MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 1 ME 28 Docket: Ken

- 20

- 163 Argued : February	9,	2021 Decided: May	1 3 ,	2021 Panel: MEAD, GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

STEPHEN	DOANE

v. DEPARTMENT	OF	HEALTH	AND	HUMAN	SERVICES

CONNORS ,	J. [¶1] Stephen Doane ,	MD, appeals	from	a judgment of	the	Superior	Court ( Kennebec	 County, Murphy, J. ) affirming ,	 pursuant to	 M.R.	 Civ.	 P.	 80C and 5 M.R.S.	 §	 11007(4)(A) (202 1 ) ,	 a	 decision	 by	 the	 Department	 of	 Health	 and Human	Services	excluding	him	from	participation	in	and	reimbursement	from Maine’s	Medicaid	program, MaineCare. We	affirm	the	decision	of	the	Superior
Court.
I. BACKGROUND [¶ 2 ] The	following	facts	are	drawn	from	the	Department’s	final	decision, which	adopted	the	findings	of	fact	made	by	the	presiding	hearing	officer	in	his recommended	 decision , and the	 procedural	 facts are taken	 from the court ’s2 record

. See Palian	 v.	 Dep’t	 of	 Health	 and	 Hum.	 Servs. ,	 2020	 ME	 131,	 ¶	 3,
242 A.3d 164

. A. The Board ’s 2015	Censure	Decision and 2012	Consent	Agreement [¶ 3 ] On	 March	 10,	 2015, Dr. Doane	 was	 censured	 by	 the	 Board	 of Licensure	 in	 Medicine b ased	 on his prescription	 practices	 leading	 up	 to	 the death ,	by	apparent	overdose, of a patient in May 2012

. 1 [¶ 4 ] Although	the	Board	voted	to	allow Dr. Doane	to	retain	his	medical license, it imposed	serious	restrictions	on his	ability	to	practice	medicine. He

was required to	have	a “ practice	monitor ” review	all of the cases	in	which	he prescribed	controlled	substances	and	report	to	the	Board	every	four months

. [¶ 5 ] These	restrictions were in	addition	to previous restrictions imposed by a 2012 consent agreement following	the	death	of a	different patient who ,	in 2011, had also died	 of	 an	 apparent d rug	 overdose. In	 entering	 th at consent agreement , Dr. Doane	 conceded that	 the	 conduct	 at	 issue , “ if	 proven,	 could

1 By	unanimous	vote,	the	Board	found	that	Dr.	Doane	had	failed	to	conduct	all required aspects for	 evaluation	 of	 the	 patient;	 failed	 to	 create	a	written	 treatment	 plan;	 failed	 to	 discuss with	 the patient the	 risks	 and	 benefits	 of	 the	 use	 of	 controlled	 substances;	 failed	 to	 implement	 a	 written agreement	outlining	patient	responsibilities,	including	urine/medication	serum	level	screening,	pill counts,	the	number	and	frequency	of	all	prescription	refills,	and the	reasons	for	which	drug	therapy would	 be	 discontinued;	 and	 failed	 to	 keep	 accurate	 and	 complete	 medical	 records.	 	 The	 Board unanimously	found that Dr.	Doane	demonstrated	incompetence	in	his	treatment	of	the	patient	and , by	a	five

- to
- one	vote , found	tha t	he	had	committed	unprofessional	conduct	by	failing	to	appropriately follow	up	on	and	respond	to	information	obtained	from	other	doctors	and	reporters,	as	well	as	from events	that	occurred	in	his	own	office , regarding	his	patient’s	overdose	on	the	medicat ions	that	he had	prescribed.3 constitute	grounds	for	discipline	and	the denial	of	his	application	to	renew	his Maine	 medical	 license	 for	 unprofessional	 conduct	 pursuant	 to	 32 M.R.S. § 3282

- A(2)(F).” 2 Pursuant	to th e	consent agreement,	among	other	things, he could “no	longer prescribe controlled	medications	for	pain,	including	all	opioids and	 benzodiazepines,	 except	 for	 patients	 in	 skilled	 nursing	 facilities	 or long

- term	care	 facilities,	patients	in	hospice	care,	or	patients	with	metastatic

cancer. ”
B. The	Department’s 2015 Decision	to Terminate Dr. Doane ’s Participation in	MaineCare [¶ 6 ] In	 a	 letter	 dated	 April	 9,	 2015, approximately one month	 after
Dr. Doane’s censure	and	the imposition	of additional restrictions	by	the	Board, the	Department	notified him that it was	terminating	his	participation	in	medical assistance	 programs, most	 significantly	 for	 this	 appeal, MaineCare. 3 The

2 The	 consent	 agreement	 recited	 that	 the	 Board	 had	 sufficient	 evidence	 from	 which	 it	 could conclude	that	Dr.	Doane	failed	to	adhere	to	the	Board’s	rules	on	the	use	of	controlled	substances	for treatment	 of	 pain	 by	 “failing	 to obtain	 patient	 A’s	 previous	 medical	 records	 prior	 to	 prescribing controlled	 medications	 to	 patient	 A;	 failing	 to	 access	 and	 review	 the	 [prescription	 monitoring program]	prior	to	prescribing	the	amount	and	dosage	of	controlled	medications	to	patient	A;	fail ing to	recall	the	telephone	message	regarding	patient	A	and	her	recent	hospitalization	and	accompanying respiratory	 distress	 prior	 to	 prescribing	 medications	 to	 patient	 A;	 and	 increasing	 the	 dosage (doubling),	frequency,	and	total	amount	(doubling)	of	narc otics	prescribed	to	patient	A	only	four	days after	 initially	 prescribing	 fifteen	 days’	 worth	 of	 narcotics	 to	 patient	 A,	 which	 was	 done	 without obtaining	patient	A’s	previous	medical	records	or	reviewing	the	[prescription	monitoring	program].”

