Mugeni v. Maine Dep't of Health and Human Services

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-2021-12

FLORA MUGENI, )
)
Petitioner, )
)
V. ) DECISION
)
MAINE DEPARTMENT OF HEALTH )
AND HUMAN SERVICES, ET AL., )
)
Respondents. )

Before the Court is Petitioner Flora Mugeni's Petition for Review of State Agency

Action Pursuant to Maine Rule of Civil Procedure SOC. Ms. Mugeni appeals the Final

Decision of Respondent Commissioner of the Department of Health and Human Services

("DHHS"), dated April 28, 2021, upholding a Level I Substantiation of Ms. Mugeni. For

the following reasons, the Court affirms the Final Decision.

I. Background

Following an investigation by Adult Protective Services (" APS"), DHHS issued a

Notice of Level I Substantiation to Ms. Mugeni on March 4, 2020. (CR 162.) Ms. Mugeni

requested a hearing. (CR 68.) Hearing was held before Administrative Hearing Officer

Tamra Longanecker on December 15-17, 2020, and January 25-26, 2021. (CR 34.) Ms.

Mugeni testified at the hearing, among others. (CR 62, 1914-2039.)

On April 28, 2021, Chief Administrative Hearing Officer Joseph M. Pickering

issued the Final Decision. (CR 1.) The Final Decision adopts the findings of fact of Hearing

Officer Longanecker's Recommended Decision, which may be summarized as follows.

JCR 1.)

Page 1 of 15
Mr. F. was a 62-year-old man diagnosed with intellectual disability and diabetes

mellitus. (CR 38.) He was a dependent adult under 22 M.R.S. § 3472(6), and the State of

Maine was his guardian. (CR 38.) His public guardian representative was Patrick

Bourque ofDHHS, and his case manager was Kelsey Best of Waban Projects, Inc. (CR 39.)

Mr. Bourque and Ms. Best had worked with Mr. F. for two years prior to August 2019.

(CR 39.)

Mr. F. required blood sugar monitoring and three insulin injections each day to

manage his diabetes. (CR 39.) Mr. F. determined the dosage of each injection by using a

sliding scale to find the dosage that corresponded to a glucometer reading of his blood

sugar. (CR 39.) Mr. F. also required a long-acting insulin injection each night. (CR 39.)

Until August 22, 2019, Mr. F. lived alone. (CR 39.) Mr. F. received support from

Living Innovations in his home, including supervision of his blood sugar monitoring and

insulin usage. (CR 39.) A few weeks before August 22, Living Innovations discharged Mr.

F. due to unsanitary conditions in his home. (CR 39.) Mr. Bourque and Ms. Best grew

increasingly concerned about Mr. F.'s health and safety. (CR 40.)

On August 20, 2019, Mr. Bourque and Ms. Best met with Mr. Bourque' s supervisor

and a DHHS crisis worker to discuss a plan to move Mr. F. into a residential setting with

more support. (CR 40.) The same day, Ms. Best contacted Angie Marquis, acting CEO and

intake coordinator for Residential and Community Support Services ("RCSS"), to seek an

opening for Mr. F. in a group home. (CR 40.) Ms. Best sent a description of Mr. F. and his

support requirements to Ms. Marquis. (CR 40.)

On August 22, 2019, Mr. F.'s team met Mr. F. at his home and convinced Mr. F. to

go to the hospital. (CR 40.) Mr. Bourque reached into Mr. F.'s home and took a bag

containing medications from near the door but did not check its contents. (CR 40.) The

bag did not contain insulin or a glucometer. (CR 40.)

Page 2 of 15
Later that day, Ms. Marquis told Ms. Best that RCSS had an opening in a group

home starting the next day, Friday, August 23. (CR 41.) She told Ms. Best that a nurse

would train the group home staff on Mr. F.'s diabetes management needs before he

moved into the home. (CR 41.) Ms. Best sent Ms. Marquis Mr. F.'s medication

administration record ("MAR") from June 2019, the sliding scale, and a medication list

with times. (CR 41.)

After speaking with Ms. Best, Ms. Marquis told Ms. Mugeni, a registered nurse

employed by RCSS, that she would need to train the staff at the group home on how to

administer insulin. (CR 41.) Ms. Mugeni asked Ms. Marquis for more specific medical

information to develop the training but did not indicate she could not perform the

training. (CR 41.) Ms. Mugeni was not otherwise part of Mr. F.'s intake process with

RCSS. (CR 41.)

Ms. Mugeni became licensed in Maine on October 8, 2018. (CR 41.) Ms. Mugeni

had studied diabetes and insulin administration in nursing school. (CR 41.) She had not

been employed as a nurse before being hired by RCSS on November 28, 2018. (CR 41.)

Between November 2018 and August 2019, she reviewed medication records and trained

direct support professionals ("DSPs") to become certified residential medication aides

("CRMAs"). (CR 41.) She was supervised by Claudia Stanley, a registered nurse and co-

owner of RCSS. (CR 41.) In August 2019, Ms. Stanley was on medical leave. (CR 46.)

