may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Donald L. Keys,
Commissioner of Minnesota Department of Human Services,
Filed December 9, 1997
Department of Human Services, Licensing Division
Agency No. 805870R5
Hubert H. Humphrey III, Attorney General, Kim B. Mesun, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge[*].
Appellant challenges the Department of Human Services decision to disqualify him from having direct contact with persons receiving services from programs licensed by the Department. He argues that the decision is arbitrary, capricious, and not supported by substantial evidence. We affirm.
Because Keys was employed by a DHS-licensed program in a position involving direct contact with those served by the program, a background check was required pursuant to Minn. Stat. § 245A.04, subd. 3 (1996), and Minn. R. 9543.3030 (1995). Based on the background check, the DHS determined by a preponderance of the evidence standard that on July 1, 1993, Keys committed theft by swindle, forgery, and failed to report the maltreatment of a vulnerable adult in connection with services he allegedly provided to T.W.W., at the time an 86-year-old client of the Hennepin County Department of Social Services Adult Protection Unit. The Minnesota Bureau of Apprehension (BCA) record also showed that Keys had a criminal history record on file with the FBI. Consequently, Keys was notified on November 21, 1996, that he was
disqualified from having direct contact with individuals served by DHS-licensed programs.
In its disqualification letter, the DHS informed Keys that a FBI record check was required before he could make any request that his disqualification be set aside. This required Keys to submit a set of fingerprints within seven days so the DHS could conduct the FBI check. Keys was further informed that he could continue in a position having direct contact with program clients if he requested reconsideration of the disqualification within 30 days and he was continuously supervised by a staff member or supervisor.
On December 18, 1996, Keys submitted a one-sentence letter requesting that his disqualification be reconsidered. On December 24, Keys received a letter from DHS stating that his request for reconsideration was inadequate because he had not addressed the questions contained in the form for reconsideration and that his background study had not been completed because he had failed to submit a set of fingerprints. The DHS informed Keys and ECS that Keys was to be immediately removed from any position allowing direct contact with clients receiving services from DHS-licensed programs.
On January 14, 1997, Keys submitted a second request for reconsideration, along with supporting documentation, challenging the correctness of the information relied on by the DHS. By letter dated February 14, 1997, the Commissioner of Human Services' representative issued her findings of fact and determination in which she determined that Keys had been properly disqualified. The Commissioner's representative also denied Keys's request for reconsideration on risk of harm grounds because of the recency of the disqualifying conduct and the nature of the conduct. Because the Commissioner's representative's decision is considered a final agency decision, Keys petitioned this court for review by writ of certiorari on April 15, 1997.
Keys argues that the Commissioner's representative's decision is arbitrary and capricious because she accepted without "further analysis" the remarks of the police investigator and that her review was inadequate because she failed to state that the information given by the police investigator was "superior" to the explanations Keys offered in his request of reconsideration.
To protect the health, safety, and rights of individuals served by DHS-licensed programs, the DHS has set forth procedures for background studies of individuals affiliated with those programs. Dozier v. Commissioner of Human Servs., 547 N.W.2d 393, 395 (Minn. App. 1996), review denied (Minn. July 10, 1996); see also Minn. R. 9543.3000-3090 (1995). If the individual subject to the background study admits to committing, or a preponderance of the evidence indicates that he has committed, an act that satisfies one or more of the 60 separate criminal activities specified in Minn. R. 9543.3070, subpt. 1 (1995), the individual is disqualified from DHS programs. Dozier, 547 N.W.2d at 395. "[T]he DHS licensure rules do not require a conviction * * *." Id.
If an individual is disqualified from direct contact with clients served by a DHS-licensed program, he may request that the Commissioner of Human Services reconsider the disqualification. Minn. Stat. § 245A.04, subd. 3b(a) (1996); Minn. R. 9543.3080, subpt. 1 (1995). The Commissioner may set aside the disqualification if it is determined that the information relied on by the DHS is incorrect. Minn. Stat. § 245A.04, subd. 3b(b) (1996); Minn. R. 9543.3080, subpt. 3 (1995).
