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12-1800-16698-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of the Denial of the Application of Azza Gad and Manar Gad for a License to Provide Child Care |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above-entitled matter came
on for hearing before Administrative Law Judge (ALJ) Steve M. Mihalchick on September
21, 2005, at the Office of Administrative Hearings,
Rebecca Morrisette, Assistant
County Attorney,
The Applicant, Azza Gad,
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. The Commissioner may adopt,
reject or modify the Findings of Fact, Conclusions, and 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 this Report to file exceptions and present argument to
the Commissioner. Parties should contact
Kevin Goodno, Commissioner, Department of Human Services,
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.
Under Minn. Stat. § 14.62, subd. 1, the
agency is required to serve its final decision upon each party and the
Administrative Law Judge by first class mail or as otherwise provided by law.
STATEMENT
OF ISSUE
Did the Department
properly conclude that Azza Gad and Manar Gad should not be issued a license to provide family child care because Azza
Gad gave false or misleading information in the application process?
The Administrative Law
Judge concludes that Azza Gad did not provide false or misleading
information on her application, but did provide some misleading information by
telephone, which she partially corrected, and that Department of Human Services should grant the license application.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS
OF FACT
1. Azza Gad and Manar Gad live in
2. On August 26, 1999, Azza Gad confronted her husband over her
belief that he was engaged in an extramarital affair (hereinafter “the 1999
incident”). An argument ensued, and Azza
Gad poured lighter fluid on herself and began ostensibly searching for matches
or a lighter. At the time, family
members smoked and lighters were readily available.[3] Azza Gad was not actually attempting to harm
herself. Rather, she was demonstrating,
in an excessive manner, her reaction to the pain she felt her husband had
inflicted upon her. She did not intend
to carry out any self-harm. A member of
the household intervened by calling 911 and contacting relatives who lived
nearby.[4]
3. Azza
Gad was taken to
4.
5. In November 2004, Azza Gad submitted an application to Hennepin
County Children and Family Services (the County) for a license to provide child
care from her home.[8] Because she is not a native English speaker,
Azza Gad was assisted by a relative in completing the application form.[9] She also completed a background study form
inquiring into various aspects of her past.
She responded “No” the question:
Have you or
anyone in your residence or anyone working in your child care received
counseling from any public or private social service agency, therapist, mental
health center, correctional/probation officer, chemical dependency counselor,
other?[10]
6. While
processing Azza Gad’s application, the County reviewed the Child Protection
file from the 1999 incident. On February
24, 2005, Azza Gad called the County and inquired as to why the licensing
process was taking so long. Janet
Remington, a licensing worker for the County, asked if Azza Gad was aware of
any Child Protection matter that she had been involved in and she responded,
“No.”[11] Remington asked if she was taking, or had
taken any anti-depressant medication and Azza Gad responded that she only took
medication for diabetes. Remington asked
if she remembered any particular incidents from 1999 that were particularly
difficult times in her life and Azza Gad responded. “No.”[12]
7. On Monday, February 28, 2005, Azza Gad called Remington and
told her that she remembered “a small problem between myself and my husband.”[13] She provided no further information about the
1999 incident at that time.
8. On March 11, 2005,
9. On June 1, 2005, the Department issued an Order denying the
application for a child care license.
The stated reasons for the denial are:
Because
Azza Gad knowingly withheld relevant information by faiing to disclose the
maltreatment determination and subsequent counseling she received, and in order
to protect the health and safety of children served in DHS-licensed programs,
your application to provide family child care is denied.[15]
10. On June 6, 2005, Azza Gad filed a timely
request for appeal. In her appeal
letter, she stated:
The problem
that I had in the past was a personal family matter. It had been an issue that I had felt insecure
about. My husband and I have solved our
problems and moved forward. Right now I
‘m very happy and have a wonderful life. …[16]
11. On June 9, 2005, the Department of Human
Services issued the Notice of and Order for Hearing in this matter, setting the
matter on for hearing before Administrative Law Judge
12. Azza Gad has not had any recurrence of the
problems which occurred in the 1999 incident.
Based upon the foregoing Findings of Fact,
the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Commissioner of Human Services and
the Administrative Law Judge have jurisdiction in this matter under Minn. Stat.
§ § 14.50 and 245A.08.
2. The Department of Human Services gave
proper and timely notice of the hearing in this matter.
3. The Department and
4. At a hearing on denial of an application,
the applicant bears the burden of proof to demonstrate by a preponderance of
the evidence that the applicant has complied fully with Minn. Stat. Chapter
245A and other applicable laws or rules and that the application should be
approved and a license granted.[17]
5. The finding of maltreatment against Azza Gad does not
constitute a disqualification from direct contact with persons served in
licensed programs because the maltreatment was neither serious nor recurring.[18] The Department is statutorily prohibited from
disqualifying a person solely due to the person having had a mental illness.[19]
6.
