OAH No. 7-1800-16600-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE COMMISSIONER OF HUMAN SERVICES

 

 

In the Matter of the Order of Conditional License and Order to Forfeit a Fine against the License of Karen Dehn

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

          This matter came on for Hearing before Administrative Law Judge Richard C. Luis on June 1, 2005, at the Blue Earth County Government Center, 410 South Fifth Street, Mankato, MN.  The hearing record closed at the conclusion of the hearing.

 

          Mark A. Lindahl, Assistant Blue Earth County Attorney, 410 South Fifth Street, PO Box 3129, Mankato, MN 56002-3129, appeared for the Blue Earth County Human Services Department (“the County”) and the Minnesota Department of Human Services (“the Department” or “DHS”).

 

          Karen Dehn (“Licensee”), 324 West Welcome Avenue, Mankato, MN 56001-4942, appeared on her own behalf.

 

NOTICE

 

This report is a recommendation, not a final decision.  The Commissioner of Human Services will make the final decision after a review of the record and may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendation.  Under Minn. Stat. § 14.61, the Commissioner shall not make a final decision until this Report has been made available to the parties for at least ten days.  The parties may file exceptions to this Report and the Commissioner must consider the exceptions in making a final decision.  Parties should contact Kevin Goodno, Commissioner, Department of Human Services, 444 Lafayette Road, St. Paul, MN  55155, to learn 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. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, 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.  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.

STATEMENT OF ISSUE

 

          Should the Order for Conditional License and the Order to Forfeit a Fine in the amount of $400 against Karen Dehn be affirmed?

 

 

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

 

FINDINGS OF FACT

 

1.       Karen Dehn is a resident of Blue Earth County licensed as a family child care provider since 1980.  She provides child care at her residence, 324 West Welcome Avenue in Mankato.  Her license is a Class C1 license.[1]

 

2.               In July 2003, Licensee’s daughter and son-in-law, Rachel and Eric Burroughs, and their two children, C.B. (d.o.b. 8/8/97) and M.B. (d.o.b. 2/25/99), moved into Licensee’s home.[2]  Rachel Burroughs is a figure-skating instructor who had been a licensed daycare provider in the past.  Eric Burroughs is a special education teacher.

3.               On March 22, 2004, Blue Earth County Human Services (“County”) received a complaint that Licensee was over capacity and that she had approximately 20 children in her care.[3]  On March 31, 2004, Jessica DuRose, a County licensing worker,[4] visited Licensee’s home and confirmed that Licensee was over capacity by two children.  Later that day, Ms. DuRose returned to Licensee’s home and issued Licensee a Correction Order, citing her for over capacity under Minn. Rule 9502.0345.[5]  At that time, Licensee admitted that her daughter and son-in-law and their two children had moved back into Licensee’s home and that they had not completed background checks.  As a result, the licensing worker added to the Correction Order a violation of Minn. Stat. § 245A.04, subd. 3 for failure to complete background checks, and Minn. Rule 9502.0375, subp. 2A for failure to notify the County of the change in membership of her household.[6]

4.               Licensee corrected the capacity violations that same day.  She submitted background check consent forms signed by her daughter and son-in-law the next day.[7]

5.               When Trish Reedstrom, the County licensing supervisor, returned to Licensee’s home for a follow-up visit on April 9, 2004, Licensee was in compliance with her capacity limits.  That day, Licensee provided Ms. Reedstrom with an updated enrollment form.[8]  Licensing worker Holly Holland completed another follow-up visit on May 12, 2004, after she returned from maternity leave; again, Licensee was in compliance with the capacity limits.

6.               Between April 2004 and January 2005, Ms. Holland collected information regarding Licensee’s food program status and attendance at her facility.  She also spent time catching up on her backlog of other work.[9]

7.               Rachel and Eric Burroughs received the results of their background checks on November 10, 2004.  Both individuals were not disqualified from providing direct contact services.[10]

8.               By letter to the Department dated January 11, 2005, Ms. Holland recommended that Ms. Dehn’s license be placed on conditional status for one year based on violations of Minn. Rule 9502.0367.  Ms. Holland cited multiple past violations of Licensee for over capacity.[11]

9.               Based upon the County’s recommendation, DHS issued Licensee an Order to Forfeit a Fine and Order of Conditional License on March 24, 2005.[12]  The Order to Forfeit a Fine was based upon Licensee’s failure to notify the County of the change in her household and her failure to have her daughter and son-in-law submit to background checks.[13]  Licensee was fined $400 for the two violations pursuant to Minn. Stat. § 245A.07, subd. 3.  The Order of Conditional License was based on Licensee’s over-capacity violations of Minn. Rule 9502.0365 and 9502.0367.  Under the terms of the Conditional License (a period of one year), Licensee was required to follow and comply with the applicable rules; obtain a minimum of six hours of additional training in the areas of safety and supervision by September 22, 2005, over and above the standard requirements; submit daily attendance records to the County on a monthly basis; and provide a copy of the Order of Conditional License to parents of children in care or document that all parents have been given an opportunity to review the Conditional License.  During the terms of the Conditional License, the County would not grant any variances to Licensee as to age distribution or capacity.  Licensee was also informed of her right to request reconsideration of the Conditional License and the fine.

