Michael McCabe, Appellant,

This opinion will be unpublished and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
A17-0002

Michael McCabe,
Appellant,

vs.

Emily Johnson Piper, Commissioner of Human Services,
Respondent,

Hennepin County Human Services,
Respondent.

Filed September 5, 2017
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CV-15-7422

Jonathan Geffen, Arneson & Geffen, PLLC, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Ali P. Afsharjavan, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Human Services)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services)

Considered and decided by Reilly, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Michael McCabe challenges th e district court order affirming the
determination of respondent commissioner of human services that appellant neglected and
emotionally abused E.M., a vulnerable adult. Appellant asserts that (1) he is not a caregiver
within the meaning of Minn. Stat. § 626.5572 , subd. 4 (2016), (2) he did not emotionally
abuse or neglect E.M., and (3) respondent’s failure to issue a Tennessen warning requires
exclusion of the data collected. We affirm.
FACTS
E.M. is 85 years old and the mother of appellant. She is a vulnerable adult who
suffers from dementia, significant hearing lo ss, dizziness, and problems with balance.
From 2008 to 2013, E.M. lived at Summit Place, an independent-living facility for seniors
who require minimal care and assistance in their daily living activities. Appellant secured
and maintained E.M.’s housing at Summit Place; hired supervised care for E.M.; assisted
E.M. with daily living activities, including laundry, cleaning, and transportation; and often
attended E.M.’s doctor and ph ysical therapy appointments. While residing at Summit
Place, E.M. experienced numerous falls, severa l of which required hospitalization; staff
reported that E.M. became increasingly confus ed and disorientated, which led to an
increased number of falls and caused E.M. to require more assistance than the facility
offered. In May 2012, E.M. underwent a physical therapy evaluation, the results of which
indicated that E.M.’s frequent falls were due to her dementia and impulsivity. As a result,
the physical therapist reported that E.M. required 24-hour supervision.

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On September 12, 2013, appellant visited E.M. at Summit Place and forced E.M.
down to the ground in front of her part-time personal care assistant (PCA) to prove to the
PCA that E.M. was capable of getting up without assistance if she fell. Appellant continued
to push E.M. down wh en he thought that she did not ge t close enough to the floor, even
though E.M. asked him “please don’t make me.” Appellant th en ordered E.M. to get up
on her own in an effort to prove to the PCA that E.M. did not require additional assistance.
Appellant’s actions were against the recomm endation of physical therapist Kimberly
Sheppard, who previously informed appellant that training E.M. to get up from a fall was
“futile” because E.M. was unab le to get up by herself or to remember the techniques
necessary to do so. After appellant left E.M.’s residence, E.M. told her PCA that
appellant’s conduct “made her feel like a dog.”
On October 31, 2013, E.M. was admitted to Methodist Hospital after experiencing
another serious fall while residing at Summ it Place; this was the sixth time E.M. was
hospitalized in 15 months. Th e clinical nurse specialist dete rmined that E.M. could not
continue to safely live at Summit Place and therefore started to work on a commitment
petition. When the nurse met w ith E.M. to discuss the hospita l’s decision to pursue civil
commitment, appellant acted in a manner inte nded to frighten E.M. into checking herself
out of the hospital. The nurse reported:
[Appellant] continues to sit quite close to [E.M.], firing
questions that are paraphrased in a manner that adds to [the
patient’s] anxiety and alarm. He repeats questions and makes
interpretations that are [intended to] provoke the patient and
appear to threaten her wishes and well-being. The following
are examples of [appellant’s] questions and statements: “Do
you want to go home, mother?” “When do you want to go

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home?” “These people want to keep you here for 72 hours, they
do not want you to go home, wh at do you think about that?”
“They want to limit your rights, they want to make decisions
about where you live. What do you think about that?” “As your
‘legal power of attorney,’ I would advise you to leave the
hospital right now.” He repeats the last statement a number of
times. He does not offer his mo ther reassurance and instead
continues to question her despite the patient’s stress and her
statements that she doesn’t understand what is happening.