The commissioner may deny a license if an applicant fails to comply with
applicable laws or rules, or knowingly withholds relevant information from or
gives false or misleading information to the commissioner in connection with an
application for a license or during an investigation. An applicant whose application has been
denied by the commissioner must be given notice of the denial. Notice must be given by certified mail or
personal service. The notice must state
the reasons the application was denied and must inform the applicant of the
right to a contested case hearing under chapter 14 and Minnesota Rules, parts
1400.8505 to 1400.8612. The applicant
may appeal the denial by notifying the commissioner in writing by certified
mail or personal service within 20 calendar days after receiving notice that
the application was denied. Section
245A.08 applies to hearings held to appeal the commissioner's denial of an
application...[20]
7. The Applicant did not
knowingly withhold relevant information or give false or misleading information
in her application for child care licensure within the meaning of Minn. Stat. §
245A.05. The Applicant has demonstrated
by a preponderance of the evidence that she has complied fully with the
applicable law or rule and that the application should be approved and a
license granted.
8. The communications
difficulties experienced in the application process support the issuance of a
conditional license to assure that future communications are clear between the
Applicant and the Department.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: That the Order denying the application of
Azza and Manar Gad for a license to provide child care be reversed and the
application be GRANTED.
Dated this 3rd day of October, 2005.
|
/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
Reported: Taped (one
tape)
An important fact to note in this
matter is that Azza Gad is not a native English speaker. The basis for the denial in this matter is
the absence of information in several communications between County social
workers and the Applicant. Having
observed Azza Gad and her level of understanding, the ALJ has concluded that
she did not intend to mislead the Department or the County regarding the information
at issue.
Tim Hennessey, a Senior Social Worker for the County, testified that persons with mental health histories are scrutinized more closely to assess and understand the nature of the incident or problem. All the evidence in this record suggests that Azza Gad is fit to care for children. There was no indication that she was unfit to care for children at the time surrounding the 1999 incident. The maltreatment finding was not classified as serious and there has been no recurrence of the problems exhibited in the 1999 incident.
The evidence relied upon by the Department to support the assertion of providing false information in the application was initially characterized as “has there been anything in your past.”[21] The form does not ask for that information. The hospital admission, evaluation, and prescription of medication were cited as the basis for concluding that Azza Gad provided false information.[22]
The form, in pertinent part, asks whether the Applicant has “received counseling from any … therapist [or] mental health center ….”[23] There is no evidence in this record indicating that Azza Gad did receive counseling.[24] From this record, she experienced an emotional outburst arising from a belief that infidelity occurred, which was manifested in a display of behavior intended to elicit a sympathetic response from her husband.
As to the wording on the form regarding counseling, the County indicated that it would “construe an encounter with Child Protection … to be that sort of a context.”[25] The Child Protection case closing summary indicated that the Case Worker was conducting an investigation, not providing anything involving counseling.[26]
The Department also relied upon the substance of the conversations between Remington and Azza Gad to support the assertion that she was concealing information in the background process. At the time of the first conversation, Azza Gad did not recall the 1999 incident. After thinking about that time and being reminded of it by her husband, she recalled the 1999 incident, but she still did not think that the incident should have an impact on her license application because it arose from a familial dispute that has long been resolved.[27]
The County indicated that due to the “severity” of the incident, the Applicant should not be trusted to conduct licensed child care.[28] The 1999 incident was not considered severe at the time it occurred. There has been no recurrence of the problem. The maltreatment determination does not disqualify Azza Gad from being licensed to provide child care.
The Applicant has shown compliance with the standards required for licensure. The Department has shown that there is sufficient reason for concern that the license could be made conditional. The ALJ recommends that the Department GRANT the requested license.
S.M.M.
[1] Ms. Mahmoud is Azza Gad’s sister-in-law.
[2] Ex. 2.
[3] Testimony of Azza Gad.
[4] The record variously identifies the person who called 911 as Azza’s son Hatem, then aged 10, her daughter Manar, then aged 11, or her husband.
[5] Ex. 3.
[6] Testimony of Azza Gad.
[7] Ex. 3.
[8] Ex. 2. Azza Gad’s daughter, Manar Gad is also included in the application, but Azza Gad is the primary person on the license.
[9] Testimony of Azza Gad.
[10] Ex. 4.
[11] Exs. 5, 7.
[12]
[13] Ex. 5.
[14] Ex. 7.
[15] Ex. 6.
[16] Ex. 8.
[17] Minn. Stat. § 245A.08, subd. 3(b).
[18] Minn. Stat. § 245C.15, subd. 4(b)(2).
[19] Minn. Stat. § 245C.15, subd. 5.
[20]
[21] Testimony of Hennessey.
[22]
[23] Ex. 4.
[24] There is evidence regarding one or two subsequent visits to a psychiatrist at the time of the 1999 incident, but the substance of those visits is not in this record. There is no evidence that the psychiatrist engaged in counseling or referred Azza Gad for counseling.
[25] Testimony of Hennessey.
[26] Ex. 3.
[27] Testimony of Azza Gad.
[28] Testimony of Hennessey.