STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC ss. DOCKET NO. AP-~7-97 nilN "CAl ~J'-., . .)_.., ....Y rl 1 _. ~\ \.> IV - , i i -1, "," () l ;; I '
ELAINE CONANT o/b/ 0 TIMOTHY CONANT,
Petitioner
v. DECISION AND ORDER
MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent JAN 24. ZOOB
Petitioner, Elaine Conant ("petitioner"), on behalf of her adult son Timothy
Conant, has petitioned for judicial review pursuant to M.R. Civ. P. Rule 80C of the
Department of Health and Human Services' ("DHHS" or "respondent") final decision.
Petitioner has also moved to supplement the record pursuant to M.R. Civ. P. Rule
80C(f) and 5 M.R.S.A. § 1l006(1)(B).
The Commissioner of the DHHS issued a final decision on December 14, 2006
finding that there was a lack of convincing evidence that Timothy Conant was eligible
for adult mental retardation services.
Timothy Conant is a 30-year-old man currently living in a street shelter in
Portland. He obtains services from a social worker/mental health case manager. He
was adopted at the age of 15 months by the petitioner. He was born prematurely, had
hypoxia, and had multiple medical issues, including bronchopulmonary dysplasia and
glaucoma. When he was discharged from the hospital at the age of 15 months, he still
could not hold his head up and had a gastronomy tube. He had brain damage that
delayed developmental milestones, and was in special education classes from early
elementary school. At age 11, he was evaluated by the Developmental Evaluation
1 Clinic at Boston Children's hospital. His Verbal IQ was 86, his Performance IQ was 93,
and Full Scale IQ was 89. The evaluation concluded that he was of Low Average
Intellectual Potential with mild, but specific learning disabilities. Despite special
education, Timothy had a "horrendous" year in 5 th grade, his mother thus home
schooled him for grades 6-9. He then entered vocational track in high schoot
graduating in 1996. After High Schoot Timothy who is legally blind, received support
from the Bureau for the Blind and Visually impaired.
Conant has had a number of jobs, and has generally been able to meet the task
requirements but has had difficulties with social interactions, both with supervisors and
with fellow workers. He can show up for work on time, take an appropriate lunch
hour, return willingly after lunch, and do the work at hand, but engages in disputes
about leaving early, refusal to do work, and his entitlement to a higher wage.
Elaine Conant contends that Timothy seems oblivious to social norms, never
thinks to ask about family members, use appropriate words of congratulations or
empathy. Timothy is however able to participate in church social groups and activities,
with some accommodations. Timothy displays some difficulties in understanding the
proper interactions with girls and women. When he was 17 or 18, Timothy sent notes to
3 different girls in his church youth group professing his love for them. He has been
engaged in sexual activities in situations revealing poor judgment including a situation
in which he was involved in the legal system for unlawful sexual contact with a minor.
In 1998, when Timothy was almost 21, he was again evaluated. His Full Scale IQ
was 78, Verbal IQ was 80, and performance IQ was 79. Timothy was reading at a 6th
grade level and had math skills at a 4 th grade level. His adaptive living skills were in
the first percentile. The evaluating doctor concluded that Timothy had a depressive
disorder, learning disability and would benefit from having a guardian. Timothy was
2 evaluated again in April of 2003 revealing similarly low IQ scores and was enrolled in a
group home in Wisconsin but was discharged after 7 months, because of "repeated
violations of rules and policies generally concerning interactions between male and
female clients."
Timothy was again evaluated on October 2005 by a Dr. ZeIlinger whose
evaluation demonstrated functioning in the Borderline Range of Intelligence. Timothy's
cognitive skills were at a higher level than his adaptive behavior skills. On the General
Adaptive Composite, Timothy scored a 62, an essentially similar result to his previous
evaluations. Dr. Zellinger concluded that Timothy's social, emotional, and verbal
difficulties were compatible with a diagnosis of Pervasive Developmental Disorder.
Based on its evaluation of the record and evaluations done by experienced
medical professionals, DHHS concluded that there was not convincing evidence that
Timothy met criteria for pervasive developmental disorder or that he had deficits in
Adaptive Functioning more than two standard deviations below the mean in the
developmental period.
Petitioner has brought both this appeal and a motion to supplement the record
because it believes that the record as it currently exists is inadequate to allow for
meaningful judicial review and would have this court remand the case to DHHS for
further review.
When the decision of an administrative agency is appealed pursuant to M.R. Civ.