I directed my final comments to [appellant]. I once again
reviewed that the patient lacks . . . decisional capacity
regarding her discharge needs a nd safety needs. I added that
this has been discussed with [appellant] and his wife in the past
on a number of occasions.

In response, appellant showed the treating nurse a document signed by E.M. and titled
Durable Power of Attorney for Health Care, which appellant claimed authorized him to act
on behalf of E.M., if she lack ed decisional capacity. Hospita l staff refused to recognize
the validity of this document, noting that E.M. lacked decisional capacity on the day that
she signed it.
Following a lengthy investigation, He nnepin County Adu lt Protection notified
appellant of its determination that appella nt committed emotional abuse and caregiver
neglect against E.M., a vulnerable adult. A ppellant requested reconsideration, and the
agency affirmed its decision. Appellant then filed an ap peal, and, after a two-day
evidentiary hearing, a human-services judg e issued an order re commending that the
commissioner affirm He nnepin County’s maltreatment determination.
1 Relying on the

1 The county filed a petition for guardianship and conservatorship on November 7, 2013,
which temporarily stayed the maltreatment proceedings. The co unty later withdrew this
petition. The record presented on appeal indicates that a s econd petition for guardianship
or conservatorship has not yet been filed.

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incidents that occurred in September a nd October 2013, the human-services judge
determined that appellant neglected and emotionally abused E.M. The commissioner
adopted the recommendations of the human-services judge and issued an order upholding
the determinations. Appellant later appealed to the district court, and the district court
affirmed the commissioner’s order.
This appeal follows.
D E C I S I O N
On certiorari appeal from a quasi-judicial agency decision not
subject to the [Minnesota] Administrative Procedure Act, we
examine the record to revi ew questions affecting the
jurisdiction of the [agency], the regularity of its proceedings,
and, as to the merits of the co ntroversy, whether the order or
determination in a particular ca se 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) (quotation
omitted), review denied (Minn. Apr. 17, 2012); see also Staeheli v. City of St. Paul , 732
N.W.2d 298, 304 n.1 (Minn. App. 2007) (noting that the scope of common law review on
certiorari is similar to the scope of review applied in cases that arise under the Minnesota
Administrative Procedure Act).
I. Appellant is a caregiver as the term is defined in Minn. Stat. § 626.5572,
subd. 4.

Appellant first argues that he does not satis fy the definition of a caregiver as the
term is defined in Minn. Stat. § 626.5572, su bd. 4, because he had no legal obligation to
care for E.M. The statute defines caregive r as “an individual or facility who has
responsibility for the care of a vulnerable adult as a result of a family relationship, or who

6
has assumed responsibility for all or a portion of the care of a vulnerable adult voluntarily,
by contract, or by agreement.” Minn. Stat. § 626.5572, subd. 4. Substantial evidence must
support a determination that an indi vidual or facility is a caregiver. In re O’Boyle , 655
N.W.2d 331, 334 (Minn. App. 2002). Substantial evidence is generally defined as: (1) such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
(2) more than a scintilla of evidence; and (3) more than some or any evidence. Cable
Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship, 356 N.W.2d 658, 668 (Minn. 1984).
In this case, the human-services judge specifically found that appellant satisfied the
definition of caregiver because “he was [E.M.’s] only child and he assumed responsibility
for her housing arrangements and arrangements for her care.” Appellant, however, argues
that the district court’s conclusion treats all adult children of vulnerable adults as
caregivers, and that doing so is contrary to public policy. This argument is flawed for two
reasons.
It is a well-established principle of law that “[w]hen legislative intent is clear from
the statute’s plain and unambiguous language, [this court] interpret[s] the statute according
to its plain meaning without resorting to othe r principles of statutory interpretation.”
Vermillion State Bank v. State, Dep’t of Transp., 895 N.W.2d 269, 272 (Minn. App. 2017)
(quotation omitted). When the plain meaning of a statute is clear and unambiguous, “the
letter of the law shall not be disregarded unde r the pretext of pursuing the spirit.” Minn.
Stat. § 645.16 (2016). The statute at issue here specifically limits the definition of caregiver
to an individual “who has responsibility for th e care of a vulnerable adult as a result of a
family relationship” or “who has assumed responsibility for all or a portion of the care of