3 Because	th e	basis	for	termination	was	grounded	in	state	and	federal	Medicaid	and	MaineCare regulations,	and	no	other	program	has	been	identified	by	the	parties	on	appeal,	we	do	not	discuss further	any	other	medical	assistance	programs.4 Department	stated that it took this action pursuant	to	the	MaineCare	Benefits Manual ,	 10

- 144	 C.M.R.	 ch.	 101, ch.	 I, §§	 1.03

- 6,	 1

. 19

- 1, 1.19

- 3	 (effective January 1, 201 4 ) , 4 and	 the “ authority	 granted [ to	 it ] in	 the	 Code	 of	 Federal Regulations

. ” The	 Department	 relied	 specifically	 on s ection	 1.19

- 1 (M),	 (O), and (R)	of	the Manual ,	which	provide s for	sanction s based	on	the	violation	of any	law,	regulation , or	code	of	ethics	governing	the	conduct	of	occupations	or professions	of	regulated	industries;	failure	to	meet	standard s required	by s tate or	 federal	 law	 for	 participation;	 and	 formal	 reprimand	 or	 censure	 by an association	of	the	provider’s	peers	for	unethic al practice s . See i d. §	1.19

- 1 (M), (O),	(R). 5 [¶ 7 ] Dr. Doane	requested an informal	review	of	the	termination	decision, which	 is the	 first	 step of the	 multi

- tiered	 framework	 for an administrative appeal under	 the Manual

. See id. §	 1.2 1 ; 6 Palian ,	 2020	 ME	 131,	 ¶	 5 , 242 A.3d 164

. T he	 Department	 affirmed	 its	 decision by a l e tter	 dated September 11, 2015.

4 The	location s of	 various	Ma ineCare Benefits Manual	 sections have changed	during	 the	 time relevant	to	this	appeal,	but	no	such	change s impact	this	appeal. The	parties	do	not	contend	that	any change s in	 the	Manual	affect	 our	 analysis.		 The	 relevant	sections	 are	 currently	located	at	 10

- 144 C.M.R.	ch.	101,	ch. I,	§§	1.03

- 10,	1.20

- 1,	1.20

- 3 (effective	Sept.	17,	2018).

5 Currently	located	at	10

- 144	C.M.R.	ch.	101,	ch.	I,	§	1.20

- 1 (M),	(O),	(R) (effective Sept. 1 7 ,	20 18 ).

6 Currently	located	at	10

- 144	C.M.R.	ch.	101,	ch.	I,	§	1.23	(effective	Sept.	17,	2018).5 C. Doane	I [¶ 8 ] On	September	23,	2015, Dr. Doane	filed	a	complaint	in	the	Superior Court	seeking	a declaratory	judgment	that	the	Department	lacked	jurisdiction to	 terminate	 his	 MaineCare	 participation and contending that	 the	 District
Court

— not	 the	 Department

— ha d exclusive	 jurisdiction	 over	 licensing decisions pursuant	 to	 4	 M.R.S.	 §	 152(9) (202 1 ) and M.R. Civ. P

. 80G

. The Superior	Court	agreed with	Dr.	Doane	that the	Department	lacked	jurisdict i on , and	 t he	 Department’s	 administrative	 proceedings	 were	 stayed	 pending	 the resolution	of the Department’s appeal of	the	Superior	Court’s	decision

. Doane

v. D ep’t of	Health	&	Hum

. Servs

. , No.	CV

- 15

- 168, 2016	Me.	Super.	LEXIS	125,	at *3 (June	30,	2016). [¶ 9 ] On	appeal,	w e rul ed that	the Department had jurisdiction

. See Doane v.	Dep’t	of	Health	&	Hum.	Servs. , 2017	ME	193,	¶ ¶	31

- 32,	170	A.3d	269	( Doane I )

. In so	 concluding,	 we	 noted “ the	 functional	 distinctions	 between	 a	 [Board] license	 revocation	 and	 a	 [Department]	 termination	 of	 participation	 in	 a program	through	a	provider	agreement.” Id. ¶ 29

. D. Further	Administrative	and	Judicial Review of	the	Department’s Decision [¶1 0 ] With	 the	 administrative	 process	 revived after the issuance	 of
Doane I , in	 2018, the presiding officer	 for	 the	 Department issued	 his6 recommend ation	following	an	evidentiary	hearing that	had	been held	in	2016 prior	to	the	stay. In	his	finding s of	fact,	the presiding o fficer	acknowledged	the Board’s previous findings	of	ser i ous	professional	deficiencies but nevertheless recommended	reversal	of	the	Department’s	decision	to	terminate	Dr.	Doane’s part icipation	in	MaineCare. [¶1 1 ] The	 acting	 Commissioner disagreed	 with	 the	 presiding	 officer ’s recommendation

. I n	 a	 decision	 dated	 October	 10,	 201 8 , the	 acting Commissioner	stated: I	hereby	adopt	 the	 findings	 of	 fact	but	 I	do	NOT	accept	 the Recommendation	of	 the	Hearing	Officer. Instead,	 for	 the	reasons set	 forth	 below,	 I	 find	 that	 the	 Department	 was	 correct	 when	 it terminated	 Stephen	 Doane,	 M.D.,	 from	 participation	 in	 the MaineCare program. Pursuant	 to	 the	 MaineCare	 Benefits	 Manual,	 Chapter	 I, section	 1.19

- 2(A),	 the	 Department	 has	 independent	 authority	 to exclude	 a	 provider	 from	participation	in	 the	MaineCare	program based	 on	 its	 consideration	 of	 factors	 set	 forth	 in section 1.19

- 3 (A)(1). This	authority	arises	out	of	the	Department’s administration	 of	 the	 MaineCare	 program	 which	 provides reimbursement	 for	 medical	 services	 provided	 to	 vulnerable low

- income,	disabled,	and	high

- risk	populations. The	Department properly	 exercised	 its authority	 to	 exclude	 Dr.	 Doane	 from participation	in	the	MaineCare	population	by	basing	the	exclusion on	 the	undisputed	 serious	and	multiple	incidents	 of	professional incompetence	by	Dr.	Doane	over	an	extended	period	of	time	as	set forth	 in	 [the	 Board’s	 ce nsure	 decision	 and	 preceding	 consent agreement ]

