### STATE OF MAINE CUMBERLAND, ss. FLORA MUGENI, ) ) 

### Petitioner, ) ) V. ) ) 

### MAINE DEPARTMENT OF HEALTH ) AND HUMAN SERVICES, ET AL., ) ) 

### Respondents. ) SUPERIOR COURT CIVIL ACTION DocketNo. AP-2021-12

DECISION



### Before the Court is Petitioner Flora Mugeni's Petition for Review of State Agency Action Pursuant to Maine Rule of Civil Procedure SOC. 

### Ms. Mugeni appeals the Final DecisionofRespondentCommissioner ofthe DepartmentofHealth and HumanServices ("DHHS"), dated April 28, 2021, upholding a Level I Substantiation of Ms. Mugeni. For the following reasons, the Court affirms the Final Decision. I. Background 

### Following an investigation byAdult Protective Services ("APS"), DHHS issued a Notice ofLevel I Substantiation to Ms. Mugeni onMarch 4, 2020. (CR 162.) Ms. Mugeni requested a hearing. (CR 68.) Hearing was held before Administrative Hearing Officer Tamra Longanecker on December 15-17, 2020, and January 25-26, 2021. (CR 34.) Ms. Mugeni testified at the hearing, among others. (CR 62, 1914-2039.) On April 28, 2021, Chief Administrative Hearing Officer Joseph M. Pickering issuedtheFinalDecision. ( CR 1.)TheFinalDecision adopts thefindings offact ofHearing Officer Longanecker's Recommended Decision, which may be summarized as follows. JCR 

### 1.)

Page 1 of 15Mr. F. was a 62-year-old man diagnosed with intellectual disability and diabetes mellitus. (CR 38.) He was a dependent adult under 22 M.R.S. § 3472(6), and the State of Maine was his guardian. (CR 38.) His public guardian representative was Patrick Bourque ofDHHS, and his case managerwas Kelsey Best ofWaban Projects, Inc. (CR 39.) Mr. Bourque and Ms. Best had worked with Mr. F. for two years prior to August 2019. (CR 39.) Mr. F. required blood sugar monitoring and three insulin injections each day to manage his diabetes. (CR 39.) Mr. F. determined the dosage of each injection by using a sliding scale to find the dosage that corresponded to a glucometer reading of his blood sugar. (CR 39.) Mr. F. also required a long-acting insulin injection each night. (CR 39.) Until August 22, 2019, Mr. F. lived alone. (CR 39.) Mr. F. received support from LivingInnovationsinhishome, including supervisionofhisblood sugarmonitoringand insulinusage. (CR 39.) A few weeksbeforeAugust22, LivingInnovations dischargedMr. F. due to unsanitary conditions in his home. (CR 39.) Mr. Bourque and Ms. Best grew increasingly concerned about Mr. F.'s health and safety. (CR 40.) OnAugust20, 2019, Mr. Bourque andMs. BestmetwithMr. Bourque's supervisor and a DHHS crisis worker to discuss a planto move Mr. F. into a residential setting with
more support. (CR40.) Thesame day, Ms. Bestcontacted AngieMarquis, acting CEO and intake coordinatorfor Residential and Community Support Services ("RCSS"), to seek an opening for Mr. F. in a group home. (CR 40.) Ms. Best sent a description ofMr. F. and his supportrequirements to Ms. Marquis. (CR 40.) OnAugust 22, 2019, Mr. F.'s team met Mr. F. athis home and convinced Mr. F. to go to the hospital. (CR 40.) Mr. Bourque reached into Mr. F.'s home and took a bag containing medications from near the door but did not check its contents. (CR 40.) The bag did not contain insulin or a glucometer. (CR 40.) Page 2 of 15Later that day, Ms. Marquis told Ms. Best that RCSS had an opening in a group home starting the next day, Friday, August 23. (CR 41.) She told Ms. Best that a nurse would train the group home staff on Mr. F.'s diabetes management needs before he moved into the home. (CR 41.) Ms. Best sent Ms. Marquis Mr. F.'s medication administration record ("MAR") from June 2019, the sliding scale, and a medication list with times. (CR 41.) After speaking with Ms. Best, Ms. Marquis told Ms. Mugeni, a registered nurse employedby RCSS, that she would need to train the staff at the group home on how to administer insulin. (CR 41.) Ms. Mugeni asked Ms. Marquis for more specific medical information to develop the training but did not indicate she could not perform the training. (CR 41.) Ms. Mugeni was not otherwise part of Mr. F.'s intake process with RCSS. (CR 41.) Ms. Mugeni became licensed in Maine on October 8, 2018. (CR 41.) Ms. Mugeni had studied diabetes and insulin administration in nursing school. (CR 41.) She had not been employed as a nurse before being hired by RCSS on November 28, 2018. (CR 41.) Between November 2018 and August2019, shereviewed medicationrecords and trained direct support professionals ("DSPs") to become certified residential medication aides ("CRMAs"). (CR 41.) She was supervised by Claudia Stanley, a registered nurse and coowner ofRCSS. (CR 41.) InAugust 2019, Ms. Stanley was onmedical leave. (CR 46.) Mr. F. did not transition to the group home on Friday because his blood sugar levels were too high to discharge him from the hospital.1 On Saturday, August 24, the hospital permitted Mr. F. to dischargehimself. (CR 42.) Mr. F. arrived at the RCSS group

