This opinion will be unpublished and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

A15-1854

In the Matter of

the Findings of Maltreatment and Disqualification of R. M. M.,

Appellant,

vs.

State of Minnesota,

Department of Health,

Respondent.

Filed July 5, 2016

Affirmed

Reyes, Judge

Ramsey County District Court

File No. 62CV151464

Tara Reese Duginske, Adam G. Chandler, Briggs and Morgan, P.A., Minneapolis, 

Minnesota (for appellant)

Lori Swanson, Attorney General, Timothy S. Christensen, Assistant Attorney General, St. 

Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Cleary, Chief Judge; and 

Johnson, Judge. 

U N P U B L I S H E D O P I N I O N

REYES, Judge

Appellant challenges the commissioner of health’s order affirming respondent’s 

finding that appellant committed maltreatment of a vulnerable adult and the 
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commissioner’s refusal to set aside his disqualification. Appellant also asserts that the 

commissioner’s determination is unsupported by substantial evidence and is arbitrary and 

capricious. We affirm.

FACTS

Appellant R.M.M., a certified nursing assistant, worked as a resident assistant 

(RA) at Presbyterian Homes of Arden Hills (Presbyterian Homes). Appellant was a 

caretaker for many patients, including J.E., an elderly woman with osteoporosis and other 

ailments. Presbyterian Homes developed a care plan for J.E., which required her to eat 

all meals in the cafeteria. The care plan also required J.E. to be transferred from her bed 

to a wheelchair using a mechanical Golvo lift,1 which needed two trained employees to 

operate. The care plan was communicated to Presbyterian Homes’s employees through a 

summary referred to as “my best day” plan (J.E.’s care plan).

2

 

Prior to Presbyterian Homes residents’ lunch hour, appellant was required to get 

the residents for whom he was responsible to the cafeteria. At approximately 11:45 a.m.

on January 20, 2014, appellant used a one-person pivot transfer3to move J.E. from her 

bed to the wheelchair. During the one-person pivot transfer, J.E.’s leg was injured. J.E. 

was taken to the hospital and diagnosed with a broken leg. She died two days later. 

 

1 A Golvo lift is equipment used for transfers consisting of a sling and mechanical 

movements that provides a total assist for the transfer. 

2 A copy of each patient’s “my best day” plan is kept in the resident’s bathroom and at 

the nurse’s desk. 

3 A pivot transfer is performed when an employee places a cloth belt around the 

resident’s waist, the resident bears some weight on his or her feet, and the employee turns

or pivots the resident into a new position, e.g., from their bed to a wheelchair. 
3

Immediately after the incident, appellant contacted his supervising nurse, L.P.,

about J.E.’s injury. Presbyterian Homes conducted an internal investigation 

approximately 25 minutes after the incident occurred and interviewed appellant. 

Appellant told the internal investigator that he transferred J.E. using a pivot transfer

because she was smaller, he needed to get her up for lunch, and to save time. Respondent

department of health (DOH) also conducted an investigation approximately three weeks 

after the incident, and determined that appellant maltreated a vulnerable adult by neglect. 

Appellant told respondent that he transferred J.E. in this manner to get her to lunch, 

because he was pressed for time, and he had done it before without incident. Respondent 

informed appellant that he was disqualified from working in Minnesota licensed facilities 

based on the finding that the maltreatment was serious. Appellant requested 

reconsideration on both the determination of maltreatment and disqualification, which 

respondent denied. Respondent informed appellant that he had a right to a hearing and to 

administrative reconsideration. 

Appellant requested an administrative hearing, and both matters were heard in 

October 2014 before a human-services judge (HSJ). During the hearing, appellant argued 

in the alternative that he transferred J.E. using a pivot transfer because of her recurring 

problems with pneumonia. The HSJ issued proposed findings and conclusions, 

recommended that the maltreatment determination and the disqualification be affirmed. 

Both parties filed exceptions to the HSJ’s recommendation. The commissioner of health 

issued a final order adopting the HSJ’s report with various amendments and affirmed the 

determination of maltreatment and disqualification. Appellant subsequently appealed the 
4

commissioner’s decision to the district court, which affirmed the commissioner. This 

appeal follows. 