Mr. F. did not transition to the group home on Friday because his blood sugar

levels were too high to discharge him from the hospital.1 On Saturday, August 24, the

hospital permitted Mr. F. to discharge himself. (CR 42.) Mr. F. arrived at the RCSS group

1 The hospital had neglected to adrnmister Mr. F.'s insulin before lunch on Friday.

Page3 of 15
home by ambulance without insulin, without a prescription to refill his insulin, and

without a glucometer. (CR 42.) He did have a bag of other medications. (CR 42.)

RCSS assigned Willy Tshibangu, a DSP, to work with Mr. F. when he arrived. (CR

42.) Shortly thereafter, RCSS sent a CRMA, Paul Mukiza, to the home to help with Mr.

F.'s transition. (CR 42.) Art Robbins of DHHS Crisis Services ("Crisis") also visited the

group home that day to help Mr. F. settle in. (CR 42.)

Mr. F. appeared weak and dizzy when he arrived at the group home. (CR 42.)

When Mr. Mukiza saw that Mr. F. did not have doctor's orders or a medication

administration record ("MAR"), Mr. Mukiza reached out to Nancy Yombe, a program

manager or "pod leader" for RCSS. (CR 43.) Ms. Yombe in turn called Ms. Mugeni,

informed her that Mr. F. appeared weak, and asked her to call the group home staff. (CR

43.)

Ms. lVIugeni presumed that Mr. F. was the new diabetic client Ms. Marquis had

told her about. (CR 43.) Ms. Mugeni instructed the staff to give Mr. F. soda. (CR 43.) She

also told the staff to call her if they needed anything. (CR 43.) Ms. Mugeni then texted

Ms. Marquis and explained that Mr. F. showed signs of low blood sugar and that the

group home staff did not have any instructions regarding Mr. F.'s medications. (CR 43.)

Ms. Mugeni asked whether RCSS had prescriptions for him. (CR 43.)

In response, Ms. Marquis sent Ms. Mugeni a lVIAR from June 2019 and the sliding

scale. (CR 43.) Ms. Mugeni briefly reviewed the MAR that day. (CR 43.) Ms. Mugeni

stated that the staff would still need doctor's orders, which Ms. Marquis did not have.

(CR 43.) Ms. Mugeni stated that she hoped Crisis would help and that she would "keep

checking" to see whether Mr. F. needed to return to the emergency room. (CR 43.) Ms.

Marquis responded that RCSS may have to take him back to the emergency room,

Page 4 of 15
considering the number of insulin doses he was supposed to receive daily, and that she

would update Ms. Mugeni when she heard back from DHHS Crisis. (CR 44.)

At 5:35 p.m. that same day, Saturday, August 24, the hospital faxed doctor's orders

to Ms. Marquis, who forwarded them to Ms. Mugeni, Ms. Yombe, and the RCSS group

home staff. (CR 44.) Ms. Mugeni did not review the doctor's orders until she returned to

work on Monday, August 26. (CR 44.)

When she returned to work on Monday, Ms. Mugeni discovered that the group

home staff had failed to obtain insulin with the doctor's orders. (CR 44.) Ms. Mugeni

asked Ms. Marquis if Ms. Marquis thought Mr. F. should return to the emergency room

to obtain insulin. (CR 45.) Ms. Marquis told Ms. Mugeni to contact Mr. F.'s primary care

provider. (CR 45.)

When Mr. F.'s primary care provider's office told her that the doctor would need

to see Mr. F. before refilling his insulin, Ms. Mugeni booked the next available

appointment at 9:45 a.m. on Tuesday, August 27. (CR 45.) Ms. Mugeni then texted Ms.

Marquis to express concern about the lack of insulin and suggest going to the emergency

room to get insulin that day. (CR 45.) Ms. Marquis replied that she would reach out to

the case manager, and Ms. Mugeni asked Ms. Marquis to keep her updated. (CR 45.) Ms.

Mugeni did not hear back or follow up. (CR 45.) Ms. Mugeni left work early that day with

permission. (CR 46.)

The following day, Tuesday, August 27, 2019, the group home staff called Ms.

Mugeni and told her that Mr. F. had refused to eat or attend his doctor's appointment.

(CR 46.) Staff reported that Mr. F. was rolling on the floor without speaking. (CR 46.) Ms.

Mugeni texted Ms. Marquis to explain the situation and ask if she should call Crisis. (CR

46.) When Ms. Mugeni told Ms. Marquis that Mr. F. had not had insulin since he left the

hospital on Saturday, Ms. Marquis stated that he should go to the emergency room. (CR

Page 5 of 15
46.) Ms. Mugeni also called Ms. Stanley, who suggested that Ms. Mugeni call Crisis to

initiate the emergency response. (CR 46-47.) Ms. Mugeni called Crisis and relayed Ms.

