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NO. CAAP-17-0000477

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE PETITION OF ARDEN DELOS SANTOS, 

AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ADS, AppellantPetitioner-Appellant, 

v.

GORDON I. ITO, INSURANCE COMMISSIONER, DEPARTMENT 

OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAI#I, 

Appellee-Appellee,

and

EVERCARE, Appellee-Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 11-1-2542-10)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Petitioner-Appellant Arden Delos Santos, as Personal

Representative of the Estate of ADS (Delos Santos),1 appeals from

the May 4, 2017 Order Dismissing Appeal and Affirming

Commissioner's Order Awarding Attorneys' Fees and Costs (Order

Affirming Fees) and the June 6, 2017 Final Judgment (Judgment)

filed by the Circuit Court of the First Circuit

(Circuit Court),2 following remand from this court's prior

decision in Harrison v. Ito, Nos. CAAP-12-0000645, 

1 Delos Santos is the father of ADS (Daughter). On March 6, 2017,

following Daughter's death in October 2016, Delos Santos was substituted as

personal representative. 

2 The Honorable Rhonda A. Nishimura presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000477

24-FEB-2023

07:57 AM

Dkt. 89 MO
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CAAP-12-0000646, CAAP-12-0000647, 2015 WL 4067205 (App. June 30,

2015) (mem.), aff'd, Nos. SCWC-12-0000645, SCWC-12-0000646, 

SCWC-12-0000647, 2016 WL 5239646 (Haw. Sept. 22, 2016) (SDO).3

The underlying case involves Delos Santos's appeals

through the external review procedure under Hawaii Revised

Statutes (HRS) Chapter 432E,4 of two successive attempts by

Respondent-Appellee UnitedHealthcare Insurance Company dba

Evercare (Evercare)5 to reduce the amount of covered skilled

nursing services for Daughter, a six-year-old Kaua#i resident

suffering from severe brain damage and a seizure disorder, who

was an enrollee in Evercare's managed care plan. Delos Santos

ultimately prevailed following both external reviews. The

external review statute, HRS § 432E-6, contains an attorney's

fees and costs provision allowing the insurance commissioner

discretion to award fees and costs "in connection with the

external review under this statute." HRS § 432E-6(e).6 The

3 The previous appeal in this case, Delos Santos v. Ito, CAAP-12-

0000646, was one of three cases in the consolidated appeal of Harrison v. Ito. 

In Harrison, we vacated the Circuit Court's dismissal of Delos Santos's

request for judicial review of the commissioner's award of attorney's fees for

lack of jurisdiction, and remanded for a decision on the merits. 2015 WL

4067205, at *4-7.

4 HRS Chapter 432E, entitled the "Patients' Bill of Rights and

Responsibilities Act," sets forth statutory requirements for managed care

plans, and includes an external review procedure by which the enrollee may

pursue a complaint against the managed care plan, in HRS § 432E-6, discussed

infra. "'External review' means an administrative review requested by an

enrollee under 432E-6 of a managed care plan's final internal determination of

an enrollee's complaint." HRS § 432E-1 (2005).

The external review statute, HRS § 432E-6, was repealed by the

2011 Legislature, to comply with the federal Patient Protection and Affordable

Care Act of 2010. See Haw. Med. Serv. Ass'n v. Adams, No. CAAP-10-0000011,

2013 WL 4606314, at *1 n.2 (App. Aug. 29, 2013) (SDO); 2011 Haw. Sess. Laws

Act 230, § 10 at 746. The current external review law is contained in HRS

Chapter 432E, Part IV, entitled "External Determinations." See HRS §§ 432E-31

to 432E-44.

5 Evercare administers the Quest Expanded Access Medicaid plan that

provides medically necessary covered services for aged, blind, or disabled

enrollees. Evercare now operates as UnitedHealthcare Insurance Company, Inc. 

6 The external review statute's attorney's fees and costs provision,

HRS § 432E-6(e) (2005) (repealed 2011), provides: 

(e) An enrollee may be allowed, at the commissioner's

(continued...)

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attorney's fees at issue here were incurred during a month-long

period after the first external review was completed but before

the second external review was commenced. Respondent-Appellee

Insurance Commissioner Gordon I. Ito, Department of Commerce and

Consumer Affairs, State of Hawai#i (Commissioner) awarded Delos

Santos $30,839.76 in attorneys' fees and costs, rather than the

full $43,067.35 amount that Delos Santos requested, which the

Circuit Court affirmed.

In this secondary appeal, Delos Santos contends the

Circuit Court erroneously affirmed: (1) the Commissioner's

reduction of $3,703.30 in the amount of attorney's fees incurred

during the period after the first external review was completed

but before the second external review commenced, as not incurred

"in connection" with the external review; and (2) the

Commissioner's denial of $8,340.00 of expert witness fees as

costs, because HRS § 432E-6(e) did not expressly provide for an

award of expert witness fees.7

We hold that the Circuit Court was wrong in affirming

the Commissioner's ruling that the attorney's fees during the

period between the first external review and the second external

review were precluded, because the fees were incurred "in

connection with the external review" under HRS § 432E-6(e). We

also hold that under the circumstances of this case and the

6(...continued)

discretion, an award of a reasonable sum for attorney's

fees and reasonable costs incurred in connection with

the external review under this section, unless the 

commissioner in an administrative proceeding determines 

that the appeal was unreasonable, fraudulent, excessive,

or frivolous.

(Emphasis added).

The current external review law does not contain a provision for

attorney's fees and costs. Rather, it provides that the carrier against which

an external review is filed shall pay the costs of the independent review

organization conducting the external review. See HRS § 432E-42 (2011).

7 We have reordered and restated Delos Santos's contentions for

clarity. Delos Santos's contentions regarding the standards of review that

the Circuit Court should have applied to the attorney's fees and expert

witness fees issues are discussed infra.

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principles of statutory construction that apply to HRS Chapter

432E, expert witness fees are not categorically excluded as

recoverable "costs" under HRS § 432E-6(e). We thus vacate and

remand.

I. BACKGROUND

This case involved a first notice of proposed reduction

in covered services, followed by an internal review (First

Internal Review),8 then an external review (First External

Review); then there was a second notice of proposed reduction in

covered services, followed by an internal review (Second Internal

Review), and external review (Second External Review). 

First External Review concluded May 25, 20109

On December 28, 2009, Evercare sent the first notice

informing Delos Santos that it planned to reduce the amount of

covered skilled nursing services for Daughter from 75 to 60 hours

per week (first notice). Delos Santos appealed the reduction to

Evercare, which conducted the First Internal Review, and upheld

the decision in a final internal determination. On February 24,

2010, Delos Santos requested the First External Review of

Evercare's final internal determination. 

On May 7, 2010, Daughter was hospitalized at Kapi#olani

Medical Center for Women and Children on O#ahu (Kapi#olani). 

On May 11, 2010, the external review panel conducted

the First External Review hearing. 

On May 14, 2010, Daughter was discharged from

Kapi#olani and flew back to Kaua#i. She had a follow-up visit

with her primary care physician (PCP) on May 18, 2010,

8 "Internal review" is defined as "the review under section 432E-5

of an enrollee's complaint by a managed care plan." HRS § 432E-1 (2005). The

internal review statute, HRS § 432E-5, requires the issuance of a "final

internal determination" by the managed care plan in 60 days. HRS § 432E-5(d).

