|
OAH Docket No. 11-1800-17277-2 |
STATE
OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the Maltreatment Determination and Order to Forfeit a Fine for New Horizon Child Care Center, Inc. |
FINDINGS
OF FACT, CONCLUSIONS, AND
RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Barbara L. Neilson on
Jonathan Geffen, Assistant Attorney
General, 445 Minnesota Street, Bremer Tower, Suite 900, Saint Paul, MN
55101-2127, appeared on behalf of the Department of Human Services (“the
Department” or “DHS”).
Thomas Hunziker, Attorney at Law, Dunkley
and Bennett, P.A.,
STATEMENT
OF ISSUES
1. Did the Department of Human Services appropriately
determine that maltreatment of a child by neglect under Minn. Stat. § 626.556,
subd. 2(c)(2), occurred on
2. Did the Department of Human Services
appropriately determine that maltreatment of a child by neglect under Minn. Stat.
§ 626.556, subd. 2(c)(2), occurred on
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
Background
1.
New Horizon is a licensed child care provider in the State
of
2.
Each licensed
child care provider must renew its license and pay a licensing fee by December
31 each year. The Department sends out
relicensing packets every year in approximately August or September.[4] If a facility does not complete its relicensing
application, its license expires.[5] Because there is no evidence that New Horizon’s
3.
New Horizon
obtains a separate license for each physical location it operates.[7] At New Horizon' s request, the reapplication
packets for individual New Horizon facilities, including the Elk River and
4.
"Nursemaid's elbow" is a partial dislocation of a
child’s elbow joint that makes it difficult and painful to move the joint. Nursemaid's elbow typically occurs after a
sudden pulling force is applied to the extended arm of a child.[9] If the head of the radius (which is one of
the bones in the forearm) slips down and the ligament that is holding it there
pops up into the joint, the ligament will get caught and obstruct normal motion
at the joint.[10] In essence, “a portion of soft tissue, whose function is to hold bones together, is
pulled between two areas of the bones that make up the elbow joint.”[11] A child suffering such an injury often
becomes more susceptible to recurrence in the future, until they reach the age
of four.[12]
5.
Nursemaid's elbow is a common occurrence in young children
below the age of four or five because the attachment of the ligament covering
the head of the radius is weaker in children than in adults.[13] The symptoms of nursemaid’s elbow include
pain, refusal or inability to move the injured arm, and pain with movement.[14] A child who suffers nursemaid’s elbow
typically avoids moving or using that arm and holds the arm against his or her
abdomen, slightly bent at the elbow.[15]
6.
The most common cause of nursemaid elbow is axial traction
by a pull on the hand or wrist, and the second most common mechanism of injury
is a fall.[16] Nursemaid’s elbow is “often seen after a
parent lifts a child by one arm up a curb or high step."[17] The injury “can occur innocently from
swinging a young child by the arms or pulling a child’s arm while in a hurry.”[18] Common situations in which this injury occurs
include the following: a toddler and
adult who are holding hands lurch in opposite directions, resulting in the
toddler’s hand being pulled; a toddler is pulled by the wrist up and over an
obstacle; a child’s arm is pulled through the sleeve of a sweater or coat; a
child is caught by the hand to prevent a fall; a child is swung while being
held by the hands; or a child falls suddenly and tries to catch himself while
falling.[19] Tips for prevention of this injury include
the following: “Avoid lifting a child by
one arm only (from the wrist or hand) [but instead] [l]ift under the arm, from
the upper arm, or both arms at a time;"[20] “Avoid
any sudden jerking to the hand or forearm of any small child;”[21] and
“Avoid pulling or swinging [a] child by the arms or hands.”[22]
7.
Parents of children with suspected nursemaid’s elbow are
generally advised to have the child seen by a physician and not attempt to
correct the injury themselves.[23] Physicians usually reduce the dislocation by
using one of two different methods: the
wrist may be rotated externally and the arm extended, or the wrist may be rotated
externally and the arm flexed at the elbow joint. The child experiences momentary pain when
this type of injury is corrected, but it's over very quickly and anesthesia is
never used.[24] Sometimes the injury is corrected by parents
in the process of examining the child at home or when the child’s arm is
positioned for an x-ray.[25] With treatment, there is usually no permanent
damage.[26] However, if nursemaid’s elbow is left
untreated, it may result in permanent inability to fully move the elbow.[27]
8.
In approximately August of 2002, the Minnesota Department of
Human Services (“the Department") prepared a document entitled “Alert –
Dislocated Elbows” (hereinafter referred
to as the “2002 Alert”). The 2002 Alert
stated that the Department had investigated several incidents during 2001 and
2002 where children suffered dislocated elbows while attending licensed child
care facilities due to child care staff lifting or pulling children by the
wrist or hand.[28] To prevent similar injuries, the 2002 Alert
required all licensed child care facilities to “read his alert, share it with
your staff, and take precautions that you feel are the best fit for your
program.”[29] The 2002 Alert instructed facilities to
“[p]lease alert your staff to the danger of dislocated elbows and take steps to
prevent these types of incidents.”[30] The 2002 Alert also provided tips to reduce
the likelihood of this type of injury occurring, such as “never grab, drag,
pull, yank, swing, or lift a child of any age by their arms or wrists” and
“never swing children of any age by their arms.”[31]
9.
A copy of the
2002 Alert was included in the relicensing packet that the Department sent out
in approximately August or September of 2002 to every child care facility that
was in operation in 2002.[32] This was the only time that the 2002 Alert
was sent out by the Department. Additional
alerts on the same subject were not sent out by the Department until 2005 and
2006, after the incidents at issue in this case occurred.[33] The Department did not include the 2002 Alert in the 2004
relicensing packets.[34] No additional alerts pertaining to
nursemaid's elbow were issued by the Department between August 2002 and
September 2005.[35] The 2005 Alert explicitly stated that,
"Although the areas of this alert and the corresponding suggestions are
not requirements of child care center licensure, failure to consider these
areas in the overall safety plan of your center may result in finding(s) of
maltreatment under the Reporting of Maltreatment of Minors Act (Minnesota
Statutes, section 626.556) should incidents occur."[36]
10.
New Horizon has a Behavior Guidance Policy in place for its
facilities. The policy that was in
effect during 2004-05 stated that certain actions were prohibited,
including: "Corporal punishment
including, but not limited to, rough handling, shoving, shaking, excessive
tickling, slapping, kicking, biting, pinching, hitting, spanking, and pulling
arms, hair, or ears." Individuals
who violate that policy are immediately terminated.[37]
11.
New Horizon also posts a document entitled “Lifting Safely”
in its facilities. The document sets
forth steps to follow for healthy lifting when picking up, carrying, or setting
down a child. It emphasizes the
importance of bending at the knees and using leg muscles to do the work rather
than straining one’s back. Highlighted
language at the bottom of the document states, “A healthy back is very
important. Everyday our backs take on
much unneeded wear and tear! Follow
these simple procedures to reduce the extra stress on your back.”[38]
12.
In May of 2004, Gayle Fox was the Director of the New
Horizon facility in
13.
Ms. Haugen received training on a number of subjects during
her orientation at New Horizon when she was first hired in September 2003. Although some of the items on the orientation
checklist that was in Ms. Haugen's personnel file were not checked off, several
of those had to be completed during a timeframe that extended beyond the first
week of employment, when the form was signed by Ms. Haugen and the
then-director of the facility. Ms.
Haugen did not see any videotapes during her initial orientation.[43] When Ms. Fox became director of the facility
within a few months after Ms. Haugen started working at New Horizon, Ms. Haugen
came to her with some questions about policies.
Ms. Fox sat down with Ms. Haugen and conducted a thorough additional
orientation with her, apart from CPR class, first-aid class, and corporate
education, which were provided outside the facility.[44] Ms. Fox also gave Ms. Haugen an opportunity
to watch the videotapes that were mandatory for orientation.[45] Other videotapes were presented by Ms. Fox at
mandatory staff meetings.[46] Ms. Haugen testified that she believes one of
the videos she reviewed within a few months after she began working for New
Horizon and prior to the incident involving T.W. may have contained information
about not lifting children by the hands, but it did not advise employees not to
swing children around. She reviewed that
video a few months after she began working for New Horizon, but before the
incident involving T.W.[47]
14.