1 The hospitalhad neglected to adrnmisterMr. F.'s insulinbefore lunch on Friday. Page3 of 15home by ambulance without insulin, without a prescription to refill his insulin, and without a glucometer. (CR 42.) He did have a bag ofothermedications. (CR 42.) RCSS assigned Willy Tshibangu, a DSP, to workwith Mr. F. whenhe arrived. (CR 42.) Shortly thereafter, RCSS sent a CRMA, Paul Mukiza, to the home to help with Mr. F.'s transition. (CR 42.) Art Robbins of DHHS Crisis Services ("Crisis") also visited the group home that day to help Mr. F. settle in. (CR 42.) Mr. F. appeared weak and dizzy when he arrived at the group home. (CR 42.) When Mr. Mukiza saw that Mr. F. did not have doctor's orders or a medication administration record ("MAR"), Mr. Mukiza reached out to Nancy Yombe, a program manager or "pod leader" for RCSS. (CR 43.) Ms. Yombe in turn called Ms. Mugeni, informedher that Mr. F. appeared weak, and asked her to call the grouphome staff. (CR 43.) Ms. lVIugeni presumed that Mr. F. was the new diabetic client Ms. Marquis had told her about. (CR 43.) Ms. Mugeni instructed the staffto give Mr. F. soda. (CR 43.) She also told the staff to call her if they needed anything. (CR 43.) Ms. Mugeni then texted Ms. Marquis and explained that Mr. F. showed signs of low blood sugar and that the group home staff did not have any instructions regarding Mr. F.'s medications. (CR 43.) Ms. Mugeni asked whether RCSS had prescriptions for him. (CR 43.) Inresponse, Ms. Marquis sentMs. Mugeni a lVIAR from June 2019 and the sliding scale. (CR 43.) Ms. Mugeni briefly reviewed the MAR that day. (CR 43.) Ms. Mugeni stated that the staff would still need doctor's orders, which Ms. Marquis did not have. (CR 43.) Ms. Mugeni stated that she hoped Crisis would help and that she would "keep checking" to see whether Mr. F. needed to return to the emergency room. (CR 43.) Ms. Marquis responded that RCSS may have to take him back to the emergency room,

Page 4 of 15

### considering the number of insulin doses he was supposed to receive daily, and that she would update Ms. Mugeni when sheheardback from DHHS Crisis. (CR 44.) At5:35 p.m. that same day, Saturday, August24, thehospitalfaxed doctor's orders to Ms. Marquis, who forwarded them to Ms. Mugeni, Ms. Yombe, and the RCSS group home staff. (CR 44.) Ms. Mugeni did not review the doctor's orders until she returned to work on Monday, August 26. (CR 44.) When she returned to work on Monday, Ms. Mugeni discovered that the group home staff had failed to obtain insulin with the doctor's orders. (CR 44.) Ms. Mugeni asked Ms. Marquis if

### Ms. Marquis thought Mr. F. should return to the emergency room to obtaininsulin. (CR 45.) Ms. Marquis told Ms. Mugeni to contact Mr. F.'s primary care provider. (CR 45.) When Mr. F.'s primary care provider's office told her that the doctor would need to see Mr. F. before refilling his insulin, Ms. Mugeni booked the next available appointment at 9:45 a.m. on Tuesday, August 27. (CR 45.) Ms. Mugeni then texted Ms. Marquis to express concern about the lack ofinsulin and suggest going to the emergency
room to get insulin that day. (CR 45.) Ms. Marquis replied that she would reach out to the case manager, and Ms. Mugeni asked Ms. Marquis to keep herupdated. (CR 45.) Ms. Mugenididnothearbackorfollow up. (CR45.) Ms. Mugenileftworkearly thatdaywith permission. (CR 46.) The following day, Tuesday, August 27, 2019, the group home staff called Ms. Mugeni and told her that Mr. F. had refused to eat or attend his doctor's appointment. (CR 46.) Staffreported thatMr. F. wasrolling onthe floor without speaking. (CR 46.) Ms. Mugeni texted Ms. Marquis to explain the situation and ask if 

### she should call Crisis. (CR 46.) When Ms. Mugenitold Ms. Marquis that Mr. F. had not had insulin since he left the hospital on Saturday, Ms. Marquis stated that he should go to the emergency room. (CR Page 5 of 15

