8-0900-17632-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HEALTH
|
In the Matter of the Denial of the Application to Renew Class A Professional Home Care Agency License Issued to Loving Care Nursing and Home Care Services, Inc. to Operate Loving Care Home Services |
FINDINGS OF FACT,
CONCLUSIONS AND
RECOMMENDATION |
This
matter
Jocelyn F.
Olson, Assistant Attorney General, 1200
Should the application for renewal of Loving Care’s Class A Professional Home Care Agency license to operate Loving Care Home Care Services be denied?
FINDINGS OF FACT
1.
Respondent
was first licensed by the Department in the year 2000, to operate Loving Care
Home Care Services (Loving Care) as a Class A Professional Home Care Agency.[1] Loving Care’s most recent home care agency
license was effective between March 11, 2005 and March 10, 2006.[2]
2. Under its Class A license, Loving Care was obliged to provide at least one of the following home care services: nursing, physical therapy, speech therapy, respiratory therapy, occupational therapy, nutritional services, medical social services, home health aide tasks, or the provisions of medical supplies and equipment when accompanied by the provision of home care service.[3]
Violations Noted in the Original and Follow-Up Surveys
3.
The Department conducted a survey of Loving Care’s
operations from May 25 to June 8, 2005 (the Original Survey).[4]
4.
As a result of this survey, two sets of Correction
Orders were issued to Loving Care. On June 3, 2005, the Department issued a Correction Order to Loving Care
requiring it to correct within 24 hours potentially life-threatening
deficiencies in care and services provided to a ventilator-dependent client
with Amyotrophic Lateral Sclerosis (also known as “ALS” or “Lou Gehrig’s
Disease”).[5]
5.
As to this client, the lack of clear
documentation, training and orientation for Loving Care’s employees had
disastrous effects. In June of 2005, one
of the Licensee’s caregivers cut the end off of the client’s surgically-implanted
feeding tube, such that the client’s stomach acid spilled onto his bed, badly
injuring the client.[6] On
another occasion, an employee of Loving Care improperly administered an enema,
ripping this same client’s anus.[7] Further, because a set of Loving Care staff
had not been oriented to a special doorbell activation system that this client
used so as to summon caregivers to suction his ventilator tubes, the caregivers
would go to the door, and not to the client, whenever the doorbell rang.[8]
6.
On October 20, 2005, the Department issued a
second set of Correction Orders to Loving Care describing 17 additional
violations discovered during the Original Survey.[9]
7.
In combination, the violations cited in the June
3 and October 20, 2005, Correction Orders reflect the Department’s findings
that Loving Care failed to:
a.
adequately train the employees caring for vulnerable
clients;
b.
prepare written care instructions to staff
regarding the services to be provided;
c.
complete written service agreements with its
clients;
d.
provide required notices to clients;
e.
maintain state-required documentation of its
operations;
f.
complete client care and abuse prevention plans as
required by law; and,
g.
request background studies on employees as
required by law.[10]
8.
On the last day of the Original Survey, June 8,
2005, Department reviewers conducted an “exit interview”[11]
with Rufus A. Adewola.[12] During the exit interview, the two Department
reviewers, Sarah Peterson and Susan Gardner, discussed the claimed violations
with Mr. Adewola. Additionally, the
reviewers provided Mr. Adewola with a draft version of a document entitled
“Licensing Survey Form;” a document that detailed both the claimed violations
and the related statutes and rules.[13]
9.
Indicating
that the required corrections were completed, Mr. Adewola signed the October 20
Correction Order document on behalf of Loving Care on November 1, 2005.[14]
10.
The Department conducted a follow-up survey at
Loving Care from November 29 to December 1, 2005 (the First Follow-Up Survey)
and discovered that Loving Care had failed to correct 16 of the 18 violations
identified during the Original Survey.[15] Additionally, the Department’s surveyors
asserted an additional violation of law:
By way of a Correction Order dated January 18, 2006, the Department
alleged that Loving Care did not have complete prescription orders for the medications
and treatments its employees were providing to three clients.[16]
11. On the last day of the First Follow-Up Survey, December 1, 2005, Department reviewers conducted an exit interview with Rufus A. Adewola, and Margenia Williams, of Loving Care’s nursing staff.[17] During this interview, Department reviewers, Sarah Peterson and Bonnie Hoskins discussed the claimed violations with Mr. Adewola and Ms. Williams. Additionally, as with the June 2005 exit interview, the reviewers provided Loving Care staff with a draft version of the Licensing Survey Form.[18]
12.
