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OAH 7-1800-20742-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Appeal of
Rule 36 Limited Partnership of |
RECOMMENDATION
ON CROSS-MOTIONS
FOR SUMMARY
DISPOSITION AND PARTIAL SUMMARY DISPOSITION |
The
above-entitled matter came before Administrative Law Judge (ALJ)
Richard C. Luis on Cross-Motions for Summary Disposition and Partial Summary Disposition. Rule 36 Limited Partnership of
Samuel D. Orbovich, Esq., appeared on behalf of Appellant Rule 36 Duluth.
Barry R. Greller, Assistant Attorney General, appeared on behalf of the DHS.
Based on the files, records, and proceedings herein, and for the reasons set out in the attached Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED that:
1.
Appellant Rule 36
2. The DHS’s Motion for Partial Summary Disposition be DENIED.
Dated: June 1, 2010
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/s/ Richard C. Luis |
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RICHARD C. LUIS |
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Administrative Law Judge |
NOTICE
This Recommended Ruling is
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 Recommended Order Granting Appellant’s Motion for Summary
Disposition. 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 Cal Ludeman,
Commissioner, Department of Human Services,
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this Recommended Ruling will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the Recommended Ruling 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
Rule 36
The Department opposes Rule 36 Duluth’s motion and has itself moved for partial summary disposition. The Department requests that the ALJ find that the Commissioner was authorized to establish “settle-up rates” to replace “interim rates” under express provisions in the contracts the host counties had with Rule 36 Duluth. The Department urges the ALJ to set this matter on for an evidentiary hearing.
Uncontroverted
Material Facts[1]
Rule 36
Beginning in 2004, the state-run program was converted to a Medicaid funded program known as IRTS under Minn. Stat. § 256B.0622. The IRTS program provides more intensive, short-term services during stays that typically do not exceed 90 days.[4] Like the previous program, counties have the primary responsibility for providing or contracting for the provision of IRTS services. The state, through the Commissioner and DHS, has responsibility for reviewing and approving the negotiated rates of payment.[5] Under the IRTS statute, counties recommend one daily rate per provider after considering and documenting six criteria, including the “actual costs incurred” by providers.[6] The Commissioner is required to approve or reject the county’s rate recommendation based on the Commissioner’s own analysis of the same six criteria.[7]
As enacted, the statute contains no reference to “interim” or “settle-up” rate-setting.[8] During 2003 and 2004, John A. Anderson, a supervisor in the Adult Mental Health Division of DHS, convened a series of stakeholder meetings with county personnel and providers to discuss how DHS planned to define and implement the new IRTS program.[9] Mr. Anderson was responsible for reviewing rates proposed by counties and IRTS providers. He was also the principal drafter of the rate-setting procedures used by the Department.[10] The agenda for these stakeholder meetings did not include explanations or discussions regarding retroactive settle-up rates or the rate-setting criteria that was subsequently employed by DHS.[11] Following the conclusion of the stakeholder meetings, DHS produced a document detailing the programmatic implementation criteria for the IRTS program.[12] Nothing in that document discussed rate-setting or suggested a variance from the former program’s procedure of paying providers based upon fixed rates that had been negotiated earlier with the counties.[13]
Around September of 2006, Mr. Anderson began drafting and issuing rate-setting guidelines that he sent to the counties, accompanied by an instructional mandate that the rate-setting provisions be incorporated into the contracts counties entered into with IRTS providers.[14] The guidelines included audit criteria and “settle-up” rate-setting procedures.[15] Some versions of the guidelines stated explicitly that the rates negotiated by the counties and providers and approved by DHS were “regarded as conditional.” For example, the 2007 IRTS Rate Setting Instructions stated, in relevant part:
The rates for ACT and IRTS services are regarded as conditional. They are based upon the budgets approved by the county and the Department of Human Services. The Department of Human Services may adjust the rate of a given program based upon the actual expenditures and the actual utilization by the vendor. In the event that the vendor generates revenues beyond their actual approved expenditures, the vendor is expected to repay the excess earnings within ninety days of being requested to do so.[16]
Some versions of the guidelines referenced the federal Single Audit Act, notwithstanding the fact that this Act does not apply to private IRTS providers.[17] Still other guidelines referenced federal procurement regulations governing federal agencies.[18] In addition, later versions of the guidelines included a disclaimer that DHS did not intend the instructions to constitute “new regulations or to promulgate rules.”[19]
Many counties responded to the guidelines by putting provisions in their contracts with IRTS providers stating that program rates are subject to audit and retroactive change based on a review of the actual costs incurred by the facility in providing services.[20] DHS relied on these contract provisions to implement its rate-setting guidelines to recoup overpayments from IRTS providers.
