Stephen Doane v. Department of Health and Human Services

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 193
Docket: Ken-16-342
Argued: April 12, 2017
Decided: September 12, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
Dissent: JABAR, J.

STEPHEN DOANE

v.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SAUFLEY, C.J.

[¶1] The Department of Health and Human Services appeals from a

summary judgment entered by the Superior Court (Kennebec County,

Murphy, J.) declaring that the District Court—not the Department—has

exclusive original jurisdiction over the decision to terminate physician Steven

Doane’s participation in, and reimbursement from, MaineCare and any other

medical assistance programs in Maine.1 The Department argues that the court

erred in concluding that a provider’s participation in MaineCare constitutes a

“license,” the revocation of which invokes District Court jurisdiction. See

4 M.R.S. § 152(9) (2016); 5 M.R.S. §§ 8002(5), 10051(1) (2016). We agree

1
Because the basis for the termination was grounded in state and federal Medicaid and
MaineCare regulations, and no other programs have been identified by the parties on appeal, we do
not discuss further any other medical assistance programs.
2

that jurisdiction did not lie in the District Court, and we vacate the court’s

judgment.

I. BACKGROUND

[¶2] The following undisputed facts are drawn from the record of the

proceedings in the Superior Court and the undisputed statements of material

facts presented on Doane’s motion for summary judgment. See Grant v. Foster

Wheeler, LLC, 2016 ME 85, ¶ 2, 140 A.3d 1242. Stephen Doane is a physician

licensed to practice in Maine by the Board of Licensure in Medicine. That

Board censured Doane in March 2015 for (1) being insufficiently aware of the

hazards associated with the opiate medications he was prescribing to a

patient who ultimately died of accidental oxycodone and cyclobenzaprine

intoxication, (2) failing to follow up on information from other doctors about

that patient, and (3) violating a Board rule regarding the use of controlled

substances for pain treatment. The Board found that Doane had not created a

written treatment plan, discussed with the patient the risks and benefits of

using controlled substances, implemented a written agreement outlining

patient responsibilities, or kept accurate and complete medical records. The

Board renewed his license, but it imposed terms of probation and required
 3

him to pay $12,000 to the Board for the costs of investigation and

enforcement.

[¶3] In a letter dated April 9, 2015, the Department of Health and

Human Services informed Doane that it had decided to terminate his

participation in, or reimbursement from, the MaineCare program. The

Department stated that it took its action pursuant to the MaineCare Benefits

Manual, 14 C.M.R. 10 144 101-I-9, -26 to -28, §§ 1.03-6, 1.19-1 to -3 (2014),2

and the authority granted by the federal government through 42 C.F.R.

part 1002 (2016). Specifically, the Department indicated that the sanction

was being imposed because Doane had violated the “regulations or code of

ethics governing the conduct of occupations or professions or regulated

industries,” had failed to “meet standards required for State or Federal law for

participation (e.g. licensure or certification requirements),” and had received

a “[f]ormal reprimand or censure [from] an association of the provider’s peers

for unethical practices.” 14 C.M.R. 10 144 101-I-26 to -27, § 1.19-1(M), (O),

(R).

[¶4] The letter informed Doane that he could request informal review

of the determination within sixty days after receiving the letter and that if he

2 Rule 1.19 has since been recodified as Rule 1.20. See Dep’t of Health & Human Servs. Adopted

Rule No. 2017-105 (effective July 5, 2017).
4

disagreed with the result of that review, he could request an administrative

hearing within sixty days after receiving the informal review decision. See

14 C.M.R. 10 144 101-I-33 to -34, § 1.21 (2013); see also 5 M.R.S.

§§ 8001-11008 (2016). Doane requested informal review. The Department,

after informal review, affirmed the initial decision terminating Doane’s

participation in MaineCare and informed Doane, by letter dated September 11,

2015, of his right to request an administrative hearing within sixty days.

[¶5] On September 23, 2015, Doane filed a complaint in the Superior

Court seeking a declaratory judgment that the Department’s decision

terminating his participation in, and reimbursement by, the MaineCare

program constituted a license revocation—a decision over which the District

Court has exclusive original jurisdiction. See 4 M.R.S. § 152(9); 5 M.R.S.

