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11-1800-17277-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
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In
the Matter of the Maltreatment Determination and Order to Forfeit a Fine for
New |
ORDER
ON NEW HORIZON’S MOTION
TO COMPEL |
The above matter is pending before the Administrative Law
Judge Barbara L. Neilson pursuant to a Notice of and Order for Pre-Hearing Conference
May 2, 2006. On August 11, 2006,
Thomas J. Hunziker, Attorney at Law, Dunkley and Bennett,
P.A.,
Based upon all of the files, records, and proceedings in
this matter, and for the reasons discussed in the attached Memorandum,
IT IS HEREBY ORDERED as follows:
1. New Horizon’s motion
to compel responses to its document requests is DENIED.
2. New Horizon’s
motion to compel specified DHS employees to appear for depositions is
DENIED.
Dated: September 15, 2006.
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/s/ Barbara L. Neilson |
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BARBARA L. NEILSON |
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Administrative Law Judge |
MEMORANDUM
This case involves New Horizon’s challenge to the
Department’s determination that New Horizon committed maltreatment by neglect under
Minn. Stat. § 626.556, subd. 2(c)(1) and (2), on two separate occasions (May of
2004 and February of 2005) when children in its care in two different
facilities sustained dislocated elbows. The
Department determined that the 2004 injury was likely caused by an assistant
teacher swinging the child by the arms and the 2005 injury was likely caused by
a teacher pulling the child by the arm.
The Department asserted that it issued an Alert in August 2002 informing
license holders that it had investigated a number of reports during 2001 and
2002 involving children receiving dislocated elbows in childcare centers as a
result of staff lifting or pulling children by the wrist or hand. The Alert noted that the likelihood of this
type of injury occurring could be reduced by never pulling or swinging children
of any age by their arms or wrists, and concluded by asking license holders to
“alert your staff to the danger of dislocated elbows and take steps to prevent
these types of incidents.”[1] After investigation, the Department found
that New Horizon was culpable of maltreating two minors in its care based upon
its failure to adequately notify and train its staff regarding the possibility
of elbow dislocations resulting from lifting or pulling children by the hands
or wrists, and imposed a $2,000 fine ($1,000 for each violation). New Horizon filed an appeal, resulting in the
initiation of the present contested case proceeding.
In its
motion to compel, New Horizon seeks to take the depositions of six employees[2]
of the Department of Human Services as well as receive full responses to a
document request it served on August 1, 2006.
In the document request, New Horizon sought copies of alerts and other
communications provided by DHS to new child care license holders in 2001-2006,
copies of incident reports provided by license holders in 2001-2006 relating to
dislocated elbows, and copies of maltreatment determinations in 2001-2006
involving dislocated elbows and child care licensees or staff persons. New Horizon asserts that no statute or rule
requires training of staff persons regarding dislocated elbows and wishes to
undertake discovery on “the retroactive application of a non-rule to its staff
persons where the penalties imposed by the DHS are as harsh as a finding of
maltreatment.”[3] New Horizon relies on the general rules of
discovery applicable to contested case proceedings which are found at Minn. R.
1400.6700 in support of its argument that it should be able to obtain discovery
relevant to the subject matter of the claim, including deposition testimony, to
prepare its defense.
The
Department argues that the general discovery provisions set forth in Minn. R.