The Elk River New Horizon is accredited by the National
Association for the Education of Young Children (NAEYC). Its employees are trained on all of the
accreditation standards, which the director presents at staff meetings.[48]
15.
On
16.
Approximately ten minutes later, T.W. tripped and fell forward
in a pile of woodchips around the playground slide. She used her hands to break her fall.[50] T.W. then went to play in the sandbox, and
shortly thereafter, she started whining and favoring her right wrist.[51] It was only after T.W. fell that she started
to cry and hold her arm close to her body.[52] Ms. Haugen thought at the time, and continues
to believe, that T.W. injured her arm due to her fall.[53] Ms. Heidelberger told her that was possible,
but it could be from having swung her around, and advised her that it was not a
good idea to swing children.[54] Ms. Haugen was visibly upset when she heard
this and said that she had no idea that a child’s elbow or shoulder could be
dislocated by being swung around.[55] Prior to this time, Ms. Haugen did not know
that any injury could result from swinging a child.[56]
17.
Ms. Haugen provided T.W. with an ice pack that she could
place on her wrist.[57] Ms. Heidelberger and Ms. Haugen knew that
T.W.’s mother would be coming shortly and assumed that they would not be able
to reach her because she was probably en route, so they decided not to contact
her.[58] Ms. Heidelberger left for the day shortly
thereafter, at approximately
18.
When T.W.'s mother arrived to pick her up around
19.
T.W. would not let her mother touch her arm after she picked
her up. She cried when her mother tried
to move her arm to put on her coat and when she buckled her into her car seat. Her mother took her directly to an urgent
care. By the time the physician saw
T.W., she was using both hands and playing well. T.W. had a normal exam. The physician manipulated T.W.'s arm by
bending it upwards and T.W.’s mother thought she was 100 percent better after
that. The physician told T.W.’s mother
that she did not feel the elbow pop back into place so she was not completely
sure that the arm had been dislocated. The
doctor informed T.W.'s mother that an elbow dislocation may happen in a fall
but more often occurs if a child is pulled by the arm. The doctor also warned T.W.'s mother that, once an
injury of this type occurs, it is more likely to happen again.[64] The medical
records from the urgent care indicate that T.W. was diagnosed with
"possible radial head subluxation -- fixed." The physician later explained that radial head
subluxation was the same as nursemaid’s elbow, and the injury was described as
“possible” because T.W. was using her arm during the exam and the physician’s findings
were “postulations” about what had occurred based on information provided by
T.W.’s mother. The physician also
indicated that sometimes nursemaid’s elbow can resolve itself without a doctor’s
intervention.[65]
20.
T.W.’s mother spoke to Ms. Fox on
21.
Ms. Fox discussed the incident involving T.W. with Ms.
Haugen and Ms. Heidelberger on
22.
After the incident, Ms. Fox discussed the risk of dislocated
elbows with staff at
23.
As a result of the incident, Ms. Haugen was orally
reprimanded by Ms. Fox concerning how to pick up a child and the need to avoid
swinging or picking up children by their wrists. She was not given a written reprimand or
suspension, or told that she had violated the Behavior Guidance Policy.[72] Ms. Heidelberger did not receive any
reprimand or other discipline with respect to the incident.[73]
24.
A report was made to the Department of Human Services that a
staff person at New Horizon had swung T. W. by her arms in a circle between one
and three times resulting in T.W. sustaining a dislocated elbow.[74] After assessment by the intake department,
the matter was assigned to Meghan McAlister for investigation. Ms. McAlister made a site visit and conducted
interviews of Stacy Haugen, Lisa Heidelberger, and Gayle Fox on
25.
Prior to the incident with T.W., Ms. Haugen had not seen the
2002 Alert.[77]
During her interview with Ms. McAlister,
Ms. Haugen admitted that she did not know at the time of the incident that she
was not allowed to swing children around or that they were able to get hurt by
that activity. She said that Ms. Fox had
since explained to her that she should not have swung T.W. by the arms.[78] Ms. Haugen indicated that she had not received
any training on how to pick up a child other than CPR, first aid, and watching
a videotape explaining the need to pick children up close to your own
body. She said that she had never been
informed during her training prior to the incident that she was not supposed to
pick up children by their hands or wrists.
Although Ms. Haugen had not previously received information from New
Horizon regarding potential problems associated with swinging a child by his or
her arms, she had received the information contained in the Behavior Guidance
Policy (Exhibit 21) that she should not pull or tug on arms and she had also
previously seen the “Lifting Safely” information sheet (Exhibit 23) which is posted at New Horizon.[79]
26.
Lisa Heidelberger, the teacher in the toddler room, witnessed
the incident with T.W. Ms. Heidelberger
told Ms. McAlister that T.W. was “completely fine” after Ms. Haugen finished
swinging her around and was laughing and having a good time.[80] After the incident occurred, Ms. Heidelberger
told Ms. McAlister that swinging a child could cause a dislocated arm, and Ms.
Haugen was upset and said she had not known that.[81] Ms. Heidelberg had previously heard of the
risk of dislocation of elbows or shoulders if children are swung around but cannot
recall from whom. She is not entirely
sure that a New Horizon staff member told her about this risk.[82] She told Ms. McAlister that New Horizon had
provided in-service training to make sure staff knew appropriate ways to pick
up a child, such as the importance of not picking up a child by their hands,
bending your knees so you do not get hurt, and picking them up by their middle rather
than their hands.[83] Ms. Heidelberger is fairly certain that she
saw the 2002 Alert during her employment with New Horizon, although she acknowledged
that she may have seen it at another day care facility.[84] She does not recall that New Horizon provided
any training on dislocated elbows prior to the incident with T.W.[85]
27.
During Ms. McAlister’s interview with Ms. Fox, Ms. Fox informed
her that swinging a child is not in accordance with acceptable behavior under New
Horizon's policies and procedures. Ms.
Fox indicated that, prior to the incident with T.W., Ms. Haugen "probably
wouldn't have [known swinging was not allowed].
It's like biting, it's common sense."[86] Ms. Fox provided a copy of New Horizon’s
lifting instructions to Ms. McAlister and also told her that the Behavior
Guidance Policies are part of an orientation packet that is discussed with new
employees during orientation.[87] Ms. Fox told Ms. McAlister in a telephone
conversation during the DHS investigation that she was not aware that she had
ever seen the 2002 Alert.[88]
28.
There is no evidence that New Horizon had a specific written
or unwritten policy in May 2004 regarding playing with children by swinging them
by the arms, and no evidence that Ms. Haugen had received training regarding
dislocated elbows or swinging children by the hands.[89] None of the videotapes that New Horizon
requires all employees to view as part of orientation provides information
about not swinging a child around by the hands or wrists. The employee handbook also does not include
such information, nor does the safety policy.[90]
29.
Ms. McAlister completed her investigation into the
30.
Ms. McAlister ultimately recommended to her investigation
manager, James Janacek, that the Department issue a finding of maltreatment by
neglect with respect to the incident involving T.W. and that New Horizon be
found culpable for the act of neglect.[93] Ms. McAlister determined that picking the
child up by her hands and swinging her around put the child at risk of becoming
injured. She recommended that New
Horizon be found culpable because it did not have a policy or procedure in place
for informing staff persons of the risks associated with that conduct.[94] Ms. McAlister's initial recommendation went
to Mr. Janacek and Maura McNellis-Kubat, Section Supervisor for Investigations
and Intake, for further review, and they ultimately agreed with her
recommendation.[95]
31.
On September 29, 2005, the Department issued a Determination
of Maltreatment and Order to Forfeit a Fine as well as an Investigative
Memorandum with respect to the incident involving T.W. The DHS concluded that maltreatment by
neglect had occurred and that the facility was the responsible party. The Department ordered the license holder to pay
a fine in the amount of $1,000 under Minn. Stat. § 245A.07, subd. 3(b)(4).[96] The Department explained its determination as
follows:
Although [Ms.
Haugen] was the staff person who picked [T.W.] up by his/her hands and swung [T.W.]
in a circle, [Ms. Haugen’s] responsibility for the maltreatment was mitigated
by the facility's responsibility to inform staff persons prior to the incident
about the information related to dislocated elbows in the "Alert"
issued in August 2002, including the advisement to "never swing children
of any age by their arms."
