Gloria Jean Johnson, Relator, vs. Commissioner of Health, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA IN COURT OF APPEALS

A04-481

 

Gloria Jean Johnson,

Relator,

 

vs.

 

Commissioner of Health,

Respondent.

 

Filed November 23, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Minnesota Department of Health

 

 

Christopher K. Sandberg, Lockridge, Grindal, Nauen, P.L.L.P., Suite 2200, 100 Washington Avenue South, Minneapolis, MN 55401 (for relator)

 

Mike Hatch, Attorney General, Jennifer Beens Harper, Jocelyn F. Olson, Assistant Attorneys General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101-2130 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

On appeal from an order disqualifying relator from providing direct-contact services because of her guilty plea to second-degree assault, relator argues that (1) the Minnesota Department of Health (DH) failed to follow the mandate of this court on a previous appeal, and in doing so the DH's reasons and conclusions (a) were unsupported by substantial evidence, and (b) were arbitrary and capricious; (2) the DH's decision was made upon unlawful procedure because (a) relator was not given an opportunity to participate in the decision-making process on remand, (b) the DH relied on inadmissible hearsay, and (c) the DH failed to notify relator that it had taken notice of facts outside the record.  Because the DH considered all eight statutory factors and gave reasons in support of its conclusion, and because the conclusions are supported by substantial evidence, are not arbitrary and capricious, and were made employing lawful procedure under the statute, we affirm.

FACTS

 

            On June 19, 2002, relator Gloria Jean Johnson pleaded guilty to second-degree assault for stabbing her son in the leg.  At the time of the conviction, relator was employed as a direct-contact service provider with three health-care organizations.  Because of her conviction, however, she was disqualified from providing direct-contact services.  Minn. Stat. § 245C.14, subd. 1(a)(1) (Supp. 2003).

            Relator requested reconsideration of her disqualification, arguing that she did not pose a risk of harm to the patients she served.[1]  The Minnesota Department of Health (DH) found that relator's disqualification could not be set aside, and relator appealed that decision to this court.  Johnson v. Comm'r of Health, 671 N.W.2d 921(Minn. App. 2003) (Johnson I).  This court held that the DH applied only three of the eight required factors under Minn. Stat. § 245 A. 04, subd. 3b(b) (2002), and remanded the decision to the DH.  Id. at 924. 

On remand, the DH concluded that, based on the eight factors under Minn. Stat. § 245C.22, subd. 4 (Supp. 2003)[2], relator poses a risk of harm to clients of the three health-care organizations with which she was employed.  Relator petitioned this court on a writ of certiorari on March 23, 2004. 

D E C I S I O N

            The Minnesota Department of Human Services (DH) may permanently disqualify an individual from working as a direct-contact service provider if a background study reveals that the individual had a conviction of second-degree assault.  Minn. Stat. § 245C.15, subd. 1 (Supp. 2003).  The individual may then request reconsideration of the disqualification.  Minn. Stat. § 245C.21 (Supp. 2003). 

This court may reverse an administrative decision if it is unsupported 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).  In considering factual determinations, this court determines whether substantial evidence in the record as a whole supports the commissioner's findings.  Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 826 (Minn. 1977).  Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  Id. at 825. 

I

Relator first argues that the DH failed to follow the mandate of this court.  She contends that, under the first appeal, Johnson v. Comm'r of Health, 671 N.W.2d 921 (Minn. App. 2003) (Johnson I), this court mandated that the DH set aside relator's disqualification.  In Johnson I, however, this court reversed and remanded for written findings and reasons in compliance with the applicable statute.  Id. at 924 ("[a]bsent written findings and reasons, and provided only with a conclusory explanation of the application of three of the eight factors, we cannot sustain the refusal to reconsider [relator's] disqualification.").  

Next, relator argues that the findings are not supported by substantial evidence and do not support the DH's decision not to set aside her disqualification.  The applicable statute states:

The commissioner may set aside the disqualification if the commissioner finds that the individual does not pose a risk of harm to any person served by the applicant, license holder, or registrant.

(b) In determining if the individual does not pose a risk of harm, the commissioner shall consider:

(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 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 (Supp. 2003). 

Nature, Severity, and Consequences

            Regarding the nature of the second-degree assault, which resulted in relator's disqualification, the DH found that relator's "actions not only caused a serious injury to [her] son but also demonstrated a lack of judgment and control during a difficult and volatile situation."  The record shows that during an argument relator tried to hit and choke her teenage son, who grabbed her hands and pushed her away.  Relator then went to the dishwasher and grabbed a steak knife while her son ran into a bedroom to call 911.  Relator picked up a telephone in the kitchen and spoke to the 911 operator.  When her son came into the kitchen to take the telephone away, relator stabbed his leg with the steak knife. 

