OAH Docket No. 7-1800-19450-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN SERVICES
|
In the Matter of the Temporary Immediate Suspension of the License of
Denise Paulson |
FINDINGS OF FACT, CONCLUSIONS, AND
RECOMMENDATION |
This
matter comes before Administrative Law Judge (ALJ) Richard C. Luis following a
hearing pursuant to Denise Paulson’s (Appellant or Licensee) appeal from an
Order of Temporary Immediate Suspension (TIS) of her family day care license. The hearing in this matter was held on March
5, 2008 in
Michael
Q. Lynch, Assistant County Attorney, Hennepin County Attorney’s Office,
appeared on behalf of Hennepin County Human Services and the Minnesota
Department of Human Services. (County and Department). Conor E. Tobin, Sawicki & Phelps, P.A.,
appeared on behalf of the Appellant.
STATEMENT OF ISSUE
Did the Department demonstrate that reasonable cause exists to believe
that Appellant’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
her day care program[1]?
As noted
subsequently, the ALJ recommends dismissal of the TIS because reasonable cause
has not been demonstrated that an imminent risk of harm is posed to those served
by the Licensee’s program.
Based on the hearing
record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Appellant
has been licensed to operate a family daycare center since May, 1981.[2]
2.
Appellant’s
license allows her to care for up to 10 children at one time, including three
children under the age of two years, but only two of those may be less than one
year old.[3]
3.
Appellant
has four children, all of them now adults.
Her 20-year old son, Andy, lives with her, as does her 29 year-old
daughter, Carrie. Carrie’s child, RK,
also lives in the home. RK was born on
April 12, 2007.[4]
4.
On
November 6, 2007, Barb Clifton, a
5.
When
Ms. Clifton arrived at Appellant’s home, Appellant initially told her that she
had one infant, aged 4 ˝ months, and four preschool children in her care on
that day.[6]
6.
Some
time later, when an infant in another part of the daycare home was heard
crying, Appellant acknowledged that another infant, Appellant’s granddaughter,
was also in her care. The granddaughter,
RK, was 7 ˝ months old at that time.[7]
7.
RK was
napping in her crib, which was upstairs in her mother’s bedroom.[8]
8.
The
upstairs of Appellant’s home is not licensed for daycare or child proofed.[9]
9.
On
November 6, 2007,
A. Two infants were sleeping in mesh cribs with bassinet inserts, which did not pass crib inspection criteria. [10]
B. Four mesh cribs had holes in the mesh siding, which violated crib inspection criteria.[11]
C. An infant was sleeping in a second-floor rear bedroom of the home, which was neither licensed nor child proofed.[12]
D. No crib inspection forms were completed for 2006-07; nor had the Appellant checked with the Consumer Product Safety Commission to determine whether there were any reports of hazards concerning the seven mesh cribs in her home.[13]
E. The safety straps on a high chair in the kitchen were not being used.[14]
F. Medications (amoxicillin and albuterol) were administered to a child in care without medicine permission forms from the child’s parent.[15]
G. Electrical outlets were not covered in the back first floor bedroom and the playroom.[16]
H. Two electrical outlet covers were broken in the back bedroom, as well as one in the playroom and one on the basement stairway.[17]
I. No fire and storm drills had been done in 2006 or 2007.[18]
J. The smoke detector in the playroom was not functioning.[19]
K. Doorknobs were missing on three closet doors; including two in the back bedroom on the first floor. The closets were not able to be opened from inside.[20]
L. The landing of the basement stairway which also led to the exterior door was cluttered with boxes, clothes, etc.[21]
M. The kitchen floor was unclean, with food on the floor. A full garbage bag was sitting on the kitchen floor.[22]
N. A number of toxins and hazards accessible to children were found[23]:
· A fertilizer spreader in the front yard;
· A bag of Ice Melt in the front hallway on the floor;
· Plastic bags on the floor of the first floor bedroom closet;
· Baby powder on a low shelf in the playroom;
· Hygiene items, a lighter and two pair of scissors in the medicine cabinet in the first floor bathroom;
· Hygiene items in the cabinet over the toilet in the first floor bathroom;
· Two bottles of Lysterine, other hygiene products in the vanity in the first floor bathroom;
· Hygiene products lower than five feet in the shower;
· Albuterol (medication), baby powder, liquid gel detergent, liquid gold, knife, Lysol and garbage bags on the kitchen counter;
· Aluminum foil, Easy Off oven cleaner, Goop, garbage bags, chapstick, meat fork and twisters, knife, blender with blades, metal pumpkin covers, pins, batteries, and soft foam art beads in the lower kitchen cupboards and drawers;
·
A container of liquid gel detergent and a large
bottle of Spray and
· Tools, screws, batteries, protractor, dice, etc. in kitchen drawers lower than five feet.
