OAH No. 12-1800-15372-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
In the Matter of the Denial of the FINDINGS OF FACT,
License of Charlene Mento to CONCLUSIONS, AND
Provide Family Childcare and the RECOMMENDATION
and Nicholas Mento
This
matter came on for Hearing before Administrative Law Judge Steve M. Mihalchick
on June 17, 2003, at the
Daniel C. Lee, Assistant Douglas County Attorney, Douglas County Courthouse,
Matthew P. Franzese, Attorney at Law, Leuthner Law Office,
NOTICE
This Report is a recommendation, not a final
decision. The Commissioner of Human Services will make a final decision
after reviewing the administrative record, and may adopt, reject or modify
these Recommendations. Under Minn. Stat. § 14.61, the final decision of
the Commissioner shall not be made until this Report has been made available to
the parties to the proceeding for at least ten days. An opportunity must
be afforded to each party adversely affected by the Report to file exceptions
and present argument to the Commissioner. Parties should contact Kevin
Goodno, Commissioner, Department of Human Services,
STATEMENT OF ISSUES
Whether Charlene Mento and Nicholas Mento would pose a risk of harm to family childcare children Ms. Mento wishes to serve? The Administrative Law Judge concludes they do not.
Whether Ms. Mento should be licensed to provide family childcare despite the disqualifications issued to her and her husband? The Administrative Law Judge concludes she should.
Based upon the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Ms. Mento is a resident of
2. In 1980, Mr. Mento, then a member of the military, injured his back in a work-related fall from a telephone pole.[2] As a result of the injury, doctors restricted his lifting to ten pounds, and he has had difficulty finding a steady job.
3. In 1995, Mr. Mento applied for Veterans Administration (VA) benefits and was denied. In 1997, the VA found Mr. Mento 100% disabled and began issuing him monthly benefit checks, the amounts of which varied over time.[3] Mr. Mento did not tell Ms. Mento about the VA benefits.
4. Between 1995 and 1999, Mr. and Ms. Mento experienced financial difficulties. During this period, their marriage suffered and the couple did not communicate well with each other. They maintained two checking accounts, one joint and the other in Mr. Mento’s name.[4] Depending on their respective employment situations and whether or not all three children were residing with them, at various times Ms. Mento applied for food stamps and Medical Assistance to help support the family.
5. As part of receiving food stamps and Medical Assistance, Ms. Mento completed monthly DCSS update forms that required her to account for their income and assets. Ms. Mento filled out the forms, signed them, and then passed them on to her husband for his signature.[5] He did not review the forms before signing and the couple never discussed what income was required to be reported on the form.[6]
6.
Ms. Mento began providing unlicensed childcare for a one-child family
around this time to earn some extra income.
7. Mr. Mento received a backpay disability check from the VA of approximately $29,000 in August or September, 1999, for payments back to his date of application. He informed Ms. Mento of this check, and she learned for the first time of the monthly VA benefit checks being deposited to his bank account. However, Ms. Mento did not report the unearned income on the subsequent monthly update forms, rationalizing that unearned, untaxed income need not be reported. Mr. Mento continued to simply sign the forms his wife prepared.
8.
In May, 2000, a
9. In December, 2000, the Mentos were charged with several crimes with respect to the fraud.
10. Mr. and Ms. Mento entered guilty pleas to felony wrongfully obtaining assistance from November, 1995, to November, 1999.[9] The couple admitted to receiving food stamp overpayments in the amount of $7,697, and Medical Assistance overpayments in the amount of $36,711.[10] The couple entered an Alford plea, meaning they understood that, based on the facts, a jury would likely find them guilty of the charge, but they did not admit guilt. The plea agreement called for 60 days in jail for each and monthly restitution payments.[11]
11.
12. Prior to sentencing, the Mento’s each submitted a letter to the Court.[17] Ms. Mento explained that her husband controlled most of the family finances and admitted she should have consulted DCSS upon learning of her husband’s monthly VA payments and back payment. Ms. Mento accepted full responsibility for her actions and said she would be more pro-active with questions in the future. Her husband called his actions a “huge mistake” and expressed regret at not reading the DCSS monthly update forms more carefully. He admitted to wondering why his family could receive so much County assistance when his monthly VA checks were so large and stated his intent to pay back the money in monthly installments.
13. Ms. Mento continued to provide unlicensed childcare, but was interested in licensed childcare. She inquired of DCSS as to whether her pending charges would prevent her from obtaining a childcare license. Barbara Kleinschmidt of DCSS encouraged Ms. Mento to apply. Ms. Mento submitted a completed application for a family childcare license on August 1, 2001.[18] She informed Kleinschmidt of the pending criminal matters.
