This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-176

 

Myhann Shane Thurman,

Relator,

 

vs.

 

Commissioner of Minnesota,

Department of Health,

Respondent.

 

Filed ­­­August 26, 2003

Affirmed

Harten, Judge

 

Department of Health

Agency File No. 03737

 

Gerald S. Weinrich, Suite 301W, 421 First Avenue Southwest, Rochester, MN 55902 (for relator)

 

Mike Hatch, Attorney General, Jennifer L. Beens Harper, Assistant Attorney General, 455 Minnesota Street, #1200, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

Relator challenges the commissioner’s refusal to set aside her disqualification from providing direct-contact services for licensed facilities because of her conviction of first-degree controlled substance crime.  Because we see no error in the commissioner’s decision, we affirm.

FACTS

In January 2002, Relator Myhann Thurman began working as a personal care attendant for Southeastern Minnesota Center for Independent Living (Semcil).  Semcil is a home health agency licensed by respondent Minnesota Department of Health (MDH).

A few months before relator began working for Semcil, the police learned from a confidential reliable informant (CRI) that relator had been selling cocaine.  In a series of controlled buys, relator sold 7.9 grams of cocaine to the CRI on 5 September 2001 and another 7.3 grams of cocaine on 6 September.  On 26 June 2002, relator was convicted of first-degree controlled substance crime, a felony, in violation of Minn. Stat. § 152.021, subd. 1(1) (2000) (sale involving 10 or more grams of cocaine).

On 16 December 2002, the Department of Human Services (DHS) notified relator that, because of her conviction, she was disqualified from positions involving direct contact with persons receiving services from facilities licensed by DHS or MDH.  See Minn. Stat. § 245A.04, subd. 3d(a)(2) (2000) (requiring disqualification if less than 15 years have passed since discharge of sentence for certain felony offenses, including controlled substance violations).  Consequently, relator could no longer work as a personal care attendant for Semcil.  Relator requested reconsideration and rescission of her disqualification with MDH, arguing that she did not commit a violent crime or pose a risk of harm to Semcil’s clients.  MDH denied relator’s request.  Relator appeals by writ of certiorari.

D E C I S I O N

In reviewing quasi-judicial agency decisions 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.

 

Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444-45 (Minn. App. 1996) (quotations omitted).

A disqualification may be set aside if the commissioner finds that the disqualified individual “does not pose a risk of harm to any person served by the * * * license holder.”  Minn. Stat. § 245A.04, subd. 3b(b) (2002).

In determining that an individual does not pose a risk of harm, the commissioner shall consider the nature, severity, and consequences of the event or events that lead to disqualification, whether there is more than one disqualifying event, the age and vulnerability of the victim at the time of the event, the harm suffered by the victim, the similarity between the victim and persons served by the program, 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.

 

Id.  The commissioner must give “preeminent weight” to the safety of those served by the license holder, over the interests of the license holder and the disqualified individual.  Id.

The commissioner found that relator posed a risk of harm based on the contemporaneity of her conviction, the vulnerability of those served by Semcil, and relator’s lack of rehabilitation or retraining since the conviction.  Evidence supports the commissioner’s decision: relator was convicted less than six months before her disqualification; Semcil is a home health agency that provides in-home services to vulnerable persons, and nothing in the record indicates that relator sought rehabilitation after her conviction.

Relator argues that the commissioner did not properly consider all of the factors in section 245A.04, subdivision 3b(b), and that consideration of those factors demonstrates that she does not pose a risk of harm to Semcil’s clients.  The record indicates, however, that the commissioner properly considered each of the statutory factors.  MDH provided a letter to relator stating that it considered the information relator had provided “in applying the risk of harm factors set out in Minn. Stat. § 245A.04, subd. 3b(b),” and a Combined Assessment Results worksheet indicates that it considered the statutory factors and rated them as low, medium, or high risk.

Relator contends that Semcil is in the best position to determine if she poses a risk of harm to its clients and that this court should remand with instructions that the commissioner seek additional information from Semcil.  But nothing in the statute gives the license holder the right to participate in the commissioner’s disqualification decision.  Semcil could have sought a variance that would have allowed relator to continue serving its clients.  See Minn. Stat. § 245A.04, subd. 9 (2002).  But the record contains no indication that Semcil sought such a variance.

            We conclude that the commissioner’s decision denying relator’s request to set aside her disqualification was not arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

            Affirmed.