D E C I S I O N

When “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 omitted), 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). Under the substantialevidence test, a reviewing court evaluates “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. Nor-West. Cable Commc’ns 

P’ship, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations omitted). “[T]he burden is upon 

the appellant to establish that the findings of the agency are not supported by the 

evidence in the record, considered in its entirety.” In re Application of Minn. Power, 838 

N.W.2d 747, 760 (Minn. 2013) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 

825 (Minn. 1977)).
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I. Substantial evidence supports the determination that the incident was not the 

result of therapeutic-conduct exception pursuant to Minn. Stat. § 626.5572, 

subd. 17(a)(2) (2014).

Appellant argues that the commissioner’s maltreatment determination is not 

supported by substantial evidence because appellant’s actions fall within the therapeuticconduct exception and therefore do not constitute neglect. We disagree.

Substantial evidence is (1) relevant 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 appellate court will “consider the agency’s expertise and special 

knowledge when reviewing an agency’s application of a regulation when application of 

the regulation is primarily factual and necessarily requires application of the agency’s 

technical knowledge and expertise to the facts presented.” In re Cities of Annandale and 

Maple Lake NPDES/SDS Permit, 731 N.W.2d 502, 515 n.9 (Minn. 2007) (quotation 

omitted). Moreover, appellate courts “defer to an agency’s conclusions regarding 

conflicts in testimony,” the weight given, and the inferences drawn from such testimony. 

See BCBSM, 624 N.W.2d at 278.

The parties do not dispute that J.E. was protected under the statute as a vulnerable 

adult (VA) or that appellant was a caregiver. Minn. Stat. § 626.5572, subds. 4, 21(a)(1) 

(2014). Under Minn. Stat. § 626.5572, subd. 17(a) (2014), a caregiver neglects a VA by 

failing or omitting to supply her with: 

care or services including but not limited to, food, clothing, 

shelter, health care, or supervision which is:
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(1) reasonable and necessary to obtain or maintain the 

[VA’s] physical or mental health or safety, considering the 

physical and mental capacity or dysfunction of the vulnerable 

adult; and

(2) which is not the result of an accident or therapeutic 

conduct.

Id. “Therapeutic conduct” is defined as “the provision of the program services, health 

care, or other personal care services done in good faith in the interests of the vulnerable 

adult.” Minn. Stat. § 626.5572, subd. 20 (2014). 

In adopting the HSJ’s findings and conclusions, the commissioner concluded, and 

the parties do not dispute that, appellant’s actions were in good faith. But in failing to 

follow J.E.’s care plan, the commissioner concluded that appellant did not act in J.E.’s

best interests. The commissioner also concluded that appellant acted in his own interest 

by taking a shortcut in transferring J.E. and that the incident was not “something gone 

wrong during the course of ‘therapeutic conduct’” under Minn. Stat. § 626.5572, subds. 

17(c)(5), 20 (2014). 

The record supports the commissioner’s conclusion that appellant’s actions did not 

constitute therapeutic conduct because he did not act in J.E.’s best interests by failing to 

follow J.E.’s care plan, and he is not precluded from a determination of maltreatment by 

neglect. We defer to the DOH’s expertise and special knowledge. In re Annandale, 731 

N.W.2d at 515 n.9. 

J.E.’s care plan required a two-person Golvo lift since December 2012, and this

was also reflected in her most recent care plan in late November 2013. Appellant was on 
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notice about J.E.’s transfer status of a Golvo lift for over a year prior to the incident. 

J.E.’s care plan also directed her caretakers to take her to the dining room for all meals. 

Presbyterian Homes required their staff to follow the resident’s care plans, 

communicated this expectation to employees at the initial training, and included it as part 

of each employee’s ongoing training. RAs were not to make their own assessments, and 

any perceived conflict among care-plan directives was to be resolved by contacting a 

supervising nurse. Appellant stated that he was aware that the resident’s care plans were 

developed by the licensed staff at Presbyterian Homes and that he was required to follow 

its guidelines, including regulations, best practices, and “established policies, 

procedures[,] and practices.” Moreover, DOH investigator S.R. testified that a VA’s care 

plan is what is considered in the best interests of the VA because the care plan is based on

individualized assessments. 

