OAH 7-1800-19733-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN SERVICES

In the Matter of the Revocation of the Family Child Care License of Heather Gladieux

FINDINGS OF FACT,

CONCLUSIONS AND RECOMMENDATION

This matter was heard by Administrative Law Judge (ALJ) Richard C. Luis on August 6, 2008 at the Wright County Human Services Building in Buffalo.

Anne L. Mohaupt, Assistant Wright County Attorney, appeared on behalf of the Minnesota Department of Human Services (Department) and the Wright County Human Services Department (Local Agency). Heather Gladieux (Licensee), appeared on her own behalf. The evidentiary record closed at the conclusion of the hearing on August 6.

STATEMENT OF ISSUE

Whether it is appropriate to revoke the Family Child Care License of Heather Gladieux for chronic, serious violations of the statutes and rules applicable to her licensure, particularly for failure to adhere to the terms of the Order of Conditional Licensure issued on May 17, 2007?

Based on the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. On May 17, 2007, the Department of Human Services issued a family day care license to Heather Gladieux, and placed that license on a conditional status for a period of one year. Ms. Gladieux had previously been licensed in Hennepin County, and had applied for a child care license in Sherburne County after moving from Hennepin County. Before any action could be taken on the Sherburne County application, Ms. Gladieux moved to Wright County and reapplied.[1]

2. According to the terms of the Conditional License granted to Ms. Gladieux on May 17, 2007, she was to:

(1) Follow and comply with all applicable Minnesota Rules and Laws;

(2) No variances will be granted to age distribution or capacity requirements;

(3) Obtain a minimum of six hours of additional training by September 28, 2007;

(4) Submit a daily attendance record to Wright County Human Services on a monthly basis, which record must be submitted by the fifth of each month;

(5) Submit a written parent policy to Wright County, and

(6) 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.

3. Additional conditions imposed on the License issued May 17, 2007, include that Ms Gladieux must also obtain parents’ signatures for currently enrolled children, verifying the parents have either received a copy of the Conditional Order or had an opportunity to review the Order. Deadlines were imposed for compliance, by June 15, 2007 for providing a copy to all existing parents and of five days after any new child’s admission to the program.[2]

4. On February 22, 2008, Licensing Investigator Lisa Gertken of the Wright County Human Services agency wrote to the Commissioner of Human Services, recommending that the Licensee be fined $200.00 for missing the training requirement of her Conditional License. Ms. Gertken’s correspondence also requested that the family day care license of Ms. Gladieux be placed on conditional status for an extended one-year period, beyond May 17, 2008.[3]

5. Since the Conditional License was issued, the Licensee has been cited with a number of Correction Orders for various violations of day care rules and statutes. The Citations/violations include:

· On August 16, 2007, following a site visit on August 10, 2007, Ms. Gladieux was issued a Correction Order for not having posted her Conditional License (in violation of Minn. Stat. § 245A.06, subd. 8 and Minn. Rule 9502.0335, Subp. 10), for not providing the day care children with outdoor activities (in violation of Minn. Rule 9502.0415, Subp. 1B), for not using an approved disinfectant (in violation of Minn. Rule 9502.0435, Subp. 13D), for not having child-proof gates in place at the time of the home visit (in violation of Minn. Rule 9502.0425, Subp. 10), for missing outlet covers (in violation of Minn. Rule 9502.0425, Subp. 18A), and for having knives and scissors accessible to children in the kitchen area (in violation of Minn. Rule 9502.0435, Subp. 6).

· On September 28, 2007, following a site visit on September 26, Ms. Gladieux was cited for missing soap from the first aid kit, in violation of Minn. Rule 9502.0435, Subp. 7 and for having tap water that reached a temperature of 130 degrees, in violation of Minn. Rule 9502.0435, Subp. 15A.

· On December 14, 2007, Ms. Gladieux was cited for deficiencies during a home visit on December 12. These included choking hazards on the upper level bedroom floor, in violation of Minn. Rule 9502.0435, Subp. 6, and combustible items being located within 36 inches of the furnace, in violation of Minn. Rule 9502.0425, Subp. 7C.

6. Regarding the Correction Orders issued on August 16, 2007, September 28, 2007, and December 14, 2007, Ms. Gladieux either did not respond or did not provide any evidence of making the appropriate corrections.

7. Subsequent to the issuance of the County’s recommendation for extending the Conditional License period of Ms. Gladieux for another year, another site visit to her day care facility occurred on February 27, 2008. A Correction Order was issued the same day for violation of Minnesota Rules pertaining to family child care, specifically for violating Minn. Rule 9502.0435, Subp. 11 (children were napping on the floor without any bedding), Minn. Rule 9502.0315, Subp. 29a (children were napping on the upper level of the house without the use of a monitor, while the Licensee was on the main level of the house, violating the rule defining appropriate supervision), Minn. Rule 9502.0425, Subp. 18A (outlet covers were missing), Minn. Rule 9502.0435, Subp. 13A (clean diapers were accessible to children in the lower level playroom, whereas the rule mandates that clean diapers must be inaccessible to them), and Minn. Rule 9502.0435, Subp. 15A (water temperature was at 130 degrees Fahrenheit which exceeded the maximum allowed level of 120 degrees Fahrenheit in the sinks and tubs accessible to children).

