Opinion
No. C1-02-162.
Filed September 18, 2002.
Appeal from the Department of Human Services.
Mary K. Martin, (for relator)
Mike Hatch, Attorney General, Sara J. DeSanto, Assistant Attorney General, (for respondent)
Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this certiorari appeal, relator challenges a maltreatment determination and a correction order issued by the department of human services. We affirm.
FACTS
Relator REM Minnesota Community Services, Inc., is licensed by the Minnesota Department of Human Services to provide residential-based habilitation services to persons with developmental disabilities. REM owns a site in St. Louis Park where it provides daily living assistance to up to four disabled people. On November 14, 2000, J.R., a resident of the facility, was admitted to a hospital. While in the hospital, J.R.'s doctor discontinued two of her medications, Glucophage and Serzone, because of suspicions that the medications were causing weight loss, nausea, and vomiting. After the medication changes, J.R.'s condition improved, and she was discharged from the hospital on November 20, 2000.
The REM staff member who brought J.R. from the hospital back to REM's facility did not obtain any discharge orders from the hospital. A discharge order dated November 20, 2000, contained a list of medications that included Prandin and Risperdal, which are medications that J.R. was not taking before entering the hospital, but did not include Serzone, a medication that J.R. was taking before entering the hospital. After returning to the REM facility, staff members continued to give J.R. Serzone. On November 21, a REM staff member who was inexperienced in taking medication orders spoke to a hospital nurse by telephone about J.R.'s medications. The staff member understood the nurse to say that J.R.'s medication order included Risperdal, but the staff member did not remember the nurse telling her to remove Serzone from J.R.'s medications list. REM staff members administered both Serzone and Risperdal.
On November 22, 2000, J.R. experienced severe tremors and drooling and was again admitted to the hospital, where doctors determined that these symptoms were caused by an interaction between Serzone and Risperdal. When the Serzone was discontinued, J.R.'s condition improved, and she was discharged on November 24, 2000.
Following this incident, the department of human services concluded that a maltreatment allegation concerning neglect of J.R.'s medical care was substantiated and issued two correction orders to REM. REM requested reconsideration of the maltreatment determination and the second correction order. Because the department could not determine whether the hospital or REM was culpable for the maltreatment, the final disposition regarding maltreatment was changed to "inconclusive as to culpability for the maltreatment." The department affirmed the second correction order.
DECISION
Review by certiorari is limited to an inspection of the record of the inferior tribunal in which the court "is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it."
Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quoting State ex rel. Ging v. Bd. of Education of Duluth, 213 Minn. 550, 571, 7 N.W.2d 544, 556 (1942) (overruled on other grounds)).
1. REM argues that there is not sufficient evidence in the record to support correction order number two and the determination of maltreatment and that the department acted arbitrarily and capriciously in issuing the correction order and the determination of maltreatment.
REM's challenge of the determination of maltreatment is not properly before us. The department considered and reconsidered the maltreatment allegations as required under Minn. Stat. § 626.557, subds. 9c, 9d (2000 Supp. 2001). Under Minn. Stat. § 256.045, subd. 7 (2000), a party aggrieved by a final maltreatment disposition under section 626.557 may appeal the order to the district court. And under Minn. Stat. § 256.045, subd. 9 (2000), "a party aggrieved by the order of the district court may appeal the order as in other civil cases." Under this statutory scheme, REM was required to obtain review of the maltreatment disposition in the district court before seeking review by this court.
REM argues that there is not sufficient evidence in the record to support correction order number two because there is no evidence that a physician ordered administration of Serzone stopped until November 23, 2000, which was three days after J.R. was discharged from the hospital. REM contends that because there is no evidence that Serzone was actually discontinued on November 20 and no evidence that the order to discontinue Serzone was transmitted to it before November 23, there is no way that it could have known on November 20 that the physician intended to discontinue Serzone, and, therefore, it cannot be cited for failing to follow an order that did not exist or that had not been communicated. REM argues further that because correction order number two contradicts the facts in the record, it is clearly wrong and, therefore, it is arbitrary and capricious.
Each of these arguments reflects an overly broad and unwarranted construction of the correction order. Correction order two states:
Violation: The license holder must develop and implement policies and procedures to promote consumer health and safety.
The license holder's procedures titled Medical Referrals And Charting a Medical Appointment required that after a physician contacted a consumer the facility would obtain the physician's orders in writing. This reasonable procedure was not implemented when a consumer returned to the facility from the hospital without written physician's orders. In addition the physician's orders came to the facility by telephone on the next day. A medication error resulted.
Corrective action ordered: Beginning immediately, and on an ongoing basis, the license holder must ensure that policies and procedures to ensure the health and safety of consumers are implemented.
By 30 days of the receipt of this letter, submit documentation showing the facility's corrective action.
Suggested method of correction: The facility could treat each variation from the above facility procedure as a possible medication error and require immediate communication and corrective action, such as a communication from the facility's consulting nurse to the physician, so as to prevent errors.