Stanley's message to Ms. Marquis. (CR 47.) Art Robbins, the responding DHHS Crisis

worker, instructed Ms. Mugeni to meet him at the group home immediately. (CR 47.)

After he arrived and discovered there was no glucometer at the group home, Mr.

Robbins asked Ms. Mugeni to bring a glucometer. (CR 47.) She obtained a glucometer

from a supply in the office that Ms. Stanley provided for training purposes before going

to the group home. (CR 47.)

When Ms. Mugeni tested Mr. F.'s blood sugar, the readout reported that it was

"High," which meant that the level was too high for the glucometer to measure. (CR 47.)

She instructed the house manager to call 911. (CR 47.) Mr. F. stopped breathing before

the ambulance arrived and could not be resuscitated. (CR 48.) His cause of death was

hyperglycemia with ketoacidosis due to diabetes mellitus. (CR 48.)

From the time Mr. F. left the hospital on Saturday, August 24, until shortly before

his death on Tuesday, August 27, no one had checked Mr. F.'s blood sugar levels or

administered insulin. (CR 48.) Ms. Mugeni never trained the staff on blood sugar testing

or insulin administration. (CR 60.) If Mr. F. had been transported to the hospital up to one

hour before his death and received proper medical care, he "probably" would have

survived. (CR 48.)

On January 19, 2022, the Court ruled that Ms. Mugeni would be permitted to

supplement the record with evidence of the sanctions or lack thereof imposed by DHHS

on other individuals involved in the events leading to Mr. F.'s death. The Court issued

an Order on April 11, 2022, granting DHHS's Motion to Clarify the Court's previous

Order. Accordingly, the record includes the following additional facts: Ms. Best, Mr.

Bourque, and Mr. Robbins were not substantiated. Ms. Yombe received a Level II

Page 6 of 15
Substantiation. House Manager "B.A." received a Level I Substantiation, which was

reduced to Level II after an administrative hearing. Ms. Marquis received a Level I

Substantiation that is currently being appealed pursuant to M.R. Civ. P. SOC.

II. Legal Standard

The Superior Court's review of final actions of state agencies is governed by the

Maine Administrative Procedure Act, 5 M.R.S. §§ 11001-11008, and M.R. Civ. P. SOC. The

court may reverse an agency's decision if the decision is in violation of constitutional or

statutory provisions, in excess of statutory authority, made upon unlawful procedure,

affected by bias or error of law, unsupported by substantial evidence in the record, or

arbitrary or capricious or characterized by abuse of discretion. 5 M.R.S. § 11007(4)(C); see

Goodrich v. Me. Pub. Ernps. Ret. Sys., 2012 ME 95, 'I[ 6, 48 A.3d 212. The court may not

substitute its judgment for that of the agency on questions of fact. 5 M.R.S. § 11007(3). The

party seeking to vacate a state agency decision has the burden of persuasion on appeal.

Anderson v. Me. Pub. Ernps. Ret. Sys., 2009 ME 134, 'I[ 3, 985 A.2d 501.

III. Discussion

Ms. Mugeni appeals the Final Decision on the following grounds: (1) DHHS did

not provide expert witness testimony to establish the standard of care applicable to Ms.

Mugeni as a registered nurse, (2) the Final Decision is not supported by substantial

evidence, (3) Ms. Mugeni was deprived of procedural due process, (4) the Final Decision

is arbitrary and capricious, and (5) the Final Decision is affected by bias.

A. Applicable Standard

Pursuant to 10-149 C.M.R. ch. 1, § 7(1), "[a]ny individual who cares for, supports,

or provides services to an individual with intellectual disability or autism" may be subject

to the substantiation process. 10-149 C.M.R. ch. 1, § 7(2)(a)(i) provides, in relevant part:

Page 7 of 15
i. A Level I Substantiation reflects a finding by a preponderance of the
evidence (based on an APS Investigation and final written findings) that an
individual Abused, Neglected, or Exploited an individual with intellectual
disability or autism by engaging one or more of the following:

4. Intentionally, knowingly, or recklessly causing a threat to the health or
welfare of an individual with intellectual disability or autism by physical
or mental injury or impairment, deprivation of essential needs, or failure to
protect from these;

5. Intentionally, knowingly, recklessly, or negligently engaging in abuse or
neglect that results in serious harm to an individual with intellectual
disability or autism.

"Abuse" is defined as "the infliction of injury ... or the intentional, knowing or

reckless deprivation of essential needs, through acts or omissions." Id. § l (1 ). "Neglect"

is "a threat to an adult's health or welfare by physical or mental injury or impairment,

deprivation of essential needs or lack of protection from these." Id. § 1(11).

As a threshold matter, Ms. Mugeni argues that the regulation does not apply to

her because she was not a "direct service provider." The regulation does not limit

applicability to "direct service providers." It applies to "[a]ny individual who cares for,

supports, or provides services to an individual with intellectual disability." Id.§ 7(1). The

finding that Ms. Mugeni provided services to Mr. F. was supported by substantial

evidence, including that Ms. Mugeni advised staff on managing Mr. F.'s diabetes, made

a primary care appointment on his behalf, told her supervisor that she would keep

checking on his well-being, tested his blood sugar, and called Crisis and 911. (CR 61-62,

406, 412, 415.)

