Douglas Place Treatment Center, LLC, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1322

Douglas Place Treatment Center, LLC,
Relator,

vs.

Commissioner of Human Services,
Respondent.

Filed May 15, 2017
Affirmed in part, reversed in part, and remanded
Ross, Judge

Minnesota Department of Human Services Licensing Division
License No. 1071339

Christianna L. Finnern and Quin C. Seiler, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota (for relator)

Lori Swanson, Attorney General, James H. Clark III, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
The Minnesota Commissioner of Human Services put the Douglas Place chemical-
dependency treatment center on conditional-license status for 70 license citations. Douglas
Place challenged many of those citations, but 3 4 are uncontested on appeal . We have
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reviewed the challenged citations, and we reverse some of them, but not all. Although even
a single citation might justify a conditional-license order, the order is unclear as to which
citation or group ing of citations, if any, is allegedly so serious as to support the order.
Because we do not know whethe r the commissioner would base the conditional -license
order on the combination of unchallenged and affirmed citations, we remand for further
proceedings.
FACTS
Relator Douglas Place Treatment Center LLC is an East Grand Forks chemical -
dependency treatment center. A Department of Human Services (DHS) licensor
investigated complaints about the center in March 2015. The licensor found several dozen
infractions warranting citation under the statutes and rules governing chemical-dependency
treatment services. See Minn. Stat. §§ 245A.01 –.66 (2016); Minn. R. 9530.6405 –.6505
(2015).
The Commissioner of Human Services confirmed the licensor’s findings and
organized the 70 statutory citations into 33 license violations. B ased on the “number and
nature of the licensi ng violations,” the commissioner put Douglas Place on conditional
status for two years, beginning August 12, 2015, under Minnesota Statutes section
245A.06, subdivision 1(a). She made specific findings for each citation and listed the
following summary reasons for the conditional license:
 The license holder submitted requests for payment of
public funds for treatment services that were not provided
or were not accurately documented when being provided.

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 The license holder failed to provide required services to
clients enrolled in the program’s high and medium intensity
level tracks.

 The license holder did not complete client assessments, did
not develop treatment plans, did not document progress
toward treatment, did not complete treatment plan reviews,
did not complete discharge summaries and did not provide
orientation to all clients on the grievance procedure.

 The license holder failed to obtain required documentation
when staff persons were hired, failed to provide required
orientation and annual traini ngs, and did not complete
annual performance evaluations.

Additionally, the license holder failed to comply with
background study requirements under Minnesota Statutes,
chapter 245C. On June 18, 2015, an Order to Pay a Fine was
issued for four background study violations.