### 46.) Ms. Mugeni also called Ms. Stanley, who suggested that Ms. Mugeni call Crisis to initiate the emergency response. (CR 46-47.) Ms. Mugeni called Crisis and relayed Ms. Stanley's message to Ms. Marquis. (CR 47.) Art Robbins, the responding DHHS Crisis worker, instructed Ms. Mugeni to meethim at the group home immediately. (CR 47.) After he arrived and discovered there was no glucometer at the group home, Mr. Robbins asked Ms. Mugeni to bring a glucometer. (CR 47.) She obtained a glucometer from a supplyin the office that Ms. Stanley provided for training purposesbefore going to the group home. (CR 47.) When Ms. Mugeni tested Mr. F.'s blood sugar, the readout reported that it was "High," which meant that the level was too high for the glucometer to measure. (CR 47.) She instructed the house manager to call 911. (CR 47.) Mr. F. stopped breathing before the ambulance arrived and could not be resuscitated. (CR 48.) His cause of death was hyperglycemia with ketoacidosis due to diabetes mellitus. (CR 48.) Fromthe time Mr. F. left the hospital on Saturday, August 24, until shortlybefore his death on Tuesday, August 27, no one had checked Mr. F.'s blood sugar levels or administered insulin. (CR 48.) Ms. Mugeni never trained the staff onblood sugar testing
orinsulin administration. (CR 60.) 

### IfMr. F. hadbeentransported to thehospitalup to one hour before his death and received proper medical care, he "probably" would have survived. (CR 48.) On January 19, 2022, the Court ruled that Ms. Mugeni would be permitted to supplement the record with evidence ofthe sanctions or lack thereof imposedby DHHS
on other individuals involved in the events leading to Mr. F.'s death. The Court issued
an Order on April 11, 2022, granting DHHS's Motion to Clarify the Court's previous Order. Accordingly, the record includes the following additional facts: Ms. Best, Mr. Bourque, and Mr. Robbins were not substantiated. Ms. Yombe received a Level II Page 6 of 15Substantiation. House Manager "B.A." received a Level I Substantiation, which was reduced to Level II after an administrative hearing. Ms. Marquis received a Level I Substantiation that is currentlybeing appealed pursuantto M.R. Civ. P. SOC. II. Legal Standard The Superior Court's review of final actions of state agencies is governed by the Maine Administrative Procedure Act, 5 M.R.S. §§ 11001-11008, and M.R. Civ. P. SOC. The court may reverse an agency's decision 

### if the decision is in violation of constitutional or statutory provisions, in excess of statutory authority, made upon unlawful procedure, affected by bias or error of law, unsupported by substantial evidence in the record, or arbitrary or capricious or characterizedby abuse of discretion. 5 M.R.S. § 11007(4)(C); 

### see Goodrich v. Me. Pub. Ernps. Ret. Sys., 2012 ME 95, 'I[ 6, 48 A.3d 212. The court may not substituteitsjudgmentfor thatofthe agency on questions offact. 5M.R.S. § 11007(3). The party seeking to vacate a state agency decision has the burden ofpersuasion on appeal. 

### Anderson v. Me. Pub. Ernps. Ret. Sys., 2009 ME 134, 'I[ 3, 985 A.2d 501. III. Discussion Ms. Mugeni appeals the Final Decision on the following grounds: (1) DHHS did not provide expert witness testimony to establish the standard of care applicable to Ms. Mugeni as a registered nurse, (2) the Final Decision is not supported by substantial evidence, (3) Ms. Mugeni was deprived ofprocedural due process, (4) the Final Decision is arbitrary and capricious, and (5) the Final Decision is affected bybias. A. Applicable Standard Pursuant to 10-149 C.M.R. 

### ch. 1, § 7(1), "[a]ny individual who cares for, supports,
orprovidesservicesto anindividualwithintellectualdisabilityor autism" maybe subject to the substantiationprocess. 10-149 C.M.R. ch. 1, § 7(2)(a)(i) provides, inrelevant part:

Page 7 of 15i. A Level I Substantiation reflects a finding by a preponderance of the evidence (based on an APS Investigation and final written findings) that an individual Abused, Neglected, orExploited an individual with intellectual disability or autismby engaging one or more of the following: 4. Intentionally, knowingly, or recklessly causing a threat to the health or welfare of an individual with intellectual disability or autism by physical ormental injury orimpairment, deprivation ofessentialneeds, orfailure to protect from these; 5. Intentionally, knowingly, recklessly, or negligently engagingin abuse or neglect that results in serious harm to an individual with intellectual disability or autism. "Abuse" is defined as "the infliction of injury
... or the intentional, knowing or reckless deprivation of essential needs, through acts or omissions." 

### Id. § l (1 ). "Neglect" is "a threat to an adult's health or welfare by physical or mental injury or impairment, deprivation of essential needs or lack ofprotectionfrom these." 

### Id. § 1(11). As a threshold matter, Ms. Mugeni argues that the regulation does not apply to her because she was not a "direct service provider." The regulation does not limit applicability to "direct service providers." 

### It applies to "[a]ny individual who cares for, supports, orprovides services to an individualwith intellectual disability." 