The fact that
the facility failed to provide [Ms. Haugen] with training regarding the “Alert”
mentioned above was supported by [Ms. Haugen’s] statement that s/he did not
know s/he was not allowed to swing children and that s/he did not know that
children could get hurt by being swung.
[Ms. Fox], a facility supervisor, also corroborated the facility’s
failure to provide [Ms. Haugen] with the information in the “Alert” or other
information regarding the dangers of swinging children by their arms when [Ms.
Fox] stated that prior to the incident, [Ms. Haugen] “probably wouldn’t” have
known that swinging children by their arms was unacceptable.
[Ms. Fox], who
was responsible for providing training to all staff persons at the facility,
stated that s/he was not aware of the “alert.”
A review of the facility policies and procedures and information from
interviews showed that, at the time of this incident, the facility did not have
a policy in place that prohibited staff persons from swinging children by their
arms.[97]
32.
The Department issued a Notification Memorandum dated
33.
During her investigation, Ms. McAlister determined that T.W.
had suffered a dislocated elbow as a result of being swung around because she
believed it was more likely than not that such an injury would be sustained
from pulling on the arm rather than a fall.
By the time of the hearing, she agreed that there is not a preponderance
of the evidence to show that the dislocated elbow occurred as a result of being
swung around.[99] Ms. McAlister has not been disciplined by
the Department with respect to her investigative report regarding this
matter. To date, no supplemental or
corrected copy of the investigative memorandum has been issued.[100]
34.
At the hearing, the Department stipulated that it could not
prove by a preponderance of the evidence that the injury that occurred to T.W.
resulted from Ms. Haugen swinging the child around in a circle.[101] The Department does continue to believe,
however, that T.W. did, in fact, suffer a dislocated elbow on the day in
question.[102]
35.
Ms. McAlister did not refer to the 2002 Alert in any of the 3-5
other investigative reports she has prepared that involved allegations of a
dislocated elbow.[103] In addition, in a 2005 investigation
involving a different New Horizon facility, Ms. McAlister noted that staff
persons hired to work at the facility “receive training in proper lifting
procedures, behavior guidance, and additional facility policies,” were “trained
to pick up children by their torsos including their waists,” and were “instructed
that picking children up by their arms or leading children by their arms was
not acceptable and can lead to injury such as a dislocated elbow.[104] Staff persons at that facility were able to
enunciate the training they had received.[105] In contrast, during the
36.
There is no evidence and no allegation by the Department that
Ms. Haugen was attempting to punish or hurt T.W. or was acting in a malicious
manner.[107]
37.
Leah Brown
started working at New Horizon in 2001.
On
38.
New Horizon
employees go through orientation when they first began working for the
company. Ms. Martens conducts additional
orientation if a New Horizon employee transfers to her facility from another
location. Ms. Brown went through
reorientation with Ms. Martens during the fall of 2003.[111]
39.
On
40.
Ms. Brown
completed an incident report later that day, when the information was still
fresh in her mind. In the incident report,
she indicated that J.A. “snuck through the door” of the Older Toddler room
while Ms. Brown was asking for diapers for another child and she “picked him up
gently by his arms & moved him back in the Busy Baby Room.”[117] The Director of the facility, Tammi Martens,
asked her to write a statement regarding the incident, and she drafted such a
statement very soon after the incident occurred. In the statement, Ms. Brown stated, “I took
[J.] gently by the arms and moved him back through the door to Busy Baby
Room. I don’t know if I picked him up or
just moved him.”[118]
41.
Danielle Sanders
also prepared a statement after the incident.
She stated that J.A. “was trying to get past [Ms. Brown] to come in the
other classroom, when [Ms. Brown] gently moved him back. I never did see [Ms. Brown] pick up [J.A.] or
hear [him] cry in pain.”[119]
42.
Ms. Martens sent
an accident report to DHS the same day, and also wrote a brief statement
reflecting what she had been told to send to licensing.[120] Ms. Martens also spoke with Ms. Sanders the
day after the incident occurred. Ms.
Martens’ notes indicate that Ms. Sanders said that Ms. Brown “did not pick up
the child. She either took him by the
hand or put her hand on his chest or side and ‘guided’ him back into the room.”[121]
43.
Ms. Brown does
not recall seeing the 2002 Alert or receiving any specific training prior to
the incident about the risk of injuring a child's elbow if the child is grabbed
by the arm.[122] Her mother taught her when she was young not
to lift a child by his or her hand or arm.[123]
44.
After picking J.A.
up on the day of the incident, Jeremiah’s mother brought him to the Now Medical
Center Urgent Care in Roseville, Minnesota, where he received treatment from
Richard Sinda, D.O.[124] The notes from the medical visit indicate that
J.A.’s mother indicated that the injury occurred when his day care provider
quickly grabbed him to prevent him from being struck by a door. Dr. Sinda noted that the child was holding
his elbow against his body and had pain at the right elbow when Dr. Sinda
performed range of motion testing. He
obtained an x‑ray of Jeremiah’s arm to ensure that there was no fracture
of the elbow, and no fracture was seen.
Dr. Sinda subsequently diagnosed Jeremiah with “subluxation of the radial
head” of his right elbow, or “nursemaid’s elbow,” and performed a simple
maneuver to put it back in place.[125] Dr. Sinda did not report Jeremiah's injury as
suspected maltreatment because he had no reason to believe that was the case.[126] J.A.’s mother later reported the doctor’s findings
to Ms. Martens.[127]
45.
Ms. Brown was
not reprimanded or disciplined by New Horizon as a result of the incident. She was not told that she had violated any
type of policy.[128] Ms. Martens did not consider Ms. Brown's
conduct to warrant a sanction or to constitute a violation of the Behavior
Guidance Policy.[129]
46.
While working
for another New Horizon facility in June of 2002, Ms. Brown had been issued a
warning for rough handling of children.[130]
47.
On
48.
The Department
initially issued a letter dated
49.
Cynthia Gagne
conducted the maltreatment investigation on behalf of the Department. Ms. Gagne did not testify at the
hearing. She has moved out of
50.
The
investigative strategy form prepared by Ms. Gagne indicated that the allegation
was one of physical abuse, and stated the “investigatory question” as being
whether J.A. was “injured as a result of rough handling (pulling [him] by the
arm) and was medical treatment necessary for the injury.”[136]
At some later point, the Department
determined that the situation should be investigated as neglect as opposed to
physical abuse.[137]
51.
Ms. Gagne
obtained copies of various documents during her investigation, including the
doctor's report, Ms. Brown's written statement, the incident report prepared at
New Horizon, facility policies regarding emergencies/first aid, J.A.’s
emergency card, job descriptions, infant care policies, and child care guidance
policies.[138]
52.
As part of the
investigation, Ms. Gagne made a site visit on
53.
Ms. Gagne asked
Ms. Martens during a telephone conversation in early August of 2005 whether Ms.
Brown had been trained on the 2002 Alert or saw the Alert. Ms. Gagne’s notes indicate that Ms. Martens
“stated that she could not find any verification that [Ms. Brown] was trained
on the information and/or if [Ms. Brown] saw the notice” and that Ms. Martens
said that she herself did not recall receiving the 2002 Alert. Ms. Martens told Ms. Gagne that she had
called New Horizon’s corporate office to find out about the 2002 Alert and the
corporate office had faxed a copy to her, which she then posted in the staff
bathroom where all notices are posted for staff to see.”[142]
54.
During a telephone
conversation on August 4, 2005, Ms. Brown informed Ms. Gagne that she was never
shown the 2002 Alert prior to that moment, when she was reading it as she spoke
to Ms. Gagne, and that she “was never trained on this information but wished
that she had been prior to the incident.”[143]
55.
According to Ms.
Gagne’s notes of her interview with Ms. Brown, Ms. Brown said that J.A. “went
thru the open door as I was standing there.
I think I took him by the forearms & he was struggling. I was pulling him back into my room. He was walking. I’m not sure exactly how I moved him into the
room. The other 3 children were also by
my legs. When I pulled J. into room the
children were all crawling over each other. . . . I believe I had put the diapers down &
grabbed J. with both my hands. I didn’t
pick him up.”[144]
56.
