Nichols V. ME Dep't of Health & Human Services

Annotate this Case

Download PDF

SUPER10R COURl l.OCAllON: Augusta Docket ~o- AP-14-14 SlATE OF MATNE KENNEBEC, SS. Mf-\M-I<t:N-11-?h-14) ) JAMES :--.!lCHOLS. ) Petitioner, ) ) ORDf,R ON PETITIONER'S M.R. CIV. P. SOC APPF.AL ) ) ) ) ) ) ) ) STATE OF MAJ).IE DLPART!vllihl OF l:IEALTH & HIJ!vlAN SERVICES, Respondent Petitioner James Nichuls filed a 'vi.R. Civ P_ SOC appeal challenging the Final Decision by the Hearing Officer for the Departmmt of Health and Human Services ("DHHS" or the ·'Department") aflinning the involuntary discharge of Mr. Nichols on an emergency basis by Richmond Elder Care ("REC")- The Deci;ion upheld RECs emergency involuntary discharge because it found \1r. Nichols posed a direct threat to REC's residents. For the reasons discussed below, the Court affirms the Department's Decision and denies Mr. Nichols' appeal. Background and Statement of Facts I. Mr. Ni~hols is a 64 year-old recovering alcoholic with Post Traumatic Stress Disorder ("PTSD"). See Record, Tab B, Hearing Transcript at 74:20-75:2. Mr.l\ichols' PTSO i~ due in part to physical abuse he suffered from his alcoholic father as a child. Record. Tab A, 1/29/14 Final Deci•ion ("Deci"ion''), Finding of fact ("fof») 14-15; Tab B, Hearing Transcript at 123:2-7_ Mr. Kichols received clinical therapy for his PTSD l from Lynn Schwarz. a certilied clinical nurse specialist in psychiatry and mental health Hearing Transcript at 113: 14. Mr Nichols"'"-' admitted 1.(1 R.EC on or about May 1, 2013. Decision. FoF I. REC is licen.,ed as a private non-medical institution ("PNY!T") LevellY under the Level IV Pt-llVfT Regulation~. See id. at Fof 2. IJpon h1s admission, )Jr_ Ni~hols was assigned to a room with another individual. I d. at FoF 4. This individual left REC and Mr. Nichols remained in his room without a roommate lOr approximately one ;veek. Td at Fof 5-6. Subsequently, Ms. Wagurak, RLC's residential sen'!CC coordinator, asked !Vir. Nichols if he would move to another room at REC so that h1s room could be freed up for incoming residents. Hearing Tnmscript at 8:6-19. Mr. N!Chols met with his proposed new roommate ("Roormnate 2) and agreed to move into a new room with him. Jd. at 8:6.9:4. On or about June 9, 2013, Mr. Nichols moved into smd room. Decision, Fof 8. Roormnate 2 had a prescription that allowed him to drink two beers per day. I d. at FoF 9. Roommate 2 drank more than t\vo beers a day. ld at FoF 10. Roommate 2 regularly urinated in portable urine containers, which he was responstble for cleaning and emptying. Jd. at FoF 11-12. Roommate 2 did not regularly clean lllld empty Ins urinal containers. Jd. at FoF 11. Mr. Kichols subsequently explained that the air conditioner circulated the smell ot urine and beer around the room Hearing Transcript at 73:13. 74:10. "Ytr. 1"1ehols explained that this smell reminded him of his abusive upbringing. Jd On June 10, 2013. Mr. '\lichols went back to his old room, wh!Ch contained an empty bed, but was informed by REC staff that it was no longer his room. See Record, Tab ).!ichols 3, RF.C Progress Note p. 11, 3pm-llpm note. 2 On June 16, 2013, Mr. 1\icbol" complained harshly to REC staff about Roommate 2'~ dnnking and feared he was '·bemg put in danger by being in the same room as [Roommate 2]"' and that he "mighr 'snap''' Decision, Fof 16-17_ Also em J\llle 16, 2013, Mr. Nichols told REC sta±I that he would "break [Roonunate 2' s I f!nger:s 1f lhe] tllfficd off the air conditioner in their room. ld at FoF 18 REC staff" asked Mr. l\ichols to step away from h1s bed and stop yelling. Record, Tab N!Chols 3, REC Progress Note 14. Mr. Nichols complied and laid down on his bed. Id at\4. That same dav, Mr. "lichols yelled at Roommate 2, "I am ordering you as a marine kJ dump your urinals you fucken [sic] pig and il'you don't 1 will dump iron you. No\~ 1 have spoken do }OU understand?" /d. Later on June 16. 