14. On August 13, 2001, the Court stayed imposition of sentences and placed Mr. and Ms. Mento on supervised probation for a time not to exceed five years, on the condition that each of them serve 60 days in jail with work-release available,[19] pay a Court fine, complete 190 hours of community service, make monthly restitution payments, attend budget and financial counseling, remain law-abiding, and have no same or similar offenses.[20] Judgment against Mr. and Ms. Mento was granted in the amount of $44,408.03, [21] and the couple expressed their desire to repay the wrongfully obtained benefits. Both counsel commended the Mentos for taking a great deal of responsibility for the crime.[22]
15. On August 15, 2001, the Mento’s signed information releases in conjunction with the childcare license applicant background study that allowed access to their PSIs. The following day Kleinschmidt requested the couple’s paperwork from Ellison.[23] Ellison sent Kleinschmidt copies of the two PSIs on September 11, 2001.[24]
16. The felony pleas were disqualifiers and required Kleinschmidt to complete Risk of Harm Determination Worksheets,[25] which she did on January 3, 2002.[26] Kleinschmidt relied exclusively on the two PSIs for information on the Mentos. She evaluated the couple on six statutory factors and four additional factors listed on the form.[27] Kleinschmidt found one disqualifying characteristic (low risk) occurring within the past year (high risk). As to intrusiveness or violence of the disqualifying event, Kleinschmidt found the disqualifier both intentional (intermediate risk) and deliberate/overt (high risk). There was no similarity noted between the victim and persons to be served by Ms. Mento’s childcare.[28] As to the four additional factors, Kleinschmidt concluded that Mr. and Ms. Mento presented a high risk to future childcare children due to the husband’s presence during childcare hours, and the couple’s inability to accept responsibility for their behavior, as to both cooperation and rehabilitation. Kleinschmidt felt Mr. and Ms. Mento posed an intermediate risk of harm because they blamed others for inappropriate behavior and because providing childcare requires providers to take responsibility for their actions. After consideration of all the factors, Kleinschmidt ranked Mr. and Ms. Mento at a high risk level.
17. By separate letters dated January 3, 2002, Kleinschmidt informed Mr. and Ms. Mento that they were disqualified from providing family childcare services based upon the felony plea.[29] The letters further informed the couple of their right to submit a written request for reconsideration of the disqualification within 30 days. Mr. and Ms. Mento did not request reconsideration of the disqualification.
18. On March 4, 2002, Kleinschmidt recommended that the Department of Human Services deny Ms. Mento’s application for a childcare license because of the disqualifications.[30]
19. The Department of Human Services issued an Order of Denial to Ms. Mento on May 2, 2002, citing Minn. Stat. § 245A.04, subd. 3d and Minn. R. 9502.0335, subp. 6D.[31] The letter informed Ms. Mento of her right to appeal the decision and the right to a contested case hearing.
20. Ms. Mento appealed the denial in June, 2002.[32] A few weeks later a DCSS employee told Ms. Mento that she could no longer provide unlicensed childcare, due to the disqualification. Ms. Mento contacted Kleinschmidt to request an extension on filing a request for reconsideration.
21. By letter dated July 3, 2002, Kleinschmidt informed Mr. and Ms. Mento that the Department of Human Services had approved her request for an extension, and Kleinschmidt encouraged Ms. Mento to submit the request for reconsideration as soon as possible.[33]
22. In their requests for reconsideration, dated August 14 and 21, 2002, Mr. and Ms. Mento explained that their crime was financial in nature and that they would pose no risk of harm to childcare children.[34] They discussed how communication had improved between themselves and that they had begun actively discussing the household finances and using one joint checking account. The couple also stated that they were complying with probation and making monthly restitution payments of $75 each.
23. By letter to the Department of Human Services dated August 28, 2002, Kleinschmidt acknowledged the Mento’s requests for reconsideration. Nonetheless, she continued to recommend that the disqualification not be set aside and that no variance be granted.[35]
24. In September, 2002, Ms. Mento, still unlicensed and no longer providing care for her first childcare family, began caring for two children from another family.[36]
25. On March 7, 2003, the Department of Human Services sent Mr. and Ms. Mento an Amended Order of Denial, citing Minn. Stat. § 245A.04, subd. 3d (2)(b) in addition to the previously cited statutes and rules. They were again informed of their right to appeal and their right to a contested case hearing.[37]
26. Mr. and Ms. Mento appealed the denial of the license. The Department issued a Notice of and Order for Hearing on June 5, 2002, setting the hearing to take place on May 22, 2003. The hearing date was subsequently changed to June 17, 2003.
27. Mr. and Ms. Mento have served their respective jail time and performed the required community service. Both have remained law-abiding and continue to accept responsibility for their actions.[38]
28. Both of Ms. Mento’s childcare families felt she provided responsible and wonderful quality care for their children and communicated openly with the families.[39] Both mothers were fond of Ms. Mento and had no concerns about Mr. Mento’s presence in the childcare home.
CONCLUSIONS OF LAW
1. The Administrative Law Judge and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2. The Department gave proper notice of the hearing, and all relevant substantive and procedural requirements of law or rule have been fulfilled.
3. Pursuant to Minn. Stat. § 245A.08, subd. 2a, this is a consolidated contested case hearing regarding denial of a family childcare license based upon a disqualification that was not set aside.
