author: MINGE, Judge.

text:
    Shaina SHAGALOW, Appellant, v. STATE of Minnesota, DEPARTMENT OF HUMAN SERVICES, Respondent.
    No. A06-246.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.

      Corey L. Gordon, Shapiro Gordon, LLC, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Robin Christopher Vue-Benson, Erika Schneller Sullivan, Assistant Attorneys General, St. Paul, MN, for respondent.

      Considered and decided by MINGE, Presiding Judge; LANSING, Judge; and KLAPHAKE, Judge.
   OPINION

MINGE, Judge.

Appellant challenges the decision of respondent Minnesota Department of Human Services (DHS) denying Medical Assistance coverage for habilitation services in Jerusalem, Israel. Appellant claims that there is no habilitation services program appropriate for her condition and compatible with her religious beliefs in Minnesota; that the only residential habili-tation program providing suitable services consistent with her beliefs is in Jerusalem, Israel; that rules governing the Medical Assistance program do not preclude payment for these services in Israel; and that denial of payment to the Israeli provider is improper, violates her right to religious freedom under the federal and state constitutions, and violates the Americans with Disabilities Act (ADA). Because we conclude that the state's decision not to pay for these services is not arbitrary and capricious, is not erroneous, was based on religiously neutral reasons, and does not directly affect appellant’s religious beliefs or practices, and that granting appellant’s request would place an unreasonable burden on the state’s administration of its Medical Assistance program, we affirm.

FACTS

Appellant Shaina Shagalow is a young Jewish Orthodox woman who has been diagnosed with mild mental retardation. She also has a developmental cognitive disorder and attention deficit hyperactivity disorder. Appellant reads at a sixth-grade level and requires assistance with grooming and similar everyday tasks. Appellant is dependent on others to make legal and medical decisions, and her parents are her court-appointed legal guardians.

Appellant attended a private Jewish Orthodox school for girls from the fourth grade through high school. She lived at home while she attended school. As high school graduation approached, her family began searching for habilitation programs for young adults that were also compatible with her Jewish Orthodox faith. Habilitation services assist persons to develop skills to live in society. Minn. R. 9525.1800, subp. 13a (2006). Appellant’s family knew that no day program consistent with appellant’s Orthodox faith is available in Minnesota. The only residential habilitation program which appellant’s parents could identify that adheres to Jewish Orthodox practices including gender segregation, strict observance of the Sabbath, and food preparation and consumption, is one conducted by Midreshet Dar-kaynu (Darkaynu), located in Jerusalem, Israel. There are no such residential Jewish Orthodox programs in the United States.

Appellant requested that the Hennepin County Children, Family, and Adult Services Department (county) provide financial support for habilitation services at Darkaynu as a part of Minnesota’s Medical Assistance program. Medical Assistance is this state’s part of the federal Medicaid program. Appellant does not request assistance for the room and board or travel portions of the program, only habilitation services. The county denied appellant’s request, and appellant requested review. The denial was upheld by a referee at DHS, and the commissioner of DHS adopted the referee’s decision. Appellant sought review of that decision by the Hen-nepin County District Court. The district court upheld the decision. This appeal follows.

ISSUES
I. Did DHS err in refusing to pay for habilitation services at Darkaynu for appellant?
II. Does DHS’s refusal to pay for ha-bilitation services for appellant at Dar-kaynu violate her right to religious freedom secured by the United States Constitution and the Minnesota Constitution?
III. Does DHS’s refusal to pay for ha-bilitation services for appellant at Dar-kaynu violate the Americans with Disabilities Act?

ANALYSIS

“On appeal from the district court’s appellate review of an administrative agency’s decision, this court does not defer to the district court’s review, but instead independently examines the agency’s record and determines the propriety of the agency’s decision.” Johnson v. Minn. Dep’t of Human Servs., 565 N.W.2d 453, 457 (Minn.App.1997). In accordance with the Minnesota Administrative Procedure Act (APA), the reviewing court may “reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative ... decision” was:

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.

Minn.Stat. § 14.69 (2004). “Agency decisions are presumed to be correct by reviewing courts....” In re Hutchinson, 440 N.W.2d 171, 176 (Minn.App.1989), review denied (Minn. Aug. 9, 1989). Moreover, appellate courts generally defer to an agency’s expertise. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). The party challenging the agency decision has the burden of proving grounds for reversal. Markwardt v. State Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977); Johnson, 565 N.W.2d at 457.

I.

MEDICAL ASSISTANCE COVERAGE

The first issue is whether DHS’s decision was improper. Appellant challenges the conclusion of law that Medical Assistance funds may not be used to pay for services provided outside of the United States and claims that DHS and the county had discretion to pay for such services. Although it is not clear whether appellant claims that DHS erred as a matter of law and appellant does not expressly allege that the refusal was arbitrary and capricious, we will initially construe the appeal from that perspective because those are relevant standards for judicial review.

Both parties concede from the outset that there is no federal or state statute or regulation that explicitly prohibits Medical Assistance from paying for services provided outside of the country. Likewise, while Minnesota law permits payment of Medical Assistance to licensed Canadian institutions under some circumstances, Minn.Stat. § 256B.25, subd. 1 (2004), appellant cannot point to any explicit legal provisions requiring DHS to pay for habil-itation or other services being delivered outside of the United States. Moreover, there is no evidence that other states have authorized their Medicaid programs to pay out-of-country service providers. The federal and state legal framework, largely, does not speak to the question here. However, that framework and its administration are relevant to our decision.

A. Medical Assistance Habilitation Services and the Waiver

Appellant requests benefits through the Consumer-Directed Community Support (CDCS) portion of Minnesota’s Medical Assistance program. Minnesota participates in the federal program by contracting with the Centers for Medicare & Medicaid Services (CMS), the federal agency that administers Medicaid. See 42 U.S.C. § 1396a (2000 & Supp.2003).

Appellant points out that Minnesota’s CDCS program is operated pursuant to a waiver granted by CMS and argues that the flexibility afforded in the waiver allows for payment of services provided by Dar-kaynu. CMS is authorized to grant such waivers from the standard Medicaid requirements. 42 U.S.C. § 1396n(b) (2000 & Supp.2003); 42 C.F.R. § 430.25 (2005). Minnesota requested, and was granted a waiver to pay for home and community-based services, including habilitation services, to mentally disabled persons. Minnesota’s CDCS program waiver permits beneficiaries to work with a case manager to design a service plan for their unique needs as follows:

Recipients or their representative hire, fire, manage and direct their support workers....
Recipients or their representatives have control over the goods and services to be provided through developing the community support plan, selecting vendors, verifying that the service was provided, evaluating the provision of the service, and managing the CDCS budget....
The recipient or their representative will direct the development and revision of their community support plan and delivery of the CDCS services.
The support plan will also specify provider qualification and training requirements, who is responsible to assure that the qualification and training requirements are met, and whether or not a criminal background study will be required for each service.

State of Minnesota, Renewal of the Home and Community-Based Service Waiver for People With Mental Retardation or Related Conditions (MR/RC), Appendix B-l, 37-39 (Jan. 1, 2003) [hereinafter MR/RC Waiver],

Appellant asserts that the control granted to recipients under the waiver gives the recipient broad discretion to select service providers and that the primary monitor of quality assurance, as well as the health and safety of the services provided, is the recipient, not DHS or the county. We acknowledge that the flexibility of the waiver supports appellant’s claim that the county has the discretion to design a program to accommodate her legitimate religious claims. Appellant in effect asserts that in her situation, failure to accommodate her claims is an abuse of discretion or arbitrary and capricious.

