In the Matter of the Appeal of the Discharge of M.W. from the Minnesota Veterans Home - Minneapolis.

This opinion is nonprecedential except as provided by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
A24-0136

In the Matter of the Appeal of the Discharge of M.W.
from the Minnesota Veterans Home - Minneapolis.

Filed October 7, 2024
Affirmed
Ross, Judge

Minnesota Department of Veterans Affairs
File No. 22-3100-38984

Steven C. Schmidt, Mid-Minnesota Legal Aid Mid-Minnesota Disability Law Center,
Minneapolis, Minnesota (for relator M.W.)

Keith Ellison, Attorney General, Kevin Jonassen, Kaitrin Vohs, Assistant Attorneys
General, St. Paul, Minnesota (for respondent Minnesota Department of Veterans Affairs)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
M.W. is an 81 -year-old military veteran living in a veterans home and suffering
from dementia and Alzheimer’s. His health-care agent refused to consent to a dosage of
medication prescribed to reduce M.W.’s almost daily episodes of extreme emotional
instability, causing the home to conclude that it could no longer meet M.W.’s care needs.
M.W. appeals from the Minnesota Department of Veterans Affairs’s order affirming the
home’s decision to discharge him involuntarily. We hold that substantial evidence supports
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the department’s finding that the home could not meet M.W.’s care needs, that the home
sufficiently implemented other treatment options before turning to involuntary discharge,
and that the home complied with federal regulations governing nursing-home discharges
and transfers. We therefore affirm.
FACTS
Relator M.W. is an 81 -year-old United States military veteran who suffers from
dementia and Alzheimer’s. He has been admitted to the memory-care unit at the Minnesota
Veterans Home - Minneapolis since October 2021. M.W. experiences episodes of extreme
emotional instability because of these conditions. The episodes include his physical and
verbal aggression, anxiety, tearfulness, agitation, and restlessness.
M.W.’s prescribed nightly medication includes 37.5 milligrams of quetiapine, an
antipsychotic medication. The medication is not approved by the FDA, but physicians
nevertheless often prescribe it as the first line of treatment for dementia patients. Because
the home’s staff found that M.W. responded well to the drug in the evenings, his care team
suggested to his health -care agent (M.W.’s son-in-law) that M.W. receive an additional
12.5-milligram dose each morning to reduce his episodes during the day. But M.W.’s
health-care agent refused consent, citing his concerns about the drug’s potential side
effects. The home consequently determined that it could not meet M.W.’s care needs, so
the committee tasked with determining the appropriateness of discharges voted
unanimously to recommend that M.W. be discharged from the home.
The home issued multiple notices of involuntary discharge to M.W. in November
and December 2022 and in January and July 2023. The November 2022 notice failed to
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identify alternative housing options for M.W., and the December 2022 and January 2023
notices identified Epiphany Care Home as an option for safe discharge.
M.W.’s health-care agent asked respondent Minnesota Department of Veterans
Affairs to reconsider the discharge, and in December 2022 the department held a
reconsideration hearing. The department upheld the decision to discharge M.W. The
health-care agent then appealed the decision, and an administrative-law judge (ALJ) held
a two-day contested-case hearing.
Evidence at the hearing established that M.W.’s behavioral disturbances are
frequent and can last many hours. The disturbances occur nearly daily and often begin with
a regular and calm conversation before escalating into passionate yelling and nonsensical,
repeated words. M.W.’s yelling often leaves him hoarse and causes him to weep
inconsolably. His emotional disturbances in turn have distressed other residents, leading
two of them to transfer from M.W.’s unit. Witnesses at the hearing discussed the feasibility
of medication other than quetiapine to treat M.W. Dr. Bruce Meyer, the medical director
for the Minnesota Department of Veterans Affairs, testified that home physicians had
considered administering gabapentin, another medication. But they determined that
quetiapine was more suitable because gabapentin is typically prescribed only when
antipsychotics are ineffective, and the circumstances had shown that M.W. responds
positively to quetiapine. They had also considered using mirtazapine, an antidepressant,
but medical staff dismissed the option because M.W. was already taking a different
antidepressant and because depression was not causing his episodes. Dr. Meyer also
discussed an alternative medication that the home previously implemented— Nuedexta.
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But after a trial period, staff discontinued us ing Nuedexta when they saw that it failed to
improve M.W.’s behaviors and that it caused side effects that outweighed the minimal