On January 18, 2006, the Department issued a
Notice of Assessment to Loving Care for violations that were identified during
the Original Survey that had not been corrected by the First Follow-Up Survey.[19] The Notice both assessed fines in the amount
of $3,250 and informed Loving Care of the right to request a hearing to contest
this assessment.[20]
13.
On January 18, 2006, Christina Baltes, R.N., the
Department’s Staff Education Specialist, hand-delivered the Notice of
Assessment to Mr. Adewola. During this
meeting Ms. Baltes reviewed the claimed violations and outlined some
opportunities for Loving Care staff to receive additional training.[21] Loving Care did not contest the assessment,
but did request permission to remit the assessed fine in two equal installments.[22]
14. Business records maintained by the Department establish that the assessment was paid in full on April 6, 2006.[23]
15. Indicating that the required corrections were completed as to the one new violation cited in the January 18 Correction Order, Mr. Adewola signed this Order on behalf of Loving Care on January 26, 2006.[24]
16. The Department conducted a second follow-up survey at Loving Care from April 3 through April 6, 2006 (the Second Follow-Up Survey). During this follow-up survey the Department learned that Loving Care failed to correct 14 violations identified during the Original Survey.[25] In addition, Department surveyors discovered four new regulatory violations; each of which resulted in the issuance of a Correction Order on May 18, 2006.[26]
17.
On the last day of the Second Follow-Up Survey,
April 6, 2006, an exit conference was held in which Jeanne Schmitz, R.N.,
detailed the claimed violations. Among
the claimed violations were failures to ensure that:
a.
clients had the updated telephone number for the
office of the Ombudsman for Older Minnesotans;[27]
b.
newly-hired employees provided documentation of
having tested negative for tuberculosis prior to providing direct care to clients;[28]
c.
a registered nurse provided written instructions
for performing procedures for each client and that these instructions were
documented in the clients’ records;[29]
and,
d.
modifications to client service agreements were
made in writing;[30]
Because the new violations highlighted in Second Follow-Up Survey have not been reexamined during a subsequent reinspection of Loving Care, the Department has not yet assessed any penalties for these violations.
18. As to other violations, which had been detected on earlier inspection visits, the Department did issue a Notice of Assessment to Loving Care on May 18, 2006.[31] This notice assessed fines in the amount of $6,350 and informed Loving Care of the right to request a hearing to contest the assessment.[32] As before, Loving Care did not contest the assessment, but did request permission to remit the assessed fine in installments.[33]
19. Business records maintained by the Department establish that the assessment was paid in full on July 27, 2006.[34]
20. Indicating that the required corrections were completed as to the four new correction orders cited in the May 18 Correction Order, Mr. Adewola signed this Order on behalf of Loving Care on June 28, 2006.[35]
The Disqualification of Rufus A. Adewola
21.
During the Original Survey, Department surveyors
noted that Loving Care’s files did not include a required background study for
Rufus A. Adewola.[36] Subsequently, Loving Care submitted a
background study form for Mr. Adewola to the Department of Human Services (DHS).[37]
22.
On October 26, 2005, DHS notified Mr. Adewola
that he was disqualified as a result of a “conviction for felony check forgery”
that had been entered by the District Court of Minnesota on June 22, 1998.[38] This letter further informed Mr. Adewola that
he could request that the Department of Health reconsider his disqualification
if he could detail that the conviction information was in error, or, even if
correct, he did not pose a danger to persons receiving services from Loving
Care.[39]
23.
Mr. Adewola did not request reconsideration or
otherwise challenge the correctness of the information used to disqualify him.[40] Consequently, on December 5, 2005, DHS sent Loving
Care an Order for Immediate Removal, stating: “You are hereby ordered to
immediately remove this individual from a position allowing direct contact
[with persons receiving services from your facility].”[41]
24.
