This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1500

In the Matter of the

Assessment Issued to

Geriatric Family Service.

Filed February 25, 1997

Affirmed

Crippen, Judge

Minnesota Department of Health

OAH No. 9-0900-10110-2

Jonathan M. Bye, Ann E. Kennedy, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for Relator Geriatric Family Service)

Hubert H. Humphrey, III, State Attorney General, Susan A. Casey, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent Dep't of Health)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Relator Geriatric Family Service contends that two penalties imposed by respondent Department of Health were arbitrary because the Department acted without showing a violation of either the statutes or rules. We affirm.

FACTS

Relator Geriatric Family Services is a licensed home care provider that also provides other services for older adults. Respondent Department of Health licenses and inspects home health care agencies.

In October 1994, after a survey of relator's business, the Department issued a correction order that included citations for failure to secure written service agreements before the second visit to a client and failure to describe provided services. After a follow-up survey in February 1995, the Department issued a notice that relator had not complied with the October correction notice and assessed relator two separate penalties.

The penalties stemmed from services that relator had provided to an elderly married couple. On January 13, 1995, the wife fractured her elbow and could not care for her husband, who suffered from Alzheimer's disease. On January 15, the couple requested relator to provide daily home care, which commenced the next day. Relator did not obtain a signed service agreement until February 23. The Department imposed a $250 penalty because relator failed to obtain a written service agreement before its second visit and a $50 penalty because the service agreement inadequately described the provided services as "personal care," both in violation of Minn. R. 4668.0140 (1995).

After relator unsuccessfully sought an informal resolution, it requested a contested case hearing before an administrative law judge. The ALJ recommended imposing the penalties, and the Commissioner of Health adopted the ALJ's recommendation.

D E C I S I O N

By statute, we may reverse or modify an administrative agency's decision if it violates a constitutional provision, exceeds statutory authority or jurisdiction, contains other errors of law, is unsupported by substantial evidence on the record, or is arbitrary or capricious. Minn. Stat. § 14.69 (1996). The party appealing an agency decision has the burden of proving that the decision violates a provision of Minn. Stat. § 14.69. Erickson v. Commissioner of the Dep't of Human Servs., 494 N.W.2d 58, 62 (Minn. App. 1992).

1.

Relator argues that the Department acted arbitrarily or capriciously when it assessed the $250 penalty for not promptly obtaining a signed, written service agreement. An administrative rule requires that "[n]o later than the second visit to a client," a licensed home care provider "shall enter into a written service agreement with the client or the client's responsible person." Minn. R. 4668.0140, subpt. 1 (1995). By statute, the Department may penalize a home care provider for a rule violation only if it first warned the provider about the specific violation and provided a course of action to meet compliance. Minn. Stat. § 144.653, subd. 6 (1996).

The rule itself employs mandatory language regarding the time for obtaining an agreement and it contemplates no exceptions other than an administrative waiver.[1] Minn. R. 4668.0140, subpt. 1. Although the rule does not expressly require a signature, it does mandate that the parties reach an agreement on the services to be provided. The record, through the testimony of relator's own director, indicates that although the elderly couple made no specific objections to the care provided by relator, "some disagreements" between the couple and their family about "the type and amount of services" continued after relator's second visit. The failure of relator and its clients to reach an accord on the terms of the service agreement prior to the second visit violates the stated mandate of the rule.

Relator asserts that it was eligible for an unwritten exception that excuses compliance when a client refuses to sign a service agreement. Although the Department concedes that it would not enforce the rule where a client simply refuses to sign an agreement, it states that it only recognizes this exception when adequate alternative documentation establishes that the parties have reached, in principle, an agreement on the service terms prior to the second visit, which was not the case here. Appellant contends that this documentation requirement constitutes an unstated rule, but there is no legal burden on the Department to permit any unsigned agreement; the only stated rule is the absolute mandate for a signed agreement. Because uncontradicted evidence shows that the exception is permitted only where documentation exists, relator has not shown that it was arbitrary to withhold application of the exception.

Relator next argues that the Commissioner could not impose a penalty under Minn. Stat. § 144.653, subd. 6, because the elderly couple's service agreement arose from an emergency situation that materially differed from the circumstances underlying the October 1994 correction notice. But Minn. R. 4668.0140, subpt. 1 (1995), does not provide for an emergency exception. Moreover, the October notice specifically alerted relator to the requirement that it must obtain a written service agreement prior to a second visit. The emergency situation does not excuse relator's failure to comply with the earlier correction notice, and the Department's penalty imposition was not arbitrary or capricious.

2.

Although an interpretation of a regulation presents a legal question subject to de novo review, we give considerable deference to an agency's construction of its own regulation when the relevant language is unclear or susceptible to different interpretations. St. Otto's Home v. Minnesota Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn. 1989). If a regulation is ambiguous, we generally will uphold the agency interpretation if it is reasonable. Id. at 40.

Relator argues that the Department exceeded its authority when it assessed relator a $50 penalty after finding that the use of the term "personal care" in relator's service agreement with the elderly couple inadequately described the services provided by relator. By administrative rule, a home care service agreement must include, among other items,

"a description of the services to be provided, and their frequency." Minn. R. 4668.0140, subpt. 2 (1995).

Neither the letter nor the spirit of the rule requires the Department to decide that "personal care" provides an adequate description, without more specificity, of the nature and the extent of the care to be given. The Department's insistence on a more acceptable disclosure was well within the acceptable scope of its discretion in the interpretation of its rule. St. Otto's Home, 437 N.W.2d at 40.

Finally, we reject relator's argument that the Commissioner failed to show that its final order was based on an examination of the entire record. No statute or rule requires the Commissioner to state specifically that it has read the entire transcript.

Affirmed.

[ ]1The rules allow a licensee to obtain a compliance waiver if the Commissioner finds that "enforcement of a requirement would result in unreasonable hardship on the licensee" and that the waiver "will not adversely affect the health, safety, or welfare of any client." Minn. R. 4668.0016, subpt. 2 (1995). Relator, however, did not seek a waiver until after the Commissioner imposed the penalty.