### Id.§ 7(1). The finding that Ms. Mugeni provided services to Mr. F. was supported by substantial evidence, including that Ms. Mugeni advised staff on managing Mr. F.'s diabetes, made
a primary care appointment on his behalf, told her supervisor that she would keep checking onhis well-being, tested his blood sugar, and called Crisis and 911. (CR 61-62, 406, 412, 415.) Ms. Mugeni also argues that DHHS was required to present expert testimony to establish the applicable standard of conduct for a nurse. This is not a civil medical malpractice action. As explained above, the standard of conduct is supplied by 10-149 C.M.R. ch. 1, § 7. The Court agrees with DHHS that the regulation does not distinguish betweenindividualsbased on licensure. Page 8 of 15B. Substantial Evidence The Final Decision adopted findings ofbothknowing orreckless conductunder § 7(2)(a)(i)(4) and negligence under § 7(2)(a)(i)(5). (CR 1-3, 61-62.) A finding by the preponderance ofthe evidencepursuantto either§ 7(2)(a)(i)(4) or§ 7(2)(a)(i)(5) wouldbe sufficient to uphold a Level I Substantiation. 

### i. Knowing or Reckless Conduct under§ 7(2)(a)(i)(4) First, the hearing officers concluded that Ms. Mugeni's failure to train RCSS staff
was a knowing or reckless act that threatened Mr. F.'s health and safety, as were her failures to promptly initiate an emergency response or monitor Mr. F.'s blood sugar levels. (CR 61.) Section 7(2)(a)(ii) provides that the terms "knowingly" and "recklessly" have the meanings setforth in 17-AM.R.S. § 35. Thus, "knowingly" is defined as follows: A. A person acts knowingly with respect to a result of the person's conduct when thepersonis aware thatitispracticallycertainthat theperson's conductwill cause such a result. B. A person acts knowingly with respect to attendant circumstances when the personis aware that such circumstances exist. 17-AM.R.S. § 35(2). "Recklessly" is defined as follows: A. A person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conductwill cause such a result. B. A person acts recklessly with respect to attendant circumstances when the person consciously disregards a risk that such circumstances exist. C. For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conductthat a reasonable and prudentperson would observe in the same situation. 17-A M.R.S. § 35(3). Ms. Mugeni argues thatinsufficientevidence waspresented regardingher state of mind. To the contrary, Ms. Mugeni testified to learning about diabetes and the
Page 9 of 15importance ofinsulinto diabetics innursing school.2 (CR 2027.) As evidencedbyher text messages toMs. Jvfarquis, Ms. Mugeniwas awareoftheriskposed to Mr. F. 

### iftheywaited until Tuesday to acquire insulin, and she was aware that she could have initiated an emergency response to acquire insulin. (CR 406-415.) Ms. Mugeni argues that her conduct did not threaten Mr. F.'s health and safetyhis lack of insulin did. Ms. Mugeni's failure to train the staff, however, left them unequipped to testMr. F.'sblood sugar orrecognize the signs that Mr. F. needed to go to the emergency room. Her failure to promptly initiate an emergency response when she realized thathe would notbe able to see hisprimary care provideruntilTuesdaylefthim without insulin for days. Substantial evidence supports a finding that Ms. Mugeni disregarded a risk and that her disregard of the risk was a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation, or that she was practically certain that her conduct would threaten Mr. F.'s health and welfare. The Courtwillnot disturb the finding thatMs. Mugeniknowingly or recklessly caused a threat to Mr. F.'s health or welfare. 

### ii. Negligent Conduct under§ 7(2)(a)(i)(5) Because there is substantial evidence to uphold a Level I Substantiation pursuant to § 7(2)(a)(i)(4), the Court need not determine whether there is substantial evidence to uphold substantiation pursuant to § 7(2)(a)(i)(5). Nevertheless, the Court agrees with DHHS that there is also substantial evidence that Ms. Mugeni negligently engaged in abuse or neglect that resulted in seriousharm to Mr. F. 

### See§ 7(2)(a)(i)(5).

2 The Court disagrees that a heightened standard was applied to Ms. Mugeni because she was a nurse. Rather, Ms. Mugeni's education on diabetes and understanding of the medical risks-to which she testified-informed the analysis ofher state ofmind. The Court finds no error or deficiency on this point. Page 10 of 15Section 7(2)(a)(ii) is silent as to the definition of "negligently." Because "negligently" is omitted from the reference to definitions in the criminal code, Chief Administrative Hearing Officer Pickering concluded that the regulation requires a finding of only civil negligence, not criminal negligence. (CR 2.) The Court agrees with this conclusion. Civil negligence consists of four elements: a duty of care, a breach of that duty, causation, and damages. 

### Murdock v. Thorne, 2017 ME 136, 'l[ 11, 166 A.3d 119. The hearing officers concluded that Ms. Mugeni breached a duty owed to Mr. F. by failing to ensure that he saw a doctor on Monday and by failing to promptly initiate
an emergency response on Tuesday. (CR 61-62.) Whether one person owes a duty to anotheris a questionoflaw. 