The commissioner stated that she had “considered the nature, chronicity, and severity of
the licensing violations” and ordered Douglas Place to document that it has corrected the
violations within 30 days or face license revocation.
Douglas Place asked the commissioner to reconsider 38 of the 70 citations and to
replace the conditional-license order with a correction order. It asked alternatively that she
reduce the conditional -license period from two years to six months. The commissi oner
affirmed nearly all of the disputed citations, rescind ed two in full and one in part, and
revised and affirmed two others. Because the conditional -license period was stayed
pending reconsideration, the commissioner restarted the two-year period on the date of her
reconsideration order in June 2016.
Douglas Place appeals for certiorari review.
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D E C I S I O N
Douglas Place challenges the commissioner’s decision to affirm the conditional-
license order. “The commissioner’s disposition of a request for reconsideration is final and
not subject to appeal under [the Minnesota Administrative Procedure Act ].” Minn. Stat.
§ 245A.06, subds. 2, 4. On appeal from a quasi-judicial agency decision not subject to the
act, we examine the record to review, “as to the merits of the controversy, whether the
order or determination . . . was arbitrary, oppressive, unreasonable, fraudulent, under an
erroneous theory of law, or without any evidence to support it. ” Anderson v. Comm’r of
Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quoting Rodne v. Comm’r of Human
Servs., 547 N.W.2d 440, 444–45 (Minn. App. 1996)), review denied (Minn. Apr. 17, 2012).
Douglas Place asks us to reverse on three grounds. It argues that several dozen
citations are unsupported by evidence, unreasonable, or based on legal error. It also argues
that the commissioner failed to make findings showing that she considered certain statutory
factors. And i t argues finally that the conditional license is a disproportionately harsh
penalty. The commissioner a sks us not to reach these arguments because Douglas Place
does not challenge many of the bases of the order and we can affirm on those. We first
address the commissioner’s position that we may affirm the order based on the citations
that Douglas Place has not challenged.
I
We reject the commissioner’s contention that we need not address the challenged
citations because the unchallenged citations can support the conditional-license order. It is
true that if a DHS license e violates , even once, “an applicable law or rule . . . the
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commissioner may issue a correction order and an order of conditional license.” Minn. Stat.
§ 245A.06, subd. 1(a). And it is true that we defer to an agency’s choice of sanction unless
it reflects a clear abuse of discr etion. In re Revocation of Family Child Care License of
Burke, 666 N.W.2d 724, 726 (Minn. App. 2003). But the sanction ’s severity must reflect
the violation’s seriousness. Id. at 728. And we do not know from the commissioner’s order
whether any one of the citations, or any particular group of them, independently supports
her sanctions decision. She expressly based her decision on the “number and nature of the
licensing violations,” leaving it unclear whether our reversing several of them would
change the re sult. Given the discretionary nature of the commissioner’s decision (“ the
commissioner may issue . . . an order of conditional license ,” Minn. Stat. § 245.06,
subd. 1(a) (emphasis added) ), we are unsure whether the commissioner would have
exercised her dis cretion in the same way based only on the uncontested citations. We
therefore turn to the challenged citations.
II
Douglas Place challenges the commissioner’s decision to affirm citations 2, 3b, 7a,
7c, 8b, 10b, 10c, 10d, 10e, 11a, 11b, 11e, 11f, 14a, 15, 16, 17, 18, 20, 21, 22, 26, 27b(3),
30, and 31. We review the merits of a quasi -judicial order by examining the record to
determine whether the order is arbitrary, oppressive, unreasonable, fraudulent, made under
an erroneous theory of law, or without any evidentiary support. Anderson, 811 N.W.2d at
165. An agency’s determination is arbitrary when “there is no rational connection between
the facts and the agency’s decision.” Sweet v. Comm’r of Human Servs., 702 N.W.2d 314,
318 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005). We look to the record in its
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entirety to decide whether evidence supports the agency’s decision. Carter v. Olmsted Cty.
Hous. & Redevelopment Auth. , 574 N.W.2d 725, 730 (Minn. App. 1998). We defer to an
agency’s factual conclusions in the area of its expertise. See Cable Commc’ns Bd. v. Nor-
West Cable Commc’ns P’ship , 356 N.W.2d 658, 668 (Minn. 1984). And we presume
administrative agency decisions are correct. Burke, 666 N.W.2d at 726. But we review an
agency’s legal analysis de novo. See id.
Douglas Place argues that the citations are arbitrary, unreasonable, based on an
erroneous theory of law, or without evidentiary support. After a careful review of the
record, we affirm most of the challenged citations for the following summary reasons: the
commissioner’s findings were at least tied to some reported deficiency in Douglas Place’s
policies or documentation; the commissioner did not misinterpret the applic able rules and
statutes; the documents in the record and the licensor’s reported observations satisfy the
“any evidence” standard; and Douglas Place has not provided sufficient evidence to
overcome the deference we afford the commissioner.
We are also not persuaded by Douglas Place’s argument that the commissioner
improperly relied on statements by Douglas Place employees in affirming Citations 2, 10c,
11f, 22, and 31 because the DHS licensor allegedly failed to give what is commonly called
a Tennessen warning. The Minnesota Government Data Practices Act specifically requires
that a Tennessen warning be given to “[a]n individual asked to supply private or
confidential data concerning the individual . . . .” Minn. Stat. § 13.04, subd. 2 (2016). The
act defines “individual” to mean a natural person. Minn. Stat. § 13.02, subd. 8 (2016). And
it defines “data on individuals” in part as “a ll government data in which any individual is
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or can be identified as the subject of that data . . . .” Minn. Stat . § 13.02, subd. 5 (2016)
(emphasis added).
Douglas Place asks us to misapply the Tennessen -warning requirement so as to
protect Douglas Place, not to protect those employees who gave statements without the
warning. Douglas Place also appears to misunderst and the employees’ statements. It
contends that its employees’ statements constitute “data concerning the individual”
because the employees reported on documentation that they produced or procedures that
they followed. Even if an employee described her own conduct, the investigation
concerned the methods by which Douglas Place implements its policies ; Douglas Place
itself, not its employees, was the subject of the investigation. This is evidenced not only by
the substance of the statements, but by the exclu sion of any employee names in the
statements. We have previously rejected a similar attempt to require the Tennessen warning
for employee statements about an entity:
We conclude that the circumstances of this investigation
did not require a Tennessen warni ng. At the time the school
district interviewed Gentling, it was not attempting to collect
private or confidential information about her. Instead, it was
attempting to gather factual information about an incident
within the course and scope of her employme nt. As such, the
data may have been government data, but it was not data on an
employee as an individual.

