4-3101-5897-2

 

                               STATE OF MINNESOTA

                       OFFICE OF ADMINISTRATIVE HEARINGS

 

                         FOR THE HASTINGS VETERANS HOME

 

 

In the Matter of the Appeal of                         FINDINGS OF FACTS

Kevin Johnson                                          CQNCLUSIONS OF LAW

                                                       AND RECOMMENDATION

 

 

 

     The above-entitled matter came on for  hearing before Administrative Law

Judge Peter C. Erickson at 9:30 a.m. on January 3, 1992, at the Office of

Administrative Hearings, Minneapolis, Minnesota.  William E. Jepsen,  from  the

firm of Karon, Jepsen & Daly, Attorneys at Law, 1600 American National Bank

Building, 5th and Minnesota Street, St. Paul, Minnesota  55101, appeared on

behalf of the Appellant, Kevin Johnson.  Bernard E. Johnson,  Special  Assistant

Attorney General, 1100 Bremer Tower, Seventh Place and Minnesota Street,

St. Paul, Minnesota 55101, appeared on behalf of the Hastings  Veterans  Home.

The record closed at the conclusion of the hearing on January 3, 1992.

 

     Notice is hereby given that, pursuant to Minn.  Stat.  14.61 the final

decision of the Administrator of the Hastings Veterans Home 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

Administrator.  Exceptions to this Report, if any, shall be filed with the

Administrator, Susan Kiley, Hastings Veterans Home, 1200 East 18th Street,

Hastings, Minnesota  55033.

 

                              5TATEMENT_OF ISSUE

 

     The issue to be determined in this proceeding is whether the discharge  of

Kevin Johnson from the Hastings Veterans Home was retaliatory in violation  of

Minn.  Stat.  198.32, subd. 2.

 

     Based upon the proceedings herein, the Administrative Law Judge makes  the

following:

 

                               FINDINGS OF FACT

 

     1.   At the commencement of this proceeding, the parties stipulated  that

a violation of Minn.  Rule 9050.0200, subp. 3.C. could be proved by the

Hastings Veterans Home which would constitute a sufficient basis for the

discharge of Kevin Johnson from the Home.  In addition, the Appellant

stipulated that all procedural requirements of law or rule have been  followed

by the Home in commencing and litigating this action.  In lieu of a full

evidentiary hearing, the Appellant chose only to try the issue of  retaliatory

 

discharge set forth above.    Exhibits 1 through 17 were received into evidence

without objection to show, in large part, the basis for the discharge action

taken by the Home.

 

     2.   Kevin Johnson is a thirty-eight year-old male who began residing at

the Hastings Veterans Home on April 15, 1988.    Beginning in December of 1988,

Mr. Johnson began using alcohol while at the Home.   He was diagnosed as

alcohol-dependent and underwent treatment twice, the last time in 1989, at

treatment facilities away from the Home.   Mr. Johnson's stated objectives

while living at the Home were to find employment and be able to live

independently.  However, he has exhibited a continual pattern of alcohol abuse

from the date of his admission through approximately August 1, 1991.  On two

occasions, Mr. Johnson suffered seizures while at the Home as a result of

alcohol withdrawal.   He was sent to Detox five times and was arrested for a

DWI in early 1991.  In addition to finding employment and attaining an

independent living status, a third goal of Mr. Johnson has been to maintain

sobriety.  However, Mr. Johnson has refused to participate in chemical

dependency treatment programs suggested by the Home in the last year.

 

     3.   The Hastings Veterans Home does not have an in-house chemical

dependency treatment program.   Although there are counselors on staff who deal

with the issue of chemical dependency with residents, there is no structured

program which will meet the needs of a person suffering from the illness of

chemical dependency.  Consequently, residents are referred out to other

treatment facilities if chemical dependency has been diagnosed and a treatment

program is required.  In May of 1991, Kevin Johnson refused to sign release

forms so that he could be evaluated at two chemical dependency treatment

centers for the purpose of admission and treatment.

 

    4.   Subsequent to Mr. Johnson's refusal to participate in his placement

at a chemical dependency treatment center, he was informed by staff members at

the Hastings Veterans Home that his continued residence at the Home would be

reviewed due to continued alcohol abuse and his refusal to participate in

treatment.  In addition, due to the alcohol abuse, Mr. Johnson was unable to

work on his goals of finding employment and living independently.

 

    5.   The staffing at the Hastings Veterans Home includes a Utilization

Review Committee which reviews and determines whether residents should

continue living at the Home.   One of the primary functions of the committee is

to decide whether the Home can adequately meet the needs of the

patient-residents.  In addition, there is a "Level of Care Exception

Committee" which meets on a monthly basis to review residents who have been

found to be a "danger to themselves or others".  Both of these committees

actively reviewed Kevin Johnson's status at the Home during the spring and

summer of 1991.  This review was based on Mr. Johnson's continued alcohol

abuse and his inability to meet the goals of sobriety, finding employment and

independent living.

 

    6.   On July 6, 1991, Kevin Johnson was using a table saw in the

Carpenter Shop at the Hastings Veterans Home.  While using the saw, he

accidentally cut off the tip of his index finger on his right hand.   Mr.