benefit.
M.W.’s care providers also testified about nonpharmacological interventions they
had attempted. These included music, faith-based activities, therapeutic touch, a
mechanical dog, a sensory blanket, and food. None provided more than short-term relief
and none reduced the frequency of M.W.’s episodes. The care providers testified that they
had not utilized one-on-one staff care, which is a nonpharmacological treatment involving
“one staff member provid[ing] care[] only to one resident.” A home behavior analyst, Laura
Heezen, testified that an ongoing one-on-one care regimen would not benefit M.W. because
his outbreaks occur even when staff has devoted considerable one-on-one attention to him.
Rebecca Long, M.W.’s social worker at the home, testified about her efforts to find
a suitable replacement home. She recounted making phone calls to at least 60 different
long-term care facilities to find a suitable replacement home. She said that, although she
found locations willing to admit M.W., none were viable options because of either financial
constraints or M.W.’s health-care agent’s unwillingness to engage in the admission
process. Long eventually identified White Pine Advanced Memory Care as an appropriate
discharge location while the contested case was pending. After determining that White Pine
could meet M.W.’s needs, Long sent the facility information that included his diagnoses
and behavioral disturbances. S he testified that, because White Pine accepted the transfer,
she inferred that the facility had determined it could meet M.W.’s needs.
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M.W. called four witnesses to testify at the contested-case hearing. His health- care
agent stated his concerns with quetiapine and its side effects. M.W.’s daughter recounted
her experiences with M.W. after taking quetiapine, testifying that he becomes “sedated”
and loses his “independence” and “speech.” M.W.’s friend testified that M.W. was often
calm during visits. Brett Jagodzinski, the regional ombudsman for long-term care, testified
that he had visited M.W. many times at the home after M.W.’s health-care agent requested
his assistance and that M.W. does not have “the worst dementia behaviors [he’s] seen.”
The ALJ concluded that the home had failed to meet the notice-and-discharge
requirements under the federal regulations. The department’s chief of staff in January 2024,
acting as the commissioner’s delegate, issued an order rejecting the ALJ’s recommendation
and affirming the original order of involuntary discharge. The chief of staff concluded that
the home had established a lawful basis to discharge M.W. and complied with the federal
regulations’ notice-and-discharge requirements.
M.W. appeals.
DECISION
M.W. raises four arguments in this certiorari appeal challenging the department’s
order affirming the home’s decision to involuntarily discharge him. He argues first that
substantial evidence does not support the department’s decision based on the home’s
inability to meet his care needs. He argues similarly that substantial evidence does not
support the department’s decision because he does not pose an immediate threat to the
health or safety of himself, other residents, or staff. M.W. argues third that the home failed
to exhaust all treatment option s before requiring him to choose between consenting to
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another dose of quetiapine and involuntary discharge. M.W. argues fourth that the home
disregarded federal regulations governing nursing-home transfers and discharges. The
arguments do not lead us to reverse.
M.W.’s challenge faces a deferential standard of review. Because this certiorari
appeal comes from a contested-case hearing, we may affirm the commissioner’s decision
or remand for additional proceedings, or we may reverse or modify the decision if we
conclude that M.W.’s substantial rights “have been prejudiced because . . . administrative
finding, inferences, conclusion, or decisions” violate a constitutional provision, exceed the
department’s statutory authority or jurisdiction, rest on unlawful procedure, arose from
legal error, are unsupported by substantial evidence in view of the full record, or are
otherwise arbitrary or capricious. Minn. Stat. § 14.69 (2022). Our role on appeal is to
determine whether the agency took a “hard look” at the problems involved and whether the
agency “genuinely engaged in reasoned decision-making.” Rsrv. Mining Co. v. Herbst, 256
N.W.2d 808, 825 (Minn. 1977) (quotation omitted). When the agency engaged in reasoned
decision-making, we will affirm the agency’s decision, even if we may have reached a
different result. Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d
658, 669 (Minn. 1984). M.W.’s arguments include questions about the application of
statutes or rules. We review de novo the interpretation of statutes and rules. Minnesotans
for Responsible Recreation v. Dep’t of Nat. Res., 651 N.W.2d 533, 538 (Minn. App. 2002).
M.W.’s challenge fails under these standards.