9 This appeal is from the May 4, 2017 Order Affirming Fees that

pertained to the Second External Review. The record on appeal does not

contain the record pertaining to the First External Review. The background

facts set forth here regarding the First Internal Review, First External

Review, and order disposing of the First External Review, are contained in the

January 31, 2011 order disposing of the Second External Review. 

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accompanied by her service coordinator, who planned an immediate

reassessment of Daughter's need for services. Daughter's mother

requested that the reassessment be postponed until the next day. 

The following day, Delos Santos canceled the appointment for the

reassessment until such time as his counsel (Delos Santos's

counsel) could participate. 

On May 21, 2010, the service coordinator met with the

family and Daughter's nurse to conduct the reassessment and

complete a Home Skilled Nursing Scoring Tool (Scoring Tool).10 

The May 21, 2010 Scoring Tool reflected that the family

caregivers were providing 465 minutes or 7.75 hours per day of

nursing services. 

On May 25, 2010, the Commissioner issued Findings of

Fact (FOF), Conclusions of Law (COL) and Order (May 25, 2010

First External Review Order)11 reversing the first final internal

determination, concluding that Evercare's "reduction of the

skilled nursing hours based on its determination that

[Daughter]'s family was capable of safely performing the skilled

services, in reliance on past history and [Daughter]'s medical

record, was not reasonable." The First External Review Order

noted that "no one had observed the care being provided by

[Daughter]'s family to determine what quality of care they were

providing or whether they were performing mistakes in technique

which could cause problems." 

On May 25, 2010, the same day as the First External

Review Order, Daughter's PCP requested skilled nursing services

twenty-four hours a day, seven days a week (24/7), or 168 hours

per week. 

10 A service coordinator assigned by Evercare to each enrollee

completes a Scoring Tool that captures, in a twenty-four-hour period, the

number of hours spent providing skilled nursing services to an enrollee. 

Applying Medicaid and Medicare guidelines, Evercare's Medical Director

determines how much of the time captured in the Scoring Tool qualifies for

coverage.

11 The May 25, 2010 First External Review Order is not a part of this

record. See note 9 supra. 

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On May 28, 2010, Evercare received the PCP's May 25,

2010 request for an expedited decision; Evercare on that date

approved two weeks of 24/7 skilled nursing coverage because it

had not yet been able to complete a skills check on Daughter's

parents. 

Based on the May 25, 2010 First External Review Order,

which found that the reduction in the amount of covered skilled

nursing services was not reasonable, Evercare did not implement

the reduction of Daughter's covered skilled nursing services to

sixty hours per week. To address the Commissioner's concern in

the May 25, 2010 First External Review Order that no one had

observed the family performing services, Evercare arranged for

Lynell Rogers, RN (Nurse Rogers), to perform a skills assessment

(Skills Check) on June 14, 2010, of Daughter's parents

administering care in the home to ensure safety and

effectiveness. 

Attorney's fees incurred June 13 to July 13, 2010

The attorney's fees at issue in this appeal were

incurred during a month-long period from June 13, 2010 to July

13, 2010. On June 13, 2010, the day before the June 14, 2010

Skills Check, Delos Santos's counsel spent 1.42 hours researching

parent skills assessment standards and services. On June 14,

2010, the day of the Skills Check, Delos Santos's counsel spent

4.67 hours consulting with Daughter's parents, flying to Kaua#i,

and attending the Skills Check. Delos Santos's counsel had the

Skills Check videotaped. 

During the Skills Check on June 14, 2010, Nurse Rogers 

coached Daughter's parents on certain procedures and skills.

Nurse Rogers determined that Daughter's mother could competently

perform nursing services and that Delos Santos was willing to and

did learn some of those services.

Based on Nurse Rogers' Skills Check report and the 

May 21, 2010 Scoring Tool, Evercare determined that Daughter's

family demonstrated the ability to provide services that Daughter

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required, and started to develop a transition plan for Daughter's

care to reduce the amount of covered skilled nursing services. 

On June 22 and 23, 2010, Evercare's medical director

discussed with Daughter's PCP the proposed transition plan from

24/7 (168 hours) skilled nursing care to 96 hours per week. The

PCP reiterated the PCP's recommendation for 24/7 care. 

On June 26, 2010, Delos Santos's counsel spent .67

hours reviewing Nurse Rogers' Skills Check report and discussing

it with Daughter's parents. On June 30, 2010, Delos Santos's

counsel spent 1.87 hours searching for experts on the standard of

care for home-based skilled nursing to review the videotaped

Skills Check. Delos Santos's counsel hired two experts, Aaron

Tabacco, RN, BSN (Nurse Tabacco), a published expert on the

assessment of family capacities to support home nursing care, and

Leslie Elder, RN (Nurse Elder), who administered the Seattle

Children's Hospital program that trains parents for delegated

skilled nursing services. 

On July 7, 2010, Evercare's service coordinator

presented a transition plan to the family to reduce the amount of

covered skilled nursing services for Daughter, from 24/7 to a

schedule that would place some responsibility on her parents to

provide care consistent with Medicaid coverage guidelines. While

the family considered the transition plan, Evercare approved the

continuation of 24/7 skilled nursing services for Daughter, to

August 1, 2010.

On July 7-9, 2010 and July 13, 2010, Delos Santos's

counsel spent 4.14 hours working with the hired experts,

conferring with the family, and drafting an appeal letter to

Evercare.12

12 Delos Santos's counsel's billing entries for this July time frame

reflect 2.38 hours on July 7; .37 hours on July 8; .47 hours on July 9; .62

hours on July 9; and .3 hours on July 13, 2010. 

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Second Internal and External Review, July 23, 

2010 to January 31, 2011

On July 16, 2010, Evercare sent a second notice to

inform Delos Santos that it would reduce the amount of covered

skilled nursing services for Daughter from 168 (24/7) hours to 96

hours per week by the end of a transition period beginning 

August 1, 2010 (Second Notice). 

On July 23, 2010, Delos Santos appealed this decision

to Evercare for internal review. 

On August 20, 2010, Evercare issued a final internal

determination and upheld the reduction in covered skilled nursing

services to 96 hours per week. 

On September 10, 2010, Delos Santos requested a Second

External Review of the second final internal determination. 

At the January 7, 2011 Second External Review hearing,

Delos Santos introduced the expert testimony of Nurse Tabacco and

Nurse Elder and established, inter alia, the existence of a

widely accepted standard of care and that the June 14, 2010

Skills Check by Nurse Rogers fell short of that standard.13

On January 31, 2011, the Commissioner issued the

External Review Panel's Findings of Fact, Conclusions of Law,

Discussion and Order affirming the Panel's decision (January 31,

2011 Second External Review Order or Second External Review

Order), upholding Evercare's second final internal determination

in a 2-1 split decision.14

13 The Commissioner noted that Delos Santos established, via expert

testimony, that Nurse Rogers' assessment of Daughter's parents was "not a

perfect, textbook assessment."

14 The External Review Panel consisted of three members, and one

member dissented from the disposition. At the end of its FOFs and COLs, the

Panel provided the following "reflection . . . purely for informational

purposes" in the Second External Review Order: 

[Evercare] maintains that in the case of each of the medical

issues that [Daughter] faces, skilled nursing care is not

required. That might be true if one takes each issue as a

stand alone issue. But when one is dealing with a patient

with this many medical issues and the care required is

difficult and continuous, a reasonable person might come to

(continued...)

