OAH
Docket No. 4-1800-14957-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN
SERVICES
In Re: The Revocation
of the License of FINDINGS OF FACT,
Karey Bader CONCLUSIONS AND
3013
to provide family day
care under
Administrative Law Judge Bruce H. Johnson conducted
a hearing in this contested case proceeding beginning at 9:30 a.m. on August 20,
2002, at the Office of Administrative Hearings,
Vicki Vial-
These Findings of Fact, Conclusions, and Recommendations are public,
but the hearing record on which they are based contains information that is not
public.
This Report is a recommendation, not
a final decision. The Commissioner of
the Minnesota Department of Human Services will make the final decision after
reviewing the administrative record. The
Commissioner may adopt, reject or modify these Recommendations. Under
STATEMENT OF ISSUES
(1) Whether, after November 13, 2000, Ms. Bader committed violations of the statutes and rules that apply to providers of family day care.
(2) Whether Ms. Bader violated the terms of the conditional license that the Department issued to her on November 13, 2000.
(3) Whether Ms. Bader’s license to provide family day care should be revoked because of violations of the terms of her conditional license and of family day care program statutes and rules.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Karey Bader
resides at
2.
For
approximately fifteen years, Ms. Bader has held a license issued by the
Department and the County, pursuant to Minnesota Rules, Chapter 9502, to
provide family day care at her home in
3.
Ms. Bader is
currently licensed to provide day care for fourteen children.[3] However, at present she only provides care
for four children throughout the workday and two or three more before and after
school.[4]
4.
Before and
after being licensed, Ms. Bader has participated in the training that the Department
requires for licensed childcare providers.[5]
5.
On September
16, 1992, and again on June 3, 1994, one of Ms. Bader’s dogs bit day care
children in her care. In neither case
did the bite break the skin. However, on
February 13, 1995, one of her dogs again bit a child in her care. In the latter case, the bite broke the
child’s skin, and some bleeding occurred.[6]
6.
Between
October 1993 and August 1994, County day care licensing personnel inspected Ms.
Bader’s home and detected unpleasant animal odors, insect infestations, damaged
children’s furniture, and a lack of cleanliness that included the presence of
dust and cobwebs. They also found that
Ms. Bader was caring for one more child than her licensure permitted.[7]
7.
In November
1994, the City of
8.
On July 31,
1995,[9] the
Department notified Ms. Bader that it was suspending her day care license for
violations of sanitation and health rules,[10] rules
relating to physical environment,[11] and
rules relating to licensed capacity limits.[12] Thereafter, Ms. Bader appealed the
suspension.[13]
9.
While Ms.
Bader’s appeal was pending, she corrected many of the licensure violations that
had resulted in the suspension and agreed to certain corrective actions
regarding others. On July 9, 1997, the
Department, the County, and Ms. Bader entered into a Settlement Agreement. Under the agreement, both the suspension and
Mrs. Bader’s appeal were withdrawn, her license was placed on probationary
status for twelve months, and she agreed to imposition of five conditions on
her licensure. The parties agreed that
failure to comply with the conditions would be grounds for further negative licensure
actions.[14]
10.
Ms. Bader
complied with the conditions imposed on her probationary licensure status, and
on or about July 9, 1998, her licensure status again became unconditional.[15]
11.
On May 17,
2000, County day care licensing personnel made an unannounced inspection of Ms.
Bader’s home to investigate complaints of unclean and unsanitary conditions
there. Ms. Bader was not at her home at
the time of the inspection, but a nanny whom she had hired to assist with day
care was present. The following
conditions existed in the home at the time of the inspection:
[T]he licensors noted a foul odor of animal feces originating from an overflowing cat litter box located in the bathroom and accessible to children in care. Also, in the bathroom, the licensors observed clothing on the floor; the bathroom entry was cluttered; the bathroom floor was dirty; and toxic items were accessible to children. In the kitchen the licensors observed dirty dishes on a dirty kitchen counter; a dirty floor; partially consumed bottles of infant formula and other improperly stored food items; garbage, scissors, plastic bags, and Lysol cleaner accessible to children; and flammable materials stored on the stove.