Although flexible, the CDCS waiver program includes several safeguards to ensure service providers meet health and safety requirements and comply with applicable licensing statutes. In its administration of the Medical Assistance waiver, the state must demonstrate that it will employ necessary safeguards to protect the health and safety of the beneficiaries, as well as the financial integrity of the program. 42 C.F.R. § 441.302(a), (b) (2005). Minnesota law incorporates similar protections. MinmStat. §§ 256B.092, subd. 4, .49, subd. 19 (2004). The waivers are not a license to ignore federal standards. If the state does not comply with the requirements delineated in the approved waiver program, federal law requires termination of the program, or withholding of federal matching funds. 42 U.S.C. § 1396n(f)(l) (2005); 42 C.F.R. § 441.302 (2005).

These licensing and monitoring responsibilities are not limited to services provided inside the United States, and the burden of meeting these responsibilities is relevant to deciding whether the state is obligated to pay for the services at Dar-kaynu requested by appellant and whether its decision not to do so is arbitrary and capricious.

B. Oub-of-StaAe Services

The nature of DHS’s authority to pay for services in other states is also relevant to our analysis of appellant’s claims for coverage of services outside the United States. The federal regulation governing Medicaid payments for services provided outside the state of residence reads as follows:

(b) Payment for services. A State plan must provide that the State will pay for services furnished in another State to the same extent that it would pay for services furnished within its boundaries if the services are furnished to a recipient who is a resident of the State, and any of the following conditions is met:
(1) Medical services are needed because of a medical emergency;
(2) Medical services are needed and the recipient’s health would be endangered if he were required to travel to his State of residence;
(3) The State determines, on the basis of medical advice, that the needed medical services, or necessary supplementary resources, are more readily available in the other State;
(4)It is general practice for recipients in a particular locality to use medical resources in another State.

42 C.F.R. § 431.52(b) (2005). Thus, the federal regulation expressly requires Medicaid payments to out-of-state providers in limited circumstances. Arguably, the interpretive canon expressio unius est exclusio alterius applies; by expressly providing for out-of-state payments the regulation thereby impliedly excludes payment to out-of-country service providers. See, e.g., Cairl v. City of St. Paul, 268 N.W.2d 908, 912-13 (Minn.1978) (applying the canon in the statutory context). Regardless, it is not logical to expect that Minnesota would have a greater obligation to pay for services in Israel than in another state. Under the regulation, such payment would only be required if there was “medical advice, that the ... necessary supplementary resources, are more readily available in the other State.” 42 C.F.R. § 431.52(b)(3) (2005). This medical advice test is a higher standard than a claim that the out-of-state services are needed to accommodate a personal preference. It suggests that absent a constitutional mandate, DHS has discretion to deny appellant’s request for habilitation services in Israel.

C. Olmstead Amendments

Also relevant to our decision are the so-called Olmstead Amendments. These are policy changes implemented by CMS that affect the way in which states use Medicaid funds for disabled persons. CMS communicated these changes through a series of letters. The language addressing out-of-state services provides:

[A]ny standards applicable to the provision of the service in the State in which the service is furnished must be met, as well as those standards set forth in the approved waiver. If one State were to pay for a service furnished in another, the provider must be qualified under the standards in the waiver, and the service must also meet any applicable requirements in the State in which it is provided.

Letter from CMS to State Medicaid Directors, Olmstead Update No: 3, Attachment 3-e (July 25, 2000), available at http://www.cms.hhs.gov/smdl/downloads/ smd072500b.pdf. The same directive continues, “[t]he State operating the waiver remains responsible for the assurance of the health and welfare of the beneficiary....” Id. Oversight can be performed by the home state or the host state in which services are provided. Id. However, if oversight is provided by the host state, the policy requires that there be “an interstate compact or agreement setting forth the responsibilities of each party.” Id.

These CMS policy changes are relevant to appellant’s request for two reasons. First, by only addressing services furnished in other states, the Olmstead Amendments imply that the waiver program was not intended to fund out-of-country services. Second, the policy reflects the host state’s (Minnesota’s) continuing obligation to monitor the provision of services, another factor that makes it less likely the program was designed to extend funding for services provided outside the United States where such monitoring is a greater challenge.

D.Medicare

Medicare is the federal insurance based health care program that is also administered by CMS and is a companion program to Medicaid. Although federal law governing Medicare does not bind Minnesota’s use of Medicaid funding, it is relevant that with a few limited exceptions (which do not apply to the case before us), federal law explicitly prohibits Medicare from paying for services outside of the United States. See 42 C.F.R. § 411.9 (2005). To allow greater flexibility for Medical Assistance than Medicare is illogical. This- comparison supports DHS’s position that it will not pay for services for appellant in Israel.

E. Minnesota Law

Independent of federal requirements, Minnesota law requires that residential programs offering “24-hour-a-day care, supervision, food, lodging, ... habilitation” be licensed by the state of Minnesota. MinmStat. §§ 245A.02, subd. 14, .03, subd. 1 (2004). Darkaynu is a residential program that provides twenty-four hour care, supervision, food, lodging, and habilitation services, and if it were located in Minnesota, state law would require its licensure. Minnesota law also provides that Medical Assistance payments may not be made “for care in any private or public institution, including but not limited to hospitals and nursing homes, unless licensed by an appropriate licensing authority of this state, any other state, or a Canadian province .... ” Minn.Stat. § 256B.25, subd. 1 (2004). This licensing requirement supports DHS’s legal conclusion that Darkay-nu would have to be licensed for payment to be made. Appellant claims that qualified American professionals regularly travel to Israel and can inspect Darkaynu and certify that it meets all relevant standards. Appellant asserts that her parents or members of the Jewish Orthodox community can arrange for such inspections. However, the awkwardness and informality of such a surrogate arrangement confirms that DHS is not required to pay for services at Darkaynu and that its refusal to do so is not arbitrary and capricious.

F. Conclusion

As previously noted, the flexibility allowed under the Medical Assistance waiver agreement gives DHS discretion to approve appellant’s provider. However, DHS’s discretion is not without limit. The waiver does not vest appellant with the authority to approve her own service plan. That is the role of the county and ultimately, DHS. Furthermore, when one views the waiver in the context of the Medicaid program and the various federal and state laws, regulations, and policy directives, it is questionable whether DHS is authorized to pay for services at a distant facility in Israel. DHS oversight is required to ensure the quality, safety, and financial integrity of waiver services and is emphasized in federal law, 42 U.S.C. § 1396n(f)(l) (2000); federal CMS regulations, 42 C.F.R. § 441.302(a), (b) (2005); the CMS Olmstead policy directives; state law requiring licensure of residential habil-itation service providers, Minn.Stat. § 245A.03, subd. 1; and the text of the waiver itself. MR/RC Waiver, Appendix B-l, 42-43. Despite appellant’s arguments, we conclude that the DHS determination that it does not have such authority is a reasonable exercise of its discretion in interpreting the law under which it operates. Given DHS’s expertise in administering its program, this determination is entitled to respect by this court. We conclude that DHS’s decision, denying payment for habilitation services for appellant at Darkaynu, is not an abuse of its discretion, is not in violation of the waiver or of law, and is not arbitrary and capricious.

