Cosmos E. Eneh, Relator,

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0787

Cosmos E. Eneh,
Relator,

vs.

Minnesota Department of Health,
Respondent.

Filed January 16, 2018
Affirmed
Stauber, Judge*

Minnesota Department of Health

Bobby Onyemeh Sea, Sea Law Office, PLC, St. Paul, Minnesota (for relator)

Lori Swanson, Attorney General, Lindsay K. Strauss, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Schellhas, Judge; and
Stauber, Judge.
S Y L L A B U S
The Minnesota Department of Health is not required to remove a finding of physical
abuse from the nursing-assistant registry after the nursing assistant’s disqualification
period under the Minnesota Department of Human Services Background Studies Act
(Background Studies Act), Minn. Stat. §§ 245C.01-.34 (2016 & Supp. 2017), has ended.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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O P I N I O N
STAUBER, Judge
In this certiorari appeal, relator Cosmos E. Eneh challenges a decision by respondent
Minnesota Department of Health denying his request to remove a finding of maltreatment
from the state’s nursing-assistant registry. He argues that respondent acted arbitrarily and
capriciously and misapplied federal law. Because respondent correctly applied federal law,
which does not permit a finding of abuse to be removed from a state’s nursing-assistant
registry, we affirm.
FACTS
In April 2008, relator was employed as a nursing assistant at a St. Paul nursing home
certified in the Medicare and Medicaid programs. On April 28, 2008, a vulnerable adult
identified relator as the person who struck him in the eye, causing bruising and swelling .
Respondent completed an investigation into the alleged assault and found, by a
preponderance of the evidence, that relator committed substantiated serious maltreatment
of a vulnerable adult by physically abusing the nursing -home resident . Following the
investigation, the Minnesota Department of Human Services (DHS) informed relator that
the finding of substantiated serious maltreatment disqualified him from employment in any
position that allows direct contact with persons receiving services from facilities licensed
by DHS and respondent, among others.1

1 An individual is disqualified from direct-contact services for a period of seven years if
the individual is found to have committed substantiated serious maltreatment of a
vulnerable adult. Minn. Stat. § 245C.15, subd. 4(b)(2).

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Relator requested that respondent reconsider the maltreatment determination and
disqualification. Respondent denied relator’s request to set aside the disqualification ,
indicating that relator posed a risk of harm to vulnerable adults.
An appeal hearing was held before a human-services judge (HSJ) under Minn. Stat.
§ 256.045, subd. 3(a)(10) (Supp. 2017), on the issues of whether relator physically abused
a vulnerable adult, whether DHS correctly disqualified relator on that basis, and whether
respondent correctly denied relator’s request to set aside his disqualification . The HSJ
concluded that (1) relator committed substantiated serious malt reatment of a vulnerable
adult by physically abusing the nursing -home resident ; (2) relator was properly
disqualified from direct-contact services under Minn. Stat. §§ 245C.14, subd. 1(a)(3), .15,
subd. 4(b)(2) ; and (3) the disqualification should not be s et aside under Minn. Stat.
§ 245C.22, subd. 4, because relator failed to show that he did not pose a risk of harm to
residents of a nursing home.
In August 2009, the commissioner of health adopted the HSJ’s findings of fact and
conclusions of law and ord ered that a summary of the findings be entered into relator’s
record in the nursing-assistant registry maintained under 42 U.S.C. §§ 1395i-3(g)(1)(C),
1396r(g)(1)(C) (2012). The following summary was entered into relator’s record on the
nursing-assistant registry:
On April 28, 2008, Cosmos Eneh , while working as a
Nursing Assistant at Bethel Care Center in St. Paul, physically
abused a vulnerable adult. Another staff member saw the
[vulnerable adult] lying in bed with a swollen, bruised left eye
after Mr. Eneh had provided cares. The [vulnerabl e adult]
identified Mr. Eneh by description and name as the person who
had hit him in the eye.