            As a consequence of this incident, the record shows that relator's son was treated at a hospital for his injuries.  Relator pleaded guilty to second-degree assault and was sentenced to four years' probation, with the conditions that she complete a treatment plan, an anger-management program, and a psychological evaluation. 

            Here, substantial evidence in the record as a whole supports the DH's findings under this factor and weighs in favor of affirming the DH's decision not to set aside relator's disqualification.

More Than One Disqualifying Event

The record supports the DH's findings that there was only one disqualifying event.  This factor does not weigh in favor of affirming the DH's decision not to set aside relator's disqualification.

Age and Vulnerability of the Victim at the Time of the Event

Under this factor, the DH found that relator's son was 15 years old at the time of the incident, was much taller and larger than relator, and was not the aggressor during the incident.  The record supports these findings, but it is not clear if the DH found that relator's son was vulnerable because he was not the aggressor.  The record shows that relator and her son got into a heated argument and relator tried to hurt her son.  But the record also shows that relator's son was able to grab relator's hands, push her down, and run away.  Thus, the record is insufficient to show that relator's son was vulnerable at the time of the event, and this factor does not weigh in favor of affirming the DH.

Harm Suffered by the Victim

           In previous cases in which this court has reviewed the applicable statutory factors for reconsideration of disqualification, the DH was affirmed where there was no actual harm to a victim, but the individual was disqualified because of felony drug charges.  See, e.g., Dozier v. Comm'r of Human Servs., 547 N.W.2d 393, 395-96 (Minn. App. 1996) (holding disqualification of applicant was not arbitrary, capricious, or without substantial basis in fact, where applicant had pleaded guilty to fifth-degree possession of crack cocaine), review denied (Minn. July 10, 1996)

Here, the record supports the DH's finding that relator's son received medical treatment at a hospital for the wound on his leg and was released.  Based on the prior decisions of this court where various levels of harm and potential for harm were considered in affirming the disqualification, this factor weighs in favor of affirming the disqualification.

Similarity of Victim and Persons Served by the Program

Under this factor, the DH found:

            The victim was a minor, 15-year-old child, in your custody.  The programs where you wish to work . . . all serve vulnerable populations.   . . . .  The patients and residents in these facilities tend to include society's most vulnerable citizens, such as sick and disabled children and senior citizens.  Based on many years of . . . experience with investigating reports of maltreatment . . . [the DH] is aware that these patients and residents, particularly those with cognitive impairments such as Alzheimer's disease, have at least as much, if not more, potential as teenagers to behave in an uncooperative and difficult manner. 

 

            Relator argues that the DH based its finding under this factor on information outside the record.  When reviewing agency decisions, this court adheres to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness and defers to the agencies' expertise and special knowledge in the field of their technical training, education, and experience.  In re Universal Underwriters Life Ins. Co., 685 N.W.2d 44, 45-46 (Minn. App. 2004). 

The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency's authority . . . , and judicial deference, rooted in the separation of powers doctrine, is extended to an agency decision-maker in the interpretation of statutes that the agency is charged with administering and enforcing. 

 

Id. at 46. 

Here, the DH based its decision on its particular expertise in the area of disqualification from providing direct-contact services.  Thus, this factor weighs in favor of affirming the DH.

Time Elapsed Without a Repeat of the Same or Similar Event

            The record supports the DH's finding that 22 months had elapsed since the assault and that there has not been another incident.  The DH stated that, given the seriousness of the event, 22 months was not a significant lapse of time.  Neither the statute nor caselaw in this area offers a guide as to an acceptable lapse of time.  Thus, we defer to the DH's expertise on this factor.

Documentation of Successful Completion of Rehabilitation

The DH found that, although there was documentation of completion of the conditions of relator's probation, a letter from East Side Neighborhood Services indicates that relator was uncooperative for the first 16 weeks of the program and "[o]nly during the last two weeks of the session did [relator] appear to make any progress toward the goals of the program."  It is unfair to penalize an individual for behaving, for some time after beginning a rehabilitative program, in a manner consistent with the actions that resulted in the need for rehabilitation, especially if the individual begins to modify that behavior and completes the program.  Thus, because the record contains sufficient documentation of successful completion of rehabilitation, this factor does not weigh in favor of affirming the DH. 