1400.6700 do not apply in this proceeding and that, in any event, New Horizon
has failed to show that its document and deposition requests are needed for the
proper presentation of its case or that the issues and amounts in controversy
are significant enough to warrant such extensive discovery. It contends that the document requests are overbroad
and unduly burdensome in light of the needs of the case, the amount in
controversy, limitations on the parties’ resources, and the importance of the
issues at stake, and that New Horizon has not shown that each of the
depositions it is seeking is needed for the proper presentation of its
case. The Department asserts that New
Horizon seeks to expand the scope of this case well beyond the issue of whether
New Horizon committed maltreatment at the two facilities in question and that
information provided to new child care license holders is irrelevant here since
neither of the two New Horizon facilities involved were new licensees. It also contends that New Horizon’s request
for six years of incident reports encompasses private data under the Minnesota
Government Data Practices Act. The
Department points out that it has already provided New Horizon with its entire
investigation file, including compact disks with audio recordings of interviews
conducted by DHS investigators. The
Department also indicated that it will provide copies of the public
maltreatment determinations involving dislocated elbows for the years 2001
through 2006 despite its belief that these documents are not relevant to
whether New Horizon committed maltreatment against children in its care, and
will promptly provide New Horizon with any other documents if it decides to
provide additional evidence in this matter.
Where,
as here, a maltreatment determination is the basis for a licensing sanction
under Minn. Stat. § 245A.07, state law specifies that the license holder “has a
right to a contested case hearing under chapter 14 [the Minnesota
Administrative Procedure Act] and
A party may demand that any other party disclose the
names and addresses of all witnesses that the other party intends to have
testify at the hearing. The demand shall
be in writing and shall be directed to the party or the party's attorney. Responses to the demand shall be served
within ten days of receipt of the demand.
Any witnesses unknown at the time of the disclosure shall be disclosed
as soon as they become known. Any party
that unreasonably fails to make a requested disclosure shall not be allowed to
call the witness at hearing.[6]
In contrast, the more typical contested case rule
governing discovery is much more expansive:
Subpart 1. Witnesses;
statement by parties or witnesses.
Each party shall, within ten days of a written demand by another party,
disclose the following:
A. The names and addresses of all witnesses
that a party intends to call at the hearing, along with a brief summary of each
witness' testimony. All witnesses
unknown at the time of said disclosure shall be disclosed as soon as they
become known.
B. Any relevant written or recorded
statements made by the party or by witnesses on behalf of a party. The demanding party shall be permitted to
inspect and reproduce any such statements.
C. All written exhibits to be introduced at
the hearing. The exhibits need not be
produced until one week before the hearing unless otherwise ordered.
D. Any party unreasonably failing upon
demand to make the disclosure required by this subpart may, in the discretion
of the judge, be foreclosed from presenting any evidence at the hearing through
witnesses or exhibits not disclosed or through witnesses whose statements are
not disclosed.
Subp. 2. Discovery
of other information. Any means of
discovery available pursuant to the Rules of Civil Procedure for the District
Court of Minnesota is allowed. If the
party from whom discovery is sought objects to the discovery, the party seeking
the discovery may bring a motion before the judge to obtain an order compelling
discovery. In the motion proceeding, the
party seeking discovery shall have the burden of showing that the discovery is
needed for the proper presentation of the party's case, is not for purposes of
delay, and that the issues or amounts in controversy are significant enough to
warrant the discovery. In ruling on a
discovery motion, the judge shall recognize all privileges recognized at law.[7]
Minn.
Stat. § 626.556, subd. 10i(f), makes it clear that the discovery provision
contained in the Revenue Recapture rules (Minn. R. 1400.8600) is to be applied
to appeals of maltreatment cases rather than the broader discovery rule that is
generally applicable to contested case proceedings. Given the limited nature of the discovery
authorized by the Legislature in these proceedings, there is no proper basis to
expand the scope of discovery in the manner urged by New Horizon.[8] Accordingly, the motion to compel must be
denied, and there is no need to reach the further issue of whether the
requested discovery would be permissible if the standards set forth in Minn. R.
1400.6700 were applicable.
B. L. N.
[1]
[2] New Horizon originally noticed the depositions of seven employees, but apparently is no longer seeking to depose Cynthia Gagne. See Notice of Motion.
[3] Memorandum in Support of Motion at 6.
[4] Minn. Stat. § 626.556, subd. 10i(f) (emphasis added).
[5]
[6]
[7]
[8] The Department is to be commended for agreeing to allow more expansive discovery in this case than is strictly required by the Revenue Recapture rules.