This opinion will be unpublished and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

C1-00-948

 

Loretta Thompson,

Relator,

 

vs.

 

Commissioner of Health,

Respondent.

 

Filed September 11, 2001

Affirmed

Willis, Judge

 

Department of Health

 

 

Neil B. Dieterich, 912 Minnesota Building, 46 East 4th Street, St. Paul, MN  55101 (for 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 Parker, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            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.  Relator argues that the commissioner’s decision was unreasonable, made under an erroneous theory of law, and without any evidence to support it.  We affirm.

FACTS

            In October 1999, relator Loretta Thompson was working as a personal-care assistant with a private personal-care-provider organization when the Ramsey County Community Human Services Department received a report that she had threatened a vulnerable adult (VA) with physical harm and the termination of services if the VA did not sign the title card for Thompson’s van.

In January 2000, a county social worker investigated and found that (1) Thompson had purchased a van with her own and another client’s money for her clients’ use; (2) Thompson asked the VA to sign the van’s title card because Thompson already owned several vehicles and did not want the title in her own name; (3) the van did not accommodate the VA’s wheelchair; (4) the VA had felt pressured to sign the title card; (5) the VA thought that she would not get the necessary care from Thompson if she refused; (6) after the VA learned that having title in her own name could make her ineligible for financial assistance on which she relied, the VA told Thompson that she had changed her mind; (7) thereafter, the VA began to suspect Thompson of making hang-up phone calls, listening at her door, and talking about the van-title issue with other residents of her building; (8) the VA became so afraid to leave her apartment that she needed to be hospitalized; and (9) the VA sought a harassment restraining order.  The social worker’s report did not mention that the VA’s request for a harassment restraining order was dismissed in December 1999 because “the testimony of [the VA] and witness failed to establish harassment.” 

The social worker determined that “[t]his is a case of substantiated verbal abuse of a vulnerable adult.”  Under the Vulnerable Adult Act, Minn. Stat. § 626.557 (2000), oral abuse is a form of maltreatment.  See Minn. Stat. § 626.5572, subds. 15 (defining “maltreatment” to include abuse), 2(b)(2) (providing that oral conduct can constitute abuse), 1 (2000) (providing that definitions in section 626.5572 apply to the Vulnerable Adult Act).  The county informed the Department of Human Services (DHS) that it had made a determination of substantiated maltreatment of a vulnerable adult, and DHS performed a background study on Thompson.  In February 2000, DHS determined that the evidence both met the criteria for substantiation of maltreatment identified in Minn. Stat. § 245A.04 (2000) and demonstrated that recurring abuse had occurred.

DHS disqualified Thompson from holding any position allowing direct contact with persons receiving services from programs licensed by DHS or the Minnesota Department of Health, as well as unlicensed personal-care-provider organizations.  DHS notified Thompson’s employers.

Thompson filed requests for reconsideration with the Commissioner of Health.  In her requests, Thompson claimed that she had received additional training on the treatment of vulnerable adults since the alleged incident, but she provided no documentation to support her claim.  Accompanying Thompson’s requests were letters from a client, colleagues, and friends describing her good character; two letters stating that the client with whom Thompson purchased the van did not feel that Thompson’s conduct with him was abusive; and evaluations covering five years from one of her employers.  None of the letters or evaluations mentioned Thompson’s alleged abuse of the VA.  Thompson also provided the commissioner with a copy of the dismissal of the VA’s harassment restraining order.

The commissioner denied Thompson’s requests for reconsideration, and Thompson seeks certiorari review.

D E C I S I O N

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 Minnesota Department of Health or from unlicensed personal-care-provider organizations.  Fosselmann v. Comm’r of Human Servs., 612 N.W.2d 456, 465 (Minn. App. 2000) (citations omitted).  An individual must be disqualified if the background study reveals an administrative determination by, for example, a county agency, of substantiated serious or recurring maltreatment of a vulnerable adult under the Vulnerable Adult Act, Minn. Stat. § 626.557 (2000), “for which there is a preponderance of evidence that the maltreatment occurred, and that the subject was responsible for the maltreatment.”  Minn. Stat. § 245A.04, subd. 3d(a)(4) (2000).  Here, DHS reviewed the county social worker’s report, determined that recurring abuse of a vulnerable adult had occurred and met the preponderance-of-the-evidence standard for substantiation of maltreatment, and disqualified Thompson.

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 reviews and decides requests for reconsideration in accordance with the Human Services Licensing Act, Minn. Stat. §§ 245A.01-.65 (2000), and its rules, Minn. R. 9543.3000-.3090 (1999).  Minn. Stat. § 144.057, subds. 2, 3 (2000).  An individual requesting reconsideration of a disqualification must show that:

(1)the information the commissioner [of DHS] relied upon is incorrect or inaccurate * * * ; or

(2)the subject of the study does not pose a risk of harm to any person served by the applicant or license holder.