Despite appellant’s training and Presbyterian Homes’ clear guidelines providing

that RAs do not make their own assessments, appellant did so and failed to contact a 

supervising nurse for guidance. He also failed to request help from another trained 

employee to move J.E. Moreover, appellant acknowledged that J.E. could have arrived 

late to lunch or could have gotten out of bed later in the day using the prescribed Golvo 

lift, even if persons on the next shift got her out of bed. By failing to abide by J.E.’s care 

plan, appellant failed to act in her best interests. We conclude, as the commissioner did,

that appellant’s actions were done in his own best interests, not in J.E.’s best interests. 

Furthermore, appellant testified that he had used a pivot transfer, contrary to J.E.’s care 

plan, on other occasions. This is further evidence of multiple actions constituting 
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maltreatment for failure to follow J.E.’s care plan. As such, the evidence supports the 

commissioner’s maltreatment and disqualification determination. 

Appellant also argues that a violation of policy by itself does not demonstrate 

maltreatment by the caregiver and relies on two unpublished cases for support, C.J.K. v. 

State, Dept. of Health, C9-00-583, 2000 WL 1617815 (Minn. App. Oct. 31, 2000), review 

denied (Minn. Jan. 16, 2001), and D.R.W. v. State, Dept. of Health, C5-01-526, 2001 WL 

1187092 (Minn. App. Oct. 9, 2001). But unpublished cases are not precedential. Minn. 

Stat. 480A.08, subd. 3 (2014). Moreover, those cases do not stand for the proposition for 

which they are cited. 

Appellant further argues, for the first time on appeal to the district court and this 

court, that there should be a subjective standard when analyzing whether he was acting in 

the VA’s best interests. The district court found that appellant’s argument was “not 

consistent with the weight of appellate authority” under the therapeutic-conduct analysis. 

Caselaw supports the district court’s application of the objective standard. See J.R.B. v. 

Dep’t of Human Servs., 633 N.W.2d 33, 38 (Minn. App. 2001) (illustrating unavailability 

of therapeutic-conduct defense when J.R.B. observed significant change in resident’s 

physical condition yet failed to contact the resident’s physician contrary to rehabilitation 

home’s policy, which was not in the patient’s best interests), review denied (Minn. Oct. 

24, 2001). 

Finally, appellant argues that he acted in J.E.’s best interests by getting her out of 

bed to prevent pneumonia. Appellant did not argue that his reason for using the pivot 

transfer was to prevent pneumonia until the administrative hearing. And it was within the 
9

commissioner’s discretion to believe appellant’s earlier accounts. See In re Excess 

Surplus Status of Blue Cross Blue Shield of Minn., 624 N.W.2d at 278 (stating that we 

defer to the agency to resolve conflicting testimony). Additionally, the guidelines do not 

provide for an RA to make their own judgment regarding the resident’s care plans. 

Rather, they require the RA to contact a supervising nurse whenever an RA has a 

question about a resident’s care plan. Because appellant failed to follow J.E.’s care plan, 

he failed to act in her best interests, she was injured, and his conduct was not the 

consequence of “therapeutic conduct.”

II. The commissioner considered mitigating factors.

Appellant argues that the DOH “failed to conduct a sufficient investigation into 

mitigating factors regarding the January 20, 2014 incident” as required by Minn. Stat. 

§ 626.557, subd. 9c(c)(2) (2014), and the commissioner’s decision requires reversal 

because it is based upon that insufficiency. Appellant only challenges the DOH’s 

requirement with regard to the second mitigating factor and specifically asserts that it did 

not sufficiently investigate the adequacy of the staffing levels at Presbyterian Homes. 

This argument is without merit. 

Minn. Stat. § 626.557, subd. 9c(c) provides:

When determining whether the facility or individual is 

the responsible party for substantiated maltreatment or 

whether both . . . are responsible for substantiated 

maltreatment, the lead investigative agency4shall consider at 

least the following mitigating factors: . . . .

