This opinion will be unpublished and

may not be cited except as provided by

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







Commissioner of Human Services,


Filed August 5, 1997


Schultz, Judge


Department of Human Services

Report No. 960053

Floyd Grabiel, James R. Thorson, 3601 Minnesota Drive, Suite 440, Bloomington, MN 55435-5942 (for Relator)

Hubert H. Humphrey, III, Attorney General, Kim Buechel Mesun, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for Respondent)

Considered and decided by Toussaint, Chief Judge, Short, Judge, and Schultz, Judge.



The Commissioner of the Department of Human Services affirmed its determination that relator mistreated a minor and was disqualified from positions allowing direct contact with persons receiving services from Department of Human Services-licensed programs. Because the Commissioner's determination was not arbitrary and unreasonable and because relator received an adequate hearing, we affirm.


J.L.H. was employed as a counselor by the Stonebridge Programs, a Department of Human Services ("DHS")-licensed service provider for troubled youth between the ages of 15 and 18. In January 1996, the 16-year-old alleged victim claimed that he and J.L.H. had been sexually intimate.

After receiving a report of possible sexual maltreatment of a minor, the DHS Licensing Division Investigations Unit (Investigations Unit) investigated and determined that J.L.H. had committed maltreatment of a minor living at Stonebridge Programs-Bloomington. The DHS Licensing Division Background Studies Unit (Background Studies Unit) then began the separate process of determining whether J.L.H. should be disqualified from having direct contact with persons served by a DHS-licensed program.

The Background Studies Unit conducted a study on J.L.H., reviewed the maltreatment determination as set forth in the Investigations Unit report, and concluded there was a preponderance of evidence that J.L.H. had committed serious and recurring maltreatment of a minor as defined in Minn. Stat. § 626.556, subd. 10e(a)(3) (1996) and Minn. R. 9543.3070, subpt. 1.C. (1995). The DHS then notifed J.L.H. that she was disqualified from any position allowing direct contact with persons receiving services from programs licensed by the DHS.

J.L.H. requested reconsideration of the maltreatment determination. She submitted documentation to support her arguments that the information the Commissioner relied on was incorrect, that she did not pose a risk of harm to persons receiving services from DHS programs, and that she did not receive an adequate hearing prior to her disqualification. After reviewing her claims, the Commissioner denied J.L.H.'s request to set aside her disqualification.

J.L.H. now appeals.


Review of an administrative decision by certiorari is limited in scope. Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). The reviewing court may only consider matters such as (a) whether the administrative proceedings were regular and fair, (b) whether the decision was made under an erroneous theory of law, (c) whether the decision was arbitrary, oppressive, unreasonable or fraudulent, and (d) whether there was evidence to support the decision. Id. This court must defer to the agency's fact-finding process and consider only whether substantial evidence supports the agency's decision. Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn. 1990).

J.L.H. argues that the Commissioner should have set aside the disqualification because the information relied on was incorrect and she does not pose a risk of harm to DHS clients. We disagree.

An individual who is disqualified "may request reconsideration of the notice of disqualification." Minn. Stat. § 245A.04, subd. 3b(a) (1996). The disqualified individual must make the request in writing and present information showing that (1) the information the commissioner relied on is incorrect; or (2) the subject of the study does not pose a risk of harm to any person served by the applicant. Id. If the Commissioner determines that either the information was incorrect or the individual does not pose a risk of harm, he may set aside the disqualification. Minn. Stat. § 245A.04, subd. 3b(b).

When the Commissioner reviewed J.L.H.'s request for reconsideration on correctness grounds, he concluded that "the information relied on by DHS in disqualifying J.L.H. is correct" and therefore refused to set aside her disqualification. J.L.H. fails to demonstrate that the information the Commissioner relied on to make the maltreatment determination is incorrect; rather, she shows only that there is conflicting evidence with respect to whether she and the alleged victim were sexually intimate. The alleged victim stated that J.L.H. kissed, hugged, and fondled him, but J.L.H. denied all intimate contact other than kissing. This assertion is insufficient to demonstrate that the information the Commissioner relied on was incorrect. We cannot say that the Commissioner's decision with respect to whether sexual contact had occurred was "arbitrary, oppressive, unreasonable, fradulent, * * * or without any evidence to support it." Rodne v. Commissioner of Human Servs., 547 N.W.2d 440, 445 (Minn. App. 1996). The record supports a finding that J.L.H. engaged in serious and recurring maltreatment of a minor as defined in Minn. Stat. § 626.556, subd. 10e(a)(3) (1996) and Minn. R. 9543.3070, subdpt. 1.C. (1995).