Ms. Mugeni also argues that DHHS was required to present expert testimony to

establish the applicable standard of conduct for a nurse. This is not a civil medical

malpractice action. As explained above, the standard of conduct is supplied by 10-149

C.M.R. ch. 1, § 7. The Court agrees with DHHS that the regulation does not distinguish

between individuals based on licensure.

Page 8 of 15
B. Substantial Evidence

The Final Decision adopted findings of both knowing or reckless conduct under §

7(2)(a)(i)(4) and negligence under § 7(2)(a)(i)(5). (CR 1-3, 61-62.) A finding by the

preponderance of the evidence pursuant to either§ 7(2)(a)(i)(4) or§ 7(2)(a)(i)(5) would be

sufficient to uphold a Level I Substantiation.

i. Knowing or Reckless Conduct under§ 7(2)(a)(i)(4)

First, the hearing officers concluded that Ms. Mugeni's failure to train RCSS staff

was a knowing or reckless act that threatened Mr. F.'s health and safety, as were her

failures to promptly initiate an emergency response or monitor Mr. F.'s blood sugar

levels. (CR 61.) Section 7(2)(a)(ii) provides that the terms "knowingly" and "recklessly"

have the meanings set forth in 17-A M.R.S. § 35. Thus, "knowingly" is defined as follows:

A. A person acts knowingly with respect to a result of the person's conduct when
the person is aware that it is practically certain that the person's conduct will cause
such a result.

B. A person acts knowingly with respect to attendant circumstances when the
person is aware that such circumstances exist.

17-A M.R.S. § 35(2). "Recklessly" is defined as follows:

A. A person acts recklessly with respect to a result of the person's conduct when
the person consciously disregards a risk that the person's conduct will cause such
a result.

B. A person acts recklessly with respect to attendant circumstances when the
person consciously disregards a risk that such circumstances exist.

C. For purposes of this subsection, the disregard of the risk, when viewed in light
of the nature and purpose of the person's conduct and the circumstances known
to the person, must involve a gross deviation from the standard of conduct that a
reasonable and prudent person would observe in the same situation.

17-A M.R.S. § 35(3).

Ms. Mugeni argues that insufficient evidence was presented regarding her state of

mind. To the contrary, Ms. Mugeni testified to learning about diabetes and the

Page 9 of 15
importance of insulin to diabetics in nursing school.2 (CR 2027.) As evidenced by her text

messages to Ms. Jvfarquis, Ms. Mugeni was aware of the risk posed to Mr. F. if they waited

until Tuesday to acquire insulin, and she was aware that she could have initiated an

emergency response to acquire insulin. (CR 406-415.)

Ms. Mugeni argues that her conduct did not threaten Mr. F.'s health and safety-

his lack of insulin did. Ms. Mugeni's failure to train the staff, however, left them

unequipped to test Mr. F.'s blood sugar or recognize the signs that Mr. F. needed to go to

the emergency room. Her failure to promptly initiate an emergency response when she

realized that he would not be able to see his primary care provider until Tuesday left him

without insulin for days. Substantial evidence supports a finding that Ms. Mugeni

disregarded a risk and that her disregard of the risk was a gross deviation from the

standard of conduct that a reasonable and prudent person would observe in the same

situation, or that she was practically certain that her conduct would threaten Mr. F.'s

health and welfare. The Court will not disturb the finding that Ms. Mugeni knowingly or

recklessly caused a threat to Mr. F.'s health or welfare.

ii. Negligent Conduct under§ 7(2)(a)(i)(5)

Because there is substantial evidence to uphold a Level I Substantiation pursuant

to § 7(2)(a)(i)(4), the Court need not determine whether there is substantial evidence to

uphold substantiation pursuant to § 7(2)(a)(i)(5). Nevertheless, the Court agrees with

DHHS that there is also substantial evidence that Ms. Mugeni negligently engaged in

abuse or neglect that resulted in serious harm to Mr. F. See§ 7(2)(a)(i)(5).

2The Court disagrees that a heightened standard was applied to Ms. Mugeni because she was a nurse.
Rather, Ms. Mugeni' s education on diabetes and understanding of the medical risks-to which she
testified-informed the analysis of her state of mind. The Court finds no error or deficiency on this point.

Page 10 of 15
Section 7(2)(a)(ii) is silent as to the definition of "negligently." Because

"negligently" is omitted from the reference to definitions in the criminal code, Chief

Administrative Hearing Officer Pickering concluded that the regulation requires a

finding of only civil negligence, not criminal negligence. (CR 2.) The Court agrees with

this conclusion. Civil negligence consists of four elements: a duty of care, a breach of that

duty, causation, and damages. Murdock v. Thorne, 2017 ME 136, 'l[ 11, 166 A.3d 119.