II.

CONSTITUTIONAL CLAIMS

A. United States Constitution

The next issue is whether refusal by DHS to pay for habilitation services for appellant at Darkaynu violates appellant’s right to religious freedom under the United States Constitution. The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const, amend. I. The religion clauses apply to the states by incorporation into the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

Federal cases interpreting the religion clauses establish that neutral laws of general applicability do not run afoul of the First Amendment, even if they incidentally burden an individual’s religious conduct. Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876 (1990). Such neutral, generally applicable laws “need not be justified by a compelling governmental interest.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472 (1993). But a law that is not neutral or generally applicable “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest,” even if it only incidentally burdens an individual’s free exercise. Id.

Appellant challenges DHS’s refusal to pay for a specific habilitation program. Because of the discretion inherent in DHS’s decision, appellant argues that we should analyze this case under the framework established in the unemployment compensation line of cases represented by Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). In those cases, “developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct,” the Court applied strict scrutiny and struck down neutral and generally applicable unemployment compensation rules that conditioned benefits on an applicant’s willingness to work on Saturdays. Smith, 494 U.S. at 884, 110 S.Ct. at 1603.

We recognize that the strict scrutiny analysis in the unemployment line of cases was not expressly overruled by Smith, and that federal circuit courts have used an individualized assessment approach as an exception to Smith. See, e.g., Axson-Flynn v. Johnson, 356 F.3d 1277, 1297-99 (10th Cir.2004); Swanson v. Guthrie Indep. Sch. Dist. No. 1-L, 135 F.3d 694 (10th Cir.1998). We do not disagree with such applications of an individual assessment, but we decline appellant’s invitation to extend it to her situation. See Smith, 494 U.S. at 883, 110 S.Ct. at 1602 (“We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.”). Instead, we continue to apply the test established in Smith.

Here, in accordance with Smith, DHS’s decision was religiously neutral. DHS’s action was not motivated by a desire to harm, restrict, or burden appellant’s exercise of her religious faith. The decision was neither related to nor did it proscribe appellant’s practice of her Orthodox Jewish faith. Rather, the basis for DHS’s decision was to permit effective monitoring of the quality, health, and financial integrity of waiver services, irrespective of appellant’s exercise of religion. This rationale is not a pretext to conceal religious discrimination or religious animus. In fact, appellant’s alternative CDCS budget was fully approved.

The record on appeal is not developed with respect to the general applicability of DHS’s decision. Appellant does not claim that the county or DHS has approved similar out-of-country requests for members of any other religious group or for anyone regardless of religion. Without more evidence, we cannot conclude that DHS’s decision was either an under- or over-inclusive means to advance its interest in effectively monitoring the provision of waiver services.

We conclude that DHS’s decision was neutral and generally applicable and does not violate the United States Constitution.

B. Minnesota Constitution

The next issue is whether DHS’s decision violated appellant’s right to religious freedom guaranteed by the Minnesota Constitution. The Freedom of Conscience Clause of the Minnesota Constitution states:

The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state....

Minn. Const, art. I, § 16.

We have said that “[t]he language of the Minnesota Constitution regarding religion is of a distinctively stronger character than the federal counterpart and precludes even an infringement on or an interference with religious freedom.” Olson v. First Church of Nazarene, 661 N.W.2d 254, 260-61 (Minn.App.2003) (quotation omitted). To determine whether government action violates an individual’s right to religious freedom we ask: (1) whether the belief is sincerely held; (2) whether the state action burdens the exercise of religious beliefs; (3) whether the state interest is overriding or compelling; and (4) whether the state uses the least restrictive means. Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865 (1992); State v. Hershberger, 444 N.W.2d 282, 285, 289 (Minn.1989). Appellant has the burden under the second prong of this test to show that the government’s action burdens her exercise of religious beliefs, and then the burden shifts to the state to justify its interest as compelling and show that it has chosen the least restrictive means by which to achieve its goal. See Hill-Murray, 487 N.W.2d at 866 (“Hill-Murray ... [has] not established that [the state’s action] excessively burdens their religious beliefs.”).

In this case, the sincerity of appellant’s religious belief is not disputed. But the second and fourth prongs of the test are disputed. Accordingly, we begin by determining whether DHS’s refusal to fund appellant’s request sufficiently burdens appellant’s free exercise of her religion. Several cases applying the test guide our determination.

In Hershberger, the Minnesota Supreme Court determined whether a state traffic law “requiring] slow-moving vehicles to display a fluorescent ... triangular sign” when moving on public highways violated Amish petitioners’ rights to religious freedom. 444 N.W.2d at 284. The law at issue in Hershberger directly proscribed the petitioners’ protected religious conduct. The court held that “[without question,” application of the statute burdened the petitioners’ free exercise by forcing them to choose between criminal sanctions and violating their sincerely held religious beliefs. Id. at 287. The Hershberger court emphasized, in particular, the potential for jail time and punitive fines under the statute. Id.

In Murphy v. Murphy, this court evaluated a state child support policy that imputed income to a father who, as part of his sincerely held religious belief, lived and worked exclusively in a religious community. 574 N.W.2d 77, 79 (Minn.App.1998). We held that this application of the child support statute burdened the father’s free exercise of religion under the state constitution. Id. at 81. We reasoned that “ordering Murphy to pay a support obligation that he [would] be unable to pay without taking a secular job” would burden his free exercise of religion “or cause him to risk penalties for nonpayment of support.” Id. In Murphy, like in Hershberger, the court found the weighty sanction for adherence to Murphy’s religious beliefs coercive enough to constitute a burden under the second prong of the test. Id.

But in Hill-Murray, the supreme court held that application of the Minnesota Labor Relations Act (MLRA) to Hill-Murray, a parochial high school, did not violate the Minnesota Constitution. 487 N.W.2d at 864-67. The court found no constitutional infirmity, in part, because the “minimal interference” caused by application of the statute did not “excessively burden[ ] [Hill-Murray’s] religious beliefs.” Id. at 866. The court said that any potential for significant interference with the school’s religious autonomy was remote. Id. And the court did not find the potential for increased cost to the school sufficient to constitute an excessive burden on the school’s exercise of religion. See id. at 868 (Coyne, J., dissenting).

In contrast to cases in which we have found a burden on free exercise, DHS’s action here does not force appellant to choose between criminal sanctions and her free exercise of religion. DHS’s decision does not penalize her by reducing her CDCS benefits; appellant has been approved for full CDCS benefits under her alternative plan. The decision does not prohibit her exercise of religion. DHS’s refusal to authorize funding for services provided in Israel does make appellant’s attendance at Darkaynu more expensive, but does not directly infringe on her religious autonomy or require conduct inconsistent with her religious beliefs. The indirect effect on religion is not motivated by an intent to affect religious practices and is not unique to religion.

To the extent DHS’s action is a burden on appellant’s free exercise of religion, DHS claims that its action is justified by a compelling government interest and is narrowly tailored to meet that interest. The state has a legitimate and substantial interest in monitoring social service programs to ensure the health and safety of vulnerable program recipients. In other Minnesota cases we have recognized that the government has a compelling interest in ensuring safety on public roadways, State v. Hershberger, 462 N.W.2d 393, 398 (Minn.1990), “assuring parents provide primary support for their children,” Murphy, 574 N.W.2d at 82, “ensuring] the peace and safety of labor relations,” and safeguarding employees’ rights to collectively organize, Hill-Murray, 487 N.W.2d at 866-67. The state’s interest in protecting mentally or physically vulnerable persons is no less important and no less compelling. See Minn.Stat. § 626.557, subd. 1 (2004) (“The legislature declares that the public policy of this state is to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment....”).

