|
|
OAH 2-1800-18072-2
|
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Temporary Immediate Suspension of the License of Rose Hibner to Provide Family Child Care |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Raymond R. Krause commencing at 9:00 a.m. on August 31,
2007, at the
Anne L. Mohaupt, Assistant Wright
County Attorney,
Should the temporary immediate suspension of the family child care license remain in effect because there is reasonable cause to believe that there is an imminent risk of harm to the health, safety or rights of children in the license holder's care?
The Administrative Law Judge concludes that there is no longer an imminent risk of harm to children in the licensee's care.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Rose Hibner (Respondent) is a licensed family
child care provider and provided care at a facility located at
2.
On or about May 3, 2007, the Wright County Human
Services Agency (
3. During that visit, Ms. Gertken explained the nature of the complaint and told Respondent that she would be receiving a correction order regarding the supervision issue. While at the facility, Ms. Gertken noticed several other violations of Department rules. First, Respondent appeared to be caring for more infants and toddlers than her license would allow.[3] Ms. Gertken told Respondent that she would also be receiving a correction order regarding the over capacity situation, but that she would have two weeks to let the families know and have them find alternative care for their infants or toddlers. [4]
4. In addition to the supervision and capacity issues, Ms. Gertken found violations regarding choking hazards, accessible garbage, and unsafe play areas. She informed Respondent that she would be receiving correction orders for those violations as well. [5]
5.
After returning to the office and discussing the
matter with other
6. On May 8, 2007, Ms. Gertken, accompanied by her supervisor, Marian Elkerton, made an unannounced visit to Respondent’s facility. Ms. Gertken told Respondent that she was there to hand-deliver the correction orders from her previous visits. Respondent was surprised to see Ms. Gertken because she believed, based on Ms. Gertken’s statements on May 3, 2007, that she had until May 17, 2007, to make all the necessary corrections. Ms. Gertken did observe that Respondent had begun to remedy the violations but had not completed all remediation at that point. Of particular concern was the condition of the play area in the back yard. Numerous hazardous items were still accessible to children. Respondent explained that while doing the repairs and construction required by the Correction Order over the weekend, she had placed items in the backyard but had not yet had time to put them safely back in inaccessible locations. In the meantime, she was not letting the children into the backyard as a safety precaution.[7]
7.
While at Respondent’s facility during the May 8,
2007, follow up visit, Ms. Gertken and Ms. Elkerton observed what they felt was
an inability to cope with the number of children in Respondent’s care. Specifically,
8. At some point after the follow up visit on May 8, 2007, and before May 10, 2007, Ms. Gertken and Ms. Elkerton sent a letter to the Commissioner of the Department recommending a temporary immediate suspension of the license of Respondent. [10]
9. On May 10, 2007, the Department issued an order temporarily suspending Respondent’s license to provide daycare.[11]
10. On May 11, 2007, Respondent filled out and signed the Correction Order that she received on May 8, 2007. According to the Correction Order, Respondent had corrected all the violations by May 9, 2007 except for reducing the infant and toddler capacity problem. Respondent had notified parents that she was over capacity and would no longer be able to care for their infants or toddlers but had, in reliance on what she was told by Ms. Gertken, given the parents two full weeks notice.[12]
11.
No one from
12. Respondent acted quickly to correct the violations noted in the Correction Order. Many of the corrections took place immediately. Others, such as having the utility company come out to check the water heater temperature mechanism were immediately initiated but not completed immediately, due to worker availability. Respondent corrected all of the violations, except the capacity issue before she received the notice of Temporary Immediate Suspension. The capacity issue would have been resolved within the two week period had not the license been suspended before that.[15]
13. Respondent does have regularly planned activities for children in her care. She is considered by parents to be very good at communicating with them about their children on a regular basis. She has not had any problems caring for the number of children for which her license is valid and both Respondent and parents feel she provides ample personalized care to her charges.[16]
14. Respondent provides ample, healthy, nutritious meals to her children and has positive reviews by the Children’s Advocate Program. This program oversees the feeding of daycare children at state licensed daycare facilities.[17]
15. Respondent timely appealed the Order of Temporary Immediate Suspension and the matter was referred to the undersigned for hearing. The hearing date in this matter was continued twice at the request of the parties for good cause.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1.