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On October 7, 2016, relator requested that his disqualification be set aside. Relator
additionally requested “that the [n]ursing [a]ssistant registry be notifi ed that [relator] is
now permitted to work and have direct contact with persons receiving services.”
Respondent notified relator that he was no longer subject to the seven-year disqualification
period under Minn. Stat. § 245C.15, subd. 4(b)(2). Responden t further explained that
federal regulations do not permit respondent to remove the finding of maltreatment from
the nursing-assistant registry because the maltreatment involved physical abuse of a
vulnerable adult, as opposed to a single incident of negle ct. Respondent explained that,
under federal regulations, nursing facilities are prohibited from employing relator because
of the finding of maltreatment on the nursing-assistant registry.
Relator appeals respondent’s refusal to remove the maltreatment f inding from the
nursing-assistant registry by writ of certiorari.
ISSUES
Did respondent misapply the law or act arbitrarily or capriciously when it refused
to remove the finding of physical abuse from the nursing-assistant registry?
ANALYSIS
I.
We first consider our authority to review the agency’s decision in this matter. The
Minnesota Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001-.69 (2016) ,
permits judicial review of an agency’s final decision in a “contested case.” Minn. Stat.
§ 14.63. A “contested case” is defined as “a proceeding before an agency in which the

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legal rights, duties, or privileges of specific parties are required by law or constitutional
right to be determined after an agency hearing .” Minn. Stat. § 14.02, subd. 3. In such
cases, MAPA dictates the procedures for, and scope of , judicial review . Minn. Stat.
§§ 14.63-.69.
But h ere, respondent is not required by statutory or appellate rules to conduct a
contested-case proceeding when an individual requests a finding of physical abuse to be
removed from the state’s nursing-assistant registry, and no such contested-case proceeding
was held in this case. See Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444 (Minn.
App. 1996) (indicating that MAPA did not apply to a request f or reconsideration of a
decision by DHS because a contested -case proceeding was not required by statute).
Therefore, the procedures for judicial review under MAPA do not apply.
However, we may review an agency’s decision by writ of certiorari when there is
no statute or appellate rule that otherwise permits judicial review , provided that the
decision being appealed is quasi-judicial or judicial in nature. Dietz v. Dodge County, 487
N.W.2d 237, 239 (Minn. 1992); In re Occupational License of Haymes, 444 N.W.2d 257,
258-59 (Minn. 1989). A quasi -judicial decision occurs when an agency conducts an
investigation into a disputed claim and weighs evidence, applies that evidence to a
prescribed standard, and reaches a binding decision on the matter. Minn. Ctr. for Envtl.
Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999) . Respondent undertook
a quasi-judicial function when it considered relator’s request to remove the maltreatment
finding and the facts of his case, applied those facts to a prescribed standard, and issued a
final decision . We therefore review respondent’s decision for issues “affecting the

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jurisdiction of [respondent], the regularity of its proceedings, and . . . whether the order or
determination . . . was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous
theory of law, or without any evidence to support it.” Dietz, 487 N.W.2d at 239 (quotation
omitted).
II.
Relator argues that respondent acted arbitrarily and capriciously, and misapplied
federal law , when it refused to remove the finding of maltreatment from the nursing-
assistant registry. He argues that respondent should have applied provisions of the Social
Security Act, 42 U.S.C. §§ 301-1397mm (2012 & Supp. 2015), to r emove the finding of
maltreatment from the nursing-assistant registry. He argues that respondent’s failure to
apply sections 1395i-3(g)(1)(D)(i) and 1396r(g)(1)(D)(i) of the act to remove the find ing
of maltreatment has created a permanent disqualification from employment in his chosen
field and deprived him of his due-process and equal-protection rights.
As an initial matter, relator fails to distinguish between a disqualification under
Minnesota law from employment in certain positions, and what he refers to as respondent’s
imposition of a “permanent disqualification” because of the finding of maltreatment on the
nursing-assistant registry.
A. Disqualification under the Background Studies Act
Under Minnesota’s Background Studies Act , a n employee or applicant may be
disqualified from positions that involve direct contact with persons served by certain
facilities or agencies. Minn. Stat. § 245C.03; see also Minn. Stat. § 245C.02, subds. 6, 14
(incorporating Minn. Stat. § 245A.02, subds. 2, 4 (2016), to define “person” as an