2013, REC left messages for Tim Dogerty, Mr. Nichols' case manager regarding Mr. };ichols' behavior. !Ieanng Transcript at 128:13-129:6. Mr. Dogerty went to the facility tk next day and spoke to Mr. Nichols. !d. Alterward<, he told Yls. Gibbs, the fac1hry administrator, that Mr. Nichols needed to be moved to a d1fferent room. !d. Ms. Gibbs, however. informed Mr. Dogcrty that there were no rooms available, as Yfr_ "lichols' prevwus room had been promi-,ed to somebody else_ ld at 130:9-5. On June 18, 20J:l, M, Wagurak, transported Mr. Nichols to a regularly scheduled therapist appointment. Decision, FoF 24. Dunng that session, 'vir. Nichols expressed to his therapist, \1s. Schwartz, that he had been having homicidal thoughts regarding Roommate 2. Hearing Transcnpt at 111 :9-112:9_ In particular, Mr. Nichols reported he wanted to brutalize and beat up Roommate 2_ fd_ at 123:17-124:2. He stated that "jail 3 \Vould he \liOrth it just to deal \Vith this situation_'· ld_ Mr. Dogcrty attended the aforementioned therapy session Decision, FoF 26. While the therapy se-;sion was underway, ~Js_ \\'agurak 'Waited by the car. ld. at FoF 27. llefore the therapy se>Sion \Vas complete, Mr. Dogerty told Ms. Wagurak that REC needed to move J\1r. Nichols' room and informed her of Mr. Nichols' hom1cidal ideation. I leming Transcript at 131:14-132:10. ~-h. Dogerty also told Ms. Wagurak to talk to an administrator at REC a.bout whether to take Mr. Nichols back tu REC. fd Mr. Dogerty expressed that he thought it was safe to take Mr. Nichols back as long a> he didn't have to be in the same room as Roommate 2_. hut that if they were going to discharge Mr. N1chols, they had to send him to a hospital. I d. M~- \1/agurak did not think it was safe 10 first transport l\-1r. Nichols back to REC and then ca!l 911 to take Mr. Nichols to the hospitaL Decision, FoF 30. Ms. Schvv-arz and Mr. '\lichols subsequently came down toMs_ Wagurak's car. Jd. at Fo} 31. Mr. Nichols hecame agitated and l\h Wagurak decided to call 911 hecause she felt threatened. fd_ at FoF 32. Ms. Schwarz volunteered to drive '\1r. 1\iehols to the hospital where he was admitted. !d at FoF 33-34. Ms. Schwarz testified that ~he deemed it a social, not psychological emergency hecause there was nowhere for Mr. Nichols to go but the hospital since he could not rerum to the same room as Roommate 2. Hearing Transcript at 112: 13-19_ Ms. Sch'Warz believed 'vir. Nichols would be ok as long as he was not in the ;arne room a~ Roommate 2_ fd_ On June 25, 2013, the hospital determined it would be safe to discharge Mr. ~ichols to REC a-; long as he was not housed w1th Roommate 2. Decision, Fof 36. Ms. 4 Gibbs, ho"evcr, told the hospital that Mr. Kichols could not come back to RFC because he had '·murderous thoughts." ld at FoF 37. \1s. Gibbs te~tified that Mr_ Nichols' room c"uld not be changed because nobody would room with him besides Roorrunate 2 Hearing Transcript a\54:7-55:13. Ms. Gibbs did not, however, ask people whether they would room with Yfr. N1chols. Td_ As a result ofRLC s involrurtary discharge, Mr. Nichols ended up spending 98 <lays as a patient at the hospital unnl he was placed in a diiTcrcnt assisted living facility. Td at 78:14-18. A. !'rncedural fli,~torv On August 12, 2013, Mr. Nichols appealed RECs deci~ion to involuntarily discharge him. Record, Tab H0-2. On November 25, 2013, an administrative hearing wa., held. Deci~ion, p. 1_ The issue to be determined by the Hearing Officer wa" Did [REC] act as permitted under the DHHS Regulations Governing the I .icensmg and Functioning of .1\ssisted Housing Programs when it sought to involuntarily discharge James Nich,ls on an emergency basis against his will. ld. at