During 2006,
Rule 36 Duluth owned and operated six IRTS homes. After negotiating rates, which were reviewed
and approved by the Commissioner, Rule 36 Duluth entered into written contracts
with the counties or groups of counties served by its facilities.[21] In all but one of the contracts, it is
expressly stated that the Commissioner-approved IRTS rates are subject to “retroactive
change” based on a “review” or “audit” of the actual costs or expenses incurred
by the Rule 36 Duluth facility in providing services.[22] For example, the 2006 contract for Rule 36
Duluth’s Camden House IRTS facility with the Southwestern Minnesota Adult
Health Consortium, a group of eighteen
The program rate is based on the approved expenditures budget. The Contractor’s actual expenditures are subject to review by the Consortium and the State. If it is determined that the Contractor did not incur expenses consistent with the approved budget, the program rate may be adjusted retroactively to reflect actual expenditures.[23]
Jeff Bradley is the Business Operations Manager for Rule 36 Duluth. Sometime in 2007, Mr. Anderson of DHS told Mr. Bradley that Rule 36 Duluth would have to engage a certified public accountant to audit its 2006 IRTS programs and supply the audit to DHS. The audit results would assist DHS in determining whether Rule 36 Duluth was appropriately allocating its central office costs to its six IRTS homes.[24] However, the CPA regularly engaged by Rule 36 Duluth to compile its quarterly financial statements could not find an auditor willing to undertake a certified audit for the contractually fixed fee of $10,000.[25] In the end, at the suggestion of DHS, Rule 36 Duluth engaged David Ehrhardt, the director of the DHS Internal Audit Division, to conduct the audit.
The report generated by the DHS Internal Audit Division looked behind all costs incurred by Rule 36 Duluth’s IRTS programs and subjected them to the DHS developed rate criteria and federal procurement accounting standards to determine whether they were reasonable and allowable.[26] In the end, the report disallowed costs incurred by Rule 36 Duluth not only in the central office but in the IRTS homes as well.[27] In total, DHS’s Internal Audit Division disallowed $695,747 of Rule 36 Duluth’s actual costs for calendar year 2006.
In 2009, the payment provisions under Minn. Stat. § 256B.0622, subd. 8, were amended to permit adjustments to the approved rate based on actual costs.[28] The amendment also includes references to “allowable, allocable, and reasonable costs” that are consistent with federal procurement requirements.[29] However, the amendment expressly states that these provisions do not govern any IRTS contracts entered into before January 1, 2010.[30] It is undisputed that the IRTS services at issue in this appeal were provided under contract during calendar year 2006.
Summary disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law.[31] The Office of Administrative Hearings has generally followed the summary judgment standards developed by state and federal courts when considering motions for summary disposition.[32] A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case.[33]
The moving party has the initial burden of showing the absence of a genuine issue concerning any material fact. To successfully resist a motion for summary judgment, the non-moving party must show that there are specific facts in dispute which have a bearing on the outcome of the case.[34] The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P. 56.05.[35] The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[36]
When considering a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party.[37] All doubts and factual inferences must be resolved against the moving party.[38] If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[39]
2006 IRTS Program Standards
Minnesota
Statutes § 256B.0622 governs the Intensive Rehabilitative Mental Health
Services program.
Under Minn. Stat. § 256B.0622, subd. 4 (2006),
IRTS providers were required to have a contract with the host county to provide
services and the Commissioner was required to “develop procedures for counties
and providers to submit contracts and other documentation as needed . . . to
determine whether the standards in this section are met.”[40]
Minnesota Statutes §
256B.0622, subd. 8 (2006), provided as follows:
Subd. 8. Medical assistance payment for intensive
rehabilitative mental health services.
(a) Payment for residential and nonresidential services in
this section shall be based on one daily rate per provider inclusive of the
following services received by an eligible recipient in a given calendar day:
all rehabilitative services under this section, staff travel time to provide
rehabilitative services under this section, and nonresidential crisis
stabilization services under section 256B.0624.