The Commissioner of Human Services and the
Administrative Law Judge have jurisdiction in this matter under
2. The Department of Human Services gave proper and timely notice of the hearing and has fulfilled all procedural requirements of law and rule.
3. Under Minnesota law, if a “license holder’s action or failure to comply with applicable law or rule poses an imminent risk of harm to the health, safety, or rights of persons served by the program, the Commissioner shall act immediately to temporarily suspend the license.”[19]
4. At a hearing appealing an Order of Temporary Immediate Suspension, the burden of proof is on the Department to demonstrate that reasonable cause exists to believe that the license holder’s actions pose a risk of imminent harm to the children at the daycare.[20] The Department is authorized to demonstrate reasonable cause by submitting statements, reports or affidavits.[21]
5. The Administrative Law Judge is directed by statute to determine “whether the immediate suspension should remain in effect pending the Commissioner’s final order . . . regarding a final licensing sanction.”[22]
6. The Department has shown reasonable cause to believe that violations of the child care licensing rules relating to supervision, capacity, and physical safety hazards had occurred.
7. The Department has not met its burden of proof that there is reasonable cause to believe that there continues to be an imminent risk of harm to the children in Respondent’s care.
8. The Memorandum that follows explains the reasons for these Conclusions.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge recommends that: the Temporary Immediate Suspension of the License to Provide Child Care Services of Rose Hibner be RECINDED.
Dated: September 7, 2007
RRK/
s/Raymond
R. Krause
|
RAYMOND R. KRAUSE Chief Administrative Law Judge |
Reported digitally
No transcript prepared
This report is a recommendation, not a final decision. The Commissioner of Human Services (the Commissioner) will make
the final decision after a review of the record. The Commissioner may adopt, reject or modify
these Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this report to file exceptions to the report. At the end of the exceptions period, the
record will close. The Commissioner then
has 10 working days to issue his final decision. Parties should contact the Commissioner of
Human Services, c/o Licensing Division, Attention Mary Kelsey, Unit Manager,
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.
In order to sustain a Temporary Immediate Suspension, the Department has the burden of proof. In these cases that burden is relatively light.
The burden of proof in expedited hearings under this subdivision shall be limited to the Commissioner’s demonstration that reasonable cause exists to believe that the license holder’s actions or failure to comply with applicable law or rule poses an imminent risk of harm to the health, safety, or rights of persons served by the program.[23]
There must be reasonable cause to believe that two elements exist; first that there was a violation of the applicable law or rules and second that there is imminent risk to the children served by the program.
The County, acting for the Commissioner, must present reliable oral testimony and/or reliable documentary evidence in support of a finding of reasonable cause. Reasonable cause to suspend a license is not specifically defined in the statute, but is analogous to the probable cause standard in a criminal proceeding.[24] "Imminent harm" is not defined in the statute or rules, but the Commissioner has defined "imminent danger" to mean that a child is threatened with immediate or present abuse or neglect that is life-threatening or likely to result in abandonment, sexual abuse, or serious physical injury.[25] While this definition of imminent danger is not binding, it is instructive. At a minimum, "imminent harm" means harm that is impending or about to occur.[26]
Violations of Law or Rule
Respondent was cited for several violations of Department rules regarding supervision, safety, and capacity. Respondent does not contest that most of the violations cited in the Correction Order were valid concerns.
