Preview:

STATE OF MINNESOTA IN COURT OF APPEALS A11-754 Michael Scott Anderson, Relator, vs. Commissioner of Health, Respondent. Filed January 30, 2012 Affirmed Ross, Judge Concurring specially, Minge, Judge Minnesota Department of Health ID No.: 00741 Daniel Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for relator) Lori Swanson, Attorney General, Audrey Kaiser Manka, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Ross, Judge. SYLLABUS A health-care worker convicted of criminal sexual conduct and disqualified from providing direct-care health services at state-licensed facilities has no statutory right to have his disqualification reconsidered by the commissioner of health under Minnesota Statutes section 245C.29 to determine whether he poses a risk of harm to patients, because the commissioner has no discretion to set the disqualification aside.

OPINION ROSS, Judge The commissioner of health permanently disqualified children's hospital nurse Michael Anderson from working in a direct-care position at licensed facilities after the state convicted Anderson of fifth-degree criminal sexual conduct. Anderson asked the commissioner to reconsider and set aside his disqualification because he contends that he can prove he poses no risk of harm. The commissioner declined, concluding that the Minnesota disqualification statute, section 245C.15, affords him no discretion to grant a set-aside even on a showing of no risk because the disqualification rests on a criminalsexual-conduct conviction. Anderson argues on appeal that the commissioner's decision is contrary to law and that due process requires a risk-of-harm analysis. Because the commissioner accurately recognized that he lacks discretion to set aside Anderson's disqualification and the failure to conduct a risk-of-harm analysis did not violate Anderson's due process rights, we affirm. FACTS Michael Anderson, a children's hospital nurse, stopped at a bar near his Rockford home one evening in December 2009 after Christmas shopping. Anderson claims a partial loss of memory, but he does recall eating, drinking, and playing pull tabs. At some point he was intoxicated and on the dance floor, where he groped a woman's crotch. That's the part he does not remember. A bar employee removed Anderson, and the next week a sheriff's deputy came to his home and told him what he was accused of and that he was being criminally charged. 2

Anderson entered a Norgaard plea to fifth-degree criminal sexual conduct under Minnesota Statutes section 609.3451 (2008). See State ex rel. Norgaard v. Tahash, 261 Minn. 106, 113

Download A11-754, Michael Scott Anderson, Relator, vs. Commissioner of Health, Respondent

Minnesota Law