This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1944
In the Matter of the SIRS Appeal of Gary L. Johnson and In the Matter of the SIRS Appeal of Joshawa J. Johnson
Filed November 7, 2016 Affirmed Cleary, Chief Judge
Department of Human Services File Nos. OAH 82-1800-32171 and OAH 82-1800-32172
Gary L. Johnson, Bertha, Minnesota (pro so relator); and
Joshawa J. Johnson, Wadena, Minnesota (pro se relator)
Lori Swanson, Attorney General, Marsha Eldot Devine, Assistant Attorney General, St. Paul, Minnesota (for Commissioner of Department of Human Services)
Considered and decided by Cleary, Chief Judge; Peterson, Judge; and Worke, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
On appeal from their one-year suspensions from participating as personal care
assistants in the Minnesota Health Care Program (MHCP), relators Gary L. Johnson and
Joshawa J. Johnson argue that the department of human services (DHS) exceeded its
authority, made an error of law, acted by an unlawful procedure, and rendered arbitrary and capricious decisions. Because relators have failed to establish a basis for disturbing
DHS’s decisions, we affirm the commissioner’s orders suspending relators for one year.
FACTS
Relators were personal care assistants (PCAs) employed by Tender Hearts Home
Care (Tender Hearts). Relators provided PCA services to R.J. and were paid with Medicaid
funds through MHCP. To be paid, relators filled out and signed daily-time records, and
Tender Hearts reported relators’ time to DHS.
The Surveillance and Integrity Review Section (SIRS) unit of DHS received a report
that Joshawa Johnson may have been falsifying his timecards for Tender Hearts and
assigned the suspected fraud investigation to a SIRS investigator. The data reviewed in
the investigation of Joshawa Johnson revealed that Gary Johnson may also have been
falsifying his timecards. The investigator determined that the preliminary data appeared to
support conducting a comprehensive investigation and requested records from Tender
Hearts. The records received from Tender Hearts included a cover letter from Tender
Hearts’ owner, which acknowledged that relators were not in compliance and that there
had been a lack of qualified professional visits. SIRS leadership authorized the issuance
of subpoenas to obtain relators’ employment records, and subpoenas were served upon
relators’ employers.
A review of the time records revealed direct overlaps of certain times when a relator
worked for a non-PCA employer and times when that relator reported providing PCA
services. For example, Gary Johnson submitted a PCA timesheet stating that he performed
PCA services from 8:00 a.m. to 4:00 p.m. on September 8, 2013, while his employment
2 records showed that he worked at Wensman Seed Company from 4:21 a.m. to 3:19 p.m.
that day. Joshawa Johnson submitted a PCA timesheet stating that he performed PCA
services from 6:00 a.m. to 3:00 p.m. on August 1, 2013, while his employment records
showed that he worked from 6:00 a.m. to 5:00 p.m. at Central Minnesota Masonry.
Overpayments for the period audited totaled $733.04 for Gary Johnson and $3,723.83 for
Joshawa Johnson.
Relators signed multiple timesheets acknowledging that it is a federal crime to
provide false information on PCA billings and that their signatures verified that the time
and services entered were accurate and performed as specified in the care plan. These time
records were also required to be signed by a responsible party. The responsible party’s
signatures on relators’ timesheets appeared to be identical across multiple timesheets,
indicating that the timesheets may have been signed beforehand and photocopied.
On July 30, 2014, DHS sent each relator a notice, stating that each would be
suspended from MHCP beginning 30 days after July 30, 2014 and each had a right to
appeal. Gary Johnson was notified of a one-year suspension, while Joshawa Johnson was
notified of a two-year suspension. Relators timely appealed. Based on an internal review,
DHS determined the suspensions were appropriate.
On March 3, 2015, an administrative law judge (ALJ) issued an order requiring the
parties to exchange and file their proposed exhibit and witness lists by April 20, 2015. A
consolidated case hearing was held on May 1, 2015, and the ALJ heard testimony from
Gary Johnson, Joshawa Johnson, and the SIRS investigator. The investigator testified
about his investigation, his recommendation, and the management team’s review. The
3 investigator testified that R.J.’s time journal, which purportedly detailed the time during
which relators provided PCA services, was not submitted to DHS with relators’ timesheets.