As the second paragraph of the correction order indicates, the order is not directed at REM's failure to follow discharge orders; it is directed at the failure to obtain written discharge orders at the time J.R. was discharged from the hospital. The order recognizes that failing to obtain J.R.'s discharge orders resulted in a medication error, but it addresses procedures to obtain discharge orders and does not address procedures to follow discharge orders once they are obtained. There is evidence in the record that supports the conclusion that the REM employee who picked up J.R. at the hospital did not obtain J.R.'s discharge orders. This evidence supports the correction order and demonstrates that the order is not arbitrary and capricious.
The correction order does not indicate that REM, rather than the hospital, was at fault for the medication error that occurred. Instead, the order recognizes that implementing a policy to obtain written orders when a physician sees one of REM's clients will prevent errors. In J.R.'s case, if there were no written discharge orders at the time of discharge, as REM contends, a policy and procedure to obtain orders when a client is picked up at the hospital would have revealed that the discharge orders had not been prepared and reduced the chances of a medication error occurring.
REM also argues that because the REM procedure the department cites in the correction order applies to doctor appointments and not to hospital stays, there is not substantial evidence in the record to support the order. But even if the cited procedure does not apply to hospital visits, the order is supported by evidence that the REM employee who picked up J.R. at the hospital did not obtain J.R.'s discharge orders, and the absence of discharge orders resulted in a medication error. The order does not impose a penalty on REM for failing to comply with its policies, as REM's argument implies. The order concludes that a medication error occurred because REM did not obtain written discharge orders for J.R. and directs REM to implement policies and procedures to address a failure to obtain written discharge orders.
REM is correct that the cited procedure applies to doctor appointments, rather than hospital visits. REM acknowledges that it has a comparable procedure that applies to hospital visits, but this procedure is not in the record. Because the correction order is directed at REM's future conduct, it is immaterial whether its conduct with respect to J.R. violated an existing policy. If REM does not have a policy and procedure to obtain discharge orders following a hospital visit, that is a policy and procedure that REM will have to enact and implement to comply with the correction order.
2. REM argues that the correction order exceeds the department's statutory authority because the order requires REM to ensure the health and safety of consumers while the applicable statute requires only that REM have policies and procedures that promote consumer health and safety. Minn. Stat. § 245B.07, subd. 8(1)(vi) (2000), provides:
The license holder must develop and implement the policies and procedures in paragraphs (1) to (3).
(1) policies and procedures that promote consumer health and safety by ensuring:
* * *
(vi) safe medication administration as identified in section 245B.05, subdivision 5, incorporating an observed skill assessment to ensure that staff demonstrate the ability to administer medications consistent with the license holder's policy and procedures.
REM argues that because the statute only requires it to have policies and procedures that promote consumer health and safety, rather than policies and procedures to ensure consumer health and safety, the correction order imposed a higher standard than the statute requires when it directed REM to implement policies and procedures to ensure the health and safety of consumers. REM contends that having policies and procedures that promote health and safety does not require it to ensure that a policy is followed in every instance or to foresee every possible consequence if an outside agency, physician, or clinic does not do what it is supposed to do. In contrast, REM contends, implementing policies and procedures to ensure consumer health and safety means that its policies and procedures must anticipate every possible problem and be failure proof.
Although the language of the correction order does not mirror the statutory language, the correction order does not exceed the department's statutory authority. The order requires "policies and procedures to ensure" health and safety, not policies and procedures that ensure health and safety. When used in the correction order, "to" means "for the purpose of." The American Heritage Dictionary of the English Language 1482 (3rd ed. 1997). Policies and procedures for the purpose of ensuring health and safety are policies and procedures that promote health and safety; they need not guarantee that health and safety will always be attained. Therefore, REM can satisfy the requirements of the order by implementing policies and procedures whose purpose is to ensure health and safety, and the occurrence of a health or safety problem in the future would not, by itself, demonstrate that REM has not complied with the correction order.
3. REM argues that the department violated the Minnesota Government Data Practices Act, Minn. Stat. chap. 13 (2000), by failing to provide its investigative file in response to REM's requests. This issue is not properly before us by writ of certiorari. Under the government data practices act, "any aggrieved person seeking to * * * obtain access to data may bring an action in district court to compel compliance with [the data practices act]." Minn. Stat. § 13.08, subd. 4 (Supp. 2001).
[W]hen a party has a statutory cause of action by which to pursue a claimed statutory violation by an administrative decision-maker, review of that claim by writ of certiorari is not appropriate even if "prosecution of the alleged violation * * * may implicate at least some aspects of the [administrative] decision."Stephens v. Bd. of Regents, 614 N.W.2d 764, 771 (Minn.App. 2000) (quoting Willis v. County of Sherburne, 555 N.W.2d 277, 283 (Minn. 1996), review denied (Minn. Sept. 26, 2000)). Because REM has a statutory cause of action by which to pursue its claimed violation of the government data practices act, review of that claim by writ of certiorari is not appropriate.
4. REM's final argument is that the department's reconsideration procedure deprives licensees of property without due process of law by denying discovery or other review of the evidence supporting the department's decision before obtaining review by this court. But REM cites no authority to support its due-process claim and does not indicate how the correction order deprived it of property nor specify what property it has been deprived of as a result of the correction order. Therefore, this claim is waived. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion and lacking supporting argument or authorities is waived unless prejudicial error is obvious).
Affirmed.