Johnson was taken to the Regina Hospital Emergency Room after the accident and

emergency medical treatment was administered.

 

                                     -2-

 

     7 .  On July  12 ,  1991 , Kevin Johnson telephoned the Minnesota Office of

Health Facility Complaints to file a complaint concerning the injury he

sustained on July 6, and the fact that staff at the Home were talking to  other

staff and patients about the nature of the injury.   At that time, Mr.  Johnson

wan informed that the Home administrator, Susan Kiley, would be contacted  and

appropriate follow-up would occur.   After receiving the phone call from Mr.

Johnson, a representative from Health Facility Complaints called Ms. Kiley  to

inform her of the substance of the complaint which had been filed by

Mr. Johnson.

 

     8.   On July 29, 1991, the Utilization Review Committee met and

recommended, based on Kevin Johnson's past history of alcohol abuse, that  he

be involuntarily discharged from Hastings Veterans Home.  This  recommendation

was based, in part, on a similar recommendation from the Level of Care

Exception Committee that involuntary discharge occur with respect to

Mr. Johnson because his needs could not be met at the Home.

 

     9.   On August 1, 1991, an investigator for the Sieben, Grose & Von

Holtum Law Firm, Andrew Miklesh, went to the Hastings Veterans Home to

investigate the scene of the injury sustained by Mr. Johnson on July 6,  1991.

Mr. Johnson had called the law firm and requested representation with  respect

to his hand injury.  When Mr. Miklesh was at the Home, he spoke with the

Administrator, Susan Kiley, concerning the purpose and reason for his  visit.

 

     10,  Based on the Utilization Review Committee's recommendation for  the

involuntary discharge of Kevin Johnson, Susan Kiley gave Mr. Johnson a  Notice

of Involuntary Discharge dated August 5, 1991.   The notice stated that the

effective date of discharge was September 4, 1991.   Additionally, it  informed

Mr. Johnson that he had a right to appeal the discharge pursuant to Minn.  Rule

9050.0220.  Kevin Johnson filed a timely appeal of the discharge dated

August 30, 1991.  Subsequently, a Notice of and Order for Hearing on  this  case

was issued by the Hastings Veterans Home on October 1, 1991.

 

     11.  on December 20, 1989, an Occupational Safety and Health Citation  was

issued to the Hastings Veterans Home which cited the Home for a lack of

guarding on the table saw which Kevin Johnson injured himself on in July of

1991.  The proper guard on that table saw is removed by residents who  use  the

saw because it makes the use easier, although more dangerous.

 

     12.   Mr. Johnson has maintained sobriety from approximately

August 1, 1991 to the present.

 

     Based upon the foregoing Findings of Fact, the Administrative Law  Judge

makes the following:

 

                                  CQNCLUSIQNS

 

     1.   The Administrative Law Judge and the Hastings Veterans Home

Administrator have jurisdiction in this matter pursuant to Minn.  Stat.   14.50

and Minn.  Rule 9050.0220, subp. 6. The Notice of Hearing was proper  in  this

case and the Home has complied with all substantive and procedural

requirements of law or rule.

 

     2.   The Home has proved that it is unable to meet the care needs of

 

 

 

                                      -3-

 

Kevin Johnson pursuant to Minn.  Rule 9050.0200, subp. 2.C.    Adequate grounds

for discharge have been shown.

 

      3    Pursuant to Minn.  Stat   198.32, subd. 2, an involuntary discharge

which occurs within forty-five days of a grievance filed by a resident is

presumed to be retaliatory and, if not rebutted, is prohibited.     The Judge

concludes that the Home has rebutted this presumption and shown by a

preponderance of the evidence that the involuntary discharge was not

retaliatory, but was rather the result of Mr. Johnson's continued alcohol

abuse and his failure to meet the goals of finding employment and independent

living.

 

      Based upon the foregoing Conclusions, the Administrative Law Judge makes

the following:

 

                                  RECOMMENDATIQN

 

      IT IS RESPECTFULLY RECOMMENDED that the Administrator of the Hastings

Veterans Home issue an order affirming the decision to discharge Kevin Johnson

from the Home.

 

Dated this 27 day of January, 1992.

 

 

 

                                         PETER C. ERICKSON            

                                         Administrative Law  Judge

 

                                      NOTICE

 

      Pursuant to 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.

 

Reported:  Taped.

 

                                   MEMORANDUM

 

      This is a difficult case.  Kevin Johnson obviously needs assistance in

getting his life back on track and the Judge is not convinced that the recent

period of sobriety, without treatment, ensures that problems will not again

arise.  Mr. Johnson has refused a referral to treatment facilities offered by

the Hastings Veterans Home.  His past history at the Home shows that treatment

is necessary for continued residence.  Additionally, the record in this case

does not support a claim of retaliation made by the Appellant.    The Judge

suggests that before issuing a final decision on this case, Mr.  Johnson be

given a last opportunity to participate in a treatment referral  before

discharge occurs.

                                       PCE

 

 

 

                                       -4-