### Est. of Smith v. Cumberland County, 2013 ME 13, 'l[ 17, 60 A.3d 759. When actingin an appellate capacitypursuanttoM.R. Civ. P. SOC, the Courtreviews questions of law de novo. 

### Doane v. Di?p't of Health and Hum. Servs., 2021 ME 28, 'l[ 15, 250 A.3d 1101. Thehearing officers concluded that Ms. Mugeni owed a duty to Mr. F. because of her role in RCSS and her involvement in his diabetes management, which began when she first rendered advice to the staff to give Mr. F. soda and continued until his death. (CR 61-62.) The Court agreeswith thehearing officers' conclusion thatMs. Mugeniowed
a duty of care to Mr. F. 

### See Restatement (Second) ofTorts§§ 323, 324 (Am. L. Inst. 1965) (on negligent performance of undertaking to render services and duty of one who takes charge of anotherwho is helpless). Breach and causation are questions offact. 

### Est. of Smith, 2013 ME 13, 'l[ 17, 60 A. 3d 759. The Final Decision contains findings ofboth elements, and the Court agrees that the findings are supported by substantial evidence. Ms. Mugeni breached a duty by failing to ensure that Mr. F. received insulin on Monday and by failing to call 911 on Tuesday when she was first informed of his condition. Deprivation of insulin for several days Page 11 of 15

### caused Mr. F.'s death, which "probably" could have been avoided if 

### he had received medical attention up to onehourbefore his death. (CR 48.) In sum, the Final Decision is supported by substantial evidence. Ms. Mugeni's Level I Substantiation was properlyupheld pursuant to§ 7(2)(a)(i)(4) and§ 7(2)(a)(i)(5). C. Due Process 

### Generally, proceduraldueprocess requires notice and anopportunitytobeheard. 

### Doe v. Tierney, 2018 ME 101, 'l[ 

### 17, 189 A.3d 756. Ms. Mugeni argues that she was denied procedural due process because she was not interviewed during the investigation into Mr. F's death and because she was not given adequate notice of DHHS's allegations related to negligent conduct. i. Notice Ms. Mugeni argues that she wasnot given adequate notice thather substantiation
wasbased inpart onnegligent conductunder 10-149 C.M.R. ch. 1, § 2(i)(a)(5) because the report on the Department's investigation contains only the "knowingly or recklessly" language in its "Conclusion Narrative" section. (CR 188-89.) The Court does not agree. The immediately preceding "Conclusions" section indicated that her substantiation was based on§ 2(i)(a)(4) and§2(i)(a)(5), withthelanguageofeach sectionreproduced therein. (CR 188.) Additionally, theLawCourthasheldthata partyasserting a dueprocess violation based on deficient notice must show that he or she was prejudiced by the deficiency. 

### Knoblach v. Morris, 2017 ME 116, 'l[ 

### 3, 164 A.3d 132; 

### Hopkins v. Dep't of Human Servs., 2002 ME 129, 'l[ 

### 13, 802 A.2d 999. Even if

### Ms. Mugeni did not receive adequate notice, she has not shownthat shewasprejudicedby the deficiency. Shehasnot, for example, explained how the asserted deficiency inthe notice affected her ability to prepare her defense. ii. Hearing 

### Page 12 of 15Ms. Mugeni was provided with a meaningful opportunity to be heard at the administrative hearing before Hearing Officer Longanecker. The fact that she was not interviewed during the investigation did not affect her ability to present a defense at the hearing through her own testimony and exhibits. Moreover, APS's own rules and regulations give APS discretion to interview alleged perpetrators of abuse and neglect, "as appropriate." 10-149 C.M.R. ch. 1, § 4(2)(c)(iii). Ms. Mugeni has not demonstrated a due process violation. 

### D. Arbitrary and Capricious Ms. Mugeni argues that the Final Decision was arbitrary and capricious because thehearingofficersmischaracterizedherrole withinRCSS andfailed to considerwhether others were more responsible for Mr. F.'s diabetes management. A reviewing court will "not find that an administrative agency has acted arbitrarily or capriciously unless its action is 'wilful and unreasoning' and 'withoutconsideration offacts or circumstances."' 

### AngleZ Behav. Health Servs. v. Dep't of Health and Hum. Servs., 2020 ME 26, 'l[ 23, 226 A.3d 762 (quoting 

### Cent. Me. Power Co. v. Waterville Urb. Renewal Auth., 281 A.2d 233, 242 (Me. 1971)).To the contrary, the hearing officers expressly considered that Ms. Mugeni's role typically involved reviewing medical records and training duties. 3 Her substantiation
was upheldbased inpart onher failure to train the CRMAs and DSPs onMr. F.'s medical needs. (CR 61.) Additionally, the hearing officers found that although her role did not ordinarilyinvolveprovidingdirect services to clients, shehad involvedherselfinMr. F.'s medical careby advisingRCSS staffwithrespectto his diabetes management. ( CR 61-62.)