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2011 Circuit Court appeal, fees and costs motion

On March 7, 2011, Delos Santos appealed the January 31,

2011 Second External Review Order to the Circuit Court. 

On May 4, 2011, Delos Santos filed a Motion for An

Award of Attorneys' Fees and Costs Pursuant to HRS § 432E-6(e)

(Motion for Fees and Costs) with the Commissioner, seeking

attorney's fees from June 13, 2010 to January 7, 2011, which was

the date of the Second External Review hearing. Delos Santos

attached Delos Santos's counsel's invoice that included 

(1) billing entries from June 13, 2010 to July 13, 2010, and 

(2) expert witness invoices for Nurse Elder and Nurse Tabacco. 

Evercare opposed the Motion for Fees and Costs, arguing

that: (1) the $3,703.30 attorney's fees billed between June 13

and July 13, 2010, was for work Delos Santos's counsel did prior

to the issuance of a final internal determination, and thus,

those fees were not "incurred in connection with the external

review"; and (2) the $8,340.00 expert witness fees for Nurse

Tabacco and Nurse Elder were "not recoverable as a cost item

under Hawai#i law." 

While the Motion for Fees and Costs was pending, on

September 15, 2011, the Circuit Court reversed the January 31,

2011 Second External Review Order (Order Reversing Second

External Review Order), concluding that the June 14, 2010 Skills

14(...continued)

the conclusion that the overall situation really calls for

skilled nursing care, particularly when the treating

physician has asked for that and given the testimony of

Aaron Tabacco and Leslie Elder. Although [Evercare] may be

concerned about costs, this may just be one of those cases

where the thing to do is to pay those costs. Cost-efficiency

is an important goal, but in some cases it should not be the

highest priority. In addition, although putting [Daughter]

in an institution might provide reasonable technical health

care, it might have a serious adverse effect on her

psychological development given her young age. Therefore,

this is not a situation of all things being otherwise

equal besides costs.

(Emphasis added). Notably, the underscored language above was referenced and

quoted verbatim in the subsequent Circuit Court review, as set forth infra in

footnote 15.

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Check failed to meet the standard of care, and that Evercare did

not act reasonably based on the PCP's recommendation and the

testimony of Delos Santos's experts.15 The case was remanded to

the Commissioner. 

A week following the Circuit Court's Order Reversing

Second External Review Order, the Commissioner issued the

September 22, 2011 Order Awarding Attorneys' Fees and Costs

(Order Awarding Fees) that is the subject of this appeal. The

Commissioner concluded that: although Evercare prevailed, it was

a split decision by the Second External Review Panel, suggesting

that this case was not unreasonable, fraudulent, excessive, or

frivolous under HRS § 432E-6(e); the phrase "in connection with

the external review" was "broad enough" to encompass fees

incurred in the Circuit Court appeal;16 and Delos Santos's

counsel should be awarded reasonable attorney's fees and costs.

15 The Circuit Court specifically held that:

The conclusion that [Daughter]'s family was capable of

safely and effectively performing the skilled nursing

services was not supported by reliable, probative and

substantial evidence because [Daughter]'s expert witnesses

testified that the reassessment of the family's skills

conducted in [Daughter]'s home on June 14, 2010, on which

the conclusion relied, failed to meet the standard of care

in several material respects. The Court finds it further

significant that the [Second External Review] Panel

commented in its "Discussion": "[B]ut when one is dealing

with a patient with this many medical issues and the care

required is difficult and continuous, a reasonable person

might come to the conclusion that the overall situation

really calls for skilled nursing care, particularly when the

treating physician has asked for that and given the

testimony of Aaron Tabacco and Leslie Elder." 

(Bracketed references and emphases added) (quotation marks and brackets in

original). 

16 The Commissioner rejected Evercare's argument that the plain

language of HRS § 432E-6 did not authorize the Commissioner to award

attorney's fees for a circuit court appeal of an external review decision

because the language "'external review under this section' is clearly limited

to the administrative proceeding" described in HRS § 432E-6(e). The

Commissioner awarded the $11,264.10 attorney's fees and costs for the appeal,

stating: "although [Evercare] has objected to the idea that fees incurred on

an appeal to the judicial system are not payable, we believe that the words

'in connection with the external review' are broad enough to encompass that

situation." 

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However, the Commissioner reduced the attorney's fees and denied

the expert costs that Delos Santos requested, explaining that:

First, we agree with [Evercare] that [Daughter]'s 

counsel cannot bill for fees and costs incurred before

[Evercare]'s final internal determination was issued because

these are not incurred "in connection with the external

review." The amount disallowed for this purpose is

$3,703.30.

Second, [Evercare] has objected to the compensation of

the expert witness fees of Aaron Tabacco and Leslie Elder on

the basis that the fee shifting statute [(HRS § 432E-6(e)]

does not expressly contemplate payment for expert witness

fees. We believe that [Evercare] is correct that if the

Legislature had intended to compensate for expert witness

fees, they could have stated so explicitly in the statute. 

The amount disallowed for this purpose is $8,340.

(Emphases added). 

2015 ICA appeal, 2017 remand to Circuit Court

On October 24, 2011, Delos Santos appealed the Order 

Awarding Fees to the Circuit Court, which dismissed the appeal

for lack of jurisdiction on May 24, 2012. On appeal, we vacated

the dismissal and remanded for a decision on the merits in 2015,

which the supreme court affirmed in 2016. See Harrison, 2015 WL

4067205, at *7; Harrison, 2016 WL 5239646, at *1.

On remand in 2017, the Circuit Court heard argument and

issued the May 4, 2017 Order Affirming Fees, which affirmed the

Commissioner's Order Awarding Fees and dismissed the appeal.17 

This secondary appeal followed. 

17 The Order Affirming Fees stated in pertinent part: 

Under Hawai#i Revised Statutes ("HRS") § 432E-6(e), repealed

effective January 1, 2012, an enrollee could be allowed, at

the Commissioner's discretion, an award of a reasonable sum

for attorneys' fees and reasonable costs incurred in

connection with the external review under section 432E-6. In

the Attorney Fee Order, the Commissioner parsed out three

discrete categories in disallowing certain attorneys' fees

and costs. The Court finds and concludes that the

Commissioner's decision in that regard was within his

discretion as to what is a reasonable sum for attorneys'

fees and what reasonable costs were incurred.

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II. STANDARDS OF REVIEW

A. Secondary Appeal

Review of a decision made by the circuit court upon its

review of an agency's decision is a secondary appeal. The

standard of review is one in which [the appellate] court must

determine whether the circuit court was right or wrong in its

decision, applying the standards set forth in HRS § 91-14(g)

(1993) to the agency's decision.

HRS § 91-14, entitled "Judicial review of contested

cases," provides in relevant part:

(g) Upon review of the record the court may affirm

the decision of the agency or remand the case with

instructions for further proceedings; or it may

reverse or modify the decision and order if the

substantial rights of the petitioners may have been

prejudiced because the administrative findings,

conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory

provisions; or

(2) In excess of the statutory authority or

jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable,

probative, and substantial evidence on the

whole record; or

(6) Arbitrary, or capricious, or characterized

by abuse of discretion or clearly

unwarranted exercise of discretion.

Under HRS § 91-14(g), conclusions of law are

reviewable under subsections (1), (2), and (4);

questions regarding procedural defects under

subsection (3); findings of fact under subsection (5);

and an agency's exercise of discretion under

subsection (6).