.7 [¶1 2 ] On	November	9,	2018, Dr. Doane	filed	a Rule 80C	petition	in	the Superior	Court.		The	court	affirmed	the Department ’s decision , and Dr. Doane timely	appeal ed

. See 5 M.R.S.	§	1 1008 (202 1 );	M.R.	App. P.	2B(c).
II. DISCUSSION [¶1 3 ] Dr. Doane argues	 the	 following : ( 1 )	 the	 Legislature	 did	 not articulate	sufficient	guidance	when	it	delegated	authority	to	the	Department	to regulate	MaineCare	 pursuant	 to	 22	M.R.S.	 §	 42	 (202 1 )	 and	 22	M.R.S.	 §	 3173 (202 1 );	 ( 2 )	 the Department’s	 decision	 to	 exclude	 him	 is	 precluded	 by	 the Board’s	 decision not to withdraw or	 suspend his	 license ; ( 3 ) there	 was insufficient	 evidence	 to	 support	 the	Department’s final decision;	 and	 ( 4 )	 the acting	Commissioner provided	insufficient	r easoning	for her decision. [¶1 4 ] We	disagree.
A. Standard	of	Review [¶1 5 ] “When	 the	 Superior	 Court	 acts	 in	 an	 intermediate	 appellate capacity	 pursuant	 to	M.R.	Civ.	P.	80C, we review	 the	 administrative	agency ’ s decision	 directly	 for	 errors	 of	 law,	 abuse of	 discretion,	 or	 findings	 not supported	by	substantial	evidence	in	the	record. ” Manirakiza	v.	Dep’t	of	Health
&	Hum.	Servs. ,	2018	ME	10,	¶	7,	177	A.3d	1264	(quotation	marks	omitted). “ We review	questions	of	law	de	novo, ” Palian ,	2020	ME	131,	¶	10, 242 A .3d 164 , but8 we	will not	substitute	our	judgment	for	that	of	the	Department , Angle Z Be hav

. Health	Serv s

.	v. Dep’t	of	Health & Hum.	Servs. ,	2020	ME	26,	¶	12 ,	226	A.3d	762.
B. Vagueness and Excessive	Delegation [¶1 6 ] Dr. Doane first argues that	 the	 statut es authorizing	 the Department ’ s	 action are insufficiently	 specific. This argument	 invokes	 two constitutional	doctrines

— that	a	statute	is	void	if	it	is	too	vague	or	if	it	delegates too	much	authority	to	the	administering	body.		While	these	concepts overlap, see	 Uliano	 v.	 Bd.	 of	 Env ’t Prot. ,	 2009	 ME	 89,	 ¶	 15,	 977 A.2d 400, they have different	sources	of	authority	and	emphases. [¶1 7 ] A goal	of	both	doctrines	is	to	avoid	arbitrary	decision

- making. See
Lentine	v. Town	of St.	George ,	599	A.2d	76, 78	(Me.	1991) ; Superintending	Sch

. Comm

. v.	 Bangor	 Educ.	 Ass ’n

. ,	 433	 A.2d	 383,	 387 (Me.	 1981).	 	 A “void	 for vagueness”	claim	is	based	on the due	process	protections	set	forth	in	the United
States and	Maine	Constitutions and focuses	 on the	need	 for adequate notice.
See Town	of	Baldwin	v.	Carter ,	2002	ME	52,	¶	10,	794	A.2d	62 ( “ [T] hose	subject to	 sanction	 by	law [must] be	 given	 fair	 notice	 of	 the	 standard	 of	 conduct	 to which	 they	 can	 be	 held	 accountable

. ” (quotation	 marks	 omitted) )

. An “excessive	delegation”	claim is bas ed	on	the	separation	of	powers	clause	of	the
Maine	Constitution , which preclude s a	 statutory delegation to a regulator	 so9 broad	or	amorphous that	it amount s to	a	surrender of legislative	authority	to the e xecutive b ranch. See Me. Const.	art.	III	§	2 ; Lewis	v. Dep’t of	Hu m. Servs

. , 433	 A.2d	 743,	 747	 (Me.	 1981)	 (“ We	 have	 consistently	 endorsed	 the fundamental	 constitutional	 requirement	 that	 legislation	 delegating discretionary	 authority	 to	 administrative	 agencies	 must	 contain	 standards sufficient	to	guide administrative	action .”)

. [¶1 8 ] Here, Dr. Doan e does	not	complain	that	he	lacked	notice	as	to the type of	conduct	that would expose	him	to sanctions ,	including termination from participation	in MaineCare. The	Department	regulations	and	Manual	are	clear. Rather,	 he argues that	 the	 authorizing	 statutes	 are	 too	 broad ,	 so	 that	 the Department	 improperly acted	 in a	 legislative capacity when	 it	 issued its regulations. We	therefore	analyze	his	claim	as	asserting excessive	delegation. [¶1 9 ] Dr.	Doane is	correct in	noting that the language contained in	the authorizing	statutes	is	broad. Title	22	M.R.S.	§	42 (1) provides: The	 department	 shall	 issue	 rules	 and	 regulations	 considered necessary	and	proper	for	the	protec tion	of	life,	health	and	welfare, and	the	successful	operation	of	the	health	and	welfare	laws. The rules	 and	 regulations	 shall	 be	 adopted	 pursuant	 to	 the requirements	of	the	Maine	Administrative	Procedure	Act. Title 22	M.R.S.	§	3173 provides , in	relevant	part: The	 department	 is	 authorized	 to	 administer	 programs	 of	 aid, medical	 or	 remedial	 care	 and	 services	 for	 medically	 indigent10 persons [,] [and] .	.	.	[t] he	department	is	authorized	and	empowered to	 make	 all	 necessary	 rules	 and	 regulations	 con sistent	 with	 the laws	 of	 the	 State	 for	 the	 administration	 of	 these	 programs including,	but	not	limited	 to,	establishing	conditions	 of	eligibility and	types	and	amounts	of	aid	to	be	provided,	and	defining	the	term “medically	indigent,”	and	the	type	of	medic al	care	to	be	provided. [¶ 20 ] At	 first	 blush,	 these	 statutes	 seem	 to	 provide	 few	 limits	 on	 the Department’s	ability	to	enact	whatever	regulations	it	might	choose,	triggering
excessive