§§ 8002(5), 10051(1); M.R. Civ. P. 80G. He sought an order enjoining the

progress of the administrative proceeding to terminate his participation in the

programs. Doane also filed a request for an administrative hearing with the

Department on November 5, 2015, but he later filed a motion in the Superior

Court declaratory judgment proceeding seeking a preliminary injunction

enjoining the Department from utilizing the administrative proceeding to

revoke that alleged license.
 5

[¶6] The Department moved to dismiss Doane’s declaratory judgment

complaint on the ground that no license had been revoked but rather the

Department had determined not to contract with Doane. It referred to and

attached Doane’s employer’s provider agreement with the Department that

was in effect at the time of the events that led to Doane’s discipline by the

Board of Licensure in Medicine. The Department also attached a copy of the

decision of the Board of Licensure in Medicine allowing Doane to continue

practicing medicine in Maine.

[¶7] Doane opposed the motion to dismiss and moved for summary

judgment, submitting a statement of material facts with supporting evidence.

The Department filed a responsive statement of material facts admitting the

pertinent facts and additionally referring to the informal review decision.

[¶8] The court entered a judgment on July 1, 2016, in which it denied

the Department’s motion to dismiss and granted Doane’s motion for summary

judgment, essentially providing the declaratory relief sought by Doane. The

court concluded that the ability to provide and be reimbursed for MaineCare

patient treatment constituted a form of permission that fell within the

statutory definition of a “license” provided in 4 M.R.S. § 152(9) and 5 M.R.S.

§ 8002(5), and therefore that the District Court had exclusive jurisdiction to
6

adjudicate the Department’s proposed termination of Doane’s participation in

the MaineCare program.

[¶9] The Department timely appealed from the judgment. See 14 M.R.S.

§§ 1851, 5959 (2016); M.R. App. P. 2. Upon inquiry from the court, Doane

filed a letter indicating that he did not intend to pursue the motion for

preliminary injunction at that time.

II. DISCUSSION

[¶10] At the outset, we agree with the Superior Court that it had the

authority to rule on the legal dispute raised here. “When a party seeks relief

that is beyond the jurisdiction of the administrative agency . . . and when it

would be futile for the plaintiffs to complete the administrative appeal

process[,] the party need not exhaust its administrative remedies before

seeking judicial relief.” Houlton Band of Maliseet Indians v. Boyce, 1997 ME 4,

¶ 11, 688 A.2d 908 (alterations in original) (quotation marks omitted).

Moreover, a jurisdictional issue such as that raised here “may be raised at any

time in a proceeding.” Ford Motor Co. v. Darling’s (Darling’s I), 2014 ME 7,

¶ 41, 86 A.3d 35. Accordingly, we review the court’s summary judgment.
 7

A. Summary Judgment and the Standard of Review

[¶11] Summary judgment “shall be rendered forthwith” if the

supported statements of material facts “show that there is no genuine issue as

to any material fact set forth in those statements and that any party is entitled

to a judgment as a matter of law.” M.R. Civ. P. 56(c). The relevant facts are not

in dispute, and we review the summary judgment de novo for errors of law.

Harlor v. Amica Mut. Ins. Co., 2016 ME 161, ¶ 7, 150 A.3d 793.

[¶12] We also review de novo whether a trial court has subject matter

jurisdiction. Midland Funding LLC v. Walton, 2017 ME 24, ¶ 12, 155 A.3d 864.

Generally, court jurisdiction is “strictly a function of statute.” Norris Family

Assocs., LLC v. Town of Phippsburg, 2005 ME 102, ¶ 21, 879 A.2d 1007.

Statutory interpretation is also reviewed de novo. Carignan v. Dumas, 2017

ME 15, ¶ 14, 154 A.3d 629.

[¶13] In interpreting statutes, our primary objective is “to discern and

give effect to the Legislature’s intent.” Ford Motor Co. v. Darling’s (Darling’s II),

2016 ME 171, ¶ 24, 151 A.3d 507 (quotation marks omitted). “To determine

that intent, we first look to the statute’s plain meaning and the entire statutory

scheme of which the provision at issue forms a part.” Id. (quotation marks

omitted). We determine the plain meaning of a statute “by taking into account
8

the subject matter and purposes of the statute, and the consequences of a

particular interpretation.” Id. (quotation marks omitted). We will reject

statutory interpretations “that are inimical to the public interest or that

produce absurd or illogical results.” Id. (quotation marks omitted). Only if the

meaning of a statute is ambiguous after applying these principles will we

consider extrinsic information such as legislative history. Id. If a regulation

conflicts with an existing statute, the statute controls. See Larson v.

New England Tel. & Tel. Co., 141 Me. 326, 334, 44 A.2d 1 (1945).