J.L.H. also argues that the Commissioner's decision denying her request to set aside her disqualification because she failed to demonstrate that she does not pose a risk of harm to persons served by the DHS is not warranted by the evidence and was arbitrary and unreasonable. Her argument is without merit.

The Commissioner must consider the following factors in deciding whether an individual poses a risk of harm to persons served by the DHS: (a) the nature and severity of the disqualifying event; (b) the consequences of the events that led to the disqualification; (c) whether there is one or more disqualifying events; (d) the age and vulnerability of the victim, as well as the harm suffered; (e) the time elapsed without a repeat of the same or similar event; and (f) documentation of successful completion of training or rehabilitation pertinent to the incident. Minn. R. 9543.3080, subpt. 3(B) (1995). The Commissioner must "give preeminent weight to the safety of each person to be served by the license holder or applicant over the interests of the license holder or applicant." Minn. Stat. § 245A.04, subd. 3b(b).

J.L.H. argues that the evidence she submitted to the Commissioner, including her excellent record at both Stonebridge and her current job at an intensive treatment program, her acknowledgement that she made a mistake, and her statement that she wishes only to be given the chance to succeed in a career in which she shows great promise, demonstrates that a similar incident will not occur in the future and that she does not pose a risk of harm to persons served by the DHS.

The letter informing J.L.H. that her disqualification had not been set aside states:

Your request and the accompanying information was reviewed, as was the information relied upon to make the disqualification decision. * * * Based on the recency and the nature of J.L.H.'s substantiated perpetration of maltreatment, the Commissioner has determined that the information submitted by J.L.H. does not demonstrate that s/he does not pose a risk of harm. Therefore, it did not allow a determination that J.L.H.'s disqualification should be set aside.

This letter demonstrates that the Commissioner considered at least two of the required factors when determining whether to set aside J.L.H.'s disqualification--the recency and the nature of the disqualifying event. The record evidence is sufficient to support the Commissioner's determination that J.L.H. poses a risk of harm to persons served by the DHS. Although the record suggests that J.L.H. is not likely to repeat the error in judgment that she made in this incident, the DHS's "inferences must be accepted even though it may appear that contrary inferences would be better supported." Taylor v. Beltrami Elec. Co-op., 319 N.W.2d 52, 56 (Minn. 1982).

Finally, J.L.H. argues that the procedures followed by the DHS did not meet minimum due process standards. The Commissioner concedes that J.L.H. has a protected liberty interest in protecting her reputation and a protected property interest in continued employment, but argues that J.L.H.'s request for reconsideration and the Commissioner's subsequent review satisfied minimal procedural due process guarantees. Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989) (requiring showing that state deprived plaintiff of "life, liberty, or property" to establish procedural due process claim). We agree.

To determine what process J.L.H. is due, we must consider (1) the private interests to be affected by the official action; (2) the risk of erroneous deprivation of the interest and the probable value of additional safeguards; and (3) the governmental interests involved. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976); Baker v. Baker, 494 N.W.2d 282, 287 (Minn. 1992).

First, J.L.H.'s right to work in direct contact with vulnerable children in a 24-hour-a-day treatment and counseling program is limited because it is subject to strict state regulation. See Barsky v. Board of Regents of Univ., 347 U.S. 442, 449, 74 S. Ct. 650, 654 (1954) (noting that it is a "vital part of a state's police power" to regulate "all professions concerned with health"); Humenansky v. Minnesota Bd. of Med. Exam'rs, 525 N.W.2d 559, 567 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). Second, the disqualification procedures set forth in Minn. Stat. § 245A.04, subds. 3-3c and Minn. R. 9543.3000-9543.3090 provide procedural safeguards that protect against the risk of an erroneous maltreatment determination and disqualification. Third, inasmuch as the statute requires a determination of maltreatment of a minor, Minn. Stat. § 626.556, subd. 10e(a), a particular need for prompt action is required. After reviewing the application of the Mathews factors, we conclude that J.L.H was provided minimal procedural due process with respect to the maltreatment determination. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972) ("[D]ue process is a flexible concept and calls for such procedural protections as the particular situation demands.").

Even though J.L.H. was not provided a contested hearing prior to her disqualification, she was permitted to file a request for reconsideration, which required her to submit any written information to the Commissioner, including affidavits, that would support her claim that the information the Commissioner relied on was incorrect or that she did not pose a risk of harm to DHS clients.


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