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individual under the age of 18 ; an adult with mental illness, developmental or physical
disability, or functional impairment; or an adult who is chemically dependent or an abuser
of chemicals). Nursing-homes, boarding-care homes, and hospitals licensed by respondent
are subject to the Background Studies Act. Minn. Stat. § 144.057, subd. 1(1) (2016).
Under the Background Studies Act, an employee may be disqualified for seven
years from employment at a facility allowing direct contact with persons served by the
facility if the employee is found to have committed “substantiated serious or recurring
maltreatment of a . . . vulnerable adult under [Minn. Stat. § 626.557 (2016)].” Minn. Stat.
§§ 245C.14, .15 , subd. 4(b)(2) ; see Minn. Stat. § 626.557 (providing procedures for
reporting and investigating allegations of maltreatment) . For the purposes of section
626.557, maltreatment includes abuse. Minn. Stat. § 626.5572, subds. 1, 15 (2016). Abuse
is defined as conduct, such as hitting, which is not accidental and which produces physical
pain or injury. Id., subd. 2(b)(1) (2016). The maltreatment is substantiated if it is proved
by a preponderance of the evidence. Id., subd. 19 (2016). Under the Background Studies
Act, the maltreatment is serious if injury, such as bruises, resulted from the abuse. Minn.
Stat. § 245C.02, subd. 18(a), (c). Under these standards, relator was disqualified for seven
years from employment at nursing homes and ot her facilities subject to the Background
Studies Act because he was found to have purposefully struck a vulnerable adult, causing
bruising.
Relator argues that respondent has instituted a new permanent disqualification
against him after the seven -year disqualification period ended. The Background Studies
Act includes a provision that requires permanent disqualification for employees or

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applicants who have committed certain crimes. See Minn. Stat. § 245C.15, subd. 1 (listing
offenses that require permanent disqualification). But relator was not permanently
disqualified under that provision. Rather, under the Background Studies Act , relator was
disqualified from positions allowing direct-contact services for seven years, a period which
has now ended.
B. Disqualification under the Social Security Act and federal regulations
The Social Security Act, in regulating nursing facilities in the Medicaid program
and skilled -nursing facilities in the Medicare program, requires states to “establish and
maintain a registr y of all individuals who have satisfactorily completed a nurse aide
training and competency evaluation program.” 42 U.S.C. §§ 1395i-3(e)(2)(A),
1396r(e)(2)(A); 42 C.F.R. § 483.1 (2016); Reform of Requirements for Long -Term Care
Facilities (LTCF), 81 Fed. Reg. 68,688, 68,848 (Oct. 4, 2016) (to be codified at 42 C.F.R.
§ 483.1). Minnesota’s commissioner of heath, in consultation with the commissioner of
human services, is obligated to implement federal requirements concerning the registry for
nursing assistants. Minn. Stat. § 144A.61, subd. 1 (2016).
Under 42 U.S.C. §§ 1395i-3(g)(1)(C), 1396r(g)(1)(C), “[i]f the State finds that a
nurse aide has neglected or abused a resident or misappropriated resident property in a
facility, the State shall notify the nurse aide and the registry of such finding.” The registry
must then include “specific documented findings by a State . . . of resident neglect or abuse
or misappropriation of resident property involving an individual listed in the registry.” 42
U.S.C. §§ 1395i-3(e)(2)(B), 1396r(e)(2)(B); see 42 C.F.R. §§ 483.156(a), (c) (requiring