B. Jurisdiction Over Licensing Decisions

[¶14] The District Court has exclusive jurisdiction, upon complaint of

an agency or the Attorney General, to revoke or suspend certain licenses. See

4 M.R.S. § 152(9); 5 M.R.S. §§ 8002(5), 10051(1). In the title of the Maine

Revised Statutes establishing the courts and their jurisdiction, the Legislature

has conferred on the District Court jurisdiction over the following:

Licensing jurisdiction. Except as provided in Title 5, section
10004; Title 8, section 279-B; Title 10, section 8003; Title 20-A,
sections 10712 and 10713; Title 29-A; Title 32, chapters 2-B, 114
and 135; and Title 35-A, section 3132, exclusive jurisdiction upon
complaint of an agency or, if the licensing agency fails or refuses to
act within a reasonable time, upon complaint of the Attorney
General to revoke or suspend licenses issued by the agency. The
District Court has original jurisdiction upon complaint of a
licensing agency to determine whether renewal or reissuance of a
license of that agency may be refused. The District Court has
 9

original concurrent jurisdiction to grant equitable relief in
proceedings initiated by an agency or the Department of the
Attorney General alleging any violation of a license or licensing
laws or rules.

Notwithstanding any other provisions of law, a licensing agency
may not reinstate or otherwise affect a license suspended,
revoked or modified by the District Court pursuant to a complaint
filed by the Attorney General without the approval of the Attorney
General.

4 M.R.S. § 152(9) (emphasis added); see also M.R. Civ. P. 80G. The District

Court’s jurisdiction with respect to license revocation or suspension is also set

forth in the Maine Administrative Procedure Act:

Jurisdiction. Except as provided in section 10004; Title 8, section
279-B; Title 10, section 8003; Title 20-A, sections 10712 and
10713; Title 29-A; and Title 32, chapters 2-B, 114 and 135, the
District Court has exclusive jurisdiction upon complaint of any
agency or, if the licensing agency fails or refuses to act within a
reasonable time, upon complaint of the Attorney General to revoke
or suspend licenses issued by the agency and has original
jurisdiction upon complaint of an agency to determine whether
renewal or reissuance of a license of that agency may be refused.

5 M.R.S. § 10051(1) (emphasis added).3

[¶15] Separately, a physician’s authority to practice medicine in Maine

is provided through the issuance of a license from the Board of Licensure in

Medicine. See 32 M.R.S. § 3274 (2016). Pursuant to 4 M.R.S. § 152(9) and

3
The Board of Licensure in Medicine—established by 5 M.R.S. § 12004-A(24) (2016) and
32 M.R.S. § 3263 (2016) (codified within chapter 48 of title 32)—is not excepted from District Court
jurisdiction for license revocation or suspension.
10

5 M.R.S. § 10051(1), license revocation proceedings by the Board of Licensure

in Medicine are not subject to the District Court’s exclusive jurisdiction over

license revocations and suspensions because the proceedings fall within

“[t]itle 10, section 8003.” See 10 M.R.S. §§ 8001-A(4), 8003(5) (2016); see also

32 M.R.S. §§ 3269(4), 3282-A (2016).

[¶16] It is unclear whether the Board now has exclusive jurisdiction

over the revocation or suspension of a medical license or whether that

jurisdiction is concurrent with the District Court. As set forth in 10 M.R.S.

§ 8003(5), the “jurisdiction to suspend and revoke occupational and

professional licenses conferred by this subsection is concurrent with that of

the District Court.” We recently noted, however, without discussing this

provision of title 10, that the Legislature’s amendment of the Board of

Licensure in Medicine’s authorizing statute in title 32 to omit the option of

filing a complaint with the District Court4 left the Board with “only one path”

to revoke a license. Zablotny v. State Bd. of Nursing, 2014 ME 46, ¶ 14 n.2,

89 A.3d 143. Because the dispute here focuses not on Doane’s medical license

but on his capacity to participate in and receive compensation from Maine’s

4 See P.L. 2013, ch. 355, §§ 8-12 (effective Oct. 9, 2013) (codified at 32 M.R.S. § 3282-A (2016)).
 11

Medicaid program, MaineCare, we need not resolve any jurisdictional

question related to the revocation of medical licenses.

[¶17] The issue now before us is whether, as a matter of law, the

capacity to participate in MaineCare as a provider who may receive

compensation is also a “license,” the revocation of which the Legislature

intended to place within the jurisdiction of the District Court.

