                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A15-0226

                                Beth Ann Balenger,
                                    Appellant,

                                         vs.

                      State of Minnesota, Department of Health,
                                    Respondent.

                             Filed November 23, 2015
                                    Affirmed
                                 Connolly, Judge

                           Hennepin County District Court
                              File No. 27-CV-14-8434


Lateesa T. Ward, Ward & Ward, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Audrey K. Manka, Assistant Attorney General,
St. Paul, Minnesota (for respondent)



      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.

                      UNPUBLISHED OPINION

CONNOLLY, Judge

      Appellant challenges the district court’s order affirming a finding of the

Department of Health (DOH) that appellant committed maltreatment of a vulnerable
adult. Because we see no denial of due process to appellant and no error of law in the

district court’s order, because substantial evidence supports the district court’s decision,

and because that decision was not arbitrary and capricious, we affirm.

                                         FACTS

       Appellant Beth Balenger was the owner of Unity Health Care (Unity), an agency

that provided services to the residents of a House With Services (HWS); she was also the

director of operations at the HWS.        On September 8, 2011, S.C., a 47-year-old

vulnerable-adult female with chronic pulmonary disease for which she carried an oxygen

tank, uncontrolled diabetes, and memory deficits, moved into the HWS.             Conflicts

developed between S.C. and Unity staff because S.C. would not take showers when

directed to do so and repeatedly smoked while using an oxygen tank.

       On the morning of September 27, 2011, S.C. was told that she should take a

shower before her doctor’s appointment that afternoon. She refused, saying she liked to

shower in the evening. Later that morning, S.C. went outside the HWS on her scooter;

she was both smoking and using an oxygen tank. Appellant was outside watering the

garden with a hose. She first directed the hose at S.C., wetting her; then took a bottle of

shampoo and rubbed it on S.C.’s face, hair, and clothing.

       The Office of Health Facility Complaints (OHFC) received two reports of this

incident. One was from a member of the community who was driving by and saw the

incident; the other was from a DOH employee who, when at the HWS, was asked by S.C.

if appellant had the right to give S.C. a shower. The OHFC conducted an investigation,




                                             2
which resulted in the DOH issuing a finding of maltreatment and advising appellant that

she had a right to a hearing and to administrative reconsideration.

       In September 2012, a hearing was conducted before a human services judge (HSJ),

who, in January 2013, issued proposed findings and conclusions and recommended that

the maltreatment finding be reversed.

       The OHFC submitted exceptions to the HSJ’s recommendation. In December

2013, a delegate of the DOH commissioner (the delegate) issued a proposed final order

adopting parts of the HSJ’s report, but making additional findings and affirming the DOH

maltreatment finding. After both parties had submitted comments on the proposed final

order, the delegate, in February 2014, issued a final order affirming the maltreatment

finding.

       Appellant requested reconsideration, and, in April 2014, the DOH issued a “final,

final order,” again affirming the maltreatment finding. Appellant sought review in the

district court, which, after oral argument, issued an order affirming the maltreatment

finding.

       Appellant now challenges that order, arguing that (1) she was deprived of due

process, (2) the order contained errors of law, (3) the maltreatment finding was not

supported by substantial evidence, and (4) the order was arbitrary and capricious.

                                     DECISION

       Where “the [district] court is itself acting as an appellate tribunal with respect to

the agency decision, this court will independently review the agency’s record.” In re

Hutchinson, 440 N.W.2d 171, 175 (Minn. App. 1989) (quotations and citations omitted),


                                             3
review denied (Minn. Aug. 9, 1989). “[I]f the ruling by the agency decision-maker is

supported by substantial evidence, it must be affirmed.” In re Excess Surplus Status of

Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 279 (Minn. 2001).

             The substantial evidence test requires a reviewing court to
             evaluate the evidence relied upon by the agency in view of
             the entire record as submitted. If an administrative agency
             engages in reasoned decisionmaking, the court will affirm,
             even though it may have reached a different conclusion had it
             been the factfinder.

Cable Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship, 356 N.W.2d 658, 668-69

(Minn. 1984) (quotations and citations omitted).

1.    Due Process

                    Whether the government has violated a person’s
             procedural due process rights is a question of law that we
             review de novo. We conduct a two-step analysis to determine
             whether the government has violated an individual’s
             procedural due process rights. First, we must identify
             whether the government has deprived the individual of a
             protected life, liberty, or property interest.           If the
             government’s action does not deprive an individual of such an
             interest, then no due process is due. On the other hand, if the
             government’s action deprives an individual of a protected
             interest, then the second step requires us to determine whether
             the procedures followed by the government were
             constitutionally sufficient. To determine the constitutional
             adequacy of specific procedures . . . [we] consider first, the
             private interest that will be affected by the official action;
             second, the risk of an erroneous deprivation of such interest
             through the procedures used, and the probable value, if any,
             of additional or substitute procedural safeguards; and finally,
             the Government’s interest, including the function involved
             and the fiscal and administrative burdens that the additional
             or substitute procedural requirement would entail.