7
a vulnerable adult voluntarily, by contract, or by agreement.” Minn. Stat. § 626.5572, subd.
4.
Appellant voluntarily assumed responsibility of at least “a portion of the care of
[E.M.,] a vulnerable adult [,] voluntarily, by contract, or by agreement.” Id. Appellant
voluntarily (1) assumed responsibility for E.M.’s daily activities such as cleaning, laundry,
and shopping; (2) attended doctor and physical therapy appointments with E.M.; (3) helped
E.M. oppose her eviction order; (4) solicited, hired, and assumed responsibility for her
PCA; (5) oversaw E.M.’s finances; (6) attempte d to act as her “legal power of attorney”;
and (7) participated in discharge planning at Methodist Hospital on at least one occasion.
Substantial evidence supports the determination that appellant was a caregiver.2

II. The maltreatment determinations are supported by substantial evidence
and are not erroneous.

Appellant next argues that (1) his statemen ts to E.M. do not satisfy the statutory
definition of maltreatment by neglect, (2) substantial evidence does not support the
determination that appellant committed care giver neglect by resisting recommendations
for placement and increased serv ices, (3) the determination that appellant emotionally
abused E.M. when he forced her to lower herself to the floor to demonstrate that she could
get up by herself is unsupport ed by substantial evidence, a nd (4) the determ ination that

2 Appellant also suggests that E.M. does not satisfy the statutory definition of a vulnerable
adult. The record, however, clearly establishes that E.M. suffers from physical and mental
infirmities that impair her ability to adequately provide for her own care without services
and protect herself fr om maltreatment. See Minn. Stat. § 626.5572, subd. 21 (2016)
(defining vulnerable adult). Accordingly, the commissioner properly determined that E.M.
is a vulnerable adult.

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appellant emotionally abused E.M. during his interaction with the clinical nurse specialist
is unsupported by substantial evidence and constitutes an error of law.
A. Caregiver Neglect
i. Appellant’s interaction with E.M. while at Methodist Hospital satisfies
the statutory definition of maltreatment by neglect.

Appellant first argues that his di scussions with E.M. “during a clandestine
commitment interview do not meet [the] statutory definition of maltreatment by neglect.”
The statements are as follows:
“Do you want to go home, mother?” “When do you want to go
home?” “These people want to keep you here for 72 hours, they
do not want you to go home, wh at do you think about that?”
“They want to limit your rights, they want to make decisions
about where you live. What do you think about that?” “As your
‘legal power of attorney’ I would advise you to leave the
hospital right now.”

In essence, appellant contends that his statements are “at most” recommendations, and “[a]
recommendation is not neglect.” But appe llant ignores the reasoning underlying the
commissioner’s maltreatment determination: “[A]ppellant’s actions constitute neglect
because he was actively thwarting the provisi on of health care and supervision that was
reasonable and necessary to obtain or maintain [E.M.’s] physical or mental health or safety
considering the physical or mental capacity or dysfunction of [E.M.]”
Caregiver neglect of a vulnerable adult is defined as:

(a) The failure or omission by a caregiver to supply a
vulnerable adult with care or services, including but not limited
to, food, clothing, shelter, health care, or supervision which is:
(1) reasonable and necessary to obtain or maintain the
vulnerable adult’s physical or mental health or safety,

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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.
(b) The absence or likelihood of absence of care or services,
including but not limited to, food, clothing, shelter, health care,
or supervision necessary to main tain the physical or mental
health of the vulnerable adult which a reasonable person would
deem essential to ob tain or maintain th e vulnerable adult’s
health, safety, or comfort cons idering the physical or mental
capacity or dysfunction of the vulnerable adult.

Minn. Stat. § 626.5572, subd. 17 (2016).

