OAH No. 1-1800-16388-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for hearing before Administrative Law Judge George A. Beck on April 20, 2005, at the Minnesota Office of Administrative Hearings, 100 Washington Avenue South, Minneapolis, Minnesota. The hearing record was kept open for the receipt of an exhibit. The hearing record in this matter closed on April 22, 2005.
Rebecca S. Morrisette, Assistant Hennepin County Attorney, 525 Portland Avenue South, Minneapolis, MN 55415, appeared for the Minnesota Department of Human Services (“Department”). Michelle Snorek, 10635 Old County Road 15, Plymouth, MN 55441, appeared pro se.
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.
Should the Order of Conditional License and Order to Forfeit a Fine in the amount of $200 against Michelle Snorek be affirmed?
Based on all of the proceedings herein, the Administrative Law Judge makes the following:
1. Michelle Snorek (“Licensee”) is a resident of Hennepin County who is presently licensed as a family child care provider. She provides child care at her residence at 10635 County Road 15, in Plymouth, Minnesota.
2. Licensee’s daycare is located in a partially-developed portion of Plymouth, with open, undeveloped land adjacent to the daycare premises. Licensee’s yard is large, surrounded by a chain-link fence with several gates. A play area with swings, a slide, a playhouse, a fort, and other equipment is located in the rear of the yard.[1] Access to the daycare premises is by a frontage road parallel to Highway 55. Parents and daycare children enter the premises through a gate to the backyard and the rear door to the house. A park is nearby and occasionally used by the Licensee and daycare children.[2]
3. As part of the oversight responsibility of the Department, the Hennepin County Children and Family Services Department (“County”) is delegated authority to administer the ongoing oversight and inspection of licensed child care providers in Hennepin County. On November 7, 2001, the County received an anonymous complaint regarding Licensee being over capacity in her daycare, providing inadequate supervision of children in her care, and having cleanliness issues in the daycare.[3]
4. In response to the anonymous complaint, Patty LaPointe, a licensing worker with the County, made an unannounced visit to Licensee’s daycare on November 20, 2001. Licensee admitted to having too many children in care. The worker counted 13 children in care, while the Licensee was limited to 10 children. Licensee produced records showing that she was overcapacity in the past. The worker assessed the other allegations in the complaint against the condition in Licensee’s daycare and concluded those allegations could not be determined.[4] LaPointe issued a correction order for the overcapacity finding on the following day. Licensee returned the correction order, indicating that she would not allow part-time children to schedule additional days unless Licensee had availability.[5]
5. On October 7, 2003, LaPointe made another unannounced inspection of Licensee’s daycare. Licensee was the only caregiver present, and she had nine children (eight preschool age children and one infant) in her care. The worker and Licensee discussed how children were to be picked up from her daycare and whether regular use of a substitute to cover while Licensee was absent from the daycare would be permissible under the rules.[6] A correction order was issued for needed background check forms for two helpers in the daycare and training certification and medical report for a third helper.[7] The next day another correction order was issued to clarify the prior correction order and add an item regarding removal of several rusty toys.[8]
6. In 2003, Licensee applied for re-licensing at the C-3 level. This would allow Licensee to have more children enrolled in her daycare, so long as an additional caregiver was present. On September 23, 2003, LaPointe conducted the relicensing inspection of the daycare premise. The training verification for two helpers had not been provided, a crib was determined to be unsuitable for daycare use, and verification of one daycare child’s inoculations was not on file. A correction order was written, but not given to Licensee.[9] LaPointe provided the correction order on October 30, 2003. Licensee made the appropriate corrections and returned the necessary documentation to the County.[10]
7. On April 28, 2004, the County received a complaint that Licensee was absent for much of the day between drop off and pick up times. The complaint indicated that 16 children, including 4 or 5 infants, were in the care of a helper during Licensee’s absence.[11]
8. On May 4, 2004, Lisa Yates, a license worker and Mary Gabe, Quality Assurance Specialist for the County, conducted an inspection of the Licensee’s daycare.[12] They arrived at the Licensee’s daycare at 1:00 p.m., and there was no answer at the front door. They heard children in the backyard, so the investigators went around to the back of the house. The investigators observed children in the back yard with no caregiver with them.
