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January 24, 2025 Alexander Lancaster 5435 Eisenhower Lane SE Rochester, MN 55904 License Number 1113388 AFC Dear Mr. Lancaster: On May 10, 2024, the Minnesota Department of Human Services (DHS) issued an Order of Conditional License to the license holder. (See attached Exhibit A). On June 27, 2024, DHS received the license holder’s request for reconsideration of the of Conditional License. I. RECONSIDERATION OF CONDITIONAL LICENSE A. The license holder’s arguments on reconsideration On May 10, 2024, DHS issued an Order of Conditional License because the license holder violated Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3), when the license holder failed to ensure the Adult Foster Care residents had access to the common areas on the upper level of the residence. In its request for reconsideration of the Conditional License, the license holder raised three arguments, each of which is addressed below. First, the license holder argues the second kitchen located on the upper floor of the residence is generally not used by the family or the Adult Foster Care (“AFC”) residents and that no resident has ever requested access to the second kitchen. The license holder contends the expense and disruption of adding an elevator would vastly outweigh “the nonexistent” benefits to the AFC residents. Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3), lists AFC resident rights and states they must “have use of and free access to common areas in the residence…” There is no exception in the statute for when the residents do not request access to the common areas or when there would be an expense or disruption to allow access. Second, the license holder disputes the citations in the November 20, 2023, and February 7, 2024, Correction Orders. He argues he did not violate Minnesota Rule, part 9555.6205, subparts 2 and 3, which were violations in the two Correction Orders. However, these Correction Orders are final because the license holder did not submit a timely request for reconsideration. See Minn. Stat. § 245A.06, subd. 2. Third, the license holder argues the failure to provide an elevator to access the living room, kitchen, and dining room on the upper floor does not violate the residents’ rights and is without a legal basis. He argues Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3), does not require residents to have access to “all” common areas. The license holder contends that it is commonplace for family homes to deny access to some areas for the family members, such as when children are barred from workbench-type areas for safety reasons or when nonmobile members of a family to not have access to an attic. AFC residents must “have use of and free access to common areas in the residence…” Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3). The law states AFC residents must have use of and free access to common areas “in the residence,” and there is no limiting language excepting some common areas from the access requirement. The law also states the residents must have “access to” common areas, meaning the AFC residents must be able to access the common areas of the home, even if they choose not to use them. Since three residents require a wheelchair to ambulate, there is no way for them to reach the common areas on the upper level of their home as required. The license holder violated Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3). This is citation is affirmed. B. A conditional license is warranted The Commissioner determined that it was appropriate to place the license holder’s license on conditional status based on the nature, severity, and chronicity of the violations as well as Commissioner’s evaluation of the program. Nature, severity, or chronicity Under Minnesota Statutes, section 245A.06, subdivision 1, the Commissioner must consider the nature, severity, or chronicity of the violation of the law or rule and the effect of the violation on the health, safety, or rights of persons served by the program when issuing a conditional license. The nature of the violation involved a violation of the resident’s rights. This is a family setting and the three residents were not able to access the other common areas of the home, that other family members could use and access. Under Minnesota Statutes section, 245A.11, subdivision 10, AFC resident rights include the right to have the use of and free access to the common areas of their home. The three residents in wheelchairs are not able to access the common areas on the upper level of the home: a living room, dining room, and kitchen. Even if they do not choose to use the upper-level common areas, the law requires they be able to access them. Without access to those common areas, they are isolated to the bottom level of their home, which limits their interaction with other members of the AFC residence. The violation is severe because the residents’ rights are being restricted without a rights restriction in place. Under Minnesota Statutes section, 245A.11, subdivision 10, paragraph (3), AFC resident rights include the right to have the use of and free access to the common areas in the residence. The