Edina Educ. Ass’n v. Bd. of Educ. of Indep. Sch. Dist. No. 273 (Edina) , 562 N.W.2d 306,
311 (Minn. App. 1997) , review denied (Minn. June 11, 1997) . The statements gathered
through th e interviews did not concern the employees and therefore w ere not “data
concerning the individual.” We need not address whether an entity can rely on any
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individual’s statutory right to a Tennessen warning to avoid incriminating information
provided by the individual about the entity, because it is clear that no Tennessen warning
was required here.
We turn to a more detailed analysis of the citations that we reverse, either in full or
in part, and two of the citations that we affirm but believe warrant explanation.
Citation 10c
The commissioner cited Douglas Place for providing services to Client 8 on
November 13, 2014, November 26, 2014, and March 13, 2015, when records indicate that
Client 8 was discharged from the program on October 6, 2014. Douglas Place requested
reconsideration of Citation 10c, but it explained only the November 13 entry. The
commissioner affirmed Citation 10c because Douglas Place did not explain why Client 8
received services on November 26, 20 14, and March 13, 2015. This defeats Douglas
Place’s contention that “absolutely no evidence in the record” support s the citation. The
commissioner has not identified which rule or statute Douglas Place violated by providing
services to Client 8 after the reported discharge date , but Douglas Place argues that the
citation fails as a matter of fact, not as a matter of law, so we limit our review accordingly.
Citation 11a
Citation 11a states that Douglas Place’s medication -administration records for
Clients 1 and 2 “contained blank spaces with no additional documentation to indicate why
the medication was not administered.” The citation rests on Minnesota Statutes section
245A.04, subdivision 14, which requires license holders to monitor the implementation of
policies and procedures to maintain compliance with statutes and rules. One of those rules,
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Minnesota Rule 9530.6435, subparts 3(B) and 4, bears on the administration and control
of medication. Douglas Place challenged Citation 11a, asserting that not all of Client 1’s
and 2’s medications are administered daily. The commissioner rejected the challenge,
citing documents showing that Clients 1 and 2 were diagnosed with conditions requiring
daily prescriptions.
On appeal, Douglas Place’s argument focuses only on Client 1, but even addressing
the argument as applied to both clients, t he record again defeat s Douglas Place’s factual
argument. It shows that Client 1 was prescribed Effexor and Naltrexone daily, and
Clonidine and Hydroxyzine as needed. Client 2 was prescribed Mirtazapine, prenatal
vitamins, Sertraline, Lisinopril -HCTZ, and Omeprazole —all daily. The record includes
medication charts that track whether or not Clients 1 and 2 received their prescribed
dosages. Douglas Place tracks clients’ medicine ingestion by initialing the chart on those
days when the client took the medicine, and apparently by not initialing those days when
the client did not take the medicine. The record indeed supports the finding that Clients 1
and 2 did not always receive dai ly doses for certain medications that were prescribed for
daily ingestion. We observe that the commissioner does not explain how this violates either
section 245A.04, subdivision 14, or rule 9530.6435, subpart 3 (B). The rule requires that
the policies and procedures include “requirements for recording the client’s use of
medication, including staff signatures with date and time.” Minn. R. 9530.6435, subp.
3(B)(7). It is not clear why the commissioner applies the rule to also require Douglas Place
to complete additional documentation or rationale explaining missed dosages. But Douglas
Place makes only the factual challenge, and that challenge fails.
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Citation 17
The commissioner cited Douglas Place for failing to document whether Staff
Persons 4 and 9 receive d proper training on Douglas Place’s drug and alcohol policy, in
violation of Minnesota Statutes section 245A.04, subdivision 1(c). That subdivision states,
“The license holder must train employees, subcontractors, and volunteers about the
program’s drug and alcohol policy.” Douglas Place submitted signed attendance forms to
prove that Staff Persons 4 and 9 received the proper training. The commissioner
nevertheless affirmed Citation 17, finding that there was no evidence that Staff Person 4
reviewed the policy and finding that Staff Person 9 did not receive traini ng on the policy
after being rehired in April 2013.
Douglas Place contends that Staff Person 4 signed an Intern Orientation Checklist,
which includes review of the employee handbook, and it asserts that the handbook contains
the drug and alcohol policy. The difficulty for Douglas Place on appeal is that we have no
