STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-04-61 and AP-04-78 (Consolid"teq) ,-v q/() /1) +-.f tA, - 1<[ (lj- r ocTl YORK HOSPITAL,
Petitioners
v.
BRENDA HARVEY, et al.,
Respondents
******************************************** DECISION AND ORDER
YORK HOSPITAL, et al.,
Petitioners v. JOHN R. NICHOLAS, et al.,
Before the court are petitions for review, consolidated, in the matters of York
Hospital, et al. v. Brenda M. Harvey, et al., Docket No. AP-04-61, and York Hospital, et
al. v. John R. Nicholas, et al., Docket No. AP-04-78. By order of November 23, 2004, the
two petitions have been consolidated for disposition. Both of these actions arise out of
activities of the parties subsequent to an award of a Certificate of Need ("CON") to
Maine Medical Center and Southern Maine Medical Center ("MMC/SMMC") for the
development of a cancer care center in York County. 1
1 The actual application sought a Certificate of Need for a cancer care center in Wells. One of the activities giving rise to this litigation is the amendment to the Certificate of Need upon request for subsequent review to place the cancer care center in South Sanford. 2
The petitions seek judicial review of final action agency by the Commissioner of
the Maine Department of Health and Human Services ("Department") modifying the
CON granted February 4, 2003. The original CON decision was appealed to the Law
Court, remanded to this court and, pursuant to the Mandate, decision of this court is
issued contemporaneous with these matters. See York Hospital, et al. v. John R. Nicholas,
et al., AP-03-24 (Me. Super. Ct., Ken. Cty.).
The petitioners challenge the actions of the Commissioner of the Maine
Department of Health and Human Services regarding the CON award asserting that the
award resulting from the subsequent review is invalid as a matter of law in that the
successful applicant, MMC/SMMC, did not commence the project within 12 months
and the six-month extension pursuant to law and secondly, the decision on the
subsequent review is in violation of the authority granted the respondent by statute.
Under the CON Act, Title 22 M.R.S.A., and the terms of the CON award itself,
MMC/SMMC was required to commence development of its product within one year
after the CON decision. The Act also provided that the Department could grant an
extension of the certificate for an additional time not to exceed 12 months if good cause
is shown why the project has not commenced. At the time of the issuance of the CON
to MMC/ SMMC, the Department had adopted a rule that provided that the holder of a
certificate of need may be considered to have commenced the project in accordance
with the law if it was engaged in litigation of a complaint relative to the issuance of the
certificate. Inasmuch as York Hospital, et al. v. Nicholas, AP-03-24, was before this court
and subsequently on appeal to the Law Court, the Department deemed this project to
have "commenced."
The petitioners challenge that conclusion by asserting that by any set of facts
absent the rule, the project had not commenced because MMC/SMMC had not received 3
site approval from the town of Wells and, indeed, when ultimately received, was so late
that the hospitals moved the project elsewhere. The first argument by petitioners is an
assertion that the petition for subsequent review was a separate proceeding thereby
requiring the Department to utilize the law and regulations in effect at the time of the
request for subsequent review and not those at the time of the application for the CON.
The effect of such a holding would remove the determination that commencement can
be deemed by the presence of litigation. The second prong of petitioners' attack is that
the petition for subsequent review must be handled as a separate application thereby
requiring a new and distinct competitive application for CON with its attendant
procedures. Third, the petitioners challenge the determination by the Commissioner
that he was bound by a ruling of his CON Unit that commencement was deemed to
have taken place by virtue of the rule. 2 In his decision, the Commissioner disagreed
that the project had been commenced but stated that he was bound to comply with the
ruling by the CON Unit. Finally, the petitioners argue that the rule, if it is found to be
operative, exceeds the authority of the Department, violates the Administration
Procedures Act ("APA"), 5 M.R.S.A. § 11004 and is contrary to the CON Act itself
mandating the 12-month completion requirement.