O. There were combustibles within 36 inches of the furnace, including a large plastic rectangle, a Christmas tree, a Christmas ornament, a large plastic garbage bag with soft contents, a mop and an air conditioner.[24]
P. Diapers were accessible to children in the playroom.[25]
Q. A trash receptacle where soiled diapers were placed was uncovered in the playroom; a second trash receptacle was uncovered in the first floor bathroom.[26]
R. The emergency numbers for 911 and poison control were not posted.[27]
S. The hot water temperature was 142 degrees.[28]
T. No emergency substitute was identified.[29]
U. There was no emergency exit plan.[30]
V. The rabies certificate on file for Appellant’s cat was not current.[31]
W. The CPR training certificate on file for Appellant was not current.[32]
X. There were no current certificates for Appellant for SIDS or Shaken Baby Syndrome training.[33].
Y. Appellant had not watched the Shaken Baby Syndrome video in 2006 or 2007.[34]
Z. No Alcohol and Drug policy was available.[35]
AA. Admission and arrangements forms were missing for three children (RK, OL, MP).[36]
BB. Emergency dental permission information was missing for two children (HP and BT).[37]
CC. Insurance disclosure information was missing for BO.[38]
DD. Immunization forms were missing for three children (RK, OT, MP).[39]
EE. Immunization forms were not up to date for four children (BT, AO, CO, HP).[40]
FF. Provider policies were missing for four children (RK, OT, BO, MP).[41]
GG. Travel permission forms were missing for seven children (RP, BT, OT, AO, CO, HP, MP).[42]
HH. Permission to administer medications forms were missing for seven children (RL, BT, OT, BO, CO, HP and MP).[43]
II. Grievance policies were missing for all children enrolled.[44]
10.
The
November 6, 2007 Correction Order instructed Appellant to return the form by
November 20, 2007 with explanations of how each violation was corrected.[45]
11.
Along
with the Correction Order, Ms. Clifton sent Appellant a letter dated November
6, 2007. The letter explained the
process for responding to the Correction Order, including providing copies of
necessary documents. In addition, the
letter stated that children in Appellant’s care, including her granddaughter,
could not be in unlicensed areas of the daycare home during daycare hours,
including the crib on the second floor.[46]
12.
Appellant
failed to respond to the Correction Order or the accompanying letter. She also failed to respond to a late
correction order letter mailed on November 30, 2007.[47]
13.
Ms.
Clifton conducted a second drop-in visit to Appellant’s home on December 11,
2007 as a follow-up to the November 6 visit, Correction Order and letter.[48]
14.
At the
time of the December 11, 2007 visit, Appellant had corrected some violations,
including replacing the four mesh cribs with new cribs, replacing the electrical
outlet cover in the back bedroom and the playroom, installing door knobs on the
closets in the back bedroom, repairing the smoke detector in the playroom,
moving the garbage bag and the Christmas ornament away from the furnace,
covering the diaper pail in the playroom and participating in SIDS/Shaken Baby
Syndrome training.[49]
15.
During
the December 11, 2007 licensing visit, Ms. Clifton observed and Appellant
acknowledged that RK continued to nap in the upstairs bedroom in a mesh crib
with a bassinet insert.[50]
16.
Also on
December 11, 2007, Ms. Clifton observed RK asleep on her stomach with a blanket
over her. Appellant explained that she
had put RK down for her nap on her back and put the blanket on RK after she
rolled onto her stomach in her sleep.[51]
17.
During
the December 11, 2007 licensing visit, Ms. Clifton advised Appellant that she
would recommend a conditional license and that monthly drop-in visits would be
conducted.[52]
18.