According to Ms.
Gagne’s notes, Ms. Sanders reported during her interview that J.A. tried to
crawl on his knees into the Older Toddlers room and Ms. Brown merely “put her
arm down, not touching child, just as sort of a guide to stop him from moving
further into my room. When he saw [Ms.
Brown’s] hand J. kind of stopped. She
never had to even bend down to him to stop him.”[145] DHS gave more credibility to Ms. Brown's
report than to Ms. Sanders’ report because Ms. Brown was directly involved in
the situation and Ms. Sanders was not right there when the incident occurred.[146]
57.
Ms. Martens did
not personally provide training on injuries associated with pulling children by
the arms or dislocated elbows, nor is there any evidence that materials
addressing dislocated elbows were included in the training materials kept at
the
58.
At Ms. Gagne’s
request, Ms. Martens provided Ms. Gagne with copies of all of the training
materials she had available to her. The
only information in these training documents that addressed pulling on arms was
the Behavior Guidance Policy.[149]
59.
Prior to the
incident involving J. A., both Ms. Brown and Ms. Martens attended first aid
training that New Horizon offers through an independent company, Minnesota
Medical Training Services. During the
training session that she attended, Ms. Martens recalls being told that a child
could be injured if he or she were pulled by the arms. However, Ms. Martens is not sure whether or
not Ms. Brown attended the same session of the first aid training as she, and Ms.
Brown never mentioned that this topic was covered in the training session she
attended.[150]
60.
Ms. Gagne
submitted her proposed investigative report and recommendation to Mr. Janacek
for review. In her report, Ms. Gagne
found that Ms. Brown “pulled [JA] back into the ‘Busy Baby Room.’ [Ms. Brown] was unsure of exactly how [she]
moved [J.A.], but remembered that [J.A.] was walking and the other three
children that [Ms. Brown] was caring for were gathered around [Ms. Brown’s]
legs. . . . [Ms. Brown] said that [she]
believed that [she] put the diapers down and grabbed [J.A.] using both of [her]
hands.”[151] Mr. Janacek substantially adopted Ms. Gagne’s
recommended findings, and Ms. McNellis-Kubat reviewed and approved the report.[152]
61.
On September 29,
2005, the final version of the Investigation Memorandum was issued along with a
letter notifying the parties that DHS had made a determination of substantiated
maltreatment (neglect) by New Horizon’s
[Ms. Brown] received orientation training at the
facility that included the facility’s philosophy, child care program, and
procedures for maintaining health and safety, and handling emergencies and
accidents. [Ms. Brown] also attended
First Aid, CPR, and Safety Training provided by the American Hearth
Association. However, [Ms. Brown] was
not trained about the possibility of elbow dislocations from picking children
up or pulling them by the hands and never saw the notice, Alert – Dislocated Elbows, that was sent out to all licensed child
care facilities in August 2002. [Ms.
Brown’s] responsibility for the maltreatment of [J.A.] was mitigated by the
facility’s responsibility to train all staff persons on the alert regarding
dislocated elbows sent out by the Division of Licensing.[155]
62.
In considering
the adequacy of the facility’s policy and procedures, facility training, and
individual’s participation in the training, and in reaching its conclusion that
New Horizon was responsible for the maltreatment, DHS found it significant that
New Horizon had not passed along to its employees the information that had been
provided by the Department regarding the fact that pulling a child’s elbow,
wrist, or arm created a condition that seriously endangers the child.[156]
63.
The Department did
not find that physical abuse occurred or that Ms. Brown intended to harm J.A. or
was trying to punish him, and there is no evidence that that was the case.[157]
64.
New Horizon’s facilities
have not received any citations that mention a failure to post or provide
training with respect to the 2002 Alert. Between August 2002 and the end of
February 2005, no DHS licensor asked Peggy Blackmon (New Horizon’s Director of
Licensee Center Support) if the facility had a copy of the 2002 Alert or
mentioned the subject of the 2002 Alert.
More recently, a DHS licensor told Ms. Blackmon that licensors are
supposed to look for "signed off" copies of the version of the Alert
issued in 2006 in staff files.[158]
Procedural Findings
65.
New Horizon filed
timely appeals of the Department’s maltreatment determinations. The Department did not take action within 45
days of the request for hearing, and New Horizon commenced an action in
66.
A protective
order was entered in this matter on
67.
The hearing in
this matter was held as scheduled on October 24-27, 2006.
Based upon the foregoing Findings of
Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
This contested
case proceeding is a consolidated hearing on two separate maltreatment
determinations involving New Horizon’s Elk River and
2.
The Department of
Human Services gave proper and timely notice of the hearing in this matter and
has complied with all procedural requirements of law and rule.
3.
Child care
facilities licensed by the Department are required by the Department’s rules to
develop policies that contain “safety rules to follow in avoiding injuries,
burns, poisoning, choking, suffocation, and traffic and pedestrian accidents.”[161]
4.
Pursuant to rules
adopted by the Department, child care license holders must provide staff
persons with orientation training that includes information about “the center’s
philosophy, child care program, and procedures for maintaining health and
safety and handling emergencies and accidents,” as well as their specific job
responsibilities, behavior guidance standards, and reporting responsibilities
under the Maltreatment of Minors Act and applicable rule.[162]
5.
The purpose of
the Maltreatment of Minors Act (“the Act”) is to “protect children whose health
or welfare may be jeopardized through physical abuse, neglect, or sexual abuse”
and “make the home, school, and community safe for children by promoting
responsible child care in all settings.”[163]
6.
Maltreatment of
minors includes physical abuse, sexual abuse, and neglect.[164] “Physical abuse” is defined in part as “any
physical injury, mental injury, or threatened injury, inflicted by a person
responsible for the child's care on a child other than by accidental means . .
. .” Minn. Stat. § 626.556, subd. 2(g). “Neglect” is defined in part as a “failure to
protect a child from conditions or actions that seriously endanger the child’s
physical or mental health when reasonably able to do so . . . .” The definition
of neglect does not include a requirement that a child suffer an injury.[165]
7.
After
investigation of a report of maltreatment and a determination that maltreatment
occurred, the investigating agency must determine whether the facility or
individual was responsible for the maltreatment, or whether both the facility
and the individual were responsible using mitigating factors set forth in the
statute. Such determinations must be
made based on a preponderance of the evidence.[166] The statute specifies that the investigating
agency must consider at least the following mitigating factors in assessing the
comparative responsibility of the facility and its employee:
(1) whether the actions of the facility or the
individual caregivers were according to, and followed the terms of, an
erroneous physician order, prescription, individual care plan, or directive;
however, this is not a mitigating factor when the facility or caregiver was
responsible for the issuance of the erroneous order, prescription, individual
care plan, or directive or knew or should have known of the errors and took no
reasonable measures to correct the defect before administering care;
(2) comparative responsibility between the
facility, other caregivers, and requirements placed upon an employee, including
the facility's compliance with related regulatory standards and the adequacy of
facility policies and procedures, facility training, an individual's
participation in the training, the caregiver's supervision, and facility
staffing levels and the scope of the individual employee's authority and
discretion; and
(3) whether the facility or individual
followed professional standards in exercising professional judgment.[167]
8.
The Department
has demonstrated by a preponderance of the evidence that maltreatment of T.W.
by neglect occurred at New Horizon’s Elk River facility on May 14, 2004, when
she was swung around in a circle, and that the facility was responsible for the
maltreatment. The Department’s
assessment of a fine of $1,000 for this maltreatment determination complies
with Minn. Stat. § 245A.07, subd. 3(b)(4).
9.
The Department has
demonstrated by a preponderance of the evidence that maltreatment of J.A. by
neglect occurred at New Horizon’s
10.
These Conclusions
are reached for the reasons set forth in the attached Memorandum, which is
incorporated by reference in these Conclusions.
Based upon the foregoing Conclusions, and
for the reasons set forth in the accompanying Memorandum, the Administrative
Law Judge makes the following:
IT
IS HEREBY RECOMMENDED as follows:
1.
The Department’s determination that maltreatment by neglect
occurred at the
2.
The Department’s determination that maltreatment by neglect
occurred at the New Horizon-Plymouth facility on February 22, 2005, and its
further determination that the facility is responsible for that maltreatment and
should forfeit a fine of $1,000 be AFFIRMED; and
3.