Finally, we consider the fourth prong of the test: whether the state is using the least restrictive means to accomplish its objective. DHS’s decision not to fund services in Jerusalem is based on its obligation to monitor the quality of waiver services, to ensure services are provided in a safe and healthy environment, and to investigate reports related to the vulnerability of recipients or misuse of public funds. Appellant argues that there is no requirement that state employees make on-site visits to service providers, that the monitoring function can be performed by a visiting credentialed volunteer identified by her family, and that this monitoring function can be narrowly designed to accommodate appellant’s religious beliefs and still satisfy DHS’s obligations. Appellant also argues that her parents have a strong interest in her welfare, will communicate with and visit appellant in Israel, and that this family monitoring would further satisfy DHS’s requirements to provide quality assurance. While we do not question the sincerity of appellant’s representations, we do not find the argument persuasive. The terms of Minnesota’s waiver give DHS and the county substantial discretion in determining how best to monitor and investigate the provision of services in the interest of recipients’ safety and health and the financial integrity of the program. Because DHS is in the best position to determine the least restrictive means by which to effectively achieve its goal, DHS’s position is entitled to deference.

A judicial determination that as a matter of constitutional law DHS is required to undertake the individualized program appellant urges would create untold complexities. Others seeking benefits at remote locations would claim discrimination if their requests were rejected. Of necessity, DHS would become involved with evaluating the character of the parents, programs in distant parts of the world, and ad hoc monitoring arrangements. Stating appellant’s dramatic demand reveals its weakness: unless DHS pays for enrollment in a faith-based program in Israel, it violates her religious freedom. The location is the subject of recurring military conflict half way around the world. If the state must make this accommodation, it is hard to imagine an accommodation that would not be constitutionally mandated. We conclude that DHS’s decision did not violate appellant’s rights under the Minnesota Constitution.

III.

AMERICANS WITH DISABILITIES ACT

The final issue is whether DHS’s decision violated Title II of the Americans with Disabilities Act (ADA). Title II of the ADA states, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (2000). In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 603 n. 14, 119 S.Ct. 2176, 2188 n. 14, 144 L.Ed.2d 540 (1999), the Supreme Court interpreted this language and held that the ADA does not require the provision of a particular level of benefits and only requires states to “adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Id. (emphasis added).

Under Olmstead, this situation presents no ADA violation because appellant has not demonstrated that the agency has denied appellant benefits they regularly provide, or that appellant was denied services on account of her disability. Instead, DHS’s full approval of appellant’s alternative budget, DHS’s legitimate concern with its monitoring the provision of services in Israel, and the subsequent amendment to the waiver program formally prohibiting funding of services provided outside of the country, all indicate that appellant’s disability was not the reason her request was denied. Accordingly, we conclude appellant does not have a claim under Title II and that DHS’s decision to deny appellant’s request did not violate the ADA.

DECISION

We affirm the decision of the district court and hold that DHS did not err or abuse its discretion and did not violate the United States or Minnesota constitutions, or the ADA by refusing to provide coverage in the Medical Assistance program for habilitation services for appellant at Mi-dreshet Darkaynu in Jerusalem, Israel.

Affirmed.

      . The state's recent addendum to its federally approved waiver program, which expressly prohibits funding for waiver services out-of-country and binds the agency's future operation for all beneficiaries irrespective of religious practice, is further evidence of the decision's neutrality. Amendment to MR/RC Waiver, 3 (effective Apr. 1, 2005).

      . While appellant asserts the plan is inadequate, appellant developed an alternative plan for Medical Assistance support for services for the 2004-2005 year. The alternative plan includes payment for day and evening staff, an eight-week summer camp, music lessons, and adaptive sports lessons. The cost of the requested services is $27,623.20 and was approved by the county.

      . See also Minn.Stat. § 363A.12, subd. 1 (2004).


source: Caselaw Access Project

author: WORKE, Judge.

license: Public Domain

text:
    Allen JAVINSKY, P.E., Appellant, v. COMMISSIONER OF ADMINISTRATION, Dana Badgerow, in an official capacity as head of the Minnesota Department of Administration, Respondent.
    No. A06-109.
    Court of Appeals of Minnesota.
    Jan. 2, 2007.

      Gregory A. Abbott, Minneapolis, MN, for appellant.
    Lori R. Swanson, Attorney General, Thomas C. Yasaly, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; WORKE, Judge; and ROSS, Judge.
   OPINION

WORKE, Judge.

On appeal in this public-contract dispute, appellant Allen Javinsky argues that (1) the district court improperly denied appellant’s request for mandamus and declaratory relief, and (2) summary judgment was improper on appellant’s promissory-estoppel claim. Because appellant failed to timely appeal the district court’s denial of his mandamus and declaratory relief claims and because he has not provided evidence of reasonable, detrimental reliance in his promissory-estoppel claim, we affirm.

FACTS

In 1999, respondent Commissioner, Minnesota Department of Administration (DOA) began a multi-stage sewer-system replacement project at the Minnesota Correctional Facility-Faribault. At issue here is a contract for project 04-01 to reshape and grout the deep tunnel at the correctional facility. Generally, the DOA is responsible for administering construction projects under Minn. Stat §§ 16B.001-16B.282 (2004) and awards state contracts based on a selection process it coordinates. For certain projects, however, the selection of contractors is made by the State Design Selection Board (SDSB), an independent agency whose authority is defined by Minn.Stat. § 16B.33. Agencies must use the SDSB to select the primary designer on building construction or remodeling projects when estimated costs exceed a certain amount. The SDSB had previously selected the primary designer to perform the sewer-system-replacement project.

In 2003, the DOA decided to have the State Architect’s Office (SAO) rather than the SDSB select an alternate project designer for the final phase of the project. The SAO requested proposals from four design engineers, including appellant, a subcontractor who had worked on the original project. In February 2004, after learning that he had not been chosen as the designer for the project, appellant objected to the selection process and contended that the SDSB, not the SAO, should have made the designer determination, as it had for earlier phases of the sewer-system-replacement project. The SAO reconsidered its decision and agreed, in a letter to the SDSB, that “the authority for selecting an alternative design firm remains with the [SDSB], not the [SAO] ” and stated “[w]e reviewed the statute and agree that, technically, we did not have the authority to solicit proposals and make an alternate selection.” The SDSB then requested proposals for the project and received submissions from appellant and a competitor. In April 2004, the SDSB notified appellant that he had been selected as the designer for the project. After the competitor challenged the SDSB’s selection of appellant, respondent placed the contract process for the project on hold and requested information from the SDSB about its selection criteria and evaluation process.

In September 2004, respondent withdrew the responsibility for selecting a designer for the project from the SDSB because it had not provided the information respondent requested. Respondent ordered the SAO to issue a new request for proposals without further involvement from the SDSB. Respondent stated that “use of the [SDSB] is not statutorily mandated for infrastructure work (see definition of project in [Minn.Stat. § 16B.33, subd. 1(h)]).” Appellant objected to respondent’s decision to reject him as the designer for the project and to withdraw authority from the SDSB.