The living room carpet was soiled; wiring was exposed from the ceiling; and cans, salt, and other debris was scattered around the living room and accessible to children. The dining room floor was dirty; the dining room table was cluttered; and improperly stored hazardous items including plastics, a hammer, a screwdriver, and other tools were in a box next to the table and accessible to children. In the foyer, accessible to children, the licensors observed a door off the hinges and leaning against a wall; an open, cluttered closet containing building materials; and a bedroom that was cluttered with clothes and dirty dishes.
Outside, the licensors observed piles of animal feces in the front yard; a paint can containing dog feces on the front deck; building materials under the front deck; an uncovered garbage container next to the front deck; a rusted grill, a opened box of shingles, other hazardous items in the back yard play area; and the grass in both the front and back yard was in need of mowing.[16]
12.
As a result of
the conditions at Ms. Bader’s home described in Finding No. 11, the Department
issued an Order of Conditional License to her on November 13, 2000. That adverse licensure action was again based
on violations of sanitation and health rules[17] and
rules relating to physical environment,[18] as well
as rules relating to water, food, and nutrition[19] and to
reporting requirements.[20] The Order allowed Ms. Bader to continue
operating her day care program for a period of one year, but only under the
following conditions:
1.
You follow and
comply with all parts of Minnesota Rules, parts 9502.0300 to 9502.0300 . . .
2.
No variances
to age distribution or capacity will be granted during the conditional period.
3.
You submit a
written plan to
4.
Floor areas
occupied by children must be vacuumed, swept, and/or washed on a daily basis.
Kitchen and bathroom counters must be cleared and cleaned daily; dirty dishes
must be stacked near the sink and washed daily; and the stove top must not be
used for storage of flammable materials.
5.
Food and
infant formula must be properly stored and/or refrigerated; toxic substances
and hazardous items, including construction supplies and cleaning equipment
must be properly stored and inaccessible to children; trash and other unusable
items shall be placed in appropriate garbage receptacles, both indoors and
outdoors, and removed from your home daily.
Indoor and outdoor garbage and rubbish containers must to (sic) be
inaccessible to infants and toddlers.
6.
Both the
inside of your home and the outdoor play areas used by children must be clean;
maintained in good condition; and free from animal waste and other
contaminants.
7.
Cat litter
boxes shall be kept clean and odor free.
The cat litter boxes shall not be located in an area that is accessible
to children.
8.
If you are
unable to maintain the premises in satisfactory condition on your own, you will
be expected to utilize an independent housecleaning service on a weekly
basis. The housekeeping service must be
approved by
Finally, the Order of Conditional License specifically
provided that “[f]ailure to comply with the stipulations of your conditional
license or any other provisions of Minnesota Rules and Laws may result in
revocation of your license.[21]
13.
On November
20, 2000,
14.
On November
30, 2000, Mr. Hennessey and Ms. Banks held an initial, joint meeting with Ms.
Bader to discuss compliance with licensure conditions.[24] Upon inspection, the social workers noted
that the condition of the premises was much improved from what it had been the
previous summer. Some licensing
violations were noted, but none amounted to real hazards or dangers. Because of that and because Ms. Bader had
made significant progress in improving the conditions in her home, Mr.
Hennessey and Ms. Banks issued no correction orders at that time.[25] Mr. Hennessey emphasized to Ms. Bader that
any further licensing violations could result in further negative licensing
actions.[26]
15.
During the
November 30, 2000, meeting with Ms. Bader, Mr. Hennessey and Ms. Banks
clarified and emphasized two terms of the licensure conditions. First, the order did not specify a time when
Ms. Bader’s written home maintenance plan had to be submitted to the County. Mr. Hennessey gave her until December 30,
2000, to submit that plan. Second, the
order required Ms. Bader to engage a cleaning service if she herself was unable
to maintain her home in a condition that was safe and healthy for children. Mr. Hennessey and Ms. Banks emphasized that
before engaging any cleaning service, Ms. Bader needed to obtain the County’s
express prior approval.[27]
16.