In this case, the commissioner reasoned that appellant neglected E.M. when he
encouraged her to leave the hospital and refuse d to cooperate with plans to move E.M. to
a nursing facility, despite knowing that E.M. was mentally and phys ically incapable of
residing in an independent-living facility. But this determination was not based solely on
appellant’s last encounter with hospital staff. As the district court noted, appellant’s actions
established “a cumulative effect and pattern of continually refusing to follow the hospital
staff’s recommendations[;]” appellant “failed as a caregiver to supply [E.M.] with the care
services of a nursing home or assisted livi ng facility,” even though these services “were
reasonable and necessary to obtain or mainta in [E.M.’s] physical or mental health.”
Medical personnel at Methodist Hospital and staff at Summit Place repeatedly informed
appellant that E.M. required substantially more care than she was receiving; but appellant
continually refused to provide E.M. with the care or services necessary to maintain her
physical and mental health and safety.

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ii. Substantial evidence supports th e determination that appellant
committed caregiver neglect by resisting recommendations for placement
and increased services for E.M.

Appellant also argues that the caregi ver neglect finding is not supported by
substantial evidence because there is evidence in the record that (1) E.M. did not wish to
reside in assisted living; (2) appellant was not authorized to move E.M. to assisted living;
(3) E.M.’s treating neurologist reported that E.M. was able to independently decide her
required level of care; and (4) E.M.’s treating physicians opined that E.M. did not require
additional assistance. We disagree.
Substantial evidence supports the determination that appellant failed to provide the
care and supervision that was reasonable and necessary to maintain E.M.’s condition given
her mental and physical condition. From 2008 to 2013, E.M.’s physical and mental
condition steadily declined, an d the care that she received while living at Summit Place
became inadequate. E.M. was repeatedly hospitalized in 2013 due to a worsening pattern
of falls and mental illness. After each of the hospitalizations, medical staff informed
appellant that E.M. required additional care and supervision, and the medical records
support the repeated recommendations. The multi-disciplinary team at Methodist Hospital
repeatedly informed appellant that E.M. need ed to move to an a ssisted-living facility.
Summit Place staff also noted the need for increased services, citing E.M.’s repeated falls,
confusion, and concerns regarding her ability to independently complete routine tasks.
Moreover, we note that the commissione r—as the agency w ith the medical and
scientific expertise necessary to determine matters involving heal th care—is entitled to
determine the level of care necessary to ma intain the physical and mental health of

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vulnerable adults. See in re Excess Surplus Status of Blue Cross and Blue Shield of Minn.,
624 N.W.2d 264, 278 (Minn. 2001) (“[A]dmi nistrative agencies en joy a presumption of
correctness, and deference should be shown by courts to agencies ’ expertise and their
special knowledge in the field of their tec hnical training, educa tion, and expertise.”
(quotation omitted)). Given that this court defers to the commissioner’s expertise and
special knowledge in these matters, and that th ere is substantial evidence in the record to
support the neglect determination, appellant’s argument with regard to the finding of
caregiver neglect is unpersuasive.
Appellant also argues that this court mu st apply the “treating physician rule”
articulated in the Code of Federal Regula tions and applied when evaluating opinion
evidence in matters involving federal old-age, survivor, and disability insurance benefits,
which he argues would require this court to give greater weight to the opinions of E.M.’s
treating physicians. See 20 C.F.R. § 404.1527 (c)(1), (2) (“Generally, [courts] give more
weight to medical opinions from [an individual’s] treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed, longitudinal picture
of [the] medical impairment.”). But appellant has cited no authority requiring this court to
apply this rule in maltreatment matters. We therefore decline to do so.
B. Emotional Abuse
i. Substantial evidence supports the commissioner’s determination that
ordering E.M. to get on the floor and pull herself up could reasonably be
expected to cause E.M. emotional distress.