With respect to the commencement issue, the respondent Department argues
that the petitioners did not properly raise the issue of the application of the new CON
Act at the Commissioner level and are therefore, in its judgment, estopped from raising
the issue on judicial review. They further argue, factually, that at the time of the
initiation of the competitive review, the petitioners agreed to the use of the 1978 rule as
2 This comment is relevant because in AP-03-24, this court determined that a very influential part of the CON Unit clearly displayed bias and prejudice in its communications against the petitioners but that its formal recommendations to the Commissioner and the Commissioner's decision itself did not appear to be based upon such bias or prejudice but upon facts which were present in the record. On those grounds, the court did not reverse the CON award. 4
applied to the underlying applications and that the staff and the Commissioner
proceeded on that basis. They further argue that the request for subsequent review is
not a separate proceeding and therefore is subject to the rule regarding commencement
deemed by litigation. In all of these factual procedural matters, the respondents argue
that, as a matter of law, the court should defer to the Commissioner and the
Department as being those most appropriate to interpret the statute and the rules.
To the extent petitioners challenge the authority of the Department to
promulgate such a rule, the Department argues that there is no conflict with the APA
and that the rule is in keeping with the general rule making authority of the
Department to adopt rules for the interpretation, implementation, and enforcement of
any provision of law that the Department is charged with administering. Conservation
Law Foundation, Inc. et al. v. Department of Environmental Protection, et al., 2003 ME 62, 823
A.2d 551. Respondents further argue that the petitioners have the burden to establish
that the Department acted arbitrarily and capriciously in enacting the rule where they
must demonstrate the unreasonableness of the action of the agency and must show that
the rule is unreasonable, lacks a factual basis or lacks support in an evidentiary record.
Id. On the part of the Certificate holder, MMC/SMMC, they argue deference to the
Commissioner and, in addition, assert that 1 M.R.S.A. § 302 clearly establishes that a
proceeding initiated prior to the repeal or amendment of an action shall be considered a
pending proceeding where there has been at least one substantive review thereby
preventing the enacted CON Act or CON rule as a matter of law. They further argue
that the request for subsequent review was not a separate application and therefore the
commencement issue is a continuation of the original application and not a separate 5
proceeding. Finally, they echo the Deparbnent's argument that the Issue was not
properly raised at the Commissioner level.
With respect to the argument regarding the failure of the petitioners to raise the
issue of the commencement decision, the petitioners argue, and the record supports the
view, that the determination by the Department of the so-called "commencement" by
virtue of litigation was determined ex parte and could not be raised by the petitioners
until the subsequent review procedure itself, at which time the petitioners asserted the
argument. That finding must be made in favor of the petitioners. 3
The court is satisfied that the determination of commencement and subsequent
review proceedings are a continuation of the original application and, notwithstanding
the substantial changes requested, to be discussed below, arise out of the initial
application and are not a separate proceeding. Therefore, the "commencement" issue is
determinative if valid. Whether or not petitioners are bound by any alleged agreement
to apply the 1978 CON Act and regulations to this entire proceeding, including the
subsequent review, it appears clear that 1 M.R.S.A. § 302 does not afford the petitioners
a remedy under the subsequent CON Act. Of greater concern is an analysis of whether
the rule exceeds the authority of the Department by being in violation of the statutes
found in the APA and the CON Act itself. On the one hand, such a rule would provide
a vehicle by which a successful CON applicant could be defeated in its implementation
of the project by disaffected parties' continuing litigation which might involve stays or
other issues creating uncertainty in investment practices. On the other hand, if the rule
substantively violates the CON Act itself and if, as a matter of fact, it frustrates the
3 In light of this court's findings in AP-03-24 of bias on the part of the CON Unit and the finding by the Commissioner that the project had not, in fact, been commenced but that the Commissioner acceded wholly to the decision by the CON Unit, the determination would appear to be troublesome. However, the rule is either valid or not as a matter of law and, if valid, it is undisputed that the award of the CON was involved in litigation consisting of a challenge to its award. 6
implication of the APA that the final agency action is not stayed unless there is court
action, it would exceed the rulemaking authority and further would violate the
principle that the agency loses its authority to modify a final agency decision unless the
court affects a remand. Gagne v. City of Lewiston, 281 A.2d 579 (Me. 1971). The rule
