In re: The Petition of Arden Delos Santos, as Personal Representative of the Estate of ADS v. Ito

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-FEB-2023
07:57 AM
Dkt. 89 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

IN THE MATTER OF THE PETITION OF ARDEN DELOS SANTOS,
AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ADS, Appellant-
Petitioner-Appellant,
v.
GORDON I. ITO, INSURANCE COMMISSIONER, DEPARTMENT
OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAI#I,
Appellee-Appellee,
and
EVERCARE, Appellee-Respondent-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 11-1-2542-10)

MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Nakasone and McCullen, JJ.)

Petitioner-Appellant Arden Delos Santos, as Personal
Representative of the Estate of ADS (Delos Santos),1 appeals from
the May 4, 2017 Order Dismissing Appeal and Affirming
Commissioner's Order Awarding Attorneys' Fees and Costs (Order
Affirming Fees) and the June 6, 2017 Final Judgment (Judgment)
filed by the Circuit Court of the First Circuit
(Circuit Court),2 following remand from this court's prior
decision in Harrison v. Ito, Nos. CAAP-XX-XXXXXXX,

1
Delos Santos is the father of ADS (Daughter). On March 6, 2017,
following Daughter's death in October 2016, Delos Santos was substituted as
personal representative.
2
The Honorable Rhonda A. Nishimura presided.
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CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, 2015 WL 4067205 (App. June 30,
2015) (mem.), aff'd, Nos. SCWC-XX-XXXXXXX, SCWC-XX-XXXXXXX,
SCWC-XX-XXXXXXX, 2016 WL 5239646 (Haw. Sept. 22, 2016) (SDO).3
The underlying case involves Delos Santos's appeals
through the external review procedure under Hawaii Revised
Statutes (HRS) Chapter 432E,4 of two successive attempts by
Respondent-Appellee UnitedHealthcare Insurance Company dba
Evercare (Evercare)5 to reduce the amount of covered skilled
nursing services for Daughter, a six-year-old Kaua#i resident
suffering from severe brain damage and a seizure disorder, who
was an enrollee in Evercare's managed care plan. Delos Santos
ultimately prevailed following both external reviews. The
external review statute, HRS § 432E-6, contains an attorney's
fees and costs provision allowing the insurance commissioner
discretion to award fees and costs "in connection with the
external review under this statute." HRS § 432E-6(e).6 The

3
The previous appeal in this case, Delos Santos v. Ito, CAAP-12-
0000646, was one of three cases in the consolidated appeal of Harrison v. Ito.
In Harrison, we vacated the Circuit Court's dismissal of Delos Santos's
request for judicial review of the commissioner's award of attorney's fees for
lack of jurisdiction, and remanded for a decision on the merits. 2015 WL
4067205, at *4-7.
4
HRS Chapter 432E, entitled the "Patients' Bill of Rights and
Responsibilities Act," sets forth statutory requirements for managed care
plans, and includes an external review procedure by which the enrollee may
pursue a complaint against the managed care plan, in HRS § 432E-6, discussed
infra. "'External review' means an administrative review requested by an
enrollee under 432E-6 of a managed care plan's final internal determination of
an enrollee's complaint." HRS § 432E-1 (2005).
The external review statute, HRS § 432E-6, was repealed by the
2011 Legislature, to comply with the federal Patient Protection and Affordable
Care Act of 2010. See Haw. Med. Serv. Ass'n v. Adams, No. CAAP-XX-XXXXXXX,
2013 WL 4606314, at *1 n.2 (App. Aug. 29, 2013) (SDO); 2011 Haw. Sess. Laws
Act 230, § 10 at 746. The current external review law is contained in HRS
Chapter 432E, Part IV, entitled "External Determinations." See HRS §§ 432E-31
to 432E-44.
5
Evercare administers the Quest Expanded Access Medicaid plan that
provides medically necessary covered services for aged, blind, or disabled
enrollees. Evercare now operates as UnitedHealthcare Insurance Company, Inc.
6
The external review statute's attorney's fees and costs provision,
HRS § 432E-6(e) (2005) (repealed 2011), provides:

(e) An enrollee may be allowed, at the commissioner's
(continued...)

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attorney's fees at issue here were incurred during a month-long
period after the first external review was completed but before
the second external review was commenced. Respondent-Appellee
Insurance Commissioner Gordon I. Ito, Department of Commerce and
Consumer Affairs, State of Hawai#i (Commissioner) awarded Delos
Santos $30,839.76 in attorneys' fees and costs, rather than the
full $43,067.35 amount that Delos Santos requested, which the
Circuit Court affirmed.
In this secondary appeal, Delos Santos contends the
Circuit Court erroneously affirmed: (1) the Commissioner's
reduction of $3,703.30 in the amount of attorney's fees incurred
during the period after the first external review was completed
but before the second external review commenced, as not incurred
"in connection" with the external review; and (2) the
Commissioner's denial of $8,340.00 of expert witness fees as
costs, because HRS § 432E-6(e) did not expressly provide for an
award of expert witness fees.7
We hold that the Circuit Court was wrong in affirming
the Commissioner's ruling that the attorney's fees during the
period between the first external review and the second external
review were precluded, because the fees were incurred "in
connection with the external review" under HRS § 432E-6(e). We
also hold that under the circumstances of this case and the

6
(...continued)
discretion, an award of a reasonable sum for attorney's
fees and reasonable costs incurred in connection with
the external review under this section, unless the
commissioner in an administrative proceeding determines
that the appeal was unreasonable, fraudulent, excessive,
or frivolous.

(Emphasis added).
The current external review law does not contain a provision for
attorney's fees and costs. Rather, it provides that the carrier against which
an external review is filed shall pay the costs of the independent review
organization conducting the external review. See HRS § 432E-42 (2011).
7
We have reordered and restated Delos Santos's contentions for
clarity. Delos Santos's contentions regarding the standards of review that
the Circuit Court should have applied to the attorney's fees and expert
witness fees issues are discussed infra.

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principles of statutory construction that apply to HRS Chapter
432E, expert witness fees are not categorically excluded as
recoverable "costs" under HRS § 432E-6(e). We thus vacate and
remand.
I. BACKGROUND
This case involved a first notice of proposed reduction
in covered services, followed by an internal review (First
Internal Review),8 then an external review (First External
Review); then there was a second notice of proposed reduction in
covered services, followed by an internal review (Second Internal
Review), and external review (Second External Review).
First External Review concluded May 25, 20109
On December 28, 2009, Evercare sent the first notice
informing Delos Santos that it planned to reduce the amount of
covered skilled nursing services for Daughter from 75 to 60 hours
per week (first notice). Delos Santos appealed the reduction to
Evercare, which conducted the First Internal Review, and upheld
the decision in a final internal determination. On February 24,
2010, Delos Santos requested the First External Review of
Evercare's final internal determination.
On May 7, 2010, Daughter was hospitalized at Kapi#olani
Medical Center for Women and Children on O#ahu (Kapi#olani).
On May 11, 2010, the external review panel conducted
the First External Review hearing.
On May 14, 2010, Daughter was discharged from
Kapi#olani and flew back to Kaua#i. She had a follow-up visit
with her primary care physician (PCP) on May 18, 2010,

8
"Internal review" is defined as "the review under section 432E-5
of an enrollee's complaint by a managed care plan." HRS § 432E-1 (2005). The
internal review statute, HRS § 432E-5, requires the issuance of a "final
internal determination" by the managed care plan in 60 days. HRS § 432E-5(d).

