This opinion will be unpublished and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 Human Services,
Department of Human Services
Kevin M. Lindsey, 1611 Ames Avenue, St. Paul, MN 55106 (for relator)
Mike Hatch, Attorney General, Cheri A. Townsend, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
After the death of a minor at relator’s intermediate care facility, the Department of Human Services issued the facility a conditional license, ordered corrections, and imposed fines for failing to report maltreatment. This certiorari appeal is from the Commissioner of Human Services’ final order after reconsideration. We affirm in part and reverse in part.
Axis Minnesota, Inc. (Axis) manages an intermediate care facility for individuals with mental retardation. The facility is divided into four houses. A.W., a totally disabled, eight-year-old, quadriplegic boy who required nursing care 24 hours per day, received care in house “A” during the weekend of May 1-3, 1998.
Before A.W.’s stay at the facility, his physician, Dr. John Balfanz, prepared treatment orders that required that A.W.’s oxygen-saturation levels be monitored every two hours and as needed while A.W. was awake and continuously while he was asleep. Also, A.W. wore a cervical collar to keep his head from falling forward and occluding his airway. Balfanz’s orders provided that the collar could be removed up to four times per day as needed for short periods of time “only when nursing staff was present.” A.W.’s head was to be elevated at all times.
On April 30, 1998, Axis nurses Paris Carpenter and Kimberly Human transferred Balfanz’s orders to the Axis medication administration record (MAR). Carpenter forwarded the MAR to Balfanz to sign, which he did. Then, Carpenter used e-mail to inform all Axis employees about the new information and to tell them that the information could be found in A.W.’s MAR. None of the nurses who took care of A.W. signed the legend in A.W.’s file to indicate that they had read his documents.
On May 1, 1998, when A.W. was dropped off at Axis’s facility, he had with him a cervical collar, a continuous oximeter, and a finger probe for the oximeter.
On May 1, Stacey Findley worked as the Axis staff coordinator and was responsible for directing the work of the direct care workers from 11:00 p.m. onward. Taofikat Oshodi, a licensed practical nurse was scheduled to work in House C from noon to 10:00 p.m. on May 1, but she was switched to Houses A and B because Axis was short-staffed and she was the only regular staff member for the evening shift. Carpenter told Oshodi that A.W. was scheduled to arrive for respite care in House A that evening. Oshodi told Carpenter that she had not worked with A.W. and was not familiar with his needs. Oshodi knew where the orientation materials for patients were located because she had gone through a three-day orientation course when she joined Axis in February 1998. She had also used an oximeter with at least five residents before A.W.’s stay.
A substitute or “pool” nurse was working in Houses C and D during the evening shift. The pool nurse told Oshodi that it was her second day working at Axis and that she was only familiar with House C. The pool nurse threatened to walk out, but Oshodi talked her into staying and assisted her in completing her duties. Because the pool nurse could not keep up with the pace of the care, Oshodi requested help from a registered nurse and qualified mental retardation professional, Laura Fosselman, but Fosselman left shortly after her conversation with Oshodi. Oshodi also tried to request additional assistance from other qualified mental retardation professionals, but they all had left for the day. Consequently, Findley took a nurse out of orientation to assist Oshodi, but the nurse only felt comfortable measuring vital signs.
At 9:00 p.m., Oshodi learned that Axis was requiring her to work a second shift, until 4:00 a.m. She testified that she did not have time to review A.W.’s MAR until between 10:30 and 11:00 p.m. Oshodi did not know that A.W. had his own continuous oximeter. She also misinterpreted 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. on May 1, 1998, until 4:00 a.m. on May 2, 1998, Oshodi used one of Axis’s portable oximeters to measure A.W.’s oxygen-saturation levels approximately every two hours. The oximeter that A.W. brought with him could measure his oxygen level and heart rate continuously and sounded an alarm if either passed a danger mark. The portable oximeter Oshodi used did not take continuous measurements and did not have an alarm.