                                            4
Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012) (quotations and citations

omitted).

       Appellant argues that, because she was not notified prior to the delegate’s April

2014 order that her application of shampoo to S.C. would be considered maltreatment of

a vulnerable adult, she could not defend against that charge and was therefore denied due

process. But, in March 2012, appellant had been sent notice of the DOH finding that she

had maltreated a resident, specifically that she “sprayed [the resident] with water using a

garden hose in the front yard of the facility saturating her clothing and then squirted

shampoo all over [the resident’s] hair and clothes stating, ‘I guess that means you’re

going to take the shower now doesn’t it?’” Thus, appellant had notice six months before

the September 2012 hearing that her putting shampoo on S.C. was part of the conduct

considered to be maltreatment.

       Moreover, during the OHFC investigation before that hearing, appellant was

questioned about her application of shampoo to S.C. She first denied that she had any

shampoo, then, when told that suds had been seen on the ground, said she was trying to

remove lice from S.C.’s hair.

              Q.     Did you have any soap or detergent or any type of
                     chemical out there, . . . in the yard?
              A.     No.
                     ....
              Q.     Um, part of the information I have is that there was
                     suds on the ground.
              A.     There weren’t suds on the ground. I didn’t have any
                     chemicals outside, um, I went into the house and I
                     retrieved some shampoo because [S.C.] had to have,
                     uh, something like a lice check or, uh, shampoo for
                     lice, uh, done to her hair. . .


                                            5
Thus, appellant had notice that her putting shampoo on S.C.’s hair outside was part of the

incident giving rise to the maltreatment finding, and she was not deprived of the

opportunity to present a defense. Moreover, the transcript confirms the finding that

appellant denied having shampoo and did not mention trying to remove lice from S.C.’s

hair until after she was told that suds had been seen on the ground.

       As to the second factor, the procedures used by DOH here do not present a risk of

depriving an individual of the right to notification. Appellant was provided with the

DOH finding and allowed to present evidence and testify. Finally, appellant’s view that

an individual must be informed of every act that could possibly be considered

maltreatment under the vulnerable adults act, Minn. Stat. § 626.5572, subd. 15 (2014)

(defining maltreatment as abuse or neglect), would impose a significant fiscal and

administrative burden, even supposing that it were possible to list every act that could be

maltreatment.

       Appellant was not deprived of due process.

2.     Errors of Law

       Appellant argues that the delegate “made an error of law when it determined [her]

actions were maltreatment, and not a therapeutic mistake.” But an error in providing

therapeutic treatment to S.C. would be related to whether S.C. had been neglected, not

whether she had been abused. See Minn. Stat. § 626.5572, subd. 2(b) (2014) (defining

abuse as “[c]onduct which is not . . . therapeutic conduct); Minn. Stat. § 626.5572, subd.

17(c)(4) (2014) (defining neglect not to include an error in the provision of therapeutic



                                             6
conduct that does not necessitate medical or mental health care). Appellant was not

accused of neglect, but rather of abuse, so her argument that her treatment of S.C. was

actually a therapeutic mistake is irrelevant.

       Therapeutic conduct is defined as “the provision of . . . personal care services done

in good faith in the interests of the vulnerable adult.” Minn. Stat. § 626.5572, subd. 20

(2014). The delegate found that:

              It was not in the interest of [S.C.] to have her hair shampooed
              with lice shampoo outside of the facility when she did not
              have lice and there was no doctor’s order for lice shampoo to
              be used on [her]. . . . It was not in [S.C.’s] interest to have her
              hair shampooed while she was outside the facility.
                      Appellant did not act in good faith by hosing down
              [S.C.] and applying lice shampoo without having an order for
              treatment of lice. . . . I find that spraying the scooter and
              [S.C.] was a pretext to force [S.C.] to take a shower against
              her will.
                      I find it more likely than not that appellant, out of
              frustration [caused by] dealing with the noncompliant [S.C.],
              emotionally abused her by hosing her down outside and
              putting shampoo in her hair to force her to take a shower.

The district court did not err in concluding that appellant’s spraying S.C. with a hose and

putting shampoo on her as she sat outdoors on her scooter was not “the provision of . . .

personal care services done in good faith in the interest of the vulnerable adult” within

the meaning of Minn. Stat. § 626.5572, subd. 20.