(b) Except as indicated in
paragraph (c), payment will not be made to more than one entity for each
recipient for services provided under this section on a given day. If services
under this section are provided by a team that includes staff from more than
one entity, the team must determine how to distribute the payment among the
members.
(c) The host county shall
recommend to the commissioner one rate for each entity that will bill medical
assistance for residential services under this section and two rates for each
nonresidential provider. The first nonresidential rate is for recipients who
are not receiving residential services.
The second nonresidential rate is for recipients who are temporarily
receiving residential services and need continued contact with the
nonresidential team to assure timely discharge from residential services. In developing these rates, the host county shall
consider and document:
(1) the cost for similar
services in the local trade area;
(2) actual costs incurred
by entities providing the services;
(3) the intensity and
frequency of services to be provided to each recipient;
(4) the degree to which
recipients will receive services other than services under this section;
(5) the costs of other
services that will be separately reimbursed; and
(6) input from the local
planning process authorized by the adult mental health initiative under section
245.4661, regarding
recipients' service needs.
(d) The
rate for intensive rehabilitation mental health services must exclude room and
board, as defined in section 256I.03, subdivision 6, and services not covered
under this section, such as partial hospitalization, home care, and inpatient
services. Physician services that are
not separately billed may be included in the rate to the extent that a
psychiatrist is a member of the treatment team.
The county’s recommendation shall specify the period for which the rate
will be applicable, not to exceed two years.
(e) When
services under this section are provided by an assertive community team, case
management functions must be an integral part of the team.
(f) The
rate for a provider must not exceed the rate charged by that provider for the
same service to other payors.
(g) The commissioner shall approve or reject the
county’s rate recommendation, based on the commissioner’s own analysis of the
criteria in paragraph (c).
The Department has not adopted administrative
rules to implement a rate setting function under the IRTS statute and there has
been no mandate from the Legislature that it do so.[41]
Arguments of the Parties
Minnesota Statutes § 256B.0622 governs Medical Assistance payment for intensive rehabilitative mental health services. The 2006 version of the IRTS statute established a two-step process for setting the rate that each provider would bill Medical Assistance for residential services.[42] First, the counties, after considering the six statutory factors, would recommend to the Commissioner one daily rate per provider for the upcoming year. The Commissioner then approved or rejected the recommended rate based on the Commissioner’s own analysis of the same six factors. The factors include the cost for similar services in the local trade area, the intensity and frequency of services to be provided, and the actual costs incurred by the entities providing the services. As enacted, the statute did not define or put limits on “actual costs.”[43] It also made no reference to interim, conditional or settle-up rate-setting.[44] Nor in 2006 did the statute contain any provision authorizing audits or retroactive adjustments after a DHS audit finds non-allowable costs.[45]
Rule 36
DHS argues that Appellant’s rates are subject to audit, retroactive adjustment and settle-up based on the language of the contracts entered into between the provider and the counties. DHS states that it determined settle-up rates were “the best way to implement the statutory directive that ‘actual costs’ be considered in determining rates.” [47] It therefore requested counties to include provisions permitting retroactive rate adjustments in their contracts.[48] Because Rule 36 Duluth agreed to the contractual terms that permit retroactive adjustment of IRTS rates, DHS contends Rule 36 Duluth cannot now claim it was surprised that the Commissioner would in fact revise the rates.[49] DHS asserts that the challenged rates are not imposed by administrative fiat; they are contract rate structures agreed to by the affected parties. According to DHS, it is not seeking to enforce an unpromulgated rule but rather is asking Rule 36 Duluth to abide by the provisions of its county contracts, which establish an interim and settle-up rate structure. DHS maintains that there is nothing in the contracts that conflict with the IRTS statute, which is silent as to interim or settle-up rates. In the absence of a conflict with the requirements of the IRTS statute, DHS asserts counties and IRTS providers are free to contract for services on terms that are mutually acceptable.
