A. A. F., Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0024

A. A. F.,
Relator,

vs.

Minnesota Department of Health,
Respondent.

Filed August 23, 2021
Affirmed
Worke, Judge

Minnesota Department of Health
Background Study No. 2365024

Mark E. Berglund, Berglund & Berglund, Ltd., Anoka, Minnesota (for relator)

Keith Ellison, Attorney General, Megan J. McKenzie, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Worke, Presidi ng Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Relator argues that respondent Minnes ota Department of Health (MDH) acted
arbitrarily, capriciously, and without the suppor t of substantial evidence when it declined
to set aside his disqualificati on from providing services to pe rsons in licensed facilities.
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He also asserts that the stat ute that allows MDH to recons ider disqualification decisions
that it made violates the constitutional guarantee of due process. We affirm.
FACTS
Relator A.A.F. worked as a medical lab technician. In Janu ary 2020, the state
charged A.A.F. with threats of violence. A. A.F. pleaded guilty and received a stay of
adjudication with a three-year probation period.
After A.A.F. pleaded guilty, the Minnesota Department of Human Services (DHS)
conducted a background study on A.A.F. for MDH. As a result of the background study,
DHS informed A.A.F. that he was disqualified from providing services to persons in certain
licensed facilities. See Minn. Stat. § 245C.14, subd. 1 (2020) (requiring the commissioner
to disqualify an individual from any position allowing direct contact with persons receiving
services if the individual is convicted of, or admits to, ce rtain crimes). A.A.F. sought
reconsideration of the disqualification, asserting that he did not pose a risk of harm to those
he served. He indicated that he only plea ded guilty based on his understanding that the
charge would be dismissed if he successfully completed probation, and that his guilty plea
would have no impact on his employment. Shortly after submitting his request for
reconsideration, A.A.F. reta ined an attorney, who submitte d a supplemental letter in
support of the request.
MDH reviewed A.A.F.’s request for reconsideration to determine if he posed a risk
of harm by considering the nine risk-of-har m factors established by statute. MDH found
that each factor weighed against setting aside the disqualification and ultimately concluded
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that A.A.F. had not shown that he did not pose a risk of harm to persons receiving services.
Accordingly, MDH denied the request for reconsideration. This appeal follows.
DECISION
The Department of Human Services Ba ckground Studies Act, Minn. Stat.
§§ 245C.01-.34 (2020), requires DHS to condu ct a background study on individuals
employed by certain facilities or programs who have direct contact with persons served by
the facility or program. Minn. Stat. § 245C.03, subd. 1. If the background study shows an
“admission to” threats of violence, DHS “shall” disqualify the individual from any position
that allows him or her direct contact w ith persons receiving se rvices. Minn. Stat.
§ 245C.14, subd. 1(1); see also Minn. Stat. § 245C.15, subd. 2 (indicating that
threats-of-violence admission requires disqualification).
A disqualification may be set aside upon a finding that “the individual has submitted
sufficient information to demonstrate that the individual does not pose a risk of harm to
any person served” by the facility or program th at the individual wo rks for. Minn. Stat.
§ 245C.22, subd. 4(a). A disqualified individual seeking to set aside a disqualification has
the burden of submitting information that shows that he or she does not pose a risk of harm.
Minn. Stat. § 245C.21, subd. 3(a)(3); see also Minn. Stat. § 245C.22, subd. 4(a). For
facilities licensed by MDH, the commissioner of health decides whether a disqualification
should be set aside. Minn. Stat. § 144.057, subd. 3 (2020).
In determining whether to set aside disqualification on this basis, the commissioner
must consider nine factors:
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(1) the nature, severity, and consequences of the event or
events that led to the disqualification;
(2) whether there is more than one disqualifying event;
(3) the age and vulner ability of the victim at the time of the
event;
(4) the harm suffered by the victim;
(5) vulnerability of persons served by the program;
(6) the similarity between the victim and persons served by the
program;
(7) the time elapsed w ithout a repeat of the same or similar
event;
(8) documentation of successful completion by the individual
studied of training or rehabilitation pertinent to the event; and
(9) any other information relevant to reconsideration.

Minn. Stat. § 245C.22, subd. 4(b). In considering thes e risk-of-harm factors, the
commissioner must give “preeminent weight” to the safety of persons served by the facility
or program. Id., subd. 3.
A decision whether to grant a request for reconsideration is a quasi-judicial decision
not subject to the Minnesota Administrative Procedure Act. Anderson v. Comm’r of
Health, 811 N.W.2d 162, 165 (Minn. App. 2012), review denied (Minn. Apr. 17, 2012).
Our review of such a decision is limited:
[W]e examine the record to re view questions affecting the
jurisdiction of the ag ency, 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.

