1. Wendigo Pines Assisted Living and Memory Care, Inc. (Wendigo Pines or Licensee) is licensed as a Class F Home Care Provider and is located in Grand Rapids, Minnesota. Its current license is effective from September 30, 2010, to September 29, 2011. Under its Class F license, Wendigo Pines may provide home care services solely for residents of “housing with services” establishments registered pursuant to Minnesota Statutes Chapter 144D.

2. Ms. Raisa Kotula is the Administrator and Owner of Wendigo Pines.[1]

3. On June 7, 2010, Deborah Neuberger, a special investigator with the Department’s Office of Health Facility Complaints, conducted an inspection of Wendigo Pines.[2] As part of her inspection, Ms. Neuberger observed the facility, interviewed staff and residents, and reviewed records.

4. As a result of the inspection, the Department concluded that the Licensee was responsible for eight violations of applicable Minnesota statues and rules. Specifically, Department found that the Licensee:

(1) violated Minn. Rules part 4668.0050, subp.1, by accepting five clients for 24-hour care services when the Licensee lacked sufficient staff to adequately provide the services agreed to in the service plans;

(2) violated Minn. Rules part 4668.0815, subp. 2, by failing to assure that a registered nurse reviewed and revised two clients’ evaluation and service plans at least annually;

(3) violated Minn. Rules part 4668.0825, subp. 2, by failing to develop a service plan for two clients that included the frequency of supervision of the task;

(4) violated Minn. Rules part 4668.0845, subp. 2A(2), by failing to provide supervision of unlicensed personnel by a registered nurse at least every 62 days for two clients;

(5) violated Minn. Rules part 4668.0865, subp. 8, by failing to provide central storage of medications to assure that all drugs were stored in locked compartments under proper temperature controls and only authorized nursing personnel were permitted access to the storage keys;

(6) violated Minn. Rules part 4668.0865, subp. 9, by failing to provide separately locked compartments, permanently affixed to the physical plant or medication cart, for storage of controlled drugs;

(7) violated Minn. Stat. § 144A.44, subd. 1(2),[3] by not providing care and services according to acceptable medical and nursing standards as evidenced by failing to count narcotic medications every shift, failing to secure hazardous chemicals for 11 clients, failing to provide supervision of five clients who resided in the house, and failing to provide appropriate infection control techniques and safe equipment for one client; and

(8) violated Minn. Stat. § 144A.44, subd. 1(14), by failing to provide services in a courteous and respectful manner for one client who was dependent on staff for assistance with personal cares and for five clients who were exposed to a strong urine odor.[4]

5. On June 7, 2010, the Department staff issued Correction Orders to the Licensee requiring correction of those violations within a 30 day time frame.[5] The Department sent the Correction Orders along with a cover letter to Ms. Kotula by certified mail. The Correction Orders were received by the Licensee on June 10, 2010.[6]

6. On August 3, 4, 5, and 13, 2010, Sharon Szamatula, another investigator with the Department, conducted a re-investigation of Wendigo Pines concerning the violations and determined that five of the eight violations identified in the June 7, 2010 Correction Orders had not been corrected as ordered.[7] The five violations that Wendigo Pines had not corrected were the violations of Minn. Rules part 4668.0050, subp. 1; Minn. Rules part 4668.0815, subp. 2; Minn. Rules part 4668.0825, subp. 2; Minn. Rules part 4668.0865, subp. 8; and Minn. Stat. § 144A.44, subd. 1(2), that were referenced in items (1) – (3), (5), and (7) of Finding 4 above.

7. By letter dated November 18, 2010, the Department notified Ms. Kotula that, as a result of Wendigo Pines’ failure to correct five of the eight identified violations as ordered, it was assessing penalties against the Licensee in the amount of $1,400. The Department enclosed with its letter copies of an Informational Memorandum detailing the five uncorrected violations, the Correction Orders, and a Notice of Assessment for Noncompliance with Correction Orders.[8]

8. In the Notice of Assessment, the Department advised Ms. Kotula of her right to request a hearing to challenge the assessment.[9] The Notice also advised Ms. Kotula that if upon a subsequent re-inspection the correction orders had not been corrected, another fine may be assessed in an amount double that of the previous fine.[10]

9. On November 29, 2010, the Licensee requested a contested case hearing to challenge the November 18, 2010, assessment.[11]

10. On February 1, 2011, the Department issued a Notice of and Order for Hearing scheduling this matter for hearing commencing at 9:30 a.m. on March 14, 2011. The Notice of and Order for Hearing contained a paragraph advising the Licensee that a failure to appear at the hearing may result in a finding that the Licensee is in default, that the Department’s allegations contained in the Notice and Order may be accepted as true, and its proposed action may be upheld.[12]

11. Ms. Kotula filed a Notice of Appearance in this matter on February 15, 2011, but did not appear at the hearing on March 14, 2011. At approximately 9:55 a.m., the Administrative Law Judge telephoned Ms. Kotula from the courtroom to determine the reason for her absence. Counsel for the Department and the Department’s witnesses were present during the call. Ms. Kotula initially indicated that she had failed to appear due to illness. When the Administrative Law Judge offered to continue the hearing to a later date, Ms. Kotula advised the Administrative Law Judge that, while she was not interested in withdrawing her request for a hearing, she was not interested in participating in the hearing. Ms. Kotula informed the Administrative Law Judge that the hearing could proceed without her participation.