9
This appeal is from the May 4, 2017 Order Affirming Fees that
pertained to the Second External Review. The record on appeal does not
contain the record pertaining to the First External Review. The background
facts set forth here regarding the First Internal Review, First External
Review, and order disposing of the First External Review, are contained in the
January 31, 2011 order disposing of the Second External Review.

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accompanied by her service coordinator, who planned an immediate
reassessment of Daughter's need for services. Daughter's mother
requested that the reassessment be postponed until the next day.
The following day, Delos Santos canceled the appointment for the
reassessment until such time as his counsel (Delos Santos's
counsel) could participate.
On May 21, 2010, the service coordinator met with the
family and Daughter's nurse to conduct the reassessment and
complete a Home Skilled Nursing Scoring Tool (Scoring Tool).10
The May 21, 2010 Scoring Tool reflected that the family
caregivers were providing 465 minutes or 7.75 hours per day of
nursing services.
On May 25, 2010, the Commissioner issued Findings of
Fact (FOF), Conclusions of Law (COL) and Order (May 25, 2010
First External Review Order)11 reversing the first final internal
determination, concluding that Evercare's "reduction of the
skilled nursing hours based on its determination that
[Daughter]'s family was capable of safely performing the skilled
services, in reliance on past history and [Daughter]'s medical
record, was not reasonable." The First External Review Order
noted that "no one had observed the care being provided by
[Daughter]'s family to determine what quality of care they were
providing or whether they were performing mistakes in technique
which could cause problems."
On May 25, 2010, the same day as the First External
Review Order, Daughter's PCP requested skilled nursing services
twenty-four hours a day, seven days a week (24/7), or 168 hours
per week.

10
A service coordinator assigned by Evercare to each enrollee
completes a Scoring Tool that captures, in a twenty-four-hour period, the
number of hours spent providing skilled nursing services to an enrollee.
Applying Medicaid and Medicare guidelines, Evercare's Medical Director
determines how much of the time captured in the Scoring Tool qualifies for
coverage.
11
The May 25, 2010 First External Review Order is not a part of this
record. See note 9 supra.

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On May 28, 2010, Evercare received the PCP's May 25,
2010 request for an expedited decision; Evercare on that date
approved two weeks of 24/7 skilled nursing coverage because it
had not yet been able to complete a skills check on Daughter's
parents.
Based on the May 25, 2010 First External Review Order,
which found that the reduction in the amount of covered skilled
nursing services was not reasonable, Evercare did not implement
the reduction of Daughter's covered skilled nursing services to
sixty hours per week. To address the Commissioner's concern in
the May 25, 2010 First External Review Order that no one had
observed the family performing services, Evercare arranged for
Lynell Rogers, RN (Nurse Rogers), to perform a skills assessment
(Skills Check) on June 14, 2010, of Daughter's parents
administering care in the home to ensure safety and
effectiveness.
Attorney's fees incurred June 13 to July 13, 2010
The attorney's fees at issue in this appeal were
incurred during a month-long period from June 13, 2010 to July
13, 2010. On June 13, 2010, the day before the June 14, 2010
Skills Check, Delos Santos's counsel spent 1.42 hours researching
parent skills assessment standards and services. On June 14,
2010, the day of the Skills Check, Delos Santos's counsel spent
4.67 hours consulting with Daughter's parents, flying to Kaua#i,
and attending the Skills Check. Delos Santos's counsel had the
Skills Check videotaped.
During the Skills Check on June 14, 2010, Nurse Rogers
coached Daughter's parents on certain procedures and skills.
Nurse Rogers determined that Daughter's mother could competently
perform nursing services and that Delos Santos was willing to and
did learn some of those services.
Based on Nurse Rogers' Skills Check report and the
May 21, 2010 Scoring Tool, Evercare determined that Daughter's
family demonstrated the ability to provide services that Daughter

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required, and started to develop a transition plan for Daughter's
care to reduce the amount of covered skilled nursing services.
On June 22 and 23, 2010, Evercare's medical director
discussed with Daughter's PCP the proposed transition plan from
24/7 (168 hours) skilled nursing care to 96 hours per week. The
PCP reiterated the PCP's recommendation for 24/7 care.
On June 26, 2010, Delos Santos's counsel spent .67
hours reviewing Nurse Rogers' Skills Check report and discussing
it with Daughter's parents. On June 30, 2010, Delos Santos's
counsel spent 1.87 hours searching for experts on the standard of
care for home-based skilled nursing to review the videotaped
Skills Check. Delos Santos's counsel hired two experts, Aaron
Tabacco, RN, BSN (Nurse Tabacco), a published expert on the
assessment of family capacities to support home nursing care, and
Leslie Elder, RN (Nurse Elder), who administered the Seattle
Children's Hospital program that trains parents for delegated
skilled nursing services.
On July 7, 2010, Evercare's service coordinator
presented a transition plan to the family to reduce the amount of
covered skilled nursing services for Daughter, from 24/7 to a
schedule that would place some responsibility on her parents to
provide care consistent with Medicaid coverage guidelines. While
the family considered the transition plan, Evercare approved the
continuation of 24/7 skilled nursing services for Daughter, to
August 1, 2010.
On July 7-9, 2010 and July 13, 2010, Delos Santos's
counsel spent 4.14 hours working with the hired experts,
conferring with the family, and drafting an appeal letter to
Evercare.12

12
Delos Santos's counsel's billing entries for this July time frame
reflect 2.38 hours on July 7; .37 hours on July 8; .47 hours on July 9; .62
hours on July 9; and .3 hours on July 13, 2010.

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Second Internal and External Review, July 23,
2010 to January 31, 2011
On July 16, 2010, Evercare sent a second notice to
inform Delos Santos that it would reduce the amount of covered
skilled nursing services for Daughter from 168 (24/7) hours to 96
hours per week by the end of a transition period beginning
August 1, 2010 (Second Notice).
On July 23, 2010, Delos Santos appealed this decision
to Evercare for internal review.
On August 20, 2010, Evercare issued a final internal
determination and upheld the reduction in covered skilled nursing
services to 96 hours per week.
On September 10, 2010, Delos Santos requested a Second
External Review of the second final internal determination.
At the January 7, 2011 Second External Review hearing,
Delos Santos introduced the expert testimony of Nurse Tabacco and
Nurse Elder and established, inter alia, the existence of a
widely accepted standard of care and that the June 14, 2010
Skills Check by Nurse Rogers fell short of that standard.13
On January 31, 2011, the Commissioner issued the
External Review Panel's Findings of Fact, Conclusions of Law,
Discussion and Order affirming the Panel's decision (January 31,
2011 Second External Review Order or Second External Review
Order), upholding Evercare's second final internal determination
in a 2-1 split decision.14

13
The Commissioner noted that Delos Santos established, via expert
testimony, that Nurse Rogers' assessment of Daughter's parents was "not a
perfect, textbook assessment."
14
The External Review Panel consisted of three members, and one
member dissented from the disposition. At the end of its FOFs and COLs, the
Panel provided the following "reflection . . . purely for informational
purposes" in the Second External Review Order:
[Evercare] maintains that in the case of each of the medical
issues that [Daughter] faces, skilled nursing care is not
required. That might be true if one takes each issue as a
stand alone issue. But when one is dealing with a patient
with this many medical issues and the care required is
difficult and continuous, a reasonable person might come to
(continued...)