Under the rules, a preponderance of the evidence must not indicate that an individual working in a residential program in a position of direct contact has committed an "act of theft or related crimes." Minn. R. 9543.3070, subpt. 3 (1995). Theft as defined in Minn. Stat. § 609.52 (1996), and offering a forged check as defined in Minn. Stat. § 609.631 (1996), are deemed "acts of theft or related crimes." Id.
Here, the Commissioner's representative concluded that a preponderance of the evidence showed that Keys committed acts of theft in violation of Minn. Stat. § 609.52, and offering a forged check in violation of Minn. Stat. § 609.631. Contrary to Keys's assertion, the Commissioner's representative did not blindly accept the information contained in the police investigator's report. In her findings of fact and determination, the Commissioner's representative set forth in detail, with specific cites to the record, both the information and explanation offered by Keys in his request for reconsideration and the relevant portions of the police investigator's report. After reviewing this information, she stated that "[t]here are inconsistencies in the various statements given by [Keys]." The Commissioner's representative then went on to note, again with specific cites to the record, the evidentiary basis for her conclusions.
Further evidence that the Commissioner's representative did not arbitrarily accept the information contained in the police investigator's report is the fact that she found that, in two instances, the information relied on to disqualify Keys was incorrect. After reviewing the information submitted, the Commissioner's representative determined that a preponderance of evidence did not show that Keys committed forgery. She did determine, however, that a preponderance of the evidence showed that Keys offered a forged check, a disqualifying act under the rules. In addition, the Commissioner's representative concluded that because the failure to report maltreatment of a vulnerable adult law was enacted after the date of the offenses alleged in this matter, Keys could not be disqualified on that basis. However, contrary to Keys's assertions, the Commissioner's representative did not conclude that these two grounds were "baseless."
The role of the Commissioner's representative was to review the information relied on by the DHS in disqualifying Keys and the information and explanations offered by Keys, and determine whether the information relied on by the DHS was incorrect. See Rodne, 547 N.W.2d at 445 (holding that Commissioner must consider information submitted with request for reconsideration and determine whether information relied on to disqualify individual is incorrect). The Commissioner's representative considered and analyzed all the information before her and the explanations offered by Keys. Her decision is supported by substantial evidence in the record and is not arbitrary and capricious.
Next, Keys argues that the Commissioner's representative erred in concluding that he posed a risk of harm to the clients of ECS. We disagree.
The Commissioner's representative can set aside an individual's disqualification, even if based on correct information, if it is determined that "the individual does not pose a risk of harm to any person served by the applicant or license holder." Minn. Stat. § 245A.04, subd. 3b(b) (1996). When making a determination of whether an individual poses a risk of harm, the Commissioner's representative shall consider the following factors: (1) the consequences of the event or events leading to disqualification, (2) whether there is more than one disqualifying event, (3) the vulnerability of the victim at the time of the event, (4) the time elapsed without a repeat of the same or similar event, and (5) any documentation of successful completion by the individual studied of training or rehabilitation. Id.
In reviewing a disqualification, the [commissioner's representative] shall 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.
Here, the incident involving Keys occurred in 1993, but was only recently considered by the court system in August 1996. Although Keys was not convicted of the charged offenses, he reached a plea agreement in which the case was continued for dismissal until August 1998 provided he has no same or similar offenses in that time. Keys is therefore still under court supervision. Further, pursuant to the plea agreement, Keys's social work license has been put on inactive status until August 1998. The charges against Keys allege that he misappropriated the funds of an 86-year-old man. This conduct indicates a lack of consideration for the health and welfare of vulnerable adults.
Given the vulnerability of the victim, the nature of the alleged charges, the recency of the court proceedings against Keys, the fact that he is still under court supervision, and the weight given to the safety and well-being of clients served by DHS-licensed programs, we conclude the Commissioner's representative acted properly in refusing to set aside Keys's disqualification.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.