[¶18] The Administrative Procedure Act defines a “license” as follows:

“‘License’ includes the whole or any part of any agency permit, certificate,

approval, registration, charter or similar form of permission required by law

which represents an exercise of the state’s regulatory or police powers.”

5 M.R.S. § 8002(5). This definition is the source of the parties’ dispute over

whether the District Court or the Department has original jurisdiction over

the decision whether a provider may continue to participate in and be

reimbursed by Maine’s Medicaid program—MaineCare.

[¶19] An understanding of the federal Medicaid program is important

to resolve the question presented here. Medicaid is a primarily federally

funded program. See 42 U.S.C.S. § 1396-1 (LEXIS through Pub. L. No. 115-45).

The federal government appropriates money to Maine to pay for medical,

rehabilitation, and other assistance “on behalf of families with dependent
12

children and of aged, blind, or disabled individuals, whose income resources

are insufficient to meet the costs of necessary medical services.” Id. The

applicable federal regulations require gubernatorial and federal review and

approval of the state plan. 42 C.F.R. §§ 430.10-430.16 (2016).

[¶20] Maine’s Department of Health and Human Services administers

the Medicaid program in Maine. See 22 M.R.S. § 3173 (2016); see also

24-A M.R.S. § 6911 (2016). To perform its functions, the Department is

authorized and required to issue rules and regulations to administer Maine’s

Medicaid program, known as MaineCare. See 22 M.R.S. § 3173.

[¶21] The Department has adopted Medicaid rules in the form of the

MaineCare Benefits Manual. See generally 14 C.M.R. 10 144 101, ch. 101

(2016). Neither federal Medicaid nor state MaineCare regulations call for the

issuance of a “license” to a physician to receive Medicaid funds for the

provision of medical services. The Manual does, however, require a provider

seeking to provide services to MaineCare members to complete an enrollment

form and enter into a Medicaid provider agreement. 14 C.M.R. 10 144 101-I-2

to -4, §§ 1.02-4(H), 1.03-1(A) (2014). The agreement is conditioned on

compliance with the requirements for provider participation outlined in the

Manual. See generally 14 C.M.R. 10 144 101, ch. 101.
 13

[¶22] Some providers, pursuant to the federal Medicaid regulations,

must or may be excluded from the Medicaid program by the federal Office of

Inspector General. See 42 C.F.R. §§ 1001.101, 1001.201-1001.951 (2016).

The Inspector General’s office must exclude from participating in the Medicaid

program providers who have been convicted of certain types of crimes, see id.

§ 1001.101, and may exclude from participation providers who have

committed other misconduct, including providers who have had their state

professional licenses revoked or suspended, see id. §§ 1001.201-1001.951.

The federal regulations are not to be “construed to limit a State’s own

authority to exclude an individual or entity from Medicaid for any reason or

period authorized by State law.” 42 C.F.R. § 1002.2(b) (2016) (redesignated

as 42 C.F.R. § 1002.3(b) by 82 Fed. Reg. 4100 § 36 (Jan. 12, 2017)).

[¶23] In exercising Maine’s authority to exclude individuals or entities

from participating in the MaineCare program, the Department may impose

sanctions on a provider for “[v]iolation of any . . . regulations or code of ethics

governing the conduct of occupations or professions or regulated industries;

. . . [f]ailure to meet standards required by State or Federal law for

participation (e.g. licensure or certification requirements); [or] . . . [f]ormal

reprimand or censure by an association of the provider’s peers for unethical
14

practices.” 14 C.M.R. 10 144 101-I-26 to -27, § 1.19-1(M), (O), (R).5 If a

provider’s participation in the program is suspended or terminated as a

sanction, the provider is precluded “from submitting claims for payment,

either personally or through claims submitted by any clinic, group,

corporation or other association.” Id. § 1.19-3(B)(2).

[¶24] The State’s regulations explicitly vest in the Commissioner of the

Department of Health and Human Services the responsibility to decide

whether to impose sanctions within the MaineCare program and thus whether

to continue a physician’s or a facility’s participation in the program as set

forth in the provider agreement. See 14 C.M.R. 10 144 101-I-28, § 1.19-3(A).

The Commissioner “may delegate sanction responsibilities to the Division of

Audit, and the Director of MaineCare Services.” Id.