P. 80C, this Court reviews the agency's decision directly for abuse of discretion, errors
of law, or findings not supported by the evidence. Centamore v. Dep't of Human Services,
664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the
basis of the entire record before it, the agency could have fairly and reasonably found
the facts as it did." Seider v. Board of Exam'r of Psychologists, 2000 ME 206
3 551, 555 (Me. 2000) (citing eWeD, Inc. v. Superintendent of Ins., 1997 ME 226, Cf[ 6, 703
A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency, the
Court should "not attempt to second-guess the agency on matters falling within its
realm of expertise" and the Court's review is limited to "determining whether the
agency's conclusions are unreasonable, unjust or unlawful in light of the record."
Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on
appeal is not whether the Court would have reached the same conclusion as the agency,
but whether the record contains competent and substantial evidence that supports the
result reached by the agency. eWeD, Inc., 1997 ME 226, 703 A.2d 1258, 1261.
"Inconsistent evidence will not render an agency decision unsupported." Seider, 762
A.2d 551 (citations omitted). The burden of proof rests with the party seeking to
overturn the agency's decision, and that party must prove that no competent evidence
supports the Board's decision. Id. "[Petitioner] must prove that no competent evidence
supports the Board's decision and that the record compels a contrary conclusion."
Bischoffv. Board of Trustees, 661 A.2d 167, 170 (Me. 1995).
Factual determinations must be sustained unless shown to be clearly erroneous.
Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between
the clearly erroneous and substantial evidence in the record standards of review for
factual determinations made by administrative agencies).
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC ss. DOCKET NO. AP-~7-97 nilN "CAl ~J'-., . .)_.., ....Y rl 1 _. ~\ \.> IV - , i i -1, "," () l ;; I '
ELAINE CONANT o/b/ 0 TIMOTHY CONANT,
Petitioner
v. DECISION AND ORDER
MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent JAN 24. ZOOB
Petitioner, Elaine Conant ("petitioner"), on behalf of her adult son Timothy
Conant, has petitioned for judicial review pursuant to M.R. Civ. P. Rule 80C of the
Department of Health and Human Services' ("DHHS" or "respondent") final decision.
Petitioner has also moved to supplement the record pursuant to M.R. Civ. P. Rule
80C(f) and 5 M.R.S.A. § 1l006(1)(B).
The Commissioner of the DHHS issued a final decision on December 14, 2006
finding that there was a lack of convincing evidence that Timothy Conant was eligible
for adult mental retardation services.
Timothy Conant is a 30-year-old man currently living in a street shelter in
Portland. He obtains services from a social worker/mental health case manager. He
was adopted at the age of 15 months by the petitioner. He was born prematurely, had
hypoxia, and had multiple medical issues, including bronchopulmonary dysplasia and
glaucoma. When he was discharged from the hospital at the age of 15 months, he still
could not hold his head up and had a gastronomy tube. He had brain damage that
delayed developmental milestones, and was in special education classes from early
elementary school. At age 11, he was evaluated by the Developmental Evaluation
1 Clinic at Boston Children's hospital. His Verbal IQ was 86, his Performance IQ was 93,
and Full Scale IQ was 89. The evaluation concluded that he was of Low Average
Intellectual Potential with mild, but specific learning disabilities. Despite special
education, Timothy had a "horrendous" year in 5 th grade, his mother thus home
schooled him for grades 6-9. He then entered vocational track in high schoot
graduating in 1996. After High Schoot Timothy who is legally blind, received support
from the Bureau for the Blind and Visually impaired.
Conant has had a number of jobs, and has generally been able to meet the task
requirements but has had difficulties with social interactions, both with supervisors and
with fellow workers. He can show up for work on time, take an appropriate lunch
hour, return willingly after lunch, and do the work at hand, but engages in disputes
about leaving early, refusal to do work, and his entitlement to a higher wage.
Elaine Conant contends that Timothy seems oblivious to social norms, never
thinks to ask about family members, use appropriate words of congratulations or
empathy. Timothy is however able to participate in church social groups and activities,
with some accommodations. Timothy displays some difficulties in understanding the
proper interactions with girls and women. When he was 17 or 18, Timothy sent notes to
3 different girls in his church youth group professing his love for them. He has been
engaged in sexual activities in situations revealing poor judgment including a situation
in which he was involved in the legal system for unlawful sexual contact with a minor.