Administrative agencies are creatures of statute and they have only those powers given to them by the legislature.[50] An agency’s statutory authority may be either expressly stated in the legislation or implied from the expressed powers.[51] Whether an agency acts within its statutory authority is a question of law.[52] Generally, an administrative agency’s jurisdiction is limited and entirely dependent upon the statute under which it operates.[53]
Jurisdiction of an administrative agency consists of the powers granted it by statute. Lack of statutory power betokens lack of jurisdiction. It is therefore well settled that a determination of an administrative agency is void and subject to collateral attack where it is made either without statutory power or in excess thereof.[54]
Agencies may not, under the guise of statutory interpretation, enlarge their powers beyond that which was contemplated by the legislative body.[55] Any doubt about the existence of an agency’s authority will generally be resolved against the exercise of such authority.[56]
The IRTS statute in effect in 2006 did not grant DHS the authority to retroactively adjust a prior prospective rate proposed by a county and approved by DHS. Nowhere does the statute expressly state that the Commissioner or DHS may revise the negotiated rates, and the statute is devoid of any reference to audits, settle-up rate-setting, or retroactive adjustments based on non-allowable costs. The statute only directs the county and DHS to consider, among other factors, a provider’s documented “actual costs” when recommending or approving a payment rate for future services.[57] Thus, the statute does not unambiguously grant DHS the authority to revise prior approved IRTS rates.[58]
The Department suggests that its authority to retroactively revise
provider rates is implied by the language of Minn. Stat. § 256B.0622 as well as
the Commissioner’s broad authority to administer and monitor
Any enlargement of powers by implication must be “fairly drawn and fairly evident from the agency’s objectives and powers expressly given by the legislature.”[62] In this instance, the statute only directs the county and DHS to consider and analyze “actual costs” as one of six factors when determining a provider’s prospective rate – the rate it “will bill medical assistance for residential services.”[63] The statute does not provide for audits, interim rates, or settle-up to actual costs. In addition, under the prior program, the negotiated provider rates were not subject to retroactive revision.[64] The Administrative Law Judge finds the Department’s claim that such authority may be implied to be unpersuasive. Such an interpretation is at odds with both the plain language of the statute and the past practice of the Department.
Moreover, the Legislature has expressly granted retroactive rate-setting authority to DHS in other areas, such as with nursing home Medicaid payment rates.[65] The fact that the Legislature did not confer such retroactive settle-up authority on DHS by the IRTS enabling legislation suggests that the omission was intentional. But even if the omission was inadvertent, such authority may not be implied.[66]
The Administrative Law Judge concludes that by enforcing an annual retroactive settle-up to allowable costs and by revising previously-approved IRTS rates retroactively, DHS has impermissibly enlarged the express powers delineated in Minn. Stat. § 256B.0622, subd. 8 (2006).[67] Because DHS lacked statutory authority to retroactively reduce Rule 36 Duluth’s pre-approved 2006 IRTS payment rate, its $695,747 disallowance is of no effect and should be reversed.
Even if the Department may, as it argues, expand its authority to include audits and rate adjustments by adding what the Legislature did not grant through language in contracts between the counties and providers, nothing in the contracts defines “actual costs” or the criteria DHS would employ to arrive at the adjusted settle-up rates.[68] For example, nowhere in the contracts does it provide a standard for reasonable or allowable costs and nowhere does it state that a provider’s expenditures on lobbying, bad debt, or interest on loans will be disallowed. The best reading of “actual expenditures” is that a disbursement was made – not a disbursement that DHS favored or allowed.
Given that a government agency was the sole drafter of the agreements, and the agreements are presented to providers as “contracts of adhesion,” the ordinary rule is that ambiguities in contract terms are construed against the drafting agency.[69] In this case, the counties or DHS could have provided additional detail and criteria as to the types of expenditures considered reasonable and allowable. In the absence of such provisions, DHS may not retroactively reduce Rule 36 Duluth’s rates based solely on its agreement to have its actual expenditures “reviewed.” A contract provision requiring a regulated entity to produce either an “audit” or “review” is not the equivalent of a contractual consent to retroactively reduce a provider’s rates based on the Department’s own rate-setting guidelines.
The Administrative Law Judge finds also that the rate-setting guidelines DHS is attempting to enforce through the contracts between the counties and providers are unpromulgated rules and are entitled to no deference.