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I
M.W.’s argument does not persuade us that the department’s conclusion that the
home cannot meet his care needs lacks substantial supporting evidence. Under the
operative rule, “[d]ischarge procedures must be instituted with regard to a resident if one”
of seven grounds exist, including that “the facility operated by the commissioner of
veterans affairs is unable to meet the care needs of the resident.” Minn. R. 9050.0200, subp.
3(C) (2023). The department determined that the facility could no longer meet M.W.’s care
needs because the facility could not safely control M.W.’s behavior in an appropriate
manner. This is because adding a small dose of quetiapine in the mornings is the “first line”
for pharmacological treatment and M.W.’s care agent refused to consent to the treatment.
The question on appeal is not whether the department’s conclusion is the only possible
conclusion but whether the conclusion finds substantial support in the record. We hold that
it does.
M.W.’s argument to the contrary essentially asks us to reweigh the evidence. He
points to a video that depicts him exhibiting only a mild emotional outbreak, and he
maintains that his symptoms mirror those of a typical advanced dementia patient. He
emphasizes too that his basic needs of “eating, dressing, bathing, and grooming . . . are
being met” at the home. Yet six facility employees testified about their experience with
M.W., each recounting episodes of much greater severity than the mild episode depicted
in the video. One of them spoke of M.W.’s “mental anguish” when these episodes occurred.
For example, the home’s administrator testified that the nearly daily outbursts included
“crying out,” sadness, and “yelling” and that they “can last hours, multiple hours in a row.”
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The nursing director said, “[M.W.] . . . displays vocalizations, crying, weeping, yelling,
some aggressive tendencies, some very sad tendencies that are very difficult to manage for
the staff.” And the behavioral analyst testified that the incidents involved “real sobbing . . .
like full sobbing.” It is true that the ombudsman testified that M.W.’s behavior is akin to
that of the typical dementia sufferer, but the repeated testimony of the home staff supports
the conclusion that M.W.’s behavior is more intense. The medical director testified that
M.W.’s behaviors are uniquely severe and persistent. Most of the hearing testimony from
the contested case distinguished M.W.’s behavior as demonstrating severe emotional
distress. Deferring to the department’s weighing of the evidence under our review standard,
we hold that substantial evidence supports the department’s conclusion that the home
cannot meet M.W.’s care needs.
We are not persuaded to a different result by M.W.’s additional legal argument. He
contends that the home’s involuntary discharge contravenes this court’s decision in In re
Involuntary Discharge or Transfer of J.S. by Ebenezer Hall, 512 N.W.2d 604 (Minn. App.
1994). In that case, a 74-year -old woman diagnosed with chronic schizophrenia was
involuntarily discharged from a nursing home after she refused nearly all psychiatric
treatment. Id. at 607–08. After the commissioner denied the nursing home’s involuntary
discharge based on the home’s inability to meet the woman’s needs, it appealed to this
court. Id. at 608. We began by acknowledging a nursing- home resident’s right to refuse
treatment based on federal regulations and the nursing-facility resident’s bill of rights. Id.
at 610–11 (citing 42 C.F.R. § 483.10(b)(4) (1994); Minn. Stat. § 144.651, subd. 12 (1990)).
In light of that right, this court reasoned that “[t]he involuntary transfer or discharge of a
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nursing facility resident must be the last resort” and that “[a] facility must first exhaust the
options available to it within the level of care it is authorized to provide.” We added, “In
the absence of the comprehensive evaluation of a resident’s condition and needs, the
nursing facility is not entitled to elect the final option, involuntary transfer or discharge of
the resident.” In re J.S., 512 N.W.2d at 612. Because the nursing facility in that case had
failed to develop a comprehensive evaluation of the patient’s condition and needs, we
affirmed the commissioner’s denial of her involuntary discharge. Id. at 613. M.W.’s
argument analogizing this case with J.S. fails for the following two reasons.
The first reason M.W.’s argument fails is that, unlike the nursing home in J.S., the
veterans home implemented numerous nonpharmacological treatments and considered
alternative medications to treat M.W.’s episodes of mental anguish. The record
demonstrates that the veterans home created a comprehensive-care plan, tried multiple
nonpharmacological options, and found that only an additional dose of quetiapine would
limit M.W.’s behavioral outbursts. The second reason M.W.’s argument analogizing his
case to J.S. fails is that, in J.S., our deferential review began with the department’s
determination that the evidence did not support the conclusion that the nursing facility
failed to implement an “adequate comprehensive care plan.” M.W.’s case involves similar
procedural issues, so we deferentially consider the department’s weighing of the evidence
and its conclusion that discharge is necessary. Id. at 608–09. We conclude that J.S. offers
no ground to reverse.
We are similarly unpersuaded by M.W.’s argument that the home failed to exhaust
all options because it did not agree to try gabapentin instead of quetiapine. The home
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considered the health-care agent’s request for gabapentin and determined the medication
was not a reasonable option because it is prescribed only when other medications have
been proven ineffective, and quetiapine has been shown to relieve M.W.’s symptoms. And
even M.W.’s treating physician, who is not affiliated with the home, determined that
another dose of quetiapine was a “reasonable” treatment option. The record likewise
establishes that the home considered and administered a trial run of an alternative
medication, which was ultimately discontinued due to M.W.’s adverse reaction. The
home’s care plan went beyond that in J.S., and it considered and utilized alternative
medications to treat M.W.’s emotional outbursts. We hold that substantial evidence
supports the department’s conclusion that the home cannot meet M.W.’s care needs and
that its involuntary-discharge decision complied with our precedent requiring nursing
homes to develop a comprehensive-care plan before turning to discharge as a last resort.
We are not unsympathetic to the health-care agent’s preference to avoid the
recommended medication and his desire to continue M.W.’s care at the veterans home. But
after carefully considering his arguments, we hold that substantial evidence supports the
department’s finding that the home can no longer meet M.W.’s care needs.
M.W. also contests the department’s determination that discharge is necessary
because his “behavior poses an immediate threat to the health or safety of the resident,
other residents, or staff of a facility operated by the commissioner of veterans affairs.” See
Minn. R. 9050.0200, subp. 3(E) (2023). But the operative rule provides that “[d]ischarge
procedures must be instituted with regard to a resident if one of the [listed] grounds or
circumstances exist.” Id ., subp. 3 (2023) (emphasis added). Because the department’s
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determination that the home is unable to meet M.W.’s care needs finds substantial support
in the record, we do not reach M.W.’s challenge to this second ground for discharge.
II