United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 

106 Hawai#i 359, 363, 105 P.3d 236, 240 (2005) (brackets omitted)

(quoting Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412,

416, 91 P.3d 494, 498 (2004)).

B. Conclusions of Law

"Pursuant to HRS § 91-14(g), an agency's conclusions of

law are reviewed de novo." Id. (citation omitted). "A circuit

court's conclusions of law are subject to de novo review." 

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Paul's Elec. Serv., 104 Hawai#i at 420, 91 P.3d at 502 (citation

omitted).

C. Statutory Interpretation

"Statutory interpretation is a question of law

reviewable de novo." Stout v. Bd. of Trs. of the Emps.' Ret.

Sys., 140 Hawai#i 177, 185, 398 P.3d 766, 774 (2017) (citing

Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 

114 Hawai#i 184, 193, 159 P.3d 143, 152 (2007)). 

First, the fundamental starting point for statutory

interpretation is the language of the statute itself.

Second, where the statutory language is plain and

unambiguous, our sole duty is to give effect to its plain

and obvious meaning. Third, implicit in the task of

statutory construction is our foremost obligation to

ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the

language contained in the statute itself. Fourth, when

there is doubt, doubleness of meaning, or indistinctiveness

or uncertainty of an expression used in a statute, an

ambiguity exists.

When there is ambiguity in a statute, the meaning of the

ambiguous words may be sought by examining the context, with

which the ambiguous words, phrases, and sentences may be

compared, in order to ascertain their true meaning. 

Moreover, the courts may resort to extrinsic aids in

determining legislative intent, such as legislative history,

or the reason and spirit of the law.

Id. (quoting Citizens, 114 Hawai#i at 193-94, 159 P.3d at

152-53).

D. Judicial Deference to Agency Interpretation

Generally, we apply the rule of judicial deference to

an agency's expertise and the agency's "interpretation of its own

governing statute[.]" Gillan v. Gov't Emps. Ins. Co., 

119 Hawai#i 109, 114, 194 P.3d 1071, 1076 (2008) (internal

quotation marks and citation omitted). "The rule of judicial

deference, however, does not apply when the agency's reading of

the statute contravenes the legislature's manifest purpose." 

Stout, 140 Hawai#i at 185, 398 P.3d at 774 (quoting Coon v. City

& Cnty. of Honolulu, 98 Hawai#i 233, 245, 47 P.3d 348, 360

(2002)). 

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III. DISCUSSION

A. Under the circumstances of this case, the

abuse of discretion standard of review 

does not apply.

In its Order Affirming Fees, the Circuit Court applied

an abuse of discretion standard of review to the Commissioner's

Order Awarding Fees. The Circuit Court reasoned that because 

HRS § 432E-6(e) allowed an award of reasonable attorney's fees

and costs at the Commissioner's discretion, the Commissioner's

decision to "parse[] out three[18] discrete categories in

disallowing certain attorneys' fees and costs" was "within his

discretion as to what is a reasonable sum" for the attorney's

fees and costs incurred. (Footnote added).

Delos Santos contends that the Circuit Court erred in

failing to apply HRS § 91-14(g)(5) correctly when it concluded

that the Commissioner's denial of $3,703.30 in attorney's fees

was within the Commissioner's discretion in light of HRS Chapter

432E and the intent of the Legislature. Delos Santos claims that

the denial of the attorney's fees for the June 13, 2010 to 

July 13, 2010 time frame was a mixed question of fact and law,

for which the clearly erroneous standard of review applies rather

than the abuse of discretion standard. Delos Santos also

contends that the Circuit Court "failed to apply" HRS § 

91-14(g)(4) correctly on a question of law when it concluded that

the Commissioner's denial of $8,340 in costs for expert witness

fees was a permissible exercise of discretion, rather than

applying de novo review. We agree with Delos Santos to the

extent that the Circuit Court was reviewing questions of law as

to whether the Commissioner could award the attorney's fees and

expert fees in question, and thus, should have applied the de

novo standard of review. 

18 The third disallowed category had to do with $184.29 in fees and

costs related to the Circuit Court appeal. This disallowed item is not at

issue in this appeal.

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HRS § 432E-6(e) provides that an enrollee like Delos

Santos "may be allowed, at the Commissioner's discretion," an

award of reasonable attorney's fees and costs "incurred in

connection with the external review[.]" (Emphasis added). The

statute grants the Commissioner discretion to determine whether

to award attorney's fees and costs "unless the Commissioner . . .

determines the appeal was unreasonable, fraudulent, excessive, or

frivolous," and the discretion to determine what is a reasonable

sum for the fees and costs awarded. Id. 

Here, the Commissioner's specific denials of the

attorney's fees and expert costs at issue did not involve the

discretionary areas identified in the statute, i.e. whether to

award fees and costs or not, or what sum would be reasonable. 

Rather, the Commissioner interpreted the statutory language, "in

connection with the external review under this statute," to

determine whether attorney's fees incurred during a particular

time frame were within the scope of the statute. With respect to

expert witness fees, the Commissioner also interpreted the

statute to determine whether specific costs such as expert

witness fees were permissible under the statute. Because these

are conclusions of law interpreting and applying HRS § 432E-6(e),

we apply a de novo, right/wrong standard of review. See Stout,

140 Hawai#i at 185, 398 P.3d at 774; United Pub. Workers, 

106 Hawai#i at 363, 105 P.3d at 240.

B. Under the circumstances of this case, where

the two successive external reviews were

repeated attempts to reduce the amount of 

coverage for the same services, the 

attorney's fees incurred between the two 

external reviews were "in connection with 

the external review[.]"

Delos Santos contends that the Circuit Court erred in

affirming the Commissioner's reduction of attorney's fees where

both the Circuit Court and the Commissioner did not apply the

"facts in this particular case to the term 'in connection with

the external review' in light of the whole of [sic] Chapter 432E,

H.R.S. and the intent of the Legislature." Delos Santos argues

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that Evercare "attempted to address the concerns raised" in the

First External Review Order to "justify a reduction in the same

services on the same grounds by engaging an expert nurse in

anticipation of a second external review." Delos Santos asserts

that the Commissioner should have liberally construed the term

"in connection with the external review" under HRS § 432E-6(e) to

award the fees in question in light of the facts connecting the

First External Review to the Second External Review. 

Relying on County of Hawai#i v. C & J Coupe Family Ltd.

P'ship, 120 Hawai#i 400, 408, 208 P.3d 713, 721 (2009), Evercare

claims that the date of the Second Final Internal Determination

is the "relevant starting point for the external review process"

when determining what attorney's fees and costs were incurred "in

connection with" the Second External Review. Evercare argues

that the supreme court in C & J Coupe interpreted a comparable

statutory provision, HRS § 101-27 (awarding prevailing defendant

in an eminent domain proceeding reasonable fees and costs "in

connection therewith"), as "properly exclud[ing] all fees and

costs incurred prior to the filing of the notice of appeal." Id.

The supreme court read HRS § 101-27 and HRAP Rule 39 (pertaining

to fees and costs on appeal), in pari materia to specifically

conclude that because "the procedures for requesting attorneys'

fees and costs on appeal are outlined in HRAP Rule 39," that

"HRAP Rule 39 should govern." Id. at 406, 208 P.3d at 719. For

the reasons we explain infra, C & J Coupe is inapposite because

it dealt with which of two attorney's fees and costs provisions

covered fees and costs on appeal. The issue here is whether the

pertinent fees and costs statute covers the period between two

external reviews that concerned the same issue — — Evercare's

successive attempts to reduce the amount of coverage for the same

services. 