She notes that her over-capacity violation was due, in part, to her willingness to help a former client who had emergency medical issues. While this speaks well of her as a person, it does not make the violation any less valid. The choking hazards, dangerous and accessible items, and supervision issues cited were violations that posed imminent risk of harm to the children in her care. The Commissioner properly made a preliminary determination, based on the reports that the children in her care were at risk of harm, requiring an immediate temporary suspension of the child care license.
Imminent Risk of Harm
The statute requires that in an expedited hearing concerning an immediate temporary suspension, the scope of the hearing is limited to determining whether the temporary immediate suspension "should remain in effect" pending the commissioner's final order regarding a licensing sanction under Minn. Stat. § 245A.08.[27] The Commissioner is required to demonstrate that reasonable cause exists to believe that the license holder's actions or failure to comply with law or rule "poses an imminent risk of harm" to children in care. There is no evidence at all that there is any risk of imminent harm today that would require the suspension to remain in effect. Every item of evidence submitted by the Department speaks only to the violations as of May 3, or May 8, 2007. The licensing investigator has not returned to the facility to re-inspect and did not contest Respondent’s assertion that all defects had been remedied.
Respondent testified that all of the violations cited in the Correction Order have been remedied and were remedied prior to the issuance of the Temporary Immediate Suspension Order. She introduced photographic evidence that supports her claim.[28] The signed Correction Order also supports the finding that all the violations have been remedied. The testimony was uncontroverted and the Administrative Law Judge finds that Respondent was credible in stating that she fully understands the rules and that the violations have been remedied. On the other hand, the County submitted no testimony, nor any exhibits that in any way reflect that there is any ongoing risk of harm.
Nonetheless, the County maintains that the suspension should remain in effect until the County is convinced that children would not be placed in a position of imminent harm or danger in the future. This viewpoint reverses the burden of proof. It is the Commissioner's burden, through the County, to demonstrate an imminent risk of harm to children in care. The County believes it meets this burden by demonstrating that there were valid concerns back in May of 2007. That is insufficient as evidence of an ongoing risk.[29] The County could inspect Respondent’s facility at any time to make its own determination on these matters, but it has not done so.
It may be entirely appropriate to take disciplinary action or impose conditions on Respondent’s license to ensure that she understands the capacity, safety, and supervision requirements, but nothing in the statute requires that the suspension remain in effect while these recommendations are formulated and provided to the Commissioner. Rather, the statute requires the County to demonstrate that the suspension should remain in effect because there is an imminent risk of harm.
The evidence in this record is not sufficient to support a finding that Respondent’s actions or past failures to adhere to the rules pose a current imminent risk of harm to children. The Order of Temporary Immediate Suspension should, therefore, be rescinded.
R. R. K.
[1] Exs. 1, 2, and 5, Testimony of Rose Hibner.
[2] Ex. 1, Testimony of Lisa Gertken.
[3]
[4] Ex. 1, Test. of L. Gertken and R. Hibner.
[5]
[6]
[7]
[8] Ex. 1, Test. of L. Gertken.
[9] Exs. 1 and 5, Test. of L. Gertken, Test. of R. Hibner.
[10] Ex. 1 and 2. The letter to the Commissioner is dated February 21, 2007. This was in error. The response from the Department was dated May, 10, 2007 so the letter had to have been written after the May 8, 2007, visit but before May 10, 2007.
[11] Ex. 2.
[12] Ex. 5, Test. of R. Hibner.
[13] Test. of L. Gertken.
[14]
[15] Ex. C and D, Test. of R. Hibner.
[16] Testimony of D. Fitchorn, A. Michels, S. Allen, T. Allen, and J. Rooker.
[17] Test. of Ann Madsen, Ex. A.
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28] Exs. C and D.
[29] See also, In the Matter of the Suspension of Hellen Hall, OAH File No. 3-1800-15095-2, (2002), Affirmed by Comm’r., and In the Matter of the Suspension of LaVera Ashanti, OAH File No. 3-1800-19051-2, (2007), Affirmed by Comm’r.