p. 5. B. Jhe Henring Officer'~ D~cision On January 29, 2014, the Hearing Officer determined that there wa' evidence at the time of d1scharge that Mr. Nichols posed a direct threat to Roommate 2. ld. at P- 4. In particular, Mr. '\lichols had threatened to break Roommate 2's fingers and polii urine over his head. ld !1-tr. Kichols also disclosed a desire to pummel Roommate 2 and expressed that he did nnt care if he went to jail for his actions. Jd. Accordmgly, the Decision found REC had authority to involuntarily discharge Mr. Nichols for po>ing a direct threat to others. ld at p. 4. 5 The Decision also fouml th3t ~Is. Wagurak reasonably believed there were exigent c;ircumstances to discharge Mr. 'Jichols because Mr. Dogerty had just infOrmed her tbat :vtr. Nichob needed to go to the hospiU!l due to homicidal ideation. Id_ at pp. 4-5_ The Decision further noted that M'- Wagurak felt threatened h} Mr. 'Jichols after the therapy session becal!Se :Vir. Nichols ''said i~ a loud voice "!epping toward rMs. Wagurak] ... 'Take responsibility lOr your actions and decide_,., Jd. at P- 5_ The Decision further ddcnnined that while Ms. Schwarz did Nichols needed to be hospi talizcd fur p.,ychiatric rea~on.'>, ~ot believe Mr. the hospital saw Mr. Nichols fit for adm1ssion and found it appropriate for him to stay as an inpatient from June 18th until June 25th. See id. Finally, the Decision co~cluded that while REC poorly executed the cmergenc} discharge--because they never provided written notice even though they had suffic1ent time to do so and their communication 10 the hospital was "poor at bcst"-RF.C acted in a permissible manner under the Regulations because Mr. 1\ichols posed a direct threat to the residents ofREC. Jd. On or about February 25. 2014, Mr. 1\ichols appealed the Decision pursuant to \1_R_ Civ. P. 80C. II. Discussion A. 5tandard of Revic~ The standard for reviev.ing the merits of an administrative agency decision is whether the agency abused iL~ discretion, committed an error oflaw, or made facrnal findings not supported in the record. Rollmg v Dep't of Behavioral & Developmental Servs., 2003 lvfE 152, ~ 9, 838 A.2d 1168; Centamore v. Dep 't of Human Servs, 664 .6 A.2d 369, 370 (?vie. 1995} \\'hen reviewing the decisions ol" an administrative agency, the Superior Court v,ill not "second guess the agency on mauers falling within its realm of expertise," and !he Court· s review is limited lo "determining whether the agency's concluswns arc unreasonable, unjust or unlawful in light of the record." fmagmeerin:;; v. Superimrndenl of ins., 593 A.2d 1050, 1053 {Me. 1991). "In reviev,ing an agen~y· s interpretation of its 0\\'11 rules, r~gulations, or procedures, we give considerable deference to the agency and will not sd aside the agency's interpretation tmlcss the regulation or rule compels a contrary result." Forest Ecology Network v Land t.·:>e Regulatwn Comm ·n. 2012 ME 3G, ~ 2g, 39 A.3d 74 {<J.uotmg Nelson v. Bayroot, LLC, 200R :viE 90, 11 17, 953 A.2d 378). The parry attempting to vacate the agency"" dec\S!On bears the burden ofper.<uasion. !d. If the agency's decision was commiUed to the reasonable di~crelion of the agency, the p;my appealing has the hunlen of demonstrating that the agency abused its discretion in reaching the decision. Jd. (citing Sager v. Town c<( Bowdoinham, 2004 MF 40, ~ 11, 845 A.2d 567. ·'An abuse of discretion may be found where an appellant demonstrates that the decision maker excee<ls- !he bounds of the reasonable l'hoices available ro it, considering the filets and circumstances of the panicular case and the governing law'" ld Furthermore, '·[a]n administrative deciSion will be sustained if, on the basis of the entire record hefore it, the agency could have fairly and reasonably found the facts as it did'' Seider v