This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-940

 

Eugene Lamont Moore,

Relator,

 

vs.

 

Commissioner of Human Services,

Respondent.

 

Filed March 28, 2006

Reversed and remanded

Hudson, Judge

 

Department of Human Services

License No. 803962 245B-WS

 

Eugene Lamont Moore, 2815 Oliver Avenue North, Minneapolis, Minnesota 55411-1109 (pro se relator)

 

Mike Hatch, Attorney General, Kerri Stahlecker Hermann, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Relator challenges the final decision by the Department of Human Services (DHS) not to set aside his disqualification from a position allowing direct contact with persons receiving services from facilities licensed by the DHS and the Minnesota Department of Health.  Because the commissioner’s determination relied on incorrect information regarding relator’s criminal conviction and was not otherwise supported by substantial evidence, we reverse and remand to the commissioner for a full analysis on a corrected record. 

FACTS

 

            In 1991, relator Eugene Lamont Moore committed a purse-snatching in Minneapolis.  Relator was charged with aggravated robbery, but he pleaded guilty to felony simple robbery.  The execution of a 36-month sentence was stayed, and relator was committed to the workhouse and placed on probation.  Relator successfully completed his probation and paid restitution to his victim.

In 1996, relator was employed by the University Good Samaritan Center (Good Samaritan) as a nursing assistant, a position allowing direct-contact services to the nursing home’s residents.  Because relator was employed in a direct-contact position, he was subject to a Minnesota Department of Human Services (DHS) background study.  See Minn. Stat. § 245C.03, subd. 1(3) (2004).  In conjunction with the background study, relator provided a set of fingerprints.  Based on a report from the Minnesota Bureau of Criminal Apprehension (BCA), which incorrectly stated that relator had been convicted of aggravated robbery, the DHS disqualified relatorfrom providing direct care to persons receiving services from programs licensed by the DHS and the Minnesota Department of Health (MDH).  After reconsidering the disqualification, the MDH set it aside,allowing relator to work in a direct-contact position at Good Samaritan.  For the next eight years, relator worked as a nursing assistant providing direct care to residents in the Huntington’s disease[1] unit.

            In 1998, while still employed at Good Samaritan, relator also sought employment with another DHS-licensed organization.  The DHS began another background study and quickly disqualified relator because he did not provide DHS with an updated set of fingerprints.

            In 2001, while updating their records, Good Samaritan submitted relator’s background study form to DHS.  Because of relator’s failure to submit fingerprints in 1998, the DHS disqualified relator and ordered his immediate removal from any direct-contact position.  After communicating with relator’s supervisor, the DHS reconsidered the disqualification and allowed relator to resume working at Good Samaritan, reasoning that because relator had been continuously affiliated with the facility, he was not required to submit to a new background study or to provide new fingerprints.

            In 2003, relator petitioned the Hennepin County district court to expunge his criminal record.  The district court sealed the public records of relator’s 1991 offense, but not the non-public BCA record.

            In 2004, relator was employed by the Minneapolis Community and Technical College (MCTC).  The requisite DHS background study resulted in relator’s fourth disqualification from direct-contact positions.  The DHS disqualification was again based on relator’s failure to submit fingerprints in 1998.  In response, relator provided the DHS with a second set of fingerprints.  Once again, the MDH reconsidered the disqualification and set it aside, thus allowing relator to work in a direct-contact position at MCTC.

            In November 2004, relator was employed by Bristol Place Corporation (Bristol Place), a service provider for people with developmental disabilities.  In December, the DHS again disqualified relator based on the inaccurate BCA report that relator’s 1991 conviction was for “aggravated robbery.”  Relator, appearing pro se, sought timely reconsideration of the decision under Minn. Stat. § 245C.21 (2004).  Instead of completing each question of the DHS form, relator wrote a short narrative and attached numerous documents as evidence that he did not pose any risk of harm to the people receiving his services.  Relator did not provide the DHS with specific details of the 1991 purse-snatching incident other than that he (1) was severely chemically dependent at the time, (2) took responsibility for his actions, (3) pleaded guilty to the crime, (4) served his time, (5) got his chemical dependency under control in 1994, (6) completed probation and finished paying his restitution, and (7) convinced the district court to expunge his record.  After considering all of the information provided by relator, the commissioner decided not to set aside relator’s disqualification.  This appeal follows.

D E C I S I O N

            This court reviews whether an administrative decision is supported by substantial evidence or is arbitrary and capricious.  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001); see also White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (substantial evidence is “1. [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2. [m]ore than a scintilla of evidence; 3. [m]ore than some evidence; 4. [m]ore than any evidence; and 5. [e]vidence considered in its entirety”), review denied (Minn. Oct. 31, 1997).

            A person who is disqualified from performing direct-care services may request that the commissioner reconsider the disqualification.  Minn. Stat. § 245C.21, subd. 1 (2004).  The commissioner shall rescind the disqualification if the commissioner finds that the disqualification relied on incorrect information or may set aside the disqualification if the commissioner finds that the individual has submitted sufficient information to show that the individual does not pose a risk of harm to any person served.  Minn. Stat. § 245C.22, subds. 2, 4 (2004).