creates a fallacy and would appear to have the likelihood of a result contrary to its
purpose. It disregards any factual basis for the inability or unwillingness to commence
a project within a statutory 12-month period. Contrary to a motion for stay proceeding
in the court, it is absolute and makes no allowance for the nature of the litigation or its
real effect. 4
That being said, is such a finding conclusive with regard to the rulemaking
authority of the Department? The CON Act provides the Department with a broad
rulemaking authority by allowing it to adopt any rules, regulations, standards, criteria
or plan that may be necessary to carry out the provisions and purposes of the Act. The
court is satisfied that the Department, in its function as a reviewing and issuing
authority of Certificates of Need, has purposes in the nature of a continuing supervision
of the fundamental issues involved. The court views the 12-month requirement as a
means by which the circumstances and facts presented to the Department for
consideration of the need may change with the passage of time and that circumstances
which may give rise to an appropriate certificate at the time of application may change
and considerably modify the picture a year or so later. While it is not an obvious
conclusion, it is not unreasonable to interpret the rule as consistent with the overview
4 On two occasions, MMC and SMMC have suggested that the reason for the failure to actually commence the project within the 12-month period and the six-month extension is the litigation. They further assert that the need for increased capitalization is caused by the delay in the courts. Both of these assertions are disturbing because the reason for the delay is that MMC/SMMC did not have the necessary approvals from the town of Wells at the time of application and such approval did not occur until 18 months later than the decision. 7
authority of the Department in assisting it to implement the functions and purposes of
the CON Act. This is not to say that utilization of the rule to deem a project commenced
where a party has sought judicial review of the agency action and, during the pendency
of that litigation, the applicant and the Department were to modify the project in a
manner causally related to the deficiency being challenged. Use of the rule to consider
a change of location such as was done in this case where the location was such a
fundamental and substantive part of the applications by both competing parties comes
very close to suggest an improper use of the rule. But for the court to reach that
conclusion, it would need to do a factual analysis of all the circumstances of the
differences in the sites of the project which the court is not in a position to do and,
under well-established principles, must defer to the Department for the conclusion.
The second prong of petitioners' attack is to challenge the validity of the
subsequent review proceeding itself beyond the statutory deadline but within the
period in which litigation was pending. lv1MC/SMMC requested modifications to its
CON in a proceeding called a subsequent review. They sought a change in location of
the site of the cancer treatment center from Wells to South Sanford, they sought an
increase in capital authorization of some $500,000, and other changes of less substantial
nature. Petitioners' first challenge is to assert that the Department lacked jurisdiction to
conduct a subsequent review because under the principles of Gagne, 281 A.2d 579, the
authority was .removed from the administrative tribunal upon the petition for judicial
review. They argue, as a matter of fact, that the changes requested were sufficiently
substantial to require a renewed CON competitive review. In that regard, they assert
that Gagne is a jurisdictional ruling and not dependent upon the particular facts of the
case. 8
Secondly, petitioners complain that the subsequent review procedure is an
unlawful legislative delegation of authority since neither the statute nor the rules
provide specific standards for consideration by the Department in its modification of its
award. Third, they note the language of the statute dealing with criteria for subsequent
review to require subsequent review and approval within three years of the issuance of
a CON and there is a significant change in financing, there is a change affecting the
license capacity, there is a change involving services proposed, there is a change in the
site or location of the facility or a substantial change in the design or type of
construction. Inasmuch as some of the matters considered in the instant subsequent
review were not within those definitions, the petitioners believe the ultimate decision
was without authority.
Next the petitioners argue that they were denied the fundamental principles of
due process of law because the analysis by the Department of the new site in South
Sanford was not subject to a competitive analysis taking into the consideration the site
proposal by the petitioners, but was only a stand-alone review.
Petitioners complain that the addition of a third party to be a participant in the
facility, by rule, required a new CON analysis and it also asserts a provision of law
prohibiting transfer of ownership of the approved project.
Finally, petitioners argue that the decision regarding the subsequent review was
tainted by the same bias and prejudice as found in the underlying CON process as
substantiated in AP-03-24.
