In the Matter of the Assisted Living Contract Termination of D.W., Petitioner, by Graceful Lodge Home Care, Respondent.

This opinion is nonprecedential except as provided by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
A23-0786

In the Matter of the Assisted Living Contract Termination of D.W., Petitioner,
by Graceful Lodge Home Care, Respondent.

Filed February 12, 2024
Affirmed
Smith, Tracy M., Judge

Minnesota Department of Health
File No. 22-0900-39073

D.W., St. Paul, Minnesota (pro se relator)

Matthew W. Bergeron, Katherine A. Cochran, Larkin Hoffman Daly & Lindgren Ltd.,
Minneapolis, Minnesota (for respondent Graceful Lodge Home Care)

Keith Ellison, Attorney General, Kaitrin C. Vohs, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Health)

Considered and decided by Wheelock, Presiding Judge; Smith, Tracy M., Judge;
and Gaïtas, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this certiorari appeal, relator D.W. challenges a final order affirming the
termination of his assisted-living contract by respondent Graceful Lodge Home Care. We
affirm.
FACTS
Graceful Lodge Home Care (Graceful Lodge or the facility) operates assisted-living
facilities pursuant to licenses issued by respondent Minnesota Department of Health
2
(MDH). In July 2022, Graceful Lodge entered into a one-year contract with D.W. to
provide him housing and assisted-living services at one of its facilities.
A few months after D.W. moved into the facility, Graceful Lodge received a
grievance from another resident alleging that D.W. “continuously accuses” him of using
and selling drugs in the facility and of hiding a gun in his room. The resident also alleged
that D.W. contacted the resident’s parole officer. The resident described how the
accusations affected his mental and physical health. Facility staff searched the resident’s
room but did not find any drugs or a gun.
Graceful Lodge scheduled a pretermination meeting1 based on D.W.’s behavior and
sent D.W. a notice of the meeting. In November 2022, Graceful Lodge participated in the
meeting with D.W., his case manager, and a representative of the Minnesota Office of
Ombudsman for Long-Term Care. A week after the meeting, Graceful Lodge notified D.W.
that it intended to terminate his assisted-living contract.
Graceful Lodge then received a grievance from a different resident at the facility
alleging that D.W. was “always in [his] fac[e]” and insulting him. The resident stated that
he was stressed due to D.W.’s “daily” harassment. Graceful Lodge also documented
several incidents between D.W. and facility staff, including an incident in which D.W.
allegedly punched a staff member.

1 Before an assisted-living facility terminates an assisted-living contract, the facility must
schedule and participate in a pretermination meeting with the resident and the resident’s
representatives to ensure that termination is necessary. Minn. Stat. § 144G.52, subd. 2(a)
(2022).
3
In February 2023, MDH concluded an investigation of an allegation of maltreatment
and an evaluation of compliance with licensing standards at Graceful Lodge. MDH had
received allegations that Graceful Lodge billed for services not provided and knowingly
permitted drug use in the facility. MDH concluded that the allegations were not
substantiated.
About two weeks after MDH concluded its investigation, Graceful Lodge issued a
notice of expedited termination of D.W.’s assisted-living contract. D.W. appealed to MDH.
MDH issued a notice of and order for hearing before the Minnesota Office of
Administrative Hearings (OAH), and OAH scheduled an evidentiary hearing.
Following the hearing, an administrative-law judge (ALJ) issued findings of fact,
conclusions of law, and a recommendation to the commissioner of health. The ALJ
recommended that the commissioner affirm Graceful Lodge’s termination of D.W.’s
assisted-living contract. The ALJ’s recommendation became a final order when the
commissioner did not issue a final order within 14 days after receiving the ALJ’s
recommendation. See Minn. R. 4659.0210, subp. 4 (2021).
D.W. appeals.
DECISION
D.W. challenges the final order affirming Graceful Lodge’s termination of his
assisted-living contract. He appears to make the following five arguments: (1) MDH and
OAH lacked authority and jurisdiction to affirm the termination of the contract, (2) the
contract was invalid, (3) there was no basis to terminate the contract, (4) D.W. was denied
due process, and (5) OAH abused its discretion in its rulings. Both MDH and Graceful
4
Lodge submitted responsive briefs. MDH briefed the first issue raised by D.W., arguing
that the ALJ’s decision that MDH and OAH had the necessary authority and jurisdiction
was not error. In its brief, Graceful Lodge argues that D.W.’s appeal should be dismissed
as moot because D.W. moved out of the facility after he filed this appeal. Alternatively,
Graceful Lodge contends that D.W. fails to show that the final order is erroneous. We first
address Graceful Lodge’s argument that this appeal should be dismissed as moot.
I. This appeal is not moot.

