OAH 43-1800-19723-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR DEPARTMENT OF HUMAN
SERVICES
|
In
the Revocation of the License of Melissa Milligan to Provide Family Child Care |
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION |
The
above entitled matter came on for hearing before Administrative Law Judge
Nicole
S. C. Hansen, Assistant Otter Tail County Attorney, appeared on behalf of the
Department of Human Services. Appellant,
Melissa Milligan appeared pro se.
STATEMENT OF
ISSUE
Whether the Order of Revocation revoking the family child
care license of Melissa Milligan should be affirmed?
Based upon the foregoing Findings of
Fact, the Administrative Law Judge makes the following:
FINDINGS OF
FACT
1. Melissa Milligan (hereafter Appellant)
was licensed as a family child care provider under License No. 224260[1]
2. On November 12, 2003 the Minnesota
Department of Human Services (hereafter Department) documented the following
licensing violations:
a) Personal care
products and razors were accessible to children in care in upstairs bedroom.
b) Laundry chute
in upstairs bathroom was accessible to children in care and was not protected
to prevent children from falling down it.
c) Wading pool
was used by children in care, but there was only one completed permission form
on file.[2]
3. On November 10, 2005 the Department
documented the following licensing violations:
a) Providers
helpers and substitutes were not trained in the alcohol and drug policy.
b) The programs
grievance procedure had not been given to all of the parents of children in
care.[3]
4. On December 28, 2005 the Department
documented the following licensing violations:
a) Toy room to
the left of entry way was too cold.
b) There was no
documentation of any fire or storm drills run in November 2005 or December
2005.
c) No
address/premise identification visible and legible from street fronting
property.[4]
5. On March 23, 2006 the Department
documented the following licensing violations:
a) Three-year-old
child in care was bitten by the Appellant’s dog. Dog and child were not adequately separated
and supervised to prevent serious injury to child.
b) Appellant
took quarantined dog outside on a leash in front driveway while under school
age children were watching videos in the very back part of the house
unsupervised.
c) Appellant did
not notify Board of Health immediately of the dog bite to child in care.
d) Appellant did
not immediately notify licensor of serious injury to child.
e) Appellant did
not have any of the required forms on file for two children enrolled in care on
March 3, 2006.
f) Lack of
required gates, depending on where the children were located.[5]
6. On the basis of the correction orders
outlined at paragraphs 3-5 hereof, the Department issued an Order dated October
17, 2006, taking two negative actions against the Appellant’s license as
follows:
a) Order to
forfeit a $200.00 fine.
b) Order of
conditional license placing the Appellant’s license to provide family child
care services on a conditional status for two years.[6]
7. The terms of the conditional license
which allow the Appellant to continue to operate was issued subject to the
following stipulations:
a) The Appellant
must follow and comply with all applicable
b) No variances
to age distribution or capacity would be granted during the conditional period.
c) The Appellant
must obtain a minimum of six hours of additional training in the areas of
health and safety by January 31, 2007.
Said training is in addition to the required annual training, and such
additional training must be approved by the Otter Tail County Social Services
Department.
d) The Appellant
must either provide a copy of the Order of Conditional License to parents of
children in care or document that all parents have been given an opportunity to
review the Order of Conditional License.
Further, the Appellant must obtain parent signatures for each child
currently enrolled and provide that documentation to Otter Tail County
Department of Social Services by November 5, 2006.[7]
8. On December 12, 2007, the Otter Tail
County Human Services Department issued a recommendation to the Department
recommending the Appellant’s current conditional license be revoked.[8]
9. The recommendation for revocation
described at paragraph 8 hereof was made on the basis of the following
correction orders:
a) January 4,
2007, which outlined a sofa in the toy room that had holes in the fabric with
wires exposed.
b) February 1,
2007, reflected many long used trim boards, each with many long nails
protruding from them, which were leaning up against a wall in close proximity
to three children watching a video in the living room. The children were reported to be ages 2, 3
and 4 years. old.
c) November 15,
2007 relating the following:
1. The conditional license and correction
orders had not been posted;
2. Admission and arrangement forms for two
children in care were incomplete;
3. Required immunization form was not
completed for one child in care;
4. There was no documentation of fire or
storm drill being run for October 2007;
5. One full sized crib set up in the toy
room did not have any crib safety verification for October 2007;
6. There was no documentation that the
helpers and substitutes had training on the Appellant’s drug and alcohol use
policy;
7. There was no verification that all of the
parents had read the Order of Conditional License, as required;
8. Two adult children had moved into and out
of the licensed facility without providing notice to the Department.