Bd. of£xaminers of Psychologists, 2000 ML 206,119,762 A.2d 551. "Judges may not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v Bd. of Envll. Pro/., 452 A.2d 1202, 1209 (Me. 1982). "Inconsistent evidence will not render an agency decision 7 unsupported." Seider, 2000 .'viE 206, ~ 9, 762 A.2d 551. The issue is not whether the court would have reached the same conclusion as the agenq, "but whether the record contains competent and substantial evidence that support' the result reached ... " CWCO, Inc. v Superimendem r~f !n.v. 1997 ME 226,, 6, 703 A.2d 1258 (.'vie. 1997) (quoting In re Aiwne Clean Fuels, Inc., 310 A.2d 736. 741 (Me. 1973)). "The burden ofproofrests with the party seeking to overrnrn the agency's decision. . [to] prove that n<J competent evidence supports the ... decision.'" Seidor. 2000 ME 206, 'ii 9, 762 A.2d 551. B. Whether the Hearing Officer Was Required to Interpret the Term "Direct Thr:eat" Consistent with the Federal Fair Housing Act and M~iJ;~.e Human lqghts A~t 'vir. 1\ichols argues the term ·'dnect threat" must be read in accordance with the federal rcgulatwns 1mplcmenting the Fair Housing Act ("FilA'') and the Maine Human Rig,hts Act (""MHRA"). "!his would include a requirement to carry m1t a substantive individualized assessment regarding whether a direct threm actually exists. The D~parlm~nt clmnters that there is under no obligation to utilize the defmition of "direct threat" in the FH..'\ or MHR..A. or carry out a substantive individuali7.ed assessment as outlined in the FilA The Depanment also argues that a plain reading ol"the term ''direct threat" could reawnably includ~ thr~aL' of viol~nce and homicidal thoughts by a resident against another. lvfr. Nichols responds that a substantive individualized assessment is required because absent that a%e~sment P\!]1.11 Level IV latilities would have "virtually unchechd plenary authonty .. to remove a ccnain class of residents whenever they choose to by merely citing to what the resident said or thought." Pet.'s Reply Rrief, p. 3 Pursuant to section 205(2) and 206(3) of title 22-A, the Commissioner of Health and Human Services must establish such regulations as the Commissioner may determine 8 appropriate or necessary for the execution o I" the 'tatutory purposes and functions of the instirutions the Commissietner governs. Purwantto this authority, the Commissioner adopted PNMI Level IV Regulation,, v,.hich arc mtcnded. in pertinent part, to <'encourage each resident's right Lo ind~pendence, chmce and decision making. [sic] while living in a sal;, envmmmenL 10-144 C.M.R. Ch. 113, § l. The P).!Yfl T.evel TV Regulations go on to pro,ide that a facility may only discharge a resident against that residen(s will for certain reasons, which include when "[a] resident's continued tenancy constnutes a direct threat to the health or safety of others[]'" !d. at§ 5 3_2_ The term '"direct threat" is not defined in the PNlvD l.evel IV Regulations See id. The regulations implementing the FI-L\, however, do define "direct threat," in pertinent part, as ·'a Significant risk to the health or safety of others that cannot be eliminated by a modification of pQlicieo, practices, or pmcedurcs, or by the provision of auxiliary aids or services:· 24 C.F. R_ § 9 _13 1(b)- Section 9.131 further pwvides that: <'Jn determining whether an ind1vidual poses a direct threat 1Q the health or safety of others, the agency must make an indi~idualized a>.sessment, based on reasonable judgment that relies QD current medical knowledge or Qn the best available objective e~idence to as~ertain: the nature, duration, and severity of the risk; the pwbability that the potential injury will actually Qccur; and whether reasonable modifications of policies, practices, or procedures will mitigate the nsk. /d.at§9.13l(e). Similarly, the MT--ffiA Qffer~ a definition oflhe tem1 ''dnect threat" as "a 'ignificant risk to the health or safety of others that can not lsic] be eliminated by a modification of polieie>, practices, or procedures or by the provision of auxiliary aids or serv1ces 5 M.R.S.A §§ 4592 (public accommodation); 4573-A-1 (employment). 