Beth Ann Balenger v. State of Minnesota, Department of Health

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0226
Beth Ann Balenger,
Appellant,
vs.
State of Minnesota, Department of Health,
Respondent.
Filed November 23, 2015
Affirmed
Connolly, Judge
Hennepin County District Court
File No. 27-CV-14-8434
Lateesa T. Ward, Ward & Ward, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Audrey K. Manka, Assistant Attorney General,
St. Paul, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges the district court’s order affirming a finding of the
Department of Health (DOH) that appellant committed maltreatment of a vulnerable
adult. Because we see no denial of due process to appellant and no error of law in the
district court’s order, because substantial evidence supports the district court’s decision,
and because that decision was not arbitrary and capricious, we affirm.
FACTS
Appellant Beth Balenger was the owner of Unity Health Care (Unity), an agency
that provided services to the residents of a House With Services (HWS); she was also the
director of operations at the HWS. On September 8, 2011, S.C., a 47-year-old
vulnerable-adult female with chronic pulmonary disease for which she carried an oxygen
tank, uncontrolled diabetes, and memory deficits, moved into the HWS. Conflicts
developed between S.C. and Unity staff because S.C. would not take showers when
directed to do so and repeatedly smoked while using an oxygen tank.
On the morning of September 27, 2011, S.C. was told that she should take a
shower before her doctor’s appointment that afternoon. She refused, saying she liked to
shower in the evening. Later that morning, S.C. went outside the HWS on her scooter;
she was both smoking and using an oxygen tank. Appellant was outside watering the
garden with a hose. She first directed the hose at S.C., wetting her; then took a bottle of
shampoo and rubbed it on S.C.’s face, hair, and clothing.
The Office of Health Facility Complaints (OHFC) received two reports of this
incident. One was from a member of the community who was driving by and saw the
incident; the other was from a DOH employee who, when at the HWS, was asked by S.C.
if appellant had the right to give S.C. a shower. The OHFC conducted an investigation,
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which resulted in the DOH issuing a finding of maltreatment and advising appellant that
she had a right to a hearing and to administrative reconsideration.
In September 2012, a hearing was conducted before a human services judge (HSJ),
who, in January 2013, issued proposed findings and conclusions and recommended that
the maltreatment finding be reversed.
The OHFC submitted exceptions to the HSJ’s recommendation. In December
2013, a delegate of the DOH commissioner (the delegate) issued a proposed final order
adopting parts of the HSJ’s report, but making additional findings and affirming the DOH
maltreatment finding. After both parties had submitted comments on the proposed final
order, the delegate, in February 2014, issued a final order affirming the maltreatment
finding.
Appellant requested reconsideration, and, in April 2014, the DOH issued a “final,
final order,” again affirming the maltreatment finding. Appellant sought review in the
district court, which, after oral argument, issued an order affirming the maltreatment
finding.
Appellant now challenges that order, arguing that (1) she was deprived of due
process, (2) the order contained errors of law, (3) the maltreatment finding was not
supported by substantial evidence, and (4) the order was arbitrary and capricious.
DECISION
Where “the [district] court is itself acting as an appellate tribunal with respect to
the agency decision, this court will independently review the agency’s record.” In re
Hutchinson, 440 N.W.2d 171, 175 (Minn. App. 1989) (quotations and citations omitted),
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review denied (Minn. Aug. 9, 1989). “[I]f the ruling by the agency decision-maker is
supported by substantial evidence, it must be affirmed.” In re Excess Surplus Status of
Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 279 (Minn. 2001).
The substantial evidence test requires a reviewing court to
evaluate the evidence relied upon by the agency in view of
the entire record as submitted. If an administrative agency
engages in reasoned decisionmaking, the court will affirm,
even though it may have reached a different conclusion had it
been the factfinder.
Cable Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship, 356 N.W.2d 658, 668-69
(Minn. 1984) (quotations and citations omitted).
1. Due Process
Whether the government has violated a person’s
procedural due process rights is a question of law that we
review de novo. We conduct a two-step analysis to determine
whether the government has violated an individual’s
procedural due process rights. First, we must identify
whether the government has deprived the individual of a
protected life, liberty, or property interest. If the
government’s action does not deprive an individual of such an
interest, then no due process is due. On the other hand, if the
government’s action deprives an individual of a protected
interest, then the second step requires us to determine whether
the procedures followed by the government were
constitutionally sufficient. To determine the constitutional
adequacy of specific procedures . . . [we] consider first, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.