- delegation	 concerns.	 	 But a	 more	 in

- depth review shows	 that sufficient limitations	and	safeguards	are	in	place	for	the	statutory	framework to	pass	constitutional	muster. [¶ 21 ] We	 start	 with	 the	 premise	 that w hen	 evaluating	 the constitutionality	of	a	statute we “will,	if	possible,	construe	 [it]	to	preserve	its constitutionality. ” Friends	of	Me. ’ s	Mountains.	v.	Bd.	of	Env ’t Prot. ,	2013	ME	25, ¶	21,	61	A.3d	689	(quotation	marks	omitted). [¶ 22 ] Greater	 flexibility	is	 also	 allowed	with	 respect to delegations	 of authority to	state	agencies by	the	acts	of	the	Legislature	than to delegations of authority	to	boards	and	committees	by	municipalities

. See Uliano , 2009	ME	89, ¶	26,	977	A.2d	400.		This	is	because the	“state’s	delegation	of	authority	to	an executive	agency	.	.	.	is	subject	to	the	Maine	Administrative	Procedure	Act [APA] and	 its	 procedural	 protections.” Id. In Uliano , we noted that	 because	 the Department	 of	 Environmental	 Protection	 is	 required	 to	 promulgate	 rules11 complying	with the APA that a re “ subject	 to	 public	 notice,	modification,	 and judicial	 review,” these	 regulatory	 processes provided significant	 protection against	abuse. Id. ¶	28; see	also Bangor	Educ.	Ass ’n , 433 A.2d	at	387	(“Especially where	it	would	not	be	feasible	for	the	Legislature	to	supply	precise	standards, the	presence	of	adequate	procedural	safeguards	may	be	properly	considered	in resolving	 the	constitutionality	of	 the	delegation	of	power.”); State	v.	Bo ynton , 379	 A.2d	 994,	 995	 (Me.	 1977)	 (“ [T] he	 presence	 of	 adequate	 procedural safeguards	 to	 protect	 against	 an	 abuse	 of	 discretion	 by	 those	 to	 whom	 the power	 is	 delegated	 compensates	 substantially	 for	 the	 want	 of	 precise guidelines	and	may	be	properly	consid ered	in	resolving	the	constitutionality	of the	 delegation	 of	 power

. ”)

. The	 possibility	 of	 arbitrary	 administrative decision

- making	common	to	both	void

- for

- vagueness	and	excessive

- delegation concerns	is	assuaged	by	the	formal	APA	rulemaking	process. [¶ 23 ] Also, because the	 subject matter of	 th e regulation at	issue	 here concerns	public	health	and	safety,	a	wide	amount	of rulemaking latitude may be	necessary. See	Kovack	v.	Licensing	Bd. , 157	Me.	411,	418, 173 A.2d	554 ,	558 ( 1961)	 ( “As	 compared	 to	 a	 delegation	 of	 authority	 to	 regulate	 businesses generally,	 the [L] egislature	 may	 be	 less	 restricted	 when	 it	 seeks	 to	 delegate authority	 of	 a	 legislative	 nature	 to	 an	 administrative	 body	 created	 for	 a12 particular	 purpose,	 such	 as	 the	 care	 of public	 health.”	 ( quotation	 marks omitted ) )

. This	 point	 is	 driven	 home	 by	 two	 decisions rejecting	 an
excessive

- delegation	claim	involving	22	M.R.S.	§	42. See Lewis , 433 A.2d 743 ; Ne. Occupational Exch., Inc. v. State ,	540 A.2d	1115	(Me.	1988)

. [¶ 24 ] In Lewis ,	 the	 plaintiff	 contended	 that	 the	 absence	 of	 specific standards	within	 the	enabling	legislation,	section	42, made	 the	Department’s adoption of	the	Maine	State	Plumbing	Code	an	unconstitutional	delegation	of authority. 433	 A.2d at 746

. In rejecting	 th at argument ,	 we	 considered	 the entire	 legislative	 scheme,	 noting	 “that	 the	 Department	 of	 Human	 Services	 is charged	with	 the general responsibility	 of	supervising	 the	interests	of	health and	 life	 of	 the	 citizens	 of	 the	 State ” and	 that	 “[s]uch	 re sponsibility	 quite obviously	 includes	 the	 prevention	 and	 control	 of	 disease	 and	 irresponsible human	 waste	 disposal.” Id. at 746

- 47 (quotation	 marks	 omitted)

. The delegation	 of	authority	 to	promulgate	plumbing	and	 sewage	 regulations	was constitutional	bec ause	it	was	contained	within	a	general	statutory	scheme,	was confined	to	a	clearly	defined	area,	and resulted	in regulations that were	limited to	 what	 was	 necessary	 and	 proper. Id. at	 747

- 48.	 	 We concluded that a legislative	delegation	is	not	excessive wh en	“the	legislation	clearly	reveals	the purpose	 to	 be	 served	 by	 the	 regulations,	 explicitly	 defines	 what	 can	 be13 regulated	for	that	purpose,	and	suggests	the	appropriate	degree	of	regulation.” Id. at 748

. [¶ 25 ] In Northeast	 Occupational	 Exchange , we	 applied this three

- part test	from Lewis to	decide	whether	the	Community	Mental	Health	Services	Act,
34

- B M.R.S.	 §§	 3601

- 36 06 ( 1988 ) , was	 an	 unconstitutional	 delegation of authority .		540 A.2d at 1 1 16