9 Mr Nichols supports his argument that the Level IV P~.'vll Regulations must define ··direct threaf" m accord with the I· H.A and WlR.o\ by pointing out that the} contain similar provisions regarding accommodations for individuals with disabilities: 5.26 Reasonable modiftcations and accommodation-;. To afl(,rd individuals with disabilities the oppcmunity to reside in an asststcd living program, residential care fo.cility or a private non-medical inslltution. the provider shall: 5.26.2 Make reasonable accommodation.s in regulations, policie~, practice' or services, including pcnnitting reasonable supplementary services to be brought into the facility/program. The provider is not required to make the accommodation, if it imposes an undue financial burden or results in a fundamental change in the program. l0-144C.\1R Ch.ll3, § 5.3.26.2. Here, while it \Vould appear re;~sonahle li>r the Hearing Officer to adopt an interpretution of"'direct threat'" in hne with the FHA and .'v!HR.o\, this does not mean the that interpreilltion mu.'t be adopted. This is because nothing in the FilA, MHRA, or LevellY PNMI Rcgulation.s compels the Hearing Officer to adopt such lln interpretatwn. for example, section 16.19 oftl1e PNMT LevellY cites, provides that f;~cilitie' R~g:ulalions, to which Mr. Nichols shall comply w1th lim housing practices. 10-144 C.M.R. c. 113, §16.19. \1/hilc that section notes that the regulations must comply with fair hou.,ing practices, the section addresses sanitation and physical plant req llirements. Jd It docs not somehow incorporate th~ delinitwn of "direct threat" utilized in the FHA' s regulations into section 5.3.2 of the PNMI Level IV Regulations. Furthermore, because the term "direct threat" is not defined in the PNMI Le,c!IV Regulations, and there is not reqmrement to adopt the definition of "direct threat" 10 advocated lin by Mr. Nichols. there is no rcqmrcmcnt that prior to involuntarily &;charging Mr. 'Jichol,, REC was required to carry out anlllmhvidualized assessment based on reasonable judgment that relie-; on current medical knowledge or on the best available objective evidence to ascerlam the nature, duration. and severity of the nsk; the probability th;~t the potential injury v.ill actually occur; and whether the rea.~cmable modi lications of policies. practices, or procedures w1ll mitigate the risk'' Mr. Kichols' Brief, 17 (citmg 24 C F R § 9.131 (c))- For the same reason, REC was not rc4uired to modify its policies. praehccs, procedure,, or provide auxiliary aids or services to climmate the ·'direct threaf' posed by Mr. N1chols. ln.,tead, the Department-through the Hearing Ollicer-is required to adopt an interpretation ofthe term "direct threat" that does not exceed the bound> ofre;~son;~ble choices available. Forest Ecology lv'erwork v Land (Jse Regulation Comm 'n. 2012 ME 30, ~ 28, 39 A.3d 74. The Hearing ot'iicer's interpretation of"direct threat'" as including threats of violence and homicidal thoughrs by one re>Hlent against another fits squarely within the reasonahle choices available to her and aligns w1th the stated purpose (>f promoting a safe living environment. See 10·144 C..'vi.R. Ch. 113, § ]_ Mr. N1chols' concern that the Hearing Officer's mterpretation grants the Department '·virtually unchecked plenary authority" is without merit as the mterpretation is tied to threats of violence or homicidal thoughL' expressed to others. According!