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2011 Circuit Court appeal, fees and costs motion
On March 7, 2011, Delos Santos appealed the January 31,
2011 Second External Review Order to the Circuit Court.
On May 4, 2011, Delos Santos filed a Motion for An
Award of Attorneys' Fees and Costs Pursuant to HRS § 432E-6(e)
(Motion for Fees and Costs) with the Commissioner, seeking
attorney's fees from June 13, 2010 to January 7, 2011, which was
the date of the Second External Review hearing. Delos Santos
attached Delos Santos's counsel's invoice that included
(1) billing entries from June 13, 2010 to July 13, 2010, and
(2) expert witness invoices for Nurse Elder and Nurse Tabacco.
Evercare opposed the Motion for Fees and Costs, arguing
that: (1) the $3,703.30 attorney's fees billed between June 13
and July 13, 2010, was for work Delos Santos's counsel did prior
to the issuance of a final internal determination, and thus,
those fees were not "incurred in connection with the external
review"; and (2) the $8,340.00 expert witness fees for Nurse
Tabacco and Nurse Elder were "not recoverable as a cost item
under Hawai#i law."
While the Motion for Fees and Costs was pending, on
September 15, 2011, the Circuit Court reversed the January 31,
2011 Second External Review Order (Order Reversing Second
External Review Order), concluding that the June 14, 2010 Skills

14
(...continued)
the conclusion that the overall situation really calls for
skilled nursing care, particularly when the treating
physician has asked for that and given the testimony of
Aaron Tabacco and Leslie Elder. Although [Evercare] may be
concerned about costs, this may just be one of those cases
where the thing to do is to pay those costs. Cost-efficiency
is an important goal, but in some cases it should not be the
highest priority. In addition, although putting [Daughter]
in an institution might provide reasonable technical health
care, it might have a serious adverse effect on her
psychological development given her young age. Therefore,
this is not a situation of all things being otherwise
equal besides costs.

(Emphasis added). Notably, the underscored language above was referenced and
quoted verbatim in the subsequent Circuit Court review, as set forth infra in
footnote 15.

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Check failed to meet the standard of care, and that Evercare did
not act reasonably based on the PCP's recommendation and the
testimony of Delos Santos's experts.15 The case was remanded to
the Commissioner.
A week following the Circuit Court's Order Reversing
Second External Review Order, the Commissioner issued the
September 22, 2011 Order Awarding Attorneys' Fees and Costs
(Order Awarding Fees) that is the subject of this appeal. The
Commissioner concluded that: although Evercare prevailed, it was
a split decision by the Second External Review Panel, suggesting
that this case was not unreasonable, fraudulent, excessive, or
frivolous under HRS § 432E-6(e); the phrase "in connection with
the external review" was "broad enough" to encompass fees
incurred in the Circuit Court appeal;16 and Delos Santos's
counsel should be awarded reasonable attorney's fees and costs.

15
The Circuit Court specifically held that:

The conclusion that [Daughter]'s family was capable of
safely and effectively performing the skilled nursing
services was not supported by reliable, probative and
substantial evidence because [Daughter]'s expert witnesses
testified that the reassessment of the family's skills
conducted in [Daughter]'s home on June 14, 2010, on which
the conclusion relied, failed to meet the standard of care
in several material respects. The Court finds it further
significant that the [Second External Review] Panel
commented in its "Discussion": "[B]ut when one is dealing
with a patient with this many medical issues and the care
required is difficult and continuous, a reasonable person
might come to the conclusion that the overall situation
really calls for skilled nursing care, particularly when the
treating physician has asked for that and given the
testimony of Aaron Tabacco and Leslie Elder."
(Bracketed references and emphases added) (quotation marks and brackets in
original).
16
The Commissioner rejected Evercare's argument that the plain
language of HRS § 432E-6 did not authorize the Commissioner to award
attorney's fees for a circuit court appeal of an external review decision
because the language "'external review under this section' is clearly limited
to the administrative proceeding" described in HRS § 432E-6(e). The
Commissioner awarded the $11,264.10 attorney's fees and costs for the appeal,
stating: "although [Evercare] has objected to the idea that fees incurred on
an appeal to the judicial system are not payable, we believe that the words
'in connection with the external review' are broad enough to encompass that
situation."

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However, the Commissioner reduced the attorney's fees and denied
the expert costs that Delos Santos requested, explaining that:

First, we agree with [Evercare] that [Daughter]'s
counsel cannot bill for fees and costs incurred before
[Evercare]'s final internal determination was issued because
these are not incurred "in connection with the external
review." The amount disallowed for this purpose is
$3,703.30.
Second, [Evercare] has objected to the compensation of
the expert witness fees of Aaron Tabacco and Leslie Elder on
the basis that the fee shifting statute [(HRS § 432E-6(e)]
does not expressly contemplate payment for expert witness
fees. We believe that [Evercare] is correct that if the
Legislature had intended to compensate for expert witness
fees, they could have stated so explicitly in the statute.
The amount disallowed for this purpose is $8,340.

(Emphases added).
2015 ICA appeal, 2017 remand to Circuit Court
On October 24, 2011, Delos Santos appealed the Order
Awarding Fees to the Circuit Court, which dismissed the appeal
for lack of jurisdiction on May 24, 2012. On appeal, we vacated
the dismissal and remanded for a decision on the merits in 2015,
which the supreme court affirmed in 2016. See Harrison, 2015 WL
4067205, at *7; Harrison, 2016 WL 5239646, at *1.
On remand in 2017, the Circuit Court heard argument and
issued the May 4, 2017 Order Affirming Fees, which affirmed the
Commissioner's Order Awarding Fees and dismissed the appeal.17
This secondary appeal followed.

17
The Order Affirming Fees stated in pertinent part:
Under Hawai#i Revised Statutes ("HRS") § 432E-6(e), repealed
effective January 1, 2012, an enrollee could be allowed, at
the Commissioner's discretion, an award of a reasonable sum
for attorneys' fees and reasonable costs incurred in
connection with the external review under section 432E-6. In
the Attorney Fee Order, the Commissioner parsed out three
discrete categories in disallowing certain attorneys' fees
and costs. The Court finds and concludes that the
Commissioner's decision in that regard was within his
discretion as to what is a reasonable sum for attorneys'
fees and what reasonable costs were incurred.

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II. STANDARDS OF REVIEW
A. Secondary Appeal
Review of a decision made by the circuit court upon its
review of an agency's decision is a secondary appeal. The
standard of review is one in which [the appellate] court must
determine whether the circuit court was right or wrong in its
decision, applying the standards set forth in HRS § 91-14(g)
(1993) to the agency's decision.

HRS § 91-14, entitled "Judicial review of contested
cases," provides in relevant part:

(g) Upon review of the record the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory
provisions; or

(2) In excess of the statutory authority or
jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or

(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.

Under HRS § 91-14(g), conclusions of law are
reviewable under subsections (1), (2), and (4);
questions regarding procedural defects under
subsection (3); findings of fact under subsection (5);
and an agency's exercise of discretion under
subsection (6).