4. An application for a family childcare license shall not be granted if the applicant, or any other person residing in the childcare residence, has a disqualification under Minn. Stat. § 245A.04, subd. 3d.[40]
5. The Commissioner may set aside a license disqualification if the Commissioner finds that the individual does not pose a risk of harm to any person served by the applicant.[41] In determining that an individual does not pose a risk of harm, the commissioner shall consider the nature, severity, and consequences of the event or events leading to the disqualification, whether there is more than one disqualifying event, the age and vulnerability of the victim at the time of the event, the harm suffered by the victim, the similarity between the victim and persons served by the program, the time elapsed without a repeat of the same or similar event, documentation of successful completion by the individual of training and rehabilitation, and any other relevant information. In reviewing a disqualification, the Commissioner shall give “preeminent weight” to the safety of each person to be served by the applicant.
6. Mr. and Ms. Mento have the burden of proving by a preponderance of the evidence that they do not pose a risk of harm to the clients Ms. Mento wishes to serve.[42]
7. Mr. and Ms. Mento do not pose a risk of harm to the clients Ms. Mento wishes to serve.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: that the Commissioner set aside the disqualification and issue the family childcare license to Ms. Mento.
Dated: August 11th , 2003
/s/ Steve M. Mihalchick
__________________________
STEVE M. MIHALCHICK
Administrative Law Judge
NOTICE
Pursuant to Minn. Stat. § 14.62, subd. 1, the Minnesota Department of Health is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.
Reported: Tape recorded (3 tapes). No transcript prepared.
In a risk of harm determination, “preeminent weight” must be given to the safety of Ms. Mento’s childcare children. The Risk of Harm Determination Worksheet is not entirely applicable to the crime of welfare fraud. The nature of the Mento’s crime leading to the disqualification does not lend itself to analysis under a format requiring determinations as to violence against a victim, vulnerability of a victim, and similarly of a victim to persons served by a childcare program. The worksheet suggests that a known individual victim was directly harmed, physically or emotionally, by a disqualified applicant.
Furthermore, Ms. Kleinschmidt relied heavily on the PSIs of Mr. and Ms. Mento to show that the couple took little or no responsibility for their actions. The PSIs have since been shown to be outdated and incorrect. The letters and testimony of Mr. and Ms. Mento demonstrate that both individuals accept responsibility for what occurred[43] and have been making regular restitution payments to remedy the situation.
The Mentos do not pose a risk of harm to the children Ms. Mento wishes to serve and the family childcare license should be issued despite the disqualifications.
[1] Testimony of Ms. Mento. Charlene and Nicholas Mento married in 1991.
[2] Testimony of Mr. Mento.
[3] Testimony of Mr. and Ms. Mento.
[4] Testimony of Ms. Mento.
[5] Testimony of Ms. Mento.
[6] Testimony of Mr. Mento.
[7] Minn. R. 9502.0325, subp. 3, item B.
[8] Testimony of Ms. Mento.
[9] At least two other counts were dismissed. Ex. 1, p. 2.
[10] Ex. 1, p. 4.
[11] Mr. and Ms. Mento agreed to make restitution payments on the dismissed charges as well. Ex. 1, pp. 2-3.
[12] Ex. 8, PSI.
[13] Ex. 7, PSI.
[14] Ex. 8, PSI, p. 5.
[15] Ex. 7, PSI, p. 5.
[16] Ex. 7, PSI, p. 5.
[17] Exs. 5, 6.
[18] Ex. 7, application.
[19] The Court permitted the couple to serve their jail time separately so as not to disrupt the care of their children.
[20] Ex. 2, pp. 10-12.
[21] Exs. 7, 8.
[22] Ex. 2, pp. 5, 7.
[23] Exs. 7, 8.
[24] Exs. 7, 8.
[25] The worksheet requires a determination as to ten factors of low risk, intermediate risk, or high risk.
[26] Exs. 7, 8.
[27] Minn. Stat. § 245A.04, subd. 3b(b). Kleinschmidt evaluated Mr. and Ms. Mento individually, and reached the same conclusions as to each.
[28] Kleinschmidt made no determination as to “recency of the date of discharge” and “vulnerability of the victim” due to the inapplicability of these categories to the case.
[29] Exs. 7, 8.
[30] Ex. 7.
[31] Ex. 7.
[32] See Ex. 7, letter dated August 28, 2002, p. 2.
[33] Ex. 7.
[34] Exs. 7, 8.
[35] Ex. 7.
[36] Testimony of Lynda Blom.
[37] Exs. 7, 8.
[38] Testimony of Mr. and Ms. Mento.
[39] Both families knew of the welfare fraud charges and the guilty pleas.
[40] Minn. R. 9502.0335, subp. 6, item D.
[41] Minn. Stat. § 245A.04, subd. 3b(b).
[42] Minn. Stat. § 245A.08, subd. 3(b).
[43] Mr. Mento has since stated that he accepts 90% responsibility for the crime.