}, the Hearing Officer did not abuse her discretion in intcrprctmg the term "direct threat" in section 5.3.2 of the PNl\41 Level IV Regulations. C. Whether the Hearing Officer Abused her Discretion in Deterq~ining that Mr. Nichols Posed a_"Direct Threat" Based on the assumption that the term "direct threat" requires RECto carry out an individuali~.ed assessment in accord with the FHA and to modify its pohcies, practices, or II procedures to elimmate the diTectthreat in accord \vith the MliR'\, Mr. Nichols raises three additional deficiencies wnh the Decision: 1) Ms Gihhs acknowledged she did not rev1ew the hospital's records indicating Mr . .'•Jichols was psyehiatrical!y cleared to return to RF.C: in determining Mr. Nichols was a direct threat; 2) 'vfs_ Chhhg made no effort to determine whether arrangements could be made tOr Mr. K1chols to return to hi.< old room-which was promised to, but not yet occupied by an incoming resident: and 3) Ms. Gibbs failed to ask l'<hether anyone at the facility would agree to switch rooms with Yfr. Nichols. fd_ at 17-18. The Department reiterates that the Hcarmg Officer was not required to adopt the definition of"direct threat" put forward by Mr. Nichols and that the dctcrminatwn that Mr Nichob posed a ''direct threaf' was supported by competent and substantial evidence. As Jiseussed .mpra in section Tl(R), RF.C: is not required to modify its policies, practices or procedures to eliminate a direct threat or conduct an individualized a"e~sment, in accordance with the }'HA, to determine if a clirect threat exists_ Instead, the Court reviews the Decision to determine whether competent and substantial evidence supports the finding !hat Mr. Nichols posed a direct threat as evidenced through threats of violence and/or homicidal thoughts. Although !he Cour\ is not unsympathetic towards Mr.l\ichols' posi1ion. !he Court's fu11ction is not to second-guess the Hearing O!ticer's Decisio11. See lmagineerinJ? v_ Supenmendenl of lns., 593 A.2d at I 053. Here, competent and substantial ev1dcnce supported the Heari11g Officer's fmding that l\1r. Nichols posed a direct threat to the health or safety of others mcluding tha!: 1) Mr. :--.lichols told REC staiihe would break Roommate 2's fingers if he rnrned off the air conditioner (Record, Tab :Jichols 3, RLC Progress Note 14); 2) 'vir. Nichols yelled at 12 Roommate 2, ··jam ordering you a' a marine to dump your urinals yolllllcken [sic] pig and if you don't I will dump it on you. --(!d.); 3) lvlr. Kichols disclosed that he wanted to brutalize Roommate 2 and that he did not care if he w~nttojail because of his actions (Hearing: Transcript, 123 ·17 -124 ·7); 4) ]\.fr. };ichols communicated homicidal ideation regarding Roommate 2 to Ms. Schwarz (fd.); 5) Mr. Dog;erty communicated this mfonnation to Ms. Wagurak and opined that MI . .'-Jichols needed to gu to the emergency room ( !d at 13l·.l4-132:10L 6) em~rgency room personnel docruncntcd that Mr Nichob ·'developed homicidal ideation towards his roommate, making threats toward him" and that ··[hjc was brought to the ER because of dccompen,ating psychiatric issues" (Records, Tab N1chol~ 1, MaineGeneral History an<.! Physical Examination Kotes, I); 7) the hospital saw fit to admit Mr. Nichols and keep him as an inpatient until or about June 25, 2013 (/d. at 6); 8) MI. Nichol> exhibited confrontational. harassing, and threatening to others at RF.C beyond Roommate 2 (Record, Tab Nichols 3, 16, 17; Hearing: Trllll.'leript: !3:')-: 14:20); and 9) that there was no other room to place Mr. '-fichols in REC. (see Hearing Transcript at 55 2-56·13). ln light of this evidence, the filet that contrary evidence indicates REC could have made further efforts to find Mr.l\'!chol" a new roommate or that the threat posed by lvlr. Nichol' could have been eliminated by finding hm1 a new roommate does not render the llearing Officer'> ractual findings unsupported or unrrustwonhy. CWCO, inc., 1997 ME 226, ~ 6, 703 A.2d 1258. Accordingly, the Hearing Officer did not abuse her discretion in finding that MI. Nichols posed a "direct threat." 