- 1 7

. We rejected	the	claim that	the	delegation	was unconstitutional ,	reasoning that	the	clear	purpose	of	the A ct	was	“to	encourage an	increased	availability	of	and	participation	in	local	community	mental	health services” ; the A ct	clearly	defined	the	services	that	could	be	regulated for	that
purpose ; and , because the	rules promulgated	under	the A ct were	subject	to	the
A PA , there	was an	appropriate	degree	of	regulation to compensate	for	the	lack of	precise	guidelines. Id. [¶ 26 ] In	the instant case ,	t he	latitude that	the L egislature	has bestowed upon	the	Department	is further informed	by	MaineCare’s	role	within	the federal Medi c aid	framework. As	the Manual notes ,	“The	Maine	Department	of	Health and	 Human	 Services

. . . is	 responsible	 for	 administering	 MaineCare	 in compliance	 with	 Federal	 and	 State	 statutes [] and	 administrative	 policies.”
10

- 144 C.M.R.	 ch. 101, ch.	 I, § 1.02

- 1 (effective	 Sept.	 17,	 2018). The	 federal government	 appropriates	 money	 to	Maine	 to	 furnish	 medical,	 rehabilitation,14 and	other	assistance	“on behalf	of	families	with	dependent	children	and	of	aged, blind,	or	disabled	individuals,	whose	income	resources	are	insufficient	to	meet the	costs	of	necessary	medical	services.”		42 U.S.C.S.	§ 1396

- 1	(LEXIS	through Pub.	L.	No.	11 6

- 3 44 ).		Maine	must	adhere to	federal	requirements	for	the	use	of the	 appropriated	 funds. See 42	 U.S.C.S.	 § 1396a (LEXIS	 through	 Pub.	 L.	 No.
11 6

- 3 44 )

. For	instance,	federal	law	requires	Maine	to	“comply	with	provider and	 supplier	 screening,	 oversight,	 and	 reporting	 requirements,” id. § 1396a(a)(77),	 (kk),	 and	 to	 notify	 the	 Secretary	 of	 Health	 and	 Human Services	and	the	state	licensing	board	“whenever	a	provider	of	services	or	any other	person	is	terminated,	suspended,	or	otherwise	sanctioned	or	prohibited from	participating	under	 t he	State	plan,” id. §	1396a(a)(41). As	we	noted	in
Doane	I : S ome	 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	 M edicaid	 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)).15 2017	ME	193,	¶	22 , 170	A.3d	269 (emphasis	in	original)

. 7 [¶ 27 ] In	sum,	while	the amount	of	discretion	the	Legislature	can	bestow upon	a	state	agency	is	not	boundless,	latitude	must	be	given	in	areas	whe re the statutory	enactment	of	detailed	specific	standards	is	unworkable. When	the subject	matter	is public	health, agency regulations are subject	to	APA	review, and the	s cope	of the	regulatory authority is limited by	context,	purpose,	and	a comprehensive federal	 regulatory	 regime

. Department	 regulations	 that	 call for	 potential	 exclusion	 from	 a	 medical	 assistance	 program	 based	 on incompe tence	and	failure	to	comport	with	professional	standards	should	not surprise	a physician

- participant	and	fall	squarely	within	the goals articulated by	the	Legislature in	the	authorizing	statutes for	the	protection	of	life,	health , and	welfare ; the	successful	operation	of	the	health	and	welfare	laws ; and safe care	for the medi c ally	indigent population

. See 22	M.R.S.	§	42 (1)

.

7 By	federal	law,	generally	speaking,	individuals	eligible	for	medical	assistance	under	Medicaid may	choose	any	“qualified”	provider.		42	U.S.C. S. § 1396a(a ) (23)	(LEXIS	through	Pub. L. No. 116

- 344). The	definition	of	“qualified”	is	not	included	in	the	federal	statute.		Federal	regulatio ns provide	that s tates	 may	 set	 “reasonable	 standards	 relating	 to	 the	 qualifications	 of	 providers,”	 42 C.F.R. § 431.51(c)(2)	( 2019 ),	and	“qualified”	is	interpreted	to	mean	capab le of	performing	needed	medical services	in	a	professionally	competent,	safe,	legal,	and	ethical	manner , Planned	Parenthood	of	Ind. Inc. v.	 Comm’r	 of	 the	 Ind.	 State	Dep’t	 of	Health ,	 699	 F.3d 962,	 978	 (7th Cir. 2012). Thus, s tates	 have “considerable	 discretion”	 in	 establishing	 qualifications	 based	 on	 professional	 competency	 and patient	care. Planned	Parenthood	of	Kan.	&	Mid

- Missouri	v.	Andersen ,	882	F.3d	1205,	1230	(10th	Cir. 2018); see	also Dube	v.	Dep’t	of	Health & Hum.	Servs. ,	97	A.3d	241,	248	( N.H. 2014)	(noting	that s tates have	“considerable	authority”	to	establish	qualifications).16 C. Issue	Preclusion [¶ 2 8 ] Dr. Doane next contends	 that the	 Board	 made	 a factual determination that he was	 competent	 and	 met	 minimum professional standards ; that	the	Department	must	accept	this	finding ; and	that	the	finding requires	 the	 Department	 to	 continue	 his	 participation	 in	 MaineCare

. This argument	misapprehends	the distinct roles	played	by	the	two agencies. [¶ 2 9 ] We review de	 novo whether issue	 preclusion , also	 known	 as collateral	estoppel, applies to	the	Board’s	decision

. Portland	Water	Dist.	v.	To w n of	 Standish ,	 2008	 ME	 23,	 ¶	 7,	 940	 A.2d	 1097. The	 doctrine “ prevents	 the relitigation	 of	 factual	 issues	 already	 decided	 if	 the	 identical	 issue	 was determined	 by	 a	 prior	 final	 judgment,	 and	 the	 party	 estopped	 had	 a	 fair opportunity	and	incentive	 to	litigate	 the	issue	in	a	prior	proceeding.” Id. ¶	9 (quotation	marks omitted). The	doctrine	can appl y to	administrative	agencies.
See Fitanides	 v.	 Perry, 537 A.2d 1139,	 1140	 (Me.	 1988) (“Absent	 a	 specific contrary	statutory	provision,	an	adjudicative	determination	of	a	legal	or	factual issue	by	an	administrative	tribunal has	the	same	effect	of	issue	preclusion	as	a court	judgment	if	the	administrative	proceeding	resulting	in	that	determination entailed	 the	essential	elements	 of	adjudication.” (quotation	marks	 omitted) ).
Th e Restatement	(Second)	of	Judgments	§	36 cmt. f	( Am.	L.	Inst.	1982) notes ,17 however, that	 “ a	 prior	 determination	 that	 is	 binding	 on	 one	 agency	 and	 its officials	may	not	be	binding	on	another	agency	and	its	officials