Gary Johnson testified that he did the paperwork for both himself and Joshawa Johnson,
made clerical errors, and mistakenly thought he was turning in the correct hours. Joshawa
Johnson testified that he did not do much with the paperwork and that the times were put
in inaccurately.
During the hearing, Gary Johnson informed the ALJ that he spoke with R.J. during
a break and that R.J. wished to speak by phone about her daily log. The ALJ told Gary
Johnson that it was up to him whether to call R.J. as his witness. DHS stated that it was
not challenging whether R.J. kept the time journal and explained that was not the basis for
relators’ suspensions. The ALJ asked Gary Johnson if the purpose of having R.J. testify
was to say that she kept the time journal. Gary Johnson responded, “Okay. That – Yes,
that’s the only thing. I would only make the assumption she’d have other comments on
the fact that we do care for her . . . . But I – I really have nothing else to say . . . . As long
as, hopefully, the Court understands that it wasn’t intentional.” Gary Johnson did not later
request to call or attempt to call R.J. as his witness.
The ALJ addressed certain documents that she considered excluding from the
hearing. The ALJ explained she would not admit documents relating to training, because
whether relators’ training was current would have no bearing on the decision. The ALJ
asked Gary Johnson what his purpose was for submitting the documents that he sent the
day before the hearing. Gary Johnson explained that he thought that the paystubs “were
necessary or pertained to this; but as it is, they don’t.” Gary Johnson did not contest the
4 accuracy of DHS’s payroll documents, but noted only that the documents were inaccurate
in the sense that he made mistakes by writing down the wrong times. The ALJ explained
that she would not admit the documents that were submitted the day before the hearing.
On May 14, 2015, the ALJ issued separate findings of fact, conclusions of law, and
recommendations for each relator. In each, the ALJ found that “[t]he Appellant admitted
that the PCA hours he reported were erroneous.” The ALJ additionally found that “[t]he
Appellant’s private employment records were reliable and accurate, and the Appellant’s
own reporting of his PCA time was not reliable or accurate.” The ALJ concluded that DHS
established by a preponderance of the evidence that relators submitted timecards on which
required information was incorrect and which sought reimbursement for personal care
assistance that was not reimbursable because it was not provided.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1944
In the Matter of the SIRS Appeal of Gary L. Johnson and In the Matter of the SIRS Appeal of Joshawa J. Johnson
Filed November 7, 2016 Affirmed Cleary, Chief Judge
Department of Human Services File Nos. OAH 82-1800-32171 and OAH 82-1800-32172
Gary L. Johnson, Bertha, Minnesota (pro so relator); and
Joshawa J. Johnson, Wadena, Minnesota (pro se relator)
Lori Swanson, Attorney General, Marsha Eldot Devine, Assistant Attorney General, St. Paul, Minnesota (for Commissioner of Department of Human Services)
Considered and decided by Cleary, Chief Judge; Peterson, Judge; and Worke, Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
On appeal from their one-year suspensions from participating as personal care
assistants in the Minnesota Health Care Program (MHCP), relators Gary L. Johnson and
Joshawa J. Johnson argue that the department of human services (DHS) exceeded its
authority, made an error of law, acted by an unlawful procedure, and rendered arbitrary and capricious decisions. Because relators have failed to establish a basis for disturbing
DHS’s decisions, we affirm the commissioner’s orders suspending relators for one year.
FACTS
Relators were personal care assistants (PCAs) employed by Tender Hearts Home
Care (Tender Hearts). Relators provided PCA services to R.J. and were paid with Medicaid
funds through MHCP. To be paid, relators filled out and signed daily-time records, and
Tender Hearts reported relators’ time to DHS.