9. Jennifer Meister, Licensee’s adult helper, met Gabe and Yates at the door. They spoke about conditions at the daycare. Meister confirmed that 14 children under school-age are regularly in care during the day.[13] She also indicated that additional school-age children were in the daycare. The investigators observed Meister’s boyfriend on the premises, who appeared to be approximately 18 years of age.[14]
10. As the investigators went through the daycare, the Licensee came out of an upstairs bedroom. She indicated that she had been napping, and that she had been ill. The number, age, and identity of children regularly in the daycare were reviewed with Licensee and she acknowledged that her daycare “appeared to be overcapacity.”[15]
11. The investigators observed that a bedroom was being used for daycare, where an infant was napping. That bedroom was cluttered with clothing, towels, plastic bags, and other items. Licensee indicated that she often had infants nap in car seats. That investigators told her that car seats could not be used for napping without a medical doctor’s permission. In the backyard, several gates were not adequately secured, including one opening onto a seasonally marshy area.[16]
12. Yates and Gabe wrote up a correction order identifying all of the violations observed at Licensee’s daycare. These violations were: being overcapacity, using helpers as the primary caregiver, failing to have a background check completed for the helper’s boyfriend, failing to adequately secure gates, keeping sleeping areas in an untidy condition, and leaving plastic bags where they are accessible to young children. The correction order was sent to Licensee on May 13, 2004. Licensee indicated on the order that the violations were corrected and returned it on May 26. 2004.[17]
13. On June 16, 2004, at 10:00 a.m., LaPointe conducted an unannounced visit of the Licensee’s daycare. Six school-age children, five preschoolers, and one toddler were present in the daycare. Also present were three children over daycare age. Two of these children were thirteen years of age. The inspector noted that the gate problems and cleanliness problems identified in the prior correction order had been eliminated. The inspector told Licensee that children 13 years-of-age or older needed background checks if they were to remain in the daycare. Meister (Licensee’s helper) indicated that she wanted to be “on the license” as a primary caregiver. The inspector discussed the requirements for Meister to be a co-licensee.[18]
14. Meister did not follow through with the training required to become a co-licensee.
15. On September 17, 2004, the County recommended to the Department that sanctions be imposed against Licensee for the capacity, safety, and cleanliness violations identified in her daycare on May 4, 2004. The recommendation also stated (incorrectly) that Meister had not completed a required training course.[19] The County recommended that Licensee be placed on conditional licensure for one year, that she be limited to a C-1 or C-2 license, that she complete additional training, and that no variances by granted during the conditional license period.[20]
16. On October 7, 2004, Jane Pittman, a County licensing worker, conducted a relicensing visit to Licensee’s daycare. Pittman discussed with Licensee whether the gate opening onto the front of the premises needed to be locked or merely self-closing.[21] Licensee indicated that she no longer wanted her helper to be placed on the license. Nevertheless, Licensee indicated that she had been in the practice of leaving the daycare to transport children with the remaining children in the daycare being supervised by her helper. Pittman advised Licensee that this was a violation of the “substitute rule” and Licensee indicated that she no longer transports the children.[22]
17. Licensee inquired if daycare children could be supervised by her helper at a park that is within sight of the daycare premises. Pittman told Licensee that doing so would trigger the substitute rule since the children would be off of the premises under the care of another. Pittman concluded that Licensee should have her license renewed for one year, due to the concerns about capacity and supervision violations.[23] A correction order was written based on the visit, but it addressed mostly anticipated problems, rather than actual violations.[24]
18. On November 8, 2004, the Department issued an Order to Forfeit a Fine and Order of Conditional License to Licensee based upon Minn. Stat. § 245A.04, subd. 3(c) and Minn. R. 9502.0425.[25] Licensee was fined $200 for not having her helper complete required Sudden Infant Death Syndrome (SIDS) training. As conditions on her license for a period of one year, Licensee was ordered to remain within capacity, use only approved infant sleeping options, obtain appropriate SIDS training for her helper, submit daily attendance records to the County, obtain a minimum of six hours of licensor-approved additional safety training, and notify all of her daycare families of the terms of the conditional license.[26] The Order included notice of Licensee’s right to request a contested case hearing on the fine and the Order of Conditional License.
19. On December 6, 2004, Licensee requested a contested case appeal of both the fine and the imposition of a conditional license.[27]
20. On January 25, 2005, Gabe received a complaint regarding supervision in Licensee’s daycare. The conduct complained of was a lack of supervision when the children were outside and the presence of dog excrement in the yard. Gabe made an unannounced visit that day and noted that a new fastener had been installed on the gate. There was ice and snow around the steps and an open bag of de-icer present. Gabe observed dog excrement in the yard and just outside the entrance to the daycare.
21. Gabe discussed with Licensee how the daycare children were supervised when they were in the back yard. Licensee indicated that usually she or her helper would watch the children from the large window overlooking the back yard. Gabe noted that this practice probably met the letter of the rules regarding supervision, but the better practice was to have a caregiver outside with the children. Gabe and Licensee also discussed the presence of the de-icer and the dog excrement.[28] Gabe completed a correction order that noted the supervision incident did not occur and that the outdoor play area needed to be free of animal waste.[29]
22. The Department served on Licensee a Notice of and Order for Hearing in this matter on January 19, 2005, setting the hearing to take place on March 16, 2005.