The hearing officers concluded that Ms. Mugeni breached a duty owed to Mr. F.

by failing to ensure that he saw a doctor on Monday and by failing to promptly initiate

an emergency response on Tuesday. (CR 61-62.) Whether one person owes a duty to

another is a question of law. Est. of Smith v. Cumberland County, 2013 ME 13, 'l[ 17, 60 A.3d

759. When acting in an appellate capacity pursuant to M.R. Civ. P. SOC, the Court reviews

questions of law de novo. Doane v. Di?p't of Health and Hum. Servs., 2021 ME 28, 'l[ 15, 250

A.3d 1101.

The hearing officers concluded that Ms. Mugeni owed a duty to Mr. F. because of

her role in RCSS and her involvement in his diabetes management, which began when

she first rendered advice to the staff to give Mr. F. soda and continued until his death.

(CR 61-62.) The Court agrees with the hearing officers' conclusion that Ms. Mugeni owed

a duty of care to Mr. F. See Restatement (Second) of Torts§§ 323, 324 (Am. L. Inst. 1965)

(on negligent performance of undertaking to render services and duty of one who takes

charge of another who is helpless).

Breach and causation are questions of fact. Est. of Smith, 2013 ME 13, 'l[ 17, 60 A. 3d

759. The Final Decision contains findings of both elements, and the Court agrees that the

findings are supported by substantial evidence. Ms. Mugeni breached a duty by failing

to ensure that Mr. F. received insulin on Monday and by failing to call 911 on Tuesday

when she was first informed of his condition. Deprivation of insulin for several days

Page 11 of 15
caused Mr. F.'s death, which "probably" could have been avoided if he had received

medical attention up to one hour before his death. (CR 48.)

In sum, the Final Decision is supported by substantial evidence. Ms. Mugeni's

Level I Substantiation was properly upheld pursuant to§ 7(2)(a)(i)(4) and§ 7(2)(a)(i)(5).

C. Due Process

Generally, procedural due process requires notice and an opportunity to be heard.

Doe v. Tierney, 2018 ME 101, 'l[ 17, 189 A.3d 756. Ms. Mugeni argues that she was denied

procedural due process because she was not interviewed during the investigation into

Mr. F's death and because she was not given adequate notice of DHHS's allegations

related to negligent conduct.

i. Notice

Ms. Mugeni argues that she was not given adequate notice that her substantiation

was based in part on negligent conduct under 10-149 C.M.R. ch. 1, § 2(i)(a)(5) because the

report on the Department's investigation contains only the "knowingly or recklessly"

language in its "Conclusion Narrative" section. (CR 188-89.) The Court does not agree.

The immediately preceding "Conclusions" section indicated that her substantiation was

based on§ 2(i)(a)(4) and§ 2(i)(a)(5), with the language of each section reproduced therein.

(CR 188.)

Additionally, the Law Court has held that a party asserting a due process violation

based on deficient notice must show that he or she was prejudiced by the deficiency.

Knoblach v. Morris, 2017 ME 116, 'l[ 3, 164 A.3d 132; Hopkins v. Dep't of Human Servs., 2002

ME 129, 'l[ 13, 802 A.2d 999. Even if Ms. Mugeni did not receive adequate notice, she has

not shown that she was prejudiced by the deficiency. She has not, for example, explained

how the asserted deficiency in the notice affected her ability to prepare her defense.

ii. Hearing

Page 12 of 15
Ms. Mugeni was provided with a meaningful opportunity to be heard at the

administrative hearing before Hearing Officer Longanecker. The fact that she was not

interviewed during the investigation did not affect her ability to present a defense at the

hearing through her own testimony and exhibits. Moreover, APS' s own rules and

regulations give APS discretion to interview alleged perpetrators of abuse and neglect,

"as appropriate." 10-149 C.M.R. ch. 1, § 4(2)(c)(iii). Ms. Mugeni has not demonstrated a

due process violation.

D. Arbitrary and Capricious

Ms. Mugeni argues that the Final Decision was arbitrary and capricious because

the hearing officers mischaracterized her role within RCSS and failed to consider whether

others were more responsible for Mr. F.'s diabetes management. A reviewing court will

"not find that an administrative agency has acted arbitrarily or capriciously unless its

action is 'wilful and unreasoning' and 'without consideration of facts or circumstances."'

AngleZ Behav. Health Servs. v. Dep't of Health and Hum. Servs., 2020 ME 26, 'l[ 23, 226 A.3d

762 (quoting Cent. Me. Power Co. v. Waterville Urb. Renewal Auth., 281 A.2d 233, 242 (Me.

1971)).

To the contrary, the hearing officers expressly considered that Ms. Mugeni's role

typically involved reviewing medical records and training duties. 3 Her substantiation

was upheld based in part on her failure to train the CRMAs and DSPs on Mr. F.' s medical

needs. (CR 61.) Additionally, the hearing officers found that although her role did not

ordinarily involve providing direct services to clients, she had involved herself in Mr. F.' s

medical care by ad vising RCSS staff with respect to his diabetes management. (CR 61-62.)