Appellant next challenges the determination that he emotionally abused E.M. when
he ordered her to get on the floor and then pull herself up without assistance in front of her

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PCA, arguing that his actions fall within th e therapeutic-conduct ex ception. Emotional
abuse is defined as
[c]onduct which is not an acciden t or therapeutic conduct as
defined in the section, which produces or could reasonably be
expected to produce physical pain or injury or emotional
distress including, but not limited to, . . . the treatment of a
vulnerable adult which would be considered by a reasonable
person to be disparaging, der ogatory, humiliating, harassing,
or threatening.

Minn. Stat. § 626.5572, subd. 2(b)(2) (2016). Therapeutic conduct includes health care or
other personal care services performed “in good faith in the interests of the vulnerable adult
by . . . a caregiver.” Id., subd. 20 (2016).
Relying on the notes of one of E.M.’s physical therapists, appellant argues that his
actions did not rise “to the level of maltreatment by emotional abuse” because E.M. “would
find herself on the floor sometimes and [would] need[] to learn how to get up” by herself.
The physical therapist notes dated January 27, 2014, indicat e that Dr. Neumann, PTA,
“[i]nstructed patient in prope r technique and sequencing fo r getting to hands and knees
position, crawling to nearest piece of furniture, getting to one knee, and pulling self up into
chair.” But shortly before September 12, 2013—the date on which appellant forced E.M.
to the ground—Dr. Shep pard, a physical therapist at Fairview Home Care, expressed
concerns that E.M. “was not physically able to get up and would not remember the
techniques she needed to use to get up.” Dr. Sheppard explained that “she thought training
[E.M.] to get up from a fall was futile . . . due to [E.M.’s] physical weakness and memory
issues.”

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Appellant’s argument fails for two reasons. First, Dr. Sheppard informed appellant
that E.M. was unable to practice this skill safely and recommended that appellant not
continue this practice. Second, even if th is activity could be construed as therapeutic
conduct, the way in which appe llant instructed E.M. to pr actice this skill would be
considered humiliating, harassing, or threatening to a reasonable person. Appellant asked
E.M. to show her PCA how sh e would get up from the floor on her own if she fell, and
E.M. responded “please don’t make me.” When E.M. refused to do so, appellant demanded
that E.M. get on the ground and pushed E.M. further down when E.M. did not get close
enough to the floor. E.M. late r told her PCA that she did no t want to do the activity and
that it made her feel “like a dog.” Substant ial evidence supports th e determination that
appellant’s conduct caused E.M. emotional distress.
ii. When viewed as a whole, appellant’s conduct, including his statements to
E.M. at Methodist Hospital, constitutes emotional abuse.

Appellant next argues that his statements to E.M. at Meth odist Hospital cannot
constitute emotional abuse because (1) his stat ements were true and necessary to prevent
hospital staff from committing E.M. against her will, and (2) his actions do not amount to
“repeated or malicious” oral or gestured language.
Emotional abuse may also be the result of conduct that is not an accident or
therapeutic, which could reasonably be expected to produce emotional distress, including,
but not limited to, the following actions: “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 reas onable person to be dispar aging, derogatory, humiliating,

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harassing, or threatening.” Minn. Stat. § 626.5572, subd. 2(b)(2). In this case, there is no
finding that appellant’s statements were ma de with malicious intent. Instead, the
commissioner determined that the repeated statements were harassing, and substantial
evidence supports this determination.
At oral argument, appellant argued that his statements to E.M. at Methodist Hospital
do not constitute “repeated” oral language nece ssary to support a finding of emotional
abuse. We disagree. Appellant continually questioned E.M. in a manner that a reasonable
person would consider harassing. Appellant did not offer reassurance or clarification when
E.M. repeatedly expressed anxiety and confusion, and appellant communicated with E.M.
in a manner that was intended to provoke E.M. and appeared to threaten her well-being.
Hospital staff was forced to end the meeti ng and call security due to the abusive and
harassing nature of appellant’s statements, and security was “on alert” due to appellant’s
“temper and anger.” His repeated statements to E.M. are sufficient to support a finding of
emotional abuse, even though appellant made these statements during a single event. We
therefore conclude that the term “repeated” does not require multiple incidents of harassing
or derogatory language. Continual or re curring harassing, derogatory, disparaging,
humiliating, or threatening language is sufficient to support a finding of emotional abuse.
Even if appellant’s repeated statements alone were insuffici ent to satisfy the
statutory definition of emotiona l abuse, we conclude that the manner in which appellant
treated E.M.—demonstrated by his anger, raised voice, and intimidating conduct—
qualifies as conduct a reasonable pe rson would consid er harassing. See Minn. Stat.
§ 626.5572, subd. 2(b)(2) (“Conduct . . . which produces or could reasonably be expected

