OAH No. 7-1800-15814-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

 

In the Matter of the Order to Forfeit A Fine on the License of Geralyn Gieseke to Provide Family Child Care

FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION

 

This matter came on for hearing by telephone before Administrative Law Judge Richard C. Luis on April 23, 2004.  The hearing record closed at the conclusion of the hearing on that date.

 

Todd Westphal, Assistant Nicollet County Attorney, 326 S. Minnesota Avenue, P.O. Box 360, Saint Peter, MN 56082, appeared on behalf of the Minnesota Department of Human Services (MDHS).  The Licensee, Geralyn Gieseke, 305 Railroad, P.O. Box 231, Courtland, MN 56021-0231, appeared on her own behalf.

 

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, 444 Lafayette Road, St. Paul, MN 55155 to ascertain the procedure for filing exceptions or presenting argument.  If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2.  The record closes upon the filing of comments, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

STATEMENT OF ISSUE

 

          Should the Order to Forfeit a Fine in the amount of $600 against Geralyn Gieseke be affirmed?

 

 

          Based on all of the proceedings herein, the Administrative Law Judge makes the following:

 

FINDINGS OF FACT

 

1.               Geralyn Gieseke is a resident of Nicollet County who is presently licensed as a family child care provider.  She provides child care at her residence, 305 Railroad Street, Courtland, Minnesota.  She has been licensed as a daycare provider since 1981.  She does not provide daycare services on weekends.

2.               The Licensee, her husband, Carl Gieseke, and her two children, Katie Gieseke and Patrick Gieseke, lived in the residence in 2002.  Patrick Gieseke only resided at the daycare residence on weekends in Summer 2002.[1]  In 2003, Patrick Gieseke, was attending college in Wisconsin (at UW-Stout and UW-River Falls).  Patrick Gieseke did not plan on living with his parents in the summer.  His plans changed and he lived with his parents in Summer 2003.  Both Patrick and Katie Gieseke worked summers for the City of New Ulm and background checks are performed as a condition of employment there.[2]

3.               In May 2002, the Legislature passed a bill amending Minn. Stat. § 245A.07 to add failing to submit background study forms to the list of violations for which a $200.00 fine can be levied by MDHS.  The passed bill was signed by the Governor on May 18, 2002.[3]  No particular effective date was specified for this section of the bill.  Thus, the fine provision took effect on August 1, 2002.[4]

4.               On May 31, 2002, Nicollet County Social Services (NCSS) sent Licensee background study documents to be completed and returned.  These documents were due on June 16, 2002.  Licensee sent back the forms for herself and her spouse, but not her children.  Krystyna Szelazek, Family Child Care Licensor with NCSS, visited Licensee’s daycare on August 13, 2002.  Szelazek issued a correction order for the lack of background studies, lack of required training, improper plumbing, and a few other items.[5]  NCSS received the background study forms on August 20 2002.  Neither of her children was disqualified from contact with Licensee’s daycare children.  The correction order was to be submitted to NCSS with proof of compliance by October 31, 2002.

5.               On September 9, 2002, Szelazek sent Licensee a letter stating that due to the late submission of required forms, continued noncompliance with the paperwork requirements would result in a proposal for a conditional license.  Szelazek did not mention the possibility of fines and did not suggest that Licensee could be fined for the earlier failure to submit the background study forms.

6.               MDHS began imposing fines on daycare licensees for failing to submit timely background study documents in late 2002.  In the beginning of 2003, Nicollet County Social Services became aware that daycare licensees were unaware of the potential for fines.  Licensee was unaware of the fine process when that process was first adopted regarding background checks in 2002.  NCSS included notification of the fine provisions in its newsletter to licensees sent out in Spring 2003.

7.               On May 30, 2003, Nicollet County Social Services sent background study forms to the Licensee.  Those forms were due back June 15, 2003.  Licensee submitted completed background study forms for herself, her husband and her daughter.  Licensee did not submit a completed form for Patrick.  At the time Licensee submitted these forms, Patrick was living in the daycare residence.

8.               Licensee found the September 6, 2002 correction order and submitted it with her relicensing information on July 1, 2003.  The correction order contained notations that Licensee had corrected the cited problems by October 31, 2002.  Licensee attached a note to the correction order which stated:

I’m sorry.  I thought I had this off to you a long time ago.  I found it with my info on day care, filed with other papers.[6]

9.               On August 14, 2003, Krystyna Szelazek visited Geralyn Gieseke’s daycare.[7]  Szelazek cited Licensee for not submitting a background study form for Patrick.  Szelazek received the completed background study form on August 19, 2003.[8] 

10.           On September 4, 2003, Szelazek recommended to the Department of Human Services (MDHS) that Gieseke’s day care license be made conditional.[9]  On September 5, 2003, Szelazek sent a notice of the recommendation of negative action to Licensee.  The notice identified the recommended licensing action as making her license probationary or conditional for a twelve-month period.[10]  No reference was made to the possibility of a fine.

11.           On December 11, 2003, the Department of Human Services issued an Order to Forfeit a Fine and Order of Conditional License to Licensee based upon Minn. Stat. § 245A.07, subd. 3(c), Minn. Stat. § 245C.03, and Minn. R. 9502.0300 to 9502.0445.[11]  Licensee was cited for failing to obtain a background check on one person living in the home in 2003 and two persons living in the home in 2002.  Licensee was fined $200 for each citation and given notice of her right to request a contested case hearing to appeal the fine.  As conditions on her license for a period of one year, Gieseke was ordered to complete past due training, submit a plan to obtain future training in a timely fashion, and notify all of her daycare families of the terms of the conditional license.[12]  Gieseke was also informed of her right to request reconsideration of the conditional license.

