This opinion will be unpublished and

may not be cited except as provided by

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




Mark Anthony Haken, et al.,


Carol Thomas Haken,



State of Minnesota, et al.,


Filed September 15, 1998

Affirmed; Motion granted

Harten, Judge

Anoka County District Court

File No. C5-95-4030

Carol Thomas Haken, 7557 Camp 3 Road NE, Forest Lake, MN 55025 (appellant pro se)

Hubert H. Humphrey, III, Attorney General, Robert V. Sauer, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondents)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Thoreen, Judge.*


HARTEN, Judge Appellants challenge a district court order affirming the findings of the Commissioner of the Department of Human Services. The department had reduced the authorized number of medical assistance care hours for appellant Mark Haken. We affirm, and grant the motion to strike appellant's reply brief.


Mark Haken is a young adult with Down's Syndrome and his brother, John Haken, is severely mentally retarded. Their mother, Carol Thomas Haken (Haken), is the administrator of Sincerely, Inc., the personal care provider organization for Mark and John Haken. In 1994, Sincerely submitted a request for a prior authorization of medical assistance coverage for Mark and John Haken. Sincerely requested seven hours of personal care services per day for Mark Haken and 14 hours per day for John Haken.

Denise Kolb was a home care nurse consultant with the Department of Human Services (DHS). Kolb reviewed Sincerely's request and decided to conduct a home visit. After visiting the Haken home, Kolb prepared a Medical Assistance Home Care Prior Authorization. Kolb reviewed the services requested by Sincerely and determined that Mark required three hours and 19 minutes of assistance per day. The maximum assistance for a person with a level Q ranking, in which she placed Mark, was three hours. Thus, the prior authorization approved three hours per day of personal care services. Kolb also authorized fewer care hours for John Haken than had been requested.

Haken timely sought a fair hearing appeal. Before the hearing, the DHS issued a new prior authorization for John Haken, authorizing payment for 22 hours of assistance per day. Because the new authorization exceeded Sincerely's request, the commissioner dismissed John Haken's appeal as moot.

On February 7, 1995, an appeal hearing was held on behalf of Mark Haken. Kolb testified, providing an explanation of her recommendation. The hearing was then continued at Haken's request and reconvened on April 4, 1995. Kolb did not appear at that hearing, but was available by telephone. Haken objected to Kolb's absence and refused to present any evidence or conduct cross-examination.

The referee recommended that the commissioner affirm the DHS's prior authorization for Mark Haken, but increased the care time by three minutes to three hours and twenty-two minutes. The referee also increased Mark's ranking to a level with a maximum care time of five hours, which allowed the referee to authorize the full three hours and twenty-two minutes. The commissioner adopted the referee's recommendation.

Haken appealed to the district court. No transcript of the DHS hearing was made because the audio tapes had been destroyed. The district court considered options for proceeding without a transcript. DHS counsel suggested that the matter be remanded for a new hearing before a DHS referee. Haken suggested that the district court hold a hearing. The district court followed Haken's recommendation and ordered an evidentiary hearing. The district court affirmed the decision of the commissioner, finding that Haken did not show that the process was unfair or that she was prejudiced, and that substantial evidence supported the order. This appeal followed.


A court may reverse or modify agency decisions only if the party seeking review was prejudiced because the findings, inferences, conclusions, 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 or capricious.

Minn. Stat. § 14.69 (1996). The party seeking review has the burden of proving one of those statutory grounds. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).

In reviewing agency decisions, the district court is to "take no new evidence unless it determines that such evidence is necessary for a more equitable disposition of the appeal." Minn. Stat. § 256.045, subd. 8 (1996). Here, the district court found it necessary to take new evidence because the DHS was unable to produce a transcript from the underlying hearing. Where the district court has taken evidence and made independent factual determinations, we review its findings under a clearly erroneous standard. Dullard v. Minnesota Dept. of Human Servs., 529 N.W.2d 438, 442 (Minn. App. 1995).

1. Substantial Evidence

The district court found that the commissioner's decision was supported by substantial evidence. Substantial evidence means:

(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.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977).

