This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Health,
Filed July 10, 2001
Department of Health
E.A.A., 653 Marshall Avenue, St. Paul, MN 55104 (pro se relator)
Mike Hatch, Attorney General, Jocelyn F. Olson, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101 (for respondent)
Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
Pro se relator appeals from the Commissioner of Health’s decision to deny reconsideration of relator’s disqualification from work allowing direct contact with persons receiving services from licensed facilities or unlicensed personal-care-provider organizations. Because the commissioner’s decision was not arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it, we affirm.
Pro se relator E.A.A. is a licensed practical nurse. In 1996, after pleading guilty to forging checks, in violation of Minn. Stat. § 609.631 (1996), she was disqualified from work allowing direct contact with persons receiving services from residential facilities licensed by the Department of Human Services (DHS) or the Department of Health. But, as allowed under Minn. Stat. § 245A.04, subd. 3b(b) (2000), she continued to work as a nursing assistant at licensed facilities by obtaining “set-asides” of her disqualification with respect to specific employers.
In July 2000, the Department of Health received a report that E.A.A. had stolen several blank checks from a 91-year-old resident of the nursing home where E.A.A. was working. In accordance with the Vulnerable Adults Act, Minn. Stat. §§ 626.557, .5572 (2000), the department conducted an investigation and concluded that E.A.A. stole checks from a vulnerable adult, forged the vulnerable adult’s signature, and persuaded an acquaintance to cash one of the checks and give E.A.A. the money. The department provided DHS with the report of its investigation; DHS determined that E.A.A. should be disqualified and that the set-asides she had obtained from her 1996 disqualification should be rescinded. E.A.A. filed a request for reconsideration with the Commissioner of Health. The commissioner denied E.A.A.’s request, and E.A.A. appeals by writ of certiorari.
After completing a background study, DHS may disqualify an individual from working in any position allowing direct contact with persons receiving services from programs licensed by DHS or the Department of Health or from unlicensed personal-care-provider organizations. Fosselman v. Commissioner of Human Servs., 612 N.W.2d 456, 465 (Minn. App. 2000). When a background study shows that (1) an employee has been convicted of or has admitted to one or more of the offenses listed in the licensing act or (2) a preponderance of the evidence indicates that the employee committed one or more of those offenses, DHS must disqualify that individual from any direct-contact position. Minn. Stat. § 245A.04, subd. 3d(a) (2000). An individual may request reconsideration of a disqualification. Minn. Stat. § 245A.04, subd. 3b(a) (2000). Although DHS makes the initial disqualification decision, the Commissioner of Health considers requests for reconsideration when the disqualified individual is employed by a facility licensed by the Department of Health. Minn. Stat. § 144.057, subd. 3 (2000).
The commissioner may set aside a disqualification upon a finding that
the information the commissioner relied upon is incorrect or the individual does not pose a risk of harm to any person served by the applicant or license holder.
Minn. Stat. § 245A.04, subd. 3b(b) (2000). The decision to grant or deny an individual’s request for reconsideration of disqualification under Minn. Stat. § 245A.04, subd. 3b (2000), is a quasi-judicial agency decision that is not subject to the Administrative Procedure Act. Rodne v. Commissioner of Human Servs., 547 N.W.2d 440, 444-45 (Minn. App. 1996).
On certiorari appeal from a quasi-judicial agency decision that is not subject to the administrative procedure act, [this court] inspects the record to review “questions affecting the jurisdiction of the [agency], the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”
Id. (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992)).
DHS informed E.A.A. that she was disqualified because the Department of Health had determined that she maltreated a vulnerable adult. Under the Vulnerable Adults Act, Minn. Stat. §§ 626.557, .5572 (2000), financial exploitation of a vulnerable adult constitutes maltreatment. Minn. Stat. § 626.5572, subd. 15. Financial exploitation includes willful use, withholding, or disposal of the funds or property of a vulnerable adult. Id., subd. 9(b)(1). An individual “shall be disqualified” from any direct-contact positions when a background report shows that the individual engaged in
substantiated serious or recurring maltreatment * * * of a vulnerable adult * * * for which there is a preponderance of the evidence that the maltreatment occurred, and that the subject was responsible for the maltreatment.
Minn. Stat. § 245A.04, subd. 3d(a)(4).
E.A.A. argues that the commissioner “relied upon inaccurate, untrue and unfounded information” in determining that she maltreated a vulnerable adult because the commissioner “alleges that the petitioner stole and cashed checks from a patient in her care” whereas, according to E.A.A., “none of the alleged checks were made payable to nor were they cashed by the petitioner.” But the Department of Health’s report indicates: (1) four blank checks were stolen from the vulnerable adult, (2) E.A.A. had an opportunity to take the checks, (3) an individual to whom one of the stolen checks was made payable informed the department that E.A.A. had asked her to cash the check and give E.A.A. the money, and (4) police reports indicated that an individual to whom two of the other stolen checks were made payable lived in E.A.A.’s neighborhood. Therefore, it appears that the commissioner did not rely on incorrect information in determining that a preponderance of the evidence showed that maltreatment occurred and that E.A.A. was responsible for the maltreatment.
E.A.A. also challenges the commissioner’s denial of her request for reconsideration of the rescission of set-asides from her previous disqualification. The commissioner based her denial on her determination that E.A.A. poses “a risk of harm to any person served by the applicant or license holder.” See id., subd. 3b(a)(2). In determining whether an individual poses a risk of harm
the commissioner shall consider the consequences of the event or events that lead to disqualification, whether there is more than one disqualifying event, the vulnerability of the victim at the time of the event, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event, and any other information relevant to reconsideration. In reviewing a disqualification under this section, the commissioner shall give preeminent weight to the safety of each person to be served by the license holder or applicant over the interests of the license holder or applicant.
Id., subd. 3b(b). Here, the commissioner considered these factors and denied reconsideration of the rescission of E.A.A.’s set-asides because of (1) the recentness of the theft, (2) the vulnerability of persons receiving services from licensed facilities and unlicensed personal-care-provider organizations, (3) the lack of evidence of rehabilitation by E.A.A., and (4) the seriousness of the theft. This conclusion is supported by the record.
Finally, E.A.A. argues that DHS relied on E.A.A.’s 1996 guilty plea to check forgery in determining that she posed a risk of harm, thus violating the constitutional prohibition against double jeopardy. DHS cited E.A.A.’s 1996 conviction in noting that she had been granted set-asides from the resulting disqualification and that those set-asides were to be rescinded. But DHS did not base its decision to rescind E.A.A.’s set-asides on her past disqualification; rather it based its decision on the factors cited above.
E.A.A. has not shown that the information that the commissioner relied on was incorrect or that she does not pose a risk of harm to persons served by licensed facilities or unlicensed personal-care-provider organizations. Therefore, the commissioner’s denial of E.A.A.’s request for reconsideration both of her disqualification and of DHS’s rescission of her set-asides was not arbitrary, oppressive, unreasonable, fraudulent, made under an erroneous theory of law, or without any evidence to support it.
 Further, the Double Jeopardy Clauses of the United States and Minnesota Constitutions operate to protect a criminal defendant from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple criminal punishments for the same offense. State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). “The Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment.” Hudson v. United States, 522 U.S. 93, 98-99, 118 S. Ct. 488, 493 (1997) (quotations omitted). It protects “only against the imposition of multiple criminal punishments for the same offense.” Id. at 99, 118 S. Ct. at 493 (emphasis in original) (citations omitted). Neither DHS nor the Department of Health has the authority to impose criminal punishments on E.A.A. for her prior forgery conviction.