On January 9,
2001, Mr. Hennessey made his first unannounced compliance inspection of Ms.
Bader’s home. Although the yard and
exterior areas of the home appeared to be in good condition, he noted several
rule violations inside the home:[28]
a.
There were
crumbs and larger, uneaten pieces of food on the living room carpet.[29]
b.
There were
toxic substances stored in the bathroom medicine chest and vanity where they
were accessible to children.[30]
c.
A laundry
chute had been installed in the bathroom that opened at floor level where it
presented a hazard for children.[31]
d.
There were dog
chains and cat litter scoops in the kitchen where they were accessible to
children. Also, some of the kitchen
flooring had come loose and presented a tripping hazard.[32]
e.
Butter, infant
formula, and other perishable items were left out in the open in the kitchen
rather than being refrigerated.[33]
17.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 16.[34] He also expressed concern that the three
dogs and three cats that Ms. Bader was keeping at her home were contributing to
the problems.[35] On January 23, 2001, Ms. Bader reported to
the County that she had corrected all of those conditions, and Ms. Banks
verified those corrections on February 12, 2001.[36]
18.
During his
January 9, 2001, visit, Mr. Hennessey reminded Ms. Bader that she still had not
submitted the written home maintenance plan that the Order of Conditional
License had required and that was due on December 30, 2001. Ms. Bader agreed to submit that plan no later
than January 19, 2001.[37] Mr. Hennessey did not receive the plan until
January 31, 2001.[38] Noting that Ms. Bader’s plan did not address
the issues of adequate ventilation and keeping the home free of foul odors, Mr.
Hennessey requested her to address those issues in a revised plan no later than
February 28, 2001.[39]
19.
On February
13, 2001, Mr. Hennessey made his second unannounced compliance visit at Ms.
Bader’s home. At that time, he noted the
following rule violations inside her home:[40]
a.
The living
room carpeting was soiled and needed vacuuming.
b.
The kitchen
and dining room floor areas were dirty.
c.
The bathroom
floor and toilet areas were dirty.
d.
A strong odor
of urine was present throughout the main floor.
While at Ms. Bader’s home, Mr. Hennessey worked with her to
draft appropriate revisions to her home maintenance plan in order to make it a
basis for measuring her progress.[41]
20.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 20.[42] On February 21, 2001, Ms. Bader reported to
the County that she had corrected all of those conditions, and Mr. Hennessey
verified those corrections on February 27, 2001.[43]
21.
On February
21, 2001, Ms. Banks made an announced licensure renewal inspection of Ms.
Bader’s home. Ms. Banks found that the
home’s physical condition had improved from what she had observed on November
30, 2000 and also that Ms. Bader had corrected the conditions that Mr.
Hennessey had noted in his correction order of February 13th.[44] But Ms. Banks did find some record keeping
problems that had to be corrected, namely that Ms. Bader lacked provider
policies for all families in care, immunization certificates for some children,
and evidence of provider training. Ms.
Bader also needed to update rabies shots for the animals she was keeping in the
house.[45]
22.
Ms. Banks
issued a correction order for rule violations associated with the conditions described
in Finding No. 21.[46] On February 21, 2001, Ms. Bader reported to
the County that she had corrected all of those conditions except for updated
rabies shots, which she completed sometime after February 28th.[47]
23.
On March 21,
2001, Mr. Hennessey made another compliance inspection of Ms. Bader’s
home. At that time, he noted the
following rule violations inside the home:[48]
a.
Mrs. Bader was
then caring for two dogs and six cats.
There was an overflowing cat litter box in one of the bedrooms and a
strong odor of urine throughout the house.
b.
The floor and
the area around the toilet in the bathroom were dirty.
c.