In 1998, when Timothy was almost 21, he was again evaluated. His Full Scale IQ
was 78, Verbal IQ was 80, and performance IQ was 79. Timothy was reading at a 6th
grade level and had math skills at a 4 th grade level. His adaptive living skills were in
the first percentile. The evaluating doctor concluded that Timothy had a depressive
disorder, learning disability and would benefit from having a guardian. Timothy was
2 evaluated again in April of 2003 revealing similarly low IQ scores and was enrolled in a
group home in Wisconsin but was discharged after 7 months, because of "repeated
violations of rules and policies generally concerning interactions between male and
female clients."
Timothy was again evaluated on October 2005 by a Dr. ZeIlinger whose
evaluation demonstrated functioning in the Borderline Range of Intelligence. Timothy's
cognitive skills were at a higher level than his adaptive behavior skills. On the General
Adaptive Composite, Timothy scored a 62, an essentially similar result to his previous
evaluations. Dr. Zellinger concluded that Timothy's social, emotional, and verbal
difficulties were compatible with a diagnosis of Pervasive Developmental Disorder.
Based on its evaluation of the record and evaluations done by experienced
medical professionals, DHHS concluded that there was not convincing evidence that
Timothy met criteria for pervasive developmental disorder or that he had deficits in
Adaptive Functioning more than two standard deviations below the mean in the
developmental period.
Petitioner has brought both this appeal and a motion to supplement the record
because it believes that the record as it currently exists is inadequate to allow for
meaningful judicial review and would have this court remand the case to DHHS for
further review.
When the decision of an administrative agency is appealed pursuant to M.R. Civ.
P. 80C, this Court reviews the agency's decision directly for abuse of discretion, errors
of law, or findings not supported by the evidence. Centamore v. Dep't of Human Services,
664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the
basis of the entire record before it, the agency could have fairly and reasonably found
the facts as it did." Seider v. Board of Exam'r of Psychologists, 2000 ME 206
3 551, 555 (Me. 2000) (citing eWeD, Inc. v. Superintendent of Ins., 1997 ME 226, Cf[ 6, 703
A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency, the
Court should "not attempt to second-guess the agency on matters falling within its
realm of expertise" and the Court's review is limited to "determining whether the
agency's conclusions are unreasonable, unjust or unlawful in light of the record."
Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on
appeal is not whether the Court would have reached the same conclusion as the agency,
but whether the record contains competent and substantial evidence that supports the
result reached by the agency. eWeD, Inc., 1997 ME 226, 703 A.2d 1258, 1261.
"Inconsistent evidence will not render an agency decision unsupported." Seider, 762
A.2d 551 (citations omitted). The burden of proof rests with the party seeking to
overturn the agency's decision, and that party must prove that no competent evidence
supports the Board's decision. Id. "[Petitioner] must prove that no competent evidence
supports the Board's decision and that the record compels a contrary conclusion."
Bischoffv. Board of Trustees, 661 A.2d 167, 170 (Me. 1995).
Factual determinations must be sustained unless shown to be clearly erroneous.
Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between
the clearly erroneous and substantial evidence in the record standards of review for
factual determinations made by administrative agencies).
Petitioner seeks to supplement the administrative record with two affidavits.
One affidavit from Elaine Conant, and another from Arthur P. Clum, an attorney
employed by DHHS as a regional Advocate within the Office of Advocacy for
consumers of the Department's mental health and mental retardation services. (Pet. Br.
6-8.) 5 M.R.S.A. § 11006 provides generally that, "Judicial review should be confined to
4 the record upon which the agency decision was based ..." Limited exceptions exist
however, in which the record may be supplemented.!
Petitioner, while not citing any of the statutory exceptions particularly, seems to
ground her argument on the inadequacy of the administrative record. More
particularly she focuses on the notion that the administrative record is incomplete as to
the resolution of a "key dispute", whether hindsight allows for an appropriate PDD
diagnosis. The key dispute centers around petitioner's largest problem with the DHHS'
decision, the failure to adequately incorporate Dr. Zellinger's diagnosis. She alleges a
few shortcomings in the administrative procedure and record that she argues preclude
this court's meaningful judicial review: 1) due to gaps in the hearing record it is
generally "difficult to make sense of the transcript"; 2) there is no listing of documents
considered and it is thus difficult to understand which documents were considered by
the hearing officer; and 3) failure of the hearing officer to rule on petitioner's objection
to the inclusion of a report in the administrative record. Petitioner argues that these
flaws render the administrative record insufficient and thus make remand to the agency
to rectify these flaws appropriate.