       Appellant relies on In re Staley, 730 N.W.2d 289 (Minn. App. 2007), to argue that,

because her conduct was not egregious, it was not maltreatment, and states that “[t]he

[district] court’s analysis of Staley is blatantly flawed.” Staley concerned a nursing

assistant who made a single offensive remark to a resident and was terminated for oral



                                                7
abuse of that resident. Id. at 292. This court concluded that the statement, although

disparaging, derogatory, humiliating, or harassing, was not repeated or malicious and

therefore did not come under the “language” prong of Minn. Stat. § 626.5572, subd.

2(b)(2) (defining abuse as including the “use of repeated or malicious oral, written, or

gestured language toward a vulnerable adult or the treatment of a vulnerable adult which

would be considered by a reasonable person to be disparaging, derogatory, humiliating,

harassing, or threatening”), and was not “treatment” and therefore did not come under the

“treatment” prong. Id. at 298-99. But treatment, specifically appellant’s treatment of

S.C. in spraying her with water and rubbing shampoo on her outdoors and in public, was

at issue here, and a reasonable person would have considered that treatment disparaging,

derogatory, humiliating, harassing, or threatening, thus bringing it under the statutory

definition of abuse of a vulnerable adult. See Minn. Stat. § 626.5572, subd. 2(b)(2); see

also Minn. Stat. § 626.5572, subd. 15 (defining maltreatment as abuse).

       There was no error of law in the district court’s interpretation of the relevant

statutes or of Staley.

3.     Substantial Evidence

       Substantial evidence is (1) evidence that a reasonable mind might accept as

adequate to support a conclusion; (2) more than a scintilla of evidence, some evidence, or

any evidence; and (3) the evidence considered in its entirety. Cable Commc’ns Bd., 356

N.W.2d at 668.      The delegate’s decision was based on two “key facts”:        first, “a

community member corroborated [S.C.’s] allegation that [a]ppellant deliberately doused

her with [water from] the garden hose while she was seated on her scooter outside, in


                                            8
front of the residence, in full view of the street”; second, “by her own admission,

[a]ppellant put shampoo on [S.C.’s] head also while they were outside.” Substantial

evidence supports these factual findings.

      The community member reported that, as she was driving by the HWS, she saw a

woman matching appellant’s description pointing a stream of water from a hose at

another woman, who was in a wheelchair, was drenched, and was putting up her hands to

try to keep the water away. The investigator reported that:

             [S.C.] said to [appellant] you gotta be kidding, you’re not
             going to douse me with the hose and [appellant] said no, I
             would never do that. They continued and then [appellant] got
             closer to [S.C.] and then the water actually hit her, hit [S.C.].
             Then she said the next thing she knew [appellant] held the
             hose straight out at her and was getting her all wet. [S.C.]
             was fully clothed and . . . she said [appellant] hosed her
             down. [Appellant] then turned her back for a minute and
             turned around and had a shampoo bottle in her hand and
             started putting shampoo all over [S.C.] and rubbing it in her
             body, in her hair, in her clothes and then . . . .
             . . . .[S.C.] said she was mortified . . . because neighbors were
             out in the yard and she felt very, very uncomfortable with
             that.

Thus, substantial evidence supported the delegate’s finding that appellant had directed

water from a hose at S.C. and applied shampoo to S.C. while they were outside.

4.    Arbitrary and Capricious

      The delegate’s decision was not arbitrary and capricious if there was a rational

connection between the facts found and the choice made. See In re Review of 2005

Annual Automatic Adjustment of Charges for all Elec. and Gas Utilities, 768 N.W.2d

112, 120 (Minn. 2009).



                                            9
       Appellant relies on Blue Cross, 624 N.W.2d at 278, for the proposition that

“[r]ejection of the ALJ’s recommendations without explanation[,] however, may suggest

that the agency exercised its will rather than its judgment and was therefore arbitrary and

capricious.” But the HSJ’s recommendation that no maltreatment be found was not

rejected without explanation: the delegate explained that the HSJ declined to give any

weight to the report of the community member, “a neutral third party who happened to be

driving by,” and whose report both the DOH and the delegate saw as “the critical piece of

evidence.” The delegate noted that “[a]ppellant argues that inconsistencies between

[S.C.’s] and the community member’s statements are such that they negate the

community member’s report as corroboration” but that “the inconsistencies . . . are

readily explained by the fact that the community member was driving by in a car and

only saw the incident for a brief period of time” and that S.C. and the community

member “[had] different vantage points relative to the hose.”

       Our evaluation of “the evidence relied upon by the agency in view of the entire

record”   indicates   that   “[the]   administrative   agency   engage[d]    in   reasoned

decisionmaking,” see Cable Commc’ns Bd., 356 N.W.2d at 668-69, and, because “the

ruling by the agency decision-maker is supported by substantial evidence, it must be

affirmed.” See Blue Cross, 624 N.W.2d at 279.

       Affirmed.




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