Smith v. Minnesota Dept. of Human Services, No. A08-1243.
| Decision Date | 21 April 2009 |
| Docket Number | No. A08-1243. |
| Citation | 764 N.W.2d 388 |
| Parties | Glenn SMITH, Relator, v. MINNESOTA DEPARTMENT OF HUMAN SERVICES, Respondent. |
| Court | Minnesota Court of Appeals |
Paul D. Baertschi, Minneapolis, MN, for relator.
Lori Swanson, Attorney General, Cindy Jahnke, Assistant Attorney General, St. Paul, MN, for respondent.
Considered and decided by KLAPHAKE, Presiding Judge; PETERSON, Judge; and HARTEN, Judge.*
Relator Glenn Smith challenges a final order by the Commissioner of the Department of Human Services (the department) permanently disqualifying him from providing direct-contact services in facilities licensed by the department. Relator asserts that he is entitled to a hearing, both under Minn.Stat. § 245C.27, subd. 1 (2008), and as a matter of due process. Because relator was entitled to a hearing but failed to request one within the time set forth in the statute, he was afforded due process and is now barred from challenging the permanent disqualification. We therefore affirm the department's decision.
Relator finished a degree in criminal justice studies with the intention of using his skills to counsel adult offenders about "the seriousness of crime and drugs." Relator worked as an intern in various programs and received supportive recommendations from his supervisors.
Relator applied to work in a position involving direct contact with persons receiving services from facilities licensed by the department. Because of this, relator was subject to a background check by the department. The department received information from the FBI that on May 23, 1997, relator committed a second-degree assault; although relator was not charged or convicted of this offense, the department concluded that the FBI information showed by a preponderance of evidence that relator had committed an act that met the definition of this offense. Under Minn. Stat. § 245C.15, subd. 1 (2008), second-degree assault is an offense that permanently disqualifies a person from performing direct-contact services for a provider licensed by the department. In the November 30, 2006 letter of disqualification, the department advised relator that he could request reconsideration of this determination within 30 days. Relator made a request for reconsideration on February 2, 2007, more than 60 days after the disqualification letter.
In the meantime, relator applied for another direct-contact job. On April 9, 2007, the department notified relator that he was permanently disqualified. Relator asked for reconsideration, and the department did reconsider, using the materials he had submitted on February 2, 2007, for the earlier but untimely request for reconsideration. On May 1, 2007, the department confirmed the disqualification, informing relator that he had 30 days within which to request a fair hearing challenging the decision or up to 90 days for good cause shown.
On September 11, 2007, relator requested a fair hearing and submitted additional materials; this request was made more than 90 days after the department confirmed his disqualification. A hearing was held on November 19 on the sole issue of whether his request was timely. On December 28, the administrative law judge issued an order dismissing as untimely relator's request for a hearing.
Relator subsequently applied for yet another direct-contact job. On March 11, 2008, the department issued a third notice of permanent disqualification. On March 19, 2008, relator requested reconsideration and a fair hearing, but he did not submit any supplementary materials. On June 25, 2008, the department affirmed the permanent disqualification and denied the request for a fair hearing; the department stated that this was a final agency decision and relator had no right to a hearing, because he waived the opportunity for a hearing by failing to request one in a timely fashion. The department advised relator that he could petition this court for a writ of certiorari, which he did on July 24, 2008.
1. Is relator entitled to a fair hearing on whether he committed a permanently disqualifying act, as established by a preponderance of the evidence?
2. Has relator been afforded procedural due process?
On a certiorari appeal from an agency's quasi-judicial action, we review the record to determine whether (1) the agency had jurisdiction over the matter; (2) the agency followed the correct procedure; and (3) the agency's determination of the merits of the controversy was "arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Rodne v. Comm'r of Human Servs., 547 N.W.2d 440, 444 (Minn. App.1996). This court reviews questions of law, including interpretation of a statute, de novo. St. Otto's Home v. Minn. Dep't of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989).
The statutory scheme for approval to provide direct-contact services is set out in Minn.Stat. ch. 245C (2008).1 A person who is seeking employment in a facility licensed by the department and who will be providing direct-contact services must submit to a background check. Minn.Stat. § 245C.03A, subd. 1(a)(3). A person is permanently disqualified from providing direct-contact services if the person was either convicted of certain crimes or it is established by a preponderance of the evidence that the person committed an act that meets the definition of these crimes. Minn.Stat. §§ 245C.14, subd. 1, 245C.15, subd. 1. A disqualified individual may request reconsideration within 30 days of a disqualification decision. Minn.Stat. § 245C.21, subd. 2. Under certain circumstances, the department may set aside a disqualification, but this does not apply to those permanently disqualified from direct contact. Minn.Stat. § 245C.24, subd. 2.
Relator was permanently disqualified because the department found by a preponderance of the evidence that he committed an act equivalent to second-degree assault. A person permanently disqualified by a preponderance of the evidence, rather than a conviction, has the right to request a fair hearing. Minn.Stat. § 245C.27, subd. 1(a); see also Minn.Stat. § 256.045, subd. 3(a)(10) (2008) (). The party seeking a fair hearing must submit a written request within 30 days after receiving written notice of disqualification; this time period can be increased to 90 days for good cause shown. Id.
Relator failed to meet these time limitations, either after his initial disqualification in November 2006 or his second disqualification and reconsideration in May 2007. Minn.Stat. § 245C.29, subd. 2(a)(2)(iii), states that if an aggrieved party fails to challenge the department's decision, a determination that a person is disqualified is conclusive. Because relator failed to challenge the determination in a timely fashion, he is conclusively permanently disqualified.
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