Representing that D.W. moved out of the facility after he filed this appeal, Graceful
Lodge argues that the appeal should be dismissed as moot because there is no live
controversy. Under the mootness doctrine, “the general rule is that when, pending appeal,
an event occurs that makes a decision on the merits unnecessary or an award of effective
relief impossible, the appeal should be dismissed as moot.” In re Application of
Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997). The doctrine requires “a comparison
between the relief demanded and the circumstances of the case at the time of decision in
order to determine whether there is a live controversy that can be resolved.” Id.
The question of whether the final order affirming Graceful Lodge’s termination of
D.W.’s assisted-living contract was erroneous is a live controversy. Even if D.W. has
moved out of the facility, we would still be able to grant D.W. effective relief—if we were
to reverse the final order, Graceful Lodge may need to provide housing and assisted-living
services to D.W. Thus, this appeal is not moot. We therefore turn to D.W.’s five challenges
to the order affirming termination of his assisted-living contract.
5
II. The final order affirming Graceful Lodge’s termination of D.W.’s assisted -
living contract was not erroneous or unsupported by the record.

An agency decision affirming the termination of an assisted-living contract may be
appealed by writ of certiorari under Minnesota Statutes sections 14.63 to 14.69 (2022).
Minn. R. 4659.0210, subp. 4. When reviewing the agency decision, this court may affirm,
remand, reverse, or modify the decision. Minn. Stat. § 14.69. This court may reverse or
modify the decision
if the substantial rights of the petitioners may have been
prejudiced because the administrative finding, inferences,
conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the
entire record as submitted; or
(f) arbitrary or capricious.

Id. Agency decisions “enjoy a presumption of correctness,” and the “agency decision-
maker is presumed to have the expertise necessary to decide technical matters within the
scope of the agency’s authority.” In re Excess Surplus Status of Blue Cross & Blue Shield
of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (quotation omitted). Relators have the burden
of proof when challenging an agency decision. In re Excelsior Energy, Inc., 782 N.W.2d
282, 289 (Minn. App. 2010).
A. Agency Authority and Jurisdiction