On December 30, 2005, the Department sent a letter
to Mr. Adewola, notifying him that he was prohibited by Minn. Stat. § 144A.46,
subd. 5(a) from being involved in the management, operation or control of
Loving Care.[42] Further,
the letter directed Loving Care to remove Mr. Adewola from his position as
Administrator, and advised that he could not maintain any position “that
involves responsibility for the ongoing management or direction of the
policies, services or employees of the provider.”[43] Lastly, the letter instructed Mr. Adewola to divest
himself of any ownership interest in the licensee.[44]
25.
As a
reply to the Department’s December 30, 2005 letter, Mr. Adewola informed the
Department that Ms. Edileola Adewola was the 100 percent owner of Loving Care.[45]
26.
Inexplicably,
but quite generously, on January 12, 2006 DHS extended to Mr. Adewola a second opportunity to request reconsideration
of his disqualification.[46]
27.
By way of a letter dated February 14, 2006, Mr.
Adewola requested reconsideration.[47] In this letter, counsel for Mr. Adewola did
not dispute the conviction but asserted that “the criteria used for Mr.
Adewola’s disqualification is inaccurate and he should qualify for a [set aside]
or variance.”[48]
28.
On May 10, 2006, the Department issued its
decision refusing to rescind or set aside Mr. Adewola’s disqualification.[49] The document informed Mr. Adewola that
the Department’s decision was a “final agency decision” subject to review if
Mr. Adewola filed and served a timely petition for writ of certiorari with the
Minnesota Court of Appeals.[50] Mr. Adewola did not appeal the Department’s
decision regarding disqualification.
29.
On the day of the hearing, June 4, 2007, Loving
Care’s counsel introduced Edileola Adewola as Loving Care’s Administrator. The Department first learned of this claim on
the date of the hearing.
License Renewal Application
30.
Loving
Care’s most recent license had an expiration date of March 10, 2006.[51] On March 24, 2006, Loving Care submitted an
application to renew its Class A Professional Home Care Agency license.[52] The renewal application lists Edileola
Adewola as the “100% owner” of Loving Care and lists Mr. Adewola (specifically,
“Adedayo R. Adewola”) as Loving Care’s Administrator.[53]
31. On October 11, 2006, the Department notified Loving Care of its intent to refuse to renew the license.[54] The Department grounded its refusal upon its determination that Loving Care had operated in violation of applicable statutes and rules.[55]
Procedural Matters
32.
Within
two weeks of the service of a Notice and Order for Prehearing Conference at the
advent of this case, the Department propounded a series of discovery requests
to Loving Care.[56]
33.
Upon a motion from the Department to compel responses
to those requests, the
Licensee was directed by the undersigned to complete the past-due responses for
discovery by 4:30 p.m. on Wednesday, April 18, 2007.[57]
34.
The
Licensee made no reply to the Department’s discovery requests within the time
established by rule or at any time thereafter.[58]
35.
As
a sanction for its failure to comply with the Order Compelling Discovery, the
undersigned limited Loving Care’s participation in the June 4, 2007 evidentiary
hearing. Loving Care was precluded from making
factual averments, calling witnesses to testify, or offering exhibits into the
hearing record in support of its claim that the proposed denial of the renewal
application was in error.[59] Notwithstanding its failure to provide
discovery responses, however, Loving Care was permitted to cross-examine witnesses called by the
Department, interpose foundation objections to documentary evidence offered by
the Department and to file a post-hearing submission.[60]
Based upon these Findings of Fact, the Administrative Law Judge makes the following:
1.
The
Commissioner and the Administrative Law Judge have jurisdiction in this matter
pursuant to Minn. Stat. §§ 14.50 and 144A.46 (3)(a) (2006).
2.
The Department gave proper notice of the hearing
and all relevant procedural requirements of law or rule have been fulfilled.
3.
Home care providers are entities that are
“regularly engaged in the delivery, directly or by contractual agreement, of
home care services for a fee.”[61] “Home care services,” as defined by state
law, includes nursing services, personal care services, home management
services, and other similar medical services and health-related support
services.[62]
4.