10. On May 8, 2008, on the basis of the
violations outlined at paragraph 9 hereof the Department issued an Order of
Revocation revoking the Appellant’s license to provide family child care.[9]
11. The Appellant properly appealed the Order
of Revocation dated May 8, 2008.[10]
12. The Department provided notice of an Order
for Hearing and a contested hearing was held.
Based
upon these Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
OF LAW
1. The Commissioner
of Human Services and the Administrative Law Judge have jurisdiction in this
matter pursuant to Minn. Stat. §§ 14.50, 245A.07 and 245A.08.
2. The Department of Human Services gave
proper and timely notice of the hearing in this matter.
3. The Department has complied with all
relevant substantive and procedural requirements of law and rule.
4. The burden of proof requires that the
Department demonstrate “reasonable cause” for taking a negative licensing
action by submitting evidence to substantiate the allegations that the license
holder failed to comply fully with applicable laws or rules.[11]
5. The Commissioner has demonstrated
reasonable cause for revoking the Appellant’s license on the basis that the
Appellant has failed to fully comply with applicable rule and law[12]
6. Because the Department has demonstrated
reasonable cause, the burden of proof shifts to the Appellant to demonstrate by
a preponderance of the evidence that the Appellant was in full compliance with
the laws and rules which the Department alleges the Appellant violated.[13]
7. The Appellant has failed to sustain her
burden of proof by a preponderance of the evidence that she fully complied with
applicable laws and rules with respect to her license.[14]
8. These conclusions are reached for the
reasons set forth in the Memorandum below, which is incorporated by reference
into these conclusions.
Based
upon these conclusions and for the reasons explained in the accompanying
Memorandum, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED:
Based
upon these conclusions, the Administrative Law Judge RECOMMENDS to the Commissioner
of Human Services that the family child care license of Melissa Milligan be REVOKED.
Dated: August 27, 2008
s/Scott J. Newman
|
SCOTT
J. NEWMAN Administrative
Law Judge |
Reported: Digitally
recorded
NOTICES
This
report is a recommendation, not a final decision. The Commissioner of Human Services
(Commissioner) will make the final decision after a review of the record and
may adopt, reject or modify these Findings of Fact, Conclusions, and
Recommendation. Under Minn. Stat. §§
14.61 and 245A.07, subd. 2a(b), the parties adversely affected have ten (10)
calendar days to submit exceptions to this Report and request to present
argument to the Commissioner. The record
shall close at the end of the ten-day period for submission of exceptions. The Commissioner then has ten (10) working
days from the close of the record to issue his final decision. Parties should contact Cal Ludeman,
Commissioner of Human Services,
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.
MEMORANDUM
Prior to the issuance of the conditional license to
Ms. Milligan in October 2006, the Appellant had numerous serious safety
violations with respect to her daycare facility. Once the conditional license was issued to
the Appellant in October 2006, it was very clearly outlined to the Appellant
that she must comply with all applicable rules and laws. Despite the verbal warnings, letters and correction
orders, the Appellant failed to comply with the terms of her conditional
license.[15] Just as troubling are the habitual excuses
that the Appellant has lodged in an effort to deflect her responsibility for
complying with the laws and rules which govern her license.[16]
In
addition to the correction orders identified in the conclusions, the record
reveals two incident reports from the Pelican Rapids Police Department and one
citation all relating to allowing her dogs to run at large.[17] This is further evidence of the Appellant’s
habit of failing or refusing to comply with laws that govern her conduct.
It is
the conclusion of the undersigned that the Appellant’s regular response to
mandatory compliance with daycare license rules and statutes is to ignore them,
and if caught in a violation proffer excuses as to why she has not
complied. Minnesota Rules of Evidence
406 provides that habit can be relevant and that if the trial court determines
that a habit exists, the habit is “highly probative.”[18] In this case, the Department has proven the
Appellant did not fully comply with the applicable rules and laws in the State
of
The
Administrative Law Judge recommends that the Appellant’s license to provide
family daycare be revoked.
S. J. N.
[1] Ex. 3,
Testimony Shelly Bartels.
[2] Ex. 3.
[3] Ex. 3.
[4] Ex. 3.
[5] Ex. 3.
[6] Ex. 4.
[7] Ex. 4.
[8] Ex. 2.
[9] Ex. 1.
[10] Ex. 5.
[11]
[12] Exs. 1, 2, 3,
4 and test. of S. Bartels.
[13]
[14] Ex. 5 and testimony
of Melissa Milligan.
[15] Test. S.
Bartels and Exs. 2, 3 and 4.
[16] Ex.
Appellant, Exs. 4 and 5.
[17] Ex. 3.
[18]
Department of Employment Security
v. Minnesota Drug Products, Inc., 104 N.W.2d 540 (1960).