3 Ms. Mugeni objects to the admission of RCSS job descriptions. Hearing Officer Longanecker, however, explicitly declined to assign anyweight to RCSS'sjob descriptions. (CR 37.) Page 13 of 15The fact that others involved inMr. F.'s care, including DHHS employees, owed a greater duty to Mr. F. orhad a greater ability to directMr. F.'s medical care does notbear
on Ms. Mugeni's own conduct. Omission of discussion of others' conduct in the Final Decisionwasnotunreasonablebecause the issuetobe decided waswhether the evidence supported Ms. Mugeni's substantiation. The hearing officers fully considered the relevant facts and circumstances surroundingMr. F.'s care and Ms. Mugeni's conduct. TheFinal Decision is not arbitrary and capricious. E. Bias Ms. Mugeni argues that theFinal Decision was affectedbybias. State agencies are entitled to a presumption that administrative decision makers act with integrity and objectivity. 

### New Eng. Tel. & 

### Tel. Co. v. Pub. Utils. Comm'n, 448 A.2d 272, 279 (Me. 1982); 

### Mallinckrodt v. Littell, 616 F. Supp. 2d 128, 142 (D. Me. 2009); 

### see Friends of Me. 's Mts. v. Bd. ofEnv't Prat., 2013 ME 25, 'l[ 23, 61 A.3d 689 ("In order to show bias, however, Friends mustpresentevidencesufficientto overcome a presumptionthatthe fact-finders, as state administrators, acted in good faith."). To rebut the presumption, Ms. Mugeni points to the fact that several others involved in the incident, including DHHS employees, received a Level II Substantiation,
were not substantiated, or were not investigated. She suggests that DHHS employees involved in the initial investigation were biased and that DHHS used Ms. Mugeni as a scapegoatto insulate DHHS employees from discipline. Although a biasedinvestigationcould lead to developmentofa biased record, Ms. Mugeni was permitted to and did, in fact, presenther own evidence for consideration at
a denovohearing. Thehearingofficers expressly consideredherevidence and arguments

Page 14 of 15in the Recommended Decision and Final Decision. Ms. Mugeni has failed to demonstrate that anybiasin the investigation affected the Final Decision. NorhasMs. Mugeni demonstrated thateitherhearing officer's independencewas compromised. This case is therefore distinguishable from

### Mutton Hill Estates, Inc. v. Town 

### ofOakland, in which planningboard members met, ex parte, with opponents of a project to write factual findings denying the application for a project. 468 A.2d 989 (Me. 1983). The Court acknowledges thatthere is evidencein the record that others whowere
awareofMr. F.'smedicalneeds also failed to ensuretheMr. F. received insulinormedical attention when they had the opportunity. That others received lesser sanctions does not establish, standing alone, thatthe Final Decisionwas affected bybias. Ms. Mugeni's own Level I Substantiation is supported by substantial evidence. Ms. Mugeni has not
overcome the presumption ofintegrity and objectivity. 

### IV. Conclusion For the foregoing reasons, each of Ms. Mugeni's arguments on appeal fails. The Court denies Ms. Mugeni's Petition. The entryis: PetitionerFlora Mugeni's Petition for Review of State Agency Action is DENIED. The Final Decisionis AFFIRMED. The Clerk is directed to incorporate this Decision into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).

Page 15 of 15 ay Kennedy, Justi e Superior Cour/ \ 

### (

STATE OF MAINE CUMBERLAND, ss SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-21-12 FLORA MUGENI, Petitioner
V. ORDER
MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Respondent
Beforethecourtis a motionbyrespondentDepartmentofHealth andHuman Services to seal the record. This motion is opposedby PetitionerFlora Mugeni. Thebasis ofthemotion is 22 M.R.S. §3474(1) whichprovides thatrecords containing personally identifying information created in connection with the department's adult protective activities and activities related to an adult while under the jurisdiction of the departmentare confidential.-

- Under§ 3474(3)(B), however, the department shall disclose relevant information to the court on its finding that access to_ those records may be necessary for the determination of any issue before the court·Access must be

-limited to incame_ra inspectionunlessthe courtdetermines that

disclosure ofthe information is necessary for the resolution of an issue pendingbefore it In this case DHHS skipped the steps of having the court determine that access may be necessary for the determination ofan issue before the court and of submitting records for in camera inspection. Instead, it simply filed the administrative record. With some exceptions, the administrative record identifies the individual in question as "Mr. F" or redacts his name withthe exception of thefirstletter ofhis lastname.