In her
December 11, 2007 dictation notes, following the visit, Ms. Clifton outlined
her plan to send out a new Correction Order, schedule a legal consult and to
perform a return visit.[53]
19.
On
December 11, 2007,
A. One infant was sleeping in a mesh crib with a bassinet insert which did not pass crib inspection criteria. [55]
B. An infant was sleeping in a second-floor rear bedroom of the home which was neither licensed nor child proofed.[56]
C. No crib inspection forms were completed for 2006-07; nor had the Appellant checked with the Consumer Product Safety Commission to determine whether there were any reports of hazards concerning the seven mesh cribs in her home.[57]
D. The safety straps on a high chair in the kitchen were not being used.[58]
E. Medications (amoxicillin and albuterol) were administered to a child in care without medicine permission forms from the child’s parent.[59]
F. Electrical outlets were not covered in the playroom.[60]
G. Electric receptacle face plate was missing on the basement stairway.[61]
H. No fire and storm drills had been done in 2006 or 2007.[62]
I. The smoke detector in the basement was not functioning.[63]
J. Doorknobs were missing on the playroom closet door which was not able to be opened from inside.[64]
K. The basement stairway continued to have some items on the stairs, including a measuring cup and cat food.[65]
L. The kitchen floor was unclean, with food on the floor. A full garbage bag was sitting on the kitchen floor.[66]
M. A number of toxins and hazards accessible to children were found[67]:
· A bag of Ice Melt in the front hallway on the floor;
· Plastic bags on the floor of the first floor bedroom closet;
· Hygiene items, a lighter and two pair of scissors in the medicine cabinet in the first floor bathroom;
· Hygiene items in the cabinet over the toilet in the first floor bathroom;
· Liquid Gel detergent on kitchen counter top.
· Aluminum foil, Easy Off oven cleaner, Goop, garbage bags, chapstick, meat fork and twisters, knife, blender with blades, metal pumpkin covers, pins, batteries, and soft foam art beads in the lower kitchen cupboards and drawers;
·
A container of liquid gel detergent and a large
bottle of Spray and
· Tools, screws, batteries, protractor, dice, etc. in kitchen drawers lower than five feet.
N. There were combustibles within 36 inches of the furnace, including a large plastic rectangle, a Christmas tree, a Christmas ornament and a mop.[68]
O. A trash receptacle was uncovered in the first floor bathroom.[69]
P. The hot water temperature was 122 degrees.[70]
Q. There was no emergency exit plan.[71]
R. The rabies certificate on file for Appellant’s cat was not current.[72]
S. The CPR training certificate on file for Appellant was not current.[73]
T. No Alcohol and Drug policy was available.[74]
U. Admission and arrangements forms were missing for three children (RK, OL, MP).[75]
V. Emergency dental permission information was missing for two children (HP and BT).[76]
W. Insurance disclosure information was missing for BO.[77]
X. Immunization forms were missing for three children (RK, OT, MP).[78]
Y. Immunization forms were not up to date for four children (BT, AO, CO, HP).[79]
Z. Provider policies were missing for four children (RK, OT, BO, MP).[80]
AA. Travel permission forms were missing for seven children (RP, BT, OT, AO, CO, HP, MP).[81]
BB. Permission to administer medications forms were missing for seven children (RL, BT, OT, BO, CO, HP and MP).[82]
CC. Grievance policies were missing for all children enrolled.[83]
20.
In addition
to the items repeated from the November Correction Order listed in paragraph 19,
above, the following new items were listed in the December 11, 2007 Correction
Order:
A. There
was aerosol air deodorizer on the bathroom shelf.[84]
B. There
were plastic bags in a low kitchen cupboard and spilling onto the kitchen
floor.[85]
C. A
ladder was leaning against the wall in the kitchen.[86]
D. The
basement door was not secured and the stairway contained toxins and hazards.[87]
E. There
were additional combustibles within 36 inches of the furnace and hot water
heater including cardboard boxes.[88]
F. An
electrical outlet was not covered in the dining room.[89]
G. The
stairway leading to the second level of the home was cluttered with coats, a coat
rack, an infant seat and shoes.[90]
21.
The
December 11, 2007 Correction Order instructed Appellant to return the form by
December 19, 2007 with explanations of how each violation was corrected.[91]
22.