The Minnesota Administrative Procedure Act (MAPA) defines a rule as:
every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.[70]
Generally, an
agency is not deemed to have engaged in rulemaking if its interpretation of a
statute or rule coincides with the plain meaning of that statute or rule.[71] In other words, if an interpretation is
consistent with the plain meaning of the statute or rule that is being
interpreted, the agency action is authorized by the statute or rule itself, and
the fact that no rule was adopted does not render the interpretation invalid.[72] However, if an agency’s announced policy is
inconsistent with the statute or rule, the courts have often invalidated that
policy. Moreover, if the policy purports
to make new law without the public input required by the APA, the policy will
be invalidated.
Deference is given to an agency’s interpretation of its own regulation, especially when the relevant language is unclear or susceptible to different interpretations.[73] If the regulation is ambiguous, the agency’s interpretation will generally be upheld if it is reasonable.[74] No deference is given to an agency’s interpretation, however, where the language of the regulation is clear and capable of understanding.[75] Moreover, if an interpretation has not been consistently applied in the past, a court may cite this as an important factor in finding the interpretation to be an invalid (unpromulgated) interpretive rule.[76] Interpretations by agencies that attempt to clarify the law they administer and are not within the plain meaning of an existing statute or rule are deemed to be interpretive rules. Interpretive rules must be adopted pursuant to the rulemaking requirements of the Minnesota APA in order to be valid.[77]
In this case, Mr. Anderson concedes that the rate-setting guidelines that he developed applied to all IRTS providers and were intended to clarify and make more specific the rate-setting provisions of Minn. Stat. § 256B.0622.[78] For example, the guidelines define “actual costs” to mean “costs that [are] allowable and allocable …” and adopt “unallowable costs” standards such as “Payments to a Related Party,” “Interest on Loans Relating to Operating Capital,” “Bad Debt,” “Lobbying,” and “over-earning.”[79] The guidelines also adopt a five percent rate differential threshold for triggering the imposition of settle-up rates.[80] The statute, however, does not define “actual costs” and does not address overpayments or what costs are deemed unallowable. While agencies are permitted to apply statutory interpretations which merely restate or summarize existing law, DHS’s guidelines in this instance are creating new requirements and restrictions and interpreting words that may be susceptible to more than one meaning. As such, the guidelines fall within the APA’s definition of a rule and must be promulgated through the administrative rulemaking process in order to be valid and enforceable.
DHS
asserts that it chose to use contracts to implement rate-setting in lieu of
rulemaking in part because the county contracting standards were already in the
statute and in part because of concerns regarding the time and expense of
rulemaking.[81] Under other statutes and rules DHS has the
express authority to require counties to include specific terms and language in
their contracts. For example, Minn. Rule
9525.1870 provides that each contract for home and community based waivered
services include a detailed paragraph describing DHS’s rights as a third party
beneficiary. No such express authority
to insert rate-setting provisions in county contracts exists here.
The Administrative Law Judge finds that the DHS rate-setting guidelines are interpretive rules which make specific the law enforced. In order to define actual allowable costs, DHS is required to amend the statute, which it did in 2009, or adopt rules. Because DHS’s rate-setting guidelines were not promulgated under the APA, they are not entitled to deference and may not form the basis for adjustments to Rule 36 Duluth’s 2006 IRTS rates and the resulting disallowance. For this reason, in addition to the lack of statutory authority and enforceable contractual provisions, the Administrative Law Judge recommends the $695,747 disallowance be reversed.
R.C.L.
[1] The following recitation of facts are uncontroverted for purposes of this motion only.
[2] The program was known as “Rule 36.”
[3] J. Anderon Dep. at 20-21.
[4]
J.
[5]
[6]
[7]
[8]
[9] J.
[10]
J.
[11]
[12]
J.
[13] J. Anderson Dep. at 92-93; Dep. Ex. 13.
[14]
J.
[15]
[16] J. Anderson Dep. Ex. 25.
[17] R. Gutz Dep. at 15-16.
[18]
J.
[19] See, e.g., Ex. 26.
[20] See, J. Anderson Dep. at 95; Dep. Ex. 19; J. Bradley Dep., Ex. A-14 at 3.
[21]
County contracts are required by the IRTS statute before a provider can become
licensed and can begin to operate.
[22]
J. Bradley Dep. Exs. A-15, A-17, A-18. See, DHS Memorandum at 15-16. The only 2006 county contract with Rule 36
Duluth that lacks an explicit provision providing for the retroactive
adjustment of rates is the
[23] J. Bradley Dep., Ex. A-14 at 3 (emphasis added).
