This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Axis Minnesota, Inc,





Commissioner of Human Services,




November 13, 2001


Amundson, Judge


Ramsey County District Court

File No. C2-00-2123


Kevin M. Lindsey, 1611 Ames Avenue, St. Paul, MN 55106 (for appellant)


Mike Hatch, Attorney General, Theresa Meinholz-Gray, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D  O P I N I O N


            These proceedings began after a young boy died while admitted to appellant’s intermediate care facility.  The commissioner of human services determined that the facility was culpable for maltreatment based on neglect.  At appellant’s request, an evidentiary hearing was held before a department appeals referee who recommended the original determination be upheld.  The commissioner adopted the referee’s findings and conclusions.  The district court affirmed the commissioner’s order.  We affirm.


            A.W., an eight-year-old boy, suffered from profound mental retardation, spastic quadriplegia, cerebral palsy, hydrocephaly, and retinothapy.  He was totally disabled.  A.W. lived with his parents, but had received respite care at the Axis of Minnesota, Inc. (Axis) intermediate care facility approximately 30 times.  The Axis facility has a capacity for 32 patients who stay in four “houses” labeled A through D.  A.W. was scheduled for respite care for ten days in May 1998.   

Before his arrival, A.W.’s physician John Balfanz, M.D., spoke with Axis nurse Paris Carpenter whom he advised that A.W. was in respiratory distress and that his oxygen saturation levels were to be monitored every two hours while awake and continuously while asleep.  His orders also provided that A.W. required a cervical collar to maintain an open airway.  The collar could be removed up to four times per day for short periods with nursing care present.  He instructed that A.W.’s head was to be elevated at all times. 

Dr. Balfanz’s written orders were transferred to Axis and all Axis employees were informed that new information had been placed in A.W.’s medical administration record.  A nurse testified that it took from one to three hours to complete a review of a medical administration record for a new patient.  None of the nurses taking care of A.W. signed the legend that would indicate they had read A.W.’s record. 

On May 1, 1998, A.W. arrived at House A with his own cervical collar, continuous oximeter, and fingerprobe for the oximeter.  A.W.’s oximeter took continuous readings of his oxygen saturation level and heart rate, and sounded an alarm when his oxygen saturation level or heart rate dropped dangerously low.  The portable oximeters that Axis owned did not take continuous readings and had no alarm. 

Taofikat Oshodi was a licensed practical nurse and had been working since noon on May 1, 1998.  She was Axis’s only regular nurse working in Houses A and B when A.W. arrived.  She told her supervisor that she had not worked with A.W. and was not familiar with his needs, history, medications, and treatment orders. 

Because no other regular nurses were working that afternoon and evening, Oshodi had to assist a substitute or “pool” nurse, who was on her second day at Axis, in completing her duties in Houses C and D.  Because the pool nurse was unable to keep abreast of her duties, Oshodi requested help with A.W. from another nurse.  But that nurse then left for the day.  Oshodi also was unable to obtain additional assistance from other qualified staff members.  Throughout her shift, Oshodi asked her supervisor for additional nursing assistance.  Consequently, Oshodi’s supervisor took a nurse out of orientation to assist in Houses A and B. 

Oshodi testified that she did not have any time to look into A.W.’s medical administration record until 10:30 to 11:00 p.m. – after she had provided some care to A.W.  Oshodi did not know that A.W. had brought his own continuous oximeter.  She also misinterpreted Dr. Balfanz’s order to “monitor O2 sats every 2 hours and PRN while awake and continuous asleep” to mean “frequent” monitoring of oxygen saturation levels throughout the night.  Consequently, from 11:00 p.m., May 1, 1998 until 4:00 a.m., May 2, 1998, Oshodi used one of Axis’s portable oximeters, instead of his personal continuous oximeter, to measure A.W.’s oxygen saturation levels approximately every two hours.  By the time another nurse relieved Oshodi at approximately 4 a.m. on May 2, 1998, Oshodi had been working for 16 continuous hours and was behind on her responsibilities. 