United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Hanneman,
106 Hawai#i 359, 363, 105 P.3d 236, 240 (2005) (brackets omitted)
(quoting Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412,
416, 91 P.3d 494, 498 (2004)).
B. Conclusions of Law
"Pursuant to HRS § 91-14(g), an agency's conclusions of
law are reviewed de novo." Id. (citation omitted). "A circuit
court's conclusions of law are subject to de novo review."

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Paul's Elec. Serv., 104 Hawai#i at 420, 91 P.3d at 502 (citation
omitted).
C. Statutory Interpretation
"Statutory interpretation is a question of law
reviewable de novo." Stout v. Bd. of Trs. of the Emps.' Ret.
Sys., 140 Hawai#i 177, 185, 398 P.3d 766, 774 (2017) (citing
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals,
114 Hawai#i 184, 193, 159 P.3d 143, 152 (2007)).

First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.

When there is ambiguity in a statute, the meaning of the
ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative history,
or the reason and spirit of the law.

Id. (quoting Citizens, 114 Hawai#i at 193-94, 159 P.3d at
152-53).
D. Judicial Deference to Agency Interpretation
Generally, we apply the rule of judicial deference to
an agency's expertise and the agency's "interpretation of its own
governing statute[.]" Gillan v. Gov't Emps. Ins. Co.,
119 Hawai#i 109, 114, 194 P.3d 1071, 1076 (2008) (internal
quotation marks and citation omitted). "The rule of judicial
deference, however, does not apply when the agency's reading of
the statute contravenes the legislature's manifest purpose."
Stout, 140 Hawai#i at 185, 398 P.3d at 774 (quoting Coon v. City
& Cnty. of Honolulu, 98 Hawai#i 233, 245, 47 P.3d 348, 360
(2002)).

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III. DISCUSSION
A. Under the circumstances of this case, the
abuse of discretion standard of review
does not apply.
In its Order Affirming Fees, the Circuit Court applied
an abuse of discretion standard of review to the Commissioner's
Order Awarding Fees. The Circuit Court reasoned that because
HRS § 432E-6(e) allowed an award of reasonable attorney's fees
and costs at the Commissioner's discretion, the Commissioner's
decision to "parse[] out three[18] discrete categories in
disallowing certain attorneys' fees and costs" was "within his
discretion as to what is a reasonable sum" for the attorney's
fees and costs incurred. (Footnote added).
Delos Santos contends that the Circuit Court erred in
failing to apply HRS § 91-14(g)(5) correctly when it concluded
that the Commissioner's denial of $3,703.30 in attorney's fees
was within the Commissioner's discretion in light of HRS Chapter
432E and the intent of the Legislature. Delos Santos claims that
the denial of the attorney's fees for the June 13, 2010 to
July 13, 2010 time frame was a mixed question of fact and law,
for which the clearly erroneous standard of review applies rather
than the abuse of discretion standard. Delos Santos also
contends that the Circuit Court "failed to apply" HRS §
91-14(g)(4) correctly on a question of law when it concluded that
the Commissioner's denial of $8,340 in costs for expert witness
fees was a permissible exercise of discretion, rather than
applying de novo review. We agree with Delos Santos to the
extent that the Circuit Court was reviewing questions of law as
to whether the Commissioner could award the attorney's fees and
expert fees in question, and thus, should have applied the de
novo standard of review.

18
The third disallowed category had to do with $184.29 in fees and
costs related to the Circuit Court appeal. This disallowed item is not at
issue in this appeal.

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HRS § 432E-6(e) provides that an enrollee like Delos
Santos "may be allowed, at the Commissioner's discretion," an
award of reasonable attorney's fees and costs "incurred in
connection with the external review[.]" (Emphasis added). The
statute grants the Commissioner discretion to determine whether
to award attorney's fees and costs "unless the Commissioner . . .
determines the appeal was unreasonable, fraudulent, excessive, or
frivolous," and the discretion to determine what is a reasonable
sum for the fees and costs awarded. Id.
Here, the Commissioner's specific denials of the
attorney's fees and expert costs at issue did not involve the
discretionary areas identified in the statute, i.e. whether to
award fees and costs or not, or what sum would be reasonable.
Rather, the Commissioner interpreted the statutory language, "in
connection with the external review under this statute," to
determine whether attorney's fees incurred during a particular
time frame were within the scope of the statute. With respect to
expert witness fees, the Commissioner also interpreted the
statute to determine whether specific costs such as expert
witness fees were permissible under the statute. Because these
are conclusions of law interpreting and applying HRS § 432E-6(e),
we apply a de novo, right/wrong standard of review. See Stout,
140 Hawai#i at 185, 398 P.3d at 774; United Pub. Workers,
106 Hawai#i at 363, 105 P.3d at 240.
B. Under the circumstances of this case, where
the two successive external reviews were
repeated attempts to reduce the amount of
coverage for the same services, the
attorney's fees incurred between the two
external reviews were "in connection with
the external review[.]"
Delos Santos contends that the Circuit Court erred in
affirming the Commissioner's reduction of attorney's fees where
both the Circuit Court and the Commissioner did not apply the
"facts in this particular case to the term 'in connection with
the external review' in light of the whole of [sic] Chapter 432E,
H.R.S. and the intent of the Legislature." Delos Santos argues

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that Evercare "attempted to address the concerns raised" in the
First External Review Order to "justify a reduction in the same
services on the same grounds by engaging an expert nurse in
anticipation of a second external review." Delos Santos asserts
that the Commissioner should have liberally construed the term
"in connection with the external review" under HRS § 432E-6(e) to
award the fees in question in light of the facts connecting the
First External Review to the Second External Review.
Relying on County of Hawai#i v. C & J Coupe Family Ltd.
P'ship, 120 Hawai#i 400, 408, 208 P.3d 713, 721 (2009), Evercare
claims that the date of the Second Final Internal Determination
is the "relevant starting point for the external review process"
when determining what attorney's fees and costs were incurred "in
connection with" the Second External Review. Evercare argues
that the supreme court in C & J Coupe interpreted a comparable
statutory provision, HRS § 101-27 (awarding prevailing defendant
in an eminent domain proceeding reasonable fees and costs "in
connection therewith"), as "properly exclud[ing] all fees and
costs incurred prior to the filing of the notice of appeal." Id.
The supreme court read HRS § 101-27 and HRAP Rule 39 (pertaining
to fees and costs on appeal), in pari materia to specifically
conclude that because "the procedures for requesting attorneys'
fees and costs on appeal are outlined in HRAP Rule 39," that
"HRAP Rule 39 should govern." Id. at 406, 208 P.3d at 719. For
the reasons we explain infra, C & J Coupe is inapposite because
it dealt with which of two attorney's fees and costs provisions
covered fees and costs on appeal. The issue here is whether the
pertinent fees and costs statute covers the period between two
external reviews that concerned the same issue — — Evercare's
successive attempts to reduce the amount of coverage for the same
services.