In October 2004, the SAO issued a request for proposals for the project. In November 2004, appellant sued respondent, seeking a writ of mandamus, declaratory judgment, promissory estoppel, and other relief. Following submissions of proposals in response to the SAO’s request for proposals for the project, the competitor was selected as the designer. Appellant moved for injunctive relief, and the district court conducted a hearing on November 30, 2004.

Because legislative authority for the project was set to expire by December 31, 2004, if there was no contract, the parties agreed to treat the district court’s decision on appellant’s motion for injunctive relief as a summary judgment on his mandamus and declaratory relief claims. On December 16, 2004, the district court denied appellant’s motion for injunctive relief, refusing to issue a writ of mandamus or order a declaratory judgment. The district court found that respondent did not violate Minn.Stat. § 16B.33 by withdrawing the request for the SDSB to select a designer for the project and having the SAO make the selection instead. The district court directed entry of judgment with the determination that “there is no just reason for delay.” Judgment was entered on December 27, 2004. After respondent moved for summary judgment on appellant’s remaining promissory estoppel claim, the district court granted respondent’s motion and entered judgment in favor of respondent, finding that appellant had failed to provide evidence supporting the injustice element of promissory estoppel. This appeal follows.

ISSUES

I. Is appellant’s appeal of the December 2004 judgment timely?

II. Did the district court err in granting summary judgment in favor of respondent on the promissory-es-toppel claim?

ANALYSIS

I.

Appellant argues that he was not required to appeal the December 2004 judgment because it was an interlocutory judgment that did not resolve all of his claims. His notice of appeal only refers to the district court’s judgment entered in November 2005. The district court “may direct the entry of a final judgment as to one or more but fewer than all of the claims of parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Minn. R. Civ. P. 54.02. It can be inferred from Minn. R. Civ.App. P. 104.01, subd. 1, that timely appeal of a judgment containing rule 54.02 certification is mandatory because rule 104.01 states “the time to appeal from any other judgment entered pursuant to [r]ule 54.02 shall not begin to run until the entry of a judgment which adjudicates all the claims and rights and liabilities of the remaining parties.”

Minn. R. Civ. P. 54.02 is substantively identical to Fed.R.Civ.P. 54(b). The United States Supreme Court explained that federal rule 54(b) was promulgated to provide clarity to the parties when some but not all of the claims at issue have been decided, stating that “[a] party adversely affected by a final decision thus knows that his time for appeal will not run against him until this certification has been made,” i.e., until the district court makes an express determination that there is no just reason for delay and expressly directs entry of judgment. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435-36, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956). Similarly, the Minnesota Supreme Court reasoned that a party affected by an order with an express rule 54.02 certification has a right to expect that the expiration of the time for appeal would fully define the parameters of the litigation, promote principles of judicial economy, and afford the affected parties review prior to participating in any further proceedings necessitated by the district court’s order. In re State & Regents Bldg. Asbestos Cases, 435 N.W.2d 521, 522 (Minn.1989).

In Semiconductor Automation, Inc. v. Lloyds of London, this court dismissed an appeal taken from a final judgment, holding that (1) an interlocutory order and judgment dismissing one defendant for lack of jurisdiction was immediately ap-pealable, (2) “the inclusion of rule 54.02 language is not a prerequisite to appellate review,” and (3) the plaintiffs failure to take an interlocutory appeal precluded the plaintiffs challenge to that ruling on appeal from the final judgment resolving the remaining claims. Semiconductor Automation, Inc. v. Lloyds of London, 543 N.W.2d 123, 124-25 (Minn.App.1996), review denied (Minn. Mar. 19, 1996). Three years later, this court dismissed a similar appeal from a final judgment, holding that failure to take an interlocutory appeal from an order and judgment dismissing one party for lack of subject matter jurisdiction precluded a later challenge to that dismissal. Engvall v. Soo Line R.R., No. C6-99-64 (Minn.App. Mar. 16, 1999) (order). The supreme court reversed the dismissal order in Engvall and overruled this court’s decision in Semiconductor Automation, rejecting the rule established by this court, which it described as characterizing an appeal from “an immediately ap-pealable interlocutory order or judgment that does not contain an express Rule 54.02 determination” as “mandatory rather than permissive.” Engvall v. Soo Line R.R., 605 N.W.2d 738, 745 (Minn.2000) (emphasis added). The supreme court’s characterization of the holding being reversed created an inference that inclusion of an express rule 54.02 determination would make an interlocutory appeal mandatory.

This view is consistent with an earlier decision of the Minnesota Supreme Court in which it considered whether a judgment, certified under rule 54.02, determining liability but not damages, “is a final judgment from which an appeal must be taken[.]” See In re Commodore Hotel Fire & Explosion Case, 318 N.W.2d 244, 246 (Minn.1982) (stating that rule 54.02 certification was inapplicable because “adjudication of liability, without determination of damages, is not an adjudication of even one entire claim”). It is logical to conclude that the time to appeal a judgment entered with a proper rule 54.02 certification begins to run once the judgment is entered.

Here, the district court, in accordance with rule 54.02, expressly determined that “there is no just reason for delay,” and directed entry of judgment. The district court apparently made the rule 54.02 certification without being requested to do so by either party. The district court was operating under the parties’ agreement to expedite the proceeding by treating it as one for summary judgment on appellant’s mandamus and declaratory relief claims because legislative funding for the project would expire on December 31, 2004, if a contract had not yet been finalized.

Appellant argues that because the district court’s language made no reference to rule 54.02 he had no notice that this was a rule 54.02 order, and he would have no reason to believe that the 60-day appeal period had commenced. Appellant does not dispute that the district court entered judgment on part of his claims pursuant to rule 54.02 when it stated “There is no just reason for delay” and “Let judgment be entered accordingly.” Appellant cites no authority for his proposition that the district court’s order must explicitly state that it is being issued pursuant to rule 54.02.

Because the time to appeal from the district court’s judgment expired on February 27, 2005, we may not consider appellant’s appeal of the district court’s decision or its inherent issues. Minn. R. CivApp. P 104.01, subd. 1. Therefore, we must accept the district court’s decision that respondent acted reasonably and within his authority to withdraw authority from the SDSB to select the designer for the project and to rescind the SDSB’s selection of appellant.

II.

Appellant argues that the district court erred in granting summary judgment in favor of respondent on the promissory-estoppel claim. On appeal from summary judgment, we examine the record in the light most favorable to the party against whom summary judgment was granted to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). Courts must draw all factual inferences in favor of the nonmoving party. Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 438 (Minn.2004). Promissory estoppel is an equitable doctrine that implies a contract in law where none exists in fact. Martens v. Minn. Min. & Mfg. Co., 616 N.W.2d 732, 746 (Minn.2000). Application of promissory estoppel requires a showing that (1) there was a clear and definite promise, (2) the promisor intended to induce reliance and such reliance occurred, and (3) the promise must be enforced to prevent injustice. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152 (Minn.2001).

The record does not contain evidence of a clear and definite promise. In April 2004, the SDSB sent a letter to appellant confirming his selection as the primary designer for the project. But selection by the SDSB does not constitute a “clear and definite” promise that appellant will be given a contract nor does it automatically lead to the development of a contract. If a contractor’s selection led to a clear and definite contract formation, then there would be no opportunity for a disappointed bidder to initiate a successful objection, as appellant had done after the first request for proposals, and as appellant’s competitor did after the SDSB selected appellant. Therefore, the first element of promissory estoppel — a clear and definite promise — fails as a matter of law.