same subdivision, Minnesota Statutes, section 245A.11, subdivision 10, paragraph (c), provides that “a restriction of a resident’s rights under paragraph (b), clauses (1) to (4), (6), (8), (10), and (11), is allowed only if determined necessary to ensure the health, safety, and well-being of the resident.” The rights in paragraph 3, which is at issue here requires a rights restriction. As such, any restriction of this right must be documented and justified in the residents’ individual abuse prevention plan. This statute has other specific requirements for a rights restriction, none of which were met here. Regarding chronicity, in addition to the Conditional License issued on May 10, 2024, the license holder had two prior Correction Orders on November 20, 2023, and February 7, 2024, and both resulted from the License Holder failing to ensure all AFC residents had access to the common areas on the second level of the residence. The corrective action did not require the license holder to install an elevator but required him to have a “plan to correct before 2/15/2024,” and he did not complete the corrective action. The violations for the same conduct demonstrate that the license holder has a history of noncompliance with licensing rules and statutes. The Commissioner’s evaluation of the program The Commissioner determined that it was appropriate to place the license on conditional status based on the Commissioner’s evaluation of the program, under Minnesota Statutes, section 245A.04, subdivision 6. Before making a license conditional, the Commissioner shall evaluate information gathered under Minnesota Statutes, section 245A.04, subdivision 6. The Commissioner’s evaluation shall consider the applicable requirements of statutes and rules for the program or services. Minn. Stat. § 245A.04, subd. 6(a). The Commissioner shall also evaluate, facts, conditions, or circumstances concerning five factors, including the program operation and well-being of persons served by the program. Id. at subd. 6(a)(2), (4). DHS considered applicable requirements of statutes and rules, the program’s operation, and the well-being of the persons served. The license holder violated an applicable statute, Minnesota Statutes, section 245A.11, subdivision 10, paragraph (b), subparagraph (3), because the residents did not have use of and access to all common areas in the residence. The license holder also violated the law regarding the resident’s rights because their right to access common areas of the home was restricted without a rights restriction. Regarding the program’s operation and well-being of persons served, the AFC residence is the residents’ home, and they were isolated to one floor without any access to common areas on the upper level. This isolation impacted their ability to interact with others in the family setting, which has a direct impact on their well-being. The Commissioner determined that a conditional license is warranted. The Commissioner affirms the May 10, 2024, Order of Conditional License. The period of the conditional license is six months, beginning on January 24, 2025, which is the date of this reconsideration decision. Because the terms of the conditional license were stayed pending a decision on the license holder’s request for reconsideration, the terms of the conditional license begin from the date of receipt of this letter. II. TERMS OF THE CONDITIONAL LICENSE In addition to the licensing rules and statutes for child foster care, you are required to comply with the following terms: 1. You shall comply with all applicable rules and laws. 2. No variances will be granted during the conditional license period. 3. Within 30 days of this order, you must submit to Olmsted County at least two written bids for the work required to make your home accessible to all individuals served. Each bid must include a detailed description of modifications to be made, the total cost, and a timeline for when the work can be completed. 4. Within 30 days of Olmsted County’s approving a bid, you must submit a signed contract detailing the agreed upon work, and the timelines for commencement and completion, to Olmsted County. 5. Once work commences, you must update Olmsted County in writing every two weeks on the progress in making common areas of your home internally accessible to all persons served with an expectation that you will achieve compliance within the six-month period of this conditional order. III. RIGHT TO APPEAL TO THE MINNESOTA COURT OF APPEALS This is a final agency decision and is subject to further review only by the Minnesota Court of Appeals. Please note that there are time limits for seeking review by the Minnesota Court of Appeals. See Minnesota Statutes, Chapter 606 and Minnesota Rules of Civil Appellate Procedure, Rule 115. If you have any questions regarding the Order of Conditional License, please contact Cory Jelinek, Supervisor, at 651-431-3512. Sincerely,
Kofi Montzka, Attorney Legal Counsel’s Office Office of Inspector General cc: Jason Steck Law Office of Jason Steck 525 Park Street, Suite 320 St. Paul, MN 55103 Ellen Turner, Olmsted County Community Services
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