[¶25] When the Department decides to limit, terminate, or otherwise

sanction a physician who is participating as a MaineCare provider pursuant to

a provider agreement with the State of Maine, the Manual authorizes a

provider to pursue informal review by writing to the Director of MaineCare

Services within sixty days, after which, if dissatisfied, the provider may

5
The Manual also authorizes the Department to “terminate a provider’s participation . . .
without cause,” though neither party contends that this is what happened here. See 14 C.M.R.
10 144 101-I-8, § 1.03-4(A) (2014).
 15

request an administrative hearing, with the Commissioner having final

decision-making authority, or may elect to participate in binding arbitration.

14 C.M.R. 10 144 101-I-33 to -34, § 1.21-1(A), (B) (2013). If the provider is

dissatisfied with the final decision after an administrative hearing, “an appeal

may be taken to the Superior Court pursuant to the Administrative Procedure

Act.” 14 C.M.R. 10 144 101-I-33, § 1.21-1(A); see 5 M.R.S. § 11002 (2016); M.R.

Civ. P. 80C.

[¶26] The question before us is whether the Manual’s administrative

review process for the imposition of sanctions, through which a provider may

appeal the Department’s administrative decision to the Superior Court,

applies to the termination of a physician from the MaineCare program, or

whether, by statute, the Legislature has provided that termination is the

revocation of a “license,” bringing the decision within the exclusive, or even

concurrent, jurisdiction of the District Court. See 10 M.R.S.

§ 8003(5)(A-1)(2-A). To answer that question, we look to the meaning of the

statutes in the context of the entire statutory scheme. See 4 M.R.S. § 152(9);

5 M.R.S. §§ 8002(5), 10051(1); Darling’s II, 2016 ME 171, ¶ 24, 151 A.3d 507.

[¶27] Sections 152(9) and 10051(1) do not specifically mention the

Medicaid or MaineCare program, and they do not list or describe the license
16

revocations and suspensions that fall within the District Court’s jurisdiction.

The statutes do, however, explicitly list, by statutory citation, license

determinations that are excepted from that jurisdiction. See 4 M.R.S. § 152(9);

5 M.R.S. § 10051(1). Examining the nature of the license revocations or

suspensions excepted from the District Court’s jurisdiction gives a strong

indication of what, if not excepted, constitutes the revocation or suspension of

a professional or occupational “license.”

[¶28] The excepted occupational licensing decisions are as follows:

• Suspension of a harness racing license, 8 M.R.S. § 279-B (2016);

• Suspension or revocation of a “license, certification, registration, permit,
approval or other similar document evidencing admission to or granting
authority to engage in a profession, occupation, business or industry,”
10 M.R.S. § 8003(3), (5)(A-1)(2) (2016);6

• Suspension or revocation of an emergency medical services person’s
“license,” 32 M.R.S. § 90-A (2016); and

• Suspension or revocation of a license pursuant to the Maine Uniform
Securities Act, title 32, chapter 135.

Each occupational license revocation or suspension listed operates as a

complete revocation or suspension of the authorization to engage in a

6 Registrations, permits, approvals, or other documents “evidencing the grant of authority to

engage in the business of banking” are governed by title 9-B, which the Legislature acknowledged
as separate from the regulation of professions, occupations, businesses, or industries in 10 M.R.S.
§ 8003(3) (2016).
 17

profession or occupation. None of these suspensions or revocations is

analogous to a termination of participation in a federally funded program

through a provider agreement. Moreover, in the face of explicit regulatory

authority providing for the Department to act as the decision-maker, subject

to appellate review in the Superior Court, the Legislature has not enacted any

legislation to explicitly remove the Department’s authority and require initial

decision-making in the District Court.

[¶29] From the language of the statutes, viewed in context of the entire

statutory scheme, see Darling’s II, 2016 ME 171, ¶ 24, 151 A.3d 507, including

the recent changes in statutes regarding the adjudicatory authority of the

Board of Licensure in Medicine,7 and considering the functional distinctions

between a license revocation and a termination of participation in a program

through a provider agreement, we conclude that the entity that provides a

physician with the “approval . . . required by law [that] represents an exercise

of the state’s regulatory or police powers,” 5 M.R.S. § 8002(5), to practice

medicine is the Board of Licensure in Medicine. See 5 M.R.S. § 12004-A(24)

(2016); 32 M.R.S. § 3270 (2016). The Board—not the Department of Health

and Human Services—is responsible for initiating any effort to revoke or

7 See P.L. 2013, ch. 355, §§ 8-12.
18

suspend a physician’s license for violating professional standards. See 5 M.R.S.