The Department is charged with the regulation of
“home care providers.”[63] Further, state law prohibits a “home care
provider” from operating in
5. Home care licenses are issued for period of one year and may be renewed upon submission of application renewal forms and the renewal fee.[65]
6. While license renewal for most providers is a routine matter,[66] the Commissioner of Health “may refuse to grant or renew a license, or may suspend or revoke a license, for violation of statutes or rules relating to home care services or for conduct detrimental to the welfare of a consumer.”[67] Prior to any suspension, revocation or refusal to renew a license, however, the home care provider is entitled to notice and the opportunity for a contested case hearing.[68]
7. State law requires owners and managerial officials of home care agencies to undergo background studies to determine whether they are “disqualified” under Minn. Stat. Chapter 245C. Chapter 144A provides, in relevant part: “No person may be involved in the management, operation, or control of a [home care] provider, if the person has been disqualified under the provisions of chapter 245C.”[69]
8. Disqualification occurs if the results of the background study, conducted by the Department of Human Services (DHS), show that the person studied has one or more of the disqualifying characteristics set forth in Minn. Stat. §§ 245C.14 and 245C.15. Among the disqualifying characteristics are convictions or admissions to certain crimes,[70] or a determination that the subject of the study maltreated a minor or a vulnerable adult.[71] A disqualified individual may not provide direct contact services, or have access to, persons receiving services from programs licensed by the Department.[72]
9. The length of the disqualification period varies depending upon the underlying misconduct. The disqualification period may be permanent or for a specified term of years.[73]
10. State law defines “managerial officials” as including those individuals who “have the responsibility for the ongoing management or direction of the policies, services, or employees of the home care.”[74]
11. The work roles of Rufus A. Adewola qualify him as a “managerial official” of Loving Care.[75]
12. A conviction for felony-level check forgery is a disqualifying offense under state law, which carries with it a fifteen-year disqualification period.[76]
13. State law permits disqualifications to be set aside if the disqualified individual demonstrates that he or she does not pose a risk of harm to any person receiving services from a licensed program.[77] Mr. Adewola’s check forgery conviction has not been set aside by the Commissioner of Health.
14. The Department is required to inspect home care providers, and to issue correction orders and assess civil penalties, as is necessary to ensure observance of state law.[78]
15. State law further provides that if, upon reinspection, the licensee has not corrected the deficiencies that were earlier specified in a Correction Order, a notice shall be issued assessing a penalty for each uncorrected deficiency as provided by rule.[79]
16. State law provides that the Commissioner may suspend, revoke or deny renewal of a license “if the licensee, an owner or managerial official of the licensee . . . is in violation of, or during the term of the license has violated, any of the requirements of this chapter or Minnesota Statutes, sections 144A.43 to 144A.47.”[80]
17. Due to Loving Care’s serial, serious and repeated violations of state laws relating to home care services, and “for conduct detrimental to the welfare of the consumer,”[81] the Commissioner’s refusal to renew the Class A Professional Home Care Agency license is appropriate and warranted.
18. Due to Loving Care’s failure to remove Rufus A. Adewola from a managerial role in the company, notwithstanding clear notice of Mr. Adewola’s disqualification, the Commissioner’s refusal to renew the Class A Professional Home Care Agency license is appropriate and warranted.
19.
The Memorandum that follows below details the
bases for these Conclusions. To the
extent that the Memorandum includes matters that are more appropriately
described as Conclusions, the Administrative Law Judge incorporates those items
into these Conclusions.
20.
Further, the Administrative Law Judge adopts as
Conclusions any Findings of Fact that are more appropriately described as
Conclusions.
Based upon the above Conclusions of Law, the Administrative Law Judge makes the following:
The Administrative Law Judge recommends that the refusal to reissue Loving Care’s Class A Professional Home Care Agency license be AFFIRMED.
Dated: July 20, 2007.
|
__s/Eric L.
Lipman___ __________ |
|
ERIC L. LIPMAN |
|
Administrative Law Judge |
Reported: Digitally
Recorded
No
transcript prepared
This
report is a recommendation, not a final decision. The Commissioner of Human
Services 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 Mandernach, Commissioner, Minnesota Department of Health, Attention:
Appeals Coordinator,
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
In urging that its Class A Professional Home Care Agency license be renewed, Loving Care makes four key arguments – namely, that the Commissioner’s failure to renew this license follows from: (1) arbitrary enforcement of the home care agency statutes and rules; (2) an unconstitutional disqualification of Mr. Adewola from managerial and ownership roles in the Licensee; (3) regulatory discipline that is unrelated to the underlying record; and (4) an inequitable refusal to issue a follow-on license. For its part, the Department disputes each of Loving Care’s claims, and emphasizes that Loving Care’s constitutional or equitable claims are not “properly before the Administrative Law Judge or the Commissioner.” Below, each claim is addressed in turn.