12.           Licensee requested a contested case hearing regarding the fine.  On March 22, 2004, MDHS served on Gieseke a Notice and Order for Hearing regarding the fine which set the matter on for hearing on April 23, 2004.

13.           At the hearing in this matter, the explanation offered by MDHS for imposing the fines was to ensure the timely submission of required forms by the Licensee.

 

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 and timely notice of the hearing in this matter and has complied with all substantive and procedural requirements of law and rule.

 

3.       Pursuant to Minn. Stat. § 245A.04, daycare licensees must have background studies completed as a condition of licensure.  Under Minn. Stat. § 245C.03, these studies are to be performed on all persons over age 13 residing in the daycare premises.

 

4.       Minn. Stat. § 245A.07, subd. 1 provides that the Commissioner of Human Services may impose a fine against the license holder who does not comply with applicable rules or law.  When applying sanctions, the Commissioner must 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.”

 

5.       Minn. Stat. § 245A.07, subd. 3(b)(4) provides that the Commissioner may fine license holders $200 for “failure to submit a background study” when such study is required.  The background study language was adopted in 2002 and became effective on August 1, 2002.[13]

 

6.       Licensee can only be cited for the lack of a background study for one of her children in 2002.  The other child was not residing in the day care premises at any time in 2002 when daycare children were present.

 

7.       Licensee’s failure to return the required background study form in 2002 resulted in a violation of the applicable rule in June 2002.  At the time that the violation occurred, the express application of the fine provision to background studies was not yet effective.  The imposition of fines on the Licensee for failure to submit the background study forms for either of her children in 2002 is inappropriate.

 

8.       Even if the fine provision could be appropriately applied to the 2002 background study failure, the factors in Minn. Stat. § 245A.07, subd. 1, do not support imposition of that penalty.  The nature of the violation was technical, not substantive.  The chronicity of the late submission of background studies in 2002 is not serious, since there were no prior background study violations.  No persons served by the Licensee’s daycare were put at risk by failure to submit the timely background study form in 2002.

 

9.       Licensee failed to comply with the background study requirement in 2003.  The fine provision was legally effective on the date of the violation.  A fine is appropriately applied for Licensee’s noncompliance with the background study requirement in 2003.  Licensee had been informed by way of a prior correction order and the NCSS newsletter that a fine could be levied.  The violation is a repeat violation supporting the proposed sanction under the factors in Minn. Stat. § 245A.07, subd. 1.

 

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

          IT IS RECOMMENDED: (1) That the Order to Forfeit a Fine dated December 11, 2003 be AFFIRMED in part and REVERSED in part; (2) That the Order to Forfeit a Fine of $400 for failure to submit two background study forms in 2002 be RESCINDED; (3) That the Order to Forfeit a Fine of $200 for failure to submit a background study form in 2003 be AFFIRMED; and (4) That the Licensee be fined a total of $200.

 

          Dated:  May  7, 2004

 

 

/s/ Richard C. Luis RICHARD C. LUIS Administrative Law Judge

 

 

NOTICE

 

          Pursuant to Minn. Stat. § 14.62, subd. 1, the Minnesota Department of Human Services is required to serve its final decision upon each party and the Administrative Law Judge by first class mail.

 

Reported:  Tape recorded.

 

 

 

MEMORANDUM

 

The imposition of fines on daycare licensees for failing to submit background study forms was enacted into law in May 2002.  The fine provision became effective on August 1, 2002.  The violation of failing to submit two background study forms occurred on June 16, 2002, when Licensee failed to timely return the background study forms.  The correction order issued on August 13, 2002, documented an ongoing violation that predated the application of fines to background study violations.

 

Administrative agencies are required to enforce the law in effect when a violation occurs.[14]  NCSS and MDHS could have issued the correction order citing Licensee for the background study form violation at any time after June 16, 2002.  Failing to timely file a form is a singular event, not an ongoing series of transgressions.[15]  Issuance of the correction order on August 13, 2002, does not change the underlying fact that the violation occurred in June 2002.

 

The availability of fines for general noncompliance with MDHS rules predated Licensee’s violations in 2002.  But the sanction issued under the general rule must 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.”[16]  The violation in this instance is the Licensee’s first regarding background studies.  The persons who did not have the background studies performed for MDHS had background studies performed for their employment with the City of New Ulm.  These persons were not disqualified when those studies were performed in August 2002 for MDHS.

 

Not surprisingly, daycare licensees in 2002 were generally unaware of the possibility that untimely background study forms could result in fines.  Licensee was unaware of this provision in 2002.  NCSS addressed the lack of awareness by including notice of the statutory change in its newsletter distributed to daycare providers in Spring 2003.[17]

 

Licensees are obligated to submit background studies for each person living in daycare premises.  Each person for whom a background study is required but not filed constitutes a separate instance for which a fine may be imposed.[18]  But a fine may be rescinded where the obligation to submit a background study is not clearly understood.[19]  Rescinding a fine is also needed where the fine is imposed and the Licensee lacked an affirmative obligation to submit the background study form.[20]

 

On August 14, 2003, the Licensee was cited for her failure to submit a background study form for her son.  She corrected this noncompliance on August 19, 2003.  She had been notified that a fine could result from the failure to file a background study form.  Licensee had been cited for noncompliance with that rule the previous year.  The circumstances surrounding the Licensee’s failure to submit a background study form in August 2003 support imposition of a fine.  Under Minn. Stat. § 245A.07, subd. 3(b)(4), the fine for failing to submit a background study is $200.00.  A fine in that amount is appropriate and should be affirmed.

 

 

R.C.L.