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1. The plain language of "in connection with 

the external review" encompasses the 

attorney's fees at issue.

In construing a statute, the starting point is the

language of a statute itself. Stout, 140 Hawai#i at 185, 398

P.3d at 774. "To effectuate a statute's plain language, its

words 'must be taken in their ordinary and familiar

signification, and regard is to be had to their general and

popular use.'" Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439,

449, 420 P.3d 370, 380 (2018) (internal quotation marks omitted)

(quoting State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138,

1144 (2015)). If the terms are not statutorily defined, then an

appellate court "'may resort to legal or other well accepted

dictionaries as one way to determine the ordinary meaning of

certain terms not statutorily defined.'" Id. at 449-50, 420 P.3d

at 380-81 (quoting Guyton, 135 Hawai#i at 378, 351 P.3d at 1144).

HRS § 432E-6(e) provides for attorney's fees and costs

"incurred in connection with the external review under this

section[.]" The issue here is whether the attorney's fees

incurred after the First External Review concluded and before the

Second External Review procedure began were incurred "in

connection with the external review[.]" HRS § 432E-6(e) and the

remainder of HRS Chapter 432E do not explain what "in connection

with" means under the statute. HRS § 432E-6(e) does not use

temporal, or time-specific language such as "during the external

review," but uses broader language, "in connection with[.]" 

Merriam-Webster defines "in connection with" as "in relation to

(something)." In connection with, Merriam-Webster,

https://www.merriam-webster.com/dictionary/in%20connection%20with

(last visited Dec. 2, 2022). Thus, the phrase "in connection

with" -- means the attorney's fees incurred "in relation to" the

external review, without any temporal or time-specific language

like the word "during." In connection with, supra; see Omiya,

142 Hawai#i at 449-50, 420 P.3d at 380-81.

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Here, there is a clear common connection between the

attorney's fees at issue and the two external reviews, which all

concerned the same issue -- Evercare's successive attempts to

reduce the amount of covered skilled nursing services for

Daughter. The First External Review Order denied the first

attempted reduction as "not reasonable," citing the

Commissioner's concern that Evercare reduced services without

having observed Daughter's parents first performing the skilled

nursing services. In the two weeks following the May 25, 2010

First External Review Order, Evercare began to address the

concern in the First External Review Order by arranging for Nurse

Rogers to administer the Evercare Skills Check to Daughter's

parents scheduled for June 14, 2010. From June 13 to July 13,

2010, Delos Santos's counsel responded to the June 14, 2010

Skills Check by researching experts on Skills Check procedure and

attending the Skills Check, followed by reviewing and discussing

Nurse Rogers' Skills Check report with Daughter's family,

retaining and consulting opposition Skills Check experts, and

appealing Evercare's July 7, 2010 notification to again attempt

to reduce the amount of covered skilled nursing services for

Daughter. The Second External Review turned on the June 14, 2010

Skills Check, the competing expert opinions about the adequacy of

the Skills Check, and whether Evercare acted reasonably in its

second attempt to reduce the amount of covered services. While

Delos Santos lost at the Second External Review hearing in a

split 2-1 decision, the Circuit Court's Order Reversing Second

External Review Order reversed in favor of Delos Santos based on

the testimony of Delos Santos's Skills Check experts. Thus, the

record reflects that the First External Review, the Second

External Review, and Delos Santos's counsel's work in the interim

period between the two external reviews, were all connected to

the same common issue of Evercare's successive attempts to reduce

the amount of covered skilled nursing services. Under these

circumstances, we conclude that the attorney's fees at issue were 

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incurred "in relation to" and in connection with both external

reviews. See HRS § 432E-6(e); In connection with, supra. As we

explain infra, this plain language construction is consistent

with the liberal approach afforded to remedial statutes like 

HRS § 432E-6(e). 

2. Because HRS § 432E-6(e) is a remedial

statute, the "in connection with" language

must be liberally construed. 

Delos Santos argues that HRS § 432E-6 is a remedial

statute, enacted "to provide patients of managed care systems a

fair opportunity to be heard on denials of coverage in a

relatively expeditious expert forum . . . ." Citing Flores v.

United Air Lines, Inc., 70 Haw. 1, 757 P.2d 641 (1988),19 Delos

Santos urges that the Commissioner "was required to construe HRS

§432E-6(e) liberally to accomplish the purposes for which it was

enacted."

Evercare responds that "to the extent the phrase 'in

connection with' is ambiguous, the Commissioner's interpretation

must be given deference." However, the rule of deference does

not apply if we determine that the Commissioner's interpretation

of the statute contravenes the legislative purpose. See Stout,

140 Hawai#i at 185, 398 P.3d at 774. Evercare also claims that

HRS § 432E-6(e) is a fee-shifting statute "in derogation of the

common law" American Rule that parties must bear their own

attorney's fees and costs, and thus, the statute "must be

strictly construed."

"Generally, remedial statutes are those which provide a

remedy, or improve or facilitate remedies already existing for

the enforcement of rights and the redress of injuries." Kalima

v. State, 111 Hawai#i 84, 100, 137 P.3d 990, 1006 (2006) (quoting

Flores, 70 Haw. at 12 n.8, 757 P.2d at 647 n.8). A remedial

19 In Flores, the supreme court found HRS § 378-32(2), dealing with

discriminatory employment practices, was "remedial" in nature because it

granted a person whose employment was terminated due to a work injury, first

preference for reemployment by the employer if there was a job the employee

could perform. 70 Haw. at 12 n.8, 757 P.2d at 647 n.8.

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statute "is to be construed liberally in order to accomplish the

purpose for which it was enacted." Flores, 70 Haw. at 12, 

757 P.2d at 647 (quoting Roe v. Doe, 59 Haw. 259, 265, 581 P.2d

310, 315 (1978)). "[R]emedial statutes should be liberally

construed to suppress the perceived evil and advance the remedies

provided by such statutes." Castro v. Melchor, 142 Hawai#i 1,

14, 414 P.3d 53, 66 (2018) (quoting Kalima, 111 Hawai#i at 100,

137 P.3d at 1006). In Amantiad v. Odum, the Supreme Court of

Hawai#i explained that workers' compensation statutes are

"remedial" in nature, as they have "beneficent purpose" and

"'liberal construction in favor of the employee'" was necessary

to fulfill the humanitarian purposes for which it was enacted. 

90 Hawai#i 152, 161, 977 P.2d 160, 169 (1999) (citation omitted).

"[I]nterpretations that impede rather than advance the remedies"

provided by remedial statutes are disfavored in law. Kalima, 

111 Hawai#i at 100, 137 P.3d at 1006 (quoting Flores, 70 Haw. at

12, 757 P.2d at 647). 

The purpose and the history of HRS § 432E-6 indicates

that it is a remedial statute. In 1998, the Legislature enacted

HRS Chapter 432E, entitled the "Hawaii Patient Bill of Rights and

Responsibilities Act," with the following explanatory purpose:

Managed care has evolved, and Hawaii has been

fortunate not to experience the questionable practices of

certain entities engaging in managed care. Nevertheless,

legitimate concerns provide the legislature with sufficient

reason to protect the citizens of the State from certain

practices of managed care. 

The purpose of this Act is to create a new chapter to

afford patients of managed care systems certain rights and

protections. 