Kimberly Human was scheduled to work form 12:00 p.m. to 10:00 p.m. on May 2, 1998, but, because Axis was short-staffed, she came to work early at 8:09 a.m.  Human was given permission to leave at 8:39 p.m.  When she left there were no nurses working in Houses A and B, only direct care staff employees.  She did not hook up A.W.’s continuous oximeter before she left, but asked another staff member to complete that task.  That staff member did not do so. 

Axis called one of its regular nurses, Christopher Barnes, to work when another nurse threatened to quit if mandated to work an extra shift.  When he arrived at 9:30 p.m. on May 2, 1998, he noticed that staff members in the previous shift had failed to complete many tasks and that many of the residents were not wearing physician-ordered equipment.  Barnes noticed A.W. asleep in his bed with his cervical collar and oximeter off.  Barnes saw A.W.’s cervical collar on the dresser and A.W.’s personal oximeter in the room.  Barnes put the collar on A.W., immediately checked his oxygen saturation level with a portable oximeter, and positioned A.W. so that he could breathe.  He did not hook up A.W.’s continuous oximeter because the fingerprobe was missing.  Barnes testified that he felt that A.W. was in imminent and serious risk of harm while he was not wearing the cervical collar because he could shift enough to occlude his airway and die.  Barnes continued to monitor A.W. throughout the night, but between 6:00 and 6:15 a.m. on May 3, Barnes discovered that A.W. had died. 

            After an investigation, the Minnesota Department of Human Services, Division of Licensing (department) concluded that Axis had maltreated A.W and identified three specific incidents of neglect where Dr. Balfanz’s orders were not followed.  First, A.W. was found sleeping during the evening of May 2, 1998 without his cervical collar.  Second, during the evening of May 1, 1998 and the morning of May 2, 1998, Oshodi failed to monitor A.W.’s oxygen saturation levels and heart rate with the continuous oximeter.  Third, during the evening of May 2, 1998 and the morning of May 3, 1998, Barnes failed to monitor A.W.’s oxygen saturation levels and heart rate with the continuous oximeter.

The department concluded that Axis was culpable for the first two incidents of maltreatment because it failed to provide adequate staffing to ensure that Dr. Balfanz’s orders were followed and failed to properly train its staff about A.W.’s needs.  Although Barnes was familiar with A.W.’s needs and had received training, the department concluded that Axis was culpable for the third incident of maltreatment because Barnes failed to provide the necessary medical care due to inadequate staffing.

The department denied Axis’s request for reconsideration and an evidentiary hearing was held before a department appeals referee.  A co-owner of Axis testified that staff members were not allowed to work with clients until they had reviewed the individual’s entire plan.   Axis’s program abuse prevention plan indicated that a staff ratio of 4:8 is desirable while patients are awake and that a minimum ratio of 1:4 is maintained during waking hours and 1:8 during sleeping hours.  A registered nurse testifying as an expert for Axis indicated that having only two nurses on duty during evening hours would be below Axis’s normal staffing pattern, but within the minimum requirements. 

On February 2, 2000, the appeals referee issued a decision recommending that the Commissioner of Human Services uphold the original determination.  The referee found that the number of nurses met Axis’s minimum policy but concluded that the method by which Axis met its staffing requirements warranted culpability for the maltreatment that occurred.  The referee found that the evidence did not support Axis’s contention that the staff was given training on each resident before caring for that person.  The referee concluded that the misunderstanding of Dr. Balfanz’s order relating to the collar by all staff indicated a lack of supervision and orientation by Axis and not an isolated failure by one professional.

After the hearing, the chief appeals referee adopted the findings and conclusions on behalf of the commissioner.  Axis appealed to the district court, which held a hearing and affirmed the commissioner’s order.  This appeal followed.      