In making this argument, petitioner relies on Carrol v. Town of Rockport, 2003 ME
135,
1 Section 11006(1) provides the following relevant exceptions: A. In the case of the failure or refusal of an agency to act or of alleged irregularities in procedure before the agency which are not adequately revealed in the record, evidence thereon may be taken and determination made by the reviewing court. B. The reviewing court may order the taking of additional evidence before the agency if it finds that additional evidence, including evidence concerning the alleged unconstitutional takings of property, is necessary to deciding the petition for review; or if application is made to the reviewing court for leave to present additional evidence, and it is shown that the additional evidence is material to the issues presented in the review, and could not have been presented or was erroneously disallowed in proceedings before the agency. After taking the additional evidence the agency may modify its findings and decisions, and shall file with the court, to become part of the record for review, the additional evidence and any new findings or decision...
5 ME 178, 'j[ 10, 787 A.2d 137, 140 (2001). Petitioner admits that these cases deal with a
different problem, lack of factual findings sufficient to inform a court's review.
However, petitioner argues that the flaws here are parallel and justify a similar result.
The crux of petitioner's complaint when separated from its reliance on the
incompleteness of the record is that it would like to offer the Clum and Conant
affidavits in order to demonstrate "reasonable belief" that the administrative record
would be held open until the hearing officer, Dr. Freeman, sought an additional
evaluation of Timothy. Petitioner argues that the belief that the administrative hearing
would be held open precluded her from requesting an opportunity to submit additional
evidence, and by relying on Dr. Freeman's statements regarding the hearing being held
open she reasonably believed it was unnecessary to obtain additional evidence.
Petitioner argues that admission of the Gum affidavit demonstrates the petitioner's
reasonable belief that the hearing would be held open and that it required Dr. Freeman
to notify the parties of her decision to not solicit further evidence and thus provide
petitioner the opportunity to submit additional information in the interest of
"administrative fair play." Gashgai v. Board of Registration in Medicine, 390 A.2d 1080,
1085 (Me. 1978). Thus petitioner would like the court to grant its motion to supplement
the record with these affidavits in order to prove through those affidavits that there was
a lack of fair play in the administrative proceedings.
When "administrative agencies are required to make findings of fact to support a
decision, the findings must be adequate to indicate the basis for the decision and to
allow a meaningful judicial review," Carroll, 2003 ME 135, 'j[ 27, 837 A.2d at 156. The
concern is that, "in the absence of such findings, a reviewing court cannot effectively
determine if the agency's decision is supported by the evidence, and there is a danger of
'judicial usurpation of administrative functions.'" Id. (quoting Gashgai, 390 A.2d at
6 1085.) As demonstrated above, no risk seems to be present here. Though the
administrative record is not a model of the type of record foreseen by 5 M.R.S.A.
§ 90592, it certainly doesn't require the court to weigh the veracity of multiple medical
diagnoses and opinions, DHHS has already performed that function and it is apparent
from the record.
Even if the motion to supplement is granted, the court would then have in
addition to the administrative record the affidavits of Clum and Conant. Taken at their
face value, these affidavits would demonstrate that there are some flaws with the
administrative record and that there was a mistaken belief (perhaps a reasonably
mistaken belief) that Dr. Freeman, the hearing officer would be convening a team of
doctors to further research Timothy's condition. This does not prove that insufficient
evidence existed to support the conclusions of DHHS. In the end it appears that
petitioner has appealed because she is upset with the evidence prioritized by DHHS in
its decision, and seeks to have further review because of that disagreement. Though
petitioner notes that she was precluded from presenting more evidence, she does not
demonstrate that such preclusion was essential to DHHS' decision or that its decision is
not based on "substantial evidence." "A party seeking review of an agency's findings
must prove they are unsupported by any competent evidence." Maine Bankers Ass'n v.
Bureau, 684 A.2d 1304, 1306 (Me. 1996) (emphasis added). No such showing has
occurred here.3
2 "not a model" is certainly an understatement. The transcript is nearly bereft of substance as the word "inaudible" is used in the transcript more than use of words such as "the" and "and." The court certainly hopes that this is an anomaly for hearings conducted by DHHS. 3 The place of administrative agencies in our constitutional system is to execute legislation enacted by the legislature subject to judicial review by the judiciary. Essential to judicial review and thereby assuring that the existence of administrative agencies such as DHHS is not repugnant to the constitution is that those agencies create a record. DHHS in this case comes dangerously close to reading deference afforded to administrative agencies as usurping the legislature's role in outlining the agency's authority and this court's legislatively granted authority to review its actions. 5 M.R.S.A. § 9059 does not exist so that the
7 The entry is :
Petitioner's motion to supplement the record is DENIED; the final agency action of DHHS is AFFIRMED.