D.W. appears to argue that MDH and OAH lacked authority and jurisdiction to
affirm Graceful Lodge’s termination of his assisted-living contract. MDH argues that MDH
and OAH had the necessary authority and jurisdiction.
6
Whether an agency has authority and jurisdiction over a matter is a legal question;
a reviewing court need not defer to “agency expertise” or the agency’s decision on the
issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.
1984). “Whether an administrative agency has acted within its statutory authority is a
question of law that [appellate courts] review de novo.” In re Hubbard, 778 N.W.2d 313,
318 (Minn. 2010).
MDH regulates assisted-living facilities under Minnesota Statutes chapter 144G
(2022) and rules promulgated by MDH. Minn. Stat. § 144G.09, subd. 1; Minn. R.
4659.0010-.0210 (2021). A resident of an assisted-living facility may appeal the facility’s
termination of his assisted-living contract to MDH. Minn. R. 4659.0210, subp. 2.
Minnesota Statutes section 144G.54 and Minnesota Rule 4659.0210 set forth the
procedures for appealing a termination.
The resident must submit a written request for an appeal to MDH. Minn. R.
4659.0210, subp. 2. If the resident requests a hearing, MDH coordinates a hearing for the
parties before OAH. See id., subps. 2-3; see also Minn. Stat. § 144G.54, subd. 3(a). OAH
then holds the hearing. Minn. Stat. § 144G.54, subd. 3(a). Following the hearing, the ALJ
issues a recommendation to the commissioner. Id., subd. 3(e). The commissioner may issue
a final order within 14 days after receipt of the ALJ’s recommendation. Minn. R.
4659.0210, subp. 4. If the commissioner does not issue a final order within the time
allowed, the ALJ’s recommendation becomes the final order. Id.
Here, MDH licensed Graceful Lodge’s assisted-living facilities pursuant to
Minnesota Statutes chapter 144G. Graceful Lodge entered into an assisted-living contract
7
with D.W. and later terminated the contract. Therefore, D.W.’s appeal of Graceful Lodge’s
termination of his assisted-living contract to MDH was governed by the procedures set
forth in section 144G.54 and rule 4659.0210. In accordance with those procedures, MDH
and OAH had authority and jurisdiction over the termination of the contract.
D.W. appears to make a related argument that, because he received services at
Graceful Lodge that were funded by the Minnesota Department of Human Services (DHS)
under his community-access-for-disability-inclusion (CADI) waiver, his appeal of
Graceful Lodge’s termination of his assisted-living contract was governed by Minnesota
Statutes chapter 245D (2022) 2 and should have involved DHS. But chapter 144G
specifically governs an assisted-living facility’s termination of housing or assisted- living
services for residents who receive CADI waiver services at the facility. See Minn. Stat.
§ 144G.52, subds. 2(c), 7(a), 9(c)(2) (requiring additional pr ocedures for residents who
receive home and community-based waiver services under Minn. Stat. § 256B.49). Chapter
144G grants authority and jurisdiction to MDH and OAH; it does not grant authority and
jurisdiction to DHS.
In sum, MDH and OAH had authority and jurisdiction to affirm Graceful Lodge’s
termination of D.W.’s assisted-living contract.
B. Validity of Contract

D.W. also appears to argue that the assisted-living contract was invalid because it
“did not contain the mandatory ‘Service Plan.’” An assisted-living contract must contain

2 Chapter 245D sets forth the standards for home and community-based services, including
CADI waiver services. See Minn. Stat. § 256B.49 (2022) (listing home and community-
based service waiver programs).
8
“the resident’s service plan, if applicable.” Minn. Stat. § 144G.50, subd. 1(b)(3). The ALJ
noted that D.W.’s “care plan” was not presented at the evidentiary hearing; however, based
on D.W.’s testimony at the hearing, the ALJ found that D.W. “requires no assistance with
daily life activities.” D.W. does not explain what service plan was applicable to his
assisted-living contract or how any such service plan was deficient, nor does he explain
how any insufficiency affects the decision to terminate his contract. He therefore fails to
establish error. See Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 ( Minn. 1944) (stating
that error is not presumed on appeal and the appellant has the burden of showing error).
D.W. also asserts that Graceful Lodge failed to enter into a “[Home and
Community-Based Services] Medicaid Contract” with him. He cites the licensure
requirements of chapter 245D. But those requirements apply to facilities licensed under
Minnesota Statutes chapter 245A (2022). See Minn. Stat. § 245D.02, subd. 15 (defining
“license holder” and referring to Minn. Stat. § 245A.02, subd. 9). Graceful Lodge is not
licensed under chapter 245A; it operates assisted-living facilities licensed under chapter
144G.
D.W. has not shown that the affirmance of Graceful Lodge’s termination of his
assisted-living contract was erroneous because the contract was invalid.
C. Basis for Termination of Contract

D.W. appears to argue that substantial evidence does not support the termination of
his assisted-living contract. Under Minnesota Statutes section 144G.52, subdivision 5(a),
[a] facility may initiate an expedited termination of housing or
services if:
9
(1) the resident has engaged in conduct that
substantially interferes with the rights, health, or safety of other
residents;
(2) the resident has engaged in conduct that
substantially and intentionally interferes with the safety or
physical health of facility staff; or
(3) the resident has committed an act listed in section
504B.171[3] that substantially interferes with the rights, health,
or safety of other residents.