In
addition to the Correction Order, Ms. Clifton sent Appellant a letter dated
December 12, 2007. The letter emphasized
that the sleeping arrangements for Appellant’s granddaughter were unacceptable
because she was in a mesh crib with a bassinet insert and because she was
napping during daycare hours in an unlicensed area of the daycare home that was
not childproofed.[92]
23.
The
December 12 letter also stated that Ms. Clifton would be discussing with the
24.
Appellant
failed to respond to the December 11 Correction Order or the accompanying
letter.[94]
25.
Ms.
Clifton conducted a third drop-in visit to Appellant’s home on January 7, 2008
as a follow-up to the first two visits and the resulting Correction Orders and
letters. Ms. Clifton was accompanied on
the third visit by Robin Perkins, who is another staff person with
26.
During
the licensing visit on January 7, 2008, Ms. Clifton and Ms. Perkins took a
number of photographs inside of Appellant’s home.[96]
27.
When
Ms. Clifton arrived at Appellant’s home, Appellant’s granddaughter, RK, was
again napping in the second floor bedroom.
RK was sleeping in a new wooden crib, but the side rail was lowered and
she was sleeping on her stomach with a blanket covering her up to the shoulders. In addition, the crib bedding included cloth
crib pads against the rails.[97]
28.
RK had
been put down for her nap by her mother, Carrie Paulson, shortly before Ms.
Clifton arrived. Carrie Paulson lay her
daughter on her back without a quilt. RK
turned onto her stomach herself, after which Appellant put the quilt on her.[98]
29.
RK was
approximately nine months old on January 7, 2008. She has been rolling over on her own since
she was about four or five months old.
When RK is put to bed on her back, she consistently rolls onto her
stomach in her sleep.[99]
30.
The
second floor of Appellant’s home was still unlicensed and had not been
childproofed. Various toxins and hazards
were present throughout the second floor of Appellant’s home, including hygiene
products in the bathroom and bedroom, scattered clothing, lighters and
medication.[100]
31.
While a
number of the previous violations had been corrected as of the January 7, 2008
licensing visit, others had not and Ms. Clifton observed some additional
violations.[101]
32.
On January
7, 2008,
A. One infant, RK, was sleeping in a crib with the side rail down, which did not pass crib inspection criteria. [103]
B. No crib inspection forms were completed for 2006-07; nor had the Appellant checked with the Consumer Product Safety Commission to determine whether there were any reports of hazards concerning the seven mesh cribs in her home.[104]
C. Electrical outlets were not covered in the playroom or dining room.[105]
D. Electric receptacle face plate was missing on the basement stairway.[106]
E. No fire and storm drills had been done in 2006 or 2007.[107]
F. Doorknobs were missing on the playroom closet door which was not able to be opened from inside.[108]
G. The basement stairway continued to have some items on the stairs, including a cat food dish and cat food.[109]
H. The kitchen floor was unclean, with food on the floor.[110]
I. A number of toxins and hazards accessible to children were found[111]:
· A fertilizer spreader in the front yard;
· Plastic bags on the floor of the first floor bedroom closet;
J. There were combustibles within 36 inches of the furnace and water heater, including a large plastic rectangle and a mop.[112]
K. The CPR training certificate on file for Appellant was not current.[113]
L. Emergency dental permission information was missing for three children (RK, HP and MP).[114]
M. Insurance disclosure information was missing for MP.[115]
N. Immunization forms were missing for RK.[116]
O. Immunization forms were not up to date for AO.[117]
P. Provider policies were missing for four children (RK, OT, BO, MP).[118]
Q. Travel permission forms were missing for MP.[119]
R. Permission to administer medications forms were missing for RK, BT, OT and HP.[120]
S. The
stairway leading to the second level of the home was cluttered with coats, coat
rack, infant seat and shoes.[121]
33.