The rugs in
the entry were saturated with moisture and had a strange odor.
d.
A toilet brush
and toxic substances had been left within reach of children in the bathroom.
e.
Dog food had
been left within reach of children in the kitchen
While at Ms. Bader’s home, Mr. Hennessey gave her a copy of
the written home maintenance that they had been working on since November 2000.[49]
24.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 23.[50] On March 24, 2001, Ms. Bader reported to the
County that she had corrected all of those conditions, and Mr. Hennessey
verified those corrections on April 4, 2001.[51]
25.
Because of an
apparent problem with the presence of animals and animal odors, Mr. Hennessey
made a joint inspection of the premises on April 19, 2001, with the
26.
On May 29,
2001, Mr. Hennessey made another unannounced compliance inspection of Ms.
Bader’s day care program. At that time,
he noted that the inside of the house was reasonably clean but noted problems
outside.[53] First, he found peeling paint and paint chips
along the front of the house that were accessible to children. Second, he found tools, a lawnmower, a
discarded swimming pool, and a hole in the backyard that presented potential
hazards for children. Mr. Hennessey also
watched Ms. Bader change a diaper and noticed that she did not wash her hands
or the changing surface afterward with soap and water.[54]
27.
Mr. Hennessey issued
a correction order for rule violations associated with the conditions described
in Finding No. 26.[55] Ms. Bader did not report that she had
corrected all of those conditions until July 1, 2001.[56]
28.
On June 28,
2001, Mr. Hennessey made a monthly compliance inspection of Ms. Bader’s day
care program. As had been the case in
May, he did not find any unsafe conditions inside the home but again found some
problems outside.[57] First, he again found paint chips along the
front of the house that were accessible to children. And he again found tools and a hole in the
back yard that presented potential hazards for children. Mr. Hennessey also found a rope hanging from
a tree, as well as dog feces in the back yard.[58]
29.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 28.[59] Ms. Bader never reported that she had
corrected all of those conditions.[60]
30.
On July 26,
2001, Mr. Hennessey made a monthly compliance inspection of Ms. Bader’s day
care program. As in the previous two
months, he did not find any unsafe conditions inside the home but again found
some problems outside.[61] Yet again, he found paint chips along the
front of the house. And although Ms.
Bader had removed the tools and filled the hole that he had seen in June, Mr.
Hennessey found rusty bicycles, a metal rake, and a dog scooper in the back
yard that presented potential hazards for children.[62]
31.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 30.[63] As was the case in June, Ms. Bader never
reported that she had corrected all of those conditions.[64]
32.
On October 2,
2001, Mr. Hennessey again made a monthly compliance inspection of Ms. Bader’s
day care program.[65] He found that the house needed cleaning but
that lack of cleanliness itself did not present any health hazards to children.[66] But Mr. Hennessey did find two safety
hazards inside the house—namely, toxic substances in the bathroom and belts in
the living room, both within the reach of children. Outside the house, he found a paint can in
the front yard, missing slats on the back porch railing, and dog feces in the
back yard.[67] During that compliance visit, Mr. Hennessey
expressed concern to Ms. Bader that the condition of her home appeared to be
reverting toward an unsatisfactory status rather than continuing to improve.[68]
33.
Mr. Hennessey
issued a correction order for rule violations associated with the conditions
described in Finding No. 32.[69] On November 16, 2001, Ms. Bader reported to
the County that she had corrected all of those conditions.[70]
34.
On November
15, 2001, Mr. Hennessey and Ms. Banks made the final monthly compliance
inspection of Ms. Bader’s home, since her conditional licensure was expiring in
that month. Outside they found paint
chips in the front yard, slats still missing from the back porch railing,
gasoline cans in an open shed, a wading pool in the back yard with standing
water in it, and dog feces in the back yard.[71] Inside they found an extension cord attached
to a freezer that ran along the floor.[72] They also found a portable crib that was
dusty and dirty and that contained a basket of clothing and a woman’s ring that
represented a choking hazard.[73] The covering of the mattress was torn, and
the foam was exposed, and an object had been placed under the mattress on one
end of the crib. Ms. Bader explained
that she had elevated one end of the mattress at the parents’ request in order
to elevate the head of the infant who was sleeping there.[74]
35.