The Department responds that the facts of this case are distinguishable from
Gagne because the proposals for subsequent review were not to correct errors in the
original awarded certificate but to modify the results of changing circumstances over
time. Secondly, they note the mandate in the statute for the Department to engage itself 9
in review and approval once it has issued a CON and that the standards are specifically
spelled out statutorily as being the same standards for determination of the issue of the
CON in the first instance. The Department argues that the subsequent review is within
the statutory scheme of the CON Act and that interpretation and administration of that
Act is subject to deference to the Department and its Commissioner. With respect to the
due process issue, they note that the petitioners were given an opportunity to submit
material for the Department to consider in the application of the subsequent review of
MMC/SMMC and therefore were given an opportunity to be heard.
MMC/SMMC again raise the principle that they are not satisfied the petitioners
appropriately raised these issues before the Commissioner but admit that subsequent to
the ruling, the Commissioner did issue a letter acknowledging a challenge. They join
the Department in concluding that the statute requires continuing oversight and review
by the respondents and that there was not an attempt in the subsequent review to
correct errors in the original CON or modify substantive findings by the Commissioner.
They argue that the addition of Goodall Hospital as a partner in the project did not
substantially affect the project structure, there was no transfer of the CON to Goodall
and that petitioners did participate by presenting information to the Commissioner
during his review.
This court is satisfied that under concepts of oversight and continuing review
and approval as mandated by the CON Act, the subsequent review was not a separate
proceeding requiring a competitive review, that the Department applied the same
standards in that review as mandated for the CON itself, that the process was within
the statutory authority given to the Department and that its administration is subject to
deference. The court is further satisfied that the statutory provisions requiring a
subsequent review is just that and does not prohibit a subsequent review of other 10
matters, a distinction appearing to address minor and nonsubstantive changes from
fundamental findings required in the CON process.
Considering the whole record, the most difficult part of the analysis of this entire
proceeding, including AP-03-24, is this business of the failure of MMC/SlIIMC to
present and the failure of the Department to require sufficient information in the
underlying application for a CON that the proposed location of the project facility had
cleared all local hurdles and that its cost and accessibility were resolved and not subject
to further regulatory consideration. This failure, to a large extent, caused the need for a
subsequent review, an increase in costs, and a change in location totally outside of the
competitive review process. Petitioners have complained about this discrepancy from
the very beginning and were proven correct when it resulted in a need for changes to
the CON. That fundamental issue is the cause of this discrepancy and the question is
whether it was a lack of good judgment on the part of MMC/SMMC and the
Department staff or a result of bias and prejudice. Did the bias and prejudice cause the
Department to arbitrarily rule on the "commencement" issue? Did the bias and
prejudice cause the project to be delayed in excess of 18 months? Did the bias and
prejudice of the Department create a need for the subsequent review in which an
entirely different location for the project was not analyzed in a competitive review
process?
While the court is troubled by the manner in which petitioners were treated in
this entire proceeding, it cannot find a violation of constitutional or statutory
provisions, proceedings in excess of statutory authority, unlawful procedure, lack of
substantial evidence on the whole evidence or arbitrary or capricious decisions
characterized by abuse of discretion. The court finds no error of law. To the effect the 11
court finds bias, it does not find that it ultimately affected the decision of the
respondents.
The entry will be:
Decision of the Maine Department of Health and Human Services on subsequent review is AFFIRMED.