In
addition to the items repeated from the November and December Correction Orders
listed in paragraph 32, above, the following new items were listed in the
January 7, 2008 Correction Order:
A. RK
was sleeping in a crib with the side rail down, on her stomach, with a
comforter on top of her and soft crib pads on the sides of the crib. The nine-month old was sleeping in a second
floor bedroom which is not licensed for child care and is not child
proofed. In the room where the child was
sleeping were lighters, medication, hygiene supplies, etc., all at a level
lower than three feet.[122]
B. Toxins
and hazards were accessible to children in care, including:
·
Basement
stairway door open and toxins and hazards present on the stairways and in the
basement;[123]
·
Empty
plastic bags on the dining room table and a plastic bag on the floor of the
bathroom;[124]
·
Lighter,
light bulbs containing mercury, screw driver and two knives on the edges of the
kitchen cupboards;[125]
·
Hand
lotion on the edge of the kitchen counter.[126]
C. Electric
fixture (lantern style) was not properly mounted and was hanging by wires on
the basement stairway.[127]
D. The
diaper changing mat was not made of a non-absorbant material.[128]
E. The
door to the stairway was open and there was no gate being used as a barrier.[129]
34.
The January
7, 2008 Correction Order instructed Appellant to return the form by January 15,
2008 with explanations of how each violation was corrected.[130]
35.
In
addition to the January 7, 2008 Correction Order, Ms. Clifton sent Appellant a
letter on the same date. The letter reviewed some of the licensor’s primary
concerns – the lack of fire drills, crib inspections, posting of Correction Orders. The letter also requested that Appellant
complete all three of the Correction Orders and return them, along with a
variety of documents. In addition, the
letter again emphasized that the sleeping arrangements for Appellant’s
granddaughter were unacceptable, because of the crib bedding and the location
of the crib in the unlicensed portion of the Appellant’s home.[131]
36.
On
January 10, 2008, Hennepin County Child Care Licensing recommended to the
Minnesota Department of Human Services that Appellant’s license be placed on
temporary immediate suspension pursuant to Minn. Stat. § 245A.07, subd. 2.[132]
37.
In
discussing the basis for the recommendation for a temporary immediate
suspension, the County agency cited Appellant’s lack of timely responsiveness
to the Correction Orders. The agency
stated that its biggest concern was “about the infants in care, who are most
vulnerable. The provider’s continued use of unlicensed space, unsafe sleeping
equipment, inappropriate sleeping practices and failure to complete CPR
training create an imminent risk of harm to the infants in her care.” The letter stated also that “the provider’s
willful disregard of rule and statute places all children in her care at
imminent risk for harm. The agency has
made diligent efforts to elicit the provider’s compliance, but to no avail.”[133]
38.
Also on
January 10, 2008, the Department of Human Services issued a letter to Appellant
placing her day care license on temporary immediate suspension. The letter stated:
On January 7, 2008,
39.
Eight
families whose children attended Appellant’s day care submitted affidavits and
statements in support of Appellant.[135]
40.
Each of
the families stated that they have never observed anything in Appellant’s home
to make them feel that their children were in imminent danger.[136]
41.
Among
the positive comments from parents of day care children were the following
statements:
I have been teaching for eight years and as
someone who works closely with children everyday, I have never felt any of the
children under Denise’s care were ever in imminent danger.[137]
I have been in public safety for 18 years;
working as a firefighter and emergency medical technician and currently serving
as an Assistant Fire Chief. I have at no
time found Ms. Paulson’s care for my child or any issues with her home to cause
me any anxiety. Nor have I ever questioned
her abilities to provide quality care for my daughter.[138]
Both of my children, ages 6 and 2, have
absolutely loved every day they spend at her house. I have never once been fearful of their
safety while in her care.[139]
42.
On
February 21, 2008, Appellant, through her attorney, submitted to the
43.
Recent
photographs taken of the inside of Appellant’s home show many of the
corrections that were made, including, for example, all combustible materials
removed from the area surrounding the furnace and hot water heater, all toxins
and other clutter removed from around the basement stairs and the light fixture
on the basement stairs repaired.[141]
44.
Appellant
is prepared to have all the required forms “ready to go” as soon as she is
permitted to return to providing licensed day care.[142]
45.
Appellant is prepared to conduct the required
fire drills once her license is restored to her and she is able to provide
licensed day care. Appellant plans on
implementing the fire drills using a technique described by Ms. Perkins during
the January 7, 2008 visit to Appellant’s home.[143]
46.
Appellant
completed the required CPR training on February 23, 2008.[144]
47.