The Protective Order entered in this matter shall remain in
effect.
Dated: February 23, 2007
|
s/Barbara
L. Neilson |
|
BARBARA
L. NEILSON |
|
Administrative
Law Judge |
Reported: Transcript Prepared (3 volumes)
by Kirby A. Kennedy & Associates,
Court Reporters
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
the Appeals and Regulations Division,
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.
This is a consolidated hearing
involving two separate maltreatment determinations and fines imposed by the
Department. The Department determined in
each instance that maltreatment by neglect had occurred for which New Horizon
was responsible, and imposed a $1,000 fine.
New Horizon filed timely appeals of both determinations and the
resulting fines.
Maltreatment Determinations
The Department argues that maltreatment
by neglect occurred on May 14, 2004, when Stacy Haugen, an employee of New
Horizon’s
The Department asserts that the
act of swinging a child by her arms amounts to neglect under the Maltreatment
of Minors Act because it placed the child in imminent danger of injury and constituted
a failure to protect her from actions that seriously endangered her physical
health despite the fact that the caregiver was reasonably able to do so. New Horizon argues in response that the DHS
has not proven that swinging a child gently by the arms seriously endangered
the child, and contends that DHS should have terminated its investigation and
withdrawn its finding of neglect when it conceded that it could not establish
by a preponderance of the evidence that the child was injured as a result of
Ms. Haugen’s actions.
The Maltreatment of Minors Act defines
neglect as a "failure to protect the child from conditions or actions that
seriously endanger the child's physical or mental health when reasonably able
to do so."[168] Neither the definition of neglect nor the
other provisions of the Act require that a child sustain an actual injury as a
result of the alleged maltreatment; instead, they require only that the actions
“seriously endanger” the child’s health.
Maura McNellis-Kubat, Supervisor of the DHS Intake and Investigations
Section, testified that the Department has issued maltreatment determinations
in many other cases in which no injury has occurred. For example, the Department has found that
maltreatment has occurred if a child leaves a facility and is therefore at risk
of harm even if no harm actually results, or if children are physically handled
in such a way that they are placed at risk of injury but no injury in fact
occurred.[169] Accordingly, it is concluded that the
Department’s inability to show by a preponderance of the evidence that T.W. was
injured by Ms. Haugen’s conduct does not render it impossible for the
Department to show that maltreatment by neglect occurred.
Several medical resources
received into evidence at the hearing support the Department’s view that
swinging a child by the arms or hands may cause a dislocated elbow.[170] In addition, Dr. Sinda acknowledged that it
would be possible for a child to be put in danger of nursemaid’s elbow by being
picked up by the hands and swung around in a circle. He more typically sees the dislocation occur
where there is a quick yank rather than a slow, steady force. Although he believes the injury would be
unlikely to occur if a child is swung around slowly and “real gently,” he stated
that the injury could result if the child is swung rapidly.[171] In addition, based on DHS investigations
conducted during 2001-02, the Department issued an Alert to licensees in 2002
as part of their relicensing packets which explicitly identified the danger of
dislocated elbows associated with swinging children by their arms and included
the following tips to reduce the likelihood of injuring a child's elbow: "never swing a child of any age by their
arms" and never "grab, drag, pull, yank, swing or lift children"
by their arms or wrists.[172]
There is also ample evidence that actions that may result in a dislocated elbow, such as swinging children in a circle, are properly viewed as actions that “seriously endanger” the child’s health. Although the Maltreatment of Minors Act does not define what is meant by conditions or actions that “seriously endanger” the child’s physical health, the definition of “serious maltreatment” contained in the portion of Chapter 245 relating to human services background studies provides some guidance on this issue. That chapter defines “serious maltreatment” to include “maltreatment resulting in serious injury which reasonably requires the care of a physician whether or not the care of a physician was sought. . . .”[173] T.W.’s mother did, in fact, take her to an urgent care immediately after leaving New Horizon on the day of the injury, where a possible nursemaid’s elbow was diagnosed. The medical references relied upon by both parties at the hearing noted that children suffering from nursemaid’s elbow typically cry, experience pain in the affected elbow, and refuse to use that arm after the injury occurs. These references urged that children with suspected nursemaid’s elbow be seen by physicians and that parents not attempt to reduce the dislocation themselves.[174] Although typically no permanent damage occurs if the condition is promptly treated, several of these references mentioned that, if left untreated, nursemaid’s elbow could result in permanent limitations on the child’s ability to fully move the elbow.[175] In addition, the injured child is more susceptible to future elbow injuries.[176] In fact, T.W. suffered two later dislocated elbows after her initial injury in May 2004.[177]
Accordingly, it
is concluded that swinging a child by the arms or hands is an action that may
result in a partial dislocation of the elbow which reasonably requires the care
of a physician and, as such, “seriously endangers” the child’s physical
health. Although there is no question that Ms. Haugen was well-intentioned
when she played with T.W. by swinging her in a circle, her actions under the
circumstances amounted to maltreatment by neglect because she unwittingly
placed T.W. at risk of sustaining a serious injury that would require a
physician’s attention.
The Department further contends
that maltreatment by neglect occurred when a staff person at New Horizon's
In the incident report she
prepared on the day of the incident, Ms. Brown stated that she “picked [J.A.]
up gently by his arms & moved him back in the Busy Baby Room.”[178] In a lengthier statement dated the day after
the incident occurred, Ms. Brown again stated that she “took [J.] gently by the
arms and moved him back through the door to Busy Baby Room. I don’t know if I picked him up or just moved
him.”[179] During her interview with the DHS
investigator approximately ten weeks later, Ms. Brown said, “I think I took him
by the forearms & he was struggling.
I was pulling him back into my room.
He was walking. I’m not sure
exactly how I moved him into the room. . . .
When I pulled [J.] into room the children were all crawling over each
other.”[180]
Ms.
Brown testified at the hearing that the statements she made at the time of the
incident and during the DHS investigation about how she moved J.A. back into the
room were merely based on “second guesses.” She asserted that the incident occurred so
quickly that she was not sure then or at the time of the hearing exactly how
she moved J.A. back into the Busy Baby room.
She is sure that she did not pick J.A. up to move him back into the
room, but otherwise said that she does not recall exactly how she moved him or
whether she grasped both of his arms.
She asserted that the only clear memory she has is that she was holding J.A.’s
arm and he pulled against her.[181] She further testified at the hearing that she
did not pull J.A., and that, when J.A. pulled against her, that involved more
pressure or torque than anything else that happened during the incident.[182] Ms. Brown stated that she did not want to let
go of J.A. when he was pulling against her because he could have fallen on the
floor or hit another door that was behind him and she did not want him to bump
his head.[183] Ms. Brown also testified that she believed
that she needed to keep J.A. from going into the toddler room for his own
safety, since he was only 17 months old at the time and the children in the older
toddler room were two years old and up.[184]
Because Ms. Brown testified that
she was not clear as to various details, was “second-guessing” what happened, and
was not even certain what happened immediately after the incident occurred, New
Horizon argues that DHS has failed to meet its burden of proof to show that Ms.
Brown pulled, lifted, or in any way caused the injury to the child's arm. New Horizon also argues that Ms. Brown's
actions were reasonable and appropriate in any event, since she simply acted to
prevent J.A. from going into an age-inappropriate area and leaving her
supervision, and she did not want to let go of J.A.’s arm due to a fear that he
would fall and possibly be injured. New
Horizon thus asserts that Ms. Brown was reacting to a quickly unfolding,
emergency situation, and was not reasonably able to protect J.A. from actions
or conditions that placed him at risk of suffering a dislocated elbow.
The Administrative Law Judge
concludes that the statements Ms. Brown made at or near the time that the
incident occurred, when it was fresher in her mind, are more likely to
accurately reflect what happened than the vague and inconsistent testimony she
provided at the hearing 20 months later.
Even if Ms. Brown was intimidated by the situation during her interview
with the DHS investigator,[185] she
prepared the written incident report and the February 23, 2005, statement
herself and presumably was not put “on the spot” in preparing these documents
but rather had time to reflect and ensure that her description was
accurate. Ms. Brown’s testimony that she
was merely “second guessing” what happened, and only remembers that she grabbed
J.A. by the hand and he pulled against her, is not convincing in light of its
inconsistency with her earlier admissions that she took J.A. by the arms and
pulled or moved him back into the baby room.