M.W. argues alternatively that the home failed to comply with federal regulations
governing nursing-home discharges and transfers. He presents four arguments relating to
the federal discharge and transfer requirements: that the department erroneously concluded
that the home issued a proper discharge notice; that the home’s preparation and planning
for discharge were insufficient; that substantial evidence does not support the department’s
finding that White Pine could meet his care needs; and that the home did not engage in
sufficient discharge planning. Our de novo review leads us to hold that the home complied
with federal regulations governing nursing-home discharges and transfers.
Discharge Notice
We first address M.W. ’s argument that the department erroneously concluded that
the home issued a proper discharge notice under federal law. Because the home qualifies
as a nursing “facility,” it is subject to federal discharge and transfer regulations. See 42
C.F.R. § 483.15 (2023). The home must therefore notify a resident before it transfers or
discharges him, and the notice must include “[t]he location to which the resident is
transferred or discharged.” Id. (c)(3), (c)(5)(iii). M.W. argues that, because the home’s
initial notice failed to identify the place where he would be transferred to, the department
erred as a matter of law by failing to prohibit the discharge.
It is true that the home’s first notice to M.W. in November 2022 failed to include
his discharge location , b ut the home’s three amended notices to M.W. listed Epiphany
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Care, Geneva Suites, and White Pine as discharge locations, respectively. This defeats
M.W.’s notice argument because t he regulations mandate that the notice of transfer or
discharge be made “at least 30 days before the resident is transferred or discharged,” id.
(c)(4)(i), and M.W. has yet to be discharged. The regulations allow nursing facilities to
amend their notices “as soon as practicable” when the proposed discharge location changes.
See id. (c)(6). Because M.W. has not been discharged and nursing facilities may amend
their notices, the home’s amended notices cured the initial defect of failing to include the
discharge location.
M.W. cites two nonprecedential office-of-administrative-hearings decisions dealing
with the federal regulations’ notice requirements, but neither supports M.W.’s argument
for a different result. Those decisions do not bind this court, but we will nevertheless
address them. The first is Involuntary Discharge/Transfer of V.M. by Lakeside Health Care
Center, OAH Docket No. 8-0900-19416-2, 2008 WL 642734 (Feb. 11, 2008). In that case,
the ALJ concluded that the nursing facility had violated the notice requirements, observing
that the notice “f[ell] short because it d[id] not detail the location to which [the resident]
w[ould] be transferred.” Id. at *6. The ALJ therefore reversed the involuntary discharge
but did so expressly without prejudice to any later discharge notice. Id. at *7. The second
decision M.W. cites is Involuntary Discharge/Transfer of M.E. by St. Francis Nursing
Home, OAH Docket No. 6-0900-16303-2, 2005 WL 275762 (Jan. 21, 2005). In that case,
the facility also failed to include the location to which it was involuntarily discharging its
resident, and the ALJ therefore denied the proposed discharge. Id. at *5. But unlike the
veterans home in this case, at the time of the hearing in M.E. the nursing home still had not
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identified the location where the resident would be transferred to. Id. at *4. As we have
emphasized, here the veterans home had amended its notice and complied with the
regulatory requirement to identify the discharge location.
Preparation and Orientation Planning
We next address M.W.’s contention that the department erroneously concluded that
the home engaged in sufficient preparation and orientation to ensure his safe and orderly
discharge from the facility. In recommending that the involuntary discharge be reversed,
the ALJ concluded that the home had failed to comply with federal regulations requiring it
to “provide and document sufficient preparation and orientation to residents to ensure safe
and orderly transfer or discharge from the facility.” The department rejected this
recommendation, concluding that the law does not require such preparation and orientation
until discharge is “imminent.”
M.W. contends that the department erred as a matter of law when it concluded that
documentation of sufficient preparation and orientation is required only when discharge is
“imminent.” The relevant regulation states, “A facility must provide and document
sufficient preparation and orientation to residents to ensure safe and orderly transfer or
discharge from the facility.” 42 C.F.R. § 483.15(c)(7). The ALJ had interpreted this
provision to prohibit the home from discharging M.W., reasoning that because the home
“did not establish that it provided updated information about M.W.’s increased care needs
to White Pine” and “did not confirm that White Pine has adequate staff to accommodate
M.W.’s increased need,” it therefore had “not established that White Pine can meet M.W.’s
care needs” and could not discharge him. We believe the department properly interpreted
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section 483.15 to not require the home’s planning and documentation to occur before the
hearing challenging a discharge. The regulation does not mandate when the facility must
“provide and document sufficient preparation and orientation to residents,” but the context
indicates only that it must occur before the discharge actually occurs . This is because the
regulation’s purpose is “to ensure safe and orderly transfer or discharge from the facility.”
The department reasons persuasively that, because a resident’s health-care plan is fluid, the
documentation is accurate and meets the objective stated in the regulation only if planning
and consequent documentation occurs close to the actual discharge event. The actual
discharge event did not occur here, as the ongoing dispute put the discharge into abeyance.
M.W. relies on two nonprecedential cases from the office of administrative hearings
and a nonprecedential case from the Massachusetts Appeals Court. Because we do not
believe any of those cases are sufficiently similar to this one and because those decisions
are not binding on our decision, we do not discuss them further. We hold that the home
engaged in sufficient discharge planning to ensure M.W.’s eventual safe discharge and that
any deficiencies can be cured before the actual discharge date.
Suitable Discharge Location