Appellant
keeps a gate up between the kitchen and dining room so that the day care
children do not have access to the kitchen or the back stairway unless she is
present with them. When children are in
the kitchen, the door to the basement stairway is kept closed and locked with a
hook and eye lock located high off the floor.[145]
48.
On or
about January 11, 2008, the Department of Human Services received Appellant’s
Notice of Appeal of the Temporary Immediate Suspension of her day care license.[146]
Based on the Findings of
Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The
Administrative Law Judge and the Commissioner of Human Services have
jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 245A.08.
2.
The
Notice of Hearing is proper in all respects and the Local Agency and the
Department have complied with all substantive and procedural requirements of
law and rule.
3.
At all
times relevant to these proceedings, Appellant was licensed as a family day care
provider.
4.
In
order to affirm the temporary immediate suspension of Appellant’s day care
license, the commissioner must demonstrate “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.”[147]
5.
Hennepin
County child care licensing and the Department of Human Services have failed to
demonstrate that reasonable cause exists to believe that Appellant’s actions or
failure to comply with applicable law or rule pose an imminent risk of harm to
the health, safety, or rights of persons served by the program.
Based on the Conclusions, and for the
reasons explained in the accompanying Memorandum, the Administrative Law Judge
makes the following:
RECOMMENDATION
IT IS RECOMMENDED that the
Commissioner of the Department of Human Services DISMISS the Order for
Temporary Immediate Suspension of Denise Paulson’s license to provide family day
care.
Dated: March 20, 2008
/s/
Richard C. Luis
|
RICHARD C.
LUIS Administrative Law Judge |
Reported: Digitally
recorded; no transcript.
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 and may adopt, reject or modify
these Findings of Fact, Conclusions, and Recommendations. The parties shall have ten calendar days to
submit exceptions to the administrative law judge's report. The record shall close at the end of the
ten-day period for submission of exceptions. The commissioner's final order
shall be issued within ten working days from the close of the record.[148] Parties should contact Cal Ludeman,
Commissioner of Human Services,
Pursuant to Minn. Stat. § 14.62, subd. 1,
the Commissioner is required to serve its final decision upon each party and
the Administrative Law Judge by first class mail.
MEMORANDUM
The scope of a hearing on an appeal of a Temporary Immediate Suspension is very limited. The sole question to be addressed is whether the Department has shown that reasonable cause exists to believe that Ms. Paulson’s actions, or failure to comply with applicable law or rule, pose an imminent risk of harm to the children served by her day care. There is no question that the evidence demonstrates that the County was aware of quite a number of concerns with Appellant’s day care home In November and December, 2007. But the very fact that the County waited two full months and completed three licensing inspections before moving to order a temporary immediate suspension undercuts the element of imminence which is essential to support imposition of a Temporary Immediate Suspension.
Had the conditions in Appellant’s home deteriorated from November, 2007 to January, 2008 to a point where the risk of harm became too great and too immediate for the County to risk its ongoing attempts to work with Appellant, a Temporary Immediate Suspension might well be justified. Alternatively, had the risk all along been greater – a loaded handgun in the home, a member of the household with a history of violence – the failure of the County to act very quickly to suspend the license would not have precluded it from acting later.
This situation fits into neither category. Both witnesses who testified on behalf of the County stated that, taken alone, none of the violations found in November was sufficient to warrant temporary immediate suspension of the license.[149] None of these violations, therefore, rose to the level of being considered an imminent threat to the health or safety of the children in Appellant’s care. Ms. Clifton stated that, had she found problems that raised serious sufficient concerns in the day care home during that November visit, she would have recommended temporary immediate suspension then.[150] She did not do this, nor did she re-visit Appellant’s home right away. She waited a full month before going back. This response does not support the notion that the County believed that the children attending Appellant’s day care program were in imminent danger in November.
Between the November and December licensing visits, Appellant failed to return the Correction Order. When Ms. Clifton re-visited Appellant’s home on December 11, Appellant had corrected a number of the violations cited in the November Correction Order. While many violations remained uncorrected and there were some new violations, it is reasonable to believe that, on balance, Appellant’s home may have been safer in December than it had been in November. This belief is supported by the County’s actions.
After
the December visit, the County still had very serious concerns. These concerns were reflected in Ms.