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Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012) (quotations and citations
omitted).
Appellant argues that, because she was not notified prior to the delegate’s April
2014 order that her application of shampoo to S.C. would be considered maltreatment of
a vulnerable adult, she could not defend against that charge and was therefore denied due
process. But, in March 2012, appellant had been sent notice of the DOH finding that she
had maltreated a resident, specifically that she “sprayed [the resident] with water using a
garden hose in the front yard of the facility saturating her clothing and then squirted
shampoo all over [the resident’s] hair and clothes stating, ‘I guess that means you’re
going to take the shower now doesn’t it?’” Thus, appellant had notice six months before
the September 2012 hearing that her putting shampoo on S.C. was part of the conduct
considered to be maltreatment.
Moreover, during the OHFC investigation before that hearing, appellant was
questioned about her application of shampoo to S.C. She first denied that she had any
shampoo, then, when told that suds had been seen on the ground, said she was trying to
remove lice from S.C.’s hair.
Q. Did you have any soap or detergent or any type of
chemical out there, . . . in the yard?
A. No.
....
Q. Um, part of the information I have is that there was
suds on the ground.
A. There weren’t suds on the ground. I didn’t have any
chemicals outside, um, I went into the house and I
retrieved some shampoo because [S.C.] had to have,
uh, something like a lice check or, uh, shampoo for
lice, uh, done to her hair. . .
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Thus, appellant had notice that her putting shampoo on S.C.’s hair outside was part of the
incident giving rise to the maltreatment finding, and she was not deprived of the
opportunity to present a defense. Moreover, the transcript confirms the finding that
appellant denied having shampoo and did not mention trying to remove lice from S.C.’s
hair until after she was told that suds had been seen on the ground.
As to the second factor, the procedures used by DOH here do not present a risk of
depriving an individual of the right to notification. Appellant was provided with the
DOH finding and allowed to present evidence and testify. Finally, appellant’s view that
an individual must be informed of every act that could possibly be considered
maltreatment under the vulnerable adults act, Minn. Stat. § 626.5572, subd. 15 (2014)
(defining maltreatment as abuse or neglect), would impose a significant fiscal and
administrative burden, even supposing that it were possible to list every act that could be
maltreatment.
Appellant was not deprived of due process.
2. Errors of Law
Appellant argues that the delegate “made an error of law when it determined [her]
actions were maltreatment, and not a therapeutic mistake.” But an error in providing
therapeutic treatment to S.C. would be related to whether S.C. had been neglected, not
whether she had been abused. See Minn. Stat. § 626.5572, subd. 2(b) (2014) (defining
abuse as “[c]onduct which is not . . . therapeutic conduct); Minn. Stat. § 626.5572, subd.
17(c)(4) (2014) (defining neglect not to include an error in the provision of therapeutic
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conduct that does not necessitate medical or mental health care). Appellant was not
accused of neglect, but rather of abuse, so her argument that her treatment of S.C. was
actually a therapeutic mistake is irrelevant.
Therapeutic conduct is defined as “the provision of . . . personal care services done
in good faith in the interests of the vulnerable adult.” Minn. Stat. § 626.5572, subd. 20
(2014). The delegate found that:
It was not in the interest of [S.C.] to have her hair shampooed
with lice shampoo outside of the facility when she did not
have lice and there was no doctor’s order for lice shampoo to
be used on [her]. . . . It was not in [S.C.’s] interest to have her
hair shampooed while she was outside the facility.
Appellant did not act in good faith by hosing down
[S.C.] and applying lice shampoo without having an order for
treatment of lice. . . . I find that spraying the scooter and
[S.C.] was a pretext to force [S.C.] to take a shower against
her will.
I find it more likely than not that appellant, out of
frustration [caused by] dealing with the noncompliant [S.C.],
emotionally abused her by hosing her down outside and
putting shampoo in her hair to force her to take a shower.
The district court did not err in concluding that appellant’s spraying S.C. with a hose and
putting shampoo on her as she sat outdoors on her scooter was not “the provision of . . .
personal care services done in good faith in the interest of the vulnerable adult” within
the meaning of Minn. Stat. § 626.5572, subd. 20.
Appellant relies on In re Staley, 730 N.W.2d 289 (Minn. App. 2007), to argue that,
because her conduct was not egregious, it was not maltreatment, and states that “[t]he
[district] court’s analysis of Staley is blatantly flawed.” Staley concerned a nursing
assistant who made a single offensive remark to a resident and was terminated for oral
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abuse of that resident. Id. at 292. This court concluded that the statement, although
disparaging, derogatory, humiliating, or harassing, was not repeated or malicious and
therefore did not come under the “language” prong of Minn. Stat. § 626.5572, subd.