Dated: October-L 2007 Donald H. Marden Justice, Superior Court 2..... 0><..:4:L--_ _ Date Filed __--"'8'-l-1.....51.-'1 Kennebec Docket No. ----,jA~P"-'O.J.'4+-=l:6J.-Jll.-- ~__ County
Action _ _P
York Ho~nital & Wentworth-Douqlass vs. william Perfetto & Denartment of Human Plaintiff's Attorney Hospital Defendant's Attorney Services Joseph M. Kozak, Esq. - Charles F. Dingman, Esq. Julius Ciembroniewicz, Esq. John P. Doyle, Jr., Esq. (SMMC/MMC) Michael D. Seitzinger, Esq. Sara B. Gagne Holmes, Esq. 160 Capitol St., Suite 4 45 Memorial Circle Augusta, Maine 04330 P.O. Box 1058 Augusta, Maine 04332-1058 - Janine Massey, AAG State House Sta 6 Date of Augusta Maine 04333 Entry
8/25/04 Petition for Review, filed. s/Kozak, Esq. s/Ciembroniewicz, Esq. s/Seitzinger, Esq. 9/7 /04 Appearance and Statement of Position, filed. s/Dingman, Esq. 9/14/04 Entry of Appearance, filed. s/Massey, AAG Respondents' Motion to Dismiss with incorporated Memorandum of Law and Request for Hearing, filed. s/Massey, AAG 9/24/04 Record and Certification of Clerk's Record, filed. Record in vault. 9/27/04 Notice of briefing schedule mailed to attys. 10/4/04 Petitioners' Motion Under Rule 80C to Add Information to Record on Appeal and Incorporated Memorandum, filed. s/Kozak, Esq. Petitioners' Offer of Proof in Support of Rule 80C Motion, filed. Amended Petition for Review, filed. Motion for Leave to Amend, filed. s/Kozak, Esq. Affidavit of Michael Seitzinger in Support of Petitioners' Rule 80C Motion, filed. Proposed Order on Rule 80C Motion, filed. Proposed Order on Motion for Leave to Amend, filed. 10/13/04 Stipulation of Dismissal as to Counts III and IV, filed. s/Kozak, Esq. s/Massey, AAG and s/Doyle, Esq. 10/14/04 RESPONDENT'S MOTION TO DISMISS, Marden, J. Moot. Copies mailed to attys of record. STIPULATION OF DISMISSAL, Marden, J. Counts III and IV of Petition for Review are DISMISSED with prejudice. Copies mailed to attys of record. 10/14/04 Copy of letter, filed. s/Kozak, Esq. 10/25/04 Respondents' Opposition to Petitioners' Motion to Amend Petition for Review and Motion Under Rule 80C(e), filed. s/Massey, AAG Respondents' Motion to Consolidate with Incorporated Memorandum of Law, fill s/Massey, AAG Proposed Order, file. Date of Entry Docket No.
10/25/04 Memorandum of Law in Opposition to Petitioners' Motion under Rule 80C(e) to add Information, filed. s/Dingman, Esq. (with attachments)
11/24/04 ORDER ON MOTION TO CONSOLIDATE, Marden, J. The Court GRANTS Respondents' Motion to Consolidate and ORDERS the consolidation of the above-captioned matters. Copies mailed to attys. 12/13/04 Respondents' Opposition to Petitioners' Motion Under Rule 80C(e), filed. s/Massey, AAG. 12/14/04 SMMC/GH/MMC's Mmemorandum of Law in Opposition to Petitioners' Motion to Present Additional Evidence, filed. s/Dingman, Esq. Appendix to the Briefs, filed. (Vol. 1) 12/21/04 Petitioners' Reply Memorandum of Law in Support of Rule 80C Motion to Present Additional Evidence, filed. Kozak, Esq.
1/13/05 Letter informing the court that parties in interest have no objection to granting the Motion and entry of the Order, filed. s/Doyle, Jr., Esq. 5/3/05 ORDER ON MOTION FOR LEAVE TO AMEND PETITION FOR REVIEW, Marden, J. Copies mailed to attys of record. ORDER ON PETITIONERS' RULE 80C MOTION, MARDEN, J. Copies mailed to attys of record. 11/3/05 Letter regarding Petitioners' Motion under Rule 80C(e) to Present Additional Evidence, filed. s/Seitzinger, Esq. 11-22-05 Received and filed by Petitioners' Attorney, Michael Seitzinger Petitioners Motion for Stay, Memorandum of Law in Support of Petitioners' Motion for Stay, Affidavit of Michael Seitzinger in Support of Petitioners' Motion for Stay and Draft Order. 11/22/05 Petitioners' Motion for Stay, filed. s/Kozak, Esq.