§§ 10001-10005; 32 M.R.S. §§ 3269(4), 3282-A; see also 4 M.R.S. § 152(9);

5 M.R.S. § 10051(1); 10 M.R.S. §§ 8001-A(4), 8003(5). It is through the

professional licensing of physicians—not through the State’s implementation

of MaineCare as part of the federal Medicaid program—that the State

exercises its police power on behalf of all Maine citizens to “‘preserv[e] . . . the

health, safety and comfort of [its] citizens’” from unqualified, incompetent, or

unethical physicians. State v. Pelletier, 2015 ME 129, ¶ 7, 125 A.3d 354

(quoting Hendrick v. Maryland, 235 U.S. 610, 622 (1915)).

[¶30] To the extent that the Department’s decision regarding Doane

affects the health or safety of Maine’s citizens, it does so only with respect to

those Maine citizens who receive services through the Department’s

MaineCare program. The Department’s other purpose—to make the best use

of State funds received from the federal government—may redound to the

fiscal benefit of all citizens, but it is not the exercise of the police power to

license and regulate the medical profession.

[¶31] To avoid an interpretation of the statutes that is “inimical to the

public interest or that produce[s] absurd or illogical results,” Darling’s II,

2016 ME 171, ¶ 24, 151 A.3d 507 (quotation marks omitted), we construe
 19

sections 152(9) and 10051(1) not to confer on the District Court jurisdiction

over the imposition of a sanction on a MaineCare provider by the Department

of Health and Human Services. Therefore, contrary to the determination of

the Superior Court, the Department’s decision to terminate Doane’s

participation in the MaineCare program does not fall within the licensing

decisions over which the Legislature gave the District Court original and

exclusive jurisdiction. See 4 M.R.S. § 152(9); 5 M.R.S. § 10051(1).8

[¶32] We vacate the judgment entered in favor of Doane and remand

the matter for the Superior Court to enter a declaratory judgment that

jurisdiction over the termination of Doane’s participation as a provider in the

MaineCare program is as set out in the MaineCare Benefits Manual.

The entry is:

Judgment vacated. Remanded for the entry of
summary judgment for the Department of
Health and Human Services.

8 From this record, we cannot determine whether additional process is available to Doane, who

requested an administrative hearing in November 2015 but appears to have declined to prosecute
his request to enjoin the Department from taking further action on his administrative challenge.
See 14 C.M.R. 10 144 101-I-33, § 1.21-1(A) (2013).
20

JABAR, J., dissenting.

[¶33] Because I disagree with the Court and would hold that the

Department of Health and Human Services’ decision to terminate Doane’s

participation in, and reimbursement from, Department-operated medical

assistance programs constitutes revocation of a “license” within the meaning

of the Administrative Procedure Act, I respectfully dissent. A plain reading of

the Administrative Procedure Act, 5 M.R.S. § 10051(1) (2016), and 4 M.R.S.

§ 152(9) (2016) provides that, except for certain statutory actions, including

action taken by the Board of Licensure in Medicine pursuant to 10 M.R.S.

§ 8003 (2016), the District Court has exclusive jurisdiction upon the

complaint of an agency to revoke a license issued by the agency.

[¶34] In civil matters, the District Court has, with limited exceptions by

statutory reference, including the Licensure Board, “exclusive jurisdiction

upon complaint of an agency . . . to revoke or suspend licenses issued by the

agency.” 4 M.R.S. § 152(9); see M.R. Civ. P. 80G(a). Similarly, the

Administrative Procedure Act provides for jurisdiction in the District Court

“upon complaint of any agency” and “upon complaint of an agency to

determine whether renewal or reissuance of a license of that agency may be

refused.” 5 M.R.S. § 10051(1). The Administrative Procedure Act defines
 21

“license” expansively to include “the whole or any part of any agency permit,

certificate, approval, registration, charter or similar form of permission

required by law which represents an exercise of the state’s regulatory or

police powers.” 5 M.R.S. § 8002(5) (2016). Doane’s right to participate as a

provider in the MaineCare program is a “form of permission” by the

Department and meets the Administrative Procedure Act’s definition of

“license.”