At approximately 4 a.m. on May 2, nurse Jodi Nemo relieved Oshodi. Oshodi was behind on her duties when Nemo arrived. Nemo noticed that A.W. did not have his continuous oximeter hooked up.
Human was scheduled to work from 12:00 noon to 10:00 p.m. on May 2, 1998, but because Axis was short-staffed, she came to work at 8:09 a.m. Because Human had come in early, she was permitted to leave early at 8:39 p.m. She did not hook up A.W.’s continuous oximeter before she left because Diana Abrams, a direct-support staff member, was working with A.W. She asked another nurse, Shirley Merchant, to complete that and other care. Merchant could not, but said that she would tell another nurse, Christopher Barnes, to do so when he arrived at 9:30 p.m.
When Barnes arrived, he noticed that A.W. was asleep in his bed without his cervical collar, and without an oximeter. 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., 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 finger probe was missing. Barnes felt that A.W. was in imminent and serious risk of harm because he was not wearing the cervical collar and could change position enough to occlude his airway and die. Barnes continued to monitor A.W. throughout the night. Sometime between 6:00 and 6:15 a.m. on May 3, Barnes discovered that A.W. had died.
Following A.W.’s death, the Minnesota Department of Human Services Licensing Division Investigations Unit investigated the events surrounding A.W.’s stay at Axis. The Investigations Unit concluded that Barnes was culpable for one incident of maltreatment of A.W. and that Axis was culpable for two incidents of maltreatment of A.W. The matter was then referred to the Department of Human Services Licensing Division Background Studies Unit, which disqualified Axis employees Lachelle Giese, Ellen Hill, and Laura Fosselman for failing to report the suspected maltreatment of A.W. The commissioner imposed fines and issued a conditional license and correction orders to Axis for violations of various statutes and because maltreatment had occurred at the facility and had not been reported.
Axis appealed the determination that it was culpable for two incidents of maltreatment of A.W. After an evidentiary hearing, an appeals referee recommended that the commissioner affirm the Investigations Unit’s maltreatment determination, and the commissioner adopted the recommendation. On May 15, 2000, the Commissioner issued a final order affirming the conditional license and all fines, except for a reduction in the fine for citation eleven. Axis appealed directly to this court, which, upon motion by the commissioner, remanded the conditional license and order to forfeit a fine to the commissioner for further fact finding. On December 15, 2000, the commissioner rescinded some of the fines and upheld others. Axis requested a reconsideration of violation 5. On April 26, 2001, the commissioner issued a final order upholding the fine under violation 5a, but rescinding the fines under violations 5b-5e. The commissioner also ordered that Axis’s conditional license expire on June 21, 2001. In this appeal, Axis challenges the fines imposed.
In a contested case, this court reviews the agency’s decision under the Administrative Procedure Act. Zahler v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 300-01 (Minn. App. 2001), review denied (Minn. Jun. 19, 2001). In a judicial review of a contested case,
the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) In violation of constitutional provisions; or
(b) In excess of the statutory authority or jurisdiction of the agency; or
(c) Made upon unlawful procedure; or
(d) Affected by other error of law; or
(e) Unsupported by substantial evidence in view of the entire record as submitted; or
(f) Arbitrary or capricious.
Minn. Stat. § 14.69 (2000).
Substantial evidence means:
1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
2. More than a scintilla of evidence;
3. More than some evidence;
4. More than any evidence; and
5. Evidence considered in its entirety.
Cable Communications Bd. v. Nor-West Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984) (citation omitted).
While this court is not bound by an agency’s conclusions of law, the manner in which an agency has construed a statute may be entitled to some weight when the statutory language is technical in nature and the agency’s interpretation is one of longstanding application.
Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996) (citing Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978)).