 

10.           In a letter dated March 29, 2005, Licensee requested reconsideration of both the fine and the conditional license.[14]

 

11.           The Department served a Notice and Order for Hearing on Licensee on May 19, 2005, setting the hearing to take place on June 1, 2005. 

 

Based on the Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

 

1.               Any Findings of Fact more properly termed Conclusions are adopted as such.

2.               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.

3.               The Department gave proper and timely notice of the hearing in this matter and has complied with all procedural requirements of law and rule.

4.               The County’s correction orders and the Department’s subsequent conditional license were issued to Licensee pursuant to Minn. Stat. § 245A.06, subd. 1, which requires the Commissioner to consider the nature, chronicity, or severity of the violation and the effect of the violation on the health, safety, or rights of the children served by the program.

5.               Minn. Stat. §§ 245C.03, subd. 1 and 245C.04, subd. 1 mandate on whom the Commissioner of Human Services must conduct a background study and when that study must occur.  The background study forms must be submitted to the Commissioner before the individual has direct contact with the program participants.  Rachel Burroughs and Eric Burroughs are both individuals on whom background study forms should have been completed before they had contact with children enrolled in the Licensee’s program.

6.               Minn. Stat. § 245A.07, subds. 1 and 3 provide 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.”

7.               Minn. Stat. § 245A.07, subd. 3(b)(4) provides that the Commissioner must fine license holders $200 for “each occurrence of a violation of law or rule governing matters of health, safety, or supervision, . . . and failure to submit a background study” on individuals living in the household who have contact with persons served by the program.

8.               Minn. Rule parts 9502.0365 and 9502.0367 limit the total number of children and the total number of preschoolers, toddlers and infants allowed in a provider’s home at any one time.

9.               It is the Department’s burden to demonstrate reasonable cause to believe that the license holder failed to comply fully with applicable law or rule.  The Department has made that demonstration.  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 applicable laws or rules at the time of the alleged violations.[15]

10.           Licensee has not established by a preponderance of the evidence that she was in full compliance with applicable laws or rules at the time of the violations.

Based on the Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

          IT IS RECOMMENDED: (1) that the Order for Conditional License and Order to Forfeit a Fine dated March 24, 2005 be AFFIRMED; and (2) that the Licensee be fined a total of $400.

 

          Dated:            July 1, 2005

 

 

                                                            /s/ Richard C. Luis

                                                            __________________________

                                                            RICHARD C. LUIS

                                                            Administrative Law Judge

 

 

Reported:  Tape recorded (2 tapes).

 

 

 

 

 

 

 

 

 

MEMORANDUM

 

          The facts of this case are not disputed.  Licensee does not dispute that she was over capacity and admits that she did not inform the County when her daughter and son-in-law moved into her residence.[16]  She also admits that her daughter and son-in-law did not undergo background checks before they had contact with the daycare children.  Licensee argues that she did not pursue the background checks because her son-in-law is a teacher and her daughter is a figure-skating instructor, and she understood that licensed teachers, who are required by statute to undergo background checks as a part of their licensure, did not need to have additional background checks under Minn. Stat. § 245C.03.  That argument lacks factual and legal support.  There is no evidence the Agency was informed of any background investigation done by another entity, and no establishment that figure skating instruction is a licensed occupation requiring such a check.  Any background check done on Ms. Burroughs in connection with her earlier child care license would be stale.

 

          Licensee argues that the fine is too severe because of the long delay between the Correction Order issued on March 31, 2004 and the Order to Forfeit a Fine and Order of Conditional License issued on January 11, 2005.  Any administrative problems at Blue Earth County resulting in a delayed determination of the Licensee’s status are regrettable, but the delay was not sufficiently significant to make a decision to penalize the Licensee inappropriate.

 

Licensee also contends that her immediate compliance with the March 31, 2004 Correction Order should work in her favor.  Overall, she believes that the licensing rules contain ambiguities and create confusion for which she should not be held responsible.

 

          These arguments do not outweigh the fact that Licensee did not notify the County when her daughter and son-in-law moved into her home, that the required background checks were not done in a timely manner, and that Licensee’s daycare was over capacity multiple times during the past nine years.  Given these circumstances, a fine of $400 is appropriate.

 

R.C.L.