The Department is correct, to be sure, that neither the Administrative Law Judge nor the Commissioner has the power to strike down a statute enacted by the legislature on the grounds that the statute violates the state or federal constitution.[82] Yet it is also true that part of the value of the recommended decision process under Chapter 14 is that independent neutrals may examine the legal claims of regulated parties, and, in appropriate cases, warn Commissioners off of legal error. Without doubt, at the end of the day, the agency head makes the decision for the Executive Branch in licensing matters.[83] If, however, an Administrative Law Judge can inform the exercise of this authority before it is completed, it is important that we do so. For these reasons, each of Loving Care’s defenses against the agency’s proposed nonrenewal of the license is examined.
Arbitrary and Capricious Enforcement of
the Home Care Agency Rules
When Loving Care makes its claim of discriminatory enforcement, it bears a heavy burden. It must establish that:
(1) other similarly situated parties have not generally been proceeded against for the same conduct; and,
(2) the government’s discriminatory prosecution is based upon impermissible considerations (such as the parties’ race or the desire to prevent the exercise of a constitutional right) or is in bad faith.[84]
Loving Care’s submissions fall far short of this demanding standard. While the company perhaps wishes the Administrative Law Judge will infer that it has been singled out for regulatory discipline because it is led by persons of color (although it does not explicitly make this claim),[85] there is nothing in the record to support such a view. Indeed, the pyramiding surveys, re-surveys, offers of training, and detailed specifics on Loving Care’s regulatory lapses over the course of more than a year, all suggest that the company was given fair opportunity to understand and meet a uniform set of health and safety standards.
Neither does the small number of refusals to issue license in the Department’s history invite the inference that the regulatory action in this case results from an improper motive. The Department does not engage in discriminatory enforcement of its rules simply because one individual (or a small number of persons) refuses to abide by lawful direction.[86]
Lastly, apart from the unadorned claim of counsel, neither of Loving Care’s post-hearing submissions make clear how the Department’s reading or enforcement of the cited standards is in error. On this record, therefore, the Department’s refusal to reissue the Class A Professional Home Care Agency license is well grounded.
Unconstitutional Taking of a Follow-On
License
In its post-hearing submissions, Loving Care asserts that the Department of Health’s insistence that Mr. Adewola be excluded from management of the company results in an “unconstitutional taking.”[87] The claim has serial defects. First, Loving Care points to no authority which suggests that it (or its owners or employees) has a pre-existing right to deliver home care services without licensure by the Minnesota Department of Health – and it is doubtful that such an unqualified right to practice exists.[88]
Second, assuming that the Legislature may lawfully limit home health care practice to license holders, Loving Care’s claim for automatic re-licensure quickly falters. It appears from the underlying record that Loving Care applied for a renewal of its license after the time that is provided by rule and after its 2006 license had lapsed.[89] Accordingly, even if Loving Care had a legal right to automatic renewal of its license if it had timely filed, it is very doubtful that it has a constitutionally-protected right to renewal after the most recent license expired.[90]
Finally, as to the propriety of his disqualification and exclusion, the record makes clear that Mr. Adewola has received a good deal of process along the way. Mr. Adewola had all of the procedural guarantees of the criminal process as to the forgery conviction;[91] two rounds of error-correcting procedures under the Background Studies Act;[92] administrative reconsideration of the disqualification decision;[93] and an opportunity to appeal an adverse final decision of the Commissioner of Human Services to the Minnesota Court of Appeals.[94]
On this record, Loving Care’s claim that the exclusion of Mr. Adewola violates the guarantee of due process of law is not well taken.
Inadequate Factual
Basis for Regulatory Action
Loving Care asserts that withholding re-licensure is not based upon the underlying record. The Administrative Law Judge disagrees.