 

Minn. Stat. § 245A.04, subd. 3b(a); see also Minn. R. 9543.3080, subp. 1. 

The commissioner may set aside a disqualification if she finds that the individual made the required showing.  Minn. Stat. § 245A.04, subd. 3b(b); Minn. R. 9543.3080, subp. 3.  The commissioner’s decision to grant or deny an individual’s request for reconsideration is a quasi-judicial agency decision that is not subject to the Administrative Procedure Act, Minn. Stat §§ 14.63-.69 (2000).  Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444 (Minn. App. 1996).

On certiorari appeal from a quasi-judicial agency decision that is not subject to the administrative procedure act, [this court] inspect[s] the record to review “questions affecting the jurisdiction of the [agency], the regularity of its proceedings, and, as to the 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)).

Thompson, citing the standard of review for cases subject to the Administrative Procedure Act, argues that there was no “substantial evidence” to support the commissioner’s decision because the VA’s petition for a harassment restraining order was dismissed.  But the relevant issue is whether the commissioner’s decision is “without any evidence to support it.”  Id.

Under the Vulnerable Adult Act, “abuse” is defined to include, but is not limited to, harassment:

“Abuse” means:

 

* * * *

 

(b)Conduct * * * which produces or could reasonably be expected to produce * * * emotional distress including, but not limited to * * * treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening;

 

* * * *

 

(d) The act of forcing, compelling, coercing, or enticing a vulnerable adult against the vulnerable adult’s will to perform services for the advantage of another.

 

Minn. Stat. § 626.5572, subd. 2 (2000) (emphasis added); see also id., subd. 1 (providing that definitions in section 626.5572 apply to the Vulnerable Adult Act).  From this, we conclude that the dismissal of the harassment restraining order for lack of sufficient evidence does not, by itself, demonstrate that abuse did not occur.

The record contains a copy of the van’s title card signed by the VA and the social worker’s investigative findings that (1) the VA felt pressured to sign the title card; (2) the VA thought she would not get the necessary care from Thompson if she did not sign the title card; (3) the VA learned that she could become ineligible for certain benefits on which she relied because title to the van was in her name; (4) after telling Thompson that she had changed her mind, the VA suspected Thompson of making hang-up calls, listening at her door, and talking with other building residents about the van-title issue; and (5) the VA became so afraid to leave her apartment that she required hospitalization.  The commissioner’s decision is adequately supported by the record.

Thompson next argues that her conduct toward the VA was “not the type likely to cause any serious consequence except in the most sensitive individual” and that “[t]he duration of this incident of alleged coercion cannot support a claim of severe consequence in terms of emotional distress.”  We understand Thompson to be claiming thereby that the commissioner’s decision was unreasonable. 

In reviewing Thompson’s disqualification, the commissioner was required to consider

the consequences of the event or events that [led] 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 repeat of the same or similar event, documentation of successful completion by the individual * * * of training or rehabilitation pertinent to the event, and any other information relevant to reconsideration.

 

Minn. Stat. § 245A.04, subd. 3b(b).  The statute provides that the commissioner must give “preeminent weight to the safety of each person to be served by the license holder    * * * over the interests of the license holder.”  Id.  The statute does not require the commissioner to consider the factors cited by Thompson concerning the likelihood of distress to the VA or the duration of the alleged coercion.  Further, Thompson provided the commissioner with no documentation to support her claim that she had completed additional training on the treatment of vulnerable adults since the alleged abuse occurred.

When informing Thompson of her reconsideration decision, the commissioner cited the recency of the event, the seriousness of the event, and the vulnerability of the population that Thompson is now prevented from serving.  The commissioner considered the relevant statutory factors, and her decision was not unreasonable in light of the record.

Finally, Thompson argues that the commissioner’s decision reflects an erroneous application of the law because her actions constituted therapeutic conduct within the meaning of the Vulnerable Adult Act.  Under that act, “therapeutic conduct” is defined as

the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult by: (1) an individual, facility, or employee or person providing services in a facility under the rights, privileges and responsibilities conferred by state license, certification, or registration; or (2) a caregiver.

 

Minn. Stat. § 626.5572, subds. 1 (providing that definitions in section 626.5572 apply to the Vulnerable Adult Act), 20 (2000) (defining “therapeutic conduct”).  The commissioner argues that because Thompson was not acting in good faith in the interests of the VA, her conduct was not therapeutic conduct. We note that the social worker found that Thompson asked the VA to sign the title card because Thompson did not want title in her own name; the van did not accommodate the VA’s wheelchair; and the VA learned that having title in her name could make her ineligible for financial assistance on which she relied.  Thompson was not acting in the VA’s interests.  Further, in asking the VA to sign the title card for her van, Thompson was not providing program services, health care, or other personal-care services to the VA.  We conclude that the commissioner did not erroneously apply the law.

            Affirmed.

           



   * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.