Ms. Banks
issued a correction order for rule violations associated with the conditions
described in Finding No. 34.[75] On November 16, 2001, Ms. Bader reported to
the County that she had corrected all of those conditions.[76]
36.
After the
final compliance visit, Mr. Hennessey and Ms. Banks made recommendations to the
County about whether or not Ms. Bader’s probationary licensure had been
satisfactory and about whether or not the County should recommend further
adverse licensing actions. They noted
that some licensure violations had been found on every compliance and licensing
inspection. And even though conditions
in Ms. Bader’s day care program seemed to be improving through mid-summer,
after that conditions had begun to regress into an unsatisfactory state. Because of that, neither was able to conclude
that Ms. Bader had been able to meet the conditions of her conditional
licensure.[77]
37.
On February 1,
2002, the Department temporarily extended Ms. Bader’s day care until August 1,
2002, pending a final determination on whether further negative licensing
action was warranted.[78]
38.
On February 5,
2002, Ms. Banks conducted a licensure renewal inspection of Ms. Bader’s day
care program. Generally, she found the
interior of the home to be odor free, clean, in good repair, and free of
hazardous conditions. Ms. Banks did find
that the water temperature was 150 degrees, while it should have been no higher
than 120 degrees to prevent scalding.[79] The only other deficiencies that prompted Ms.
Banks to incorporate into a correction order were record keeping problems—that
is, lack of an admission form and immunization record for one child and lack of
a fire drill log.[80]
39.
After Ms.
Banks’ licensure inspection, the County recommended that the Department revoke
Ms. Bader’s day care license. That
recommendation was based on the chronicity of Ms. Bader’s non-compliance with
program rules, as evidenced by previous negative licensing actions and the
violations of program rules that she had committed while under the November 13,
2000, Order of Conditional License.[81]
40.
The Department
accepted the County’s recommendation and on May 7, 2002, issued an Order of
Revocation that revoked Ms. Bader’s license to provide family childcare.[82]
41.
Ms. Bader
subsequently exercised her right to appeal the Order of Revocation, and this
administrative contested case proceeding ensued.
42.
County social
workers consider Ms. Bader to be a very warm and giving person who is attentive
to the needs of the children under her care.
There have not been any instances of inadequate supervision or of
maltreatment, abuse, or neglect of the children under her care.[83]
43.
The parents of
children under Ms. Bader’s care are generally very satisfied with the services
that she provides and believe that participation in her program is a positive
experience for their children.[84]
44.
No child in
Ms. Bader’s care has become ill or been injured as the result of any of her
violations of licensing standards.
45.
Revoking Ms.
Bader’s license to provide family childcare would create difficulties and some
hardship for the parents of her day care children.[85] Since Ms. Bader provides after-school and
drop-in childcare, having her unavailable as a provider would create particular
difficulties for parents who avail themselves of those services.[86]
46.
Since November
2001, Ms. Bader has had her house repainted to eliminate the problem of peeling
paint and paint chips and has made other physical improvements to the premises.[87]
47.
These Findings
are based on all of the evidence in the record.
Citations to portions of the record are not intended to be exclusive
references.
48.
The Memorandum
that follows explains the reasons for these Findings of Fact, and to the extent
that the Memorandum may contain additional findings of fact, including findings
on credibility, the Administrative Law Judge incorporates them into these
Findings.
49.
The
Administrative Law Judge adopts as Findings any Conclusions that are more
appropriately described as Findings.
Based upon these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
2. The Department and the County gave proper and timely notice of the hearing, and it has also fulfilled all procedural requirements of law and rule so that this matter is properly before the Administrative Law Judge.
3.