The Surveillance and Integrity Review Section (SIRS) unit of DHS received a report
that Joshawa Johnson may have been falsifying his timecards for Tender Hearts and
assigned the suspected fraud investigation to a SIRS investigator. The data reviewed in
the investigation of Joshawa Johnson revealed that Gary Johnson may also have been
falsifying his timecards. The investigator determined that the preliminary data appeared to
support conducting a comprehensive investigation and requested records from Tender
Hearts. The records received from Tender Hearts included a cover letter from Tender
Hearts’ owner, which acknowledged that relators were not in compliance and that there
had been a lack of qualified professional visits. SIRS leadership authorized the issuance
of subpoenas to obtain relators’ employment records, and subpoenas were served upon
relators’ employers.
A review of the time records revealed direct overlaps of certain times when a relator
worked for a non-PCA employer and times when that relator reported providing PCA
services. For example, Gary Johnson submitted a PCA timesheet stating that he performed
PCA services from 8:00 a.m. to 4:00 p.m. on September 8, 2013, while his employment
2 records showed that he worked at Wensman Seed Company from 4:21 a.m. to 3:19 p.m.
that day. Joshawa Johnson submitted a PCA timesheet stating that he performed PCA
services from 6:00 a.m. to 3:00 p.m. on August 1, 2013, while his employment records
showed that he worked from 6:00 a.m. to 5:00 p.m. at Central Minnesota Masonry.
Overpayments for the period audited totaled $733.04 for Gary Johnson and $3,723.83 for
Joshawa Johnson.
Relators signed multiple timesheets acknowledging that it is a federal crime to
provide false information on PCA billings and that their signatures verified that the time
and services entered were accurate and performed as specified in the care plan. These time
records were also required to be signed by a responsible party. The responsible party’s
signatures on relators’ timesheets appeared to be identical across multiple timesheets,
indicating that the timesheets may have been signed beforehand and photocopied.
On July 30, 2014, DHS sent each relator a notice, stating that each would be
suspended from MHCP beginning 30 days after July 30, 2014 and each had a right to
appeal. Gary Johnson was notified of a one-year suspension, while Joshawa Johnson was
notified of a two-year suspension. Relators timely appealed. Based on an internal review,
DHS determined the suspensions were appropriate.
On March 3, 2015, an administrative law judge (ALJ) issued an order requiring the
parties to exchange and file their proposed exhibit and witness lists by April 20, 2015. A
consolidated case hearing was held on May 1, 2015, and the ALJ heard testimony from
Gary Johnson, Joshawa Johnson, and the SIRS investigator. The investigator testified
about his investigation, his recommendation, and the management team’s review. The
3 investigator testified that R.J.’s time journal, which purportedly detailed the time during
which relators provided PCA services, was not submitted to DHS with relators’ timesheets.
Gary Johnson testified that he did the paperwork for both himself and Joshawa Johnson,
made clerical errors, and mistakenly thought he was turning in the correct hours. Joshawa
Johnson testified that he did not do much with the paperwork and that the times were put
in inaccurately.
During the hearing, Gary Johnson informed the ALJ that he spoke with R.J. during
a break and that R.J. wished to speak by phone about her daily log. The ALJ told Gary
Johnson that it was up to him whether to call R.J. as his witness. DHS stated that it was
not challenging whether R.J. kept the time journal and explained that was not the basis for
relators’ suspensions. The ALJ asked Gary Johnson if the purpose of having R.J. testify
was to say that she kept the time journal. Gary Johnson responded, “Okay. That – Yes,
that’s the only thing. I would only make the assumption she’d have other comments on
the fact that we do care for her . . . . But I – I really have nothing else to say . . . . As long
as, hopefully, the Court understands that it wasn’t intentional.” Gary Johnson did not later
request to call or attempt to call R.J. as his witness.
The ALJ addressed certain documents that she considered excluding from the
hearing. The ALJ explained she would not admit documents relating to training, because
whether relators’ training was current would have no bearing on the decision. The ALJ
asked Gary Johnson what his purpose was for submitting the documents that he sent the
day before the hearing. Gary Johnson explained that he thought that the paystubs “were
necessary or pertained to this; but as it is, they don’t.” Gary Johnson did not contest the
4 accuracy of DHS’s payroll documents, but noted only that the documents were inaccurate
in the sense that he made mistakes by writing down the wrong times. The ALJ explained
that she would not admit the documents that were submitted the day before the hearing.