[¶35] Applying the plain meaning of 5 M.R.S. § 8002(5), the decision to

authorize MaineCare provider participation and payment is an “approval

. . . required by law which represents an exercise of the state’s regulatory or

police powers.” Despite the Department’s contention that it was not acting in

its regulatory or policing authority in reaching its decision to terminate

Doane’s MaineCare provider participation and payment, its decision was

made to secure the best possible care for MaineCare patients and arose from

the use of its power to preserve “the health, safety and comfort of [Maine]

citizens.” State v. Pelletier, 2015 ME 129, ¶ 7, 125 A.3d 354 (quotation marks

omitted); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (“The

traditional police power of the States is defined as the authority to provide for

the public health, safety, and morals . . . . ”).
22

[¶36] The Department’s action was a quintessential state regulatory

action, as evidenced by the language of the Department’s notice and its efforts

to have the matter proceed through the administrative appeal process

established by the MaineCare Benefits Manual. The notice stated that the

Department was “terminating [Doane’s] participation in, and reimbursement

from, all medical assistance programs administered by the Department,”

preventing Doane or any MaineCare “provider for whom [he is] an employee,

partner, or owner” from receiving MaineCare reimbursement “for services

rendered by [Doane,] including administrative and management services . . . .”

The notice goes on to state that “[t]he general practical effect of this

restriction is to prohibit employment in any capacity by a provider that

receives reimbursement, indirectly or directly, from MaineCare or other

Medicaid programs.” This sanction significantly affects Doane’s practice of

medicine in the State of Maine.

[¶37] Removing a doctor from MaineCare reimbursement is not like the

other contractual scenarios to which the Department points by which the

State may provide for public health and safety, such as contracts for bridge

construction, snowplowing, or mobile crisis intervention services. Unlike

those contractual services, a doctor’s primary role is to influence the health
 23

and safety of patients through direct, one-on-one appointments at regular

intervals throughout the patients’ lives. Though the Department administers

MaineCare in part through provider agreements, without which a provider

may not receive reimbursement from MaineCare funds, 14 C.M.R. 10 144

101-I-2 to -4 §§ 1.02-4(H), 1.03-1(A) to (C) (2016), providers may be

excluded, as here, from the program for violations of regulations or ethics

codes. See 14 C.M.R. 10 144 101-I-26 to -28 § 1.19-1 to -3 (2014).

[¶38] Sanctions for violations are not contractual in nature. Nor are

they mere formalities agreed upon by the providers to the benefit of the

Department: they are in place to protect the patients whom the doctor treats.

Doane was sanctioned for violation of laws, regulations, or codes of ethics; for

failure to meet standards for participation; and for formal reprimand or

censure by peers due to unethical practice. 14 C.M.R. 10 144-101-I-26 to -27,

§ 1.19-1(M), (O), (R). These sanctions are the result of the Licensure Board’s

March 2015 censure of Doane following a patient’s death from accidental

intoxication from opiate medications Doane had prescribed. His censure and

the resulting sanctions are not the result of fraudulent billing, self-referrals, or

some other financial or administrative concern. See 14 C.M.R.

10 144-101-I-26 to -27 § 1.19-1(F), (J), (T). The Licensure Board’s censure
24

and the Department’s sanctions are plainly an exercise of the state’s police

power to provide for the health and safety of Maine citizens. See Pelletier,

2015 ME 129, ¶ 7, 125 A.3d 354. The Court’s assertion that the Department’s

decision to remove Doane from MaineCare affects only the health or safety of

those citizens who receive MaineCare services, Court’s Opinion ¶ 30, does not

prove that the Department’s act was not an exercise of the police power.

Whether a state is exercising its police power is not defined by the number of

people affected; instead, it is determined by the nature of the regulatory

action.

[¶39] Nor does the Department’s purpose to make best use of federal

funds provided to the State, Court’s Opinion ¶ 30, prove that the Department’s

action here was not an exercise of police power. The Department’s decision

was not purely fiscal: because the Department imposed sanctions due to, inter

alia, ethical violations, its decision was on its face a decision concerning the

welfare of future MaineCare patients to whom Doane otherwise might have

provided medical services. See 10 C.M.R. 10 144 101-I-27 § 1.19-1(M).

Though one purpose of the Department may be to create “fiscal benefit,”

Court’s Opinion ¶ 30, for Maine citizens, the fiscal benefit is only a secondary

purpose. The primary purpose of the Department’s role in MaineCare is to
 25

administer a program that provides families and individuals with insufficient

income resources access to necessary medical services. See 42 U.S.C.S.