12. The Department thereafter presented testimony and evidence in support of its assessment. No one appeared or presented any evidence on behalf of the Licensee. The OAH record closed at the close of the hearing on March 14, 2011.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Commissioner and the Administrative Law Judge have authority to consider the alleged violations by the Licensee pursuant to Minn. Stat. §§ 14.50 and 144A.10, subd. 8.

2. Wendigo Pines received timely and appropriate notice of the charges against it and the time and place of the hearing.

3. The Commissioner has complied with all relevant substantive and procedural requirements of statute and rule.

4. The Department of Health has the burden to establish the validity of its claims in this case by a preponderance of the evidence, in accordance with Minn. R. 1400.7300, subp. 5.

5. The Department of Health is required to conduct inspections and reinspections of home care providers such as nursing homes and assisted living facilities.[13] A provider that receives a correction order must be reinspected at the end of the period allowed for correction and, if it is determined that the provider has not corrected a violation identified in the correction order, the Department must issue a notice of noncompliance with the correction order that specifies the violations not corrected and the fines assessed.[14]

6. Minn. Stat. § 144A.653, subd. 6, specifies that fines must be assessed in accordance with a schedule of fines established by the Commissioner of Health. The Commissioner has promulgated rules that set forth the schedule of fines for uncorrected violations.[15]

7. Minn. Rules part 4668.0050, subp. 1, prohibits licensees from accepting a person as a client unless the licensee has staff, sufficient in qualifications and numbers, to adequately provide the services agreed to in the service plan under part 4668.0815 for class F home care provider licensees. A provider shall be assessed a penalty of $350 for an uncorrected violation of this rule provision.[16]

8. Minn. Rules part 4668.0815, subp. 2, provides that a registered nurse must review and revise a client’s evaluation and service plan at least annually or more frequently when there is a change in the client’s condition that requires a change in services. A provider shall be assessed a penalty of $250 for an uncorrected violation of this rule provision.[17]

9. Minn. Rules part 4668.0825, subp. 2, requires that, prior to initiating delegated nursing services for a client, a registered nurse must conduct a nursing assessment of the client's functional status and need for nursing services and must develop a service plan for providing the services according to the client's needs and preferences. The service plan must include the frequency of supervision of the task and of the person providing the service for the client in accordance with Minn. Rules part 4668.0845. The service plan for delegated nursing services must be maintained as part of the service plan required under Minn. Rules part 4668.0815. A provider shall be assessed a penalty of $250 for an uncorrected violation of this rule provision.[18]

10. Under Minn. Rules part 4668.0865, subp. 8, Class F licensed home care providers must store all drugs in locked compartments under proper temperature controls and permit only authorized nursing personnel to have access to keys. A provider shall be assessed a penalty of $300 for an uncorrected violation of this rule provision.[19]

11. Pursuant to the Home Care Bill of Rights, a person who receives home care services has the right to receive care and services according to a suitable and up-to-date plan, and subject to accepted medical or nursing standards, and to take an active part in creating and changing the plan and evaluating care and services.[20] A provider shall be assessed a penalty of $250 for an uncorrected violation of this rule provision.[21]

12. The Department demonstrated that Wendigo Pines violated the Minnesota statutes and rules governing its license that were identified in the June 7, 2010 Correction Orders. The Department further demonstrated that Wendigo Pines failed to correct five of the eight identified violations by the time of the Department’s re-inspection in August 2010. The Licensee did not appear or present any evidence to the contrary. Accordingly, the Department has borne its burden to show by a preponderance of the evidence that the assessment of a fine against Wendigo Pines was proper and the amount of the fine assessed was authorized by rule.

13. Imposition of a fine is appropriate and is in the public interest.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: That the Department’s assessment against Wendigo Pines be AFFIRMED.

Dated: April 13, 2011

s/Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

Reported: Digitally Recorded; No Transcript Prepared

NOTICE

This Report is a recommendation, not a final decision. The Commissioner of the Minnesota Department 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 contained herein. Pursuant to 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 and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the Commissioner. Parties should contact the Office of the Commissioner of Health, 85 East Seventh Place, Suite 400, St. Paul, Minnesota 55101, telephone (651) 201-5000, to learn the procedure for filing exceptions or presenting argument.

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.

[3] Ex. 3; In the Correction Order, the Department incorrectly cited the relevant statutory provision for this violation as “Minn. Stat. § 144A.44, Subdivision (2).”

[4] Ex. 3; In the Correction Order, the Department incorrectly cited the relevant statutory provision for this violation as “Minn. Stat. § 144A.441, Subdivision (14).”

[15] Minn. Rules parts 4668.0230; 4668.0815, subp. 7 B; 4668.0825, subp. 6 A; 4668.0865 G.