Julius Ludwig Awes, Relator, vs. Minnesota Department of Health, et al., Respondents.

Julius Ludwig Awes, Relator, vs. Minnesota Department of Health, et al., Respondents. A05-220, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-220

 

Julius Ludwig Awes,
Relator,
 
vs.
 
Minnesota Department of Health, et al.,
Respondents.

 

Filed November 22, 2005

Reversed

Stoneburner, Judge

Dissenting, Worke, Judge

 

Minnesota Department of Health

 

Harvey Friedenson, Suite 250, 7400 Metro Boulevard, Edina, MN 55439 (for appellant)

 

Mike Hatch, Attorney General, Jennifer Beens Harper, Assistant Attorney General, Suite 1200, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondents)

 

            Considered and decided by Worke, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator appeals the determination of the Commissioner of the Minnesota Department of Health and Human Services that a disqualification from working as a surgical technician based on a juvenile adjudication should not be set aside.  Because the denial of relator's request for reconsideration of his disqualification was arbitrary and capricious and not supported by substantial evidence, we reverse.

FACTS

 

            Twenty-five-year-old relator Julius Ludwig Awes had been employed by a hospital as a surgical technician for five years before the hospital submitted his background study form to the Minnesota Department of Health and Human Services (DHS) in the fall of 2004.  Relator was subject to a background study because he was employed by a facility licensed by DHS.  See Minn. Stat. § 245C.03, subd. 1(3) (2004).  Although DHS was not permitted to review relator's juvenile records in connection with the background check,[1] DHS learned from records obtained from the Bureau of Criminal Apprehension (BCA) that in May 1995 relator was adjudicated delinquent for fifth-degree criminal sexual conduct in violation of Minn. Stat. § 609.3451, subd. 1(1) (1994), (nonconsensual sexual contact).  Based on this information, DHS informed relator that he was disqualified from providing direct contact services for facilities licensed by DHS and the Department of Health.[2]

            DHS notified relator of the disqualification and the reason for disqualification and informed relator how to request reconsideration of the disqualification.  Relator timely sought reconsideration under Minn. Stat. § 245C.21 (2004), on the ground that he does not pose any risk of harm to the people receiving his services as a surgical technician. 

            In support of his request for reconsideration, relator provided a full explanation of the acts he committed on three separate occasions when he was fourteen years old, against an eight-year-old female child.  Relator provided DHS with the police report, juvenile court records, results of a polygraph test administered during treatment, a probation report, and treatment records. 

            The psycho-sexual assessment report on relator made at the beginning of his treatment program rated relator's risk of reoffending as "low to moderate" before  any treatment or education, and notes that there is no evidence of any other inappropriate sexual behavior.  The juvenile records demonstrate that relator's denial of penetration was supported by the polygraph; relator accepted full responsibility for his actions, and relator was a "very active and motivated participant" in the treatment program.  Relator demonstrated "knowledge of the consequences of his behavior for his victim and the victim's family, himself and others, . . . appropriate empathy for the possible harm caused by his inappropriate behavior," and wrote an appropriate apology letter to his victim.  Relator was able to identify and understand the underlying factors that motivated him to engage in the behavior and identified his pattern of offending and developed a comprehensive relapse prevention plan to reduce the likelihood of further inappropriate behavior.  The treatment records note as a "positive" the fact that relator stopped the abusive behavior on his own.       

            The treatment team viewed relator as "having significantly reduced the likelihood that he will sexually reoffend."  The psycho-sexual assessment report on relator made after treatment noted relator's credibility, based on the polygraph, and remarked on his complete cooperation with the six-week education/assessment phase of treatment.  This report notes that "his prognosis for a successful treatment outcome is very good."  Relator was dismissed from probation on December 4, 1996, having successfully completed all phases of probation including all recommended treatment.

