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OAH 61-1800-17939-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
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In the Matter of
the Order of Conditional License And Order to Forfeit a Fine against the
Family Child Care License of Jodie Houle under |
FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION |
The above
matter came on for hearing before Administrative Law Judge M.
Ann L.
Hohaupt, Assistant Wright County Attorney,
The issue is whether the Department of
Human Services’ order of conditional license and order to forfeit a fine
against Jodie Houle’s family day care license should be affirmed.
Based on the evidence in the hearing
record, the Administrative Law Judge makes the following:
1.
Jodie Houle
(“Ms. Houle”) a single mother of five children, has been licensed to provide
family child care services for over 10 years, in recent years at her home at
2.
In January
2006, Ms. Houle cared for three infants and three preschoolers. Two of the preschoolers are her nephews.[3] She used her mother as a substitute caregiver
two or three times a week. A background
study had not been done on her mother.[4]
3.
On January 13,
2006,[5] Ms.
Houle left her 13-year-old daughter home alone to care for Ms. Houle’s two and
four-year-old nephews while Ms. Houle drove to her son’s school to bring
him his medication.[6] Her other daycare children accompanied her on
that trip
4.
Ms. Houle had
not received car seat training prior to January 13, 2006, although she did have
written permission from daycare parents to transport their children.[7]
5.
Neither Ms.
Houle’s mother nor her daughter had recently taken Sudden Infant Death (SIDS)
or shaken baby syndrome training prior to caring for infants.[8]
6.
On January 17,
2007,
a.
Licensee’s
lack of training for car seats and transporting children; and
b.
Lack of shaken
baby training by substitute and helper; and
c.
Lack of CPR
and first aid training by substitute; and
d.
Having a
substitute without a background study; and
e.
Using a
substitute under 18 years of age.[10]
7.
Ms. Houle told
8.
On March 8,
2006, Ms. Houle was issued a second correction order for the failure of the
substitute and helper to get the required training.[12] On March 16, 2006, Ms. Houle returned the
correction order showing that she, her mother and her daughter had completed
all required training.[13]
9.
Since March
16, 2006, Ms. Houle has been in compliance with all applicable rules and regulations
relating to her daycare.[14]
10.
On January 20,
2006, Wright County recommended that the Department impose a $300.00 fine and
issue an order of conditional license, pursuant to Minn. Stat. § 245A.07.[15]
11.
On January 25,
2007, the Department issued to Ms. Houle its Order to Forfeit a Fine in the
amount of $600.00, and Order of Conditional License.[16]
12.
Ms. Houle
filed a timely appeal from the Orders and requested an appeal hearing pursuant
to Minn. Stat. § 245A.07.[17]
13.
On February
21, 2007, Jerry Kerber, Director, Division of Licensing, Minnesota Department
of Human Services, executed a Notice of and Order for Hearing scheduling a
contested case hearing on April 27, 2007.
14.
On April 5,
2007, an Administrative Law Judge issued a Protective Order, which was served
upon the parties by mail on that date.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Minnesota Department of Human Services have authority to consider and rule on the issues in this contested case hearing pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2. The Department gave proper notice of the hearing, and all relevant substantive and procedural requirements of law or rule have been fulfilled.
3. Minn. Stat. § 245A.07, subd. 3, allows the Commissioner to suspend or revoke a license, or impose a fine if a license holder fails to comply with the applicable laws or rules. Notice of any such action must be given by certified mail and must state the reasons for the sanction.
4. Under Minn. Stat. § 245A.08, subd. 3, the burden of proof first lies with the Commissioner, who may demonstrate reasonable cause for the action taken by submitting statements, reports, or affidavits to substantiate the allegations that the license holder failed to comply fully with applicable law or rule. If the Commissioner demonstrates that reasonable cause existed, the burden shifts to the license holder to demonstrate by a preponderance of the evidence that she was in full compliance with those laws or rules allegedly violated, at the time that the Commissioner alleges the violations occurred.
5. Minn. Stat. § 245C.03, subd. 1(3) requires that background studies be conducted regarding “current or prospective employees or contractors of the applicant who will have direct contact with persons served by the facility, agency, or program.”
6. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Houle failed to have a background study completed on her mother, a substitute caregiver, before caring for daycare children. Ms. Houle has failed to demonstrate by a preponderance of the evidence that she was in full compliance with § 245C.03, subd. 1(3) as alleged by the Department.
7.
8. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Houle failed to have her substitute and helper recently trained in SIDS and shaken baby syndrome, in violation of Minn. Stat. § 245A.144. Ms. Houle has failed to demonstrate by a preponderance of the evidence that she was in full compliance with Minn. Stat. § 245A.144 as alleged by the Department.