.	.	. [ i ] f the	second action	involves	an	agency	or	official	whose	functions	and responsibilities	are	so distinct	 from	 those	 of	 the	 agency	 or	 official	 in	 the	 first	 action	 that	 applying preclusion	would	interfere	with	the	proper	allocation	of	authority	between [ the two	agencies ] .” [¶ 30 ] Applying	these	principles here, we	conclude	that the Department and the Board	serve	distinct	functions	and that the	issue	decided	by	the	Board was	not	identical	to	that	before	the	Department.
1. Distinct	Functions [¶ 3 1 ] We	noted	t he	differences	between	the	functions	of	the	Board	and the Department	in Doane	I , 2017	ME	193,	¶	29 ,	170	A.3d	269

. T he	Board	is	a licensing	authority.		It	is composed	primarily	of	physicians, see 32	M.R.S.	§	3263 (202 1 ) , sets	standards	of	practice	for	physicians , and	investigates	complaints ,

see 32	 M.R.S.	 §	 3269	 (202 1 ). I ts	 investigations of	 complaints can	 result	 in
various restrictions on	a	physician’s	license	or in consent	agreements ,	which

are designed both to	protect	the	general	public	and to rehabilitate	or	educate the	licensee. See 32	M.R.S.	§ 3282

- A (1) (202 1 )

.18 [¶ 3 2 ] In	 contrast,	 the	 Department is	 a	 procurer	 of	 services.	 	 It administers	the	Medicaid	program,	among	other activities ,	and	is	“authorized to	 administer	 programs	 of	 aid,	 medical	 or	 remedial	 care	 and	 services	 for medically	indigent	persons.”		22	M.R.S.	§	3173. “To	implement	the MaineCare program,	 the	 Department	 contracts	 with	 health	 care	 providers,	 who	 bill	 the Department for MaineCare

- covered	 services	 pursuant	 to	 the	 terms	 of	 those contracts,	 Department	 regulations,	 and	 federal	 law.” Angle Z Behav

. Health
Servs

. , 2020	ME	26,	¶	2,	226	A.3d	762; see 42	U

. S

. C

. S

. §	1396a	(LEXIS	through Pub.	L. No. 116

- 344 )

. [¶ 3 3 ] As	we	held	in Doane	I , the	Board’s licensing function is	not	the	same as	the	Department’s procurement function

. 2017	ME	193 , ¶	16 , 170	A.3d	269. We	noted	that “the	dispute [in Doane	I ] focuse [d] not	on	Doane’s	medical	license but	 on	 his	 capacity	 to	 participate	in	 and	 receive	 compensation	 from	Maine’s Medicaid	 program,	 MaineCare

. ” Id. The state exercises	 its	 police	 power	 to regulate	 the	 medical	 profession	 on	 behalf	 of	 the	 general	 public through the Board’s	 professional	licensing. Id. ¶	 29. The	Department’s	 decision

- making relates	 only	 to	 those	 citizens	 receiving	 services	 through MaineCare ,	 and	 in keeping	with that	goal, making	 the	best	use	 of	 state	 funds	 received	 from	 the federal	government. Id

. ¶¶	29

- 30.19 2. Different Issues [¶ 3 4 ] Dr. Doane next argues that in	order	to	determine that	he was	fit	to practice	medicine,	“the	[Board]	necessarily	had	to	conclude	that	in	2015,	he	was a	‘competent	and	honest	practitioner’	who	satisfied	the	‘minimum standards	of proficiency	in	the	[medical]	profession.’” To	support	this	proposition,	he	cite s 10	M.R.S.	§	8008	(202 1 ),	which	provides: The	 sole	 purpose	 of	 an	 occupational	 and	 professional regulatory	 board	 is	 to	 protect	 the	 public	 health	 and	 welfare. A board	carries	out	this	purpose	by	ensuring	that	the	public	is	served by	 competent	 and	 honest	 practitioners	 and	 by	 establishing minimum	standards	of	proficiency	in	the	regulated	professions	by examining,	 licensing,	 regulating	 and	 disciplining	 practitioner s	 of those	 regulated	 professions. Other	 goals	 or	 objectives	 may	 not supersede	this	purpose. [¶ 3 5 ] As	a	 threshold	matter,	 t he	Board’s	censure	decision	includes	no affirmative or express	finding	that Dr. Doane	is	fit	to	serve	any	population,	let alone	the constituency	served	under	MaineCare. The	Board	specifically	found that Dr. Doane	demonstrated	incompetence	in	his	opioid	pr e scription	practice and	 imposed	 sanctions,	 although	 not	 the	 sanction	 of	 license	 revocation. Although we can	 reasonably infer	 that the	 Board	 implicitly	 concluded that
Dr. Doane could m e et	 minimum	 standards	 of	 proficiency with	 monitoring , frequent	reporting , and a practice limited to certain	discrete	populations ,	t his20 implicit	 finding	 is	 not an	 issue	 identical to	 the Department ’s determination whether to	continue a	physician’s participation	in MaineCare

. [¶ 3 6 ] The	 Manual	 lists the grounds	 for	 sanctioning	 a	 MaineCare provider. See 10

- 144	 C.M.R.	 ch. 101, ch.	 I, §§	 1.19

- 1(A )

– (Y)	 (effective Feb

. 1 3 , 201 1 ). 8 Most	 of	 these	grounds	 for	sanction	do	not	involve failure	 to meet	minimum	standards	of	proficiency. See , e.g. , i d. §	1.19