3Ms. Mugeni objects to the admission of RCSS job descriptions. Hearing Officer Longanecker, however,
explicitly declined to assign any weight to RCSS's job descriptions. (CR 37.)

Page 13 of 15
The fact that others involved in Mr. F.' s care, including DHHS employees, owed a

greater duty to Mr. F. or had a greater ability to direct Mr. F.'s medical care does not bear

on Ms. Mugeni's own conduct. Omission of discussion of others' conduct in the Final

Decision was not unreasonable because the issue to be decided was whether the evidence

supported Ms. Mugeni's substantiation.

The hearing officers fully considered the relevant facts and circumstances

surrounding Mr. F.'s care and Ms. Mugeni's conduct. The Final Decision is not arbitrary

and capricious.

E. Bias

Ms. Mugeni argues that the Final Decision was affected by bias. State agencies are

entitled to a presumption that administrative decision makers act with integrity and

objectivity. New Eng. Tel. & Tel. Co. v. Pub. Utils. Comm'n, 448 A.2d 272, 279 (Me. 1982);

Mallinckrodt v. Littell, 616 F. Supp. 2d 128, 142 (D. Me. 2009); see Friends of Me. 's Mts. v. Bd.

of Env't Prat., 2013 ME 25, 'l[ 23, 61 A.3d 689 ("In order to show bias, however, Friends

must present evidence sufficient to overcome a presumption that the fact-finders, as state

administrators, acted in good faith.").

To rebut the presumption, Ms. Mugeni points to the fact that several others

involved in the incident, including DHHS employees, received a Level II Substantiation,

were not substantiated, or were not investigated. She suggests that DHHS employees

involved in the initial investigation were biased and that DHHS used Ms. Mugeni as a

scapegoat to insulate DHHS employees from discipline.

Although a biased investigation could lead to development of a biased record, Ms.

Mugeni was permitted to and did, in fact, present her own evidence for consideration at

a de novo hearing. The hearing officers expressly considered her evidence and arguments

Page 14 of 15
in the Recommended Decision and Final Decision. Ms. Mugeni has failed to demonstrate

that any bias in the investigation affected the Final Decision.

Nor has Ms. Mugeni demonstrated that either hearing officer's independence was

compromised. This case is therefore distinguishable from Mutton Hill Estates, Inc. v. Town

of Oakland, in which planning board members met, ex parte, with opponents of a project
to write factual findings denying the application for a project. 468 A.2d 989 (Me. 1983).

The Court acknowledges that there is evidence in the record that others who were

aware of Mr. F.'s medical needs also failed to ensure the Mr. F. received insulin or medical

attention when they had the opportunity. That others received lesser sanctions does not

establish, standing alone, that the Final Decision was affected by bias. Ms. Mugeni' s own

Level I Substantiation is supported by substantial evidence. Ms. Mugeni has not

overcome the presumption of integrity and objectivity.

IV. Conclusion

For the foregoing reasons, each of Ms. Mugeni's arguments on appeal fails. The

Court denies Ms. Mugeni' s Petition.

The entry is:

Petitioner Flora Mugeni's Petition for Review of State Agency Action is DENIED.
The Final Decision is AFFIRMED.

The Clerk is directed to incorporate this Decision into the docket by reference

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

ay Kennedy, Justi
e Superior Cour

Page 15 of 15
/

\ (

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-21-12

FLORA MUG ENI,

Petitioner

V. ORDER

MAINE DEPARTMENT OF HEALTH AND
HUMAN SERVICES, et al.,

Respondent

Before the court is a motion by respondent Department of Health and Human Services

to seal the record. This motion is opposed by Petitioner Flora Mugeni.

The basis of the motion is 22 M.R.S. § 34 7 4(1) which provides that records containing

personally identifying information created in connection with the department's adult
protective activities and activities related to an adult while under the jurisdiction of the

department are confidential.- -

Under§ 3474(3)(B), however, the department

shall disclose relevant information to the court on its finding
that access to_ those records may be necessary for the
determination of any issue before the court· Access must be
-limited to in came_ra inspection unlessthe court determines that
disclosure of the information is necessary for the resolution of
an issue pending before it

In this case DHHS skipped the steps of having the court determine that access may be

necessary for the determination of an issue before the court and of submitting records for

in camera inspection. Instead, it simply filed the administrative record. With some

exceptions, the administrative record identifies the individual in question as "Mr. F" or

redacts his name with the exception of the first letter of his last name. See. e.g., R. 192. There
{
\

are, however, a few apparently inadvertent references in the administrative record where

the full name is disclosed.