evidentiary basis on which we can validate its assertion. Douglas Place had the burden to
introduce all relevant documents into the record. See Noltimier v. Noltimier, 280 Minn. 28,
29, 157 N.W.2d 530, 531 (1968). The record indicates that Douglas Place believed that
DHS had a copy of the employee handbook, but it offered to provide one at DHS’s request.
The record does not es tablish, however, that Douglas Place ever provided the handbook ,
and it is n ot included in the appellate record. So while we might speculate that Douglas
Place’s drug and alcohol policies are included in its handbook, we cannot reverse the
commissioner’s finding as to Staff Person 4 on mere speculation.
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As to the other staff person, however, t he record includes signed documents
acknowledging that Staff Person 9 reviewed the drug and alcohol policy in 2008 and 2011.
The record suggests that Staff Person 9 was initially hired in 2008 and rehired in 2011, and
then filled out an employment application in December 2013 to be promoted to a
counselor’s position. The commissioner is correct that, despite Staff Person 9 sign ing a
site-specific orientation document t hat included review of “policies and procedures” in
December 2013, the document does not specify that the staff person reviewed the drug and
alcohol policy. But Staff Person 9 received the proper training in 2008 and 2011 , and the
commissioner does not explain why Douglas Place violated any rule by failing to retrain a
staff person promoted to a new role.
We affirm Citation 17 as to Staff Person 4 and reverse it as to Staff Person 9.
Citation 18
The commissioner cited Douglas Place for failing to document whether Staff
Persons 7 and 9 received proper annual training on six required topics, in violation of
Minnesota Statutes section 245A.19, section 245A.65, subdivision 3, and Minnesota Rule
9530.6460, subpart 2(C). The six topics are: (1) vulnerable -adult reporting requirements;
(2) Douglas Place’s program abuse prevention program (PAPP); (3) policies and
procedures on prevention and reporting of client maltreatment; (4) obtaining client releases
of information; (5) reporting requirements for maltreatment of minors and exposure to
controlled substances; and (6) HIV minimum standards. See Minn. Stat. §§ 245A.19,
245A.65, subd. 3; Minn. R. 9530.6460, subp. 2(C). Douglas Place submitted sign-in sheets
to prove that Staff Persons 7 and 9 received the proper training in five of the six areas (all
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but Douglas Place’s PAPP). The commissioner then affirmed Citation 18, finding that Staff
Persons 7 and 9 received annual training in only two of the six areas ( vulnerable adult
reporting requirements and obtaining client releases of information) and that Staff Person
9 had not completed other training areas in 2014.
Douglas Place contends that the sign-in sheets demonstrate that Staff Persons 7 and
9 were traine d on all topics except maltreatment of minors and exposure to controlled
substances, and HIV minimum standards. The sign -in sheets indicate that all but
maltreatment of minors and HIV minimum standards were covered in a training that Staff
Person 7 attende d in December 2014, and that Staff Person 9 attended in January 2015.
The record also shows that Staff Persons 7 and 9 were trained on HIV minimum standards
in December 2013. The record does not show that Staff Person 9 received any of the six
required trainings in 2014. And it does not show that either Staff Person 7 or 9 received
training on HIV minimum standards in 2014. As to Staff Person 7, Citation 18 is reversed
as to all but maltreatment of minors and HIV -minimum-standards training. As to Staff
Person 9, Citation 18 is affirmed in full. (Citation 18b is not subject to our review because
Douglas Place apparently did not request reconsideration on this point.)
Citation 21
The commissioner cited Douglas Place for violating Minnesota R ule 9530.6460,
subpart 3(C), because the personnel file for Staff Person 9 did not document inquiries to
former employers regarding substantiated sexual contact with clients. Douglas Place
submitted sexual -contact inquiries made to Staff Person 9’s former employers. The
commissioner affirmed the citation, finding that Douglas Place failed to send an inquiry to
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the employer at which Staff Person 9 worked as a guardian ad litem in 2009, after Douglas
Place rehired Staff Person 9 in 2011. The commissioner also found th at Douglas Place
failed to send the required sexual-contact inquiries when it rehired Staff Person 9 in 2013.
Rule 9530.6460, subpart 3(C) requires a personnel file to contain specific
information:
For staff members who will be providing psychotherapy
services, employer names and addresses for the past five years
for which the staff member provided psychotherapy services ,
and documentation of an inquiry made to these former
employers regarding substantiated sexual contact with a client
as required by Minnesota Statutes, chapter 604[.]