The second element of a promissory-estoppel claim is reliance. There is some evidence that the DOA intended for appellant to rely on being awarded the contract for the project. The request for proposals that appellant responded to required a statement from him of his commitment to be available to do the work promptly if he were selected. A DOA official also testified that a selected designer would be expected to be available to do the work. After his selection by the SDSB, appellant and the DOA entered into and completed contract negotiations in May 2004. Appellant also testified that while he did not turn down business, he did not pursue other opportunities because he was expected to be available to do the work for the project. If appellant had been made a clear-and-definite promise, the evidence would be sufficient to establish appellant’s reliance for the purpose of defeating summary judgment on the reliance element. However, because we have concluded that a clear and definite promise did not exist, appellant’s reliance was unreasonable.

The third element of promissory estoppel, that the promise must be enforced to prevent injustice, is a question of law. Faimon v. Winona State Univ., 540 N.W.2d 879, 883 (Minn.App.1995), review denied (Minn. Feb. 9, 1996). Considerations include reasonableness of the prom-isee’s reliance and weighing of public policies in favor of both enforcing bargains and preventing unjust enrichment. Id. The promisee must show that he relied on the promise to his detriment. Martens, 616 N.W.2d at 746.

There is no evidence that it was reasonable for appellant to rely on being offered a contract. Despite the statement from the SDSB that appellant had been selected, the SDSB’s request for proposals stated that the request for proposals did not obligate the state to award a contract or complete the project. See Minn.Stat. § 16C.05, subd. 2(a) (2004) (stating that without the prior written approval of the commissioner a contract is not valid and binding on the state and work may not begin). The SDSB does not have the authority to negotiate or finalize a contract. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 846 (Minn.1995) (holding that land developer’s reliance on representations made by city officials regarding possibility of city financing was not reasonable because there was no guarantee of the city council’s approval). The state never entered into a contract with appellant for the project and there is no evidence that respondent ever approved the completion of a contract with appellant. On the contrary, respondent placed appellant’s contract on hold in May 2004, and rescinded the SDSB’s selection of appellant in September 2004. Respondent then asked the SAO to issue a new request for proposals for the project. Respondent executed a contract for the project with a designer other than appellant in December 2004. Appellant was aware that a competitor had objected to the SDSB’s selection of appellant and appellant testified that “until I have a contract in my hand that is executed I don’t have 100-percent confidence that that contract is complete.” Appellant himself had successfully objected to a competitor’s selection after the first request for proposals, so he fully understood that an initial selection is no guarantee that a contract will result. Appellant was also a subcontractor on an earlier phase of the sewer-replacement project and an experienced participant in the state’s contracting process. See Brown v. Minn. Dept, of Pub. Welfare, 368 N.W.2d 906, 912 (Minn.1985) (stating that “those who deal with the [gjovernment are expected to know the law and may not rely on conduct by government agents that is contrary to law”).

The situation in this case is similar to one that this court faced in Faimon, where this court addressed the reasonableness of an instructor’s reliance on the university’s promise that her job would be available to her for an additional year. Faimon, 540 N.W.2d at 883. Although her employer had made statements reassuring Faimon about the continuing nature of her job, Faimon had not been unconditionally rehired or promised a new contract. Id. However, Faimon had also not been discouraged from looking for other jobs. Id. We stated that Faimon’s reliance was not reasonable despite the increased likelihood of her hiring because she understood that the university still had the right to hire someone else. Id. Likewise here, despite any assurances that appellant may have received, he understood that the contract might be awarded to someone else. Therefore, the record does not provide support for appellant’s contention that it was reasonable for him to rely on getting the contract for the project.

We conclude that appellant’s promissory-estoppel claim fails not only for lack of a clear and definite promise upon which appellant could have reasonably relied, but also because there is no evidence that appellant relied on such a promise to his detriment. There is no evidence that appellant had turned down other jobs or that appellant had other jobs available to him while he remained available to perform the project. Appellant’s lost-profits estimate is based solely on his assertion that he did not pursue other jobs while he waited for the project contract to materialize. See Nicollet Restoration, 533 N.W.2d at 848 (stating that speculation is not sufficient to create a genuine issue of material fact). After considering that the record contains no evidence that appellant was damaged by not getting the contract for the project, and that respondent acted within his authority to rescind appellant’s selection by the SDSB, we conclude that justice does not require enforcement of a promise.

DECISION

Because the time to appeal the district court’s December 27, 2004 judgment expired, we may not consider appellant’s appeal of the district court’s decision or its inherent issues. Further, because there are no material facts to support appellant’s claim that a clear and definite promise to enter a contract for the project, or that he reasonably relied to his detriment on such a promise, the district court did not err by granting summary judgment to respondent on appellant’s promissory-estoppel claim.

Affirmed.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Robert Edwin DOHLMAN, Appellant.
    No. 05-0581.
    Supreme Court of Iowa.
    Dec. 15, 2006.
    Rehearing Denied Jan. 1, 2007.

      Judith M. O’Donohoe of Elwood, O’Do-nohoe, Stochl, Braun & Churbuck, Charles City, for appellant.
    Thomas J. Miller, Attorney General, William A. Hill, Assistant Attorney General, and Mark L. Walk, County Attorney, for appellee.
   WIGGINS, Justice.

In this case, we must decide whether Robert Dohlman proved he was a wrongfully imprisoned person under chapter 663A of the Iowa Code (Supp.1997). The district court found Dohlman was not a wrongfully imprisoned person because he did not prove by clear and convincing evidence that he did not commit the offenses for which he was convicted, sentenced, and imprisoned or that any person, including himself, did not commit these offenses. In our review of the record, we find substantial evidence supports this finding and affirm the judgment of the district court.

I. Background Facts and Proceedings.

In the early morning hours of December 6, 1998, Dohlman’s vehicle collided with a van driven by Jessica Sweeney. The collision caused the death of her husband and passenger, James Sweeney. The collision also caused Jessica to suffer a broken vertebra and multiple fractures in her arm.

The State charged Dohlman with homicide by vehicle, in violation of Iowa Code section 707.6A(1); homicide by vehicle, in violation of Iowa Code section 707.6A(2)(a); and two counts of serious injury by vehicle, in violation of Iowa Code section 707.6A(4). A jury convicted Dohl-man of all four charges and the court sentenced Dohlman to a term of imprisonment. Although Dohlman appealed his conviction, he began serving his sentence immediately because under Iowa law he was ineligible for bail. See Iowa Code § 811.1(2) (providing a defendant appealing a conviction for a class “B” felony under section 707.6A shall not be admitted to bail during the pendency of the appeal).

We transferred Dohlman’s appeal to our court of appeals. It reversed his convictions finding there was insufficient evidence to support a finding that Dohlman was guilty beyond a reasonable doubt. State v. Dohlman, No. 01-1873, 2002 WL 31882998, at *5 (Iowa Ct.App. Dec.30, 2002). The State filed a request for further review, which we denied. After serving approximately one year and five months of his sentence, the State released Dohlman from custody.