9.
10. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Houle failed to have her substitute and helper recently trained in CPR and first aid, in violation of Minn. Stat. § 245A.14. Ms. Houle has failed to demonstrate by a preponderance of the evidence that she was in full compliance with Minn. Stat. § 245A.14 as alleged by the Department.
11.
12. The Commissioner has advanced evidence establishing reasonable cause to believe that Ms. Houle failed to have the required training for child passenger restraint systems, in violation of Minn. Stat. § 245A.18. Ms. Houle has failed to demonstrate by a preponderance of the evidence that she was in full compliance with Minn. Stat. § 245A.18 as alleged by the Department.
13. The Department has failed to advance evidence establishing reasonable cause to believe that Ms. Houle failed to comply with Minn. R. 9502.0405, regarding written permission to transport children.
14. Minn. Stat. § 245A.07, subd. 1, requires the Commissioner to consider “the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights” of those persons in a licensee’s program before applying sanctions under Minn. Stat. § 245A.07.
15.
These Conclusions
are reached for the reasons set forth in the Memorandum below, which is hereby
incorporated by reference into these Conclusions.
16.
The
Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions, and as Findings any Conclusions that
are more appropriately described as Findings.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
Based upon these Conclusions, the
Administrative Law Judge recommends to the Commissioner of Human Services that:
1.
The order of
conditional license of the family day care license of Ms. Jodie Houle be
withdrawn and rescinded; and
2.
The order to
forfeit a fine be revised to impose a fine in the amount of $200.00.
Dated: June 1, 2007
s/M.
Kevin Snell
|
M.
Administrative
Law Judge |
Reported:
Tape recorded (one (1) tape); no transcript prepared.
This report is a recommendation, not a
final decision. The Commissioner of
Human Services will issue a final decision after reviewing the administrative
record, and he may adopt, reject or modify the Administrative Law Judge’s
Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this recommended decision in which to file any exceptions to the
report with the Commissioner.[18] Parties
should contact the office of Cal Ludeman, Commissioner 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
MEMORANDUM
The Commissioner presented the testimony of the
County licensing investigator, a licensing complaint form, and letters issued
to the Commissioner from
Imposing a conditional license on a daycare licensee and
determining what, if any, fine to impose is within the Commissioner’s
discretion. Ms. Houle could certainly be
expected to know she had to have a background investigation done on her mother
as a substitute caregiver. That
violation, therefore clearly warrants some fine. On the other hand, Ms. Houle and her mother
and daughter became compliant as promptly as possible after receiving the
initial correction order.[19] Moreover, at the hearing, Wright County Human
Services stated that it had no position on lack of a conditional license and
the amount of any fine that might be imposed.
Considering the nature, the relative lack of chronicity and severity of
that violation and the others, as well as the fact that Ms. Houle’s
noncompliance did not adversely impact the health, safety, or rights of the
children in Ms. Houle’s program, the ALJ recommends that the Commissioner
impose a conditional license on Ms. Houle but reconsider the amount of the fine
to be assessed. Perhaps a single fine of
$200.00 might be sufficient under the circumstances.[20]
Facts given material weight include Ms.
Gertken’s testimony that: Ms. Houle, her substitute and helper have:
completed all tasks assigned under the under the January 20, 2006,
recommendation for a conditional license, and the January 27, 2007, Order for
Conditional License; Ms. Houle, her mother and daughter completed all training
and certification by March 16, 2006; and Ms. Houle fully and completely
cooperated with Wright County Human Services Agency. Ms. Gertken further testified that everything
is going well at Ms. Houle’s daycare. Because, for all practical purposes, Ms. Houle
has been operating under a conditional license since January 20, 2006, the
Administrative Law Judge has determined that it is unnecessary for her to
operate under a conditional license for another year.
For all of these reasons, the Administrative Law Judge
recommends that the order of conditional license be rescinded, and the fine be
reduced.
M. K. S.
[1] Testimony of Jodie Houle, Exhibit 3.
[2]
[3] Ex. 1.
[4]
[5]
[6] Ex. 1.
[7] Exs. 3 & 4.
[8] Ex. 1.
[9]
[10]
[11] Ex. 3.
[12] Ex. 1.
[13]
[14] Test. of Lisa Gertken and Jodie Houle.
[15] Ex. 1.
[16] Ex. 2.
[17] Ex. 3.
[18]
[19] Findings 6 - 9.
[20] Minn. Stat. § 245A.07, subd. 1.