This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Findings of Neglect by Nelson Opare,


Minnesota Department of Health,


Filed April 10, 2007


Stoneburner, Judge


Ramsey County District Court

File No. C5-05-7531


Godwin O. Saporu, Saporu Law Office, Edinburgh Executive Office Plaza, Suite 226, 8525 Edinbrook Crossing, Brooklyn Park, MN 55443 (for appellant)


Lori Swanson, Attorney General, Gregory J. Schaefer, Assistant Attorney General, 1200 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Collins, Judge.*

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the district court order affirming the decision of respondent Department of Health that he is disqualified from providing healthcare services based on a finding that he neglected four vulnerable adults.  Appellant argues that respondent’s decision was (1) arbitrary and capricious; (2) based on an error of law; (3) not supported by substantial evidence in the record; and (4) made on unlawful, prejudicial procedure.  Because we conclude that appellant was not subjected to unlawful, prejudicial procedure; the commissioner did not misapply the law; and there is substantial evidence in the record to support the decision, we affirm.



            Appellant Nelson Opare was a registered nursing assistant employed by Good Shepherd Care Center.  Until February 13, 2004, he had never had a complaint made about his care of vulnerable adults.  Opare was assigned to work as the only nursing assistant with nurse A.J. during a shift that began on the night of February 12 and ended in the early morning hours of February 13.  Opare and A.J. were caring for approximately 22 patients during that shift.  At the end of that shift, A.J. made a written report to Good Shepherd’s Director of Nursing, S.R. (DON S.R.), reporting that (1) she discovered VA 1 alone on the toilet at approximately 6:00 a.m., and VA 1 reported to A.J. that Opare had left her there for over 30 minutes; (2) she discovered VA 2 at approximately 3:30 a.m. in a urine-soaked bed; (3) she found VA 3 with her leg twisted and her padded boot positioned upside down, and VA 3 reported that Opare had “flipped” her and would not listen when she told him her leg hurt; and (4) L.O., another nursing assistant who came on duty at the end of Opare’s shift, told A.J. that she witnessed Opare transferring and ambulating VA 4 without a transfer belt and had to remind Opare to place a pressure sensor in VA 4’s chair.

            DON S.R. interviewed VA 1, VA 2, and VA 3 during the day of February 13 and completed a written “verification of investigation.”  The writing indicates that VA 1 told him that “a man left her on the toilet without giving her the call light.”  VA 2 told DON S.R. that no one checked on him after he was put to bed until a nurse changed him around 3:00 a.m.  VA 3 told DON S.R. that “a man turned her and her foot was in a position that caused her pain . . . the nurse came in right away and fixed it . . . a man answered her call light and was very gruff with her.”  DON S.R. did not interview VA 4 due to her dementia and medical condition, but relied on L.O.’s February 13, 2004 written statement, in which L.O. stated that she saw Opare with VA 4, who was standing in a walker without a transfer belt on, and she later checked on VA 4 and found her in a chair without a sensor.  DON S.R. verified that VA 4 required a pressure sensor alarm at all times due to impaired balance and a history of falls.  Despite noting that Opare denied the allegations, DON S.R. terminated Opare’s employment on February 16, 2004, for “willful violation of a long term care or resident care standard.”

            Following the report of neglect by Good Shepherd, the Department of Health (Department) conducted its own investigation.  Investigator Rita Lucking, R.N., interviewed A.J., L.O., DON S.R., VA 2, and Opare. 

            Lucking’s interview with VA 2 occurred several months after the alleged incident.  At that time, VA 2 had no complaints about his treatment at Good Shepherd, although he remembered one night when he slept through the night because no one came to check on him until a nurse came in around 7:00 a.m. and changed him and applied cream. 

            Opare told Lucking that he assisted VA 1 to the toilet, waited until she was finished, and helped her back to bed.  Opare told Lucking that A.J. told him that she had already toileted VA 2.  Opare did not specifically recall turning VA 3 on that night but stated that he turned and changed a lot of people.  Opare stated that he used a transfer belt to walk VA 4 to the bathroom but had it in his pocket while he was washing her.  He admitted forgetting to place a sensor in her chair. 

            Lucking issued an investigative report concluding that Opare was responsible for neglect of the four VAs.  The Department adopted the report, notified Opare of the findings and conclusions, and informed him of his right to administrative reconsideration and/or appeal under Minn. Stat. § 626.557, subd. 9d (2004). 

            The Department of Human Services (DHS) notified Opare that because the four incidents of maltreatment met the definition of “recurring” maltreatment, he was disqualified from providing services to vulnerable adults receiving services from facilities licensed by the state.  Opare requested reconsideration by the Department and challenged his disqualification by DHS.  After review, the Department notified Opare that it would not reverse its findings.  Opare requested a hearing, and his disqualification appeal was consolidated with his appeal of the neglect findings.

