Portland Surgery Ctr., LLC. v. Comm'r, Maine Dep't of Human Servs.

• Court: Superior Court of Maine
• Decided: December 12, 2003
• Docket: CUMap-03-74
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION a CUMBERLAND, ss. DOCKET NUMBER AP-03-74 PORTLAND SURGERY CENTER, LLC, Plaintife STATE OF MAlive

c . uMberland $s, Clerk's Office

SUPEAIOD COLIRT

v. DEL 10 2003 ORDER COMMISSIONER, ME DEPT.of FRECEIVE D HUMAN SERVICES, Defendant AEN pe,

Before this court is Defendant, Commissioner, Maine Department of Human

Services’ Motion to Dismiss, pursuant to 12(b)(6). FACTS

On March 10, 2003, Department of Human Services (“DHS”) informed Plaintiff, Portland Surgery Center, LLC, that its proposed ambulatory surgical facility to be located at 135 Marginal Way, Portland, Maine, was subject to CON review. Plaintiff objected to this decision. However, despite Plaintiff’s objection, it proceeded with the CON application process. On or about April 2, 2003, Plaintiff requested a CON review application. This is because, DHS was required to provide a decision with respect to the CON within the statutorily prescribed 90-day period. A public informational meeting in connection with the proposed ambulatory surgical facility was held in Portland on August 25, 2003.

On or about September 30, 2003, however, DHS notified Plaintiff that it intended

to delay action for an additional 90 days, because a “public necessity” existed, thereby

justifying the additional delay. Subsequent to this, on October 10, 2003, DHS notified proposed ambulatory surgical facility. Accordingly, based on these events, Plaintiff filed a Complaint in Cumberland County Superior Court, on November 21, 2003. DISCUSSION When reviewing the Defendant's motion to dismiss, this court will look at the complaint in the light most favorable to the Plaintiff, taking the material allegations as admitted. See In re Wage Payment Litigation, 2000 ME 162, ¢ 3, 759 A.2d 217, 220. Thus, a motion to dismiss is Properly granted when it appears beyond a doubt that the Plaintiff is entitled to no relief under the facts that might be proved in support of the claim. Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996),

First, Defendant contends that the Administrative Procedure Act (“APA”) limits

judicial review to “final agency action.” The APA provides, in relevant part:

agency action shall be independently reviewable only if review of the final agency action would not provide any adequate remedy.

5 M.RS.A. § 11001(1). A Maine Court has interpreted this Provision to specifically

provide for review of threshold CON determinations, which is comparable to the

review requested in this case. Medimaine Health Associates, et al. v. Michael R. Petit, et

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-84-272 at *4 (Me. Super. Ct., Kennebec Cty.) (Brody, j.). In

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V Viedimaine, Justice Brody specifically held that “MediMaine should not be required to exhaust the CON process when the very necessity of the process is seriously in question. The Court is

persuaded that this is one of those rare cases in which an agency’s decision, even if

preliminary, is reviewable because review of the final agency action would not provide an adequate remedy.” Id. at *5 (citations and quotations omitted). Here, similar to the

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Situation presented in Medimaine, DHS has made a decision to subject P Proposed ambulatory surgical facility to CON review. Plaintiff disagrees with this

decision and accordingly it would appear has a right for this court to review the

41: . ar dawteton. WMLIC a 4h. * prejumunary decision of DHS, 77 wever, the Court in Medimaine also Stated that

some preliminary determinations to agencies which are particularly competent to dispose of them. Whether MediMaine will treat hospital inpatients with its scanner is a straightforward, nontechnical

inpatients is unsupported by substantial evidence, its decision to subject MediMaine to the costly, time-consuming CON administrative procedure is an essentially arbitrary one. When an exemption from an administrative process is at issue, a court should be less hesitant to intervene than ina case where an unquestionably necessary administrative process has not yet

Medimaine, CV-84-272 at *5 (citations and quotations omitted). In the case at bar, the

question presented to DHS involves whether or not Plaintiff's project is a “new health service,” pursuant to 22 M.R.S.A. § 329(4). This determination involves an analysis of the capital expenditures for the project, the project’s Operating costs, and the level of technology offered by the Project. Accordingly, this court finds that the analysis in this case is not as straightforward and nontechnical as the question presented in Medimaine and therefore requires the expertise of DHS.

Furthermore, the Law Court has held that; “the ultimate test of reviewability is not to be found in an overrefined technique, but in the need of review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and

adjudications that may follow...” Northeast Occupational Exchange, Inc. v. Bureau of

Rehabilitation, 473 A.2d 406, 410 (Me. 1984) (quotations omitted) (citing Isbrandtsen Co eee ee SN

5 Ty 2 4 v. United States, 93 U.S. App. D.C. 293 211 F.2d 51 (D.C. Cir.)). Additionally “ImJore

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(quotations omitted) (citing Cities of Anaheim and Riverside v. Federal] Ener ee ANIverside v. Federal Energy Regulatory Commission, 224 U.S. App. D.C. 4, 692 F.2d 773, 779 (D.C. Cir. 1982)

also Zaitzeff Aff. at 3, 7 8.) Plaintifé, however, has fai

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Hence, this court finds that Plaintiff has failed to prove with sufficient specificity that it

would suffer “irreparable injury.”

Finally, Defendant asserts that Plaintiff's petition for review is untimely, pursuant to 5 M.R.S.A. § 11002(3). This section provides that “{t]he petition for review shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought.” 5 M.RS.A. § 11002(3) (2003). More specifically, this section

is discussing judicial review of “final agency action or the failure or refusal of an agency

to act...” 5 M.R.S.A. § 11002(1) (2003). “Final agency action means a decision by an WHEREFORE, this court GRANTS Defendant’s Motion to Dismiss, pursuant to

M.R. Civ. P. 12(b)(6),

Dated: December (?_, 2003

ustice, Superior Court Action 80C Appeal

PORTLAND SURGERY CENTER, LLC

COMMISSIONER, MAINE DEPARTMENT OF HUMAN

SERVICES

VS.

Plaintiff’ s Attorney

Gregory A. Brodek, Esq. Duane Morris LLP

88 Hammond Street, Suite 5G0 Bangor, ME 04401-4915 207-262-5400

Date of Entry

Katherine Young Fergus, Esq. Duane, Morris LLP

470 Atlantic Avenue, Suite 500 Boston, MA 02210

617-289-9200

Defendant’s Attorney