            In his request for reconsideration, relator described his responsibilities as a surgical technician working almost exclusively in the operating room.  Relator explained that he prepares the surgical set-up before patients are brought into the room by other personnel who remain in attendance while he completes the set-up and waits for the surgeon.  Once the surgeon is in the room, relator's primary duty is to assist the surgeon during surgery, then to help nursing and other operating personnel prepare the patient for transport to the recovery room.  Relator assists surgeons in ten-twelve operations per day and reports that he is seldom, if ever, alone with a patient.  Relator stated that he could not recall a specific instance of being alone with a patient during his five-year employment.  Relator described the difference between the patients he serves and the victim of his adolescent crime, noting that at the time of the crime he was not a healthcare provider and the child was not a patient, the difference between the hospital setting in which he works surrounded by others and the private home where he, as a fourteen-year-old boy, was alone for hours or days with an eight-year-old girl.  Relator expressed that he does not believe that the type of crime he committed at age fourteen could occur in his current employment setting.  Relator states: "I am no longer a confused adolescent, and am not involved over prolonged periods of time with patients, alone in their homes as a lay person."

            As additional support for his request for reconsideration, relator voluntarily underwent a risk assessment and evaluation at the University of Minnesota Program in Human Sexuality.  That evaluation included three hours of interviewing, administration of standardized psychological tests and specialized tests and inventories "that provide a focused determination of psychological functioning and sexual arousal patterns," and administration of the penile plethysmograph.  The nine-page report of this evaluation was provided to DHS.  The conclusions outline relator's lack of any disorder, his normal sexual arousal and behavior, the fact that he does not need any psychological intervention and the opinion that, within the categories of low, medium and high, relator represents a low risk for sexual re-offending. 

            Relator also provided DHS with the affidavit of his fiancée regarding her full knowledge of his past behavior and his current stable, normal relationships, and extensive support system.

            The DHS commissioner denied reconsideration, concluding that relator poses a risk of harm to clients served by his employer, based on the commissioner's findings on eight factors set out in Minn. Stat. § 245C.22 subd. 4(b) (2004).  This appeal by writ of certiorari followed.

D E C I S I O N

 

            An appellate court may reverse an administrative decision if it is not 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); Johnson v. Comm'r of Health, 671 N.W.2d 921, 923 (Minn. App. 2003).  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."  White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (emphasis added), review denied (Minn. Oct. 31, 1997). 

A decision will be deemed arbitrary and capricious if the agency relied on factors which the legislature had not intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. 

 

National Audubon Soc. v. Minnesota Pollution Control Agency, 569 N.W.2d 211, 215 (Minn. App. 1997) (quotation omitted), review denied (Minn. Dec. 16, 1997).

            The DHS commissioner may rescind a disqualification if the commissioner finds that the information submitted by the disqualified individual demonstrates that the individual does not pose a risk of harm to persons served by the license holder.  Minn. Stat. § 245C.22, subd. 4(a) (2004).  In evaluating whether the individual poses a risk of harm, the commissioner must consider eight factors:

(1)              the nature, severity, and consequences of the event or events that led to the to 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 the 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.

 

Minn. Stat. § 245C.22, subd. 4(b) (2004). 

In reviewing a request for reconsideration of a disqualification, the commissioner shall give preeminent weight to the safety of each person served by the license holder, applicant or other entities as provided in this chapter over the interests of the license holder, applicant, or other entity as provided in this chapter, and any single factor under subdivision 4, paragraph (b), may be determinative of the commissioner's decision whether to set aside the individual's disqualification.

 

Minn. Stat. § 245C.22, subd. 3. 

            In this case, the commissioner documented consideration of and findings on the relevant statutory factors on a "Request for Reconsideration Assessment Form."  Although the commissioner considered each of the eight factors, the commissioner's findings on several of the factors are not supported by, and are counter to, evidence in the record and do not reflect consideration of important aspects of relator's situation.  We conclude that the decision, in light of the record as a whole, is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise.  The decision appears to be based on an overreaction to the nature of relator's adolescent offense rather than a reasoned determination of realtor's current situation based on the record.

