Stephen Doane v. Department of Health and Human Services

S
MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 

2021 ME 28

Docket:   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

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