On May 14, 2015, the ALJ issued separate findings of fact, conclusions of law, and
recommendations for each relator. In each, the ALJ found that “[t]he Appellant admitted
that the PCA hours he reported were erroneous.” The ALJ additionally found that “[t]he
Appellant’s private employment records were reliable and accurate, and the Appellant’s
own reporting of his PCA time was not reliable or accurate.” The ALJ concluded that DHS
established by a preponderance of the evidence that relators submitted timecards on which
required information was incorrect and which sought reimbursement for personal care
assistance that was not reimbursable because it was not provided. The ALJ concluded that
this constituted abuse pursuant to Minnesota Statutes section 256B.064, subdivision 1a(1)-
(3) (2014), and as defined by Minnesota Rule 9505.2165, subpart 2(A)(1), (3) (2015). The
ALJ concluded that DHS considered the nature, chronicity, and severity of relators’
conduct and recommended that DHS’s determinations and sanctions be upheld.
The record remained open until July 30, 2015. Both parties filed exceptions. The
commissioner issued an order with respect to each relator “upon review of the ALJ’s
recommended order, based upon all the files, records, and proceedings herein.” In her
October 15, 2015 order, the commissioner found that DHS showed by a preponderance of
the evidence that Gary Johnson billed for PCA services that he did not provide in violation
of Minnesota Statutes section 256B.064 (2014). Considering the number of
misrepresentations, the period over which they occurred, and Gary Johnson’s testimony
5 that he completed the paperwork for Joshawa Johnson, the commissioner adopted the
ALJ’s determination that DHS appropriately suspended Gary Johnson for one year.
In her October 20, 2015 order, the commissioner found that DHS showed by a
preponderance of the evidence that Joshawa Johnson billed for PCA services he did not
provide in violation of Minnesota Statutes section 256B.064. Considering the number of
misrepresentations, the period over which they occurred, and Gary Johnson’s testimony
that he completed the paperwork for Joshawa Johnson, the commissioner rejected the
ALJ’s determination that a two-year suspension was appropriate and reduced Joshawa
Johnson’s suspension to one year.
DECISION
“Administrative-agency decisions enjoy a presumption of correctness and may be
reversed only when they are arbitrary and capricious, exceed the agency’s jurisdiction or
statutory authority, are made upon unlawful procedure, reflect an error of law, or are
unsupported by substantial evidence in view of the entire record.” In re Revocation of
Family Child Care License of Burke, 666 N.W.2d 724, 726 (Minn. App. 2003); Minn. Stat.
§ 14.69 (2014). “The relator has the burden of proof when challenging an agency
decision . . . .” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 660
N.W.2d 427, 433 (Minn. App. 2003).
Relators argue that DHS acted beyond its statutory authority by suspending them.
The commissioner may impose sanctions, including suspensions, against vendors for:
(1) fraud, theft, or abuse in connection with the provision of medical care to recipients of public assistance; (2) a pattern of presentment of false or duplicate claims or claims for services
6 not medically necessary; [or] (3) a pattern of making false statements of material facts for the purpose of obtaining greater compensation than that to which the vendor is legally entitled[.]
Minn. Stat. § 256B.064, subds. 1a-1b. When imposing these sanctions, the commissioner
must consider the nature, chronicity, or severity of the conduct and the effect of the conduct
on the health and safety of persons served by the vendor. Id., subd. 1b. Minnesota Rule
9505.2165 defines “vendor” to include a PCA and defines “abuse” to include submitting
repeated claims, or causing claims to be submitted, (1) from which required information is
missing or incorrect; (2) using procedure codes that overstate the level or amount of health
service provided; or (3) for health services which are not reimbursable under the programs.
Minn. R. 9505.2165, subps. 2(A)(1)-(3), 16a.