            The findings with regard to factors one (nature, severity, and consequences of the event that led to disqualification) and six (time elapsed without a repeat of the same or similar incident), are based on the commissioner's erroneous statement that relator's "disqualifying event" is "categorized as a 15-year disqualifying event" under Minn. Stat. § 245C.15, subd. 2 (2004).  In reality, relator's offense is not categorized as a fifteen-year event in the statute.  The offense for which relator was adjudicated, (a gross misdemeanor) subjects an individual to disqualification for ten years.See Minn. Stat.      § 245C.15, sbud. 3 (2004).[3]  Based on this erroneous categorization of relator's crime, the commissioner described the nature of relator's disqualifying event as: "Violent; serious harm likely," (factor one), and found that the ten year passage of time from the commission of the offense is not "a significant passage of time," (factor six).  Clearly the commissioner's findings on factors one and six are not based on the evidence and the evidence indisputably supports a conclusion that a ten year passage of time is significant.  Furthermore, even the erroneous categorization of the offense as carrying a fifteen-year disqualification does not support the characterization of relator's crime as "violent," and nothing in the record suggests that violence was involved in the commission of the crime.  Of the three characterizations available on the form used by the commissioner, the characterization of "[i]ntentional; overt act; harm likely" is the only characterization supported by the record that could have been made.

            In considering factor two (whether there is more than one disqualifying event), the commissioner correctly found only one disqualifying event, consistent with evidence in the record.  In considering factor three (age and vulnerability of the victim), the record supports the commissioner's finding that the victim was "very vulnerable."  But in considering factor four (harm suffered by the victim), the commissioner, without any support whatsoever in the record, found that relator's offense "[c]aused severe or long-term damage to the victim."  The commissioner acknowledged that "not much is known about the victim," but asserted the commissioner's own opinion that it is "well-established" that sexual conduct to a child the victim's age "is harmful in and of itself, is damaging to the victim, and is very likely to cause long term problems."  Although this generalization may be valid, there is no evidence that this victim suffered severe or long-term damage as a result of relator's acts in this case.  The commissioner's findings on factor four are not supported by the record in this case.

            The commissioner found with regard to factor five (similarity between the victim and persons served by the program) that they are the "[s]ame."  The commissioner conceded that there is a difference between an eight-year-old child, who was the victim of prior sexual abuse, and the patients served by relator's employer, but found that because surgical patients are ill and may be under "some degree of anesthesia" they are even more vulnerable than the eight-year-old girl left for long periods in the care of an adolescent boy.  Although we acknowledge that surgical patients are vulnerable, we conclude that there is no support in the record for the conclusion that patients in the care of a twenty-five-year-old trained surgical assistant in a hospital setting are the "same" as the eight-year-old girl left for long periods of time in a private home, in the sole care of a confused adolescent fourteen-year-old male babysitter.  Relator explained the limited episodic contact he has with patients and the fact that in five years he cannot recall being alone with a patient.  The maturity, successful treatment experience, and professional training of relator negates any inference that anyone in his care at this time is in a similar situation as anyone in his care when he was fourteen years old.  The characterization of relator's eight-year-old victim as the "same" as persons served by the hospital is not supported by the evidence and is arbitrary and capricious.

            The commissioner correctly found in factor seven (documentation of successful completion by the individual of training or rehabilitation pertinent to the event) that relator has successfully completed rehabilitation and accepts responsibility for his acts.  In considering factor eight (any other relevant information), the commissioner acknowledged relator's rehabilitation, but rejected relator's statement that he is not alone with patients because it was not corroborated.  The commissioner then relied heavily on mere speculation that relator is alone with patients, stating: "This is a serious factor given the serious nature of the disqualifying event and the close contact you have with vulnerable persons."  But the commissioner's speculation about relator's work situation is not supported in the record. 

            The commissioner did not mention the significant and extremely relevant evidence from the University of Minnesota Psychosexual Evaluation, which provides a current, in-depth evaluation of relator's low risk to reoffend.  The commissioner also ignored  relator's successful performance on the job for five years and evidence provided by his fiancée of his healthy relationships and existing support systems. 

            The commissioner's failure to consider important risk-analysis information provided by relator and reliance on undocumented speculation about the nature of relator's contact with patients lead us to conclude the findings on this factor are not supported by evidence in the record and cannot support the denial of reconsideration.

            Because all of the commissioner's findings that support the commissioner's conclusion that relator poses a risk to people receiving the hospital's services are unsupported by the evidence and are arbitrary and capricious, there is no single factor that supports the commissioner's decision to deny reconsideration.  Because the record contains substantial evidence that relator does not pose any risk of harm related to his disqualifying event to the people he serves, we reverse the determination of the commissioner's decision not to set aside relator's disqualification.