Clifton’s statements, in her December 12 letter, that
Even Appellant’s failure to respond to the Correction Order by the December 19 due date did not cause the County to visit Appellant’s home again “shortly.” The timing of the January 7, 2008 follow-up visit does not support the claim that the County believed children served by Appellant’s day care program were in imminent danger of any sort. When Ms. Clifton did re-visit Appellant’s home, the situation had again improved.
The December Correction Order listed 36 violations citations with eight additional specific listings of toxins and hazards accessible to children. The January Correction Order listed 24 violations with four additional specific listings of toxins and hazards, none of which was more serious than those listed in the earlier Correction Orders. The issue of RK’s sleeping arrangements was no different than it had been in November and December, except by then she was sleeping in a new crib. If the County’s concerns did not rise to the level of finding that the children were in imminent danger in November or December, there was nothing revealed by the January inspection that would justify a Temporary Immediate Suspension.
It is the County’s position that the licensing rules are properly interpreted to mean that a child who lives in the day care home must remain in the licensed parts of the home during day care hours.[151] In that connection, the County provided several decisions issued by the Commissioner of Human Services to support the County’s position on the issue. It is not necessary at this time to determine whether the Commissioner’s interpretation of the rule is valid. Assuming, for the sake of argument, that the interpretation is valid, that does not justify imposition of the TIS. In all three cases provided by the County where the Commissioner determined that the day care provider’s children had to remain in licensed areas of the home during day care hours, the issue arose only in the context of a Correction Order, not a TIS. In two of the three cases, the issue had to do with children napping on an unlicensed upper floor. In those cases, the County did not find that the children were in imminent danger. It found a rule violation. In this case, even if the Department’s interpretation of the rule requiring RK to remain in licensed areas of Appellant’s home during day care hours is correct, Appellant’s violation of that rule does not justify a TIS.
This is not to say that the violations of licensing statutes and rules were not numerous and sufficient to raise concerns. A negative licensing action might well be appropriate in this situation. The licensing statutes allow for a range of sanctions, from a conditional license, to fines, to revocation. But, because none of the violations put a child in imminent danger of harm, temporary immediate suspension is not appropriate. Human Services licensing statutes and rules are meant to protect the health and safety of the people served by the licensed programs. Violation of the applicable laws does not, per se, create a situation of imminent danger.
Furthermore, the Appellant has shown compliance with the Correction Orders. While compliance has come slowly, her testimony and the supporting photographic evidence demonstrate that the violations have been cured, reducing any risk to children that may have existed as a result of the violations. It is reasonable to believe the Appellant now understands the importance of complying with the licensing laws.
The Administrative Law Judge has considered also the Appellant’s long record of providing day care with no evidence of a prior history of negative licensing actions, coupled with strong statements from the parents whose children are, or have been, in her care. These statements speak directly to the issue of the safety of the children and are unequivocal in their support of Ms. Paulson, her home and her program. While these statements are not determinative of the outcome of this matter, they merit consideration.[152]
This recommendation should not be read as an endorsement of the conditions in Appellant’s day care home. They were seriously lacking. Appellant must find a way to make her commitment to the complying with the statutes and rules obvious and unquestionable. But neither the nature of the specific violations nor the County’s response to them supports imposition of a Temporary Immediate Suspension. Therefore, the Administrative Law Judge recommends that the Commissioner dismiss the Temporary Immediate Suspension.
R.C.L.
[1]
[2] Hearing Exhibit (Exhib.) 1 at page 2.
[3] Testimony of Denise Paulson (D. Paulson testimony).
[4] D. Paulson testimony.
[5] Exhib. 1 at page 2.
[6] Exhib. 2 at page 1.
[7] Exhib. 2 at page 1.
[8] Exhib. 2 at page 1.
[9] Exhib. 2 at page 1.
[10] Minn. Rules 9502.0415, subpt. 3.
[11]
[12] Minn. Rules 9502.0435, subpts. 4 and 6.
[13] Minn. Stat. § 245A.146, subpts. 3 and 4:
[14]
[15] Minn. Rules 9502.0435, subpt. 16.
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30] Minn.Rules 9502.0435 8F.
[31] Minn. Rules 9502.0435, subpt. 12.