During
the Original Survey the Department noted 18 violations of applicable statutes
and rules. Despite the specificity of
the cited defects, and Mr. Adewola’s representation that these defects had been
cured, the First Follow-Up Survey established that very little progress towards
regulatory compliance had in fact been made.[95] At the time of the First Follow-Up Survey, the
Department could verify only that two of the 18 earlier violations had been corrected.[96]
The Second Follow-Up Survey, in April
of 2006, revealed still further retreat on Loving Care’s regulatory
compliance. While the Licensee did cure
two more of the original set of 18 violations, the Department’s inquiries
revealed four new regulatory violations.[97]
More significant
still, notwithstanding progressive levels of regulatory discipline, and the
imposition of even weighty fines, Loving Care’s performance did not improve
significantly over the course of three state surveys.
Particularly
because home care providers ordinarily work outside of the sight of government
officials, or other mandated reporters, Loving Care’s serial lapses in
supervision, orientation of employees, training and delivery of services
presents a particularly troubling set of problems. In very real ways, the agency surveyors may
be the only line of defense against neglect or mistreatment of home-bound
vulnerable adults. Withholding
re-licensure is solidly grounded upon the underlying record.
Equitable Entitlement to Renewal
Lastly, Loving Care asserts that it is entitled, as a
matter of equity, to re-licensure as a Home Care Agency.
Estoppel is as an equitable doctrine that urges
courts in the judicial branch to prevent parties from asserting their legal
rights when doing so would be unconscionable.
If justice requires, even government agencies will be estopped by the
courts from certain advantages; but application of the doctrine against government
agencies (particularly as to exercise of police powers) first requires that the
moving party show that the agency has engaged in affirmative misconduct.[98] This record does not contain any suggestion
that the Department either foreswore enforcement of the regulations or otherwise
induced Loving Care’s regulatory noncompliance.
On this record, the prospect of later application of equitable estoppel
by the state courts seems remote.
CONCLUSION
For reasons listed above, the Administrative Law Judge recommends that the Commissioner affirm the refusal to reissue Loving Care’s Class A Professional Home Care Agency license.
[1] See, Testimony of Jean M. Johnston.
[2] See, Exhibit C.
[3] See,
[4] See, Ex. K; Testimony of Sarah Peterson.
[5] See, Ex. J and Test of S. Peterson.
[6] See, Ex. J at 2 and 3; Test of S. Peterson.
[7]
[8]
[9] See, Ex. K; Test. of S. Peterson.
[10]
[11] See, Ex. K, at 55; Test. of S. Peterson.
[12] Documents in the hearing record make clear that Rufus Adedayo Adewola, stylizes him name differently on different occasions. He is also known as Adedayo Rufus Adewola. See, e.g., Ex. D at 2, 6, and 14; Ex. G at 5 and 7.
[13] See, Test. of S. Peterson. A final version of this document was later mailed to Loving Care. See, Ex. K at 19 through 44.
[14] See, Ex. K at 2; Test. of S. Peterson.
[15] See, Exs. L at 2 through 11; Ex. H; Testimony of Jeanne Schmitz.
[16] See, Ex. L at 12 and 13; compare also, Minn. R. 4668.0150 (3) (2007).
[17] See, Ex. L at 33; Test. of J. Schmitz.
[18] See, Ex. L at 14 through 19; Test. of J. Schmitz.
[19] See, Ex. L, at 34 through 49; Test. of J. Schmitz; see also, Exs. H and I.
[20] See, Ex. L at 49.
[21] See, Testimony of Christina Baltes.
[22] See, Test. of C. Baltes; Ex. O at 1.
[23] See, Ex. O at 2 and 3.
[24] See, Ex. L at 12; Test. of J. Schmitz.
[25] See, Exs. H and M at 2 through 15; Test. of J. Schmitz.
[26] See, Ex. M at 16 through 19.
[27] Compare,
[28] Compare,
[29] Compare,
[30] Compare,
[31] See, Ex. M at 43 through 58; Test. of J. Schmitz; see also, Exs. H and I.
[32] See, Ex. M at 58.
[33] See, Ex. 0 at 4.
[34] See, Ex. 0 at 6 through 8.
[35] See, Ex. K at 2; Test. of S. Peterson.
[36] See, Ex. K at 16 (Correction Order No. 16, Employee No. 5) and 54 (Employee No. 5 is “Adewola, Rufus, Administrator/Owner).
[37] See, Ex. E at 1.