1. Violation 1. Axis was fined for violating Minn. Stat. § 245A.65, subd. 2(b)(1) (2000); Minn. Stat. § 626.557, subd. 14(b) (2000); and Minn. Stat. § 245B.06, subd. 2 (2000). Minn. Stat. § 245A.65, subd. 2, provides:
All license holders shall establish and enforce ongoing written program abuse prevention plans and individual abuse prevention plans as required under section 626.557, subdivision 14.
Axis argues that because Minn. Stat. § 626.557, subd. 14(b), only requires a facility to develop an individual abuse prevention plan “for each vulnerable adult residing there,” and a vulnerable adult is “any person 18 years of age or older,” Minn. Stat. § 626.557, subd. 21 (2000), the department had no basis to fine Axis because the individuals for whom Axis failed to develop individual abuse prevention plans were all less than 18 years of age.
The commissioner argues that Axis failed to raise this issue in its requests for reconsideration, and Axis points to no specific evidence that it argued to the commissioner that the statutory requirements that it was fined for violating do not apply to minors. Therefore, the issue is not properly before this court. See Thayer v. Am. Fin. Advisors, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (“A reviewing court must limit itself to a consideration of only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.”)
But even if the issue were properly before us, we note that Axis fails to acknowledge that the fine imposed for violation 1 was also imposed for violating Minn. Stat. § 245B.06, subd. 2. That statute requires license holders to “develop and document a risk management plan that incorporates the individual abuse prevention plan as required in section 245A.65.” But it does not limit the risk management plan to risks faced by adult consumers for whom an individual abuse prevention plan has been prepared. Instead, the statute states,
Upon initiation of services, the license holder will have in place an initial risk management plan that identifies areas in which the consumer is vulnerable * * * .
The license holder is responsible for meeting the health service needs assigned to the license holder in the individual service plan and for bringing health needs as discovered by the license holder promptly to the attention of the consumer, the consumer’s legal representative, and the case manager. The license holder is required to maintain documentation on how the consumer’s health needs will be met, including a description of procedures the license holder will follow for the consumer regarding medication monitoring and administration and seizure monitoring, if needed. The medication administration procedures are those procedures necessary to implement medication and treatment orders issued by appropriately licensed professionals, and must be established in consultation with a registered nurse, nurse practitioner, physician’s assistant, or medical doctor.
The department fined Axis for failing to meet A.W.’s needs as specified in his individual service plan (ISP). A.W.’s ISP states, “[A.W.] wears a cervical collar to keep his airway open. [A.W.] continues with an apnea monitor and oximeter at night or when napping.”
A.W.’s physician stated in treatment orders that A.W.’s cervical collar could be removed for a short period up to four times per day with a nurse present and that A.W.’s oxygen-saturation levels should be monitored every two hours and as needed while A.W. was awake and continuously while he was asleep. The commissioner explained the basis for fining Axis as follows:
On May 2, 1998, [A.W.]’s cervical collar was removed without a nursing staff person present. [A.W.] was not continuously monitored with an oximeter during the night on May 1 and 2, 1998, or May 2 and 3, 1998.
Axis argues that it did not fail to comply with A.W.’s ISP because the ISP contains no language requiring that only a nurse may remove the cervical collar or that a nurse remain in A.W.’s presence while the collar was removed. Axis argues further that the commissioner provided no basis for concluding that measuring A.W.’s oxygen-saturation levels every two hours, as Axis did, failed to comply with A.W.’s ISP.
Even if Axis was not required to comply with treatment orders for A.W. and the statute only required Axis to meet the health service needs expressly described in the ISP, we conclude that the commissioner’s decision that Axis violated Minn. Stat. § 245B.05, subd. 5, is supported by substantial evidence and is not legally erroneous. Although it is correct that the ISP did not require that A.W.’s cervical collar could only be removed with a nurse present, the ISP did not indicate that the collar could be removed at all. Similarly, the ISP stated that A.W. continues with an oximeter at night or when napping; it did not indicate that there was any time while A.W. was sleeping that an oximeter was not required. It is undisputed that while A.W. was at Axis, there were times when his cervical collar was removed and times at night when he was not connected to an oximeter.