Relators are vendors who may be sanctioned by the commissioner. The
commissioner affirmed that relators “submitted improper claims, specifically false claims,
for reimbursement in violation of Minnesota Law.” The commissioner properly considered
the nature, chronicity, and severity of the violations committed by relators, as well as
relators’ arguments about the time they spent caring for R.J. The commissioner did not
exceed her statutory authority by imposing relators’ one-year suspensions.
Relators argue that DHS’s decision to suspend them reflects an error of law, but fail
to specify what error occurred. Appellate courts “will not consider pro se claims on appeal
that are unsupported by either arguments or citations to legal authority.” State v. Bartylla,
755 N.W.2d 8, 22 (Minn. 2008). Because relators have not identified any error, they have
failed to meet their burden to prove that the suspensions reflect an error of law.
7 Relators additionally argue that DHS acted upon an unlawful procedure by failing
to interview witnesses, failing to accept all relevant evidence, relying on a non-credible
informant, and relying on irrelevant evidence. For the following reasons, we conclude that
relators have failed to prove that DHS acted upon an unlawful procedure.
First, relators argue that DHS erroneously failed to interview witnesses. DHS is
authorized to “[m]ake uniform rules, not inconsistent with law, for carrying out and
enforcing the provisions hereof in an efficient, economical, and impartial manner, and to
the end that the medical assistance system may be administered uniformly throughout the
state.” Minn. Stat. § 256B.04, subd. 2 (2014). Under this authority, DHS promulgated
Minnesota Rule 9505.2200 (2015), which specifies the manner in which the agency will
identify fraud, theft, abuse, or error. DHS investigates vendors to monitor compliance with
program requirements and may contact any person, agency, or other entity necessary to an
investigation for the purpose of identifying fraud, theft, abuse, or error in the administration
of its programs. Minn. R. 9505.2200, subps. 1-3. In its investigation, DHS was permitted
to interview a number of persons, but was not required to do so. DHS’s failure to interview
R.J. was not error. During the hearing, the ALJ told Gary Johnson that it was up to him
whether to call R.J. as his witness. The ALJ’s failure to receive R.J.’s testimony was not
error, as Gary Johnson chose not to call R.J. after the ALJ informed him that he could do
so. Relators have failed to prove that DHS acted by an unlawful procedure by failing to
interview witnesses.
Relators also assert that DHS failed to accept all relevant evidence. Prior to the
hearing in a contested case, the ALJ may order the parties to exchange witness lists and all
8 written exhibits by a certain date. Minn. R. 1400.6950, subp. 1 (2015). Here, the ALJ
ordered the parties to exchange and file witness lists and exhibits by April 20, 2015.
Although somewhat unclear, it appears that the ALJ excluded only documents that were
submitted after this deadline. The record also shows that the ALJ determined that some of
the excluded documents had no bearing on the decision and that Gary Johnson admitted
during his testimony that the paystubs he submitted did not appear necessary. The ALJ’s
decision to exclude these documents was not erroneous. Relators have failed to prove that
DHS acted by an unlawful procedure by failing to accept all relevant evidence.
Relators argue that DHS relied on irrelevant evidence and a non-credible informant
by considering the inaccurate timesheets that relators submitted and the information that
Tender Hearts’ owner provided. DHS was permitted to review and consider all evidence
likely to lead to information relevant to the expenditure of funds, provision of services, or
purchase of items. Minn. R. 9505.2200, subp. 3. Similarly, the ALJ was permitted to
review the evidence before her. See Minn. R. 1400.7300, subp. 1 (2015) (allowing
evidence possessing probative value if it is the type which reasonable, prudent persons are
accustomed to rely on in conducting serious affairs). Relators have not established that the
challenged evidence lacked relevance to the expenditure of funds, provision of services, or
purchase of items. As a result, relators have failed to prove that DHS acted by an unlawful
procedure by relying on irrelevant evidence and a non-credible informant.