§ 1396—1 (LEXIS through Pub. L. No. 115-51); 22 M.R.S. § 3173 (2016);

24-A M.R.S. § 6911 (2016); see also 22 M.R.S. § 42(1) (2016) (stating that the

Department “shall issue rules and regulations considered necessary and

proper for the protection of life, health and welfare, and the successful

operation of the health and welfare laws”). The Department undertook to

sanction Doane not because it would be fiscally imprudent to reimburse

Doane for future services provided to MaineCare patients, but because he was

censured by the Board for concerns with medical care provided to a patient.

[¶40] This removal of Doane from MaineCare reimbursement therefore

falls into the broad definition of “license” as that term is used in the

Administrative Procedure Act. See 5 M.R.S. § 8002(5). Although based on the

same conduct that resulted in a censure by the Licensure Board, this action

taken by the Department is separate and distinct from the action taken by the

Licensure Board pursuant to 10 M.R.S. § 8003.

[¶41] I disagree with the Court that the exceptions from the District

Court’s licensing jurisdiction found in 4 M.R.S. § 152(9) provide any indication

of the types of suspensions or revocations that are not excepted from the
26

District Court’s licensing jurisdiction, Court’s Opinion ¶ 27. Title 4 M.R.S.

§ 152(9) excepts from the District Court’s jurisdiction “Title 10, section 8003,”

which excepts suspension or revocation of a “license, certification,

registration, permit, approval or other similar document evidencing

admission to or granting authority to engage in a profession, occupation,

business[,] or industry.” 10 M.R.S. § 8003(3); see also id. § 8003(5)(A-1)(2),

(2-A). Also excepted are harness racing licenses, under title 8 section 279-B;

licenses pursuant to the Maine Uniform Securities Act, title 32, chapter 135;

the Real Estate Brokerage License Act, title 32, chapter 114; and the Maine

Emergency Medical Services Act of 1982, title 32, chapter 2-B. While these

statutes permit, as the Court notes, Court’s Opinion ¶ 28, complete

revocations or suspensions of the authorization to engage in a profession or

occupation, these are the exclusions from the District Court’s jurisdiction. It is

legally significant that the suspension or revocation of a license by

termination from MaineCare reimbursement and participation brought by the

Department is not excepted from the District Court’s jurisdiction.

[¶42] The Court considers “the functional distinctions between a true

license revocation and a termination of participation in a program through a

provider agreement” and concludes that the Board of Licensure of Medicine is
 27

responsible for policing physicians. Court’s Opinion ¶ 29. While this may be

true, the expansive definition of “license” under the Administrative Procedure

Act, coupled with the language of the statute conferring jurisdiction upon the

District Court in section 152(9), affords Doane the right to a hearing in the

District Court rather than a hearing before the Department. This reading

comports with the purpose of the legislation—a neutral decision-maker

should decide the contested matter rather than the agency seeking to revoke

the physician’s ability to practice. If the Court is correct, that the Board of

Licensure in Medicine—and not the Department of Health and Human

Services—is responsible for initiating any effort to revoke or suspend a

physician’s license for violating professional standards, Court’s Opinion ¶ 29,

then the Licensure Board should be making the decision regarding Doane’s

termination of participation in the MaineCare program. The Court discusses

the issue of concurrent jurisdiction in section 8003. This discussion is not

relevant to a discussion of the scope of section 152(9) because proceedings

pursuant to section 8003 are excepted out of the legislation. The Court’s

approach affords a physician less protection before a state agency, than the

physician would receive before the Licensure Board, which presumably has

more expertise and experience dealing with alleged misconduct of physicians.
28

If the Legislature wants to give any agency, other than the Board of Licensure

in Medicine, the authority to affect a physician’s license without affording the

physician a hearing before the District Court, or if the Legislature wants to

give the Licensure Board exclusive jurisdiction over “any matter” affecting a

physician’s practice, then it will need to amend the Administrative Procedure

Act and section 152(9). This revocation of the right to participate in the

MaineCare program affects Doane’s “license,” therefore the Department of

Health and Human Services must proceed in the District Court pursuant to

section 152(9).

[¶43] For the reasons above, I would affirm the Superior Court’s

granting of Doane’s motion for summary judgment.

Janet T. Mills, Attorney General, Thomas C. Bradley, Asst. Atty. Gen., and
Christopher C. Taub, Asst. Atty. Gen. (orally), Office of the Attorney General,
Augusta, for appellant Department of Health and Human Services

Christopher C. Taintor, Esq. (orally), Norman, Hanson & DeTroy, LLC,
Portland, for appellee Stephen Doane

Kennebec County Superior Court docket number CV-2015-168
FOR CLERK REFERENCE ONLY