Woodlands Assisted Living of Brewer v. Comm'r, Maine Dep't of Health and Human Svs.

• Court: Superior Court of Maine
• Decided: June 25, 2009
• Docket: KENap-08-63
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-08-63 \ \ - 11IN - ~S) 'j ,'~ c, j

WOODLANDS ASSISTED LIVING OF BREWER LLC,

Petitioner

v. DECISION

COMMISSIONER, MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent

Woodlands is a level IV Private, non-Medical Institution that provides assisted

living services to residents. Woodlands is subject to the Regulations Governing the

Licensing and Functioning of Assisted Housing Programs Level IV Private Non-

Medical Institution issued by the Department effective June 1, 2006. On June 20, 2007,

the Department issued a Directed Plan of Correction (DPC) to the Woodlands.

Woodlands filed an appeal. An administrative hearing was held at DHHS on April 22

and 23, 2008. The hearing officer issued his recommended decision dated June 24, 2008.

Following the recommended decision of the hearing officer on June 24, 2008,

Woodlands filed a response and exceptions to the recommended decision. DHHS

Commissioner Brenda Harvey issued her final decision on August 8, 2008, adopting the

hearing officer's findings of fact and accepted the recommendation of the hearing

officer that the Department was correct when it issued its DPC. Following this decision,

the petitioner Woodlands appealed.

Standard of Review 2

The standard for reviewing the merits of an administrative agency decision is

whether the agency abused its discretion, committed an error of law, or made findings

not supported on the record. Botting v. Dep't of Behavioral & Developmental Servs. 2003

ME 152,

A.2d 369,370 (Me. 1995).

Judges may not substitute their judgment for that of the agency merely because

the evidence would give rise to more than one result. The 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. Ed. of Examiners of Psychologists, 2000

ME 206,

Discussion

The evidence indicates that the parties agreed that there were problems and

deficiencies but there is a significant difference of opinion regarding the solution to

these problems. It is axiomatic that the court cannot substitute its judgment for the

judgment of the agency. The question for this court in reviewing the agency's actions is

whether the record contains competent and substantial evidence supporting the

agency's recommendations. The petitioner does not question the agency's decision to

issue a directed plan of correction. The petitioner actually acknowledges that there

were deficiencies but the petitioner objects to the recommendations made by the agency

in four areas.

First, Woodlands objects to the recommended need for an administrator for

administration of drugs, second, the need for additional staffing, third, the need for

more between-meals snacks, and, fourth, the presence of urine odor. 3

After reviewing the record below, the court finds and concludes that there is

competent and substantial evidence supporting the agency's findings of deficiencies

and the agency's directed plan of correction to alleviate these deficiencies.

For this reason, the court hereby denies theP:li~':~~']i'~r:~~~~_ _

r if' &#;~j' Dated: J u n e & 2009 C--",."i' '" ~'/?' .:~:/ Joseph M)abar // ,;;., Justice,JtlP<:rjOT Court G",/""

Attorney for Petitioner Roger Katz POBox 1051 Augusta, ME 04432-1051

Attorney for Respondent Thomas Bradley Assistant Attorney General 6 State House Station Augusta, ME 04333-0006 Date Filed 9/3/0B Kennebec- __ Doc ket No. _----J;Au:P'-'-0....B>.::-::>.61..-3L- _ County

Act ion P=-e.=....=-t=i-=-t=i-=-on=--=.f-=-o=.r_R=-=-ev-'--=i-=-ew-"--- _ 80C

Woodlands Assisted LivinR of Brewer, LLC VS. DHHS Plai ntiff's Attorney Defendant's Attorney Roger J. Katz, Esq. Renee Guignard, AAG 227 Water Street 6 State House Station P.O. Box 1051 Augusta Maine 04333-0006 Augusta, Maine 04332-1051 - Thomas C. Bradley, AAG - Doris A. Harnett, AAG

Date of Entry

9/3/08 Petition for Review, filed. s/Katz, Esq. Original summons with return service, filed. Original summons with return service, filed. 9/9/08 Letter entering appearance, filed. s/Guignard, AAG 09/11/08 Filed 09/11/08: Affidavit or service, with certified mail, return receipt green cards for Commissioner, Maine Department of Health & Human Services, and Office of the Attorney General. Filed by Attorney Katz. 09/23/08 Filed 09/23/08: Respondent's Motion to Enlarge Time in which to file the Certified Record filed by AAG Guignard.

10/10/08 ORDER, Mills, J. (l0/8/08) Respondent's Motion for Enlargement of Time to File the Certified Record is hereby GRANTED and the filing date of the record in this case shall be no later than October 30, 2008. Copy mailed to attorneys of record.

11/4/08 Filed 10/30/08: Certified Record filed by AAG Guignard

11/5/08 Notice and Briefing Schedule mailed to attorneys of record.

12/11/08 Petitioner's Agreed-To Motion To Extend Deadline For Filing Of Petitioner's Brief, filed 12/5/08. s/Katz, Esq.

12/15/08 Proposed Order, filed 12/12/08. s/Katz, Esq.

12/26/08 ORDER, Marden, J. (12/23/08) Deadline for filing Petitioner's Brief is extended to 12/22/08. Copy mailed to attorneys of record.

12/26/08 Petitioner's Brief, filed 12/22/08. s/Katz, Esq.

1/15/09 Letter entering appearance, filed 1/9/09. s/Bradley, AAG

1/15/09 Assented-To Motion For Enlargement Of Time To File Reply Brief, filed 1/9/09. s/Bradley, AAG Date of Entry Docket No.

1/15/09 Entry Of Appearance, filed. s/Harnett, AAG

2/2/09 Respondent's Brief, filed 1/30/09. s/Bradley, AAG

Notice of scltlng tor_.,.It!.oJll,did._*,~l....;o 'i__ ...... Q

~ent to attorneys of record.

4/22/09 Hearing held with the Hon. Justice Joseph Jabar, presiding. Roger Katz, Esq. for the Petitioner and Renee Guignard, AAG for the ' Respondent. Court to issu~ ord~r Cas~ und~r advis~m~nt.

6/25/09 DECISION, Jabar, J. For this r~ason, th~ court h~r~by d~ni~s th~ p~tition~r's BOC app~al. Copi~s to attys. of r~cord. Copi~s to r~positori~s