[T]he Commissioner may demonstrate reasonable cause for action taken by submitting statements, reports, or affidavits to substantiate the allegations that the license holder failed to comply fully with applicable law or rule. If the Commissioner demonstrates that reasonable cause existed, the burden of proof in hearings . . . shifts to the license holder to demonstrate by a preponderance of the evidence that the license holder was in full compliance with those laws or rules that the Commissioner alleges the license holder violated, at the time that the Commissioner alleges the violations of law or rules occurred.
4. A preponderance of the evidence established that between January 9, 2001, and November 15, 2001, Ms. Bader violated family day care licensing laws and rules at least sixty times. She therefore failed to establish by a preponderance of the evidence that she was in full compliance with those laws or rules during that period.
5. Minn. Stat. § 245A.06, subd. 3, provides:
If the commissioner finds that the applicant or license holder has not corrected the violations specified in the correction order or conditional license, the commissioner may impose a fine and order other licensing sanctions pursuant to section 245A.07.
6. The Order of Conditional License that the Department issued to Ms. Bader on November 13, 2000, required her to “follow and comply with all parts of Minnesota Rules, parts 9502.0300 to 9502.0445 . . .” She therefore failed to comply with the conditions of that conditional licensure.
7. Minn. Stat. § 245A.07, subd. 1, provides:
In addition to making a license conditional under section 245A.06, the commissioner may propose to suspend or revoke the license, impose a fine, or secure an injunction against the continuing operation of the program of a license holder who does not comply with applicable law or rule. When applying sanctions authorized under this section, the commissioner shall consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights of persons served by the program.
8. Between October 1993 and November 2001, Ms. Bader displayed a chronic inability to maintain the home in which she provided day care services in a manner that was safe and healthy for the children under her care and that was in conformity with family day care licensing laws and rules.
9. Even though no child under her care may have suffered an illness or injury that was directly related to her numerous licensure violations, all of that violation created potential hazards to the health and safety of children served by her program.
10. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
11. The Memorandum that follows explains the reasons for these Conclusions, and the Administrative Law Judge therefore incorporates that Memorandum into these Conclusions.
Based upon the these Conclusions,
and for the reasons explained in the accompanying Memorandum, the
Administrative Law Judge makes the following:
RECOMMENDATION
The Administrative Law
Judge therefore respectfully RECOMMENDS that the Commissioner AFFIRM the
Department’s Order of Revocation dated May 7, 2002.
|
Dated this |
10th |
day of |
October |
2002. |
|
/s/
Bruce H. Johnson |
|
BRUCE
H. JOHNSON |
|
Administrative
Law Judge |
Reported: Tape Recorded (six tapes); No Transcript
Prepared.
NOTICE
Under
MEMORANDUM
I.
The County Substantiated the Alleged Licensure Violations
Ms. Bader argued that several of the conditions that the County found to be licensure violations between November 2000 and 2001 were actually unsubstantiated. For example, licensure rules require that outside activities be scheduled for day care children, weather permitting.[91] Another rule requires “an outdoor play space of at least 50 square feet per child in attendance, adjacent to the residence, for regular use, or a park, playground, or play space within 1,500 feet of the residence.”[92] Ms. Bader testified that during that period she never let her day care children play outside in her own yard but rather brought them to a park located within 1,500 feet of her home for outside play. She therefore argued that she should not be held accountable for any of the potentially hazardous conditions in her yard or on the exterior of her house that inspecting social workers cited in correction orders. But the ALJ did not find her testimony that she always brought the children to the park to play to be credible. The County began issuing correction orders for hazardous conditions in her yard beginning in May 2001, and the County issued correction orders for outdoor hazards during each subsequent inspection, including its final inspection on November 15, 2001. It was not until the hearing that Ms. Bader made any mention of bringing her children to the park to play, even though it would have been in her clear interest to have done so earlier, if that had been her consistent practice.