- 1(A)	(fraudulent claims	 for	 services); i d. §	 1.19

- 1(D)	 (failing	 to	 retain	 or	 disclose	 records	 of services	provided	to	MaineCare	members). This	is	because,	as	noted	above,	t he Department	is	concerned	with	risks	to	the	program	as	well	as risks to the health and	safety	of	the specific	population	it serves. G rounds for	termination cited	in the	 Department’s	 termination	 decision, s ection	 1.19

- 1 (M),	 and	 (R)	 of	 the Manual ,	 were	 met: Dr. Doan e violated	 the	 standards	 of	 his	 profession	 and suffered	formal	censure. The	sanctions	available	to	the	Department	are	listed in	 its	 regulations,	 and in	 determining	 which	 sanctions	 to	 impose,	 the Department may	consider	 factors	 such	 as	 the	 seriousness	 of	 the	 offense,	 the extent	 of	 violations, the history	 of	 prior	 violations,	 an d	 consideration	 of whether	a	lesser	sanction would be	sufficient	to	remedy	the	problem,	among

8 This	 provision	 is	 currently	 located	 at	 10

- 144	 C.M.R.	 ch.	 101,	 ch.	 I,	 §	 1.20

- 1	 (effective Sept. 17, 2018 ).21 other	factors.		10

- 144	C.M.R.	ch. 101,	ch.	I,	§	1.19

- 3	(A)(1)(a)

– (c),	(g)	( effective Feb

. 13,	2011 ). 9 Irrespective	of	any	implicit	Board	finding	that ,	with practice limitations, Dr. Doane	met	minimum	standards	for	serving	certain	populations , from	 the	perspective	 of	 the	interests	and	 regulations ,	both	 state	and	 federal, governing the Department ’s administration	of	MaineCare, Dr. Doane fell	below the Departmen t ’s standards	 such	 that it	 could	 choose	 to	 terminate	 him. Although ensuring	professional	competency	is an important consideration in the	decision

- making of both	the	Board	and	the	Department,	the agencies may make different	 determinations	in	 accordance	wit h	 their	 own	 standards. See Grant’s	Farm	Assocs

. ,	Inc.	v. Town	of Kittery , 554 A.2d	799,	803	(Me.	1989)	(“It	is therefore	 often	 the	case	 that	 an	applicant

. . . must	 simultaneously	persuade different	agencies	that	the	same	or	similar	standards	are	met

. ” ( citing Larrivee
v.	Timmons , 549	A.2d	744,	747

- 48	(Me. 1988) ))

. D. Substantial	Evidence [¶ 3 7 ] The	 Department terminated	 Dr.	 Doane’s	 participation	 in
MaineCare based	on	“undisputed	serious	and	multiple	incidents	of	professional incompetence	 by	 Dr.	 Doane	 over	 an	 extended	 period	 of	 time.” Dr. Doane

9 This	 provision	 is	 currently	 located	 at	 10

- 144	 C.M.R.	 ch.	 101,	 ch.	 I,	 §	 1.20

- 3 (effective Sept. 17, 2018).22 contends that	 this	 determination	was	not	 supported	by	 substantial	evidence and constituted an	abuse	of	the	Departmen t’s	discretion because the evidence presented at the	Department’s	hearing	did	not	 show that he	currently	poses any	risk	to	MaineCare	patients. [¶ 3 8 ] We review	an	“administrative	agency’s	decision	directly	for	legal errors,	 abuse	 of	 discretion,	 or	 unsupported	 factual	 findings.” Forest	 Ecology Network	v.	Land	Use	Regul.	Comm’n ,	2012	ME	36,	¶	28,	39	A.3d	74	(quotation marks	 omitted).	 	 In	 conducting	 such	 a review, we “do [] not	 substitute [our] judgment	 for	 that	 of	 an	 agency	 and	 must	 affirm	 findings	 of	 fact	 if	 they	 are supported	by	substantial	evidence	in	the	record.” Int’l	Paper	Co.	v.	Bd. of	Env’t
Prot. ,	1999	ME	135,	¶ 29,	737	A.2d	1047.		“Substantial	evid ence	exists	when	a reasonable	 mind	 would	 rely	 on	 that	 evidence	 as	 sufficient	 support	 for	 a conclusion. ” Richard	 v.	 Sec ’ y	 of	 State ,	 2018	 ME	 122,	 ¶	 21,	 192	 A.3d	 611 (quotation	marks	 omitted).	 	 “Upon	 review	 of	 an	 agency ’ s	 findings	 of	 fact	we must	examine	 the entire	record	 to	determine	whether,	on	 the	basis	of	all	 the testimony	and	exhibits	before	it,	the	agency	could	fairly	and	reasonably	find	the facts	as	it	did.” Friends	of	Lincoln	Lakes	v.	Bd.	of	Env’t	Prot. , 2010	ME	18,	¶ 13, 989	A.2d	1128 (quotation	marks	omitted)

.23 [¶ 3 9 ] The	Department	based	its	decision	to	exclude Dr. Doane from	the MaineCare	program on	its	determination	that	serious	incidents	of	professional incompetence occurred over	an	extended	period	of	time. This	conduct	related
t o	Dr.	Doane’s	treatment	of	a	patient	between	2003

