The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: AP-10-0).5"" b . ,1.
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DRUG REHABILITATIONS, Inc.
d/b/a DAY ONE,
Petitioner,
v. ORDER
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Respondent.
Petitioner Drug Rehabilitation, Inc. d/b/a Day One's (Day One) appeal of final
agency action by respondent Department of Health and Human Services (DHHS)
is before the court, pursuant to M.R. Civ. P. SOC.
BACKGROUND
Day One is a Maine organization that provides substance abuse services for
youths and their families. (R. A at 2.) Day One is a MaineCare provider and, as such,
receives reimbursements from DHHS in accordance with the MaineCare Benefits
Manual. (R. A at 2-3.) The relevant provision of the Manual states:
Adolescent residential rehabilitation PNMis 1 provide the opportunity for
recovery through modalities, which emphasize personal growth through
family and group support and interaction. The PNMI' s qualified staff
shall teach attitudes, skills, and habits, conductive to facilitating the
member's transition back to the family and community. Adolescent
residential rehabilitation PNWs are designed to last at least three (3)
months and are limited to twelve (12) months per single admission.
MBM 10-144 ch. 101, § 97.08(E) (2011).
DHHS's Division of Program Integrity audited Day One for the time
period of January 1, 2003, through November 30, 2008. (R. D-5 at 1.) Day One
1
Day One is a private non-medical institution (PNMI). (Pet's Br. 2, n. 2.)
1
had treated 139 MaineCare members during that time period. (Id.) The audit
found that twenty-four members exceeded the twelve-month maximum length
of stay; as a result DHHS demanded reimbursement of $147,843.87. 2 (Id.)
Day One requested an informal review arguing that the discrepancy is
primarily due to the improper inclusion of bed hold days in the calculations. (R.
D-6 at 1.) A bed hold day is used when the client is out of the facility but intends
to return in order to complete the treatment plan. (Id.) "Providers may only use
bed-hold days when there is a reasonable expectation that the member will
return to the facility." 10-144 M.B.M. ch. 101, § 97.05-4 (eff. June 3, 2003). There
was a forty-five day bed hold day limit that took effect on May 15, 2005, prior to
that change there was no limit. (R. C-1 at 3.) For the twenty-four MaineCare
members who had exceeded the maximum stay Day One had billed for 1,245
combined bed hold days, including many "transitioning out" days. 3 (Id.)
Day One asserted that bed hold days should not be included in the
twelve-month maximum. (R. D-9 at 1.) DHHS conducted an informal review
and found that the bed hold days should be included in the maximum. (Id.)
Upon Day One's request, an administrative hearing was held on November 24,
2009. (R. D-10 at 1, Cat 1.) In its March 8, 2010, decision, DHHS held that the
reimbursement demand was appropriate. (R. Bat 1.) Day One filed a petition
for review with this court on May 24, 2010.
2
Due to issues surrounding leap year calculations and an auditing mistake the final
reimbursement demand has been reduced to $133,674.57. (Pet.'s Br. 10.) Day One
concedes that it owes $32,292.82 but disputes the remaining $101,381.75. (Pet's Br. 18.)
3
"Transitioning out" days are used to hold "a resident's spot in treatment open for a
while, using bed hold days, until Day One verified that the resident had successfully
transitioned back into the community." (Pet.'s Br. 5, n. 6.) These days were primarily
used when the person was leaving against medical advice and Day One did not believe
that they would be successful and, as a result, it expected the person to return. (Mot.
Hearing Dec. 1, 2011.)
2
DISCUSSION
1. Standard of Review
On a M.R. Civ. P. SOC appeal the court reviews the agency's decision for
an abuse of discretion, error of law, or findings unsupported by substantial
evidence from the record. Thacker v. Konover Dev. Corp., 2003 ME 30, C)[ 14, 818
A.2d 1013. The court must not substitute its own judgment for that of the agency
and must defer to findings of fact that are supported by substantial evidence in
the record. Rangeley Crossroads Coal. v. Land Use Reg. Comm'n, 2008 ME 115, C)[ 10,
955 A.2d 223 (citing Int'l Paper Co. v. Bd. of Envtl. Prot., 1999 ME 135, C)[ 29, 737
A.2d 1047). Additionally, the court must defer to the agency's interpretation of
its own internal rules and regulations "unless the rules or regulations plainly
compel a contrary result." Rangeley Crossroads Coal., 2008 ME 115, C)[ 10, 955 A.2d
223; see also State v. McCurdy, 2010 ME 137, C)[ 15, 10 A.3d 686 (noting that the
agency's interpretation must be reasonable).
2. Inclusion of Bed Hold Days in Twelve-Month Maximum
Day One argues, and this court agrees, that DHHS incorrectly included
bed hold days in reaching its determination as to whether Day One's clients had
reached their twelve-month maximum. The regulation defining the twelve-
month maximum is unconstitutionally vague since it is ambiguous on the subject
of bed hold days.
"A rule or regulation is unconstitutionally vague only if its meaning is so
ambiguous or unclear that an ordinary person exercising ordinary common
sense must guess at its meaning." Ne. Occupational Exch., Inc. v. State of Maine,
540 A.2d 1115, 1117 (Me. 1988) (internal quotation marks and citations omitted).
The terminology must allow the regulated individuals and businesses to avoid
3
guessing "how to conduct themselves to comply with the rule." McCurdy, 2010
ME 137, <jJ: 16, 10 A.3d 686.