3. Violation 3. Axis was fined for violating Minn. Stat. § 626.556, subd. 3 (a) (2000), which states:
A person who knows or has reason to believe a child is being neglected or physically or sexually abused, as defined in subdivision 2, or has been neglected or physically or sexually abused within the preceding three years, shall immediately report the information to the local welfare agency, agency responsible for assessing or investigating the report, police department, or the county sheriff if the person is:
(1) a professional or professional’s delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement.
Under Minn. Stat. § 245A.04, subd. 3d(4) (2000), an individual who is required to report maltreatment can be disqualified from any position that allows direct contact with a person receiving services from a license holder if the individual failed
to make required reports under section 626.556, subdivision 3, or 626.557, subdivision 3, for incidents in which: (i) the final disposition under section 626.556 or 626.557 was substantiated maltreatment, and (ii) the maltreatment was recurring or serious; or substantiated serious or recurring maltreatment of a minor under section 626.556 or of a vulnerable adult under section 626.557 for which there is a preponderance of evidence that the maltreatment occurred, and that the subject was responsible for the maltreatment.
The commissioner disqualified Axis employees Laura Fosselman and Lachelle Giese after determining that they failed to report maltreatment. The commissioner also fined Axis for each failure to report. Axis argues that the fines should be set aside because the disqualifications of Fosselman and Giese were inappropriate as a matter of law. But the fines were not imposed because Fosselman and Giese were disqualified; they were imposed because they failed to report maltreatment.
Under the plain language of Minn. Stat. § 245A.04, subd. 3d(4), a failure to make a required report under section 626.556, subdivision 3, is just one of the conditions that must be met before an individual can be disqualified. Therefore, even if the disqualifications were inappropriate because some other requirements were not met, the fines could be imposed if Fosselman and Giese failed to report. In their disqualification hearings, Fosselman and Giese stipulated that they did not make a report of suspected maltreatment of A.W. regarding the incident at Axis.
Also, Minn. Stat. § 626.526, subd. 2(c)(1) defines “neglect” as
failure by a person responsible for a child’s care to supply a child with necessary food, clothing, shelter, health, medical, or other care required for the child’s physical or mental health when reasonably able to do so.
There is substantial evidence in the record to support a conclusion that removing A.W.’s cervical collar without a nurse present and failing to continuously monitor his oxygen-saturation level and heart rate while he slept were failures to supply A.W. with necessary medical care required for his physical health. Axis was reasonably able to avoid both failures by not removing the cervical collar when there was no nurse present and by using the continuous oximeter that A.W. brought with him. Therefore, there was reason to believe that A.W. was neglected.
Axis also argues that the final orders disqualifying Fosselman and Giese did not contain factual findings that either Fosselman or Giese was aware that A.W. was neglected. But the order affirming Fosselman’s disqualification contains a finding that Fosselman
signed an affidavit in which she admitted that she knew that AW’s oxygen saturation levels were not continuously monitored on the evening of May 1, 1998, and on the evening May 2, 1998, through the morning of May 3, 1998.
And the order affirming Giese’s disqualification contains a finding that when interviewed by an investigator, Giese stated that
she knew that AW’s doctor’s orders required that AW have an oximeter on all night. She believed she was told that AW had died of natural causes. At some point, probably when she was called and told of AW’s death, she also learned that AW was not continuously monitored with an oximeter the night before and the morning he died.
Although these findings do not explicitly state that Fosselman and Giese were aware that A.W. was neglected, they plainly indicate that both were aware of conditions that were required to be reported.
4. Violation 5(a). Axis argues that the evidence is insufficient to support a finding that it violated Minn. Stat. 245B.06, subd. 7 (2000), which provides:
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. Day training and habilitation programs must meet the minimum staffing requirements as specified in sections 252.40 to 252.46 and rules promulgated under those sections.
