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OAH 4-1800-19866-2 |
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 License of Lora Palokangas |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Bruce H. Johnson (the ALJ) at 10:00 a.m. on Friday,
October 17, 2008, at the St. Louis County Public Health and Human Service
office at
STATEMENT OF ISSUES
1. Should the Commissioner impose fines totaling
$600 on the Licensee for failure to comply with statutes and rules governing her
family child care license?
2. Should the Commissioner also place the
operation of the Licensee’s family child care program under a conditional
license?
The evidence only
established that the Licensee and her daughter provided care to one or more
infant, without having first received required training on sudden infant death
syndrome and shaken baby syndrome (SIDS/SBS training). However, the evidence failed to establish
that her adult son provided care to an infant in care. The ALJ therefore concludes that imposing a $400
fine, in addition to a conditional license, is appropriate.
Based upon all of the proceedings herein,
the Administrative Law Judge makes the following:
FINDINGS OF FACT
Prior
Proceedings
1.
By letter dated May 22, 2008, the County requested
the Department to impose sanctions on the Licensee’s family child care license
and to place that license on conditional status because of alleged violations
of applicable statutes and rules that occurred on May 13, 2008.[1]
2.
On July 22, 2008, the Department issued an Order to
Forfeit Fine imposing a $600 fine on the Licensee’s license. That fine was based on three violations of
Minn. Stat. § 245A.50, subd. 5, which requires that licensees, caregivers, and helpers complete SIDS/SBS
training within five years before assisting in the care of infants.[2]
3.
The Department also issued an order placing the
Licensee’s family child care license on conditional status for a period of one
year. In addition to the violations set
forth in Finding No. 2, the Order of Conditional License was based on some
other program rule violations. That
Order imposed the following conditions on the Licensee’s license:
1. You follow and comply with all applicable
of (sic) Minnesota Rules and Laws.
2. No variances to age distribution or
capacity will be granted during the conditional period.
3. You, and any other individuals providing
care to infants in your family child care home, may not provide care to infants
until you have provided documentation to St. Louis County Public Health and
Human Services of you and your helpers’ completing the required SIDS/SBS
training. The documentation of
completion must be received and approved by St. Louis County Public Health and
Human Services.
4. You obtain a minimum of 10 hours of
additional training by December 31, 2008. The training is in addition to the annual
training requirements as listed in Minnesota Statutes Chapter 245A. A portion of this training must be in the
area of child development. Prior to
attending training, your must obtain approval from
5. You must submit daily attendance records
to St. Louis County Public Health and Human Services on a monthly basis. The records must be submitted by the 5th of
each month for the previous month beginning August 5, 2008. The record must show the name and date of
birth of each child, the days and hours they are in your care, in addition to
the names of caregivers present each day.
6. You must provide a copy of the Order of
Conditional License to parents of children in care or documents that all
parents have been given an opportunity to review the Order of Conditional
License. You must obtain parent
signatures for each currently enrolled child, verifying that they have either
received a copy of the conditional order or had an opportunity to review the
conditional order. You must provide this
documentation to St. Louis County Public Health and Human Services by August 8, 2008. For new families, you must submit
documentation of compliance with this term to St. Louis County Public Health
and Human Services within 5 days of any
child’s admission to your child care program.
St. Louis County Public Health and Human Services will monitor your
compliance with these terms and with all of Minnesota Rules and Laws. This may include unannounced visits. Failure to comply with the stipulations of
your conditional license or any other provisions of Minnesota Laws and Rules
may result in revocation of your license.
4.
On July 30, 2008, the Licensee submitted a timely
appeal of the Department’s Order to Forfeit Fine and Order of Conditional
License.[3]
5.
On August 7, 2008, the Department issued a Notice
of and Order for Hearing in this matter, and this contested case proceeding
ensued.[4]
6.
The ALJ conducted the hearing on October 17, 2008.
Underlying
Facts
7.
The Licensee has been licensed by the Department to
provide family child care at her home in
8.
The Licensee has two children. An adult son, Preston, is nineteen years old,
and during the school year is a full time student at a college in
9.
During late morning on May 13, 2008, County Licensing
Social Worker Helen Jamnick and Social Service Specialist Naomi Ranisate made
an unannounced, relicensing inspection of the Licensee’s child care home. At the time of their visit, the Licensee had
five children under two years of age under care, including two infants and
three toddlers.[7]
10.
As of May 13, 2008, the Licensee had not completed
SIDS/SBS training at least once during the previous five years; the
Licensee’s son and daughter had never completed that training.