1998 Haw. Sess. Laws Act 178, § 1 at 662 (emphases added).20 The

1998 legislative history indicates that the purpose was "to enact

20 While the 1998 version of the external review statute did not

contain an attorney's fees and costs provision, it did contain the predecessor

version of the current external review procedure statute, which was then

entitled "Appeals to the Commissioner" rather than using the term "external

review." See 1998 Haw. Sess. Laws Act 178, § 6 at 664. The appeal to the

Commissioner consisted, inter alia, of a review of the "final determination by

the managed care plan" by a three-member review panel, conducted in accordance

with HRS Chapter 91. See id.

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a health care bill of rights" because "patients in managed care

need to have their rights protected in order to ensure that they

are getting the best treatment possible." S. Stand. Comm. Rep.

No. 2414, in 1998 Senate Journal, at 989-90. The Legislature

pertinently found that:

(1) Managed care is increasing in prevalence as a means of

containing health care costs;

(2) In the process of containing costs, the health and

safety of the patient must be protected; and 

(3) Patients in managed health care systems are at risk of

restricted access to services, misinformation about

treatment decisions, and a lack of grievance procedures,

quality reviews, and information about their plan.

S. Stand. Comm. Rep. No. 2414, in 1998 Senate Journal, at 990. 

The Legislature also stated: 

Your Committees find that managed care patients need help

negotiating the complex system of managed health care. 

Managed care plans were developed as a means of reducing the

costs of medical care. However, these cost-reducing

procedures often result in complications or loss of quality

of health care for the consumers. This measure will provide

patient protections, including health care rights and

standards, which will help to balance the quality of health

care received with the cost-reducing measures implemented by

managed care plans. 

H. Stand. Comm. Rep. No. 1296-98, in 1998 House Journal, at 1582. 

In 1999, when the attorney's fees and costs provision was added,

the Legislature explained: "[t]he purpose of this Act is to

strengthen the protection of the consumer rights of patients

receiving health care under managed care plans . . . ."21 

1999 Haw. Sess. Laws Act 137, § 1 at 440.

21 The 1999 amendments to the external review statute, HRS § 432E-6,

added the attorney's fees and costs provision in subsection (d), as follows: 

"(d) An enrollee may be allowed, at the commissioner's discretion, an award of

a reasonable sum for attorney's fees and reasonable costs of suit in an action

brought against the managed care plan." 1999 Haw. Sess. Laws Act 137, § 6 at

443. The Legislature explained the amendment as providing that: "[a]t the

commissioner's discretion, the enrollee may recover reasonable attorney's fees

and costs[.]" Conf. Comm. Rep. No. 121, in 1999 Senate Journal, at 896. The

legislative history does not contain any specific explanation for the addition

of the attorney's fees and costs provision.

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Thus, the Legislature's purpose for enacting the

external review statute, HRS § 432E-6, was to assist patients of

managed care plans and to afford them rights and protections. 

The external review procedure in HRS § 432E-6 provided a

procedural remedy in the form of a review hearing, and served to

strengthen the "consumer rights" of patients, to enforce a

patient's rights against unreasonable adverse determinations

regarding health care coverage, and to protect the health and

safety of the patient while cost-reducing measures were

implemented by managed care plans. Id.; see S. Stand Comm. Rep.

No. 2414, in 1998 Senate Journal, at 990; H. Stand. Comm. Rep.

No. 1296-98, in 1998 House Journal, at 1582. The award of

reasonable attorney's fees and costs for an enrollee who mounted

a challenge to a managed care plan's decision through an external

review, is remedial because it "facilitate[s] . . . the

enforcement" of patients' rights through the external review

procedure. Kalima, 111 Hawai#i at 100, 137 P.3d at 1006. The

statutory provision allowing an award of reasonable attorney's

fees and costs to an enrollee promotes the "'redress of

injuries'" for enrollees who incur attorney's fees and costs for

an external review. Id. (citation omitted).

Here, in the Order Awarding Fees, the Commissioner

rejected Evercare's argument that the plain language of 

HRS § 432E-6 did not authorize attorney's fees for a circuit

court appeal of an external review decision. The Commissioner 

liberally construed the words "in connection with the external

review" as being "broad enough" to encompass fees incurred during

the circuit court appeal after the external review was completed.

See Adams, 2013 WL 460314 at *2.22 Such a liberal construction

22 This rationale and result awarding fees for the circuit court

appeal is similar to the Commissioner's conclusion in Adams, 2013 WL 460314,

at *2, that "the plain meaning of the words 'in connection with [the external

review]' [wa]s broad enough to encompass appeals from an external review." In

affirming the Commissioner's conclusion, this court noted that "the statute

[(HRS § 434E-6(e)], on its face, gave the Commissioner the authority to award

attorney's fees in connection with the external review and the Commissioner

(continued...)

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should also have applied to the attorney's fees incurred between

the two successive external reviews of Evercare's repeated

attempts to reduce the amount of Daughter's covered services. 

Under the circumstances of this case, construing HRS § 432E-6(e)

broadly to allow for the award of attorney's fees at issue

advances the remedial purpose of the statute. See id.

For the reasons set forth above, the Circuit Court and

the Commissioner erred in their legal conclusion that the "in

connection with" language in HRS § 432E-6(e) did not encompass

the attorney's fees incurred during the period between the two

external reviews. See United Pub. Workers, 106 Hawai#i at 363,

105 P.3d at 240.

C. Under the circumstances of this case 

and the principles of statutory 

construction that apply to HRS Chapter 

432E, expert witness fees are not

 categorically excluded as recoverable 

"costs" under HRS § 432E-6(e).

Delos Santos contends that the Commissioner erred in

construing HRS § 432E-6(e) to conclude that "if the Legislature

had intended to compensate for expert witness fees, they could

have stated so explicitly in the statute." Delos Santos raises a

number of arguments on how the term "costs" in HRS § 432E-6(e)

should be construed, based on statutory language, legislative

intent, public policy, and the "Conflict with other laws"

(conflict-of-laws) provision in HRS § 432E-2.23 HRS § 432E-6(e)

authorizes an award of reasonable "costs," which Delos Santos

claims must be construed to include expert witness fees, and that

such implied inclusion is consistent with legislative intent. 

22(...continued)

had the power to make such an award." Id. at *1. Applying the rule of

judicial deference to agency interpretation, we reversed the Circuit Court's

rejection of the Commissioner's award of attorney's fees and held that the

Commissioner did not palpably err in broadly construing HRS § 432E-6(e) to

allow attorney's fees for an appeal from an external review. Id. at *1-3. 

23 HRS § 432E-2 (2009), entitled "Conflict with other laws,"

provides: "If there is a conflict with any other law, this chapter shall

prevail to the extent that this chapter offers greater protection or rights to

the enrollee." 

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Delos Santos also argues that HRS § 432E-6(e) does not explicitly

provide for any of the costs that the Commissioner approved (i.e.

for filing fees, transcripts, copies), yet the Commissioner

improperly denied expert witness costs on this basis. Delos

Santos asserts that, pursuant to Hawai#i Administrative Rules

(HAR) § 16-201-21(d) (1990),24 because it was Delos Santos's

burden to prove by a preponderance of the evidence that Evercare

acted unreasonably in reducing services which were "medically

necessary,"25 the Legislature cannot have intended for "managed

care organizations to offer unchallenged expert opinions in the

external review." Delos Santos explains that Daughter "would

24 Delos Santos incorrectly identifies the provision specifying the

burden of proof as HAR § 16-201-20(d) [sic]. The applicable rule is HAR § 16-

201-21(d), and it provides that the "party initiating the proceeding" has the

burden of proof by a preponderance of the evidence.

