STATE OF MAINE, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff
WILLIAM SILBER, M.D., Defendant
Attorney for: DEPARTMENT OF HEALTH AND HUMAN SERVICES LINDA
CONTI - RETAINED OFFICE OF THE ATTORNEY GENERAL.
Attorney for: WILLIAM SILBER MD, CHRISTOPHER TAINTOR, NORMAN
HANSON & DETROY LLC
Attorney for: WILLIAM SILBER MD, MICHAEL DEVINE - RETAINED,
NORMAN HANSON & DETROY LLC.
DECISION AND JUDGMENT
William R. Stokes, Justice.
AND PROCEDURAL BACKGROUND
the court for decision are the respective motions for summary
judgment filed by the Department of Health and Human Services
("DHHS" or "Department") and Dr. William
Silber, M.D. in this dispute involving the collection of a
$10, 000 fine assessed against Northern Maine Ambulatory
Endoscopy Center ("NMAEC"), a dissolved corporation
that was solely owned by Dr. Silber. The parties agree that
there are no genuine issues of material fact. They differ,
however, on the question of which party is entitled to
judgment as a matter of law.
commenced this action against Dr. Silber by the filing of a
one-count complaint on November 28, 2017 alleging breach of
contract as a result of Dr. Silber's failure to pay $10,
000 owed to the Department by NMAEC. Dr. Silber filed a
timely answer on December 8, 2017. On May 4, 2018, DHHS filed
its Motion for Summary Judgment supported by the affidavits
of Sarah Taylor and Beth Ketch. Dr. Silber objected to the
Department's summary judgment request and moved for
summary judgment in his favor on July 27, 2018. His motion
was supported by the affidavit of Attorney Christopher
Taintor, Esq. Both parties have filed reply memoranda, with
the last one being received by the court on August 30, 2018.
The parties have waived oral argument on the motions.
undisputed material facts are taken from the summary judgment
record and are summarized below.
December 9, 2009, Dr. Silber signed a
"MaineCare/Medicaid Provider Agreement" on behalf
of NMAEC as the named "Provider." Dr. Silber signed
the Provider Agreement as "CEO." On December 7,
2009, he also signed a "Disclosure of Ownership and
Control Interest Statement," listing himself as the sole
owner of NMAEC. Beth Ketch, an official of DHHS, signed the
Provider Agreement on February 5, 2010 on behalf of the
D (3) of the Provider Agreement is entitled: "Liability
of Provider for Debts Owed to the Department." In
accordance with Section D(3)(b) "[t]he Department may
collect any debts, including overpayments, through offset or
recoupment against amounts owed by the Department to the
Provider, or any other method of collecting debts, consistent
with relevant statutory and regulatory provisions, including
22 M.R.S.A. §1714-A."
particular significance in this case is the language of
Section D(3)(c) which states:
The liability for debts owed to the Department by the
Provider is enforceable against the Provider, including any
person who has an ownership or control interest in the
Provider, and against any officer, director or member of the
Provider who, in that capacity, is responsible for any
control or any management of the funds or finances of the
was a "healthcare facility" within the meaning of
the Rules Governing the Reporting of Sentinel Events" as
promulgated by the Division of Licensing and Regulatory
Services of DHHS. A 'sentinel event" includes
"[a]n unanticipated death ... unrelated to the natural
course of the patient's illness or underlying
condition" A healthcare facility, such as NMAEC, is
required to notify the "Sentinel Event Team" (SET)
within DHHS of a sentinel event "by the next business
day after the event occurred or by the next business day
after the facility discovers that the event occurred" A
healthcare facility that fails to report a sentinel event as
required by the rules is subject to a financial penalty of
not more than $10, 000, payable to the State of Maine.
letter dated September 11, 2013, Dr. Silber was notified by
the Director of the Division of Licensing and Regulatory
Services that a financial penalty of $10, 000 was being
assessed against NMAEC because it failed to report a sentinel
event involving the death of a patient. Dr. Silber sought an
administrative hearing to contest the imposition of the fine.
That hearing was rescheduled several times at Dr.
Silber's request. Ultimately, it was scheduled for
September 15, 2014. A few days before the hearing, Attorney
Taintor entered his appearance for Dr. Silber. His request to
postpone the hearing was denied.
hearing was held as scheduled. In a "Recommended
Decision" dated November 6, 2014, the hearing officer
recommended that the Commissioner of DHHS find that NMAEC had
failed to timely report a sentinel event that occurred on
July 10, 2013. With respect to the financial penalty, the
hearing officer did not make any recommendation because
"[t]here was no evidence presented as to what factors
were considered in determining the amount."
"Final Decision" dated December 23, 2013, the
Commissioner accepted the recommendation that NMAEC failed to
report a sentinel event, but did not accept the
recommendation regarding the $10, 000 fine. Rather, the
Commissioner found that the $10, 000 civil penalty was
appropriate and was not '"grossly
disproportional' to the provider's undisputed
complete failure to report an undisputable sentinel
receiving the "Final Decision," Attorney Taintor
contacted Dr. Silber and discussed with him, via email, the
next course of action. With respect to filing a Rule 8OC
appeal, Attorney Taintor suggested that the only reason not
to file such an appeal was if NMAEC was insolvent and
"we are convinced that the Department would never try to
collect the fine from Dr. Silber personally." Attorney
Taintor expressed uncertainly as to whether DHHS could ...