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1. The plain language of "in connection with
the external review" encompasses the
attorney's fees at issue.
In construing a statute, the starting point is the
language of a statute itself. Stout, 140 Hawai#i at 185, 398
P.3d at 774. "To effectuate a statute's plain language, its
words 'must be taken in their ordinary and familiar
signification, and regard is to be had to their general and
popular use.'" Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439,
449, 420 P.3d 370, 380 (2018) (internal quotation marks omitted)
(quoting State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138,
1144 (2015)). If the terms are not statutorily defined, then an
appellate court "'may resort to legal or other well accepted
dictionaries as one way to determine the ordinary meaning of
certain terms not statutorily defined.'" Id. at 449-50, 420 P.3d
at 380-81 (quoting Guyton, 135 Hawai#i at 378, 351 P.3d at 1144).
HRS § 432E-6(e) provides for attorney's fees and costs
"incurred in connection with the external review under this
section[.]" The issue here is whether the attorney's fees
incurred after the First External Review concluded and before the
Second External Review procedure began were incurred "in
connection with the external review[.]" HRS § 432E-6(e) and the
remainder of HRS Chapter 432E do not explain what "in connection
with" means under the statute. HRS § 432E-6(e) does not use
temporal, or time-specific language such as "during the external
review," but uses broader language, "in connection with[.]"
Merriam-Webster defines "in connection with" as "in relation to
(something)." In connection with, Merriam-Webster,
https://www.merriam-webster.com/dictionary/in%20connection%20with
(last visited Dec. 2, 2022). Thus, the phrase "in connection
with" -- means the attorney's fees incurred "in relation to" the
external review, without any temporal or time-specific language
like the word "during." In connection with, supra; see Omiya,
142 Hawai#i at 449-50, 420 P.3d at 380-81.

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Here, there is a clear common connection between the
attorney's fees at issue and the two external reviews, which all
concerned the same issue -- Evercare's successive attempts to
reduce the amount of covered skilled nursing services for
Daughter. The First External Review Order denied the first
attempted reduction as "not reasonable," citing the
Commissioner's concern that Evercare reduced services without
having observed Daughter's parents first performing the skilled
nursing services. In the two weeks following the May 25, 2010
First External Review Order, Evercare began to address the
concern in the First External Review Order by arranging for Nurse
Rogers to administer the Evercare Skills Check to Daughter's
parents scheduled for June 14, 2010. From June 13 to July 13,
2010, Delos Santos's counsel responded to the June 14, 2010
Skills Check by researching experts on Skills Check procedure and
attending the Skills Check, followed by reviewing and discussing
Nurse Rogers' Skills Check report with Daughter's family,
retaining and consulting opposition Skills Check experts, and
appealing Evercare's July 7, 2010 notification to again attempt
to reduce the amount of covered skilled nursing services for
Daughter. The Second External Review turned on the June 14, 2010
Skills Check, the competing expert opinions about the adequacy of
the Skills Check, and whether Evercare acted reasonably in its
second attempt to reduce the amount of covered services. While
Delos Santos lost at the Second External Review hearing in a
split 2-1 decision, the Circuit Court's Order Reversing Second
External Review Order reversed in favor of Delos Santos based on
the testimony of Delos Santos's Skills Check experts. Thus, the
record reflects that the First External Review, the Second
External Review, and Delos Santos's counsel's work in the interim
period between the two external reviews, were all connected to
the same common issue of Evercare's successive attempts to reduce
the amount of covered skilled nursing services. Under these
circumstances, we conclude that the attorney's fees at issue were

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incurred "in relation to" and in connection with both external
reviews. See HRS § 432E-6(e); In connection with, supra. As we
explain infra, this plain language construction is consistent
with the liberal approach afforded to remedial statutes like
HRS § 432E-6(e).
2. Because HRS § 432E-6(e) is a remedial
statute, the "in connection with" language
must be liberally construed.
Delos Santos argues that HRS § 432E-6 is a remedial
statute, enacted "to provide patients of managed care systems a
fair opportunity to be heard on denials of coverage in a
relatively expeditious expert forum . . . ." Citing Flores v.
United Air Lines, Inc., 70 Haw. 1, 757 P.2d 641 (1988),19 Delos
Santos urges that the Commissioner "was required to construe HRS
§432E-6(e) liberally to accomplish the purposes for which it was
enacted."
Evercare responds that "to the extent the phrase 'in
connection with' is ambiguous, the Commissioner's interpretation
must be given deference." However, the rule of deference does
not apply if we determine that the Commissioner's interpretation
of the statute contravenes the legislative purpose. See Stout,
140 Hawai#i at 185, 398 P.3d at 774. Evercare also claims that
HRS § 432E-6(e) is a fee-shifting statute "in derogation of the
common law" American Rule that parties must bear their own
attorney's fees and costs, and thus, the statute "must be
strictly construed."
"Generally, remedial statutes are those which provide a
remedy, or improve or facilitate remedies already existing for
the enforcement of rights and the redress of injuries." Kalima
v. State, 111 Hawai#i 84, 100, 137 P.3d 990, 1006 (2006) (quoting
Flores, 70 Haw. at 12 n.8, 757 P.2d at 647 n.8). A remedial

19
In Flores, the supreme court found HRS § 378-32(2), dealing with
discriminatory employment practices, was "remedial" in nature because it
granted a person whose employment was terminated due to a work injury, first
preference for reemployment by the employer if there was a job the employee
could perform. 70 Haw. at 12 n.8, 757 P.2d at 647 n.8.

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statute "is to be construed liberally in order to accomplish the
purpose for which it was enacted." Flores, 70 Haw. at 12,
757 P.2d at 647 (quoting Roe v. Doe, 59 Haw. 259, 265, 581 P.2d
310, 315 (1978)). "[R]emedial statutes should be liberally
construed to suppress the perceived evil and advance the remedies
provided by such statutes." Castro v. Melchor, 142 Hawai#i 1,
14, 414 P.3d 53, 66 (2018) (quoting Kalima, 111 Hawai#i at 100,
137 P.3d at 1006). In Amantiad v. Odum, the Supreme Court of
Hawai#i explained that workers' compensation statutes are
"remedial" in nature, as they have "beneficent purpose" and
"'liberal construction in favor of the employee'" was necessary
to fulfill the humanitarian purposes for which it was enacted.
90 Hawai#i 152, 161, 977 P.2d 160, 169 (1999) (citation omitted).
"[I]nterpretations that impede rather than advance the remedies"
provided by remedial statutes are disfavored in law. Kalima,
111 Hawai#i at 100, 137 P.3d at 1006 (quoting Flores, 70 Haw. at
12, 757 P.2d at 647).
The purpose and the history of HRS § 432E-6 indicates
that it is a remedial statute. In 1998, the Legislature enacted
HRS Chapter 432E, entitled the "Hawaii Patient Bill of Rights and
Responsibilities Act," with the following explanatory purpose:
Managed care has evolved, and Hawaii has been
fortunate not to experience the questionable practices of
certain entities engaging in managed care. Nevertheless,
legitimate concerns provide the legislature with sufficient
reason to protect the citizens of the State from certain
practices of managed care.

The purpose of this Act is to create a new chapter to
afford patients of managed care systems certain rights and
protections.

1998 Haw. Sess. Laws Act 178, § 1 at 662 (emphases added).20 The
1998 legislative history indicates that the purpose was "to enact

20
While the 1998 version of the external review statute did not
contain an attorney's fees and costs provision, it did contain the predecessor
version of the current external review procedure statute, which was then
entitled "Appeals to the Commissioner" rather than using the term "external
review." See 1998 Haw. Sess. Laws Act 178, § 6 at 664. The appeal to the
Commissioner consisted, inter alia, of a review of the "final determination by
the managed care plan" by a three-member review panel, conducted in accordance
with HRS Chapter 91. See id.

