
“violated Board Rule Chapter 21, Section III, governing the use of controlled
substances for the treatment of pain” with regard to the same patient who died
of an overdose. The presiding officer’s findings of fact, which the Department
adopted in its final decision, were supported by the testimony of the
Department’s audit program manager, who issued the initial April 2015
decision excluding Dr. Doane from MaineCare.
[¶40] The Department’s audit program manager testified about the
Board’s investigation into Dr. Doane’s prescription practices leading up to the
death of his patient. He testified that Dr. Doane’s patient had been to the
emergency room twice as a result of opiate overdoses and that an emergency
room doctor treating the patient had informed one of Dr. Doane’s partners that
24
the patient was overmedicated and was taking opiates at dangerous levels.
Instead of reducing the patient’s medication as the emergency room doctor had
recommended, Dr. Doane increased the number of pills he was prescribing to
his patient. The Department’s witness testified that Dr. Doane’s patient died on
May 19, 2012, in an accidental death relating to “[o]xy and [cyclobenzaprine]
intoxication.” He further testified that the Board found that the opiate
treatment Dr. Doane provided for his patient demonstrated poor judgment and
“decision-making regarding prescriptions that were well outside the standard
of care.”
[¶41] Based on this evidence, the Department was not compelled to find
that it could not terminate Dr. Doane. See Friends of Lincoln Lakes, 2010 ME 18,
¶ 14, 989 A.2d 1128 (“The ‘substantial evidence’ standard does not involve any
weighing of the merits of evidence. Instead it requires us to determine whether
there is any competent evidence in the record to support a finding.”).
[¶42] In the end, Dr. Doane is not contesting the Department’s findings—
he acknowledges that his conduct fell below professional standards and does
not dispute that the Board censured him—a basis for the Department’s
sanction in its own right. Instead, as he argued with respect to issue preclusion,
he asserts that because the Board did not revoke his license based on his
25
conduct, the Department cannot terminate his participation in MaineCare
based on the same conduct. But not only do these two agencies have different
functions, just as we do not substitute our judgment for an administrative
decision-maker, one agency is entitled to reach a different conclusion based on
the same or similar evidence presented to another agency, as long as both
conclusions are supported by the record evidence. The Board determined that
the appropriate action to take as to Dr. Doane’s license based on his conduct
was to assign him a practice monitor and impose limitations on his practice.
The Department determined that the appropriate action regarding his
participation in MaineCare was termination. Each agency acted within the
bounds of its discretion.
E. Sufficient Findings and Conclusions
[¶43] Finally, Dr. Doane contends that the decision issued by the
Department violates the APA because it does not include sufficient findings of
fact. See 5 M.R.S. § 9061 (2021) (“Every agency decision made at the conclusion
of an adjudicatory proceeding shall be in writing or stated in the record, and
shall include findings of fact sufficient to apprise the parties and any interested
member of the public of the basis for the decision.”). The presiding officer’s
factual findings were comprehensive, and the acting Commissioner adopted
26
them in toto. Dr. Doane argues that the acting Commissioner’s explanation as
to why she imposed the sanction of termination based on those findings was
too terse.
[¶44] The acting Commissioner’s explanation was concise, not deficient.
She noted that she accepted the presiding officer’s fact-finding, which was
based in turn on much of the Board’s fact-finding, and stated that her decision
was due to “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 consent agreement. The gravity, number, and
length of time over which the violations occurred are relevant factors in
determining appropriate sanctions pursuant to the Manual. 10-144 C.M.R.
ch. 101, ch. I, § 1.19-3 (A)(1)(a)–(c) (effective Feb. 13, 2011).10 That the Board
did not revoke Dr. Doane’s license based on this conduct did not require the
Department to provide a lengthy elaboration of its conclusion that the conduct
warranted termination under its regulations.
The entry is:
Judgment affirmed.
10 Currently located at 10-144 C.M.R. ch. 101, ch. I, § 1.20-3(A)(1)(a)–(c) (effective Sept. 17, 2018).
27
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
Kennebec County Superior Court docket number AP-2018-74
FOR CLERK REFERENCE ONLY