Ms. Brown’s testimony that J.A. pulled against her is consistent with
her earlier report that he was struggling and wanted to go into the toddler
room; however, her contention that he exerted more force than she did is not
convincing given the differences in their sizes and the uncontroverted fact
that she somehow managed to move the struggling child back into the Busy Baby room.[186] Accordingly, the Judge finds that the
preponderance of the credible evidence demonstrates that Ms. Brown pulled J.A.
by grasping one or both arms during the incident on February 22, 2005.
In addition, based upon the
record as a whole, it cannot be concluded that Ms. Brown was faced with an
emergency situation that required her to act quickly without thinking. The contention that this was an emergency
situation was raised for the first time at the hearing. The incident report completed by Ms. Brown on
the day of the child's injury did not mention the existence of an emergency
situation, nor did she mention such a situation in her own handwritten report dated
the next day, or during her later interview with the DHS investigator.[187] Danielle Sanders, who was present during the incident,
also did not inform Ms. Martens or the DHS investigator that the child was in
any immediate danger or that Ms. Brown acted to shield him from harm. Despite the suggestions of counsel at the
hearing, there was no supporting report or testimony from Ms. Brown or other
New Horizon personnel that Ms. Brown needed to move J.A. into the room quickly
because the door was about to close and injure him, as his mother apparently
informed the physician. And, despite Ms.
Brown’s apparent belief to the contrary, it is not reasonable to assume that
J.A. would have been placed in imminent danger if he interacted briefly with
the older toddlers in the next room, or that it was an emergency to quickly
return him to the Busy Baby room.
Moreover, while Ms. Brown's assertion during her hearing testimony that
she did not let go of the child's arm because she was afraid he would fall and
hit his head would perhaps offer some explanation for her conduct if she had
simply continued to hold his arm, she took further action and proceeded to pull
him back into the Busy Baby Room. Because
no emergency existed, Ms. Brown was in a position where she could have
protected the child from suffering nursemaid's elbow.
Based upon the medical
references and hearing testimony, it is evident that pulling a child by the
arms or hands may cause a dislocated elbow.[188] For the reasons discussed above, actions that
may result in a dislocated elbow, such as pulling children by their arms, are
appropriately considered to be actions that “seriously endanger” the child’s
health within the meaning of the Maltreatment of Minors Act. J.A. was in noticeable distress after the
incident and was, in fact, diagnosed later that day as having suffered a
dislocated elbow. The Department’s
determination that maltreatment by neglect occurred is supported by a
preponderance of the evidence.
Responsibility for the
Maltreatment: Facilities’ Compliance
with Related Regulatory Standards, Adequacy of the Facilities’ Policies and
Procedures, Facility Training, and the Employees’ Participation in Training
Under Minn. Stat. § 626.556,
subd. 10e(d), once maltreatment is found to have occurred, the Department (as
the investigating agency)[189] is required
to determine whether the individual employee or the facility itself is
responsible for that maltreatment. The
statute goes on to indicate in subdivision 10e(i) that the Department must consider
certain “mitigating factors” in assessing the comparative responsibility of the
facility and the employee. The only
factor pertinent in the present case states that the Department must consider:
comparative responsibility between
the facility, other caregivers, and requirements placed upon an employee, including
the facility's compliance with related regulatory standards and the adequacy of
facility policies and procedures, facility training, an individual’s
participation in the training, the caregiver’s supervision, and facility
staffing levels and the scope of the individual employee’s authority and
discretion . . . .
There is no evidence that there were any
shortcomings in the level of supervision of children by caregivers at the Elk
River and
The Department determined that
New Horizon’s Elk River and
Based upon all of the evidence
in the record as a whole, the Administrative Law Judge concludes as a threshold
matter that it is likely that New Horizon in fact did receive the 2002
Alert. The Department demonstrated that
the 2002 Alert was sent with each reapplication packet in August or September
of 2002, and New Horizon's corporate office would have received over 50
separate reapplication packets at that time.
The cover memo sent with the licensing packet mentioned that the
Department was “also enclosing a number of informational items” including
“Alert – Dislocated Elbows.”[190] The Alert was printed on a separate sheet
with that title in bold print at the top of the page and the instruction to
“Please alert your staff to the danger of dislocated elbows and take steps to
prevent these types of incidents” in bold print at the bottom of the page.[191] And there is no evidence suggesting that the
Department would somehow neglect to include the Alert in the relicensing
packets sent in 2002 that were directed to already-licensed facilities.[192] Because there is no evidence that the Elk
River or
New Horizon’s attempt to argue
that it is more likely that the 2002 Alert was never mailed to New Horizon was
not convincing. The testimony of its
witnesses regarding receipt of the 2002 Alert was confusing and vague, and no
direct testimony was provided at the hearing by corporate office staff who had
first-hand knowledge on this point. Chad
Dunkley, New Horizon's Chief Operating Office, merely testified that New
Horizon Vice President Nola Kreml told him that she “did not see an Alert in
the 2002 packet that she can recall.”[193] He then more broadly indicated that “our
staff do not remember getting a copy of the Alert.”[194] Later in his testimony, he stated, “I believe
a staff person in our office did see the [2002] Alert,” but he did not specify
who saw it or when.[195] He admitted that the Alert “was mailed to
[Ms. Kreml] directly from licensing “at some point. Not in the fall of 2002.”[196] He further testified that, upon receiving it,
Ms. Kreml “immediately faxed it to all centers and told directors to make it
part of their staff meeting agenda.”[197] Again, he could not indicate when this
occurred because he asserted that no record was kept.[198] Ms. Kreml did not testify at the hearing and
no other New Horizon witness clarified when the 2002 Alert was received or
whether it was received before or after the incidents at issue in this
case. In addition, the Director of the
New Horizon Plymouth facility, Tammi Martens, stated that she called New Horizon's
corporate office when she realized that she did not have a copy of the Alert
after J.A. suffered a dislocated elbow, and the corporate office promptly faxed
her a copy of the 2002 Alert.[199] The Administrative Law Judge finds that the
preponderance of the evidence shows that the Department provided New Horizon
with the 2002 Alert containing information about the dangers associated with
swinging children by their arms and pulling children by their arms.
After
consideration of the parties’ additional arguments, the Administrative Law
Judge finds that the Department appropriately took into consideration in
assessing the comparative responsibility of the facilities and the caregivers
whether New Horizon adequately disseminated to its staff at the Elk River and
Plymouth facilities the information about dislocated elbows contained in the
2002 Alert. It is true, as New Horizon
points out, that there was no specific language included in the 2002 Alert
mandating that the Alert be provided to staff or that staff be trained on the
subject of the Alert, and there is no statute or rule that requires training on
nursemaid’s elbow (in contrast to statutes and rules requiring child care
centers to train their staff members on certain other subjects, such as sudden
infant death syndrome, shaken baby syndrome, first aid, and CPR).[200] However, the
Department’s rules do require more generally that child care facilities
licensed by the Department develop policies that contain “safety rules to
follow in avoiding injuries”[201]
and include “information about . . . procedures for maintaining health and
safety” in the orientation training given to staff.[202]
The
2002 Alert was one of the first alerts ever issued by the Department. It informed facilities that there had been a
number of reports of dislocated elbows caused by child care staff lifting or
pulling children by their arms or hands, summarized two recent actions at child
care centers that resulted in dislocated elbows, and described steps to reduce
the likelihood of the injury. The 2002
Alert also asked facilities to read and share the Alert with their staff, let
their staff know of the danger of dislocated elbows, and take steps to prevent
these types of incidents. While there is
no dispute that formal training on nursemaid’s elbow is not mandated by statute
or rule, the 2002 Alert did contain sufficient specific information from DHS
about the injury and steps that should be taken to reduce the likelihood of
that injury to warrant the inclusion of this information in orientation
discussions about “procedures for maintaining health and safety” of
children.
In addition, the language of the
Maltreatment of Minors Act quoted above does not limit the Department’s review
solely to whether the facility has provided specific training that has been
mandated by statute or rule. Rather, the
Act requires the Department in broad terms to consider the facility's
“compliance with related regulatory standards,” “facility training,” and “the
adequacy of facility policies and procedures.”
