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15-0900-16826-2 |
STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF
HEALTH
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In the Matter of the Examination for
Certification as a Hearing Instrument Dispenser by James M. Gott. |
ORDER ON
MOTION FOR SUMMARY
DISPOSITION AND RECOMMENDATION |
The above-entitled matter came before Administrative Law Judge Beverly Jones Heydinger on the Department of Health’s motion for summary disposition. The Department filed its motion for summary disposition on November 1, 2005. The Applicant, Mr. James M. Gott, did not file any response by November 30, 2005. The record, with respect to the motion, closed on November 30, 2005.
Audrey Kaiser Manka,
Assistant Attorney General,
Based upon all of the file, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
ORDER AND RECOMMENDATION
IT
IS HEREBY ORDERED:
That the Department’s motion for summary disposition is GRANTED.
IT IS HEREBY RECOMMENDED:
That the Department’s decision to deny a an Examination for Certification as a Hearing Instrument Dispenser to the Applicant be AFFIRMED
Dated this 16th day of December, 2005
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/s/ Beverly Jones Heydinger |
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BEVERLY JONES HEYDINGER |
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Administrative Law Judge |
NOTICE
This report is a
recommendation, not a final decision.
The Commissioner of Health will make the final decision after a review
of the record. The Commissioner may
adopt, reject or modify the Findings of Fact, Conclusions, and
Recommendations. Under Minn. Stat. §
14.61, the final decision of the Commissioner shall not be made until this
Report has been made available to the parties to the proceeding for at least
ten days. An opportunity must be
afforded to each party adversely affected by this Report to file exceptions and
present argument to the Commissioner.
Parties should contact Dianne Mandermach, Commissioner, Department of
Health,
PO Box 64975
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.
MEMORANDUM
An examination
consists of a written test, which has two parts, and a practical examination,
which has three parts. Applicants are
required to pay a $500 nonrefundable fee.[4] Half of the fee, $250, is for the written
portions of the exam. The remaining $250
is for the practical portions of the exam. Applicants must achieve a passing score for
all five parts of the examination.
Applicants who fail to pass all five parts of the exam have two years
from the date they first tested to retake the failed portions of the exam.[5]
James M. Gott
first took the hearing instrument dispensers examination on July 11, 2002. He passed two of the five parts of the
exam. On November 21, 2002, Mr. Gott
retook the three remaining portions of the exam and passed two more parts. Mr. Gott did not apply to take any portion of
the hearing instrument certification examinations offered by the Department in
2003. Mr. Gott called the Department on
March 9, 2004 and again on June 29, 2004 to inquire about taking the exam. Mr. Gott’s inquiries were made after the
deadlines to apply for both the March and the July 2004 examinations had passed
and after the twenty five testing slots had already been filled for each
examination. On November 19, 2004, more
than two years after he first took the hearing instrument dispensers examination,
Mr. Gott submitted an application to take only the practical portion of the
examination and sent the Department a check for $250.[6]
The staff
recommended that the Commissioner of the Department of Health deny Mr. Gott’s
application to take the examination for certification as a hearing instrument
dispenser because he was required to take the full examination and he did not
pay the fee required to take the written portion of the examination. Mr. Gott told Department staff that he should
not have to take the entire examination and should not have to pay the full $
500 fee. He objected to the Department’s
testing procedure and subsequently requested a contested case hearing.
A prehearing
conference was held on October 11, 2005.
Both the Department and Mr. Gott, appearing on his on behalf,
participated. The Department stated
during the prehearing conference that it intended to move for summary
disposition. A Prehearing Order was
issued on October 12, 2005 which directed to Department to file and serve its
motion for summary disposition by October 31, 2005 and further directed Mr.
Gott to file a response by November 30, 2005. The Department moved for summary
disposition on October 31, 2005. No
response was received from the Applicant on November 30, 2005, nor was there
any request for an extension.