[24]
J.
[25] Aff. of R. Minkema at ¶¶ 8-11; J. Anderson Aff. at ¶ 23.
[26] R. Gutz Dep at 39-44; J. Anderson Aff. at ¶ 13.
[27] Aff. of R. Minkema at ¶¶ 3, 7, 12-13.
[28]
[29]
[30]
[31]
Sauter v. Sauter, 70 N.W.2d 351, 353
(
[32]
See
[33]
Illinois Farmers Insurance Co. v. Tapemark
Co., 273 N.W.2d 630, 634 (
[34]
Thiele v. Stich, 425 N.W.2d 580, 583
(
[35]
[36]
Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477
[37]
Ostendorf v. Kenyon, 347 N.W.2d 834 (
[38]
See, e.g., Celotex, 477
[39]
Anderson v. Liberty Lobby, Inc., 477
[40]
[41] See,
[42]
[43] Compare,
[44]
[45] Compare,
[46] See, Minn. Stat. § 14.02, subd. 4.
[47] DHS Memorandum at 23.
[48]
[49]
The Department concedes that Rule 36 Duluth’s 2006 contract with
[50] Great N. Ry. Co. v. Pub. Serv. Comm’n,
284
[51] Peoples Natural Gas Co. v.
[52] In re Qwest’s Wholesale Service Quality
Standards, 702 N.W.2d 246, 259 (
[53] Surf and Sand, Inc. v. Gardebring, 457 N.W.2d 782, 785 (Minn. App. 1990), rev. denied (Minn. September 20, 1990).
[54] McKee v. County of Ramsey, 310
[55] Waller v. Powers Dept. Store, 343 N.W.2d
655, 657 (
[56] Qwest, 702 N.W.2d at 259; See also, Leisure Hills of Grand Rapids v. Levine, 366 N.W.2d 302 (
[57]
[58]
See, Hubbard, 778 N.W.2d at 320, citing, Hirsch v. Bartley-Lindsay, Co.,
537 N.W.2d 480, 485-86 (
[59]
[60]
J.
[61]
J.
[62] In re N. States Power Co., 414 N.W.2d
383, 387 (
[63]
[64]
See, St. Otto’s Home v.
[65]
See,
[66]
See, Wallace v. Comm’r of Taxation, 289
[67]
See, In re the Denial of Certification of
Variance Granted to Hubbard, 778 N.W.2d 313, 321 (
[68] See, J. Bradley Dep., Ex. A-14 at 3.
[69] See, Benson v. City of Little Falls, 379 N.W.2d 711, 713 (Minn. App. 1986) ("When a contract bears more than one reasonable interpretation, any ambiguity should generally be resolved against the party who drew the contract"); accord, U.S. v. Standard Rice Co., 323 U.S. 106, 111 (1944) ("We will treat [the federal government] like any other contractor and not revise the contract which it draws on the ground that a more prudent one might have been made"); Corso v. Creighton University, 731 F.2d 529, 533 (8th Cir. 1984) ("[w]here, as here, the contract is on a printed form prepared by one party, and adhered to by another who has little or no bargaining power, ambiguities must be construed against the drafting party"); Drainage Dist. No. 1 of Lincoln County, Neb., v. Rude, 21 F.2d 257, 261 (8th Cir. 1927) ("[W]hen a written contract is entirely prepared by one of the parties, and accepted, as thus prepared, by the other, any doubt as to the meaning of its provisions is to be resolved against the party preparing it").
[70]
[71]
Flores v. Dept. of Jobs & Training,
411 N.W.2d 499 (
[72] Sellner
Manufacturing Co. v. Commissioner of Taxation, 202 N.W.2d 886, 888-89 (
[73] St. Otto’s Home v. Minnesota Dept. of Human
Services, 437 N.W.2d 35, 40 (
[74]
[75]
[76] White Bear Lake Care Center, Inc. v.
[77] Dullard v. Minnesota Dept. of Human Services,
529 N.W.2d 438, 445 (Minn. App. 1995), citing,
St. Otto’s Home v. Minnesota Dept. of
Human Services, 437 N.W.2d 35, 42-43 (
[78]
J.
[79] J. Anderson Dep. Ex. 26.
[80]
J.
[81] J. Anderson Aff. at ¶ 12; DHS Memorandum at 13-14.