Other Information Relevant to Reconsideration

Relator argues that, in making its finding under this factor, the DH improperly relied on a complaint from which no conviction resulted.  "All evidence, except that privileged by law, commonly accepted by reasonable people in the conduct of their affairs as having probative value with respect to the issues shall be submitted at the hearing."  Minn. Stat. § 256.045, subd. 4(b) (2002).  The evidence here is a February 2001 police report describing a domestic incident with relator and her daughter and indicating other incidents involving child-protection services.  The DH found this information "relevant to reconsideration because it indicates that the incident with [relator] and her son is not an isolated incident of violence . . . ."  It seems that a reasonable person in conducting his or her affairs would find this evidence probative when considering whether an individual should remain disqualified from providing direct-care services.  This factor weighs in favor of affirming the DH.

A majority of the statutory factors supports affirming the DH.  The DH considered all factors and gave reasons in support of its conclusions.  These reasons and conclusions are supported by substantial evidence and are not arbitrary and capricious. 

II

Relator next argues that the DH's decision was made on unlawful procedure because the DH failed to provide a forum, relied on inadmissible hearsay, and did not provide adequate notice to relator.  Regarding the forum, the applicable statute states, "[i]f the individual was disqualified based on a conviction or admission to any crimes . . . the reconsideration decision under this subdivision is the final agency determination for purposes of appeal by the disqualified individual and is not subject to a hearing . . . ."  Minn. Stat. § 245C.27, subd. 1(c) (Supp. 2003).  The record shows that following a hearing, the DH determined that, based on her conviction of second-degree assault, relator was permanently disqualified from providing direct-contact services.  Relator appealed to the DH for reconsideration of the disqualification, then appealed that decision to this court.  This court remanded for findings consistent with the statute.  In accordance with Minn. Stat. § 245C.27, subd. 1(c), relator was not entitled to a new hearing.  Thus, on remand the DH properly considered the record from the initial hearing and this court's decision in Johnson I. 

Relator argues that the DH relied on inadmissible hearsay in making its findings on remand from this court.  Relator states specifically that the hearsay is found in the police interview with relator's daughter regarding the stabbing incident with relator's son.  In the absence of statutory authority to do so, an administrative agency cannot, over objection, rest its findings of fact solely on hearsay evidence that is inadmissible in a judicial proceeding.  State ex rel. Indep. Sch. Dist. No. 276 v. Dep't of Ed., 256 N.W.2d 619, 627 (Minn. 1977) (quotation omitted).  Here, there is statutory authority that states, "[a]ll evidence, except that privileged by law, commonly accepted by reasonable people in the conduct of their affairs as having probative value with respect to the issues shall be submitted at the hearing."  Minn. Stat. § 256.045, subd. 4(b) (2002).  Thus, the DH correctly relied on the relevant information in the record.

Relator also argues that the DH was required to give notice under Minn. Stat. § 14.60, subd. 4 (2002).  Section 14.60 applies to evidence in contested-case proceedings.  Under Minn. Stat. § 245C.28 (Supp. 2003), a public employee may request a contested-case hearing for reconsideration of disqualification.  Here, relator is not a public employee, and her hearing was conducted under the fair-hearing section, Minn. Stat. § 245C.27 (Supp. 2003).  This was not a contested-case proceeding, and section 14.60 does not apply.  Thus, the DH's decision was made on lawful procedure. 

Affirmed.

[1] An individual requesting reconsideration of a disqualification "must submit information showing that: (1) the information the commissioner relied upon in determining that the underlying conduct that gave rise to the disqualification is incorrect; (2) for maltreatment, the information the commissioner relied upon in determining that maltreatment was serious or recurring is incorrect; or (3) the subject of the study does not pose a risk of harm to any person . . . ."  Minn. Stat. § 245C.21, subd. 3 (Supp. 2003). 

 

[2] At the time of the DH's previous decision, the statutory factors were listed in Minn. Stat. § 245 A. 04, subd. 3b (2002).  In 2003, the Minnesota Legislature recodified the provisions at Minn. Stat. § 245C.21 and § 245C.22, subd. 4 (Supp. 2003).  2003 Minn. Laws ch. 15, art. 1, §§ 21, 22; 2003 Minn. Laws 1st Spec. Sess. Ch. 14, art. 6, § 6.  There is no substantive difference between the original and the recodified statute.