25 HRS § 432E-1.4(b) (2005) sets forth the criteria for "medically

necessary" treatment, and provides that:

(b) A health intervention is medically necessary

if it is recommended by the treating physician or

treating licensed health care provider, is approved by

the health plan's medical director or physician

designee, and is:

(1) For the purpose of treating a medical

 condition;

(2) The most appropriate delivery or level of

 service, considering potential benefits and

 harms to the patient;

 (3) Known to be effective in improving health

 outcomes; provided that:

 (A) Effectiveness is determined first by

 scientific evidence;

 (B) If no scientific evidence exists, then

 by professional standards of care; and

 (C) If no professional standards of care

 exist or if they exist but are outdated

 or contradictory, then by expert

 opinion; and

(4) Cost-effective for the medical condition

 being treated compared to alternative health

 interventions, including no intervention.

 For purposes of this paragraph,

 cost-effective shall not necessarily mean

 the lowest price.

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have lost her medically necessary coverage without experts to

successfully challenge" the opinion of Evercare's expert.

Finally, Delos Santos makes a policy argument that:

a denial of expert fees as reasonable costs creates an

incentive for a managed care plan to routinely offer expert

witness opinions in the external review knowing or expecting

the opinions to be unopposed because managed care plan

enrollees will have to pay out-of-pocket for an expert

opinion and will not be reimbursed. Such an interpretation

would create disincentives for managed care plan enrollees

to even request an external review in the first place

because they cannot expect, even if they prevail as [Delos

Santos] did, to be put in the position they would have been

if the managed care plan had not denied coverage in the

first place. The legislative purpose of the external review

statute would surely be thwarted.

Delos Santos's arguments are persuasive.

Evercare argues that, in the litigation context, the

Hawai#i Supreme Court has stated that expert witness fees were

not within the scope of the HRS § 607-9 costs statute, citing

Mist v. Westin Hotels, Inc., 69 Haw. 192, 201-02, 738 P.2d 85,

92-93 (1987).26 Evercare asserts that Delos Santos "cite[d] no

case law for the proposition that expert witness fees are taxable

costs under HRS § 432E-6(e)." Citing examples in other statutes,

Evercare argues that: "[i]f the Legislature had wanted to allow

for recovery of expert witness fees incurred in connection with

the external review, it would have specifically referenced expert

witness fees — as it has done, when that was the legislative

intent."27 

26 Similar to Delos Santos's argument here, the hotel defendants in

Mist argued that they could not have presented an adequate defense without

obtaining the opinions held by experts and medical providers. Mist, 69 Haw.

at 202, 738 P.2d at 93. The supreme court, however, noted that, assuming the

expert opinions obtained were necessary for trial preparation, it did not

necessarily follow that the expense incurred should be taxed as a cost against

plaintiffs. Id.

27 Evercare cited to the following statutes as expressly providing

for expert witness fees: HRS § 486H-11(b) (2008) (providing that in personal

injury actions brought by a plaintiff against a gasoline dealer, a prevailing

plaintiff "shall be awarded reasonable attorneys' and expert witness fees 

. . . ."); HRS § 671-19 (2013) (providing that in proceedings before the

medical inquiry and conciliation panel, "[t]he panel may award costs, or a

portion thereof, including attorney's fees, witness fees including those of

(continued...)

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The issue here is whether the absence of an express

provision for expert witness fees in HRS § 432E-6(e) evidences a

legislative intent to categorically exclude expert witness fees

from being considered as part of "costs." For the reasons

explained below, we conclude that "costs" does not categorically

exclude expert witness fees under the circumstances of this case

and the statutory construction principles that apply to this

Chapter. 

1. The conflict-of-laws provision under 

HRS § 432E-2 applies when construing 

the undefined term "costs" in 

HRS § 432E-6(e).

Delos Santos argues that HRS § 432E-2 evidences

legislative intent that Chapter 432E was "expressly granted

primacy over any other law that might be construed to diminish

the protections or rights afforded enrollees[.]" Thus, to the

extent "any other law" conflicts with the "greater protection or

rights to the enrollee" under HRS Chapter 432E, this argument

urges that the Legislature intended that the broader protection

or rights of the enrollee under the Chapter must prevail. 

See HRS § 432E-2. 

HRS § 432E-6(e) does not specify what is included in 

"costs," and we may look to "legal or other well accepted

dictionaries" for its ordinary meaning. Omiya, 142 Hawai#i at

449, 420 P.3d at 380. "Cost" is defined as: "[t]he amount paid

or charged for something; price or expenditure." Cost, Black's

Law Dictionary (11th ed. 2019). "Legal costs" is defined as: 

"[a]ttorney's fees and other expenditures related to a lawsuit." 

Legal costs, Black's Law Dictionary (11th ed. 2019). "Taxable

cost" is defined as, "[a] litigation-related expense that the

prevailing party is entitled to as part of the court's award." 

27(...continued)

expert witnesses, filing fees, and costs of the medical inquiry and

conciliation panel proceedings to the party applying therefor."); HRS § 584-16

(1997) (providing that in family court proceedings, the court "may order

reasonable fees of counsel, experts, and the child's guardian ad litem, and

other costs of the action and pre-trial proceedings, including genetic tests 

. . . ."). 

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Taxable cost, Black's Law Dictionary (11th ed. 2019). Under

these definitions, expert witness fees are not categorically

excluded from the term "costs."

As Evercare points out, however, the weight of

authority in Hawai#i -- in case law and statute, provides that

"costs" do not include expert witness fees. See Mist, 69 Haw. at

202, 738 P.2d at 92 (holding that in the trial context, "[e]xpert

witness fees are not taxable as costs, absent a statute

specifically allowing such an expense"); Buscher v. Boning, 

114 Hawai#i 202, 222, 159 P.3d 814, 834 (2007) ("'Costs' are

those properly awardable under HRS § 607-9[.]"). Hawai#i's costs

statute, HRS § 607-9,28 does not include expert witness fees. 

Thus, the "'general and popular use'" of the term "costs" in

Hawai#i does not include expert witness fees. Omiya, 142 Hawai#i

at 449, 420 P.3d at 380 (citations omitted).

Under HRS § 432E-2, if there is a conflict with "any

other law," Chapter 432E must prevail to the extent it offers

"greater protection or rights to the enrollee." We conclude that

there is a conflict between the "other law" in Hawai#i described

supra excluding expert witness fees from "costs," and the liberal

construction that Delos Santos urges that we must afford to the

term "costs," in light of the necessity of expert witnesses and

the burden of proof Delos Santos faced. HRS § 432E-2 expresses

the Legislature's intent that Chapter 432E "shall prevail" over

"any other law" that offers less "protection or rights to the

28 HRS § 607-9 (1989) provides:

§607-9. Cost charges exclusive; disbursements

[(a)] No other costs of court shall be charged in any court

in addition to those prescribed in this chapter in any suit,

action, or other proceeding, except as otherwise provided by

law.

[(b)] All actual disbursements, including but not limited

to, intrastate travel expenses for witnesses and counsel,

expenses for deposition transcript originals and copies, and

other incidental expenses, including copying costs,

intrastate long distance telephone charges, and postage,

sworn to by an attorney or a party, and deemed reasonable by

the court, may be allowed in taxation of costs.