[32] Minn. Stat. § 245A.14, subd. 13. (The most recent training certificate was
dated October 9, 2004 but the training must be completed every 3 years.)
[33]
[34]
[35] Minn. Stat. § 245A.04, subd. 1.
[36]
[37]
[38]
[39]
[40]
[41]
[42] Minn.Rules 9502.0405, subpt. 4.
[43]
[44] Minn. Stat. § 245A.04, subd. 1.
[45] Exhib. 3 at page 1.
[46] Exhib. 4 at page 1.
[47] Exhib. 5 at page 1.
[48] Exhib. 5 at page 1.
[49] Exhibs. 5 and 7.
[50] Exhib. 5 at page 1.
[51] Exhib. 5 at page 1.
[52] Exhib. 5 at page 2.
[53] Exhib. 5 at page 2.
[54] Exhib. 6.
[55] Minn. Rules 9502.0415, subpt. 3.
[56] Minn. Rules 9502.0435, subpts. 4 and 6.
[57] Minn. Stat. § 245A.146, subpts. 3 and 4:
[58]
[59] Minn. Rules 9502.0435, subpt. 16.
[60]
[61]
[62]
[63]
[64]
[65]
[66]
[67]
[68]
[69]
[70]
[71] Minn.Rules 9502.0435 8F.
[72] Minn. Rules 9502.0435, subpt. 12.
[73] Minn. Stat. § 245A.14, subd. 13. (The most recent training certificate was
dated October 9, 2004 but the training must be completed every 3 years.)
[74] Minn. Stat. § 245A.04, subd. 1.
[75]
[76]
[77]
[78]
[79]
[80]
[81] Minn.Rules 9502.0405, subpt. 4.
[82]
[83] Minn. Stat. § 245A.04, subd. 1.
[84]
[85]
[86]
[87]
[88]
[89]
[90]
[91] Exhib. 6 at page 1.
[92] Exhib. 7.
[93]
[94] Exhib . 9 at page 1; testimony of B. Clifton and D. Paulson.
[95] Exhib. 8 at page 1; testimony of T. Hennessey.
[96] Exhib. 11; testimony of B. Clifton and D. Paulson.
[97] Exhib. 8 at page 1.
[98] Exhib. 8 at page 1; Exhib. 11, pictures 2 and 3; testimony of Carrie Paulson (C. Paulson).
[99] Testimony of C. Paulson.
[100] Exhib. 8 at page 1; Exhib. 11, pictures 1, 4 and 5.
[101] Exhib. 8; testimony of B. Clifton.
[102] Exhib. 9.
[103] Minn. Rules 9502.0415, subpt. 3.
[104] Minn. Stat. § 245A.146, subpts. 3 and 4:
[105]
[106]
[107]
[108]
[109]
[110]
[111]
[112]
[113] Minn. Stat. § 245A.14, subd. 13. (The most recent training certificate was
dated October 9, 2004 but the training must be completed every 3 years.)
[114]
[115]
[116]
[117]
[118]
[119] Minn.Rules 9502.0405, subpt. 4.
[120]
[121]
[122] Minn. Stat. § 245A.14355 and Minn. Rules 9502.0435, subpt. 4.
[123]
[124]
[125]
[126]
[127]
[128] Minn. Rules 9502.0435, subpt.13.
[129]
[130] Exhib. 6 at page 1.
[131] Exhib. 10.
[132] Exhib. 1 at page 1.
[133] Exhib. 1 at page 3.
[134] Exhib. 13 at page 1.
[135] Exhib. 18.
[136]
[137]
[138]
[139]
[140] Exhibs. 27 and 28.
[141] Exhib. Testimony of D. Paulson, Exhibs. 19-26.
[142] Testimony of D. Paulson.
[143]
[144]
[145] Testimony of D. Paulson, Exhib. 26.
[146] Notice of and Order for Hearing, Attachment A (January 18, 2008).
[147] Minn. Stat. § 245A.07, subd. 2a(a).
[148]
[149] Testimony of B. Clifton and T. Hennessey.
[150] Testimony of B. Clifton.
[151]
See
[152]
In Re the Revocation of the Family Child Care License of Gail Burke, 666 N.W.2d
724, 728 (