Additionally, Ms. Bader contended that the violations associated with the condition of the crib that she maintained at her home should not be considered as having been substantiated. She testified that there was a doctor’s order directing that the only infant in her care at the time sleep in a sitting position. So she argued that since the crib was not being used at the time of the inspection, no violation occurred. But again, the ALJ found credibility problems with that assertion. First, there was no evidence of any such doctor’s order other than her own testimony, and she made no such statement to Mr. Hennessey at the time. Rather her testimony at the hearing directly contradicted a statement that she made to Mr. Hennessey at the time of the inspection—namely, that she had placed an object under the mattress on one end of the crib to elevate the head of the infant who was sleeping in it.[93]
Ms. Bader also presented testimony from many parents of her day care children that they did not detect the unpleasant odors, lack of cleanliness, and indoor hazards that the County’s inspecting social workers reported. First of all, most of that testimony was irrelevant, since there was no evidence that any of the parents were on the premises at the same time as the inspectors were there.[94] Second, all testifying parents indicated that suspension or revocation of Ms. Bader’s license would cause them considerable inconvenience, and even hardship. So they all had a clear interest in minimizing any licensure violations that Ms. Bader may have committed.
In summary, because of the matters described above and other factors affecting credibility, the ALJ has concluded that all of the licensure violations that County social workers reported between January and November of 2001 did, in fact, occur.
II.
Remedy
Ms. Bader did not deny that at least some violations of licensure rules and of the licensure conditions imposed on her occurred during her most recent conditional licensure. And her arguments at the hearing were directed primarily at the appropriate remedy in this case. She argued that no further sanctions should be imposed or, at worst, she should only continue on conditional licensure for two main reasons. First, she argued that County social workers had singled her out for unreasonably close scrutiny and were requiring unreasonably close adherence to standards than with other providers. In response to that, Ms. Bader had been placed under conditional licensure in 1997, but she had subsequently relapsed into a state of noncompliance that required a second conditional licensure in November 2000. The ALJ first notes that allowing a provider two conditional licensures before imposing more serious sanctions is an unusual accommodation rather than an unusual burden. Second, in light of that history, it was not unreasonable for the County to expect and require a high level of compliance from her. Second, Ms. Bader argues that none of the substantiated violations were severe, and none resulted in injury or illness for any of the children under her care. So she argues that none of them warrant revocation, the most severe sanction available. But while no single violation may have been very severe, the sheer number—approximately sixty-one in a one year period—and a history of even more violations extending back to 1994--both argue for some kind of effective sanction. And two attempts at conditional licensure have been ineffective and unsuccessful in altering Ms. Bader’s chronic inability to comply with program rules designed to assure a safe and healthy physical environment for children under care.
Since November 2001, Ms. Bader has made a number of physical improvements to her home. And during Ms. Banks’ licensure renewal inspection on February 8, 2002, she only noted a problem with the temperature of the hot water and a few minor record keeping problems.[95] Nevertheless, past performance is normally a reliable indicator of future performance. And Ms. Bader has yet to establish that she can consistently comply with day care rules for some extended period of time. It is for this reason that the ALJ recommends that the Order of Revocation be affirmed.
B. H. J.
[1] Minnesota Statutes, section 14.61 (2000). (Unless otherwise specified, citations to Minnesota Statutes refer to the 2000 edition.)
[2] Testimony of Karey Bader.
[3] Testimony of Karey Bader.
[4]
[5]
[6] Exhibit 2.
[7]
[8]
[9] Exhibit 2.
[10]
[11]
[12]
[13] Exhibit 3.
[14] Exhibit 2.
[15]
[16] Exhibit 4.
[17]
[18]
[19]
[20]
[21] Exhibit 4.
[22] Exhibit 5.
[23] Testimony of Tim Hennessey and Eileen Banks.
[24]
[25] Testimony of Tim Hennessey; Exhibits 7 and 8.
[26] Testimony of Tim Hennessey.
[27] Exhibit 6; testimony of Tim Hennessey.
[28] Exhibits 9 and 10.