            Notwithstanding the district court’s review, we independently review the agency record.  Hazelton v. Commissioner of Dep’t of Human Servs., 612 N.W.2d 468, 470 (Minn. App. 2000).  A reviewing court must uphold the decision of an administrative agency where it has engaged in reasoned decision-making, even if we may have reached a different conclusion had we been the fact-finder.  Cable Communications Bd. v. Nor-West Communications Partnership, 356 N.W.2d 658, 669 (Minn. 1984).  We presume the agency’s decision to be correct and show deference to the agency’s conclusions within its area of expertise.  Id. at 668.  We reverse only where

there is a combination of danger signals which suggest the agency has not taken a “hard look” at the salient problems and the decision lacks articulated standards and reflective findings.

Id. at 669 (quotations omitted). 

As a contested case, appellate review of an agency’s decision is conducted under the Administrative Procedure Act.  Zahler v. Minnesota Dep’t of Human Servs., 624 N.W.2d 297, 300-01 (Minn. App. 2001), review denied (Minn. June 19, 2001).  An agency’s decision that is unsupported by substantial evidence in the entire record may be reversed.  Minn. Stat. § 14.69 (2000).  Substantial evidence has been defined as evidence considered in its entirety that is (1) relevant evidence that a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; or (4) more than any evidence.  Cable Communications Bd., 356 N.W.2d at 668. 


The commissioner determined that maltreatment occurred on May 2, 1998 based on neglect by Axis and its staff.  “Maltreatment” is defined as, inter alia, neglect by a person responsible for a child’s care.  Minn. Stat. § 626.556, subd. 10e(a)(2) (Supp. 1997).  “Neglect” is defined as

failure by a person responsible for a child’s care to supply a child with necessary medical care required when reasonably able to do so [or] failure to protect a child from conditions or actions which imminently and seriously endanger the child’s physical * * * health when reasonably able to do so.

Minn. Stat. § 626.556, subd. 2(c) (Supp. 1997). 

            Axis contends the evidence is insufficient to support the commissioner’s determination that A.W. was neglected between 8:30 p.m. and 9:30 p.m. on May 2, 1998.  But, contrary to Axis’s argument, the department found that the neglect occurred during the evening of May 2, 1998 and did not limit that finding to a one-hour time period.  The finding is supported by the evidence that during the evening of May 2, 1998, the nursing staff failed to provide A.W. with a cervical collar and failed to monitor his oxygen saturation levels with a continuous oximeter.  Barnes’s testimony showed that when he started his shift on May 2, 1998, he found A.W. sleeping without his cervical collar or his continuous oximeter attached.  He also admitted that he did not attach A.W.’s continuous oximeter while A.W. was sleeping.  These omissions contravened Dr. Balfanz’s orders that A.W. wear his cervical collar to maintain an open airway and allowed for removal only when nursing staff was present, and that he be attached to his continuous oximeter at all times. 

            Axis also argues that no neglect occurred at all.  Axis contends that A.W. could not have been injured while not wearing his cervical collar because he was not having breathing problems when Human, the nurse on duty during the early evening on May 2, 1998, left and Dr. Balfanz’s testified that A.W.’s status as a quadriplegic rendered him unable to move himself into a dangerous position.  But Dr. Belfanz testified that A.W. could nevertheless be moved into a dangerous position accidentally.  If any number of unforeseen circumstances occurred, A.W. could have been injured.  Thus, there is sufficient evidence in the record that Axis’s omissions constituted neglect under the statute. 

            Axis also argues that no “imminent” harm could have occurred during the evening of May 2, 1998.  But the definition of “neglect” in terms of substandard medical care does not require imminent harm.  Minn. Stat. § 626.556, subd. 2(c).  Dr. Belfanz ordered a cervical collar at all times unless monitored and that his continuous oximeter be attached while he was asleep.  A.W. was found several times not to be wearing a cervical collar while unmonitored.  He was also allowed to sleep without being attached to his continuous oximeter.  Those omissions, by their plain terms, constitute a failure to provide necessary medical care.