[38]
[39]
[40] See, Ex. E at 4.
[41] See, Ex. E at 5.
[42] See, Ex. F.
[43] See, Ex. F at 1.
[44] See, Ex. F at 2.
[45] See, Test of J. Johnson; compare generally, Ex. F at 2.
[46] See, Ex. G at 1 and 2. The Department suggests in its papers that the Notice was reissued in February of 2006 because the October 2005 Notice did not detail what would follow if Mr. Adewola’s disqualification was set aside pursuant to Minn. Stat. § 245C.23. Compare, Ex. E at 2 and Ex. G at 2.
[47] See, Ex. G at 3 and 4.
[48] See, Ex. G at 4.
[49] See, Ex. G at 5 through 7.
[50] See,
[51] See, Ex. C.
[52] Compare, Ex. C with Ex. D at 1, 5 and 15.
[53] See, Ex. D at 6.
[54] See, Ex. N.
[55] Compare, Ex. N at 2.
[56] See, Exs. A, B and Interim Order on Discovery Sanctions, OAH Docket No. 8-0900-17632-2 at 1 (May, 7, 2007).
[57] See, Interim Order on Discovery Sanctions, at 1.
[58] See,
[59] See, Interim Order on Discovery Sanctions, at 2.
[60]
[61] See,
[62] See,
[63] See,
[64] See,
[65] See,
[66] See,
[67] See, Minn. Stat. § 144A.46 (3)(a) (2006); see also Minn. R. 4668.0012 (15) (2007).
[68] See,
[69] See,
[70] See,
[71] See,
[72] See,
[73] See,
[74] See, Minn. Stat. § 144A.46 (5)(a) (2006); accord, Minn. Stat. § 144A.46 (3)(f) (2006)
(“managerial officials” is defined as “those individuals who had the
responsibility for the ongoing management or direction of the policies,
services, or employees of the home care provider relating to the areas of
noncompliance which led to the license revocation or nonrenewal”); Minn. R.
4668.0003 (20) (2007) ("’Managerial official’ means a director, officer,
trustee, or employee of a provider, however designated, who has
the authority to establish or control business policy”) (emphasis added).
[75] Compare, Ex. G at 2 with Ex. D at 2, 5, 6, 12 and 14 and Ex. O at 4 through 8.
[76] See,
[77] See,
[78] See,
[79] See,
[80] See,
[81] Compare, Ex. N with
[82] Compare generally, Neeland v.
[83] See, e.g., Pomrenke v. Comm’r of Commerce, 677 N.W.2d 85, 93-94 (Minn. App.) review denied (Minn. 2004); Malloy v. Comm'r of Human Services, 657 N.W.2d 894, 896-97 (Minn. App. 2003).
[84] See, State v. Russell, 343 N.W.2d 36,
37 (
[85] See, e.g., Loving Care’s Post-Hearing Reply Memorandum, at 2.
[86] Compare,
Thul v. State, 657 N.W.2d 611, 616-17 (Minn. App.) review denied (
[87] See, Loving Care’s Post-Hearing Memorandum, at 2.
[88] See, Compare,
[89] Compare, Minn. R. 4668.0012 (13) (A) (2007) (a “licensee must … submit an application for renewal on forms provided by the commissioner at least 30 days before expiration of the license”) with Ex. C and Ex. D at 1, 5 and 15.
[90] See, Arens v. Village of Rogers, 61 N.W.2d
508, 518-19 (Minn. 1953) appeal dismissed,
347 U.S. 949 (1954) (“[I]t is very doubtful whether liquor licensees whose licenses have lapsed at the
time of the establishment of the municipal liquor store are deprived of any
property without due process of law”); accord,
Littlefield v. City of Afton, 785 F.2d 596, 602 (8th Cir. 1986) (finding a
protected property interest in a building permit conditioned on compliance with
all legal prerequisites for receiving permit).
[91] See, generally, Ex. E at 1.
[92] See,
[93] See, Ex. G at 3 through 7.
[94] See, Ex. G at 6. Mr. Adewola did not appeal the Commissioner’s determination that he was disqualified from providing direct contact services.
[95] See, Ex. J; Ex. K at 2 through 17; Ex. M at 2 through 14.
[96] See, Ex. H.
[97]
[98] See,
e.g.,