Cosgrove v. Dep't of Health and Human Servs.

• Court: Superior Court of Maine
• Decided: December 2, 2014
• Docket: KENap-13-47
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION DOCKET NO. AP-13-47 DHM-I(tN/ J;A-Dk-14- DEBORAH COSGROVE, Petitioner

v. ORDER

DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

Before the court is a M.R. Civ. P. 80C appeal from a decision of the

Department of Health and Human Services (DHHS) terminating Petitioner's

eligibility from Home and Community Benefits for the Physically Disabled

Services under section 22.04 of the MaineCare Benefits Manual. On November

22, 2013, an administrative hearing office of the Division of Administrative

Hearings sustained the decision of the DHHS in terminating Ms. Cosgrove's

section 22 services under the home and community based waiver program on the

grounds that Ms. Cosgrove is "endangered since she remained at home receiving

services under this Section and because Ms. Cosgrove has failed to demonstrate the

skills necessary to. successfully manage her personal-health . ' maintenance, including

satisfactory management of the PCA.," A hearing was held before the hearing officer on September 30, 2013, where

the petitioner appeared by phone and the eight witnesses appeared and rendered

testimony. The hearing officer also noted a number of fmdings of fact including

the determination that Ms. Cosgrove was a sixty year old woman with a diagnosis

that includes Paraplegia, Diabetes, Asthma, and Chronic Pain, and that she has

been paralyzed since the age of eighteen due to spine tumors. Her son has been

providing her services for many years under section 22 as her Personal Care

Assistant (PCA). She is served by a number of different agencies such as,

Professional Assistance Program, Home Health Services, and the MaineCare

Waiver Program. After finding the particular medical conditions, the findings

indicate that complaints have been made regarding the Petitioner's quality of care

with Adult Protective Services, such as unsanitary conditiohs of the home, personal

hygiene issues, physical injuries, and infections resulting m numerous

hospitalizations. Because of these numerous circumstances, Ms. Cosgrove was

transferred to Lakewood Manor Nursing Manor on May 21, 2013, where she

remains.

Petitioner denies the facts as found by the hearing officer. She insists the ·-' ,y_...

majority of the information presented at the hearing was inaccurate and taken out

.· ~f context when she talked to providers about h~r care. She was _uncertain of the ._ '~ ' . f',.~. .• ~ •. ·; • process in providing witnesses at the hearing. She seeks to be returned to her

home, continue under section 22 benefits, and supervise her son as her PCA. In

fact, at oral argument she made it clear that she wanted only her son to be

responsible for her care.

The party seeking review of an administrative agency action has the burden

of proof to show that the decision of the agency is not supported by competent

evidence. Maine Bankers Ass 'n v. Bureau of Banking, 684 A.2d 1304 (Me. 1996).

This court's review of the final agency action is to determine if there was an abuse

of discretion, error of law, or findings unsupported by substantial evidence on the

record. Herrickv. Town of Mechanic Falls, 673 A.2d 1348 (Me. 1996).

Ms. Cosgrove received procedural due process by being given notice of and

an opportunity to be heard at the hearing before the administrative officer. The

record is clear that the respondent applied the law in its regulation to that which

was, to a large extent, an uncontested state of facts regarding Ms. Cosgrove's

circumstances. The record is sufficient and the decision is supported by competent

evidence. Notwithstanding Ms. Cosgrove's assertion of her capability in training

and supervising her son as her PCA, the evidence appears otherwise.

For these reasons, the entry will be:

Petition for review is DENIED.

3 The Clerk is directed to incorporate this Order into the docket by referepce

pursuant to Maine Rule of Civil Procedure 79(a).

DATED:

Donald H. Marden Superior Court Justice

4 Date Filed 12/23/13 Kennebec Docket No. AP-13-4 7 F County

Action: Petition for Review J. Marden J. Murphy 80C

Deborah Cosgrove vs. Department of Health & Human Services

Plaintiffs Attorney Defendant's Attorney

Deborah Cosgrove, Pro Se Janine Raquet, AAG 220 Kennedy Memorial Drive 84 Harlow St., 2nd Floor Waterville, ME 04901 Bangor, ME 04401

Date of Entry

12/26/13 Notice of Appeal, filed 12/23/13. s/Cosgrove, Pro Se Application to Proceed Without Payment of Fees, Affidavit, filed 12/31/13.

1/2/14 ORDER, Murphy, J. (1/1/14) The filing fee is waived. Copy to Petitioner.

1/2/14 Entry of Appearance for DHHS, filed. s/Raquet, AAG

1/27/14 Certified Record, filed (1/23/14). s/Raquet, AAG

1/27/14 Notice and Briefing Schedule issued. Copy to Deborah Cosgrove, Janine Raquet.

3/4/14 Letter requesting extension to file brief, filed. s/Cosgrove, Pro Se

3/12/14 Letter indicating Respondent does not object to a 30-day extension for Petitioner to file Brief, filed. s/Raquet, AAG

3/18/14 ORDER, Murphy, J. (3/12/14) Petitioner's request is GRANTED. Her brief is therefore due 4/4/14. Copy to Petitioner and AAG Raquet.

4/1/14 Letter requesting extension to file brief, filed. s/Cosgrove, ProSe

4/15/14 Letter in response to Petitioner's letter filed 4/1/14, objecting to any further extension, filed 4/11/14. s/Raquet, AAG

4/24/14 Brief and attachments, filed 4/18/14. s/Cosgrove, ProSe

4/30/14 ORDER, Murphy, J. (4/29/14) (re: Brief filed 4/18/14). Court will accept this filing.

Page 1 AP-13-47 Copy to Petitioner and AAG Raquet. 6/10/14 Respondent's Brief, filed 6/9/14. s/Raquet, AAG

6/25/14 Oral argument scheduled for 9/3/14 at 2:00. Notice of Hearing sent to Petitioner and AAG Raquet.

8/27/14 Letter requesting continuance of 9/3 oral argument, filed 8/27/14. s/Cosgrove, ProSe

9/9/14 Letter indicating Respondent objects to request for continuance, filed 9/2/14. s/Raquet, AAG

9/9/14 Oral argument rescheduled for 11/5/14 at 1:00. Notice of Hearing sent to Petitioner and AAG Raquet on 8/29/14.

9/9/14 Oral argument rescheduled for 11/6/14 at 10:00. Notice of Hearing sent to Petitioner and AAG Raquet.

9/24/14 Letter sent to Petitioner requesting phone number to participate in oral argument by phone.

11/4/14 SPECIAL ASSIGNMENT ORDER, Humphrey, CJ (10/23/14) It is ORDERED that J. Donald Marden is assigned to hear and dispose of all matters that may arise in connection with this case, including hearing the case on the merits. Copy to Petitioner and AAG Raquet.

11/7/14 Hearing held 11/6/14, J. Marden presiding. Deborah Cosgrove, Pro Se; Janine Raquet, AAG Tape 1950, Index 3917-5437 Under advisement

12/8/14 ORDER, Marden, J. (12/2/14) Petition for review is DENIED. Copy to Petitioner and AAG Raquet Copy to repositories

12/8/14 Notice of removal of Record sent to AAG Raquet

Page 2 AP-13-47