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a health care bill of rights" because "patients in managed care
need to have their rights protected in order to ensure that they
are getting the best treatment possible." S. Stand. Comm. Rep.
No. 2414, in 1998 Senate Journal, at 989-90. The Legislature
pertinently found that:

(1) Managed care is increasing in prevalence as a means of
containing health care costs;
(2) In the process of containing costs, the health and
safety of the patient must be protected; and
(3) Patients in managed health care systems are at risk of
restricted access to services, misinformation about
treatment decisions, and a lack of grievance procedures,
quality reviews, and information about their plan.

S. Stand. Comm. Rep. No. 2414, in 1998 Senate Journal, at 990.
The Legislature also stated:
Your Committees find that managed care patients need help
negotiating the complex system of managed health care.
Managed care plans were developed as a means of reducing the
costs of medical care. However, these cost-reducing
procedures often result in complications or loss of quality
of health care for the consumers. This measure will provide
patient protections, including health care rights and
standards, which will help to balance the quality of health
care received with the cost-reducing measures implemented by
managed care plans.

H. Stand. Comm. Rep. No. 1296-98, in 1998 House Journal, at 1582.
In 1999, when the attorney's fees and costs provision was added,
the Legislature explained: "[t]he purpose of this Act is to
strengthen the protection of the consumer rights of patients
receiving health care under managed care plans . . . ."21
1999 Haw. Sess. Laws Act 137, § 1 at 440.

21
The 1999 amendments to the external review statute, HRS § 432E-6,
added the attorney's fees and costs provision in subsection (d), as follows:
"(d) An enrollee may be allowed, at the commissioner's discretion, an award of
a reasonable sum for attorney's fees and reasonable costs of suit in an action
brought against the managed care plan." 1999 Haw. Sess. Laws Act 137, § 6 at
443. The Legislature explained the amendment as providing that: "[a]t the
commissioner's discretion, the enrollee may recover reasonable attorney's fees
and costs[.]" Conf. Comm. Rep. No. 121, in 1999 Senate Journal, at 896. The
legislative history does not contain any specific explanation for the addition
of the attorney's fees and costs provision.

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Thus, the Legislature's purpose for enacting the
external review statute, HRS § 432E-6, was to assist patients of
managed care plans and to afford them rights and protections.
The external review procedure in HRS § 432E-6 provided a
procedural remedy in the form of a review hearing, and served to
strengthen the "consumer rights" of patients, to enforce a
patient's rights against unreasonable adverse determinations
regarding health care coverage, and to protect the health and
safety of the patient while cost-reducing measures were
implemented by managed care plans. Id.; see S. Stand Comm. Rep.
No. 2414, in 1998 Senate Journal, at 990; H. Stand. Comm. Rep.
No. 1296-98, in 1998 House Journal, at 1582. The award of
reasonable attorney's fees and costs for an enrollee who mounted
a challenge to a managed care plan's decision through an external
review, is remedial because it "facilitate[s] . . . the
enforcement" of patients' rights through the external review
procedure. Kalima, 111 Hawai#i at 100, 137 P.3d at 1006. The
statutory provision allowing an award of reasonable attorney's
fees and costs to an enrollee promotes the "'redress of
injuries'" for enrollees who incur attorney's fees and costs for
an external review. Id. (citation omitted).
Here, in the Order Awarding Fees, the Commissioner
rejected Evercare's argument that the plain language of
HRS § 432E-6 did not authorize attorney's fees for a circuit
court appeal of an external review decision. The Commissioner
liberally construed the words "in connection with the external
review" as being "broad enough" to encompass fees incurred during
the circuit court appeal after the external review was completed.
See Adams, 2013 WL 460314 at *2.22 Such a liberal construction

22
This rationale and result awarding fees for the circuit court
appeal is similar to the Commissioner's conclusion in Adams, 2013 WL 460314,
at *2, that "the plain meaning of the words 'in connection with [the external
review]' [wa]s broad enough to encompass appeals from an external review." In
affirming the Commissioner's conclusion, this court noted that "the statute
[(HRS § 434E-6(e)], on its face, gave the Commissioner the authority to award
attorney's fees in connection with the external review and the Commissioner
(continued...)

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should also have applied to the attorney's fees incurred between
the two successive external reviews of Evercare's repeated
attempts to reduce the amount of Daughter's covered services.
Under the circumstances of this case, construing HRS § 432E-6(e)
broadly to allow for the award of attorney's fees at issue
advances the remedial purpose of the statute. See id.
For the reasons set forth above, the Circuit Court and
the Commissioner erred in their legal conclusion that the "in
connection with" language in HRS § 432E-6(e) did not encompass
the attorney's fees incurred during the period between the two
external reviews. See United Pub. Workers, 106 Hawai#i at 363,
105 P.3d at 240.
C. Under the circumstances of this case
and the principles of statutory
construction that apply to HRS Chapter
432E, expert witness fees are not
categorically excluded as recoverable
"costs" under HRS § 432E-6(e).
Delos Santos contends that the Commissioner erred in
construing HRS § 432E-6(e) to conclude that "if the Legislature
had intended to compensate for expert witness fees, they could
have stated so explicitly in the statute." Delos Santos raises a
number of arguments on how the term "costs" in HRS § 432E-6(e)
should be construed, based on statutory language, legislative
intent, public policy, and the "Conflict with other laws"
(conflict-of-laws) provision in HRS § 432E-2.23 HRS § 432E-6(e)
authorizes an award of reasonable "costs," which Delos Santos
claims must be construed to include expert witness fees, and that
such implied inclusion is consistent with legislative intent.

22
(...continued)
had the power to make such an award." Id. at *1. Applying the rule of
judicial deference to agency interpretation, we reversed the Circuit Court's
rejection of the Commissioner's award of attorney's fees and held that the
Commissioner did not palpably err in broadly construing HRS § 432E-6(e) to
allow attorney's fees for an appeal from an external review. Id. at *1-3.
23
HRS § 432E-2 (2009), entitled "Conflict with other laws,"
provides: "If there is a conflict with any other law, this chapter shall
prevail to the extent that this chapter offers greater protection or rights to
the enrollee."

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Delos Santos also argues that HRS § 432E-6(e) does not explicitly
provide for any of the costs that the Commissioner approved (i.e.
for filing fees, transcripts, copies), yet the Commissioner
improperly denied expert witness costs on this basis. Delos
Santos asserts that, pursuant to Hawai#i Administrative Rules
(HAR) § 16-201-21(d) (1990),24 because it was Delos Santos's
burden to prove by a preponderance of the evidence that Evercare
acted unreasonably in reducing services which were "medically
necessary,"25 the Legislature cannot have intended for "managed
care organizations to offer unchallenged expert opinions in the
external review." Delos Santos explains that Daughter "would

24
Delos Santos incorrectly identifies the provision specifying the
burden of proof as HAR § 16-201-20(d) [sic]. The applicable rule is HAR § 16-
201-21(d), and it provides that the "party initiating the proceeding" has the
burden of proof by a preponderance of the evidence.
25
HRS § 432E-1.4(b) (2005) sets forth the criteria for "medically
necessary" treatment, and provides that:

(b) A health intervention is medically necessary
if it is recommended by the treating physician or
treating licensed health care provider, is approved by
the health plan's medical director or physician
designee, and is:
(1) For the purpose of treating a medical
condition;
(2) The most appropriate delivery or level of
service, considering potential benefits and
harms to the patient;

(3) Known to be effective in improving health
outcomes; provided that:
(A) Effectiveness is determined first by
scientific evidence;
(B) If no scientific evidence exists, then
by professional standards of care; and
(C) If no professional standards of care
exist or if they exist but are outdated
or contradictory, then by expert
opinion; and

(4) Cost-effective for the medical condition
being treated compared to alternative health
interventions, including no intervention.
For purposes of this paragraph,
cost-effective shall not necessarily mean
the lowest price.