[29] See Minn. R. pt 9502.0435, subp. 1.
[30] See Minn. R. pt 9502.0435, subp. 5.
[31] See Minn. R. pt 9502.0435, subp. 6.
[32] See Minn. R. pt 9502.0435, subp. 6.
[33] See Minn. R. pt 9502.0445, subp. 4.
[34] Exhibit 10.
[35] Exhibit 9.
[36] Exhibit 10.
[37] Testimony of Tim Hennessey; Exhibits 7 and 9.
[38] Exhibit 11.
[39]
[40] Exhibits 7 and 12 through 14. See Minn. R. pt 9502.0435, subp. 1.
[41] Exhibit 12.
[42] Exhibit 14.
[43]
[44] Exhibit 15.
[45] Exhibits 15 and 16. See Minn. R. pt 9502.0435, subp. 12, pt. 0351, subp. 14B, pt. 0367, and pt. 0385, subp. 2, 3, and 4.
[46] Exhibit 16.
[47]
[48] Exhibits 7 and 17. See Minn. R. pt 9502.0435, subp. 1, 4, and 12.
[49] Exhibit 18; testimony of Tim Hennessey.
[50] Exhibit 17.
[51]
[52] Exhibit 7; testimony of Tim Hennessey.
[53] Exhibits 7 and 12 through 14. See Minn. R. pt 9502.0435, subp. 4, 6, 13D, and 15A.
[54] Testimony of Tim Hennessey; Exhibits 7 and 19.
[55] Exhibit 19.
[56]
[57] Exhibits 7 and 20.
[58] Testimony of Tim Hennessey; Exhibits 7 and 20. See Minn. R. pt. 9502.0435, subp. 2, 6, and 12.
[59] Exhibit 20.
[60]
[61] Exhibits 7 and 21.
[62] Testimony of Tim Hennessey; Exhibits 7 and 21. See Minn. R. pt. 9502.0435, subp. 2 and 6.
[63] Exhibit 21.
[64]
[65] Mr. Hennessey attempted to make a compliance inspection on August 28, 2001, but Ms. Bader was not at home at the time. (Exhibit 7) There is no record of a September 2001 compliance inspection.
[66] Exhibit 7.
[67] Testimony of Tim Hennessey; Exhibits 7 and 22. See Minn. R. pt. 9502.0425 and pt. 9502.0435, subp. 2, 4, and 6.
[68] Testimony of Tim Hennessey; Exhibit 7.
[69] Exhibit 22.
[70]
[71] Exhibits 7 and 23. See Minn. R. pt. 9205.0435, subp. 2, 5, and 6.
[72] Exhibits 7 and 23. See Minn. R. pt. 9205.0425, subp. 18.
[73] Exhibits 7 and 23. See Minn. R. pt. 9205.0425, subp. 9.
[74] Exhibit 7.
[75] Exhibit 23.
[76]
[77] Testimony of Tim Hennessey and Eileen Banks; Exhibit 7.
[78] Exhibit 24.
[79] Exhibits 25, 26 and 29. See Minn. R. pt. 9502.0435, subp. 15A.
[80] Exhibits 25, 26 and 29. See Minn. R. pt. 9502.0435, subp. 4A and 8F4.
[81] Testimony of Tim Hennessey and Eileen Banks; Exhibit 1.
[82] Exhibit 1.
[83] Testimony of Tim Hennessey.
[84]
[85] Testimony of Laura Kasper, Rosa Dickerson, Anne Dhir, Tina Dehn, and Susan Meschache.
[86] Testimony of Rosa Dickerson, Anne Dhir, and Susan Meschache.
[87] Testimony of Kari Bader.
[88]
[89] Minnesota Statutes, section 245A.08, subdivision 3(a).
[90] Minn. Stat. § 14.62, subd. 1.
[91]
[92]
[93] Exhibit 7.
[94] There was only evidence from one parent about being at the home some indeterminate time after a licensor had left the premises on one occasion.
[95] Exhibit 25.