27
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enrollee." Here, the categorical exclusion of expert witness

fees from the term "costs" in other Hawai#i law conflicts with

the "greater protection or rights to the enrollee" under HRS

Chapter 432E. Under these circumstances, the conflict-of-law

provision under HRS § 432E-2 applies, and we must apply a

construction of the term "costs" that is consistent with the

"greater protection or rights to the enrollee" and the remedial

purpose of Chapter 432E.

2. In view of the burden of proof placed 

on Delos Santos to demonstrate that the 

proposed reduction of services was 

unreasonable and the existing level of

services was "medically necessary" under 

HRS § 432E-1.4, the requested expert 

witness fees cannot be categorically 

excluded as "costs."

In this case, the Second External Review Order, in a 

2-1 split decision, concluded that Delos Santos "failed to prove

by a preponderance of the evidence that 24/7 skilled nursing care

in the home is medically necessary for [Daughter]." The Order

stated: "the Panel in a majority decision finds and concludes

pursuant to HRS § 432E-6(a)(7) that [Delos Santos] failed to

prove by a preponderance of the evidence that [Evercare] acted

unreasonably in reducing the skilled nursing home care hours for

[Daughter] to 96 hours per week." When Delos Santos appealed to

the Circuit Court, the Circuit Court reversed in favor of Delos

Santos based on the testimony of Delos Santos's Skills Check

experts. The Circuit Court specifically cited Delos Santos's

experts' testimony including that the Skills Check by Nurse

Rogers "failed to meet the standard of care in several material

respects."

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Under HRS § 432E-6(a)(7)(B),29 the external review 

panel must "determine whether the managed care plan involved

acted reasonably," and must consider, inter alia, "[w]hether the

medical director properly applied the medical necessity criteria

in section 432E-1.4 in making the final determination." 

Subsection (b) of the "medical necessity" statute, HRS § 432E1.4, provides that a "health intervention"30 is medically

necessary if it is recommended by the treating physician and

29 HRS § 432E-6(a)(7) (2005) (repealed 2011) pertinently provided: 

(7) The review panel shall review every final internal 

determination to determine whether the managed care plan

involved acted reasonably. The review panel and the

commissioner or the commissioner's designee shall consider: 

. . . .

(B) Whether the medical director properly applied the

medical necessity criteria in section 432E-1.4 in making the

final internal determination; 

. . . .

30 HRS § 432E-1.4(d) defines "health intervention" as follows:

"Health intervention" means an item or service

delivered or undertaken primarily to treat a medical

condition or to maintain or restore functional ability. A

health intervention is defined not only by the intervention

itself, but also by the medical condition and patient

indications for which it is being applied. New interventions

for which clinical trials have not been conducted and

effectiveness has not been scientifically established shall

be evaluated on the basis of professional standards of care

or expert opinion. For existing interventions, scientific

evidence shall be considered first and to the greatest

extent possible, shall be the basis for determinations of

medical necessity. If no scientific evidence is available,

professional standards of care shall be considered. If

professional standards of care do not exist or are outdated

or contradictory, decisions about existing interventions

shall be based on expert opinion. Giving priority to

scientific evidence shall not mean that coverage of existing

interventions shall be denied in the absence of conclusive

scientific evidence. Existing interventions may meet the

definition of medical necessity in the absence of scientific

evidence if there is a strong conviction of effectiveness

and benefit expressed through up-to-date and consistent

professional standards of care, or in the absence of such

standards, convincing expert opinion.

(Emphasis added).

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approved by the medical director of the health plan, and meets

the remaining criteria under subsections (b)(1) through (b)(4). 

Subsection (c) provides, inter alia, that when the treating

physician and health plan medical director "do not agree on

whether a health intervention is medically necessary," an

external reviewing body must consider, but "shall not be bound

by" the recommendations of both. HRS § 432E-1.4(d) provides that

for "existing interventions," medical necessity determinations

should first consider scientific evidence; and if unavailable,

then "professional standards of care" must be considered. It

further explains that "decisions about existing interventions

shall be based on expert opinion" where professional standards of

care are "contradictory[.]" (Emphasis added). Thus, where there

are contradictory professional standards of care in determining

whether an existing health intervention is medically necessary,

HRS § 432E-1.4(d) requires that the external review panel

consider expert opinions in making its determination. 

Here, Daughter's PCP's recommendation that the existing

level of services remain unchanged, conflicted with Evercare's

medical director's determination that the existing level of 24/7

covered nursing services was not medically necessary based on

Nurse Rogers' assessment. There was a dispute as to whether the

medical necessity criteria were met under HRS § 432E-1.4(b). 

Delos Santos's experts opined that Nurse Rogers' Skills Check

assessment was not in accordance with the standard of care and

thus, the proposed reduction in Daughter's covered skill nursing

services was unreasonable. Under these circumstances, in light

of the dispute over the medical necessity of maintaining

Daughter's existing level of coverage of 24/7 skilled nursing

services, Delos Santos had the burden of proof at the external

review to refute the contradictory standard of care put forth by

Evercare's contrary expert opinion. See HAR § 16-201-21(d); 

HRS § 432E-1.4(b) and (d); HRS § 432E-6(a)(7)(B). The record

clearly reflects that Delos Santos's experts were critical to

Delos Santos's ability to ultimately overturn the Second External

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Review Panel's decision that Delos Santos had failed to prove

that the existing level of services was "medically necessary" for

Daughter. 

Under the circumstances of this case, construing 

HRS § 432E-6(e) to allow the recovery of expert witness fees

incurred by Delos Santos as "costs" is consistent with the

liberal construction we must apply to fulfill the remedial

purpose of HRS § 432E-6(e). See Kalima, 111 Hawai#i at 100, 137

P.3d at 1006. Allowing expert witness fees to be recoverable as

costs is also consistent with the legislative purpose of Chapter

432E to protect the health and safety of patients and strengthen

their consumer rights through the external review procedure. 

See 1998 Haw. Sess. Laws Act 178, § 1 at 662; 1999 Haw. Sess.

Laws Act 137, § 1 at 440. A broader construction of the term

"costs," that does not categorically exclude expert witness fees,

is also consistent with the greater protection of an enrollee's

rights under Chapter 432E that we must apply under the conflictof-laws provision of HRS § 432E-2.

For the reasons set forth above, the Circuit Court and

the Commissioner erred in their legal conclusion that expert

witness fees are categorically excluded as "costs" under 

HRS § 432E-6(e). See United Pub. Workers, 106 Hawai#i at 363,

105 P.3d at 240.

IV. CONCLUSION

For the foregoing reasons, the May 4, 2017 Order

Dismissing Appeal and Affirming Commissioner's Order Awarding

Attorneys' Fees and Costs and the June 6, 2017 Final Judgment,

both filed by the Circuit Court of the First Circuit, are

vacated; and we remand to the Circuit Court with instructions to

remand to the Insurance Commissioner to consider, in the

Commissioner's discretion, the request for the subject attorney's 

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fees and expert costs under HRS § 432E-6(e) consistent with this

memorandum opinion.

DATED: Honolulu, Hawai#i, February 24, 2023.

On the briefs:

Rafael G. Del Castillo,

(Rafael Del Castillo &

Associates),

for Appellant-PetitionerAppellant.

Dianne Winter Brookins,

(Dentons US LLP),

for Appellee-RespondentAppellee Evercare.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Karen T. Nakasone

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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