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have lost her medically necessary coverage without experts to
successfully challenge" the opinion of Evercare's expert.
Finally, Delos Santos makes a policy argument that:

a denial of expert fees as reasonable costs creates an
incentive for a managed care plan to routinely offer expert
witness opinions in the external review knowing or expecting
the opinions to be unopposed because managed care plan
enrollees will have to pay out-of-pocket for an expert
opinion and will not be reimbursed. Such an interpretation
would create disincentives for managed care plan enrollees
to even request an external review in the first place
because they cannot expect, even if they prevail as [Delos
Santos] did, to be put in the position they would have been
if the managed care plan had not denied coverage in the
first place. The legislative purpose of the external review
statute would surely be thwarted.

Delos Santos's arguments are persuasive.
Evercare argues that, in the litigation context, the
Hawai#i Supreme Court has stated that expert witness fees were
not within the scope of the HRS § 607-9 costs statute, citing
Mist v. Westin Hotels, Inc., 69 Haw. 192, 201-02, 738 P.2d 85,
92-93 (1987).26 Evercare asserts that Delos Santos "cite[d] no
case law for the proposition that expert witness fees are taxable
costs under HRS § 432E-6(e)." Citing examples in other statutes,
Evercare argues that: "[i]f the Legislature had wanted to allow
for recovery of expert witness fees incurred in connection with
the external review, it would have specifically referenced expert
witness fees — as it has done, when that was the legislative
intent."27

26
Similar to Delos Santos's argument here, the hotel defendants in
Mist argued that they could not have presented an adequate defense without
obtaining the opinions held by experts and medical providers. Mist, 69 Haw.
at 202, 738 P.2d at 93. The supreme court, however, noted that, assuming the
expert opinions obtained were necessary for trial preparation, it did not
necessarily follow that the expense incurred should be taxed as a cost against
plaintiffs. Id.
27
Evercare cited to the following statutes as expressly providing
for expert witness fees: HRS § 486H-11(b) (2008) (providing that in personal
injury actions brought by a plaintiff against a gasoline dealer, a prevailing
plaintiff "shall be awarded reasonable attorneys' and expert witness fees
. . . ."); HRS § 671-19 (2013) (providing that in proceedings before the
medical inquiry and conciliation panel, "[t]he panel may award costs, or a
portion thereof, including attorney's fees, witness fees including those of
(continued...)

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The issue here is whether the absence of an express
provision for expert witness fees in HRS § 432E-6(e) evidences a
legislative intent to categorically exclude expert witness fees
from being considered as part of "costs." For the reasons
explained below, we conclude that "costs" does not categorically
exclude expert witness fees under the circumstances of this case
and the statutory construction principles that apply to this
Chapter.
1. The conflict-of-laws provision under
HRS § 432E-2 applies when construing
the undefined term "costs" in
HRS § 432E-6(e).
Delos Santos argues that HRS § 432E-2 evidences
legislative intent that Chapter 432E was "expressly granted
primacy over any other law that might be construed to diminish
the protections or rights afforded enrollees[.]" Thus, to the
extent "any other law" conflicts with the "greater protection or
rights to the enrollee" under HRS Chapter 432E, this argument
urges that the Legislature intended that the broader protection
or rights of the enrollee under the Chapter must prevail.
See HRS § 432E-2.
HRS § 432E-6(e) does not specify what is included in
"costs," and we may look to "legal or other well accepted
dictionaries" for its ordinary meaning. Omiya, 142 Hawai#i at
449, 420 P.3d at 380. "Cost" is defined as: "[t]he amount paid
or charged for something; price or expenditure." Cost, Black's
Law Dictionary (11th ed. 2019). "Legal costs" is defined as:
"[a]ttorney's fees and other expenditures related to a lawsuit."
Legal costs, Black's Law Dictionary (11th ed. 2019). "Taxable
cost" is defined as, "[a] litigation-related expense that the
prevailing party is entitled to as part of the court's award."

27
(...continued)
expert witnesses, filing fees, and costs of the medical inquiry and
conciliation panel proceedings to the party applying therefor."); HRS § 584-16
(1997) (providing that in family court proceedings, the court "may order
reasonable fees of counsel, experts, and the child's guardian ad litem, and
other costs of the action and pre-trial proceedings, including genetic tests
. . . .").

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Taxable cost, Black's Law Dictionary (11th ed. 2019). Under
these definitions, expert witness fees are not categorically
excluded from the term "costs."
As Evercare points out, however, the weight of
authority in Hawai#i -- in case law and statute, provides that
"costs" do not include expert witness fees. See Mist, 69 Haw. at
202, 738 P.2d at 92 (holding that in the trial context, "[e]xpert
witness fees are not taxable as costs, absent a statute
specifically allowing such an expense"); Buscher v. Boning,
114 Hawai#i 202, 222, 159 P.3d 814, 834 (2007) ("'Costs' are
those properly awardable under HRS § 607-9[.]"). Hawai#i's costs
statute, HRS § 607-9,28 does not include expert witness fees.
Thus, the "'general and popular use'" of the term "costs" in
Hawai#i does not include expert witness fees. Omiya, 142 Hawai#i
at 449, 420 P.3d at 380 (citations omitted).
Under HRS § 432E-2, if there is a conflict with "any
other law," Chapter 432E must prevail to the extent it offers
"greater protection or rights to the enrollee." We conclude that
there is a conflict between the "other law" in Hawai#i described
supra excluding expert witness fees from "costs," and the liberal
construction that Delos Santos urges that we must afford to the
term "costs," in light of the necessity of expert witnesses and
the burden of proof Delos Santos faced. HRS § 432E-2 expresses
the Legislature's intent that Chapter 432E "shall prevail" over
"any other law" that offers less "protection or rights to the

28
HRS § 607-9 (1989) provides:
§607-9. Cost charges exclusive; disbursements

[(a)] No other costs of court shall be charged in any court
in addition to those prescribed in this chapter in any suit,
action, or other proceeding, except as otherwise provided by
law.

[(b)] All actual disbursements, including but not limited
to, intrastate travel expenses for witnesses and counsel,
expenses for deposition transcript originals and copies, and
other incidental expenses, including copying costs,
intrastate long distance telephone charges, and postage,
sworn to by an attorney or a party, and deemed reasonable by
the court, may be allowed in taxation of costs.