To cut to the chase, the court determines that disclosure of the information in the

administrative record - with the exception of Ms. F's full last name - is necessary to the

resolution of the appeal under 22 M.R.S. § 347 4(3) (B). That means the administrative record

_shall not be sealed; th~ court is u11willing to IUake dec:_i_~ions on c1_~ecret re~?E~· The PE!!:lciple

that court proceedings are open to the public is a fundamental tenet of our judicial system,

protected by both the common law and the First Amendment Nixon v. Warner

Communications., 435 U.S 589, 597 (1978); FTCv. Standard Financial Management, 830 F.2d

404, 408 & n.4 (1st Cir. 1987).

The court does not, however, see any reason why the full name of the individual in

question needs to be disclosed or why he cannot be described as "Mr. F". or "the resident" 1

Because§ 3474 aims to protect identifying information of adults under DHHS jurisdiction,

the Department shall be allowed, if it chooses, to replace. unabbreviated uses of Mr. F.'s last

name with the abbreviated version. In that case the Department shall be allowed to reclaim

the administrative record, substitute the necessary pages, provide copies of the substituted

pages to counsel for petitioner, and refile the record.

Ms. Mugeni's filings to date demonstrate that the full name is not necessary for her to

litigate the case. In briefing_the appeal, therefore, both parties shall refer to the individual as

"Mr. F" ot " the resident.'' This is consistent with the identification of the individual

throughout most of the administrative record

i Ms. Mugeni's motion to take additional evidence does not identify the individual by name but
refers'to him as "the resident." Her complaint refers to him as "John Doe."

2
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The entry shall be:

Respondent's motion to seal the record is denied except that, as set forth above,
respondent shall be permitted, if it chooses, to redact any references in the administrative
record that identify the full name of the individual in question. The clerk is directed to
incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: January Jj_, 2022 ~----

Thomas D. Warren
Justice, Superior Court

Entered on tbe Docket~!J~\\1~

Petitioner-Ronald Schneider, Esq.
Respondent DHHS-Shannon Collins AAG
Intervenor Disability Rights Maine-Staci
Converse, Esq. and Lauren Wille, Esq.

3
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STATE OF MAINE. SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. AP-21-12

FLORA MUGENI,

Petitioner

v. ORDER

MAINE DEPARTMENT 6J; HEALTH AND
HUMAN SERVICES, et al.,

Respondent

Before the court is petitioner Flora Mugeni's motion to take additional evidence
pursuant to Rule BOC(e).

This is an appeal pursuant to M.R.Civ.P. BOC and 5 M.R.S. §§ 11001-07 challenging an

April 28, 2021 decision by the Chief Hearing Officer of Department of Health and Human

Services·(DHHS}-finding that DHHS had correctly substantiated petitioner Flora-Mugeni-for

abuse and neglect of a person with a disability - a client identified in the record as "Mr. F"
and referred to in some of the filings as "John Doe."

The record indicates that Mr. F was a person diagnosed as having intellectual

disability and diabetes mellitus. Certified Record (hereafter R.) 38. He died of hyperglycemia

with ketoacidosis due to his diabetes on August 27, 2019. CR 48. The substantiation of Ms.

Mugeni for abuse and neglect of Mr. F is a Level I substantiation, which is reported to

registries maintained by the state and federal authorities. to Rule BOC(e).

The motion to take additional evidence is opposed by DHHS and by Intervenor

Disability Rights Maine. Under Rule 80C(e), a motion to take additional evidence must be

filed within 10 days of the filing of the record. Although DHHS and Intervenor argue that Ms.
Mugeni's motion was untimely, the court file reflects that the record was filed on August 30

and Ms. Mugeni's motion was timely filed 10 days later.1

The additional evidence that Ms. Mugeni seeks to add consists of the following: (1) a

June 10, 2021 decision by the Board of Nursing, issued after the Chief Administrative Hearing

Officer's decision in this case, and (2) evidence of and the rationale for the decisions by DHHS

with respect to other individuals involved in the events leading to Ms. Mugeni's Level I

substantiation. Several individuals received no sanction; one other individual received a

Level II sub~tahtiation.

Ordinarily judicial review under Rule SOC.and 5 M.R.S. §§ 11001-07 is confined to the

record before the agency. 5 M.R.S. § 11006(1). However, additional evidence may be added

to the record if the additional evidence

is material to the issues presented for review and could not have
been presented or was erroneously disallowed in proceedings
before the agency.

5 M.R.S. § 11006(1)(B).

Nursing Board Dismissal

In this case the subsequent decision by the Board of Nursing could not have been

presented to the agency, and the dispute is whether or not that decision is material to the

issue presented for review. According to Ms. Mugeni, the Board of Nursing dismissed a

complaint against Ms. Mugeni based on the events that led to the Level I substantiation,

finding that there had been no violation of the laws regulating the practice of nursing. 2 Ms.

1 Intervenor argues thatthe motion should be denied because no Rule 7(b)(l) (A) notice was
included but if a 21 day notice is not included, the result is that opposing parties may be heard even
if timely opposition is not filed. In this case both the opposing parties filed memoranda, and the
court has considered them even though the DHHS opposition was not filed within 21 days.

