This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Findings of

Abuse, Neglect, or Misappropriation of

Property by Kim Sulaimon Sandness,


Filed March 17, 1998


Schumacher, Judge

Department of Health

File No. A9585

Shane C. Perry, Perry, Perry & Perry, 402 Towle Building, 33 Second Avenue South, Minneapolis, MN 55401 (for relator Kim Sulaimon Sandness)

Hubert H. Humphrey III, Attorney General, William H. Mondale, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent Commissioner of Health)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and

Shumaker, Judge.



Relator Kim Sulaimon Sandness challenges the Commissioner of Health's order that reported her to the nursing assistant registry for abusing a resident of Catholic Eldercare, arguing the commissioner lacked jurisdiction to conduct a hearing and the ALJ's decision, which the commissioner adopted, is unconstitutional and unsupported by the evidence. We affirm.


Catholic Eldercare nursing facility issued a vulnerable adult report to the Hennepin County Adult Protection Agency after an elderly resident reported an incident that involved Sandness. A special investigator with the Minnesota Department of Health investigated the incident and conducted interviews with the elderly residents, Sandness, and Catholic Eldercare staff members. At the conclusion of the investigation, the Commissioner of Health issued a vulnerable adult report, finding that Sandness mentally abused the resident.

A subsequent hearing was conducted before an ALJ who found, by a preponderance of the evidence, that Sandness's behavior "constitutes intimidation with resulting mental anguish and deprivation of services necessary to mental well being," consistent with the definition of abuse. The assistant commissioner of health adopted the ALJ's findings without modification and concluded that the department proved by a preponderance of the evidence that Sandness abused the resident. The department notified Sandness that a finding of abuse would be made a part of her record maintained by the nursing assistant registry. As a result of this entry, nursing facilities are prohibited from employing Sandness.


1. Jurisdiction

The commissioner retained jurisdiction to conduct a hearing regardless of the repeal of Minn. Stat. § 144A.612 (authorizing Commissioner of Health to conduct administrative hearing until federal regulations are adopted). Sandness is accused of maltreating the resident on July 13, 1995. In spite of the repealed law,

[h]earings requested by nursing assistants in nursing homes alleged to have maltreated a resident prior to October 1, 1995, [date of the repeal] shall be held as a contested case proceeding under the provisions of chapter 14.

Minn. Stat. § 256.045, subd. 3 (Supp. 1997) (emphasis added). The use of the word shall indicates the act to be performed is not discretionary. Minn. Stat. § 645.44, subd. 16 (1996) ("'Shall' is mandatory"). The law cites Minnesota Statutes Chapter 14, also known as the Administrative Procedure Act. Under this act, "In any contested case all parties shall be afforded an opportunity for hearing after reasonable notice." Minn. Stat. § 14.58 (1996). This authority vests the commissioner with jurisdiction to conduct a hearing.

2. Constitutional Challenges

Nursing facilities are prohibited from employing nursing assistants who have had a finding of abuse, neglect, or mistreatment of residents entered into the registry. 42 C.F.R. § 483.13(c)(ii) (1996). This provision does not violate Sandness's right to due process and equal protection. This court invalidates an agency rule if it violates constitutional provisions. Minn. Stat § 14.45 (1996). The court's power to find a law unconstitutional must be exercised with great care and only when absolutely necessary. Minneapolis Gas Co., v. Zimmerman, 253 Minn. 164, 173, 91 N.W.2d 642, 650 (1958).

The regulation does not infringe on Sandness's fundamental right to due process. We acknowledge that Sandness has a protectable property interest in retaining her employment. See Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411 (1959) (right to hold specific private employment and follow chosen profession free from unreasonable governmental intrusion falls within protection of due process clause). This property right, however, is not absolute. An individual's property right succumbs to the government's interest in protecting the public from unsafe or incompetent health care officials. Humenansky v. Minnesota Bd. of Med. Exam'rs, 525 N.W.2d 559, 568 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995). In order to ensure such abuse does not happen in the future, some type of tracking system is necessary. 42 C.F.R. § 483.13 (c)(ii) is the least obtrusive means of accomplishing this end. This regulation protects elderly patients while, at the same time, allowing Sandness an opportunity to seek employment in another field. The regulation does not violate due process.

Nor does the regulation offend Sandness's right to equal protection. Equal protection does not demand that "laws operate with rigid sameness" on every individual in a state. Fairview Hosp. Ass'n. v. Public Bldg. Serv. & Hosp. & Institutional Employees Union Local No. 113, 241 Minn. 523, 543, 64 N.W.2d 16, 29 (1954). Here, as previously discussed, the government's compelling interest and the interests of the parties at stake have been balanced. Furthermore, the regulation applies equally to all nursing assistants. Simply because the regulation does not apply to every medical professional does not mean that it is an equal protection violation.

The standard of proof the ALJ used was correct. The "preponderance of the evidence" standard is required for administrative hearings. Matter of Wang, 441 N.W.2d 488, 492 (Minn. 1989) (quoting Minn. Rules 1400.7300, subpt. 5 (1987)). The standard for maltreatment hearings is also proof by a preponderance of the evidence. Minn. Stat. § 256.045, subd. 3b (1996). While Courts recognize the importance of an administrative proceeding concerning a professional's reputation. Wang, 441 N.W.2d at 492. No such concern is required here, however. Sandness was afforded sufficient procedural protections.

3. Sufficiency of the Evidence

The evidence contained in the record supports a finding of abuse. This court must view the commissioner's findings in the light most favorable to the decision. If the record contains evidence reasonably tending to support the decision, we will affirm. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Under federal regulations, all nursing home residents have the right to be free from verbal, sexual, physical, and mental abuse. 42 C.F.R. § 483.13(b). The regulations define abuse as "the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish." 42 C.F.R. §488.301 (1996). The commissioner adopted the ALJ's finding that Sandness's actions rose to the level of "intimidation with resulting mental anguish and deprivation of services necessary to mental well being within the definition of abuse." The ALJ's decision was largely the result of a credibility determination and a consideration of the reliability of the evidence presented. We leave such determinations to the fact finders. State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

The ALJ chose to give credit to the resident's testimony, the staff at Catholic Eldercare, and the Department's investigator. According to the resident's version of events, Sandness forbid her from bringing her wheelchair into the bathroom. In addition, Sandness refused to give soap to the resident so she could wash herself and then proceeded to wash the resident's private areas in a rough manner. The resident cried to the nurse and the investigator when she relayed the events and stated "she felt like her bones were being crushed," "her feelings were hurt," and "she had been treated disrespectfully." The policy at Eldercare is to accommodate any reasonable requests by the residents. Viewing the evidence in the light most favorable to the commissioner's decision, the record contains ample evidence to support a finding of abuse.