13 D. Whether the Hearing Officer Abuser! h:er Discretion in Finding Mr. Nichqls was P_rQ~rly Discharged on an Emergency Basis Ylr. N!Chols argues the Hearing Officer found he was involtmtanly discharg~d on June 25, 2013 and, as a result, h1s discharge was not an "emergency"' basis because he did nut pose an "imminent danger" m olher-, at REC at the time of the discharge. The Department counters that the Hearing Officer fOund Mr Nichol8 was involuntarily discharged on June 18, 2013, and that this was properly done on an emergenq basis due to the threat Mr. Nichols posed to Romnmate 2. Tbe P~MI Level IV Regulations require that a facility must provide adequate notice and documented evidence of ;t:rategies used to prevent an involuntary transfer or discharge. 10-144 C.M.R. Ch. 113. § 5.4. A resident may be discharged without following these rules, however_ when the resident 1S discharged on an emergency basis. 10-144 C.M_R_ Ch 113, § 5.5. ln particular, the regulations provide: When an emergency situation exists, no written notice is required, but such nonce as 1S practicalLmder the circumstances shall be given to the resident and/or resident" s representative. The facility shall assist the resident ... in locating an appropriate placement_ Transfer to an acute hospital is not considered a placement and the obligation in regard to such assistance does not necessarily terminate. ld. The regulations define ·'emergency" as· rEJither those events that demonstrate that a resident has an urgent medical or psychological need. which requires immediate acute care treatment, poses imminent danger to other residents. !d. at§ 2.20_ Here, the Decision 1s unclear regarding the exact date on which Mr. Nichols was invollllltarily discharged. '!be Dcci>ion mdicates that Mr. 1\ichols was not involuntarily discharged until after he was transferred to the emergency room. Decision, 3 ('"Once in 14 the hospitaL the 1"-cility made the decision to dis~harge him on an emergency basis"). A hospital nOle l<J the charge nurse on Mr. Nichols" ward stated that VIs. Gibbs explained on June 25 that Mr. l\'ichols -·was a resident untd he had murderous thoughts and had to be removed." Id at 5_ The use of the past tense in cxplaming that Mr >Jichols was a resident indicates that REC had decided to involuntarily discharge Mr. \lichob he fore Ms Gibbs' phone call onJunc 25, 2013 However, the Decision also noted that REC ··poorly executed the emergency discharge" and that it "ne,er provided a written notice to Mr. N1chol~ even though there \Verc many opportumties to do so once he was admitted to the hospitaL" Id Accordmgly, the question becomes whether the Hearing Officer could have properly found thm i\1r. Nichols wa.' involuntaril} discharged on an emergency basts when RFC bad ·'many oppommities" to provide Y!r. Nichols V>Titten notice of his d1scharge. The Court must give considerable ddCrcn~e to an agency's interpretation of its own regulations and will not set aside an interpretation unless the rule "r regulation plainly compels a contrary result Forest Fcology NeM-ork, 2012 ME 36, ~ 28. 39 A.3d 74. Here. an m!erpretation of ''emergency" excluding Mr. Kichols · situation is not plainly compelled by the defimt1on "f"emergency" in 10-144 C.M_R_ Ch_ 113, § 2 20 Section 2.20 provides, in pertinent part. that an emergenc} is present when ·'a resident h"-'5 an urgent medical or psychological need, which requires immediate acute care treatment [or] poses imminent danger to other residents." Section 2.20's d1stinction betV>·een the need for ·'immediate'- acute care treatment and "imminent • danger supports an interpretation that for ~mergencies based on a direct threat to other., the time within 15 \\'hlch an emergency occur' may Ia.'; I longer than an ~mcrgency based on an urgent mcd!cal or psychological need !d lln; interpretation is further supported by the rcqmrement that for non-emergency di>charges the resident must '·be pmvided v.