2 From Ms. Mugeni's submission, it does not appear that the Board of Nursing engaged in any
discussion or analysis of the complaint or set forth any reasons for its dismissal.

2
Mugeni argues that DHHS based its Levell substantiation largely on Ms. Mugeni's status as a

registered nurse and that, as a result, the Nursing Board's dismissal is material.

The problem with this argument is that, even if the alleged failures on which DHHS

based its Level l substantiation would also arguably constitute violations oflaws regulating

the practice of nursing - which is not dear from Ms. Mugeni's motion -there is no

requirement of which the court is aware that DHHS decisions have to be consistent with

Nursing Board decisions. The motion to supplement the record by adding the Board of

Nursing's dismissal is denied.

Evidence as to Substantiation or Non-Substantiation of Other Individuals

Evidence with respect to the sanctions or lack thereof imposed by DHHS on other

individuals involved in the events that led to Mr. F.'s death was offered and disallowed by

the Administrative Hearing Officer. Ms. Mugeni argues that this evidence was material and

was erroneously disallowed. See 5 M.R.S. § 1106(1)(B).

I_!iis pro_ceeding __()!iginated with an appeal by Ms. Mu~<:_I"li from a decision by DHHS

Adult Protective Services that it intended to impose a Level I substantiation. Final

decisionmaldng authority on Ms. Mugeni's appeal was delegated to the Chief Administrative

Hearing Officer, Joseph Pickering (R. 159), and the appeal was referred to Administrative

Hearing Officer Tamra Longanecker to hold a hearing, to make findings of fact, and to issue

a recommended decision. R. 160-61. The substantiation or non-substantiation of other

individuals in the events that lead to Mr. F's death was determined to be irrelevant by

Hearing Officer Longanecker. R. 63. When Ms. Mugeni appealed to Chief Administrative

Officer Pickering and raised that issue (R. 22, 23-24), Pickering ruled that

whether other persons have or have not been substantiated has
no bearing on whether Ms. Mugeni should be substantiated.

R. 3.

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In the court's view, it is at least conceivable that the imposition of a sanction on Ms.
Mugeni and no sanction or a lesser sanction on other individuals - if the others bore
considerably more responsibility for Mr. F.'s death and if the disparity was sufficiently
egregious - could support an argument that the agency's decision was arbitrary or
caprkious. 3 Ms. Mugeni already has set forth the Level II substantiation for one individual
and the absence of any substantiation for others. (See R. 22, 23). As far as the court can tell,
that is-not aisputedbythe agency and the court will takeihat inform-ation as true.The record
also ·details the actions and inactions o_f all of the involved individuals, including the persons
who Ms. Mugeni contends should have been sanctioned in lieuof or in addition to Ms.
Mugeni.
Accordingly, the'court will accept additional evidence limited to the following: that
Ms. Best and Messrs. Bourque and Robbins were not substantiated and that Ms. Yombe was
issued only a Level II substantiation - points that Ms. Mugeni is already making. However,
Ms. Mugeni is not simply seeking to limit her argument to what she contends is the
arbitrarine_~~ of M~Mug~?i'~ L~~~l I su!?_~tantJ~tion compared to the actions of others. She is
seeking to take evidence as to the basis for the DHHS decisions as to those other individuals.
That would violate the general rule that inquiry into the mental processes of the agency
decision makers is not permitted. See Carl L. Cutler Co. v. State Purchasing Agent, 472 A.2d
913,918 (Ms. 1984). To overcome that rule, a party challenging agency action must at least
make a prima facie showing of bad faith or other improper behavior. Ms. Mugeni has made
· no such showing in this case. Ms. Mugeni has not filed a detailed statement in the nature of
an offer of proof, and her suggestion that the taking of additional evidence might uncover
some bias is the kind of fishing expedition that is precluded under Cutler.

3 DHHS argues, inter alia, that the other individuals cited by Ms. Mugeni had different roles and

responsibilities which explains any difference in treatment. The court believes the relevance of
their roles and any differences between their roles and that of Ms. Mugeni goes to the merits of the
appeal and cannot be decided on this preliminary motion.

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The entry shall be:

Petitioner's motion to take additional evidence is denied except to the limited extent
set forth above. The court specifies the further course of proceedings as follows: petitioner
shall file her brief within 40 days of the date of this order, and respondent and intervenor
shall file their briefs 30 days after service of petitioner's brief. Petitioner shall have 14 days
after service of the last brief of any other party in which to file a reply brief. The clerk is
____ directed to incorporate this order in the docket by reference pursµ9-nt to Rule 79(a).

Dated: January .JS..., 2022
Thomas D. Warren
_ _ _ _ Justk~, Sup~rior Coµrt

Entered on the Docket:_!!!. h~ 1..-,

Petitioner-Ronald Schneider, Esq.
Respondent oH~~-Sh~nnon C~llins, AA:G
Intervenor Disab1hty Rights Mame-Staci
Converse, Esq. and Lauren Wille, Esq.

5