11/28/05 Motion of SMMC/GH/MMC to Modify Record to Include Record Material Relating to DHHS Commissioner's July 2005 Denial of Stay of Commissioner's 2004 Subsequent Review Decision, filed. s/Doyle, Esq. Affdavit of John P. Doyle, Jr.in Support of Motion of SMMC/GH/MMC to Modify record to Include Record Materials Relating to DHHS Commissioner's July 2005 Denial of Stay of Commissioner's 2004 Subsequent Review Decision, filed. s/Doyle, Jr., Esq. Appendix to Affidavit, filed. Proposed Order, filed. Letter informing the court that the Petitioners do not object to the Motion to Supplement Record, filed. s/Seitzinger, Esq. 12/13/05 Respondents' Opposition to Petitioners' Motion for Stay, filed. s/Massey. AAG
12/19/05 Petitioners' Memorandum of Law Replying to Respondents' Opposition to Renewed Motion for Stay, filed. s/Seitzinger, Esq. 1,2/19/05 SMMC/MMC/GH's Memorandum in Opposition to Petitioners' Motion for Stay, filed. s/Doyle, Jr., Esq. (attached exhibits A,B) Affidavit of Robert Hardison in Support of SMMC/MMC'S Memorandum of Law Opposing Petitioners' Request for Stay, filed. s/Hardison (filed 12/16/05) PAGE 2 Date of Entry YORK HOSPITAL VS. DHS, ET ALS Docket No, .: .;A:.;. .P-=0---'4---'----'6:-:1=--- _
12/21/05 Petitioners' Memorandum of Law Replying to MMC/SMMC's Opposition to Motion for Stay, filed. s/Kozak, Esq. 2/3/06 Letter requesting a mediation session with ~ustice Fritzsche, filed. s/Massey, AAG 2/13/06 Letter requesting a second settlement with Justice Fritzsche. filed. s/ Kozak, Esq. 03-06-06 Received and filed on behalf of Respondent (SMMC) and (MMC) by Attorney John P. Doyle Jr. an Affidavit of Robert Hardison in Support of SMMC/MMC'S Memorandum of Law Opposing Petitioners' Request For Stay. 3/8/06 Hearing had, Hon. Donald Marden, Presiding. (no courtroom clerk present) Case taken under advisement.
5/15/06 ORDER FOR SUBSTITUTION OF PARTY, Marden, J. Brenda Harvey substituted as Commissioner for DHS. Copies mailed to attys of record. 5/19/06 Letter from attorney Seitzinger to Court regarding briefing schedule.
5/26/06 Letter regarding disposition of appeal, filed. s/Seitzinger, Esq. Letter in response to Atty. Seitzinger's letter, filed. s/Doyle, Jr., Esq.
5/30/06 Proposed Supplemental Scheduling Order, filed. 7/7/06 Letter regarding pending motions, filed. s/Seitzinger, Esq. 7/21/06 ORDER ON MOTION FOR STAY, Marden, J. Petitioners' motion for stay is DENIED. Copies mailed to attys of record. SUPPLEMENTAL SCHEDULING ORDER, Marden, J. Copies mailed to attys of record. 8/2/06 Proposed Order, filed. Proposed Order, filed.
8/23/06 Petitioners' Brief, filed. s/Seitzinger, Esq.
9/22/06 Respondents' Brief, filed. s/Massey, AAG
9/22/06 Brief of Southern Maine Medical Center, Maine Medical Center and Goodall Hospital, filed. s/Dingman, Esq.
10/2/06 Petitioners' Reply Brief, filed. s/Seitzinger, Esq. Substitution of Petitioners' Brief that was filed on August 23, 2006.
11/22/06 Oral arguments held with the Hon. Justice Donald Marden, presiding. Joseph Kozak, Esq. and Michael Seitzinger, Esq. for the Petitioners. Janine Massey, AAG and Charles Dingham, Esq. for the Respondents. Oral arguments made to the court. Court to take matter under advisement.
