|
|
3-1800-16909-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the Temporary Immediate Suspension of the License of Peggy McCrank to Provide Family Child Care
|
RECOMMENDED ORDER ON MOTION FOR SUMMARY DISPOSITION |
This matter is before Administrative Law Judge Kathleen D. Sheehy on the Department’s motion for summary disposition. The motion record closed on August 30, 2006.
Rebecca S. Morrisette, Assistant County Attorney, 525 Portland Avenue South, 12th Floor, Minneapolis, MN 55415, appeared for Hennepin County Human Services and Public Health Department and the Minnesota Department of Human Services (the Department).
Shellie Lundgren, Kurzman Grant Law Office, Chartered, St. Anthony Main, 219 SE Main Street, Suite 403, Minneapolis, MN 55414, appeared for Peggy McCrank (Licensee).
Based upon all of the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED:
That the Department’s motion for summary disposition be GRANTED because the Licensee failed to identify any genuine issue of material fact concerning the propriety of the Order of Temporary Immediate Suspension. The Licensee should be permitted, however, to appeal the maltreatment and disqualification decisions if she chooses to appeal the Commissioner’s final negative action.
Dated: September 20, 2006.
s/Kathleen D. Sheehy
|
|
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
MEMORANDUM
Peggy McCrank is a licensed provider of child care in Hennepin County, Minnesota. On September 29, 2005, the Department issued an Order of Temporary Immediate Suspension of her license to provide family child care based on allegations that the Licensee had engaged in maltreatment of two day care children. The Licensee appealed the Order of Temporary Immediate Suspension, and a Notice and Order for Hearing was issued scheduling an expedited hearing. The Licensee and the Department then jointly requested a continuance of the hearing for purposes of conducting settlement discussions. The Department now moves for summary disposition on the Order of Temporary Immediate Suspension. The Licensee opposes the motion.
Procedural Posture
Summary disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law.[1] The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested case matters.[2] A genuine issue is one that is not sham or frivolous. A material fact is a fact whose resolution will affect the result or outcome of the case.[3]
The moving party, the Department, has the initial burden of showing the absence of a genuine issue concerning any material fact. To successfully resist a motion for summary judgment, the non-moving party must show that there are specific facts in dispute that have a bearing on the outcome of the case.[4] The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party’s burden under Minn. R. Civ. P. 56.05.[5] The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[6]
When considering a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party.[7] All doubts and factual inferences must be resolved against the moving party.[8] If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[9]
Analysis
The commissioner is required to act immediately to temporarily suspend a license if the license holder’s actions or failure to comply with applicable law or rule, or the actions of other individuals or conditions in the program, pose an imminent risk of harm to the health, safety, or rights of persons served by the program.[10] At a hearing on the propriety of a temporary immediate suspension, the commissioner is required to prove that reasonable cause exists to believe the license holder’s actions or failure to comply with applicable law or rule pose an imminent risk of harm to the health, safety, or rights of persons served by the program. The hearing “shall be limited solely to the issue whether the temporary immediate suspension should remain in effect pending the commissioner’s final order under § 245A.08, regarding a licensing sanction issued under subdivision 3 following the immediate suspension.”[11]
The following facts are not disputed. On August 24, 2005, Hennepin County Licensing and Child Protection received a report that the Licensee had physically abused two children in her care, a seven-year old girl and a three-year-old girl. A 14-year-old working as a helper in the home alleged that the Licensee became angry with the seven-year-old for refusing to pick up a candy wrapper on the floor, grabbed her by the pony tail, slapped her three times on the face, then pushed her by the hair into the corner of the room, where she made the child stand for 30-45 minutes. Another helper alleged that on a different occasion, the Licensee became angry with the three-year-old for hitting another child, grabbed the three-year-old by the hair, and banged her head into the door frame.[12] During the next month, child protection investigators interviewed the two helpers and the seven-year-old, who confirmed the initial allegations. Child protection investigators also interviewed the Licensee, who denied physically disciplining either of the children. On September 28, 2005, child protection investigators made an internal determination that the allegations of maltreatment by physical abuse were supported by a preponderance of the evidence.[13]