Dohlman then filed an application for entry of order re wrongful imprisonment under chapter 663A. The district court found Dohlman did not prove under section 663A.1(2) that he did not commit the offenses for which he was convicted, sentenced, and imprisoned or that any person, including himself, did not commit these offenses. Dohlman now appeals the district court judgment holding he was not a wrongfully imprisoned person under chapter 663A.

II. Issue.

We must decide whether substantial evidence supports the district court’s determination that Dohlman did not prove the requirements of section 663A.1(2) by clear and convincing evidence.

III. Scope of Review.

This court’s function is not to invalidate the district court’s factual findings if substantial evidence supports its findings. Fischer v. City of Sioux City, 695 N.W.2d 31, 33 (Iowa 2005). We consider evidence as substantial if a reasonable person would accept the evidence as adequate to reach the district court’s conclusion. Nash Finch Co. v. City of Cedar Rapids, 672 N.W.2d 822, 825 (Iowa 2003). “Evidence is not insubstantial merely because we may draw different conclusions from [the evidence]; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” Fischer, 695 N.W.2d at 34 (citations omitted).

Therefore, “[w]hen the challenge to the district court’s ruling is lack of substantial evidence, we view the evidence in the light most favorable to the judgment” and “we liberally construe the district court’s findings to uphold, rather than defeat, the result reached.” Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996) (citation omitted). “However, neither the district court’s conclusions of law nor its application of its legal conclusions is binding on appeal.” Fischer, 695 N.W.2d at 34 (citations omitted). Our review is for correction of errors at law. Iowa R.App. P. 6.4.

IV.Statutory Framework.

Dohlman sought a finding that he was a wrongfully imprisoned person under chapter 663A of the Iowa Code. The first step in qualifying as a wrongfully imprisoned person requires an individual to meet the following criteria:

1. As used in this section, a “wrongfully imprisoned person’’ means an individual who meets all of the following criteria:
a. The individual was charged, by indictment or information, with the commission of a public offense classified as an aggravated misdemeanor or felony.
b. The individual did not plead guilty to the public offense charged, or to any lesser included offense, but was convicted by the court or by a jury of an offense classified as an aggravated misdemeanor or felony.
c. The individual was sentenced to incarceration for a term of imprisonment not to exceed two years if the offense was an aggravated misdemeanor or to an indeterminate term of years under chapter 902 if the offense was a felony, as a result of the conviction.
d. The individual’s conviction was vacated or dismissed, or was reversed, and no further proceedings can be or will be held against the individual on any facts and circumstances alleged in the proceedings which had resulted in the conviction.
e. The individual was imprisoned solely on the basis of the conviction that was vacated, dismissed, or reversed and on which no further proceedings can be or will be had.

Iowa Code § 663A.1(1).

If these criteria are met, the court then proceeds to the second inquiry: whether that person meets the requirements of section 663A.1(2). Section 663A.1(2) provides:

2. Upon receipt of an order vacating, dismissing, or reversing the conviction and sentence in a case for which no further proceedings can be or will be held against an individual on any facts and circumstances alleged in the proceedings which resulted in the conviction, the district court shall make a determination whether there is clear and convincing evidence to establish either of the following findings:
a. That the offense for which the individual was convicted, sentenced, and imprisoned, including any lesser included offenses, was not committed by the individual.
b. That the offense for which the individual was convicted, sentenced, and imprisoned was not committed by any person, including the individual.

Id. § 663A.1(2). If the criteria of both section 663A.1(1) and section 663A.1(2) are met, the individual qualifies as a wrongfully imprisoned person. Id. § 663A.l(3)(a).

The parties agree Dohlman met the criteria of section 663A.1(1). The parties disagree as to whether Dohlman met his burden of proof under section 663A.1(2). Therefore, the resolution of this appeal depends on our construction of Iowa Code section 663A.1(2).

When confronted with the task of statutory interpretation, we have stated:

The goal of statutory construction is to determine legislative intent. We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge, or otherwise change the meaning of a statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (citations omitted). Additionally, legislative intent is derived not only from the language used but also from “the statute’s ‘subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of the various interpretations.’ ” Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004) (citations omitted). When ascertaining legislative intent, the legislative history of a statute is also instructive. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999); Richards v. Iowa Dep’t of Revenue, 362 N.W.2d 486, 488 (Iowa 1985); see also Iowa Code § 4.6(3) (1997) (stating the court may consider the legislative history of an ambiguous statute in determining legislative intent).

The plain language of section 663A.1(2) requires a person to prove by clear and convincing evidence that the person did not commit the originally charged offenses or the offenses were not committed by any person, including himself. “Commit” means to do or to perform an act. Webster’s Third New International Dictionary 457 (unabr. ed.2002). Thus, the plain meaning of the words used by the legislature indicates section 663A.1(2) requires proof the person did not do the offense or the facts establish an offense was not done by anyone.

The legislative history supports this plain meaning interpretation of section 663A.1(2). First, in the explanation of the bill, the committee on the judiciary stated the purpose of the bill is to provide damages to

a person who was charged with, convicted of, and sentenced to serve a term of incarceration^] ... and whose conviction was vacated, dismissed, or reversed either because the offense was committed by another person or the offense was a fabrication.

H.F. 674 Explanation, 77th Gen. Assemb., Reg. Sess. (Iowa 1997) (emphasis added).

Second, the proposed legislation had a fiscal impact, requiring a statement on the fiscal impact of the bill prior to conducting any debate on the bill. Joint Rules of the Senate and House, H.R.J. Res. 3, 77th Gen. Assemb., R. 17 (Iowa 1997). The fiscal impact statement for the bill contained the assumption that “[ajpproximately one case per year is reversed because of insufficient evidence. It is assumed that cases meeting the requirements of this Bill would occur less frequently.” H.F. 674 Fiscal Note, 77th Gen. Assemb., Reg. Sess. (Iowa 1997) (emphasis added). After receiving the fiscal impact statement, the house and senate passed the bill. We assume one of the reasons the legislature passed the bill is because of the fiscal statement and its assumption. State v. Allen, 708 N.W.2d 361, 367 (Iowa 2006).

Therefore, considering the plain meaning of the statute and its legislative history, in order for a person to qualify for the benefits afforded by section 663A.1(2), the person must prove by clear and convincing evidence: (1) the person did not do the offense for which the person was convicted, sentenced, and imprisoned; or (2) the offense for which the person was convicted, sentenced, and imprisoned was not done by anyone.

Y. Analysis.

Dohlman asserts the reversal of his convictions by the court of appeals in and of itself proves the requirements of section 663A.1(2) by clear and convincing evidence. He argues this assertion in two different ways.

First, he argues because the court of appeals reviewed his conviction in the light most favorable to the State, that review is more closely aligned with his clear and convincing burden rather than the burden used at his criminal trial, requiring the State to prove his guilt beyond a reasonable doubt. Second, he argues the court of appeals’ finding of insufficient evidence to support his convictions is controlling law for purposes of section 663A.1(2) under the law-of-the-case doctrine.

These two arguments are essentially the same argument made in two different ways. The only law of the case found by the court of appeals is its legal finding that when it viewed the evidence in the light most favorable to the State, there was insufficient evidence to support a finding that Dohlman was guilty beyond a reasonable doubt. We disagree the reversal of Dohlman’s convictions by the court of appeals proves his claim under section 663A.1(2).