Axis next contends that there was insufficient evidence to support the commissioner’s determination that Axis was the cause of A.W.’s maltreatment during the evening of May 2, 1998.  Axis characterizes its culpability as based on its failure to train the particular staff members who worked on May 1, 1998 and contends that this failure did not result in the maltreatment that occurred the evening of May 2, 1998.  But Axis’s argument misstates the commissioner’s decision.  The commissioner affirmed the department’s report, both on Axis’s failure to train as well as its failure to supply adequate staffing during the night of May 2-3, 1998.  Because Axis allowed Human to leave work early, there was no nurse in House A on May 2, 1998 from approximately 8:39 p.m. until Barnes arrived at 9:30 p.m.  Before Human left, she failed to put on A.W.’s cervical collar or continuous oximeter.  Still, she left early with permission.  Furthermore, even though the nursing staff that evening was, according to Axis’s expert, numerically sufficient, it was below Axis’s normal staffing levels.  Finally, the evidence showed that the staff members present were untrained in A.W.’s care. 


Axis argues that Minn. Stat. § 626.556, subd. 10e, is a criminal statute and, as such, requires that any negligence on Axis’s part be proven to be a “gross deviation of care” and that there is insufficient evidence to support such a determination.

Axis cites toState v. Grover, 437 N.W.2d 60, 63 (Minn. 1989) for the proposition that this statute cannot hold it culpable for ordinary negligence, rather only for a gross deviation of care.  In Grover, the individual defendant was being charged with a misdemeanor for failure to report abuse under Minn. Stat. § 626.556, subd. 6 (1996).  Id.  Because the statute imposed a penalty for “negligence,” but did not explicitly define that term, the supreme court applied the criminal definition of negligence, which is limited to gross deviations from the standard of care.  Id. at 63.  But when making a determination of whether an action is criminal or civil, the intent of the legislature and the purpose of a penalty will control.  State by Humprey v. Alpine Air Products, Inc., 500 N.W.2d 788, 792 (Minn. 1993).  Only upon the clearest proof will the assessment of a penalty convert a civil action into a criminal one.  Id. 

Minn. Stat. § 626.556, subd. 10e imposes a civil, not a criminal, penalty in this instance.  In its original determination, the department imposed license restrictions, recommended policy revisions, and a fine of $7,800.  It did not punish Axis with heavy punitive fines.  Because the statute imposes only a civil penalty on Axis, we read the statute as plainly written and do not apply the criminal definition of negligence. 


Axis contends that the district court erred by upholding the commissioner’s decision because the district court used a different rationale than that submitted by the commissioner.  But, in reviewing the order of a commissioner of human services, the district court is engaged in appellate review.  Zahler, 624 N.W.2d at 301.  We therefore examine the commissioner’s order independently and give no deference to the district court’s decision.  Id.  We do not rely on the district court’s analysis in reaching our decision and therefore Axis’s argument that the district court’s reasoning is flawed is irrelevant.


We deny Axis’s motion to supplement the record with the April 26, 2001 final agency decision regarding its conditional license.  The portion of the April 26, 2001 decision that is the subject of Axis’s motion involves a licensing violation, not the maltreatment determination that is the subject of this action.  Although both determinations arise out of the same circumstances, the licensing violation and maltreatment determination are not identical.  The licensing violation addressed Axis’s failure to properly supervise A.W.  See Minn. Stat. § 245B.06, subd. 7 (Supp. 1997) (“The license holder must provide supervision to ensure the health, safety, and protection of rights of each consumer and to be able to implement each consumer’s individual service plan.”).  The maltreatment determination was based on neglect.  See Minn. Stat. § 626.556, subds. 2(c), 10e(a)(2) (defining neglect, including failure to provide necessary medical care, as among the bases for a maltreatment determination).  Any admission by the commissioner that there was insufficient information in the investigation report that A.W. was not properly supervised is not relevant to the issue of neglect and does not affect the outcome of any determination of neglect.  We decline to supplement the record under these circumstances.  See Village Apartments v. State (In re Real Prop. Taxes), 335 N.W.2d 717, 718 n. 3 (Minn. 1993) (we normally do not consider papers not filed with trial court and only do so when evidence is “documentary evidence of a conclusive nature”).