Hennepin County child care licensing determined that this constituted recurring maltreatment, which is a licensing disqualification under Minn. Stat. § 245C.15.[14] On September 29, 2005, Hennepin County recommended that the commissioner issue an Order of Temporary Immediate Suspension of Ms. McCrank’s license.[15] On the same day, the commissioner issued the Order of Temporary Immediate Suspension based on the alleged maltreatment of day care children.[16] On October 4, 2005, the Licensee requested a hearing on the Order of Temporary Immediate Suspension.[17]
On October 6, 2005, Child Protection formally notified the Licensee that it had concluded the maltreatment allegations were substantiated and constituted recurring maltreatment that disqualified her from providing day care. The notice advised the Licensee that she could seek reconsideration of both the maltreatment determination and the disqualification decision by submitting a written request within 30 days.[18]
On October 13, 2005, the Department issued a Notice and Order for Hearing concerning the temporary immediate suspension order. The expedited hearing was scheduled to take place on October 27, 2005.[19] Because of a scheduling conflict of the Licensee’s attorney, the hearing was rescheduled to take place November 29, 2005.[20]
On November 4, 2005, the Licensee requested reconsideration of the maltreatment determination and disqualification decision. On November 14, 2005, the County affirmed its finding of maltreatment and notified the Licensee, in a letter addressed to her counsel, that she could appeal by making a written request for hearing within 30 days.[21]
On November 22, 2005, the parties jointly requested a continuance of the hearing on the Temporary Immediate Suspension because they anticipated reaching a settlement that would have avoided the need for a hearing.[22] The parties indicated they would let the Administrative Law Judge know if another hearing date was needed.[23]
On May 25, 2006, counsel for the Department wrote to the Licensee acknowledging that the Licensee’s counsel was no longer representing the Licensee and seeking clarification on whether the Licensee intended to execute a settlement agreement previously negotiated. The letter further provided:
Please return a signed copy of the Settlement Agreement to me if you desire to resolve this matter. Otherwise, please inform me as to your position at this time. If you do not wish to settle but agree to withdraw your Appeal of the Temporary Immediate Suspension, the suspension order will become final and the Agency will then have 90 days to determine what the final negative action should be with respect to your license. One final hearing could then be held to address the final negative action and underlying issues such as the maltreatment determination and disqualification.[24]
When the Licensee did not reply to this letter, the hearing on the Temporary Immediate Suspension was rescheduled to take place on August 16, 2006.[25] Both counsel for the Department and new counsel for the Licensee subsequently requested a continuance of that hearing date.[26]
Because the hearing on the Temporary Immediate Suspension was continued, the commissioner has yet to take any final licensing action as a consequence of the suspension. In addition, the commissioner is separately considering negative action on the Licensee’s appeal of a correction order, which cited her for refusing to allow the licensing worker access to two bedrooms on the main floor of her home; for refusing to permit the licensing worker to copy the names, addresses, and telephone numbers of parents of children in care; and for failing to complete required training.[27]
The Department filed this motion for summary disposition on August 14, 2006. In the motion, the Department argues in part that the determination of recurring maltreatment is conclusive because the Licensee did not timely request a hearing within 30 days of November 14, 2006.[28] The Department also argues that there are no genuine issues of material fact and that the commissioner is entitled to affirm the Temporary Immediate Suspension Order as a matter of law. In response, the Licensee argues that during the settlement negotiations, the parties exchanged several written settlement proposals, all of which addressed the issue of whether or not Ms. McCrank would agree to waive her right to appeal the maltreatment determination of November 14, 2005. The Licensee further argues that “it can be inferred, but it is unclear from the record, that the time for appeal would be stayed pending the outcome of such negotiation.” The Licensee also argues that she is entitled to a prompt post-suspension hearing on the temporary immediate suspension and that failure to provide such a hearing would violate her right to due process of law.