11.
During the May 13th inspection, Ms. Jamnick heard
12.
During the inspection, Ms. Ranisate observed S.P.
on the floor playing with children in care when a child in a crib in a back
bedroom began to cry. S.P. then went to
the bedroom, picked up the crying child in care from its crib, and held and
comforted the child until the child stopped crying.[10]
13.
While Ms. Jamnick and Ms. Ranisate were at the
Licensee’s home on May 13th, they asked the Licensee how she
was able to provide care for so many small children. The Licensee replied, “My children are a big
help to me.”[11]
Other Findings
14.
The Licensee stipulated that on the morning of May
13, 2008, her family child care program was over capacity and in violation of
Minn. R. 9205.0365 and 9205.0367.[12]
15.
The Licensee did not dispute that on the morning of
May 13, 2008:
a. Her license
to provide family child care was not posted in a prominent place in her home;
b. She
failed to have documentation of completion of required training hours; and
c. She
failed to have a gate at the top of the basement stairs when children between 6
and 18 months were in care.
16.
The Licensee testified that she is not challenging
the Department’s issuance of a conditional license. As a consequence, she has, in effect, withdrawn
her appeal of the Department’s Order of Conditional License.[13]
17.
These Findings are based on all of the evidence in
the record. Citations to portions of the
record are not intended to be exclusive references.
18.
To the extent that the Memorandum that follows
explains the reasons for these Findings of Fact and contains additional findings
of fact, including findings on credibility, the Administrative Law Judge
incorporates them into these Findings.
19.
The Administrative Law Judge adopts as Findings any
Conclusions that are more appropriately described as Findings.
Based upon the
foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The Commissioner of Human Services and the Administrative
Law Judge have jurisdiction to consider this matter.[14]
2.
The Department gave proper and timely notice of the
hearing and has complied with all procedural requirements of law and rule.
3.
The Commissioner may impose a fine of $200 on a
license holder for each occurrence of a violation of law or rule governing
matters of health, safety, or supervision, $1,000 for each determination of
maltreatment, and $100 for each occurrence of a violation that is not subject
to a $200 or $1,000 fine.[15]
4.
When the Commissioner has ordered a license holder
to pay a fine, the license holder may, upon timely proper notice, appeal the
fine by requesting a contested case proceeding.
The Licensee in this matter made a timely and proper request for a
contested case proceeding to appeal the fine imposed by the Commissioner.
5.
If the Commissioner finds that the applicant or
license holder has failed to comply with an applicable law or rule and this
failure does not imminently endanger the health, safety, or rights of the
persons served by the program, the Commissioner may also issue an order of
conditional license to a licensee. When
issuing a conditional license, the Commissioner must 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 persons served by the program.[16] When the Commissioner issues a dual order of both
a fine and a conditional license, the scope of an ensuing contested case
hearing includes both the fine and the conditional license.[17]
6.
Before staff persons, caregivers, and helpers may
assist in the care of infants, License holders must document that they have
been instructed on the standards set forth in Minn.
Stat. § 245A.1435
and have receive SIDS/SBS training within the previous five years.[18]
7.
Violations of the statute requiring training on SIDS/SBS
are violations of laws governing matters of health, safety or supervision and are
therefore subject to a $200 fine for each occurrence.
8.
At a hearing appealing a fine, the burden of proof
is on the Commissioner to demonstrate reasonable cause for its action. The Commissioner may demonstrate reasonable
cause by submitting statements, reports or affidavits to substantiate the
allegations. If the Commissioner
demonstrates that reasonable cause existed, the burden of proof shifts to the
license holder to demonstrate by a preponderance of the evidence that the
license holder was in full compliance with those laws or rules that the
Commissioner alleges were violated.[19]
9.
The Department demonstrated that there was
reasonable cause for imposing $600 in fines on the Licensee based on three apparent
violations by the Licensee of Minn. Stat. § 245A.50, subd. 5, which
requires licensees to document that staff persons, caregivers, and helpers have
received SIDS/SBS training before assisting in the care of infants.
10.
On May 13, 2008, the Licensee and her daughter,
S.P., provided care to infants in care without having received SIDS/SBS training
during the previous five years. The
Licensee therefore failed to establish by a preponderance of evidence that she
was in full compliance with Minn. Stat. § 245A.50, subd. 5, in those two
respects.
11.
However, although the Licensee’s son,
12.
In determining appropriate sanctions, the
Commissioner must 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 persons served by the program.[20]
13.