2(b)(2) (defining abuse as including the “use of repeated or malicious oral, written, or
gestured language toward a vulnerable adult or the treatment of a vulnerable adult which
would be considered by a reasonable person to be disparaging, derogatory, humiliating,
harassing, or threatening”), and was not “treatment” and therefore did not come under the
“treatment” prong. Id. at 298-99. But treatment, specifically appellant’s treatment of
S.C. in spraying her with water and rubbing shampoo on her outdoors and in public, was
at issue here, and a reasonable person would have considered that treatment disparaging,
derogatory, humiliating, harassing, or threatening, thus bringing it under the statutory
definition of abuse of a vulnerable adult. See Minn. Stat. § 626.5572, subd. 2(b)(2); see
also Minn. Stat. § 626.5572, subd. 15 (defining maltreatment as abuse).
There was no error of law in the district court’s interpretation of the relevant
statutes or of Staley.
3. Substantial Evidence
Substantial evidence is (1) evidence that a reasonable mind might accept as
adequate to support a conclusion; (2) more than a scintilla of evidence, some evidence, or
any evidence; and (3) the evidence considered in its entirety. Cable Commc’ns Bd., 356
N.W.2d at 668. The delegate’s decision was based on two “key facts”: first, “a
community member corroborated [S.C.’s] allegation that [a]ppellant deliberately doused
her with [water from] the garden hose while she was seated on her scooter outside, in
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front of the residence, in full view of the street”; second, “by her own admission,
[a]ppellant put shampoo on [S.C.’s] head also while they were outside.” Substantial
evidence supports these factual findings.
The community member reported that, as she was driving by the HWS, she saw a
woman matching appellant’s description pointing a stream of water from a hose at
another woman, who was in a wheelchair, was drenched, and was putting up her hands to
try to keep the water away. The investigator reported that:
[S.C.] said to [appellant] you gotta be kidding, you’re not
going to douse me with the hose and [appellant] said no, I
would never do that. They continued and then [appellant] got
closer to [S.C.] and then the water actually hit her, hit [S.C.].
Then she said the next thing she knew [appellant] held the
hose straight out at her and was getting her all wet. [S.C.]
was fully clothed and . . . she said [appellant] hosed her
down. [Appellant] then turned her back for a minute and
turned around and had a shampoo bottle in her hand and
started putting shampoo all over [S.C.] and rubbing it in her
body, in her hair, in her clothes and then . . . .
. . . .[S.C.] said she was mortified . . . because neighbors were
out in the yard and she felt very, very uncomfortable with
that.
Thus, substantial evidence supported the delegate’s finding that appellant had directed
water from a hose at S.C. and applied shampoo to S.C. while they were outside.
4. Arbitrary and Capricious
The delegate’s decision was not arbitrary and capricious if there was a rational
connection between the facts found and the choice made. See In re Review of 2005
Annual Automatic Adjustment of Charges for all Elec. and Gas Utilities, 768 N.W.2d
112, 120 (Minn. 2009).
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Appellant relies on Blue Cross, 624 N.W.2d at 278, for the proposition that
“[r]ejection of the ALJ’s recommendations without explanation[,] however, may suggest
that the agency exercised its will rather than its judgment and was therefore arbitrary and
capricious.” But the HSJ’s recommendation that no maltreatment be found was not
rejected without explanation: the delegate explained that the HSJ declined to give any
weight to the report of the community member, “a neutral third party who happened to be
driving by,” and whose report both the DOH and the delegate saw as “the critical piece of
evidence.” The delegate noted that “[a]ppellant argues that inconsistencies between
[S.C.’s] and the community member’s statements are such that they negate the
community member’s report as corroboration” but that “the inconsistencies . . . are
readily explained by the fact that the community member was driving by in a car and
only saw the incident for a brief period of time” and that S.C. and the community
member “[had] different vantage points relative to the hose.”
Our evaluation of “the evidence relied upon by the agency in view of the entire
record” indicates that “[the] administrative agency engage[d] in reasoned
decisionmaking,” see Cable Commc’ns Bd., 356 N.W.2d at 668-69, and, because “the
ruling by the agency decision-maker is supported by substantial evidence, it must be
affirmed.” See Blue Cross, 624 N.W.2d at 279.
Affirmed.
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