            At a hearing conducted by a DHS-appointed referee, the Department and Opare presented testimony and documentary evidence about the allegations of neglect.  The Department’s evidence was consistent with the reports of A.J. and investigations by DON S.R. and Lucking.  Opare testified that he had not left VA 1 unattended on the toilet.  He testified, inconsistent with his statement to Lucking, that he had toileted VA 2 during his 12:00 a.m. round and denied that A.J. told him that she had toileted VA 2.  He testified that although he did not remember repositioning VA 3, he repositioned every resident properly and had never received a complaint about improper repositioning.  Opare testified that although he used a transfer belt to take VA 4 to the bathroom, he had removed it while he washed her.  He admitted that he forgot to place the pressure sensor alarm in VA 4’s chair before he left her unattended.  Opare asserted that A.J. had made the complaints against him because she disliked him and African American males in general.

            The referee concluded that the Department did not meet its burden of proof that Opare neglected VA 1, VA 2, and VA 3 and that Opare’s actions with regard to VA 4 came under the “therapeutic conduct exception” and did not constitute neglect.  The referee recommended reversal of the Department’s determinations of neglect and the disqualification by DHS.

            The Commissioner of Health received the referee’s recommendations.  The commissioner notified the parties that she would appoint a separate decision-maker to decide the case and invited the parties to file exceptions to the referee’s recommendations.  Opare objected on procedural grounds, citing Minn. Stat. § 256.0451, subd. 23 (2004), which provides that if the commissioner rejects the referee’s recommendation, the commissioner must send the parties a copy of the recommendation, a detailed explanation of the basis for rejecting the recommendation, and the proposed modified order, and must give the parties time to respond to the proposed modifications.  Opare asserted that he could not address the commissioner’s reasons for rejecting the recommendations without knowing those reasons. 

            The record shows that Opare was notified, in response to his objection, that the commissioner would fully comply with the statutory procedure once she decided whether to accept or reject the referee’s recommendation.  Opare filed a response in support of the referee’s proposed order. 

            The commissioner sent the parties another notice, pursuant to the statute, with a proposed modified order concluding that neglect was substantiated and Opare’s disqualification should stand.  The Department responded, requesting that the commissioner reject the referee’s recommendations and adopt the proposed modified order.  Opare did not file a response to the proposed modified order.  The commissioner adopted the proposed modified order, which addressed Opare’s objection to the procedure.  The commissioner characterized the first request for exceptions as merely an additional opportunity for the parties to address the referee’s recommendations and noted that the commissioner had fully complied with the statutory requirements.  The modified order concluded that the preponderance of the evidence established that Opare neglected the four VAs, and the neglect constituted recurring maltreatment requiring disqualification by DHS.  In an attached memorandum, the commissioner recommended that, in light of Opare’s performance record and the nature of the disqualifying events, “the Department give serious consideration to any request for a set-aside that [Opare] might choose to make.”

The district court affirmed the commissioner’s findings of neglect, and this appeal followed.



            On review, this court may reverse or modify an agency’s 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 and capricious.


Minn. Stat. § 14.69 (2006).  On review of an administrative agency decision, an appellate court is not bound by the district court’s decision and may independently examine the administrative agency’s record and reach its own conclusions as to the propriety of that decision.  Signal Delivery Serv., Inc. v. Brynwood Transfer Co. (Appeal of Signal Delivery Serv.), 288 N.W.2d 707, 710 (Minn. 1980).


            Opare first asserts that the Department’s decision was made on unlawful procedure because the commissioner’s initial invitation to the parties to file exceptions to the referee’s recommendations did not comply with the requirements of Minn. Stat. § 256.0451, subd. 23 (2006).  We disagree.

            The commissioner correctly asserts that the procedures outlined in the statute are triggered by the commissioner’s rejection of the referee’s recommendations, and nothing in the statute prohibits the commissioner from inviting additional information that will aid the decision-maker.  It is undisputed that the commissioner gave the parties an opportunity to present arguments before reaching a conclusion, and then complied with the statute after deciding to reject the referee’s recommendation.  There is no merit to Opare’s assertion that this procedure deprived him of an opportunity to adequately respond to the commissioner’s reasons for rejecting the referee’s recommendations or that the procedure was unlawful.

            Furthermore, although Opare complains that the commissioner’s procedure resulted in substantial prejudice from undue delay and burdened him with additional legal fees, we conclude that, nonetheless, the procedure did not prejudice Opare’s substantial rights.  Therefore, even if the procedure could be construed as unlawful, Opare is not entitled to reversal.  Deli v. Univ. of Minn., 511 N.W.2d 46, 49 (Minn. App. 1994) (stating “an agency’s decision which is made upon unlawful procedure mandates reversal only if a party’s substantial rights have been prejudiced”), review denied (Minn. Mar. 23, 1994).


            Opare next argues that the commissioner made an error of law by concluding that the therapeutic-conduct exception did not apply to his admitted failure to place a pressure sensor in VA 4’s chair before leaving her unattended and therefore the omission constituted neglect. 

            Neglect means a failure to give care or services reasonable and necessary to maintain the vulnerable adult’s physical or mental health or safety.  Minn. Stat. § 626.5572, subd. 17(a)(1) (2006).  Failure to give care or services to a vulnerable adult is not neglect if it is the result of therapeutic conduct.  Id., subd. 17(a)(2).  Neglect does not occur where a caregiver makes an error in the provision of therapeutic conduct which does not result in injury or harm.  Id., subd. 17(c)(4). 