(Emphasis added.) Douglas Place contends that the commissioner erred by requiring an
inquiry to be sent to Staff Person 9’s 2009 employer, because guardians ad litem do not
provide psychotherapy services. The commissioner does not dispute Douglas Place’s
contention that guardians ad litem do not provide psychotherapy services generally or
argue that Staff Person 9 provided those services as a guardian ad litem specifically. The
position falls outside the rule’s inquiry requirement.
Additionally, as we have already indicated, the record confirms Douglas Place ’s
assertion that it did not rehire Staff Person 9 in December 2013, but rather promoted her to
counselor. The commissioner’s theory that this employee was rehired and not promoted
depends on documents that, read together with the employee’s December 2013 application,
establish plainly that the employee’s December 2013 “start date” was when she started in
her n ew position, not when she started or restarted employment at Douglas Place. Her
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December 2013 application for the counselor position expressly described her “current”
position as social worker and identified Douglas Place as her “current” employer.
In an y event, even if the commissioner were correct in contending that the staff
person was rehired rather than promoted, the commissioner’s failure to establish (or even
argue) that the employee provided psychotherapy services as a guardian ad litem defeats
the citation. The rule did not require Douglas Place to send sexual-contact inquiries to the
guardian-ad-litem employer. And her only other employer within five years was Douglas
Place. Citation 21 is therefore reversed.
Citation 27b(3)
The commissioner cite d Douglas Place because its PAPP did not contain an
evaluation of the program’s staffing patterns, as required by Minnesota Statutes section
245A.65, subdivision 2(a)(3). Douglas Place asked the commissioner to reconsider,
arguing that section 2.0108 of it s PAPP contained an evaluation of staffing patterns. The
commissioner rejected the argument because section 2.0108 “does not include the days of
the week that each staff person works [and] does not include all staff persons.” But the
statute does not specify that staffing patterns must identify each staff member as opposed
to including a daily employee schedule. The statute requires the agency to evaluate “the
program’s staffing patterns.” Minn. Stat. § 245A.65, subd. 2(a)(3). Douglas Place’s PAPP
lists its residential-program staff in shifts and designates which employees usually work
those shifts. It also identifies its outpatient-program staff and hours. The commissioner
erred by adding r equirements to the statute. Douglas Place has a PAPP that explains
staffing patterns for its programs. Citation 27b(3) is therefore reversed.
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Based on our careful review of the arguments and the record, we affirm the
commissioner’s decision upholding Citations 2, 3b, 7a, 7c, 8b, 10b, 10c, 10d, 10e, 11a,
11b, 11e, 11f, 14a, 15, 16, 20, 22, 26, 30, and 31. We reverse Citations 21 and 27b(3). And
we affirm in part and reverse in part Citations 17 and 18.
III
Douglas Place argues that the conditional -license order fails to meet the statutory
standard. It maintains that the order fails because it does not expressly analyze the “nature,
chronicity, and severity” of the citations and their effect “on the health, safety, or rights of
persons” whom Douglas Place serves . Douglas Place relies on the following statutory
language:
When issuing a conditional license, the commissioner shall
consider the nature, chronicity, or severity of the violation of
law or rule and the effect of the violation on the health, safety,
or rights of persons served by the program. The correction
order or conditional license must state:
(1) the conditions that constitute a violation of the law
or rule;
(2) the specific law or rule violated;
(3) the time allowed to correct each violation; and
(4) if a license is made conditional, the length and terms
of the conditional license.

Minn. Stat. § 245A.06, subd. 1(a). We interpret the statute de novo. See In re Staley, 730
N.W.2d 289, 297 (Minn. App. 2007).
The commissioner argues that it is enough that the order states in conclusory
fashion, “The Commissioner has considered the nature, chronicity, and severity of the
licensing violations,” and that the decision is “[b]ased on the number and nature of the
licensing violations.” Merely stating that the commissioner considered those factors
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hampers any review of whet her the commissioner actually considered the factors. But
because we a nticipate that, on remand, the commissioner must weigh the sustained
citations and issue a new order announcing whether to sanction Douglas Place, we do not
review the features or thoroughness of the currently challenged order any further.
IV
Douglas Place argues that a conditional license is too severe a sanction for its
violations. It emphasizes that “[n]one of the violations was related to any patient deaths or
drug diversion,” and it identifies other conditional-license holders that it says committed
“much more egregious violations.” In light of our decision reversing some of the citations
and our remanding to allow the commissioner to decide what, if any, sanction should apply
to the remaining citations, we will not comment on the premature question of whether the
violations are weighty enough as a matter of law to support the sanction.
We remand to the commissioner to determine what, if any, sanction to apply to the
remaining citations.
Affirmed in part, reversed in part, and remanded.