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findings of abuse to be included on the registry), 488.335(f)-(g) (2016) (requiring the state
to report to the registry information about the finding of abuse or neglect).
Federal regulations promulgated by the M. S. Department of Health and Human
Services provide further requirements for skilled -nursing facilities and nursing facilities
participating in Medicare and Medicaid. 42 C.F.R. § 483.1; LTCF, 81 Fed. Reg. at 68,848.
The regulations require that a finding of “abuse, neglect, or misappropriation of
property . . . must remain in the registry permanently, unless the finding was made in error,
the individual was found not guilty in a court of law, or the State is notifi ed of the
individual’s death. 42 C.F.R. § 483.156(c)(1)(iv)(D) (2016). The regulations further
provide that a facility must not “employ or o therwise engage individuals who . . .[h]ave
had a finding entered into the State nurse aid e registry concerning ab use, neglect,
exploitation, mistreatment of residents or misappropriation of their property.” LTCF, 81
Fed. Reg. 68,688, 68,855 (Oct. 4, 2016) (to be codified at 42 C.F.R. § 483.12(a)(3)(ii)).2
Under the regulations, abuse is defined as “the willful infl iction of injury, unreasonable
confinement, intimidation, or punishment with resulting physical harm, pain or mental
anguish.” 42 C.F.R. § 488.301 (2016); LTCF, 81 Fed. Reg. 68,688, 68,848 (to be codified
at 42 C.F.R. § 483.5).

2 The subject of this regulation was formerly in the text of 42 C.F.R. § 483.13 (2016), which
required long-term care facilities to not employ individuals who have had a finding of
abuse entered i nto a nursing-assistant registry. Section 483.13 was removed from the
regulations and section 483.12 was amended to include a similar prohibition on
employment of an individual with a finding of abuse on a nursing-assistant registry. LTCF,
81 Fed. Reg. at 68,855.

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The Social Security Act provides a limited opportunity for a nurse aide to have his
or her name removed from a state’s nursing-assistant registry. 42 U.S.C. §§ 1395i-
3(g)(1)(D)(i), 1396r(g)(1)(D)(i). In cases “of a finding of neglect” on the state’s registry,
the State shall es tablish a procedure to permit a nurse aide to
petition the State to have his or her name removed from the
registry upon a determination by the State that—
(I) the employment and personal history of the nurse aide
does not reflect a pattern of abusive behavi or or neglect;
and
(II) the neglect involved in the original finding was a
singular occurrence.

Id.
Relator argues that respondent should have applied these provisions to his case and
removed his finding of maltreatment from the registry because he has only had one finding
of maltreatment and because his history does not reflect a pattern of abusive behavior. But
relator ignores the exact language of the provision : it is only available “ [i]n the case of a
finding of neglect.” Id. Relator’s maltreatment finding on the nursing-assistant registry is
not a finding of neglect as defined under Minnesota law, see Minn. Stat. § 626.5572, subd.
17 (2016) (defining neglect as the failure to supply care or services to a vulnerable adult),
or the federal regulations, see 42 C.F.R. § 488.301; LTCF, 81 Fed. Reg. at 68,848 (defining
neglect, in part, as a failure to provide services or goods necessary to avoid physical harm).
Rather, the finding on the nursing-assistant registry is one of physical abuse which resulted
in injury. Neither the Social Security Act, nor the federal regulations promulgated by the
Department of Health and Human Services, permit removal of a finding of physical abuse.
Appellant seeks a remedy that is not permitted under federal law. The finding of physical

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abuse must remain on the nursing-assistant registry. Respondent did not misapply the law,
or act arbitrarily or capriciously, whe n it informed relator that it could not remove the
finding of maltreatment from the state’s nursing-assistant registry.
III.
Relator additionally argues that respondent violated his rights to due process of law
and equal protection. He argues that respon dent violated his due -process rights when it
denied him the opportunity to petition for removal of the finding of maltreatment under
sections 1395i-3(g)(1)(D)(i) and 1396r(g)(1)(D)(i). He additionally argues that application
of the federal regulations to permanently disqualify him from certain employment positions
has created a class of persons who are treated differently from others who are similarly
situated. We have reviewed relator’s constitutional arguments thoroughly and find them
unavailing.
D E C I S I O N
Respondent did not misapply the law or act arbitrarily or capriciously when it
refused to remove a finding of physical abuse of a vulnerable adult from the nursing-
assistant registry where federal regulations require findings of abuse to remain on a state’s
nursing-assistant registry “permanently.”
Affirmed.