            “‘Therapeutic conduct’ means the provision of program services, health care, or other personal care services done in good faith in the interests of the vulnerable adult by . . . a caregiver.”  Id., subd. 20.  There is no dispute that Opare was a “caregiver” or that VA 4 was a vulnerable adult within the meaning of the statute. 

            In J.R.B. v. Dep’t of Human Servs., this court held that the therapeutic-conduct exception did not apply where J.R.B. failed to check a patient’s blood pressure, concluding that “[f]ailing to check a patient’s vital signs cannot be considered therapeutic, and [J.B.H.] is not entitled to this defense.” 633 N.W.2d 33, 38 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  In this case, the commissioner similarly determined that the therapeutic-conduct exception did not apply because “[b]y its own definition, failure to provide a service deemed essential to maintain the vulnerable adult’s safety cannot be a form of therapeutic conduct.” 

            Opare argues that the commissioner interpreted the therapeutic-conduct exception too narrowly.  He admits that he left VA 4 unattended in her chair without the pressure sensor in place, but asserts that it was an omission resulting from therapeutic conduct.  See In re Appeal of O’Boyle, 655 N.W.2d 331, 335 (Minn. App. 2002) (stating that a caregiver’s “failure or omission” to supply requisite care is not neglect if it is the result of therapeutic conduct). 

            We conclude that the therapeutic-conduct exception does not apply to Opare’s omission.  By not placing the pressure sensor on VA 4’s seat, Opare failed to provide care that was reasonably necessary to maintain VA 4’s safety, which constitutes neglect by definition.  Minn. Stat. § 626.5572, subd. 17(a)(1).  There is no evidence that failure to install the pressure sensor was “the result of”  Opare’s care of VA 4 or was done with good faith and in VA 4’s interests.  And Opare was not providing care to VA 4 when he left her unattended in her chair without the required sensor in place.  The commissioner did not make an error of law in determining that Opare’s omission constituted neglect.


Opare next argues that the commissioner’s decision that he neglected VA 1, VA 2, and VA 3 is unsupported by substantial evidence in view of the entire record as submitted.  Substantial evidence has been defined as: “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.”  O’Boyle, 655 N.W.2d at 334 (quotation omitted). 

Opare argues that there is “no scintilla of evidence” to support the allegation that he neglected VA 1 because VA 1’s statements to A.J. and DON S.R. were “inconsistent and unreliable,” and there is no other evidence in the record to corroborate VA 1’s statements.  Opare argues that the evidence regarding VA 2 is so full of discrepancies and contradictions that it cannot be relied on.  And Opare argues that VA 3’s claim of abuse is not credible given her past “disruptive behavior.”  Even if this court might have reached different conclusions based on the evidence, we defer to an agency’s conclusions regarding conflicts in testimony and the inferences to be drawn from that testimony.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001).  Given this deference, there is substantial evidence in the record to support the commissioner’s findings and those findings will not be reversed on appeal.

            Opare also challenges the commissioner’s finding that he performed VA 4’s care while she stood at her walker.  The commissioner ordered that a summary be entered into Opare’s record at the Nursing Assistant Registry, including a statement that “Opare performed [VA 4’s] care with her standing at her walker without using a transfer belt.  Then, he left her unattended in her chair without first placing her sensor alarm in her chair.”  Opare admits that he did not have a transfer belt on VA 4 while she was standing at her walker while he washed her, but he argues this was a newly introduced allegation that should not have been considered by the commissioner, and, even if it could be considered, the act did not meet the statutory definition of maltreatment.  We disagree.

            L.O. testified that nursing home policy requires all nurses and aides to use transfer belts on residents unable to walk or stand without assistance.  L.O. testified that VA 4 required the use of a transfer belt whenever she was not sitting or reclining, and stated that VA 4 was “moving unsteadily” while appellant was washing her.  The commissioner’s inclusion of Opare’s washing VA 4 in her walker without a transfer belt as part of the description of his neglect of VA 4’s health care is supported by the record.

Opare further challenges the findings of neglect on the basis that A.J.’s allegations against him were fabricated because of racial bias.  But the commissioner concluded that “[d]espite [Opare’s] adamant assertions that [A.J.] harbored racial animosity, his sincere and firmly held belief is simply not borne out by the evidence.” We agree.  A thorough review of the record shows that, apart from Opare’s assertions, there is no evidence that A.J. had personal or racial animosity toward Opare, or that she fabricated the allegations against him.


Finally, Opare argues that the Department’s decision was arbitrary and capricious.  An administrative agency’s decision is arbitrary or capricious if the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise.  Trout Unlimited, Inc. v. Minn. Dep’t of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995).  We note, as the commissioner did, that disqualification is a harsh consequence given Opare’s overall performance record and the nature of the allegations against him.  But on this record, the Department’s decision is not so implausible as to warrant reversal. 


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