Axis contends that the fine for violating this statute should be rescinded because the commissioner made no finding that the number of staff was inadequate. But even if Axis met the minimum staffing requirements, there is substantial evidence in the record that indicates that supervision was inadequate.
On the evening of May 1, 1998, Oshodi was transferred to houses A and B because Axis was short-staffed. A pool nurse was working in houses C and D during the evening shift. The pool nurse told Oshodi that it was her second day working at Axis and that she was only familiar with house C. The pool nurse threatened to leave, but Oshodi talked her into staying and helped her complete her duties. Because the pool nurse could not keep up with the pace of the care, Oshodi asked Fosselman to help, but Fosselman left shortly after talking with Oshodi. Oshodi also sought assistance from other qualified mental retardation professionals, but they had all left for the day. Findley took a nurse out of orientation to assist Oshodi, but the nurse only felt comfortable measuring vital signs. At 9:00 p.m., Oshodi learned that Axis was requiring her to work a second shift, until 4:00 a.m. She testified that she did not have time to look at A.W.’s MAR until between 10:30 and 11:00 p.m. This evidence demonstrates that Axis did not provide sufficient supervision to ensure A.W.’s health and safety and to protect his rights and implement his individual service plan.
5. Violation 6. Axis argues that the evidence is insufficient to support a finding that it violated Minn. Stat. § 245B.07, subd. 4(a), which provides:
The license holder must ensure that staff is competent through training, experience, and education to meet the consumer’s needs and additional requirements as written in the individual service plan. Staff qualifications must be documented. Staff under 18 years of age may not perform overnight duties or administer medication.
Training records for Oshodi, Abrams, Barnes, and Findley did not indicate that they had been trained to care for A.W. None of them signed the staff-signature portion of A.W.’s file to indicate that they had reviewed his file. Human testified that it took from one to three hours to complete the review necessary for new patients, and Oshodi was too busy to review the records. Oshodi and Findley testified that they had not received training regarding A.W.’s needs and that they could not recall previously working with A.W. Oshodi testified that she had just started working in house A in late April 1998 and had requested more training, but she did not receive the training until after A.W. died. The evidence supports the commissioner’s finding that Axis did not properly ensure that its staff was competent through training, experience, and education to meet A.W.’s needs and additional requirements as written in his individual service plan.
6. Violation 10. Axis was fined $200 “for failure to provide accurate policies regarding the reporting of suspected maltreatment of vulnerable persons.” Minn. Stat. § 245A.65, subd. 1 (2000), requires that:
All license holders serving vulnerable adults shall establish and enforce written policies and procedures related to suspected or alleged maltreatment, and shall orient clients and mandated reporters who are under the control of the license holder to these procedures, as defined in section 626.5572, subdivision 16.
(a) License holders must establish policies and procedures allowing but not mandating the internal reporting of alleged or suspected maltreatment. License holders shall ensure that the policies and procedures on internal reporting:
(1) meet all the requirements identified for the optional internal reporting policies and procedures in section 626.557, subdivision 4a; and
(2) identify the primary and secondary person or position to whom internal reports may be made and the primary and secondary person or position responsible for forwarding internal reports to the common entry point as defined in section 626.5572, subdivision 5. The secondary person must be involved when there is reason to believe that the primary person was involved in the alleged or suspected maltreatment.
Minn. Stat. § 626.557, subdivision 4a(b), (c), (d) (2000), state:
(b) A facility with an internal reporting procedure that receives an internal report by a mandated reporter shall give the mandated reporter a written notice stating whether the facility has reported the incident to the common entry point. The written notice must be provided within two working days and in a manner that protects the confidentiality of the reporter.
(c) The written response to the mandated reporter shall note that if the mandated reporter is not satisfied with the action taken by the facility on whether to report the incident to the common entry point, then the mandated reporter may report externally.
(d) A facility may not prohibit a mandated reporter from reporting externally, and a facility is prohibited from retaliating against a mandated reporter who reports an incident to the common entry point in good faith. The written notice by the facility must inform the mandated reporter of this protection from retaliatory measures by the facility against the mandated reporter for reporting externally.