Haken had presented no testimony or evidence before the referee. Kolb had testified and explained her conclusions on each category of her prior authorization recommendation. Kolb's testimony supports the commissioner's findings. The commissioner's order adopted Kolb's recommendation with only two small changes, which actually favor appellants. And in view of the entire record, it appears that Haken failed to meet her burden to show that the commissioner's decision was not based on substantial evidence. The district court's conclusion that the commissioner's decision was based on substantial evidence is not erroneous.

2. Unlawful Procedure

The district court found that the DHS decision was not based on unlawful procedure because appellants had the opportunity to present evidence and cross-examine Kolb, and they were not prejudiced by Kolb's absence from the April 4 hearing. At the February 7 hearing, Haken had an opportunity to cross-examine Kolb, but instead she requested a continuance. At the April 4 hearing, Haken chose not to present evidence because Kolb was not physically present. She was given the opportunity to testify and to cross-examine Kolb, but declined to do so.

Appellants argue that the referee did not follow proper procedure by allowing Kolb to testify after she appeared 50 minutes late at the February 7 hearing. Appellants rely on a DHS informational pamphlet which states that if the appealing party cannot attend the hearing, the party must contact the referee or the case will be dismissed. But the pamphlet refers only to the appealing party and not to DHS witnesses. Appellants have the burden of proof, and therefore, regardless of whether the DHS presents any evidence, appellants cannot prevail without presenting evidence.

Appellants argue that the referee erred in refusing to subpoena Kolb before the February 7 hearing. The pamphlet explains that if witnesses will not appear voluntarily, they may be subpoenaed by a party. The referee's refusal was not erroneous, because Kolb did attend the hearing voluntarily; the absence of a subpoena did not prejudice appellants. See Minn. Stat. § 14.69 (a court may reverse agency decision only if the appealing party was prejudiced).

Appellants argue that telephone appearances are allowed only upon the agreement of all parties, and appellants did not agree to Kolb's telephone appearance on April 4.

A state human services referee may schedule a telephone conference hearing when the distance or time required to travel to the county agency offices will cause a delay in the issuance of an order, or to promote efficiency, or at the mutual request of the parties. * * *

Minn. Stat. § 256.045, subd. 4(a) (emphasis added). The referee's decision was proper because it promoted efficiency.

Appellants argue that the district court erred in deciding to hold an evidentiary hearing at all. They claim that the tapes from the DHS hearing were destroyed intentionally to obtain a new hearing in district court. But appellants themselves urged that the district court hold an evidentiary hearing. Under the circumstances, we conclude that the district court did not err in following that suggestion.

Appellants also make arguments regarding John Haken. On February 15, 1995, the DHS dismissed the original appeal by John Haken due to a change in the DHS authorization in his favor. Appellants did not appeal that order. Haken argued at the evidentiary hearing that they never received notice of the dismissal. The district court ruled that the matter had been resolved and would not be considered. The district court's decision was not clearly erroneous.

Appellants also raise several other issues, which do not pertain to the district court's order and are not properly before this court.

3. Appellants' Reply Brief Appellants' reply brief was untimely and exceeded the 25-page limit. See Minn. R. Civ. App. P. 132.01, subd. 3. Appellants filed a motion to have the brief accepted. Failure to file a brief in a timely matter is a technical, nonjurisdictional matter. Progressive Cas. Ins. Co. v. Kraayenbrink, 365 N.W.2d 229, 231 (Minn. 1985). Appellants' reply brief was only three days late, and respondents do not argue that they were prejudiced by the delay. Therefore, we do not reject the brief as untimely.

Respondents filed a motion opposing acceptance of the reply brief. Respondents alternatively move to strike three exhibits included in the appendix to the reply brief, the parts of the reply brief that refer to those exhibits, and parts of the reply brief discussing whether the care plan for Mark Haken was part of the record before the DHS referee. Respondents argue that those exhibits and arguments are not properly before this court because they were not presented to the district court.

The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases. Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence at the trial court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

Respondents are correct that these materials and the related arguments were not presented to the trial court, and we cannot consider them on appeal. Respondents' motion to strike portions of the reply brief is granted. The balance of the reply brief falls within the 25-page limit, thereby mooting the motion to accept an enlarged brief.

Affirmed; motion granted.

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