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enrollee." Here, the categorical exclusion of expert witness
fees from the term "costs" in other Hawai#i law conflicts with
the "greater protection or rights to the enrollee" under HRS
Chapter 432E. Under these circumstances, the conflict-of-law
provision under HRS § 432E-2 applies, and we must apply a
construction of the term "costs" that is consistent with the
"greater protection or rights to the enrollee" and the remedial
purpose of Chapter 432E.
2. In view of the burden of proof placed
on Delos Santos to demonstrate that the
proposed reduction of services was
unreasonable and the existing level of
services was "medically necessary" under
HRS § 432E-1.4, the requested expert
witness fees cannot be categorically
excluded as "costs."
In this case, the Second External Review Order, in a
2-1 split decision, concluded that Delos Santos "failed to prove
by a preponderance of the evidence that 24/7 skilled nursing care
in the home is medically necessary for [Daughter]." The Order
stated: "the Panel in a majority decision finds and concludes
pursuant to HRS § 432E-6(a)(7) that [Delos Santos] failed to
prove by a preponderance of the evidence that [Evercare] acted
unreasonably in reducing the skilled nursing home care hours for
[Daughter] to 96 hours per week." When Delos Santos appealed to
the Circuit Court, the Circuit Court reversed in favor of Delos
Santos based on the testimony of Delos Santos's Skills Check
experts. The Circuit Court specifically cited Delos Santos's
experts' testimony including that the Skills Check by Nurse
Rogers "failed to meet the standard of care in several material
respects."

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Under HRS § 432E-6(a)(7)(B),29 the external review
panel must "determine whether the managed care plan involved
acted reasonably," and must consider, inter alia, "[w]hether the
medical director properly applied the medical necessity criteria
in section 432E-1.4 in making the final determination."
Subsection (b) of the "medical necessity" statute, HRS § 432E-
1.4, provides that a "health intervention"30 is medically
necessary if it is recommended by the treating physician and

29
HRS § 432E-6(a)(7) (2005) (repealed 2011) pertinently provided:

(7) The review panel shall review every final internal
determination to determine whether the managed care plan
involved acted reasonably. The review panel and the
commissioner or the commissioner's designee shall consider:
. . . .

(B) Whether the medical director properly applied the
medical necessity criteria in section 432E-1.4 in making the
final internal determination;

. . . .
30
HRS § 432E-1.4(d) defines "health intervention" as follows:

"Health intervention" means an item or service
delivered or undertaken primarily to treat a medical
condition or to maintain or restore functional ability. A
health intervention is defined not only by the intervention
itself, but also by the medical condition and patient
indications for which it is being applied. New interventions
for which clinical trials have not been conducted and
effectiveness has not been scientifically established shall
be evaluated on the basis of professional standards of care
or expert opinion. For existing interventions, scientific
evidence shall be considered first and to the greatest
extent possible, shall be the basis for determinations of
medical necessity. If no scientific evidence is available,
professional standards of care shall be considered. If
professional standards of care do not exist or are outdated
or contradictory, decisions about existing interventions
shall be based on expert opinion. Giving priority to
scientific evidence shall not mean that coverage of existing
interventions shall be denied in the absence of conclusive
scientific evidence. Existing interventions may meet the
definition of medical necessity in the absence of scientific
evidence if there is a strong conviction of effectiveness
and benefit expressed through up-to-date and consistent
professional standards of care, or in the absence of such
standards, convincing expert opinion.

(Emphasis added).

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approved by the medical director of the health plan, and meets
the remaining criteria under subsections (b)(1) through (b)(4).
Subsection (c) provides, inter alia, that when the treating
physician and health plan medical director "do not agree on
whether a health intervention is medically necessary," an
external reviewing body must consider, but "shall not be bound
by" the recommendations of both. HRS § 432E-1.4(d) provides that
for "existing interventions," medical necessity determinations
should first consider scientific evidence; and if unavailable,
then "professional standards of care" must be considered. It
further explains that "decisions about existing interventions
shall be based on expert opinion" where professional standards of
care are "contradictory[.]" (Emphasis added). Thus, where there
are contradictory professional standards of care in determining
whether an existing health intervention is medically necessary,
HRS § 432E-1.4(d) requires that the external review panel
consider expert opinions in making its determination.
Here, Daughter's PCP's recommendation that the existing
level of services remain unchanged, conflicted with Evercare's
medical director's determination that the existing level of 24/7
covered nursing services was not medically necessary based on
Nurse Rogers' assessment. There was a dispute as to whether the
medical necessity criteria were met under HRS § 432E-1.4(b).
Delos Santos's experts opined that Nurse Rogers' Skills Check
assessment was not in accordance with the standard of care and
thus, the proposed reduction in Daughter's covered skill nursing
services was unreasonable. Under these circumstances, in light
of the dispute over the medical necessity of maintaining
Daughter's existing level of coverage of 24/7 skilled nursing
services, Delos Santos had the burden of proof at the external
review to refute the contradictory standard of care put forth by
Evercare's contrary expert opinion. See HAR § 16-201-21(d);
HRS § 432E-1.4(b) and (d); HRS § 432E-6(a)(7)(B). The record
clearly reflects that Delos Santos's experts were critical to
Delos Santos's ability to ultimately overturn the Second External

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Review Panel's decision that Delos Santos had failed to prove
that the existing level of services was "medically necessary" for
Daughter.
Under the circumstances of this case, construing
HRS § 432E-6(e) to allow the recovery of expert witness fees
incurred by Delos Santos as "costs" is consistent with the
liberal construction we must apply to fulfill the remedial
purpose of HRS § 432E-6(e). See Kalima, 111 Hawai#i at 100, 137
P.3d at 1006. Allowing expert witness fees to be recoverable as
costs is also consistent with the legislative purpose of Chapter
432E to protect the health and safety of patients and strengthen
their consumer rights through the external review procedure.
See 1998 Haw. Sess. Laws Act 178, § 1 at 662; 1999 Haw. Sess.
Laws Act 137, § 1 at 440. A broader construction of the term
"costs," that does not categorically exclude expert witness fees,
is also consistent with the greater protection of an enrollee's
rights under Chapter 432E that we must apply under the conflict-
of-laws provision of HRS § 432E-2.
For the reasons set forth above, the Circuit Court and
the Commissioner erred in their legal conclusion that expert
witness fees are categorically excluded as "costs" under
HRS § 432E-6(e). See United Pub. Workers, 106 Hawai#i at 363,
105 P.3d at 240.
IV. CONCLUSION
For the foregoing reasons, the May 4, 2017 Order
Dismissing Appeal and Affirming Commissioner's Order Awarding
Attorneys' Fees and Costs and the June 6, 2017 Final Judgment,
both filed by the Circuit Court of the First Circuit, are
vacated; and we remand to the Circuit Court with instructions to
remand to the Insurance Commissioner to consider, in the
Commissioner's discretion, the request for the subject attorney's

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fees and expert costs under HRS § 432E-6(e) consistent with this
memorandum opinion.
DATED: Honolulu, Hawai#i, February 24, 2023.
On the briefs:
/s/ Lisa M. Ginoza
Rafael G. Del Castillo, Chief Judge
(Rafael Del Castillo &
Associates), /s/ Karen T. Nakasone
for Appellant-Petitioner- Associate Judge
Appellant.
/s/ Sonja M.P. McCullen
Dianne Winter Brookins, Associate Judge
(Dentons US LLP),
for Appellee-Respondent-
Appellee Evercare.

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