Axis’s written policy entitled “Reporting Abuse, Neglect and Exploitation: Vulnerable Adult/Maltreatment of Minors” provides:
All knowledge of and written information about abuse, neglect or exploitation or suspected abuse, neglect or exploitation of an individual served by AXIS * * * will be reported immediately * * * to the person in-charge or delegated authority. A phone report to the appropriate outside authority (e.g., Common Entry Point, Child Protection) shall be made immediately by the person in-charge. The reporter may also make his/her report directly to the appropriate outside authority. Reporters who make good faith reports are immune from retaliation.
Axis contends that notes from its house meetings indicate that it informed new employees that a report of maltreatment may be filed internally with the shift coordinator or with the qualified mental retardation professional. Therefore, Axis argues, the commissioner incorrectly determined that Axis’s policy did not identify a secondary person or position to whom an internal report could be made if there was reason to believe that the primary person was involved in the alleged or suspected maltreatment, and the $200 fine should be rescinded.
But this argument is based on the incorrect premise that the sole basis for the fine was a failure to identify a secondary person to whom an internal report could be made. The fine was also based on the failure to have policies and procedures that (a) identify the secondary person or position responsible for forwarding internal reports to the common entry point as required under Minn. Stat. § 245A.65, subd. 1(2); and (b) meet the requirements under Minn. Stat. § 626.557, subdivision 4a(b), (c), (d) for following up an internal report by a mandated reporter. Axis makes no argument that its policies and procedures comply with these statutory requirements.
The license holder shall ensure that each new mandated reporter, * * * who is under the control of the license holder, receives an orientation within 72 hours of first providing direct contact services * * * to a vulnerable adult and annually thereafter. The orientation and annual review shall inform the mandated reporters of the reporting requirements and definitions in sections 626.557 and 626.5572, the requirements of this section, the license holder’s program abuse prevention plan, and all internal policies and procedures related to the prevention and reporting of maltreatment of individuals receiving services.
The commissioner argues that “annually thereafter” means “once every 365 days,” and the fine imposed was based on a failure to provide an annual review to employees within 365 days of the employees’ orientation. Axis argues that the requirement that it provide orientation “annually thereafter” means that it must provide orientation once every calendar year.
“Annual” means, “Recurring, done, or performed every year.” The American Heritage Dictionary 75 (3d ed. 1992). The statutory construction advocated by each party implicitly recognizes that doing something annually means doing it every year. However, the parties disagree about what period of time constitutes a year. Under the construction advocated by the commissioner, any 365-day period is a year, and for purposes of providing an annual review, a new year could begin every day.
Although the commissioner’s construction is not implausible, it is not consistent with the legislature’s statement in Minn. Stat. § 645.44, subd. 13 (2000), that “‛year’ means a calendar year, unless otherwise expressed.” Minn. Stat. § 245A.65, subd. 3, does not use the word year. But under the common meaning of “annually,” the phrase “annually thereafter” means “every year thereafter,” and to determine the meaning of this phrase, it is necessary to determine what period of time constitutes a year. Absent any indication that any period of time other than a calendar year is intended, we conclude that “annually thereafter” means “every calendar year thereafter,” and we reverse the fine imposed for violating Minn. Stat. § 245A.65, subd. 3.
8. Axis argues that the fine for being culpable for maltreatment should be rescinded because it is not culpable for maltreatment. However, as indicated in footnote one above, this court has affirmed the determination that Axis is culpable for maltreatment. We, therefore, conclude that it is not necessary to address this issue further.
Affirmed in part and reversed in part.
 Axis appealed the commissioner’s final decision on maltreatment to the district court, and the district court affirmed the commissioner’s order. Axis appealed the decision of the district court, and this court affirmed the district court in Axis Minn., Inc. v. Comm’r of Human Servs., No. C0-01-269 (Minn. App. Nov. 13, 2001).