            Reversed.

WORKE, Judge (dissenting)

 

I respectfully dissent.  The majority concludes that the commissioner's decision to not set aside relator's disqualification is "so implausible that it cannot be ascribed to a difference in view or the product of agency expertise," and characterizes the decision as "an overreaction to the nature of relator's adolescent offense."  The focus of our review is not limited to relator's current situation.  Our review is to determine whether the commissioner's decision is supported by substantial evidence or is arbitrary and capricious.  Because the commissioner's decision to not set aside relator's disqualification was not arbitrary or capricious and was supported by substantial evidence, I would affirm. 

 In evaluating whether relator poses a risk of harm, the commissioner must consider eight factors discussed by the majority.  Any single factor may be determinative of the commissioner's decision.  See Minn. Stat. § 245C.22, subd. 3 (2004).  Further, the commissioner is required to give preeminent weight to the safety of each person served by the license holder, and this factor alone can be determinative of the commissioner's decision.  Id. 

The majority states that the commissioner based its decision regarding factor one (nature, severity, and consequences of the event that led to disqualification), relying on an erroneous statement that relator's disqualifying event is "categorized as a 15-year disqualifying event."  While the commissioner erroneously determined the disqualification period, that error alone does not render the entire decision arbitrary or capricious. 

The commissioner specifically determined that relator's disqualifying event was "[v]iolent; serious harm likely."  This is not an erroneous characterization in light of the circumstances of the disqualifying event.  The commissioner described the details that lead to the conclusion that relator's disqualifying event (i.e., a conviction for fifth degree criminal sexual conduct) was "[v]iolent; serious harm likely."  Specifically, the commissioner wrote, "[y]our conduct involved touching the victim's [an eight-year-old girl] vagina and breasts and rubbing your genitals on her vaginal area.  You stopped after the third incident because of guilt and shame and feeling sick over your conduct, which indicates that you knew what you were doing was wrong."  While the legislature has determined that a single conviction of fifth-degree criminal sexual conduct warrants a 10-year disqualification period, rather than a 15-year disqualification period, that does not mean that this incident cannot accurately be described as "[v]iolent; serious harm likely."  This is especially the case because the legislature has recently amended the statute to provide that a single conviction for fifth-degree criminal sexual conduct warrants permanent disqualification.   2005 Minn. Laws ch. 136 § 2, at 982.   

            Regarding factor three (age and vulnerability of the victim), the majority determined that "the record supports the commissioner's finding that the victim was ‘very vulnerable.'"  The commissioner determined that "[y]our victim was very vulnerable. . . . she was six years younger than you and at age eight, was not in a position to resist your advances or understand all of the consequences . . . . you were the victim's babysitter.  This put you in a position of trust and authority over her."  This alone is enough to affirm the commissioner's decision.  See Minn. Stat. § 245C.22, subd. 3 ("[A]ny single factor under subdivision 4, paragraph (b), may be determinative of the commissioner's decision whether to set aside the individual's disqualification."). 

            The commissioner relied heavily on factor four (harm suffered by the victim).  The majority suggests that "without any support whatsoever in the record, [the commissioner] found that relator's offense ‘caused severe or long-term damage to the victim.'" The record shows that the victim revealed the abuse a year after the three incidents occurred.  While not much is known about the victim, the fact that a child reveals the abuse a year after it occurs suggests that the victim suffered harm.  The majority mentions that relator "wrote an appropriate apology letter to his victim," but that merely goes to show that relator is apologetic and progressing in his rehabilitation.  An apology letter to a victim of sexual abuse does not mean that the victim did not suffer any harm; in fact it means that relator realized that he caused his victim harm and is trying to repair the harm he caused. 

Factor five (similarity between the victim and persons served by the program) was also decisive in the commissioner's decision.  The majority states that the commissioner's determination that relator's victim and the persons served are the same is arbitrary and capricious because "the maturity, successful treatment experience and professional training of relator negates any inference that anyone in his care at this time is in a similar situation as anyone in his care when he was 14-years old."  This factor does not require the commissioner or this court to consider relator's maturity, successful treatment, and professional training.  This factor simply compares relator's victim to the persons served by the program. 

