MaryGay Kennedy, Justice.
This matter is before the court on Petitioner Jennifer Peters' Rule 80C appeal of the Decision of Respondent Maine Department of Health and Human Services ("DHHS"), which found that Ms. Peters is no longer eligible for coverage under the MaineCare Home and Community Based Benefits Program for Adults with Disabilities ("HCB Program"). Pursuant to 5 M.R.S. § 11001 et seq. and Rule 80C, Ms. Peters is asking that this court vacate the decision made by DHHS. Respondent DHHS has opposed Ms. Peters' Appeal. After hearing on May 7, 2014, review of the record and the parties' filings, the court denies Ms. Peters' Appeal for the reasons set forth below.
I. Factual and Procedural Background
The record on appeal provides the following:
Ms. Peters is 38-years-old and receives MaineCare. Ms. Peters suffers from numerous ailments, including, but not limited to neurofibromatosis II, three brain tumors, and cervical and lumbar spinal tumors. She is wheel chair dependent as a result of lack of sensation and motor activity of the left leg. She also suffers from psoriasis, agoraphobia, post-traumatic stress disorder, bipolar disorder, fibromyalgia, legal blindness, poor balance, memory loss, hypersomnolence, depression, systemic Lupus Erythematosus, and obstructive sleep apnea. (App. Ex. 3.)
According to the Journal of the American Medical Association, "Neurofibromatosis (NF) is a genetic disorder causing skin abnormalities and tumors that form on nerve tissues." (App. Ex. 6)(Emphasis in the original). At the time of her assessment, Ms. Peters had recently undergone surgery to remove a tumor from underneath her fingernail. (HO Ex. 5.) The year before, she had a brain tumor removed. (Id.) She was also hospitalized earlier in the year for a reaction to medication. (Id.) Ms. Peters has inoperable rumors in her brain as well as in her thighs. (R. at 33:17-20.) At the hearing, Ms. Peters stated that her physical condition has deteriorated over the course of the last year. (R. at 33:13-16.) She conveyed that her physical condition is only expected to decline in the future. (R. at 33:9-16.)
RN Charlene McPhee, a representative from Goold Health Systems, assessed Ms. Peters for her eligibility for the HCB program. (HO Exs. 4, 5.) Ms. McPhee performs 18 assessments per week. (R. at 17.) On June 17, 2013, Ms. McPhee conducted the assessment with Ms. Peters and Ms. Peters' stepmother and personal support specialist ("PSS"), Deborah Girard, at Ms. Peters' apartment. (HO Ex. 5.) Ms. McPhee's assessment period covered from June 10, 2013 to June 16, 2013, and her findings are noted on the Medical Eligibility Determination ("MED") form dated June 17, 2013. (Dec. at 4; HO Ex. 5.) Ms. McPhee had no contact with Ms. Peters' medical providers. (R. at 25:17-26:4.)
Prior to June of 2013, Ms. Peters was eligible for and received services through the HCB Program, based on a prior DHHS assessment that found that Ms. Peters, a MaineCare recipient, requires extensive assistance with three out of five "Activities of Daily Living" ("ADL"). It was previously determined that she requires extensive assistance with transfers, locomotion and bed mobility. (App. Ex. 8.)
A reassessment of Ms. Peters HCB Program eligibility was conducted on June 17, 2013. At that time it was determined that Ms. Peters no longer requires extensive assistance with bed mobility. According to Ms. McPhee's notes, "She does need help putting her 'back leg' into bed at night. Consumer has no difficulty turning or situating herself in bed though she usually stays in one position by choice." (HO Ex. 5.) It was also determined that Ms. Peters does not require assistance with toileting. Ms. McPhee's assessment notes provide: "Consumer and her PSS state that she is totally independent in toileting. She occasionally has dribbling when she sneezes but does not use pull-ups or depends." (HO Ex. 5.) Based upon the June 17, 2013 reassessment, DHHS determined that Ms. Peters no longer met the minimum eligibility requirements for the HCB Program.
Ms. Peters receives home care from Ms. Girard. Up until the reassessment, Ms. Peters had received 40 hours a week of care. She now qualifies for 16.75 hours a week of care from a PSS through the MaineCare Private Duty Nursing/Personal Care Services program (PDN-Level III program). Ms. Peters will also receive help from a nurse for one hour per month.
Ms. Peters timely filed a request for an administrative hearing, which was held on September 30, 2013. Ms. Peters and Ms. Girard testified on Ms. Peters' behalf. Debra Turner, R.N.. an appeals specialist for Goold Health Systems, and Ms. McPhee testified on behalf of DHHS. On November 6, 2013, the Hearing Officer issued a Decision finding that DHHS was correct that Ms. Peters is no longer eligible for MaineCare coverage of her expenses under the Home and Community Based Benefits Program for Adults with Disabilities. The Hearing officer's Decision provides that Ms. Peters "is eligible for services under level III of the PDN Program." (Dec. at 3.)
Ms. Peters timely filed her Petition For Review of Agency Action.
II. Standard of Review
In its appellate capacity, the court reviews agency decisions for "abuse of discretion, error of law, or findings not supported by the evidence." Rangeley Crossroads Coal. v. Land Use Reg. Comm 'n, 2008 ME 115, ¶ 10, 955 A.2d 223.
The burden of proof is on a petitioner to prove that "no competent evidence supports the [agency's] decision and that the record compels a contrary conclusion." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995). "Inconsistent evidence will not render an agency decision unsupported." Id. "Judges may not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v. Bd. of Envtl. Prot., 452 A.2d 1202, 1209 (Me. 1982).
The court must give great deference to an agency's construction of a statute it is charged with administering. Rangeley Crossroads Coal., 2008 ME 115, ¶ 10, 955 A.2d 223. "A court will 'not vacate an agency's decision unless it: violates the Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or an error of law; or is unsupported by the evidence in the record.'" Kroeger v. Dep't of Environmental Prot., 2005 ME 50, ¶ 7, 870 A.2d 566 (quoted in Alexander, Maine Appellate Practice § 452 at 312 (4th ed. 2013)); see also 5 M.R.S.A. § 11007(4)(c).
Where there have been multiple levels of administrative decision-making, the most recent decision will be the one subject to Superior Court review, if the most recent decision-maker had de novo capacity and/or the authority to conduct additional factfinding. See Alexander, Maine Appellate Practice § 455(b) at 315; see also ...