M.W. also argues that substantial evidence does not support the conclusion that
White Pine is an appropriate discharge location. This argument fails. As an assisted-living
facility, White Pine is prohibited from accepting a resident without first ensuring that it can
meet the individual’s care needs. Minn. R. 4659.0140, subp. 1 (2023). And M.W.’s social
worker testified about her efforts to find a suitable discharge location for M.W., including
learning that White Pine indicated that it would accept M.W. into its memory-care unit
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after she disclosed his mental-health condition and behavioral difficulties. The social
worker’s research satisfied her that White Pine is a safe and suitable location for M.W.’s
transfer, and M.W. offers no evidence that convincingly contradicts her testimony or that
persuasively calls into question the department’s reliance on it. Substantial evidence
supports the department’s conclusion that White Pine is a suitable discharge location for
M.W.
Appropriate Discharge Planning

We last address M.W.’s related argument that the department erred as a matter of
law by concluding that the home complied with the federal regulations requiring it to
engage in appropriate discharge planning. “When the facility transfers or discharges a
resident” due to its inability to meet a resident’s care needs, “the facility must ensure that
the transfer or discharge is documented in the resident’s medical record and appropriate
information is communicated to the receiving health care institution or provider.” 42 C.F.R.
§ 483.15(c)(2). The social worker’s testimony, discussed above, is sufficient evidence on
this provision. M.W. contends more specifically that, because the home failed to include
in its care plan that M.W. requires two-person assistance in transfers, the discharge should
be denied. The contention reads too much into the regulation, which requires only that the
facility provide “appropriate” information to the receiving facility, a requirement that is
triggered solely “[w]hen the facility transfers or discharges a resident.” In any event, the
record indicates that the home provided White Pine with M.W.’s medical records,
presenting issues, care plan, and medication list.
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M.W. adds that the home failed to consult his health-care agent about the discharge
plan. Discharge planning must “[i]nvolve the resident and resident representative in the
development of the discharge plan and inform the resident and resident representative of
the final plan.” 42 C.F.R. § 483.21(c)(1)(v) (2023). And it requires facilities to conduct an
“evaluation of the resident’s discharge needs,” and to discuss the results of the evaluation
“with the resident or resident’s representative.” Id. (c)(1)(ix). The hearing testimony
suggests that M.W.’s health-care agent repeatedly failed to cooperate in the development
of a discharge plan. And he continued to object to M.W.’s discharge. While we understand
the health-care agent’s preference that M.W. remain at the home rather than be discharged
to some other facility, his choice not to engage in the discharge process cannot prevent the
discharge.
Affirmed.