- 201 2 ,	with	particular	focus on	events	in	2012	leading	up	to	his	patient’s	overdose. The presiding officer found ,	 as	 the Board	 had previously, that Dr. Doane	 had	 “committed unprofessional	conduct,” “demonstrated	incompetence	in	his	 treatment”	 of	a patient	 who	 “died	 of	 oxycodone	 and	 cyclobenzaprine	 intoxication,”	 and “violated	 Board	 Rule	 Chapter	 21,	 Section	 III,	 governing	 the	 use	 of	 controlled substances	for	the	treatment	of	pain ” with	regard	to	the	s ame	patient	who	died of	an	overdose.		The presiding officer’s	findings	of	fact,	which the Department adopted in	 its	 final	 decision ,	 were	 supported	 by	 the	 testimony	 of the Department ’s audit	 program	 manager , who	 issued	 the	 initial	 April	 2015 decision	exclud ing Dr. Doane	from	MaineCare. [¶ 40 ] The Department’s	 audit program	 manager testified	 about	 the Board’s	investigation	into Dr. Doane’s	prescription	practices	leading	up	to	the death	 of	 his	 patient. He testified	 that Dr. Doane’s	 patient	 had	 been	 to	 the emergency	room	twice as	a	result	of opiate	overdoses and that an	emergency room	doctor	treating	the	patient	had	informed	one	of Dr. Doane’s	partners	that24 the	 patient	 was	 overmedicated	 and	 was	 taking	 opiates	 at	 dangerous	 leve ls. Instead	of	reducing	the	patient’s	medication	as	the	emergency	room	doctor	had recommended, Dr. Doane	increased	the number of	pills	he	was	prescribing	to his	patient. The	Department’s	witness testified	that Dr. Doane’s	patient	died	on May	19,	2012,	in an	accidental	death	relating	to	“ [o] xy	and	[ c yclobenzaprine] intoxication.” He further	 testified	 that	 the	 Board	 found	 that	 the	 opiate

treatment Dr. Doane	provided	for	his	patient	demonstrated	poor	judgment	and “decision

- making	regarding	prescriptions	tha t	were	well	outside	the	standard of	care.” [¶ 4 1 ] Based	on	th is	evidence , the	Department	was	not	compelled	to	find that	it	could	not terminate Dr. Doane

. See	Friends	of	Lincoln	Lakes , 2010	ME	18, ¶ 14 , 989	A.2d	1128 (“The ‘ substantial	evidence ’ standard	does	not	involve	any weighing	of	the	merits	of	evidence. Instead	it	requires	us	to	determine	whether there	is	any	competent	evidence	in	the	record	to	support	a	finding.”)

. [¶ 4 2 ] In	the	end, Dr. Doane	is	not	contesting	the Department’s findings

— he	acknowledges that his conduct	fell	below	professional	standards and does not	 dispute	 that	 the	 Board	 censured	 him

— a	 basis	 for the Department ’s sanction	in	its	own	right. Instead,	as he argued	with	respect	to issue	preclusion, he asserts that	 because	 the	 Board	 did	 not revoke his	 license based	 on his25 conduct ,	 the	 Department	 cannot	 terminate	 his	 participation	 in	 MaineCare based	on	the	same conduct .		But	not	only do	these	two	agencies	have	different functions, just	 as	 we	 do	 not	 substitute	 ou r	 judgment	 for an administrative decision

- maker,	one	agency	is	entitled	to	reach	a	different	conclusion	based	on the	 same or	 similar evidence	 presented	 to	 another	 agency,	 as	 long	 as	 both conclusions	are	supported	by	the record evidence. The	Board	determin ed	that the	appropriate	action to	 take as	 to Dr. Doane’s	license	based	on	his	conduct

w as to	assign	him	a	practice monit or and impose limitations on his	practice

. T he	 Department	 determined	 that	 the	 appropriate	 action	 regarding	 his participation	 in	 MaineCare	 was	 termination. Each agency acted	 within	 the bounds	of	its discretion

. E. Sufficient Findings and	Conclusions [¶ 4 3 ] Finally, Dr. Doane	 contends	 that	 the	 decision	 issued	 by	 the Department	violates	the APA because	it	does	not	include	sufficient	findings	of fact

. See 5	M.R.S.	§	9061	(202 1 )	( “ Every	agency	decision	made	at	the	conclusion of	an	adjudicatory	proceeding	shall	be	in	writing or	stated	in	 the	record,	and shall	include	findings	of	fact	sufficient	to	apprise	the	parties	and	any	interested member	 of	 the	public	 of	 the	basis	 for	 the	decision .” )

. The	presiding	 officer’s factual	 findings	 were	 comprehensive, and the	 acting	 Commission er	 adopted26 the m in	toto. Dr. Doane argu es that	the	acting	Commissioner’s	explanation	as to	why	she	imposed	 the	sanction	of	 termination	based	on	 those	 findings	w as
too	terse. [¶ 4 4 ] T he a cting	Commissioner’s explanation w as concise,	not	deficient. She noted	 that	 she accepted	 the presiding	 officer’s fact

- finding, which	 was based	in	turn	on	much	of	the	Board’s fact

- finding , and stat ed that her decision

was due	 to “the	 undisputed	 serious	 and	 multiple	 incidents	 of	 professional incompetence	by	Dr.	Doane	over	an	extended	period	of	time	as	set	forth	in ”	the Board ’s censure	 decision	 and	 consent	 agreement. The	 gravity,	 number , and length	 of	 time	 over	 which	 the	 violation s	 occurred	 are	 relevant	 factors	 in determining	 appropriate	 sanctions pursuant	 to the Manual

. 10

- 144	 C.M.R. ch. 101,	ch.	I,	§	1.19

- 3	(A)(1)(a)

– (c)	(effective	Feb.	13,	2011). 10 That	the	Board did	not	revoke Dr. Doane’s	license	based	on	 this	conduct	did	not	require	 the Department	to	provide a	lengthy elaboration	of	its	conclusion	that	the	conduct warranted	termination	under	its	regulations. The	entry	is: Judgment	affirmed.

10 Currently located	at	10

- 144	C.M.R.	ch.	101,	ch.	I,	§	1.20

- 3 (A)(1)(a)

– (c) (effective	Sept.	17,	2018).27 Christopher	C.	Taintor,	Esq. (orally) ,	Norman,	H a nson	&	DeTroy,	LLC,	Portland, for	appellant	Stephen	Doane Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Thomas	 C.	 Bradley,	 Asst.	 Atty.	 Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	Maine	Department of	Health	and	Human	Services

Kennebec	County	Superior	Court	docket	number	A P

- 2018

- 74 F OR C LERK R EFERENCE O NLY