(2) the comparative responsibility between the facility, 

other caregivers, and requirements placed upon the employee, 

 

4 DOH in this case.
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including but not limited to. . . the adequacy of facility 

staffing levels . . . . 

The commissioner found that, although the “staffing . . . over the lunch hour was tight,” 

appellant was comparatively at fault. The commissioner determined that, while appellant 

discussed the staff that were present and absent, he failed to tell the investigator that “he 

thought there was inadequate staffing or that no one was available to help him.” The 

commissioner also found that appellant “had adequate resources to safely transfer [J.E.] 

and, at least comparatively, that the facility was not at fault for his exercise of poor 

judgment in not calling on or waiting for those resources.” 

The evidence supports the commissioner’s findings regarding the staffing at 

Presbyterian Homes. When appellant was initially interviewed by the investigators, he

did not express concerns regarding inadequate staffing. He also did not state that staff 

was unavailable to help him transfer J.E. Even two weeks later, appellant’s statement to 

DOH investigator S.R. was that he used the pivot transfer to save time based on his 

professional judgment, not because of inadequate staffing. 

Nonetheless, S.R. inquired about the staffing levels at Presbyterian Homes, 

determined that they were normal, and addressed staffing in the mitigating factors portion 

of her report. S.R. testified that she “had no reason to believe that [the resident’s daily 

needs] weren’t being [addressed] prior to or after” the incident. Because the resident’s 

daily needs were being addressed, S.R.’s determination that the staffing levels were 

“normal” is reasonable based on the evidence. It can also be inferred from the evidence 

that S.R.’s determination of “normal” is synonymous with “adequate.” As such, the 
11

commissioner’s decision considered mitigating factors including the adequacy of the 

staffing levels. 

III. The commissioner’s findings and determinations were not arbitrary and 

capricious.

Appellant argues that the commissioner’s decision was arbitrary and capricious for 

the following reasons: (1) the commissioner failed to adequately consider the two 

conflicting directives in J.E.’s care plan; (2) the commissioner incorrectly determined that 

appellant was not acting in J.E.’s best interests; (3) one error cannot support a finding of 

maltreatment; and (4) because appellant’s actions did not constitute maltreatment, the 

[commissioner’s] disqualification determination is improper. Appellant, however, fails to 

provide legal support for his assertions. 

“[A]n agency ruling is arbitrary and capricious if the agency (a) relied on factors 

not intended by the legislature; (b) entirely failed to consider an important aspect of the 

problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision 

is so implausible that it could not be explained as a difference in view or the result of the 

agency’s expertise.” Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of 

Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006).

In adopting the HSJ’s findings and conclusions, the commissioner found that 

“[n]othing in the circumstances created [a] dilemma” or conflict in J.E.’s care plan. The 

commissioner analyzed what appellant viewed as conflicts in J.E.’s care plan directives

but ultimately found that appellant made a “personal” or “professional judgment” in 

using the pivot transfer, and appellant made no “effort to seek help with transferring the 
12

VA.” The commissioner further concluded that appellant did not act in J.E.’s best 

interests because he deviated from her care plan, and in doing so, appellant acted in his 

own interest “by taking a shortcut in transferring [J.E.].” The commissioner also found 

that appellant had previously transferred J.E. using a pivot transfer in violation of her care 

plan. Finally, the commissioner determined that “the [DOH] proved by a preponderance 

of the evidence that [a]ppellant maltreated a vulnerable adult” and affirmed the 

disqualification. The record supports the commissioner’s findings and determinations

and therefore is not arbitrary and capricious. 

IV. The commissioner did not err in affirming the maltreatment and 

disqualification order or by not considering the theory of manifest injustice.

Appellant argues that the commissioner’s maltreatment finding and determinations 

results in a manifest injustice because of its harsh penalties and consequences and 

therefore should be reversed. But appellant failed to present this argument at either the 

administrative hearing or at the district court. We cannot consider issues not raised to the 

court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

Affirmed.