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to produce . . . emotional distress includ[es] . . . 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 reas onable person to be dispar aging, derogatory, humiliating,
harassing or threatening.” (emphasis added)).
III. The treating physician’s failure to provide a Tennessen warning was
harmless error.

Appellant next argues that he wa s entitled to a Tennessen warning
3 prior to his
interview with the Hennepin County Human Se rvices investigator and that failure to
exclude all evidence obtained from the interview was an error of law. It is undisputed that
the investigator was required to provide a Tennessen warning and failed to do so. A
Tennessen warning requires that:
An individual asked to supply private or confidential data
concerning the individual shall be informed of: (a) the purpose
and intended use of the requested data within the collecting
government entity; (b) whether the individual may refuse or is
legally required to supply the requested data; (c) any known
consequence arising from supply ing or refusing to supply
private or confidential data; and (d) the identity of other
persons or entities authorized by state or federal law to receive
the data.

Minn. Stat. § 13.04, subd. 2 (2016). Rely ing on Minn. Stat. § 13.05, subd. 4 (2016),
appellant argues that failure to provide a Tennessen warning results in the “absolute
prohibition” of the agency’s use of the info rmation “for any purpose.” With certain

3 The Minnesota Government Data Practice Act, codified in Minn. Stat. § 13.04, subd. 2
(2016), requires that notice be given to all private individuals asked to provide confidential
data to government agencies. The warning requires government officials to inform private
citizens of their rights and responsibilities with respect to providing the requested
information and is commonly referred to as a Tennessen warning. Id.

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exceptions, subdivision 4 limits the collection and use of data gathered after a proper
Tennessen warning is provided: “Private or confidential data on an individual shall not be
collected, stored, used or disseminated by government entities for any purposes other than
those stated to the individual at the time of collection.” Minn. Stat. § 13.05, subd. 4. But
subdivision 4 of section 13.05 does not prohibit the use of information collected without a
Tennessen warning. See In re Robb, 622 N.W.2d 564, 575 (Minn. App. 2001) (noting that
the exclusionary rule is not the proper remedy for violations of section 13.04, subdivision
2, review denied (Minn. Apr. 17, 2001). The civil remedies available for violations of any
provision of chapter 13 are set forth in Minn. Stat. § 13.08 (2016).
Because the exclusionary rule does not apply to violations of section 13.04,
subdivision 2, the investigat or’s failure to give a Tenne ssen warning does not require
reversal of the commissioner’s decision.
IV. Appellant failed to properly raise the issues addressed in his reply brief.

Appellant also argues that (1) the co mmissioner improperly relied on hearsay
evidence, and (2) the district court erred by not accepting new evidence, which he alleges
demonstrates that the Hennepin County Human Services investigator falsely testified at the
hearing before the human-services judge. But appellant raised these arguments for the first
time on appeal in his reply brief, and these arguments are outside the scope of appellant’s
principal brief. See Minn. R. Civ. App. P. 128.02, subd. 3 (“The appellant may file a brief
in reply to the brief of the respondent. The reply brief mu st be confined to new matter
raised in the brief of the respondent.”); see also McIntire v. State , 458 N.W.2d 714, 717
n.2 (Minn. App. 1990) (declining to address issues first argued in reply brief that are outside

17
the scope of the principal brief), review denied (Minn. Sept. 28, 1 990). We therefore
decline to address these arguments.
Affirmed.