Ms. Gladieux did not contest the Correction Order issued on February 27, 2008, nor did she contest any of the Correction Orders issued since the issuance of her original Conditional license.[4] She did undertake corrective action to address the deficiencies cited, but admits that she was out of compliance at the time of the various site visits.[5]

8. On April 4, 2008, following a site visit that day, Wright County issued a Correction Order to Ms. Gladieux for violations involving baby cribs, immunizations, bathroom locks, inadequate fencing, lack of separate towels for the daycare children, and her fire extinguisher.[6] This Correction Order was not cited in the Order of Revocation under appeal.

9. On May 6, 2008, the Department of Human Services issued an Order of Revocation against the Family Child Care License of Heather Gladieux. With the exception of the Correction Order issued on April 4, 2008, the Order cited the violations embodied in the Correction Orders outlined above, all of which were issued after Ms. Gladieux was granted her Conditional Licensure. In addition, the Order notes that Ms. Gladieux had failed to provide documentation to Wright County that she renewed her training on reducing the risk of sudden infant death syndrome/shaken baby syndrome, which she had completed previously in November 2002. This training was to have been renewed in November 2007, and Ms. Gladieux had not done so.

10. The Revocation Order also noted:

“Due to the serious and chronic nature of the violations, because you did not comply with the terms of the Order of Conditional License issued May 17, 2007, and in order to protect the health, safety and rights of children receiving services and programs licensed by DHS, your license to provide family child care is revoked.”[7]

11. The Licensee filed a written letter of appeal to the Order of Revocation on May 12, 2008. This hearing process followed.

12. Much of the Licensee’s testimony at the Hearing involved contesting/challenging alleged violations of law and rule that occurred prior to the issuance of a Conditional License on May 17, 2007. The Order of Conditional Licensure provided, by its terms, a right to request reconsideration. Ms. Gladieux never requested any reconsideration of the conditional licensure issued on May 17, 2007, so any testimony regarding the violations noted in the Order of Conditional Licensure is immaterial.[8]

13. Regarding the statutory and rule violations embodied in the Correction Orders issued against the Licensee subsequent to issuance of the Order of Conditional License, and as detailed above, the Licensee admits that she “probably screwed up” on her conditional license because she was busy, and not able to attend to all of the details involved with compliance. She alleges that she did not know she could “appeal” correction orders.[9] In that connection, each of the Correction Orders issued to the Licensee after May 17, 2007, contain a provision at the end, which reads:

“If you believe the contents of the Correction Order to be in error, you may ask the Commissioner of the Department of Human Services to reconsider parts of the Correction Order that you believe to be in error. The request for reconsideration must be in writing and received by the Commissioner within 20 calendar days after receipt of this Correction Order. A request for reconsideration of a Correction Order does not stay any of the provisions of the Correction Order…”[10]

In each instance, Ms. Gladieux failed to request reconsideration of the Correction Orders that were issued against her license.

14. Ms. Gladieux alleges that she now has corrected all of the previous violations, and that the issues which prevented her from compliance after issuance of the Order of Conditional Licensure have been resolved – her divorce is now finalized, her children’s performance in school has improved, and her father’s attack of bladder cancer has been cleared up.[11]

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 in this matter pursuant to Minn. Stat. §§ 14.50 and 245A.07.

2. The Notice of Hearing issued by the Department was proper, and all procedural requirements have been fulfilled.

3. The Department and the Local Agency have proven reasonable cause to believe that facts exist to justify revocation of the family child care license issued to Heather Gladieux.

4. The Licensee, Heather Gladieux, has failed to establish by a preponderance of the evidence that she has complied with all applicable statutes and rules, specifically with the statutes and rules for which reasonable cause for noncompliance has been established.

5. It is appropriate for the Commissioner of Human Services to revoke the family child care license issued to Heather Gladieux.

Based on the Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS RECOMMENDED that the Conditional Family Child Care License issued to Heather Gladieux on May 17, 2007 be REVOKED.

Dated: September _4th_, 2008.

/s/ Richard C. Luis

RICHARD C. LUIS

Administrative Law Judge

Reported: Digitally Recorded

NOTICE

This report is a recommendation, not a final decision. The Commissioner of the Department 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 Cal Ludeman, Commissioner, Minnesota Department of Human Services, P.O. Box 64998, St. Paul, MN 55164-0998 to learn the procedure for filing exceptions or presenting argument.

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.

MEMORANDUM

Since the Conditional License to operate family child care in Wright County was issued, the Licensee’s performance has been out of compliance consistently with the statutes and rules that apply to family child care. The Licensee has admitted that such is the case.

The Licensee alleges that she has now come into compliance with all applicable statutes and rules governing her license, and that she should be given the opportunity to proceed from this point. There is no evidence to corroborate her allegations that she is now in compliance with all applicable statutes and rules.

The Licensee’s allegations, when weighed against her admissions that she was out of compliance each time site visits were held that led to the Correction Orders issued since she had been licensed, failed to overcome by a preponderance of the evidence the adverse implication of the facts to which she has admitted. Those facts establish that she is out compliance, and it is appropriate that the Order of Revocation issued on May 6, 2008 be upheld.

Ms. Gladieux noted also that one of the Wright County officials “had it in” for her. This allegation was stated, but not proven beyond that, and the ALJ has given it no further consideration. In light of the Licensee’s admissions to the deficiencies cited in the Correction Orders issued after May 2007, the allegation of possible personal bias is immaterial.

R.C.L.