Section 663A.1(2) requires a person to prove by clear and convincing evidence: (1) the person did not commit the offense for which the person was convicted, sentenced, and imprisoned; or (2) the offense for which the person was convicted, sentenced, and imprisoned was not committed by anyone. An appellate court finding that there is not substantial evidence to support a criminal conviction does not meet the requirements of section 663A.1(2). See Vasquez v. New York, 263 A.D.2d 539, 693 N.Y.S.2d 220, 220 (1999) (holding a reversal of the underlying criminal conviction does not establish innocence by clear and convincing evidence); Reed v. State, 78 N.Y.2d 1, 571 N.Y.S.2d 195, 574 N.E.2d 433, 435 (1991) (finding a reversal of the underlying criminal conviction is not equivalent to a finding of innocence in a subsequent civil proceeding for wrongful imprisonment involving a lower standard than proof beyond a reasonable doubt); Walden v. Ohio, 47 Ohio St.3d 47, 547 N.E.2d 962, 966 (1989) (stating “[a]s a general rule, a verdict or judgment of acquittal in a criminal trial is a determination that the state has not met its burden of proof on the essential elements of the crime[, i]t is not necessarily a finding that the accused is innocent” for purposes of a wrongful imprisonment claim); Le Fevre v. Goodland, 247 Wis. 512, 19 N.W.2d 884, 885 (1945) (finding a determination that the state’s evidence was insufficient to prove the defendant guilty beyond a reasonable doubt is not equal to finding the defendant is innocent beyond a reasonable doubt). Such a finding by an appellate court only means when the court views the evidence in the light most favorable to the State, a rational trier of fact cannot find the defendant guilty beyond a reasonable doubt. State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006).

Therefore, under either of Dohlman’s arguments, a finding by our court of appeals that the evidence was insufficient to support Dohlman’s conviction does not in and of itself preclude a court from determining whether Dohlman proved the requirements of section 663A.1(2) by clear and convincing evidence.

Next, Dohlman asserts even if the court of appeals reversal does not in and of itself meet his burden of proof, there is insufficient evidence in the record to support the district court’s finding that he did not prove the requirements of section 663A.1(2). To address this assertion, it is necessary to discuss the offenses for which Dohlman was convicted, sentenced, and imprisoned.

Dohlman was convicted of homicide by vehicle, in violation of Iowa Code section 707.6A(1); homicide by vehicle, in violation of Iowa Code section 707.6A(2)(a); and two counts of serious injury by vehicle, in violation of Iowa Code section 707.6A(4). A person commits the crime of homicide by vehicle, in violation of section 707.6A(1) when “the person unintentionally causes the death of another by operating a motor vehicle while intoxicated, as prohibited by section 321J.2.” Iowa Code § 707.6A(1). Section 321J.2 provides in relevant part:

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in either of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
b. While having an alcohol concentration as defined in section 321J.1 of .10 or more.

Id. § 321J.2.

The crime of homicide by vehicle in violation of section 707.6A(2)(a) is committed “when the person unintentionally causes the death of another by ... [d]riving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277.” Id. § 707.6A(2)(a). Section 321.277 provides that “[a]ny person who drives any vehicle in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving.” Id. § 321.277 (1997).

The crime of serious injury by vehicle, in violation of section 707.6A(4), is committed “when the person unintentionally causes a serious injury, as defined in section 321 J.l, subsection 8 by any of the means described in [section 707.6A(1) or (2)(a) ].” Id. § 707.6A(4). Section 321 J.l(8) defines serious injury as

a bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes protracted loss or impairment of the function of any bodily organ or major bodily member, or which causes the loss of any bodily member.

Id. § 321J.1(8) (1997).

Because the undisputed record establishes Dohlman unintentionally caused the death of James Sweeney and serious injury to Jessica Sweeney at the time of the collision, he must prove by clear and convincing evidence he was neither driving while intoxicated nor driving his motor vehicle in a reckless manner to establish he was a wrongfully imprisoned person.

The record establishes after a day of deer hunting, Dohlman consumed numerous alcoholic beverages at various locations. The fatal accident occurred at approximately 1:30 a.m. After the accident, the authorities transported Dohlman to the local hospital for a blood test. At 5:04 a.m., a nurse drew a sample of his blood. The authorities sent the sample to the department of criminal investigation (DCI). The DCI tested the blood sample and determined Dohlman’s blood alcohol level to be .036 at the time it was drawn.

At trial, a criminologist from the DCI applied the science of retrograde extrapolation to determine Dohlman’s blood alcohol at the time of the accident. Retrograde extrapolation determines how much alcohol a person’s body metabolizes between the time a blood sample is drawn and some prior time, such as the time of an accident. An averaged metabolized amount is then added to the blood alcohol level established by the initial test to approximate a person’s blood alcohol at a prior time.

After applying the science of retrograde extrapolation, the criminologist opined at the time of the accident Dohlman’s blood alcohol level was between .081 and .096. The criminologist also opined a driver’s judgment, control, and reaction time begins to be impaired when a blood alcohol level reaches .05. Finally, the criminologist testified once a blood alcohol level reaches .08 most drivers’ driving skills are measurably impaired.

In its review, the court of appeals concluded when it considered both the expert and lay testimony as to Dohlman’s intoxication the evidence was insufficient to support a conviction beyond a reasonable doubt. Notwithstanding the court of appeals’ conclusion, the evidence of intoxication still supports the district court finding that Dohlman failed to prove by clear and convincing evidence he did not commit the offenses for which he was charged.

At the time of the accident, a person operated a vehicle while intoxicated by driving the vehicle under the influence of an alcoholic beverage or when the driver operated the vehicle with an alcohol concentration of .10 or more. Iowa Code § 321J.2(l)(<x), (b). Although the record does not establish Dohlman’s blood alcohol level to be .10 or more, the testimony of the criminologist is substantial evidence indicating a person driving a vehicle with a blood alcohol level above .05 is under the influence of an alcoholic beverage. The criminologist testified Dohlman’s blood alcohol level was between .081 and .096 at the time of the accident.

Reviewing the record in the light most favorable to uphold the district court’s judgment, this evidence supports the district court’s conclusion that Dohlman had not proved by clear and convincing evidence that he was not driving while intoxicated at the time of the accident. Accordingly, Dohlman failed to prove he did not commit the offenses of homicide by vehicle under section 706A.1 and serious injury by vehicle under section 706A.4. Therefore, we are required to affirm the district court's finding that Dohlman did not meet the requirements of section 663A.1(2) by clear and convincing evidence.

Under section 663A.1(2), wrongfully imprisoned person status only applies if a person can prove by clear and convincing evidence: (1) he did not commit the offenses for which he was convicted, sentenced, and imprisoned; or (2) the offenses for which he was convicted, sentenced, and imprisoned were not committed by anyone. In most cases, this status will apply to a person who is completely exonerated of the crime for which he was imprisoned, or if it is determined the victim fabricated that crime. Dohlman’s failure to meet this heavy burden prevents the district court from entering an order classifying him as a wrongfully imprisoned person. Accordingly, we affirm the judgment of the district court.

VI. Conclusion and Disposition.

Because substantial evidence supports the district court’s finding that Dohlman failed to prove by clear and convincing evidence he did not commit the offenses for which he was convicted, sentenced, and imprisoned or that any person, including himself, did not commit these offenses, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except HECHT and APPEL, JJ., who take no part.

      . Unless otherwise indicated, all citations to Code sections are to the 1997 Iowa Code Supplement.