Finally, we review the procedures used by the commissioner. Agency officials
issuing the final decision in a contested case may not render the final decision until the
ALJ’s report has been made available to the parties for at least ten days and each party
9 adversely affected has been afforded an opportunity to file exceptions and present
argument to a majority of the officials who will render the decision. Minn. Stat. § 14.61,
subd. 1 (2014). The contested case record must close upon the filing of any exceptions and
presentation of argument or upon expiration of the deadline for doing so, and the agency
must notify the parties and the ALJ of the date when the hearing record is closed. Id.,
subd. 2 (2014). The decision and order must be written, based on the record, and include
the agency’s findings of fact and conclusions on all material issues. Minn. Stat. § 14.62,
subd. 1 (2014). If the decision or order rejects or modifies a finding of fact, conclusion, or
recommendation contained in the ALJ’s report, the reasons for each rejection or
modification must be included. Id., subd. 2a (2014).
The ALJ issued her findings of fact, conclusions of law, and recommendations on
May 14, 2015. Both parties filed exceptions. Relators, respondent, and the ALJ were
notified that the record closed on July 30, 2015. The commissioner issued a written order
with respect to each relator, “upon review of the ALJ’s recommended order, based upon
all files, records, and proceedings herein.” The orders included the ALJ’s findings of fact
and conclusions on all material issues, and provided reasons to support each rejection and
modification to the ALJ’s findings, conclusions, and recommendations. Relators fail to
point to any evidence of error and have not met their burden to prove that the commissioner
acted upon an unlawful procedure.
Relators assert that the commissioner’s suspension decisions are arbitrary and
capricious. “A reviewing court must defer to the agency’s fact-finding process and be
careful not to substitute its findings for those of the agency.” Burke, 666 N.W.2d at 726.
10 It must also defer to an agency’s choice of sanction absent a clear abuse of discretion. Id.
However, a court is not bound by the agency’s ruling on legal issues. Id.
The commissioner adopted the following findings of fact made by the ALJ. A
review of the time records revealed instances of direct overlaps of certain times when Gary
Johnson worked at AgReliant1 and Masterson and times when Gary Johnson reported
providing PCA services to R.J., as well as direct overlaps of certain times when Joshawa
Johnson worked at Central Minnesota Masonry and times when Joshawa Johnson was
reported as having provided PCA services to R.J. Neither relator disputed the accuracy of
his Department of Employment and Economic Development employment records. Each
admitted that the PCA hours he reported were erroneous.
The commissioner affirmed the ALJ’s determination that each relator had “billed
for PCA services that he did not provide.” The commissioner also affirmed that relators
submitted false claims for reimbursement. Because the commissioner may sanction
vendors who submit false claims for reimbursement, the commissioner’s findings and
determinations, as well as the record, support the imposition of sanctions.
When imposing sanctions, the commissioner must consider the nature, chronicity,
or severity of the conduct and the effect of the conduct on the health and safety of persons
served by the vendor. Minn. Stat. § 256B.064, subd. 1b. To determine the appropriateness
of the recommended suspensions, the commissioner properly considered the length of time
over which the misrepresentations occurred, the number of incidents, and the testimony of
1 The ALJ and commissioner found credible the SIRS investigator’s explanation that AgReliant is a seed company and is at times referred to as Wensman Seed.
11 Gary Johnson that he completed the paperwork for Joshawa Johnson, who relied on him to
accurately account for services rendered. The commissioner did not abuse her discretion
by deciding to impose one-year suspensions on relators. Relators have not met their burden
to prove that the commissioner’s decisions were arbitrary and capricious.
Relators argue they are entitled to receive reimbursement of their expenses. A party
who prevails on a writ of certiorari in a civil proceeding is entitled to costs against the
adverse party. Minn. Stat. § 606.04 (2014). Because relators have not met their burden in
challenging DHS’s suspensions, they are not entitled to costs.
Relators also argue that they are entitled to back wages, but admit that the owner of
Tender Hearts is responsible for their lack of payment. Because relators have failed to
show that DHS is responsible for the challenged non-payment, relators are not entitled to
back wages from DHS.
Finally, relators argue that their names and information should be cleared from the
record or sealed from the public, but cite no legal authority to support their request.
Appellate courts do not consider pro se arguments on appeal that are unsupported by either
arguments or citations to legal authority. Bartylla, 755 N.W.2d at 22. As a result, we do
not reach relators’ request.
Affirmed.