On the merits of the Temporary Immediate Suspension Order, the Licensee has submitted neither affidavit nor argument disputing any of the material facts: the County received complaints of maltreatment concerning two young children in care; the County investigated and made an internal determination that the complaints had been substantiated as physical abuse; and the Commissioner suspended her license based on its determination that while the investigation was underway, the Licensee posed an immediate risk of harm to children in care. The Department has established, as a matter of law, that it had reasonable cause to believe the Licensee’s actions posed an imminent risk of harm to the health, safety, or rights of daycare children in September 2005, and that the immediate suspension should remain in effect pending the commissioner’s final order under § 245A.08 regarding a licensing sanction following the immediate suspension.
The Administrative Law Judge agrees, however, with the Licensee’s argument that she should not be deemed to have waived her right to appeal the maltreatment and disqualification determinations. The record reflects that the Department’s counsel similarly understood, on May 25, 2006, that even if the Licensee made the decision not to sign the proposed settlement agreement, she could withdraw her appeal of the Temporary Immediate Suspension Order and would still be entitled to address the maltreatment determination and disqualification at the time of a hearing on the commissioner’s final negative action. Those determinations thus are not yet final, and the Licensee has the right to challenge them in a future hearing.
The statute authorizing temporary immediate suspensions provides the Licensee with the right to a hearing within 30 days of the request for assignment of an Administrative Law Judge.[29] The Department properly noticed and scheduled the hearing to take place in that timeframe. The Licensee’s counsel waived that right by requesting two continuances, the last one indefinite, so that the parties could engage in settlement discussions. Licensee’s current counsel requested another continuance when the hearing was rescheduled again. The Department then brought this motion for summary disposition, which the Licensee did not oppose on the merits. The Department has not deprived the Licensee of her right to a prompt hearing on the Order of Temporary Immediate Suspension.
K.D.S.
[1] Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Minn. Rule pt. 1400.5500K; Minn.R.Civ.P. 56.03.
[2] See Minn. R. 1400.6600.
[3] Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978); Highland Chateau v. Minnesota Department of Public Welfare, 356 N.W.2d 804, 808 (Minn. App. 1984).
[4] Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Hunt v. IBM Mid America Employees Federal, 384 N.W.2d 853, 855 (Minn. 1986).
[5] Id.; Murphy v. Country House, Inc., 307 Minn. 344, 351-52, 240 N.W.2d 507, 512 (Minn. 1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 75 (Minn. App. 1988).
[6] Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
[7] Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn. App. 1984).
[8] See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971); Thompson v. Campbell, 845 F. Supp. 665, 672 (D. Minn. 1994).
[9] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).
[10] Minn. Stat. § 245A.07, subd. 2.
[11] Minn. Stat. § 245A.07, subd. 2a.
[12] Exs. 2 & 3.
[13] Ex. 3.
[14] Ex. 1.
[15] Ex. 1.
[16] Ex. 5.
[17] Ex. 20.
[18] Ex. 9.
[19] Notice and Order for Hearing, October 13, 2005.
[20] Letter dated October 24, 2005, from Deborah Causey Eckland to Rebecca Morrisette; Letter dated October 26, 2005, from Rebecca Morrisette to ALJ; Letter dated October 26, 2005, from ALJ to counsel.
[21] Ex. 21.
[22] Letter dated November 22, 2005, from Rebecca Morrisette to ALJ.
[23] Id.
[24] Letter dated May 25, 2006, from Rebecca Morrisette to Peggy McCrank (emphasis added).
[25] Letter dated June 22, 2006, from ALJ to Rebecca Morrisette and Peggy McCrank.
[26] Letter dated August 10, 2006, from Rebecca Morrisette to ALJ; Letter dated August 14, 2006, from Shellie Lundgren to ALJ.
[27] Exs. 10, 16-18.
[28] Department’s Memorandum in Support of Motion for Summary Disposition at 6.
[29] Minn. Stat. § 245A.07, subd. 2a.