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On November 3, 2023, the Office of Inspector General, Legal Counsel’s Office, sent you a Correction Order Reconsideration Determination in which the first paragraph includes an error stating the Commissioner determined there was “insufficient” evidence to support the citation. Please disregard the November 3, 2023, letter. The correct reconsideration decision follows below. November 8, 2023 Genesis Cocoran 22956 County Road 50 Hamel, MN 55340-9745 License Number: 1087993 (245D – HCBS) Dear Mr. Freshour: The Minnesota Department of Human Services (DHS), Division of Licensing, received your request for reconsideration regarding the citation in the Correction Order issued to you on April 11, 2023. After an independent review of the record, the Commissioner has determined that there is sufficient evidence to support the citation. Reconsideration Determination Citation. A citation was issued because the license holder restricted the resident’s right to the kitchen without a rights restriction in place. Applicable Law. For a person residing in a residential site licensed under 245A, or where the license holder is the owner, lessor, or tenant of the residential service site, protection-related rights include the right to have the use of and free access to common areas in the residence and the freedom to come and go from the residence at will. Restriction of a person’s rights under paragraph (a), clauses (13) to (16), or paragraph (b), is allowed only if it is determined necessary to ensure the health, safety, and well-being of the person. Any restriction of those rights must be documented in the person’s support plan or support plan addendum. The restriction must be implemented in the least restrictive alternative manner necessary to protect the person and provide support to reduce or eliminate the need for the restriction in the most integrated setting and inclusive manner. The documentation must include the following information: 1. The justification for the restriction based on an assessment of the person’s vulnerability related to exercising the right without restriction; 2. The objective measures set as conditions for ending the restriction; 3. A schedule for reviewing the need for the restriction; and 4. Signed and dated approval for the restriction from the person, or the person’s legal representative, if any. A restriction may only be implemented only when the required approval has been obtained. Minnesota Statutes, section 245D.04, subdivision 3(b)(16) and subdivision 3(c). Your Response. You admit the kitchen was locked. However, you argue the kitchen it is not a common area because Minnesota Statutes, section 245D.24, subdivision 2, regarding common area requirements only addresses living and dining areas. You contend the locked kitchen doors did not prevent the residents from accessing food because staff was present to help the residents access food, day and night. You argue none of the residents or their guardians complained about the kitchen, and none expressed that they wanted to live elsewhere because the kitchen is locked. You state the license holder was required to lock the kitchen if the residents support plan required them to do so. You claim giving free access to the kitchen would endanger the residents and would result in sanctions by DHS. You state that regardless of the outcome of the reconsideration request you will not comply with the direction to remove the locked kitchen doors. Reconsideration Determination. The resident did not have use of and free access to common areas. Even if staff gave the residents food, the locked kitchen prevented the residents from use of and free access to the kitchen because they were not permitted to enter it. A kitchen is a common area in a residence. Although Minnesota Statutes, 245D.24, subdivision 2, which discusses common areas, specifically mentions living and dining areas, it does not state the dining and living areas are the only common areas, nor does it exclude the kitchen as a common area. Therefore, the law required you to give the resident use of and free access to the kitchen. Yet, it was observed, and you, in your reconsideration request admit, the kitchen was locked. You could have restricted access to the kitchen if you had documentation of a rights restriction as defined by Minnesota Statutes, section 245D.04, subdivision 3(c), however you failed to provide documentation of a rights restriction. Minnesota Statutes, section 245A.06, subdivision 3, requires the license holder to include documentation with their reconsideration request to support their allegation that the citation was issued in error, and you have not provided any documentation that shows the citation was incorrect. There is sufficient evidence to support the citation and it is affirmed. Disposition The Commissioner has reviewed the relevant laws and all of the information you submitted in response to the Correction Order. There is sufficient evidence to support the citation and it is affirmed. If the commissioner finds the license holder has not corrected the violations specified in the correction order, the commissioner may impose a fine and order other licensing actions pursuant to section 245A.07. Minnesota Statutes, section 245A.06, subdivision 3. This is a final agency decision. Sincerely,
Kofi Montzka, Attorney Legal Counsel’s Office Office of Inspector General Cc Samuel Orbovich Fredrikson & Byron, PA 60 South Sixth Street, Suite 1500 Minneapolis, MN 55402-4400
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