10/9/07 DECIS~ON AND ORDER, Marden, J. (10/2/07) Decision of the Maine Department of Health and Human Services on subsequent review is AFFIRMED. Copies to attys. of record. Copies to repositories. Date Filed 10/1 3/04 Kennebec Docket No. __A~P~0~4:':....----,7~8~ _ County
Action _ _--"'P..c::e-Lt--'i. .t.. .li..1.ouDL.. lf--'o1.JrL-lRl>.Je""'vlLi..L:el:::wl!lL- _ consolidated wI AP04-61 80C
J. MARDEN
York llncmi t-",1 & Wentworth-Dou~lass vs. Josenh R. Nicholas, Corom. & Depart. of Plaintiff's Attorney Hospital Defendant's Attorney Health & Human Services
Joseph M. Kozak, Esq. Charles F. Dingman, Esq. (SMMC/GH/MMC) Julius Ciembroniewicz, Esq. John P. Doyle, Jr., Esq. Michael D. Seitzinger, Esq. 45 Memorial Circle 160 Capitol Street, Suite 4 P.O. Box 1058 Augusta, Maine 04330 Augusta, Maine 04332-1058 - Janine Keck Massey, AAG (Nicholas & Dept.) 6 State House Station Augusta, Maine 04333-0006 Date of Entry
10/13/04 Petition for Review, filed. s/Kozak, Esq., s/Ciembroniewicz, Esq., s/Seitzinger, Esq. 10/19/04 Entry of Appearance and Statement of Position 5 M.R.S.A. § 11005, filed s/Dingman, Esq. 10/25/04 Entry of Appearance, filed. s/Massey, AAG
11 / 12/04 Certification of Record, filed. s/Massey,AAG (in vault on shelf) 11/15/04 Notice of briefing schedule mailed to attys of record. 11/22/04 Petitioners' Motion Under Rule 80C(e) to Present Additional Evidence and Incorporated Memorandum of Law, filed. s/Kozak, Esq. PetitiQners' Offer of Proof in Support of Rule 80C(e) Motion, filed. Affidavit of Joseph Kozak in Suuport of Petitioner's Motion, filed. Proposed Order, filed.
11/24/04 ORDER ON MOTION TO CONSOLIDATE, Marden, J. The Court GRANTS Respondents' Motion to Consolidate and ORDERS the consoli dation of the above~captioned matters. Copies mailed to attys. 12/13/04 Respondents' Opposition to Petitioners' Motion Under Rule 80C(e), filed. s/Massey, AAG 12/13/04 Petitioners' Motion for Leave to Amend Petition for Review and Incor porated Memorandum of Law, filed. s/Kozak, Esq. Amended Petition for Review, filed. Proposed Order, filed. 12/14/04 SMMC/GH/MMC'S Memorandum of Law in Opposition to Petitioners' Motion to Present Additional Evidence, filed. s/Dingman Appendix to the Briefs, filed. (Vol. 1) Date of Entry Docket No.
12/21/04 Petitioners' Reply Memorandum in Support of Rule 80C Motion to Present Additional Evidence, filed. s/Kozak, Esq. 1/13/05 Letter informing the court that parties in interest have no objection to granting the Motion and entry of the Order, filed. s/Doyle, Jr., Esq.
5/3/05 ORDER ON MOTION FOR LEAVE TO AMEND PETITION FOR REVIEW, Marden, J. Copies mailed to attys of record. ORDER ON PETITIONERS' RULE 80C MOTION, Marden, J. No action'taken by Court at this time ppnding discovery proceedings taking place under Mandate of Law Court is AP03-Z4. Copies mailed to attys of record. 111 ;/05 Letter regarding Petitioners' Motion under Rule 80C(e) to Present Additional Evidence, filed. s/Seitzinger, Esq. 11/22/05 Petitioner's Motion for Stay, filed. s/Kozak, Esq.