### See. e.g., R. 192.There{ \

are, however, a few apparently inadvertent references in the administrative record where thefull nameis disclosed. To cut to the chase, the court determines that disclosure ofthe information in the administrative record

- with the exception of Ms. F's full last name - is necessary to the resolution oftheappeal under22 M.R.S. § 34 74(3)(B). Thatmeans the administrativerecord

_

shall notbesealed; th~ courtis u11willing toIUake dec:_i_~ions on c1_~ecret re~?E~· ThePE!!:lciple that court proceedings are open to the public is a fundamental tenet ofourjudicial system, protected by both the common law and the First Amendment Nixon v. Warner Communications., 435 U.S 589, 597 (1978); FTCv. StandardFinancial Management, 830 F.2d 404, 408 &n.4 (1st Cir. 1987). The court does not, however, see any reason why the full name ofthe individual in question needs to be disclosed orwhyhe cannotbe described as "Mr. F". or "the resident" 1 Because§ 3474 aims to protect identifying information ofadults under DHHS jurisdiction, the Department shall be allowed, ifitchooses, to replace.unabbreviated uses ofMr. F.'s last
name with the abbreviated version. In thatcase the Department shall be allowedto reclaim the administrative record, substitute the necessarypages, provide copies ofthe substituted pages to counsel for petitioner, and refile therecord. Ms. Mugeni's filings to date demonstratethatthefull name is notnecessaryfor herto litigate the case. In briefing_the appeal, therefore, bothparties shallrefertothe individual as "Mr. F" 

### ot " the resident.'' This is consistent with the identification of the individual throughoutmost ofthe administrative record

i Ms. Mugeni's motion to take additional evidence does notidentifythe individual by name but refers'to him as "the resident." Her complaintrefers to him as "John Doe."
2{ \
The entryshall be: Respondent's motion to seal the record is denied except that, as set forth above, respondent shall be permitted, ifit chooses, to redact any references in the administrative record that identify the full name of the individual in question. The clerk is directed to incorporatethis orderin the docketby reference pursuantto Rule 79(a).
Dated: January

### Jj_, 2022
~---- Thomas D. Warren Justice, Superior Court



# Enteredontbe

# Docket~!J~\\1~

3 Petitioner-Ronald Schneider, Esq. Respondent DHHS-Shannon Collins AAG Intervenor Disability Rights Maine-Staci Converse, Esq. and Lauren Wille, Esq.STATE OF MAINE. CUMBERLAND, ss
FLORA MUGENI, Petitioner


### v. (

MAINE DEPARTMENT 

### 6J; HEALTH AND HUMAN SERVICES, et al., Respondent 

### (

SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-21-12

ORDER

Before the court is petitioner Flora Mugeni's motion to take additional evidence pursuantto Rule BOC(e). This is an appeal pursuantto M.R.Civ.P. BOC and 5 M.R.S. §§ 11001-07 challenging an April 28, 2021 decision by the Chief Hearing Officer of Department of Health and Human Services·(DHHS}-finding that DHHS had correctly substantiated petitioner Flora-Mugeni-for abuse and neglect of a person with a disability

- a client identified in the record as "Mr. F" and referredto in some ofthe filings as "John Doe." The record indicates that Mr. F was a person diagnosed as having intellectual disabilityand diabetes mellitus. Certified Record (hereafter R.) 38. He died ofhyperglycemia with ketoacidosis due to his diabetes onAugust 27, 2019. CR 48. The substantiation ofMs. Mugeni for abuse and neglect of Mr. F is a Level I substantiation, which is reported to registries maintainedbythe state and federal authorities. to Rule BOC(e). The motion to take additional evidence is opposed by DHHS and by Intervenor Disability Rights Maine. Under Rule 80C(e), a motion to take additional evidence must be filed within 10 days ofthe filing oftherecord. Although DHHS and Intervenor arguethatMs.Mugeni's motion was untimely, the courtfile reflects thatthe record was filed on August 30 and Ms. Mugeni's motion was timely filed 10 days later.1 The additional evidencethat Ms. Mugeni seeks to add consists ofthe following: (1) a June 10, 2021 decision bytheBoardofNursing, issuedafter the ChiefAdministrative Hearing Officer's decision inthis case, and (2) evidence ofandtherationale for the decisions by DHHS with respect to other individuals involved in the events leading to Ms. Mugeni's Level I substantiation. Several individuals received no sanction; one other individual received a Level II sub~tahtiation. Ordinarilyjudicialreviewunder Rule SOC.and 5M.R.S. §§ 11001-07 is confinedto the record before the agency. 5 M.R.S. § 11006(1). However, additional evidence maybe added to therecord

### ifthe additional evidence
is materialto the issues presentedfor reviewandcould nothave been presented or was erroneously disallowed in proceedings beforethe agency. 5 M.R.S. § 11006(1)(B).
Nursing Board Dismissal In this case the subsequent decision by the Board of Nursing could not have been presented to the agency, and the dispute is whether or not that decision is material to the issue presented for review. According to Ms. Mugeni, the Board of Nursing dismissed a complaint against Ms. Mugeni based on the events that led to the Level I substantiation, finding that there had been no violation ofthe laws regulating the practice ofnursing. 2 Ms.