Id. (quotations omitted); see also Sweet v. Comm’r of Human Servs., 702 N.W.2d 314, 318
(Minn. App. 2005) (indicating that decision to deny a request to set aside disqualification
is subject to substantial-evid ence standard of review), review denied (Minn. Nov. 15,
2005).
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In this case, A.A.F. sought reconsideration of his disqualification, asserting that he
did not pose a risk of harm. MDH made findings on the nine relevant factors and concluded
that A.A.F. had not demonstrated that he did not pose a risk of harm. Thus, MDH decided
not to set aside the disqualification.
A.A.F. argues that we must reverse MDH’s decision for three reasons: (1) because
the decision was not su pported by substantial evidence, and (2) because the decision was
arbitrary and capricious,1 and (3) because the procedure of having MDH make the initial
disqualification determination and also consider any request for reconsideration is contrary
to the constitutional guarantee of due process. A.A.F.’s arguments are substantively
identical, so we address them together.
A.A.F. argues that MDH’s decision to no t set aside his dis qualification was not
supported by substantial evidence—and for that reason, was arbitrary and capricious.
Substantial evidence means “evidence that a reasonable mind might accept as adequate to
support a conclusion, and more than a scintilla, some, or any evidence.” In re Northmet
Project Permit to Mine Application , 959 N.W.2d 731, 749 (M inn. 2021) (quotations

1 A.A.F. also argues that Minnesota Statutes section 245C.22 is fa cially unconstitutional
because it allows MDH to consider a request for reconsideration of a decision that it made,
violating the constitutional guaran tee of due process. The clai m is factually inaccurate.
DHS made the initial disqualifica tion decision. The claim is also inadequately briefed.
A.A.F. cites to no legal authority to support his position on this issue—he merely asserts
that agency employees are unable to independen tly review a request for reconsideration.
Because A.A.F. failed to adequately suppor t his assertion that the reconsideration
procedure is unconstitutional, we conclude that this argument is waived. See Schoepke v.
Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971) (“An assignment
of error based on mere assertion and not su pported by any argume nt or authorities in
appellant’s brief is waived and will not be considered on appeal unless prejudicial error is
obvious on mere inspection.”).
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omitted). A.A.F. challenges M DH’s findings on four risk -of-harm factors: the harm
suffered by the victim, the vuln erability of persons served by the program, the similarity
between the victim and persons served by th e program, and the catchall factor regarding
any other relevant information.
Harm suffered by the victim
Regarding the fourth risk-of-harm factor—the harm suffered by the victim—MDH
found that the victim of A.A.F .’s offense (his wife) was fearful. A.A.F. argues that the
finding is not supported by su bstantial evidence because he indicated in his request for
reconsideration that his wife was still with him and that she recanted her allegations. But
because the intent to terrorize the victim is an element of threats of violence, and because
A.A.F. admitted that the victim called the police for help during the incident, we conclude
that substantial evidence supports MDH’s finding that the victim was fearful. See Minn.
Stat. § 609.713, subd. 1 (2020) (defining threats of violence).
Vulnerability of persons served by the program
Regarding the fifth risk-of-harm factor—the vulnerability of persons served by the
program—MDH found that people whom A.A. F. served were vulnerable because of
cognitive or physical impairments. A.A.F. argue s that there is no evid ence in the record
suggesting that he serves vulnerable persons. MDH asserts that because the programs that
employ A.A.F. are hospitals and clinics, and because hospitals and clinics necessarily serve
vulnerable people, it was reasonable to infe r that A.A.F. served vulnerable persons,
including patients with cognitive and/or physical impairments. We conclude that there was
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substantial evidence to support that A.A.F., through his work in hospitals and clinics,
necessarily serves vulnerable persons.
Similarity between the victim and persons served by the program
Regarding the sixth risk-of-harm factor—t he similarity between the victim and
persons served by the program—MDH made unclear findings. MDH found that there were
“obvious differences” between the victim and the people that A.A.F. served, but also found
that there was a “key similar ity” among them, that the people whom A.A.F. would serve
would depend on him making wise decisions . A.A.F. argues that MDH’s findings are
flawed because there is no evidence that he is charged with the care of any patients because
he simply performs blood draws. MDH argues that it was reasonable to observe that the
victim and A.A.F.’s patients rely on his ability to make sound decisions.
We agree that the only information in the record regarding this factor (the
information that A.A.F. submitted in support of his request for reconsideration) suggests
that A.A.F. has minimal patient contact. We also observe that MDH’s findings on the
similarities between the victim and A.A.F.’s patients are vague. But ultimately, it does not
appear to us that MDH based its decision on this finding or placed significant weight on it.
Moreover, any one of the nine risk-of-har m factors “may be determinative of the
commissioner’s decision.” See Minn. Stat. § 245C.22, subd. 3. Here, MDH found that
each of the eight other factors weighed against setting aside the disqualification. Thus, we
conclude that even if MDH’s findings on th is factor are not supported by substantial
evidence, any error in this finding is immaterial and did not prejudice A.A.F.
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Other relevant information
Finally, regarding the nint h risk-of-harm factor—any other relevant information—
MDH found that A.A.F.’s offense was “serious ” and without the passage of more time to
demonstrate that A.A.F. could avoid making bad choices, MDH was not convinced that
A.A.F. did not pose a risk of harm to vuln erable persons. A.A.F. concedes that the
allegations against him were serious, but he argues that the fact that he received a stay of
adjudication shows that he is “entitled to the benefit of this matter being dismissed when
he successfully completes probation.” MDH argues that his admission to a felony offense
demonstrates that the incident was serious. Although we are mindfu l that the stay of
adjudication might suggest that A.A.F.’s criminal history was limited or that the underlying
incident was not particularly severe compared to other threats-of-violence offenses, we
agree that it is reasonable to infer that A.A.F.’s admission to a felony-level offense
demonstrates the severity of the incident.
Because substantial eviden ce in the record supports MDH’s decision, and because
any erroneous finding is immaterial to the decision, we conclude that A.A.F. has not
demonstrated that a lack of evidentiary support warrants reversing MDH’s decision not to
set aside his disqualification. Consequently, we conclude that A.A. F.’s argument that
MDH’s decision was arbitrary and capricious (b ased solely on the lack of sufficient
evidentiary support) fails for the same reasons.
Affirmed.