11/28/05 Motion of SMMC/GH/MMC to Modify Record to Include Record Material Relating to DHHS Commissioner's 2005 Denial of Stay of Commissionerls 2004 Subsequent Review Decision, filed(~. s/Doyle, Esq. Affidavit of John P. Doyle, Jr., Esq. in Support of Motion of SMMC/GH/}lliC to Modify Record to Include Record Materials Relating to DHHS Commission~r'R July 2005 Denial of Stay of Commissioner's 2004 Subsequent Review Decision. filed. s/Doyle, Jr., Esq. Appendix to Affidavit, filed. Proposed 6rder, filed. Letter informing the court that the Petitioners do not object to the-- Motion to Supplement Record, filed. s/Seitzinger, Esq. 12-02-05 Received and filed on behalf of Respondents, no objection to the granth" of the Motion of SMMC/GH/MMC to Modify Record to Include Record Materials Relating to DHHS Cornmisioner's 07-05 Denial of Stay of Commissioner's 2004 SubsequentReview Decision filed on November 22, 200S Letter filed by AAG Janine Keck Massey. 12/13/05 Respondents' Opposition to Petitioners' Motion for Stay, filed. s/Mass~J AAG 12/19/05 Petitioners' Memorandum of Law Replying to Respondents' Opposition to Renewed Motion for Stay, filed. s/Seitzinger, Esq. 12/19/05 SMMC/MMC/GH's Memorandum in Opposition to Petitioners' Motion for Stay, filed. s/Doyle, Jr., Esq. (attached exhibits A,B) Affidavit of Robert Hardison in Support of SMMC/MMC's Memorandum of Law Opposing Petitioners' Request for Stay, filed. s/Hardison (filed 12/16/05) 12/21/05 Petitioners' Memorandum of Law Replying to MMC/SMMC's Opposition to Motion for Stay, filed. s/Kozak, Esq. 2/3/06 Letter requesting a mediation session with Justice Fritzsche, filed. s/ Massey, AAG 2/13/06 Letter requesting a second settlement conference with Justice Fritzsche, filed. s/Kozak, Esq. PAGE 2 Date of Entry Docket No. __AP---"--_0_4'--_7_8 _
03-06-06 Received and filed on behalf of Respondent (SMMC) and (MMC) by Attorney John P. Doyle Jr. and Affidavit of Robert Hardison in Support of SMMC/MMC'S Memorandum of Law Opposing Petitioner's Request For Stay. 3/8/06 Hearing had. Hon. Donald Marden Presiding. (no courtroom clerk present) Case taken under advisement. 5/15/06 ORDER FOR SUBSTITUTION OF PARTY. Marden, J. Brenda Harvey substituted as Commissioner for DHS. Copies mailed to attys of record. 5/19/06 Letter from attorney Seitzinger to Court regarding briefing schedule.
5/26/06 Letter regarding disposition of appeal, filed. s/Seitzinger. Esq. Letter in response to Atty. Seitzinger's letter, filed. s/Doyle, Jr •• Esq.
5/30/06 Proposed Supplemental Scheduling Order. filed.
7 /7 /06 Letter regarding pending motions. filed. s/Seitzinger, Esq.
7/21/06 ORDER ON MOTION FOR STAY, Marden, J. Petitioners' motion for stay is DENIED. Copies mailed to attys of record. SUPPLEMENTAL SCHEDULING ORDER, Marden, J. Copies mailed to attys of record. 8/2/06 Proposed Order. filed. Proposed Order. filed.
8/15/06 ORDER ON SMMC'S MOTION TO MODIFY RECORD, Marden, J. Copies mailed to attys of record.
8/21/06 Amended Certification of Record, filed. s/Massey, AAG
8/23/06 Brief of Petitioners. filed. s/Seitzinger. Esq. s/Kozak. Esq.
9/22/06 Respondents' Brief. filed. s/Massey, AAG
9/22/06 Brief of Southern Maine Medical center, Maine Medical Center and Goodall Hospital. filed. s/Dingman. Esq. 10/2/06 Petitioners' Reply Brief, filed. s/Seitzinger. Esq. Substitution of Petitioners' Brief that was filed on August 23, 2006
11/22/06 Oral arguments held with the Hon. Justice Marden. presiding. Joseph Kozak. Esq. and Michael Seitzinger, Esq. for the Petitioners. Janine Massey. AAG and Charles Dingham, Esq. for the Respondents. Oral arguments made to the court. Court to take matter under advisement. 10/9/07 DECISION AND ORDER, Marden. J. (10/2/07) Decision of the Maine Department of Health and Human Services on subsequent review is AFFIRMED. Copies mailed to attys. of record. Copies to repositories.