As noted in the Conclusions above, one of the regulatory standards that
applies to licensed child care facilities (Minn. R. 9503.0110, subp. 3(B))
requires them to develop policies that contain “safety rules to follow
in avoiding injuries . . . .” The rule does not limit this
obligation to the provision of safety rules on issues specifically set forth in
the governing statute or in other rule provisions, but imposes a broader and
more general duty to protect children from injuries.
After describing recent
investigations involving children at child care centers receiving dislocated
elbows, the 2002 Alert stated, in pertinent part:
Because our investigations
include a review of how the events could have been prevented, please read this
alert, share it with your staff, and take the precautions that you feel are the
best fit for your program. In addition
to increased awareness and supervision by staff persons, the following may
reduce the likelihood of this type of injury occurring:
·
Lift
children by grasping them under their arms or around their bodies.
·
Place
arms around children’s bodies and behind their heads and then lower them to the
floor when they are struggling and throwing themselves to the floor.
·
Never
swing children of any age by their arms.
·
Never
grab, drag, pull, yank, swing, or lift children of any age by their arms or
wrists.
Please
alert your staff to the danger of dislocated elbows and take steps to prevent
these types of incidents.[203]
There is no convincing evidence
that New Horizon provided the information contained in the 2002 Alert to its
staff in the Elk River or
None of the training materials
provided to the DHS investigators in either case addressed swinging or pulling children
by the arms or dislocated elbows. Ms.
Fox, the Director of the Elk River facility, was not able to identify any
document or training she provided on dislocated elbows or swinging children by
their arms, and stated during the DHS investigation that she was not aware
that she had ever seen the 2002 Alert.[204] Chad
Dunkley, the Chief Operating Officer of New Horizon, acknowledged that the Elk
River facility did not have a policy informing staff not to swing children by
their arms at the time of the incident involving T.W., but he believed it was
“common sense” not to do so. Ms. Fox
agreed that Ms. Haugen probably would not have known that swinging was not
allowed, but also expressed her view that it was “common sense” not to swing
children around.
Ms.
Haugen acknowledged during the DHS investigation that she had never seen the
DHS Alert or otherwise received any information or training on the dangers
associated with swinging children by their hands or arms, and did not know that
she was not allowed to do so. In her
hearing testimony, Ms. Haugen verified that she did not know she should not
swing children by the arms at the time of the incident and that New Horizon had
not given her any information on that subject.[205] Although Ms. Haugen provided inconsistent
testimony at the hearing regarding whether or not she had received training
from New Horizon before the incident that advised her that children should not
be swung by the arms,[206]
she ultimately acknowledged that she was not sure that she had any training at
all specifically relating to swinging children, stating, "I honestly don't
remember specifically what training I had received, whether it was on twirling
or picking up or things like that."[207] It is logical to assume that the statements
Ms. Haugen made during the DHS investigation about the nature of her training
prior to the occurrence of the incident involving T.W. would be more accurate
than those she made at the hearing nearly 2 ½ years later. Although Ms.
Heidelberger testified during the hearing that she believed she had received
some training not to pick up children by their arms, she admitted that she
could not remember exactly which of her various daycare employers had told her
that.[208]
Similarly,
Tammi Martens, the director of New Horizon's
The Administrative Law Judge
thus concludes that New Horizon’s Elk River and
While the Department has made a
sufficient showing to support its finding that maltreatment by neglect occurred
on May 14, 2004, and February 22, 2005, for which New Horizon was responsible, the
Administrative Law Judge finds somewhat troubling the Department apparent failure
to underscore to facilities the importance of disseminating the information
contained in the 2002 Alert to their employees.
The 2002 Alert was issued on only one occasion (August or September
2002), 21 to 30 months prior to the occurrence of these incidents in May 2004
and February 2005, as part of facility relicensing packets. The Department did not specifically mandate
that the 2002 Alert be posted anywhere in child care facilities or included in safety
policies or employee training. In
addition, the 2002 Alert did not include a specific warning that failure to consider
this area in the facility’s overall safety plan may result in findings of
maltreatment should incidents occur, as did later versions.[211] There is no evidence that the subject matter
of the 2002 Alert was discussed in any fashion during subsequent licensing
reviews or that the Department made any inquiry concerning what, if any, effort
had been made by facilities to disseminate the information in the Alert to
staff. Finally, the 2002 Alert was not
mentioned at all in numerous other maltreatment determinations involving
dislocated elbows that were issued by DHS after August 2002, and the vast
majority of those determinations analyzed the situation under a “physical
abuse” maltreatment standard rather than a “neglect” standard.[212] These are factors that the Commissioner may
wish to take into consideration in rendering the final decision in this matter.
B.L.N.
[1] Transcript (“T.”) 624, 652, 701.
[2] T. 701.
[3] T. 718.
[4] T. 503-04, 518-19, 642-43, 701; Ex. 55.
[5] T. 520, 639-40.
[6] T. 520, 639-41, 717-18.
[7] T. 520, 701.
[8] T. 489-92, 521, 624, 634-35, 643, 701-02.
[9] Ex. 65; T. 290.
[10] T. 288.
[11] Ex. 65 at 412.
[12] Exs. 64, 65, 66; T. 293-94.
[13] T. 289, 291; Exs. 12, 64, 65, 66, 68.
[14] Exs. 12, 66.
[15] T. 293; Ex. 67.
[16] T. 233; Ex. 64 at 406.
[17] Ex. 12.
[18] Ex. 65.
[19] Exs. 12, 64, 65, 66, 68; T. 290-91, 303.
[20] Ex. 12.
[21] Ex. 65.
[22] Ex. 66.
[23] Exs. 12, 65, 66, 67, 68.
[24] T. 292-94; Exs. 12, 65, 67, 68.
[25] T. 294.
[26] Exs. 12, 64, 65, 67, 68.
[27] Exs. 12, 67.
[28] See Exhibits (Exs.) 9, 33; T. 165.
[29]
[30]
[31]
[32] Exs. 9, 33, 55; T. 62-63, 100, 461, 488-89, 503.
[33] T. 45, 49, 101, 503; Ex. 62 at DHS 278.
[34] T. 101.
[35] T. 103.
[36] T. 51, 111-13; Ex. 62 at 278, 279.
[37] T. 585-86, 718-21; Ex. 21.
[38] Ex. 23.
[39] T. 194, 381-82, 425.
[40] T. 259.
[41] T. 140-41, 323.
[42] T. 196, 322-27, 348; Ex. 56 at 35.
[43] T. 348, 349, 365-66, 421, 435-36; Exs. 18, 56. Exhibit 56 is incomplete because it lacks the second page of the orientation checklist. That page is included in Exhibit 18.
[44] T. 420, 437-39.
[45] T. 430.
[46] T. 431.
[47] T. 367, 369-70, 373; Ex. 58.
[48] T. 408-09; Ex. 58.
[49] T. 135-36, 230-31, 233, 243, 261-69, 310-11, 316, 335, 353-58; Exs. 1, 4.
[50] T. 230, 269, 311-12, 356, 360; Ex. 10.
[51] Ex. 1, pp. 2-3; T. 261-69, 311-12, 357.
[52] T. 233, 264, 356-57.
[53] T. 351, 358.
[54] T. 313, 331.
[55] T. 266-67, 271.
[56] T. 320, 329.
[57] T. 335; Ex. 3.
[58] T. 268-69, 316.
[59] T. 265, 316.
[60] T. 313.
[61] T. 136, 336-37.
[62] T. 136-38, 140-41, 312, 334, 338-39, 388; Ex. 3 at DHS 15.
[63] T. 339; Exs. 3, 15 at DHS 63.
[64] T. 142-47; Ex. 1 at DHS 3, Ex. 7 at DHS 27, Ex.14 at DHS 57.
[65] Ex. 1 at DHS 3; Ex. 7 at DHS 31.
[66] T. 144-45, 149, 258; Exs. 5, 14.
[67] T. 146-47.
[68] Ex. 1 at DHS 3, Ex. 7 at DHS 29.
[69] T. 390, 399, 402; Exhibit 14.
[70] Exs. 3, 4, 10; Exhibit 14.