Dated:· September I9 ,2007 D~ Justice, Superior Court
agency may keep records of its proceedings for posterity. 5 M.R.S.A. § 9059 exists so that agencies may exist in our constitutional system. Additionally, this court notes that while it has not chosen to do so in this case, "[t]he remedy available to the court when the record is insufficient for judicial review is a remand to the agency for further findings and conclusions." Cutler v. State Purchasing Agent, 472 A.2d 913, 918-919 (Me. 1984).
8 Date Filed _ _1J.-j/LJ1u.64/--,-ou7 _ Kennebec Docket No. _A ...P"-'0'"'-7L...--'0>L7'--- ~ _ County
Action _----.lP~e:::...t....i.L_t....i..LoLl.nU_..Lf.uo..Lr____"'R.r:e'_>lvJ;...<:e""wl___ _ 80C
Elaine Conant abo Timothv Conant YS. Maine Denartment of Health & Human ServiCE Plaintiff's Attorney Defendant's Attorney Thomas H. Kelley, Esq. Nancy Macirowski, AAG 88 Federal Street 6 State House Station P.O. Box 547 Augusta, ME 04333-0006 Portland, Maine 04112
Date of Entry
1/16/07 Petition for Review of Adminstrative Action, filed. s/Kelley, Esq.
1/30/07 Letter entering appearance, filed. s/Macirowski, AAG
2/9/07 Affidavit Re: Service of Process, and two certified mail receip~s(unsigned), filed 2/8/07. s/Kelley, Esq. 2/15/07 Motion To Extend Time For Filing Of Record, filed. s/Macirowski, AAG Proposed Order, filed.
2/15/07 Request For Hearing, filed. s/Macirowski, AAG 2/16/07 ORDER, Marden, J. Upon Motion of Respondent, Maine Department of Health and Human Services, it is hereby ORDERED that Respondent's Motion to Extend Time for Filing of Record is hereby GRANTED and that the schedule of further proceedings, including filings by the parties, it hereby extended for four weeks, such that the filing date of the record in this case shall be due no later than March 15, 2007. The Clerk shall incorporate this Order on the Docket by reference. SO ORDERED. Copies mailed to attys. of record.
3/15/07 Certified Record, filed. s/Macirowski, AAG. Notice of briefing schedule mailed to attys of record. 4/17/07 Motion for Leave to Extend Briefing Schedule. filed. s/Kelley. Esq. Proposed Order, filed.
4/19/07 ORDER ON MOTION TO EXTEND, Marden, J. The petitioner's brief shall be due on May 18, 2007. Copies mailed to attys of record.
5/18/07 Brief of Petitioner. filed. s/Kelley, Esq. Motion to Supplement the Record. filed. s/Kelley, Esq. Affidavit of Elaine Conant. filed. s/Conant a/Kelley, Esq. Affidavit of Arthur P. Clum, filed. a/Conant s/Kelley, Esq. Date of Entry Docket No.
6/8/07 DHHS'S Opposition to Motion to Supplement the Record, filed. s/ Macirowski, AAG 6/15/07 Brief of Respondent, filed. s/Macirowski, Esq. Certificate of Service, filed. s/Macirowski, Esq.
6/21/07 Petitioner's Reply Brief, filed 6/20/07. s/Kelley, Esq.
Notice of sEiwng fOt_,..q ........I_S'---.~_D_1_._(l_. ~ent to attorneys of record.
9/6/07 Oral arguments held on 9/5/07 with the Hon. Justice Donald Marden, presiding. No courtroom clerk Thomas Kelley, Esq. for the Petitioner and Nancy Macirowski, AAG for thl' Respondent. Court to take matter under advisement.
9/19/07 DECISION AND ORDER, Marden, J. Peti tioner' s motion to supplement the record is DENIED; 'the final agenc:l action of DHHS is AFFIRMED. Copies to attys. of record. Copies to DOJlald: GOBS, Deborah Firestone and,'Garbrecht Law Library