The Department has demonstrated that it considered the
nature, chronicity and severity of the violations the Licensee committed on May
13, 2008, when it issued the Order of Conditional License.
14.
The Administrative Law Judge adopts as Conclusions
any Findings that are more appropriately described as Conclusions.
15.
The Memorandum that follows explains the reasons
for these Conclusions, and the Administrative Law Judge therefore incorporates
that Memorandum into these Conclusions.
Based
upon the foregoing Conclusions, and for the reasons set forth in the attached
memorandum, the Administrative Law Judge makes the following:
IT IS HEREBY
RECOMMENDED that the Department’s Order of Conditional License be AFFIRMED and
that its Order to Forfeit a Fine be MODIFIED to specify a fine of no more than
$400.
Dated: October
24, 2008
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s/Bruce H. Johnson |
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BRUCE H. JOHNSON |
|
Administrative Law Judge |
Reported: Digitally Recorded
NOTICES
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. 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
the office of Cal Ludeman, Commissioner, Department 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. In order to comply
with this statute, the Commissioner must then return the record to the
Administrative Law Judge within 10 working days to allow the Judge to determine
the negative licensing action, if any, to be imposed. 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.
Pursuant
to Minn. Stat. § 14.62, subd. 1 (2006), the Commissioner is required to serve
his final decision upon each party and the Administrative Law Judge by first
class mail.
MEMORANDUM
The Licensee
admitted to being overcapacity on May 13, 2008, and did not present evidence
disputing the allegations that she failed to post her license in a prominent
place, that she failed to document completion of required training hours, and
that she failed to have a gate at the top of her basement stairs while caring
for children between 6 and 18 months old.
Furthermore, Licensee also expressly admitted that she herself had not
received SIDS/SBS training during the previous five years. The Licensee further agreed that those were
all violations that supported imposition of a conditional license and a $200
fine.
The only dispute
here is whether on May 13, 2008, the Licensee’s son and daughter provided care
to an infant in care without having received SIDS/SBS training during the
previous five years. The Licensee argues
that what her son and daughter did on May 13th did not make them “caregivers”
or “helpers.” Neither term is defined in
Chapter 245A. However, both terms are
defined in Minn. R. 9205.0315. A
“caregiver” is defined as “the provider, substitute, helper, or another adult
giving care in the residence.”[21] As an adult, the Licensee’s son
The Licensee argues that, as members of her immediate family, her son and daughter occasionally have had impromptu social interactions with children in care, but that neither of them have assisted her in providing care to those children in any reasonable sense of the word “care.” In a case note for May 13, 2008, Ms. Jamnick indicated that the Licensee had said “they [her children] are a big help with the day care children,”[23] but at the hearing she testified that Licensee’s statement was somewhat more ambiguous — “My children are a big help in the program.” At the hearing, the Licensee testified that her children were “a big help to me.” At best, what the Licensee admitted to is an ambiguous statement. It could have meant that her children helped her care for children in care or that they helped with chores around the house, freeing their mother to provide child care. Moreover, a violation of Minn. Stat. § 245A.50, subd. 5, requires that a caregiver or helper assist in providing care to an infant without first receiving SIDS/SBS training. Even accepting Ms. Jamnick’s version of the statement as the correct version, it does not, by itself, support a finding that the Licensee’s own children assisted her with the care of infants.
Both Ms.
Jamnick and Ms. Ranisate testified that on May 13, 2008, they had observed
In view of the foregoing, the ALJ concludes that Preston Palokangas did not assist his mother in providing care to children in care on May 13, 2008, but that his sister, S.P., did without first having received SIDS/SBS training. The ALJ therefore recommends that the Commissioner reduce the fine imposed on the Licensee’s license to no more than $400.
B. H. J.
[1] Ex. 2.
[2] Ex. 3.
[3] Ex. 4.
[4] Ex. 6.
[5] Ex. 5.
[6] Testimony (test.) of Lora Palokangas.
[7] Ex. 1; test. of Helen Jamnick.
[8]
[9] Test. of Naomi Ranisate,
[10]
[11] Test. of L. Palokangas.
[12] Test. of L. Palokangas.
[13] Test. of L. Palokangas.
[14] Minn. Stat. §§ 245A.07, subds. 1 and 3; 14.50.
[15]
[16] Minn. Stat. § 245A.06, subd. 1.
[17]
[18]
[19] Minn. Stat. § 245A.08, subd. 3.
[20]
[21]
[22]
[23] Ex. 1.