No Suprise from the Superior

Superior Court ruling is as expected.

On July 13, 2023 Superior Court Judge Michaela Murphy issued her decision in our case against Maine EMS.

Her decision itself was not surprising. We are not unfamiliar with Judge Murphy; in fact she was our Judge in 2021 when we sued DHHS on behalf of Healthcare Workers. Besides, had anticipated this decision at this level. Her reasonings for the decision, however, were interesting.

Statutory Authority:

One of our primary complaints has been that Maine EMS lacks the statutory authority to issue such requirements.

The State argued that the chapter 21 rule change was covered by the statutory authority of Maine EMS, because it falls under “optimum patient care” and “safe handling and transportation”. This seemed odd to us. We are by no means legal experts, but when someone says “optimum patient care” my first thought is “don’t let me die”. It definitely isn’t “the paramedic saving my life better be vaccinated”. Much like safe handling sounds like “please don’t drop me going down the stairs”, and transportation sounds like “get me to the hospital safely”.

But according to the State, this can also mean vaccine requirements. Judge Murphy seemed to agree.

Routine Technical vs. Major Substantive

In addition to simply not having the authority to issue such a rule, we argued that the rule making process that Maine EMS engaged in to do so was inappropriate. We argued that in doing so, this was a violation of the Maine Administrative Procedure Act.

According to the State of Maine, these two categories are described as:

  • “Routine technical rules,” are those that establish standards of practice or procedure for agency
    business including, for example, rules that set a fee within a range specified by statute.
  • “Major substantive” rules are rules that, in the judgment of the Legislature, either (1) require the
    exercise of significant agency discretion or interpretation in drafting or (2) are reasonably expected to
    result in a significant increase in the cost of doing business, significant reduction in property values,
    significant reduction of government benefits or services, serious burden on the public or serious
    burden on units of local government.

Maine EMS issued this rule via routine technical rule change, which requires no legislative input or oversight.

The State argued that Maine EMS doesn’t need to follow the APA. How nice for them.

Why doesn’t Maine EMS need to follow the APA you may be wondering?

Well, because all “rule making” authority Maine EMS has predates the APA.

Duties & Obligations to Mainers:

Maine EMS was created to ensure a robust and efficient emergency medical response network across Maine. In the enforcement of the vaccine requirement, Maine lost valuable first responders, some with decades of experience.

Even some city departments struggled to meet staffing needs as a result. However, the rural areas were left decimated.

It seems rather common sensical that an EMS Board’s priority would be to the people. It seems that is not the case in Maine though.

So, we argued that the rule increased worker shortages, and prevented local governments from maintaining necessary staff to serve Maine communities.

The State argued that Maine EMS used it’s expertise in issuing this rule change. And that since they used their expertise, and had authority to do this, the court should defer on this.

Excerpt from the State’s arguments:

Powers Granted, Powers Implied:

In the State’s defense of Maine EMS exceeding their authority, they argue that vaccine requirements fall into “optimum patient care” and “safe transport”.

But then they go….. further.

The State argues that there are essentially three ways an agency gains authority.

Powers Given- which are the powers delegated expressly within a statute.

Incidental Powers- which are powers the agency finds essential to “give effect” to the powers expressly granted.

Powers Implied- Powers that an agency can assume that they have.

They go on to state that an agency’s interpretation of their authority is “entitled to great deference.

As we have stated, this did not come as a surprise. We expected this outcome at this level.

From here, we will file a Notice of Appeal to the Maine State Supreme Court.

The higher the level of court, the more consideration is given to the precedence of a case. And the precedence of this case could be huge. Imagine, if any of the innumerous government agencies could just interpret power for themselves?

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