-ith at leastlifteen (15) days advance wntlen notice" because it could be reasonably he mterpreted to imply that an emergency d1scharge may be appropriate at any time where less than filieen days notice is necessary to protect the health or safety of others. 10-144 C.M.R. Ch. 113, § 5.4. Accordingly, the Hearing Officer did not abuse her discretion i.n mterpreting the term "emergency"' as applying to IVlr. :'olichob' .<ituation due to the threat he posed to Roommate 2. III. Conclusion Under the deferential standard of review the Court is bound to apply to the administrative decisions of the Department, the Court finds that the Hearing Officer did not abuse her discretion by interpreting the term ·'direct threat"' as including threal'> pf violence and homicidal ideation. The FHt\. and \1IIRA. did not compel the Hearing Officer to adopt a different interpretation. Similarly, the Hearing Officer did not abuse her discretion in mterpreting the term '·emergency'" as applying to 'vir. Nichols' situation in 'Which he was involuntarily discharged sometime after h.is admis>ion to the emergency worn on June 18, but prior to .\1S. Gibbs' phone call on June 25. Finally, the Hearing Officer's determination that Mr. Nichols' posed a '·Jirect threat'" and needed to be dism1ssed on an "emergency basis" wa.> supported by competent and substantial evidence. 16 'lhcrcl(Jre. the entry 'Wlil be Petitioner's M.R Civ_ P. 80C Appeal is DF.NlFTl. PursLUmt to M.K Civ P_ 79(a), the Clerk is hcr~by directed to incorporate lhi' Order by rcicrence in the docket. ~- Murpb.~stice Dated: Novembe..J.I-,2014 Michaela Maine Superior Court 17 oate Filed 2/25114 Kennebec County Docket No_ AP-14-14 F Action: Pet1bon fqr Reyjew aoc J. Murphy James Nichols State of Maine Department of Health and Human Services PlaintifFs Attorney Defendant's Attorney Mark Joyce, Esq. 24 Stone Street, Suite 204 Augusta, ME 04330 Renee Guignard, AAG 6 State House Stat1on Augusta, ME 04333 Date of Entry 2/26114 Petition For Rev'1ew Of Final Agency Action, filed 2/25/14_ s/Joyce, Esq_ 313114 Entry of Appearance, filed. s/Guignard, AAG 3/4/14 Certified Ma11 Return Receipts, filed s/Joyce, Esq_ - AG Janet Mills, delivered 2/27114 (no signature}. -Allee Knapp, Esq, delivered 2/27/14 (signature illegible). - DHHS Commissioner Mary Mayhew, delivered 2/27114 (no signature) - AG Janet Mills, delivered 313114 (no signature}. -Alice Knapp, Esq., delivered 2//27/14 (signature illegible)_ - OHHS Commissioner Mary Mayhew, delivered 3/3114 (no signature) 3/27114 Certified Record, filed_ s/Guignard, AAG 3127/14 Notice and Briefing Schedule issued_ Copy to Ally Joyce and AAG Guignard 4/3/14 Supplement to Certified Record, filed (4/2/14). s/Guignard, AAG 5/6/14 Pe!Jtioner's Brief For Review Of Fmal Agency Acbon, filed. s/Joyce, Esq. 6/6/14 Respondent's Brief, filed 6/5/14. s/Guignard, AAG 6120/14 Petitioner's Reply Brief, filed 6119/14. s/Joyce, Esq. 6/20114 Oral argument scheduled for 913114 at 1:00. Notice of Hearing sent to Atty Joyce and AAG GUignard. 913114 Oral argument held, J. Murphy presidmg_ Mark Joyce, Esq. and Renee Gu1gnard, AAG Tape 1898, Index 1515-2150. Under advisement. Page 1 AP-14-14 12/6/14 ORDER ON PETITIONER'S 80C APPEAL, Murphy, J (11!26114} Petitioner's soc Appeal is DENIED Copy to Atty Joyce and AAG Guignard Copy to repos1tones 1216114 Notice of removal of Record sent to AAG Guignard Page 2 AP-14-14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.