In the expedited-termination notice, Graceful Lodge explained its termination of
D.W.’s assisted-living contract, listing the following three “determining factors” for the
termination: (1) D.W.’s “aggressive conduct and persistent harassment substantially
interfere[d] with the rights, health, or safety of other residents”; (2) D.W.’s “aggressive
conduct towards Graceful Lodge staff . . . substantially and intentionally interfere[d] with
their safety and physical health”; and (3) D.W.’s “continuous outlandish and untrue
accusations against staff members . . . caused reduced motivation, voluntary resignation
and interference with their safety and health.” The ALJ determined that D.W.’s “conduct
substantially and intentionally interfered with the rights of other residents” because D.W.’s
“unsubstantiated allegations of illegal drug use and sale caused a resident’s room to be
searched in the absence of an emergency.”
D.W. appears to suggest that Graceful Lodge terminated his assisted-living contract
to retaliate against him because of the allegations of drugs, a gun, and maltreatment at the
facility. Retaliation by an assisted-living facility against a resident is prohibited. Minn. Stat.
§ 144G.92, subds. 1-2.

3 See Minn. Stat. § 504B.171 (2022) (disallowing certain unlawful activities on leased
residential premises).
10
Substantial evidence supports the ALJ’s determination that the termination was
based on sufficient reasons and was not retaliatory. At the evidentiary hearing, the ALJ
admitted into evidence a grievance form setting forth the allegation that D.W. was
continuously accusing a resident of using and selling drugs in the facility. The facility staff
member who handled the grievance testified that the resident informed him that D.W.
contacted the resident’s parole officer and repeated the accusations. The staff member
noted in the grievance form that facility staff searched the resident’s room and other parts
of the facility but did not find any drugs. The staff member testified that the resident
temporarily moved out of the facility due to the accusations. The ALJ also admitted into
evidence a report issued by MDH of its investigation. In t he report, MDH discussed a
search of the facility by law enforcement officers who were investigating allegations that
a resident smelled drugs in the facility. MDH noted that the officers stated that they found
no evidence of drugs in the facility. D.W.’s challenge to the basis for the termination fails.
D. Due Process

D.W. appears to argue that he was denied due process, claiming that the ALJ did
not rule on his demand for a jury trial. By statute, the hearing in an assisted-living contract-
termination matter is generally not a formal contested case proceeding. Minn. Stat.
§ 144G.54, subd. 3(c). Rather, the hearing is “limited to the amount of time necessary for
the participants to expeditiously present the facts about the proposed termination.” Id.,
subd. 3(e). ALJs have no authority to grant a jury trial in these administrative hearings
under section 144G.54 or rule 4659.0210. Accordingly, in considering D.W.’s demand for
11
a jury trial, the ALJ denied a jury trial at the evidentiary hearing. D.W. cites no authority
for the proposition that he was entitled to a jury trial.
D.W. also contends that he was unable to adequately review and respond to the
evidence presented at the hearing. But the record demonstrates that the ALJ recessed for
15 minutes to allow D.W. the opportunity to review Graceful Lodge’s exhibits, after which
D.W. testified about his concerns regarding each exhibit. In addition, the record remained
open after the hearing for the parties to submit written closing arguments. D.W. submitted
his written closing argument three days later.
Therefore, D.W. has not shown that he was denied due process.
E. Agency Decision

Finally, D.W. appears to argue that OAH abused its discretion in its rulings by
relying on what he characterizes as a fraudulent video that depicted a confrontation
between D.W. and a staff member at the assisted-living facility. But the ALJ did not discuss
the video in her recommendation. Further, the ALJ determined only that Graceful Lodge
had a permissible basis to terminate D.W.’s assisted-living contract based on the rights of
other residents at the facility—not that termination was warranted based on the safety or
physical health of facility staff. D.W. has not shown that the final order affirming Graceful
Lodge’s termination of his assisted-living contract was erroneous because OAH abused its
discretion in its rulings.
Affirmed.