Hubert H. Humphrey III, Attorney General, Mehmet K. Konar-Steenberg, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

Robert L. Follis appeals pro se from the district court's affirmance of a denial by the respondent Department of Human Services (DHS) to reimburse him for personal care attendant (PCA) services that he has provided since 1994 to his adult disabled son. Because the statutory language clearly excludes appellant, as his son's legal guardian, from payment for these services and because appellant presents no other basis for reversal, we affirm.

The burden is on the party challenging an agency's decision to prove that the decision should be reversed because it is in violation of constitutional provisions, in excess of DHS's statutory authority or jurisdiction, made upon unlawful procedure, affected by other error of law, unsupported by substantial evidence in view of the entire record as submitted, or arbitrary and capricious. Minn. Stat. § 14.69 (a)-(f) (1996); Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).

Personal care services may not be reimbursed if the personal care assistant is the spouse of the recipient or the parent of a recipient under age 18, the responsible party or the foster care provider of a recipient who cannot direct the recipient's own care or the recipient's legal guardian unless, in the case of a foster provider, a county or state case manager visits the recipient as needed, but no less than every six months, to monitor the health and safety of the recipient and to ensure the goals of the care plan are met. Parents of adult recipients, adult children of the recipient or adult siblings of the recipient may be reimbursed for personal care services if they are granted a waiver under section 256B.0627.

Appellant focuses on the last sentence of this statute, and argues that as the parent of an adult recipient, he is eligible if he meets the requirements for a hardship waiver. However, DHS correctly reads the conditional clause following the word "unless" as referring only to foster providers; this clause does not extend into the second sentence discussing the hardship waiver for relatives, but terminates with the period. Thus, under the plain and unambiguous language of Minn. Stat. § 625B.0625, subd. 19a, "[p]ersonal care services may not be reimbursed if the personal care assistant is * * * the recipient's legal guardian."[1]

Certain relatives, including parents of adult recipients, are entitled to reimbursement for PCA services if they are granted a hardship waiver. The requirements for that waiver are contained in Minn. Stat. § 256B.0627, subd. 4(b) (1994), which lists services not eligible for payment as including:

(3) services provided by the recipient's spouse, legal guardian, or parent of a minor child;

* * * * [and]

(9) services provided by parents of adult recipients * * * unless these relatives meet one of the following hardship criteria and the commissioner waives this requirement[.]

This language clearly excludes relatives who are also legal guardians.

Appellant further argues that because DHS initially granted him a waiver in April 1994, he had some reasonable expectation that he was entitled to keep that waiver until conditions changed. However, on its face, the initial waiver was valid only until May 31, 1994. In addition, appellant was not named as his son's legal guardian until September 1993; it is entirely possible that the factual record was not fully developed when DHS granted the initial waiver.

Finally, DHS claims that the prohibition against allowing reimbursement to a recipient's legal guardian serves an important public purpose by minimizing potential conflicts of interest between a "guardian's fiduciary duty to [his] ward and the guardian's own financial interests." Moreover, as the district court noted and as DHS has acknowledged, appellant has a remedy; if he removes himself as his son's legal guardian,[2] he can seek a hardship waiver.

This specific issue was not briefed by either party below or ruled on by the district court; nor was it expressly raised in appellant's statement of the case to this court. Thus, it cannot be considered now on appeal. See In re Minn. Pub. Utils. Comm'n, 365 N.W.2d 341, 344 (Minn. App. 1985) (reviewing court will not rule on constitutionality of statute when issue not raised below), review denied (May 31, 1985).

Even if this issue were properly raised, the statute does not violate the separation of powers doctrine. First, the statute does not restrict a probate court's authority to decide who can or cannot serve as legal guardian. Second, even if the statute could be viewed as limiting probate authority, the constitution grants the legislature power to adopt such laws. See Minn. Const. art. VI, § 1 (probate jurisdiction to be "provided by law").

However, the tape was lost during office relocation at DHS, and the district court found "there is no evidence that the Department intended to destroy the tape." Thus, the loss of the tape was unintentional and does not rise to the level of a criminal violation of section 138.225.

In addition, the district court ordered the matter reheard by the same referee. Appellant's allegations that this rehearing was insufficient and that he was prejudiced by the loss of the tape are vague and unspecific. The current record is sufficiently complete to allow judicial review. Cf. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988) (when administrative record full and complete, judicial review proceeds on record).

The district court's affirmance of DHS's denial of appellant's request for a hardship waiver or for reimbursement for PCA services that he has provided to his son is affirmed.

Affirmed.

[1] The last sentence of Minn. Stat. § 256B.0625, subd. 19a, was amended in 1995 to read: "Parents of adult recipients * * * may be reimbursed for personal care services if they are not the recipient's legal guardian and are granted a waiver under section 256B.0627." 1995 Minn. Laws ch. 207, art. 6, § 48 (new language indicated by underline). Contrary to appellant's argument, this amendment represents a clarification, not a change in existing policy, because exclusion of legal guardians from reimbursement was implicit, if not clearly stated, in the prior version of the statute. See Brotherhood of Ry. & Steamship Clerks v. State, 303 Minn. 178, 195, 229 N.W.2d 3, 13 (1975).

[2] Appellant's wife is also named as her son's legal guardian and could remain so.