The Department’s request for summary disposition is
analogous to a motion for summary judgment under Rule 56.02 of the Minnesota
Rules of Civil Procedure. Summary
disposition is appropriate when there is no genuine issue as to any material
fact and one party is entitled to a favorable decision as a matter of law.[7] A material fact is one that is substantial
and will affect the result or outcome of the proceeding, depending upon the
determination of that fact.[8] In considering the Motion for Summary
Disposition, an Administrative Law Judge must view the evidence in the light
most favorable to the nonmoving party.[9]
To obtain a summary disposition, the moving party must establish that there is no genuine issue of material fact. The initial burden is on the moving party to establish a prima facie case for the absence of material facts at issue.[10] Once the moving party has established a prima facie case, the burden shifts to the nonmoving party.[11] To defeat a motion for summary judgment successfully, the nonmoving party must show that there are disputed facts that have a bearing on the outcome of the case.[12] The existence of a genuine issue of material fact must be established by the nonmoving party by substantial evidence; general averments are not enough to meet the nonmoving party’s burden.[13]
The
Administrative Law Judge and the Commissioner of Health have jurisdiction over
license application appeals pursuant to Minn. Stat. §§ 14.50 and 153A.14. At a hearing, an applicant for examination
for certification bears the burden of proof to demonstrate by a preponderance
of the evidence that he or she has complied fully with Minn. Stat. § 153A.14
and other applicable laws or rules.[14]
The facts in
this matter are straight forward. On
July 11, 2002, Mr. Gott first took the examination. He passed two of the five parts. On November
21, 2002, Mr. Gott retook the three parts of the exam he had not passed in
July. He passed two parts but again
failed the fifth portion of the exam. He
did not take the remaining portion of the exam by July 11, 2004.
The Department
offered the examination three time in 2003; March 13, July 10 and December 11,
2003. The Department sent notices and
applications to Mr. Gott for the March and July, 2003 examinations. Mr. Gott did not apply to take any of the
three examinations offered in 2003. The
Department again offered the examination on March 11, 2004. The deadline for submitting an application
for that examination was February 19, 2004.
Mr. Gott called the Department on March 9, 2004 and asked to be allowed
to take the March 11, 2004 examination.
The Department told him that he could not take the exam because the
deadline for application had passed and that all twenty five examination spots
had been filled.
On April 19,
2004, the Department sent Mr. Gott an application for the July 8, 2004
examination, the last examination date offered by the Department during two
year period that began on July 11, 2002.
The deadline for applications was June 17, 2004. Mr. Gott did not submit an application but
instead, on June 29, 2004, called the Department and asked to take the July 8,
2004 examination. The Department again
told Mr. Gott that he could not take the exam because the deadline for
application had passed and that all twenty five examination spots were
filled.
On October 29,
2004, the Department sent Mr. Gott an application to take the December 10, 2004
exam. On November 19, 2004, the
Department received Mr. Gott’s application to take the practical portion of the
examination and a check for $250. On
November 23, 2004 staff for the Department informed Mr. Gott that because he
had not achieved a passing score on all parts of the examination within two
years as required by statute, he would have to retake the entire examination
and pay an additional $250 since the full fee was $500. Mr. Gott refused to pay the full fee and on
April 13, 2005, requested a contested case hearing.
The Department
has submitted evidence to support each material fact; Mr. Gott has offered no
evidence placing any material fact at issue.
The statute requires all candidates for certification as hearing
instrument dispensers to achieve a passing score on all portions of the
examination within a two-year period.
Mr. Gott failed to achieve a passing score on all parts of the
examination within the prescribed two-year period which began on July 11, 2002
and ended on July 11, 2004. On two
occasions, on March 9, 2004 and again on June 29, 2004, Mr. Gott called the
Department after the deadline for applications had passed and asked to be
allowed to take the examination. The
requests were properly denied because the examination spots had been filled and
the deadline for applications had passed.
There is no evidence that the Department made any misrepresentation
about the application process to Mr. Gott.
There are no
remaining issues to be addressed. The
ALJ recommends that the Commissioner affirm the denial of Mr. Gott’s challenge
to the procedures used in administering the hearing instrument certification
examination.
B.J.H.
[1]
[2]
[3]