1 Intervenor argues thatthe motion should be denied because no Rule 7(b)(l) (A) notice was included butifa 21 day notice is notincluded, the result is that opposingparties may be heard even iftimely opposition is not filed. In this case boththe opposingparties filed memoranda, and the courthas considered them even though the DHHS oppositionwas not filed within 21 days.
2 From Ms. Mugeni's submission, it does not appearthat the Board ofNursing engaged in any discussion or analysis ofthe complaint or setforth any reasons for its dismissal.
2Mugeni argues thatDHHS based its Levell substantiation largely on Ms. Mugeni's status as a registered nurse and that, as a result, the Nursing Board's dismissal is material. The problem with this argumentis that, even ifthe alleged failures on which DHHS based its Level l substantiation would also arguably constituteviolations oflaws regulating the practice of nursing

- which is not dear from Ms. Mugeni's motion -there is no requirement of which the court is aware that DHHS decisions have to be consistent with Nursing Board decisions. The motion to supplement the record by adding the Board of Nursing's dismissal is denied.

Evidence as to Substantiation or Non-Substantiation ofOther Individuals Evidence with respect to the sanctions or lack thereof imposed by DHHS on other individuals involved in the events that led to Mr. F.'s death was offered and disallowed by the Administrative Hearing Officer. Ms. Mugeni argues that this evidence was material and
was erroneously disallowed. See 5 M.R.S. § 1106(1)(B). I_!iis pro_ceeding

_ _()!iginated with an appeal by Ms. Mu~<:_I"li from a decision by DHHS Adult Protective Services that it intended to impose a Level I substantiation. Final decisionmaldng authorityon Ms. Mugeni's appeal was delegatedto the ChiefAdministrative Hearing Officer, Joseph Pickering (R. 159), and the appeal was referred to Administrative Hearing Officer Tamra Longanecker to hold a hearing, to make findings offact, and to issue
a recommended decision. R. 160-61. The substantiation or non-substantiation of other individuals in the events that lead to Mr. F's death was determined to be irrelevant by Hearing Officer Longanecker. R. 63. When Ms. Mugeni appealed to Chief Administrative Officer Pickering and raisedthatissue (R. 22, 23-24), Pickering ruledthat

R. 3. whether otherpersons have orhave notbeen substantiated has no bearing onwhether Ms. Mugeni should be substantiated.

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### In the court's view, it is atleast conceivable thatthe imposition of a sanction on Ms. Mugeni and no sanction or a lesser sanction on other individuals

- if the others bore considerably more responsibility for Mr. F.'s death and if the disparity was sufficiently egregious

- could support an argument that the agency's decision was arbitrary or caprkious. 3 

### Ms. Mugeni already has set forth the Level II substantiation for one individual and the absence ofany substantiation for others. (See R. 

### 22, 23). As far as the court can tell, thatis-notaisputedbytheagencyandthecourt

# will takeihatinform-ation astrue.Therecord also ·details the actions and inactions o_fall ofthe involved individuals, includingthe persons who Ms. Mugeni contends should have been sanctioned in lieuof or in addition to Ms. Mugeni. Accordingly, the'court will accept additional evidence limited to the following: that Ms. Best and Messrs. Bourque and Robbins werenotsubstantiated and thatMs. Yombe was issued only a Level II substantiation

- points that Ms. Mugeni is already making. However, Ms. Mugeni is not simply seeking to limit her argument to what she contends is the arbitrarine_~~ ofM~Mug~?i'~**L~~~l** 

### I su!?_~tantJ~tion compared to the actions ofothers. She is seekingto take evidence as to the basis for the DHHS decisions as to those otherindividuals. That would violate the general rule that inquiry into the mental processes ofthe agency decision makers is not permitted. See Carl L. Cutler 

### Co. v. State PurchasingAgent, 

### 472 A.2d 913,918 (Ms. 1984). To overcome thatrule, a party challenging agency action must atleast make a prima facie showing ofbad faith or other improperbehavior. Ms. Mugeni has made

·no such showing in this case. Ms. Mugeni has not filed a detailed statementin the nature of
an offer ofproof, and her suggestion that the taking of additional evidence might uncover some bias is thekind offishing expedition thatis precluded under Cutler.

3 DHHS argues, inter alia, thatthe otherindividuals citedbyMs. Mugeni had differentroles and responsibilities which explains anydifference in treatment. The courtbelieves the relevance of their roles and any differences between theirroles andthat ofMs. Mugeni goes to the merits ofthe appeal and cannotbe decided on this preliminary motion. 4.( 'l

The entryshall be:
Petitioner's motionto take additional evidence is denied exceptto the limited extent setforth above. The courtspecifies the further course ofproceedings as follows: petitioner shall file her briefwithin40 days ofthe date ofthis order, and respondent and intervenor shall file their briefs 30 days after service ofpetitioner's brief. Petitioner shall have 14 days after service ofthe lastbriefofany otherpartyin which to file a replybrief. The clerk

## is

____directed to incorporate this orderinthe docketbyreference pursμ9-nt to Rule 79(a).

Dated: January .JS..., 2022 Thomas D. Warren

_______ Justk~, Sup~rior Coμrt



# Entered

# onthe

# Docket:_!!!.

# h~1..-,

Petitioner-Ronald Schneider, Esq. Respondent oH~~-Sh~nnon C~llins, AA:G Intervenor Disab1hty Rights Mame-Staci Converse, Esq. and Lauren Wille, Esq.

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