[71] T. 273, 277, 279, 315; Ex. 16 at DHS 67-68.
[72] T. 337, 340, 352, 396-97.
[73] T. 274.
[74] Ex. 1 at DHS 1.
[75] T. 153-54, 160, 162, 166-67,235, 326; Exs. 1, 6, 7, 11, 13, 18-23.
[76] T. 190, 194-97, Ex. 1.
[77] T. 340.
[78] Ex. 15 at DHS 61-62; T. 155-57, 330.
[79] T. 157-58, 331-33, 346, 362, 428; Exs. 15 at DHS 62, 21, 23, 56.
[80] T. 159-60; Exhibit 16 at DHS 65.
[81] Exhibit 16 at DHS 66.
[82] T. 161, 263, 313-14, 319-20; Exhibit 16 at DHS 67.
[83] T. 161-62; Exhibit 16 at DHS 67.
[84] T. 272, 316-18.
[85] T. 273, 277, 279.
[86] Exhibit 14 at DHS 58; T. 163.
[87] T. 163-65, 391, 394; Ex. 23.
[88] Ex. 7 at DHS 31; T. 403-04.
[89] T. 166-69, 235-36, 713; Exs. 1, 19, 21.
[90] T. 413, 431-32; Exs. 19, 20.
[91] T. 188.
[92] T. 442.
[93] T. 171-72, 187; Ex. 1.
[94] T. 173-76; Ex. 1.
[95] T. 223-24.
[96] Exs. 1, 24.
[97] Ex. 1 at DHS 7; Ex. 24 at DHS 137.
[98] Ex. 25.
[99] T. 179, 191-92.
[100] T. 474-75.
[101] T. 15, 33, 36, 37, 114, 116, 477, 483.
[102] T. 181, 229, 483.
[103] T. 186, 192.
[104] T. 206-07; Ex. 63 at DHS 371.
[105] T. 239.
[106] T. 209, 211, 238-39.
[107] T. 158, 267, 330, 364, 396, 41.
[108] T. 529-530; Ex. 27 at DHS 6.
[109] Ex. 27 at DHS 6.
[110] T. 543, 576-77.
[111] T. 579-80.
[112] Ex. 27 at DHS 2.
[113] T. 552-53.
[114] J.A. is referred to as “J.H.” in some of the documents. See, e.g., Exs. 27, 28.
[115] T. 530-34, 553-60; Ex. 27.
[116] T. 531, 538, 562, 581; Exs. 27, 38, 39.
[117] T. 531-32; Ex. 37.
[118] T. 539, 570-71 582-83; Ex. 38.
[119] Ex. 42.
[120] T. 584, 606; Exs. 35, 39.
[121] Ex. 39.
[122] T. 548, 550, 563; Ex. 32 at DHS 21.
[123] T. 563-64, 569-70.
[124] T. 286-89, 457; Ex. 48 at DHS 84.
[125] T. 288-89, 291-92, 297-98, 300; Exs. 36, 48.
[126] T. 300-01.
[127] T. 582.
[128] T. 543-44, 586, 606.
[129] T. 586, 606.
[130] T. 544-45, 564-65, 587-89; Ex. 57 at 144.
[131] Exs. 29, 30, 31; T. 67, 69-70, 612.
[132] Ex. 30 at DHS 15; Ex. 39.
[133] Ex. 50.
[134] T. 70, 450; Ex. 94.
[135] T. 444-46; Ex. 28.
[136] Ex. 32 at DHS 19, 20.
[137] T. 499; Ex. 27.
[138] T. 458-59; Exs. 37-38, 43, 44, 45, 46, 47, 48, 49.
[139] T. 451-52, 456, 535; Exs. 27, 34, 40, 41.
[140] Ex. 32 at DHS 20.
[141] Ex. 32 at DHS 21.
[142] Ex. 32 at DHS 21; T. 465-66, 490, 594-96, 606-07.
[143] T. 467, 594-96; Ex. 32 at DHS 21.
[144] Ex. 40.
[145] Ex. 41.
[146] T. 457, 485-86.
[147] T. 595, 600, 603-04.
[148] T. 607-08.
[149] T. 597-98.
[150] T. 593-94, 610-11, 614, 731; Ex. 57 at DHS 125.
[151] Ex. 27 at DHS 2; Ex. 40.
[152] T. 448-49.
[153] Exs. 27, 52, 54.
[154] T. 448-49, 504-05; Exs. 27 at DHS 4, Ex. 52 at DHS 97.
[155] Ex. 27 at DHS 5; Ex. 52 at DHS 97.
[156] T. 473, 503.
[157] T. 500, 592-93.
[158] T. 628-30, 632-33, 672, 674-76, 677.
[159] T. 76-80; Exs. 26, 54.
[160] Minn. Stat. §§ 245A.08, subd. 2a, and 14.50.
[161] Minn. R. 9503.0110, subp. 3(B).
[162] Minn. R. 9503.0035, subp. 1; see also Minn. Stat. § 626.556 and Minn. R. 9503.0130.
[163] Minn. Stat. § 626.556, subd. 1.
[164] Minn. Stat. § 626.556, subd. 10e(a)(2).
[165]
[166] Minn. Stat. § 626.556, subd. 10e(e).
[167]
[168] Minn.Stat. § 626.556, subd. 2(f)(2).
[169] T. 58.
[170] See, e.g., Exs. 65, 66, 68.
[171] T. 291, 295, 302, 306.
[172] Ex. 33 at DHS 22.
[173] Minn. Stat. § 245C.02, subd. 18(a).
[174] See Exs. 12, 65-68.
[175] Exs. 12, 67.
[176] T. 293, Ex. 67.
[177] T. 146-47.
[178] Ex. 37.
[179] Ex. 38.
[180] Ex. 40.
[181] T. 531, 537-38, 539-41, 551-52, 557-566, 567.
[182] T. 557-58.
[183] T. 538, 558.
[184] T. 542, 567, 570, 573-74, 605.
[185] T. 565, 570, 572.
[186] It appears that Ms. Sanders was not in a position to observe carefully what occurred. Her statement to the DHS investigator that J.A. was crawling on the floor at the time of the incident and Ms. Brown only put her arms down not touching the child as a guide to stop him from moving further into the toddler room (Exhibit 41) is not entitled to much weight because it was not only inconsistent with Ms. Brown’s description of the incident but also with information given by Ms. Sanders to Ms. Martens the day after the incident occurred (Ex. 39) indicating that Ms. Brown either took J.A. by the hand or guided him back into the baby room by placing her hand on his chest or side.
[187] See Exs. 37, 38. 40.
[188] Exs. 12, 64-68; T. 290-292, 294, 302,305.
[189] See Minn. Stat. § 626.556, subd. 3c(a).
[190] Ex. 55 at page 2.
[191] Ex. 55 at page 10.
[192] Evidence that New Horizon was recently told by a DHS licensor that inclusion of the 2006 version of the Alert in packets sent to new facilities in 2006 was “hit and miss” (T. 634, 648-49) has no bearing on whether the 2002 Alert was sent to New Horizon’s corporate office in 2002 in packets directed to existing facilities such as Elk River and Plymouth.
[193] T. 702.
[194] T. 704.
[195] T. 708.
[196] T. 708.
[197] T. 709; see also T. 723.
[198] T. 724.
[199] Exhibit 32 at DHS 21.
[200]
See
[201] Minn. R. 9503.0110, subp. 3(B).
[202] Minn. R. 9503.0035, subp. 1.
[203] Ex. 33 (emphasis in original).
[204] Ex. 7 at DHS 31; T. 403-04. Although Ms. Fox agreed in response to leading questioning at the hearing that she believes she had seen the 2002 Alert prior to the incident with T.W., that testimony is not convincing in light of the contrary information she provided during the investigation.
[205] T. 329, 331.
[206] See, e.g., T. 341, 342, 343, 352, 360, 366, 378.
[207] T. 379.
[208] T. 319-20.
[209] Ex. 32; T. 595.
[210] Although there was some evidence that some first-aid training courses may have covered the subject of the DHS alert, there is no evidence that Ms. Brown or Ms. Haugen attended those particular courses.
[211] See e.g., Ex. 62 at 279.
[212] Ex. 63.