Relator challenges the final agency decision to disqualify him from a direct-contact position, arguing that he submitted sufficient information to demonstrate that he was rehabilitated and was not a risk to the vulnerable adults that he served as a nurse’s assistant.

            Under Minn. Stat. § 245C.22, subd. 4(b), in evaluating whether the individual poses a risk of harm, the commissioner must consider the following factors:

(1) the nature, severity, and consequences of the event or events that led to the disqualification; (2) whether there is more than one disqualifying event; (3) the age and vulnerability of the victim at the time of the event; (4) the harm suffered by the victim; (5) the similarity between the victim and persons served by the program; (6) the time elapsed without a repeat of a same or similar event; (7) documentation of successful completion by the individual studied of training or rehabilitation pertinent to the event; and (8) any other information relevant to reconsideration.

 

Any single factor may be determinative of the commissioner’s decision whether to set aside the disqualification.  Id., subd. 3.

            Here, the commissioner considered all eight factors but found three factors to be determinative: (1) the severity of the disqualifying event; (2) the vulnerability of the population to be served; and (3) relator’s failure to provide detailed information related to the offense or relator’s rehabilitation.  We examine each of these three “determinative factors” individually to determine whether it is supported by substantial evidence.

Severity of the disqualifying event

First, the commissioner indicated that relator’s May 31, 1991 criminal conviction of “aggravated robbery” supported the commissioner’s decision not to set aside the disqualification.  But the record shows that relator was not convicted of aggravated robbery as wrongly reported by the BCA; rather, he pleaded guilty to felony simple robbery.[2]  This is a significant factual error because the DHS Background Studies Act requires the commissioner to disqualify individuals convicted of designated crimes for certain periods of time.  Minn. Stat. § 245C.14–.15 (2004).  Minnesota Statutes provide a permanent disqualification for a conviction of aggravated robbery, and, by contrast, a 15-year disqualification after the discharge of the sentence imposed for the offense of a felony-level simple robbery.  Compare Minn. Stat. § 245C.15, subd. 1(a)(2) (aggravated robbery) with id., subd. 2(a)(2) (simple robbery).  Thus, the commissioner’s decision was based on both an incorrect disqualification offense and an incorrect disqualification period.  And, significantly, relator’s true disqualification period (15 years) was nearly complete.  On this record, we conclude that the commissioner’s finding on this factor was not supported by substantial evidence.

Vulnerability of the population to be served

Second, the commissioner indicated that the clients in the Bristol Place program have developmental disabilities and are vulnerable.  The commissioner did not indicate which of the eight factors this conclusion corresponds to.  Respondent indicates that it relates to factor 5, the similarity between the victim and the persons to be served.  Respondent argues that the commissioner’s determination was based upon substantial evidence because relator provided no information about the relative vulnerability of the victim of the 1991 offense.  But the commissioner ignored evidence that the clients with whom relator had been working at Good Samaritan during the eight years immediately prior to the commissioner’s decision were vulnerable adults with a degenerative neurological condition and that the record included a glowing recommendation by appellant’s supervisor at Good Samaritan.  Moreover, the commissioner was aware that relator’s DHS disqualification had been set aside twice by the MDH, and he was allowed to continue working in a direct-contact position.  Thus, relator was already working with vulnerable adults with the knowledge—if not the express permission—of the DHS and the MDH, yet the commissioner did not distinguish how the people relator worked with at Bristol Place differed from the people relator was working with at Good Samaritan.  Considering the evidence in its entirety, we conclude that the commissioner’s finding on this factor was not supported by substantial evidence.

Failure to provide information related to the offense

Third, the commissioner indicated that his decision was based on relator’s failure to provide adequate information from which the commissioner could properly evaluate the disqualifying event—that is, relator’s 1991 conviction of simple robbery.  While the burden rests on the disqualified individual to provide information necessary to assess the statutory risk-of-harm factors, Minn. Stat. § 245C.21, subd. 3, relator was pro se, and he made a good-faith effort to provide the necessary information.  Relator failed to provide specific details of the purse-snatching incident, but he did provide documentation indicating that he took responsibility for the offense and successfully completed treatment for chemical dependency, which he acknowledged was a significant factor in his offense.  In addition, he provided documentation of his training and education leading to his becoming a nurse’s assistant.  Moreover, relator had successfully challenged a series of previous disqualifications—based on the same 1991 conviction—and he likely submitted a similar set of documents.  Because there were no new allegations, relator might reasonably have believed that the documentation he provided was responsive, especially when DHS did not request additional information or otherwise indicate to relator that his responses were inadequate.  Considering the evidence in its entirety, we conclude that the commissioner’s finding on this factor was not supported by substantial evidence.

Based on this record, we conclude that the commissioner’s decision not to set aside appellant’s disqualification relied on incorrect information and was not otherwise supported by substantial evidence.  We therefore reverse and remand to the commissioner for a complete analysis on the corrected record.

Reversed and remanded.