Day One relied on McCurdy to show that the regulation is ambiguous. In
McCurdy the regulation in question controlled the size of the scallops harvested
in the Cobscook Bay. 2010 ME 137, <jJ: 3, 10 A.3d 686. The regulation stated how
many scallops were allowed in a certified measuring unit, but it did not state
how the enforcing officer selected the measured scallops. Id. at <j[<j[ 3-5.
Similarly, in this case, the regulation says how long MaineCare will cover a
member's stay, but it does not explain what is included in that calculation of
time. The selection method in McCurdy significantly altered how the regulation
was enforced and the Law Court found that the regulation was ambiguous since
it did not give the fishermen notice on how to comply. Id. at <jJ: 21.
Here, Day One could not tell from reading the regulation whether or not
bed hold days were included in the twelve-month maximum. Initially, DHHS
was also unsure how to interpret the regulation. During the administrative
hearing Mr. Bishop, a DHHS auditor, testified that the regulation was unclear
regarding the impact of bed hold days on the twelve-month maximum. 4
Day One's interpretation of the regulation is reasonable because excluding
bed hold days in the maximum can cause the regulation to contradict itself. For
example, consider a hypothetical patient who entered Day One for treatment and
4
Mr. Fortin [DHHS's Attorney]: We've established that it's not clear from the
regulations that bed hold days should be included in the counting of that twelve month
period but it's not clear that they should be excluded.
Mr. Bishop: Correct.
Mr. Fortin: It's just not clear one way or the other.
Mr. Bishop: It is not clear and that was the statement that I got from Policy that even
though it wasn't clear about what to do with the bed hold days it was like I said her
opinion that they should be included as part of the twelve month per single admission.
(R. C at 23 (from the hearing transcript).)
4
stayed for one month prior to needing to leave for an extended hospital stay.
While he was in the hospital his spot in the program was held using bed hold
days. After ten months he was able to return to the center to continue his
treatment. If the bed hold days were included in the twelve-month maximum
then he would only have one-month of MaineCare covered treatment left. This
result directly contradicts the regulation that says that treatment is "designed to
last at least three (3) months." MBM 10-144 ch. 101, § 97.08(E) (2011). If the bed
hold days are not included in the maximum, however, then the patient can
return for up to eleven months of MaineCare covered treatment. 5
Although the agency's interpretation o the regulation is reasonable, the
terminology is clearly ambiguous. Therefore, the regulation is unconstitutionally
vague concerning the inclusion of bed hold days.
3. Treatment of Transitioning Out Days
The Hearing Officer specifically discussed "transitioning out" days in his
recommended decision saying that transitioning out days fall into the general
goal of teaching "attitudes, skills, and habits conductive to facilitating the
member's transition back to the family and community." (R. A at 6.) Since these
days fall into the general goal of the treatment the Hearing Officer reasoned that
they should be included in the twelve-month maximum. (Id.)
Day One argues that "there was no competent evidence in the record
defining what bed hold days 'while transitioning out' meant, what formal
treatment methods Day One used to teach transitioning skills, and what overlap
5
This argument was presented by Day One during the motion hearing. While it is
convincing, this particular conundrum was resolved when the regulations were revised
effective May 15, 2005, to provide a 45-day limit on bed hold days. The point of the
illustration, that the maximum should apply only to treatment days, and bed hold days
are not treatment days, is not affected by the change.
5
-if any- existed between the two activities." (Pet.'s Br. 16.) Since "transitioning
out" days are utilized for the same purposes as other bed hold days- to hold a
spot for a patient who is out of the center but the center reasonably believes the
patient will retum- they should be treated the same as other bed hold days.
Therefore, "transitioning out" days are not included in the twelve-month
maximum.
The entry is:
The DHHS final decision is vacated. Day One must reimburse
DHHS $32,292.82 for the conceded amount billed for actual
treatment days over the twelve-month lengths of stay. (Pet's Br.
18.)
DATE:~ tS ZrJ 11 1
6
Date Filed 05-24-10 CUMBERLAND Docket No. ---=AP=---..=1..:::.0_-..=1.::.5_ _--,
County
Action 80C Appeal
DAY ONE DEPARTMENT OF HEALTH AND HUMAN SERVICES
vs.
Plaintiff's Attorney Defendant's Attorney
"P'E'l'ER-"G"""CA"R:r""E"SV- James E Fortin AAG
M-Ilflf££:A.-S£N,-£££ State of Maine
~5-£*€~6£-£!fR££!f Office of the Attorney General
i?-:&:-£ffi£--4·%:-1- 6 State House Station
i?eR!f~ANB;-ME-B-4~~~-e-4~~-- Augusta, ME 04333-0006
L DENNIS CARILLO ESQ
JON DOYLE ESQ
150 CAPITOL ST.
Date of AUGUSTA ME 04330
Entry
2010
May 25 Received May 24, 2010.
- ~
,... - - - - .J- ... n .. .._ro .. , ~nt- rn M.~- C.TV. P. 80C filed.