The commissioner determined that similar to relator's victim, the persons served by the program "are as vulnerable as the victim, if not more vulnerable because they are ill and for much of the time that [relator] would have contact with them[,] under some degree of anesthesia."  The majority acknowledges that surgical patients are vulnerable, but contends that there is no support that they are the same as the victim.  The majority also relies on relator's comment that he has limited contact with patients and that he could not recall being alone with a patient.  However, relator did not provide any documentation that he, in fact, is never alone with patients.  Further, the commissioner is required to give preeminent weight to the safety of the persons served by the program.  In light of this requirement, the fact that the majority agrees that patients under anesthesia are vulnerable, and lacking documentation that relator is always supervised when with patients, the commissioner's decision regarding this factor was not arbitrary or capricious. 

 The commissioner's decision that relator's disqualifying event was "moderately recent" (factor six:  time elapsed without a repeat of the same or similar incident, in relation to the seriousness level of the disqualification), was likewise not arbitrary or capricious.  The majority relies on the commissioner's characterization that relator's disqualifying event is "categorized as a 15-year disqualifying event."  The commissioner described the nature of relator's disqualifying event as "[v]iolent; serious harm likely" and that ten years was not a significant passage of time.  This determination directly follows the legislature's determination that ten years is not a significant passage of time for a disqualifying event warranting a ten-year disqualification period.  Under Minn. Stat. § 245C.15, subd. 3 (2004), "[a]n individual is disqualified [for ten years] . . . if less than ten years have passed since the discharge of the sentence imposed for the offense."  Therefore, even though the commissioner erroneously determined relator's disqualification period, the determination that ten years is not a significant passage of time is not arbitrary or capricious and is a direct application of the relevant statute.   

            The majority seems to rely heavily on factor seven (documentation of successful completion by the individual of training or rehabilitation pertinent to the event), but that is only one factor.  The statute does not state that if relator is rehabilitated his disqualification may be set aside.  If the statute affords a balancing of interests, relator's interest in retaining direct-contact services comes after the safety of the persons served by the program.  See Minn. Stat. § 245C.22, subd. 3 (the commissioner is required to give preeminent weight to the safety of each person served by the license holder). 

            Under factor eight the commissioner may consider any other relevant information.  The majority states that the commissioner speculated that relator is in close contact with vulnerable persons.  Relator's job description includes being in the operating room with the surgeon, handing instruments to the surgeon and readying patients for transport to the recovery room.  Therefore, the commissioner's finding that relator is in close contact with vulnerable persons is not arbitrary or capricious.  The majority relies on relator's statement that he is rarely alone with patients, but relator does not provide any evidence to support this contention.  

            Further, under factor eight, the commissioner is not required to specifically address the psychosexual evaluation or the affidavit of relator's fiancée.  It appears, however, that the commissioner did consider this information in stating that while relator had "taken steps to come to an understanding of why [he] engaged in the criminal sexual conduct," the fact that relator works with extremely vulnerable persons could not be ignored.  This is not an arbitrary and capricious determination and specifically applies the statute that requires the commissioner to give preeminent weight to the safety of each person served. 

            The majority concludes by stating that "there is no single factor that supports the commissioner's decision to deny reconsideration."  This is not an accurate description of either the record or the commissioner's reconsideration assessment form.  This court may not reverse an administrative decision if it is supported by substantial evidence or is not arbitrary or capricious.  See In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001); 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).  I would affirm the commissioner's decision to not set aside relator's disqualification because the decision is not arbitrary or capricious and it is supported by substantial evidence.  I do agree with the majority, however, that the commissioner disqualified relator for an incorrect disqualification period.  Relator should be disqualified for ten years expiring on December 4, 2006.    

[1] See Minn. Stat. §245C.08, subd. 4 (2004) (specifying what juvenile court records DHS is able to review, and providing that for purposes of chapter 245C, "a finding that a delinquency petition is proven in juvenile court shall be considered a conviction in state district court."

[2] Disqualification was required under Minn. Stat. § 245C.14, subd. 1(1) (2004).

[3] On appeal, respondent concedes that only a ten-year disqualification applies and that relator's disqualification, if affirmed, would expire in December 2006.