Cosgrove V. Dep't of Health & Human Services

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STATE OF MAINE KENNEBEC, SS. SUPERlOR COURT CIVTL ACTION DOCKET NO. AP-13-47 DEBORAH COSGROVE, Petitioner ORDER v. DEPARTMENT or HEALTH AND HUMAN SERVICES, Respondent Before the court is a M.R. Civ. P. SOC appeal from a decision of the Department of Health and Human Services (DHHS) terminating Petitioner's eligibility from Home and Community Benefits for the Physically Disabled Services under section 22.04 of the MaineCare Benefits Manual. On November 22, 2013, an administrative hearing office of the Division of Administrative Hearings sustained the decision of the DllliS in terminating Ms. Cosgrove's section 22 services under the home and community based waiver program on the grounds that Ms. Cosgrove is "endangered since she remained at home receiving services under this Section and because Ms. Cosgrove has failed to demonstrate the skills necessary to successfully manage her personal-health maintenance, including satisfactory management of the PCA." ... ,.. A hearing was held before the hearing officer on September 30, 2013, where the petitioner appeared by phone and the eight witnesses appeared and rendered testimony. The hearing officer also noted a number of findings of fact including the determination that Ms. Cosgrove was a sixty year old woman with a diagnosis that includes Paraplegia, Diabetes, Asthma. and Chronil' Pain, and that she has been paralyzed since the age of eighteen due to spine tumors. Her son has been providing her services for many years under section 22 as her Personal Care Assistant (PCA). She is served by a number of different agencies such as, Professional Assistance Program, Home Health Services, and the MaineCare Waiver Program. After finding the particular medical conditions, the findings indicate that complaints have been made regarding the Petitioner's quality of care with Adult Protective Services, such as unsanitary conditions of the home, personal hygiene 1ssues, hospitalizations. physical injuries, and infections resulting in numerous Because of these numerous circumstances, Ms. Cosgrove was transferred to Lakewood Manor Nursing Manor on May 21, 2013, where she remains. Petitioner denies the facts as found by the hearing officer. She insists the majority of the information presented at the hearing was inaccurate and taken out of context when she talked to providers about her care. She was uncertain of the process in providing witnesses at the hearing. She seeks to be returned to her home, continue under section 22 benefits, and supervise her son as her PCA. In fact, at oral argument she made it clear that she wanted only her son to be responsible for her care. The party seeking review of an administrative agency action has the burden of proof to show that the decision of the agency is not supported by competent evidence. Maine Bankers Ass 'n v. Bureau of Banking, 684 A.2d 1304 (Me. 1996). This court's review ofthc final agency action is to determine if there was an abuse of discretion, error of law, or findings unsupported by substantial evidence on the record. Herrick v. Town of Mechanic Falls, 673 i\.2d 1348 (Me. 1996). Ms. Cosgrove received procedural due process by being given notice of and an opportunity to be heard at the hearing before the administrative officer. The record is clear that the respondent applied the law in its regulation to that which was, to a large extent, an uncontested stale of facts regarding Ms. Cosgrove's circumstances. The record is sufficient and the decision is supported by competent evidence. Notwithstanding Ms. Cosgrove's assertion of her capability in training and supervising her son as her PCA, the evidence appears otherwise. For these reasons, the entry will be: Petition for review is DENIED. The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule ofCivi! Procedure 79(a). DATED: /2--·Z-N (/~ Donald H. Marden Superior Court Justice Date Filed Action. 12123113 Kennebec County Petition for Review Docket No AP-13-47 J. Marden d. Murphy 80C Deborah Cosgrove Department of Healtl1 & Human Services Plaintiffs Attorney Defendant's Attorney Deborah Cosgrove, Pro Se 220 Kennedy Memonal Drive Waterville, ME 04901 Janine Raquet, MG 84 Harlow St, 2nd Floor Ba11gor, ME 04401 Date of Entry 12126113 Notice of Appeal, ftled 12123113 s/Cosgrove, ProSe Application to Proceed Without Payment of Fees, Affidavit, flied 12131113. 112114 ORDER, Murphy, J. (1/1/14) The filing fee is waived. Copy to Petitioner 112114 Entry of Appearance for DHHS, filed. s/Raquet, MG 1127114 Certified Record, flied (1123/14). s!Raquet, MG 1127114 Not1ce a11d Briefi11g Schedule issued. Copy to Deborah Cosgrove, Janine Raquet. 3/4/14 Letter requesting extens1on to file brief, flied. s!Cosgrove, ProSe 3112/14 Letter indicating Respondent does not object to a 30-day extension for Petitioner to file Brief, filed. s!Raquet, MG 3118/14 ORDER, Murphy, J (3/12114) Petitioner's request is GRANTED_ Her brief is tl1erefore due 414114_ Copy to Petitioner and MG Raquet. 411114 Letter requesting extension to file brief, filed. s/Cosgrove, ProSe 4/15114 filed Letter m response to Petitioners letter ftled 411114, objecti11g to any further extension, 4/11/14. s/Raquet, AAG 4124114 Bnef and attachments, filed 4/18114_ s/Cosgrove, ProSe 4/30/14 ORDER, Murphy, J. (4129/14) (re. Bnef filed 4118/14)_ Court will accept this filing_ Page 1 AP-13-47 F 6/10/14 Copy to Petitioner and AAG Raquet Respondent's Brief, filed 6/9/14. s/Raquet, AAG 6/25/14 Oral argument scheduled for 913114 at 2·00. Notice of Hearing sent to Petitioner and AAG Raquet 8/27/14 Letter requesting continuance of 9/3 oral argument, filed 8127114 s/Cosgrove, Pro Se 9/9/14 Letter indicating Respondent objects to request for continuance, filed 9/2/14. s/Raquet, AAG 9/9/14 Oral argument rescheduled for 1115114 at 1:00 Notice of Hearing sent to Petitioner and AAG Raquet on 8129114. 9/9/14 Oral argument rescheduled for 11/6114 at 10:00 Notice of Heanng sent to Petilloner and AAG Raquet 9/24/14 phone. Letter sent to Petitioner requesting phone number to participate in oral argument by 11/4/14 SPECIAL ASSIGNMENT ORDER, Humphrey, CJ (10123/14) It is ORDERED that J. Donald Marden IS assigned to hear and dispose of all matters that may anse in connection with this case, including hearing the case on the ments. Copy to Petitioner and AAG Raquet. 11/7/14 Hearing held 1116114, J Marden presiding. Deborah Cosgrove, ProSe; Janine Raquet, AAG Tape 1950, Index 3917-5437 Under adv1sement 1218/14 ORDER. Marden, J. (12/2114) Petition for review is DENIED. Copy to Pelltioner and AAG Raquet Copy to repositories 12/8/14 Notice of removal of Record sent to AAG Raquet Page 2 AP-13-47

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