This opinion will be unpublished and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.

                        UNPUBLISHED OPINION

REYES, Judge

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

finding that appellant committed maltreatment of a vulnerable adult and the
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 transfer3 to 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.

                                             2
       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


                                              3
commissioner’s decision to the district court, which affirmed the commissioner. This

appeal follows.

                                      DECISION

       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, 

 (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., 

 (Minn. 2001). Under the substantial-

evidence 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, 

 (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, 

 (Minn. 2013) (quoting Reserve Mining Co. v. Herbst, 

 (Minn. 1977)).




                                              4
I.     Substantial evidence supports the determination that the incident was not the
       result of therapeutic-conduct exception pursuant to 

,
       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 therapeutic-

conduct 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.,

. 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, 

, 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, 

.

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

adult (VA) or that appellant was a caregiver. 

, subds. 4, 21(a)(1)

(2014). Under 

, 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:



                                             5
                      (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.

 “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.” 

, 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 

, 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, 

 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




                                              6
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


                                               7
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, 

 (Minn. App. Oct. 31, 2000), review

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

 (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., 

 (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


                                              8
commissioner’s discretion to believe appellant’s earlier accounts. See In re Excess

Surplus Status of Blue Cross Blue Shield of Minn., 

 (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 

, 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.

         

, 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 agency4 shall 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.

                                              9
              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



                                              10
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, 

 (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



                                             11
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, 

 (Minn. 1988).

       Affirmed.




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