23. The Order to Forfeit a Fine is based entirely on the alleged failure of a helper to obtain SIDS training. As noted in a foregoing finding, that allegation was withdrawn at the hearing in this matter.
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. The Department’s imposition of a conditional license is done pursuant to Minn. Stat. § 245A.06, subd. 1. Where a conditional license and a fine are imposed, both are subject to review through a contested case hearing.[30]
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.”[31]
5. At the hearing, the Department withdrew the only allegation on which the fine was based.
6. In imposing sanctions, including conditional licensure, the Department must first demonstrate reasonable cause to believe that the license holder failed to comply fully with an applicable law or rule. If the Department demonstrates reasonable cause existed, then the license holder must show by a preponderance of the evidence that she was in full compliance with the law or rule at the time of the alleged violations.[32]
7. The Department has shown reasonable cause to believe that Licensee operated overcapacity through part of 2004. The Department has also shown reasonable cause to believe that Licensee was in violation of the limitations on the use of substitutes for supervision daycare. The Licensee has not shown that she was in full compliance with the rules in these areas.
8. The terms of the conditional license, with one exception, are supported by the nature of the violations demonstrated in the record of this matter. The one exception is the condition regarding SIDS training. The ALJ recommends deleting that condition from the Order of Conditional Licensee.[33]
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that the Order to Forfeit a Fine be DISMISSED; and that the Order of a Conditional License be AFFIRMED, with the deletion of the condition regarding SIDS training.
Dated: May 18, 2005
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, one tape, no transcript prepared.
Licensee relies on a narrow interpretation of the evidence to support her contention that the Department has not shown her to be overcapacity in her daycare. Licensee maintains that she said that “it looks like” she was overcapacity, not that she was overcapacity. Contrary to Licensee’s contention, the Department is not limited to the conditions observed by licensing workers. The Department has relied on Licensee’s own statements and the records of her daycare. Reviewing the attendance records and identifying daycare children by name and age, the Department has demonstrated that Licensee was overcapacity. This evidence demonstrates that Licensee operated over her licensed capacity in 2004.
An independent basis of imposing conditional licensure is Licensee’s use of helpers to supervise daycare children, while Licensee was away from the daycare. On several visits, Licensee described her practice transporting children while her helper supervised the remaining daycare children. Each time the licensing worker indicated that the practice triggered the substitute rule. Licensee did not follow through with adding her helper to her license. Only by having a co-licensee providing care would the supervision rule be met.
The County has observed Licensee’s approach to capacity limits and her use of substitutes over a long period of time. The licensing workers have consistently informed Licensee of the need to comply with the rules and the means by which she can do so. Conditional licensure is an appropriate response to the demonstrated and ongoing rule violations.
G.A.B.
[1] Licensee Photographs.
[2] Licensee Photographs.
[3] Department Exhibit 5.
[4] Department Exhibit 5.
[5] Department Exhibit 8.
[6] Department Exhibit 12.
[7] Department Exhibit 10.
[8] Department Exhibit 11.
[9] Department Exhibit 13.
[10] Department Exhibit 14.
[11] Department Exhibit 2.
[12] Testimony of Mary Gabe. Lisa Yates is now working for another division of the County and did not appear in this matter.
[13] Testimony of Gabe; Department Exhibit 2.
[14] Id.
[15] Testimony of Gabe; Department Exhibit 2.
[16] Department Exhibit 2. A photograph of this area showed that both the ground and the vegetation at that location were dry at the time the photograph was taken. Licensee Photographs.
[17] Department Exhibit 3.
[18] Department Exhibit 4.
[19] The Department noted the error at the hearing in this matter and withdrew that issue from this contested case proceeding.
[20] Department Exhibit 1.
[21] Licensee Photographs. The notation on the photograph is that the gate has a “plunger locking mechanism.”
[22] The substitute rule limits the use of substitute providers to no more than 30 days of providing care in any 12-month period. Minn. R. 9502.0365, subp. 5.
[23] Department Exhibit 17.
[24] These items included the need for a background check on her adult child who was to reside at home, but who had not yet returned. Department Exhibit 18.
[25] Department Exhibit 6.
[26] Department Exhibit 6.
[27] Notice of and Order for Hearing, Exhibit A.
[29] Department Exhibit 22.
[30] Minn. Stat. § 245A.06, subd. 4.
[31] Minn. Stat. § 245A.07, subd. 1.
[32] Minn. Stat. § 245A.08, subd. 3(a).
[33] Department Exhibit 6, at 5, item 4.