OAH-43-1800-19876-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN SERVICES
|
In the Matter of the
Revocation of the Family Child Care License of Arlene Yaeger |
FINDINGS
OF FACT, CONCLUSIONS AND RECOMMENDATION |
The above matter came on for hearing
before Administrative Law Judge
Gayle Borchert, Assistant Stearns
County Attorney appeared on behalf of the Department of Human Services. Arlene Yaeger (Licensee) appeared without
counsel.
STATEMENT OF THE ISSUE
Whether the Commissioner of Human Services should
revoke the Family Child Care License of Arlene Yaeger?
Based on the evidence in the hearing
record, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. At
all times material herein, Arlene Yaeger was licensed to provide family child
care services.[1]
2. At
all times material herein, Susan Welle was employed by Stearns County Human
Services as a licensor and as such, responsible for monitoring the legal
compliance of family daycare licensees.[2]
3. The
Appellant, as a licensed daycare provider, conducts her daycare business at her
private home and at all times relevant was the only adult present at the
daycare facility.[3]
4. The
Licensee’s family child care license was due to expire on January 8, 2008.[4]
5. Because
the Licensee’s license was scheduled to expire in January 2008, Susan Welle
made a scheduled relicensing visit with the Licensee at her daycare facility on
December 14, 2007. The purpose of the
relicensing visit was to review the daycare facility records and address any
potential safety issues with the Licensee prior to being relicensed.[5]
6. At
the December 14, 2007 relicensing visit, Susan Welle noted the following
violations:
a. Admission and arrangement forms were not
completed for two children in the Licensee’s care.
b. Immunization records for one child in the
Licensee’s care were not up to date.
c. Licensee’s training for SIDS/Shaking Baby
Syndrome Training was not up to date.
d. Licensee’s CPR training was not up to
date.
e. Licensee’s ongoing training requirements
were not up to date.
f. Safety Inspection Sheet for individual
crib devices located at the Licensee’s facility was not up to date.
g. Toddlers or preschoolers were not
provided with approved sleeping equipment at the Licensee’s facility.
h. An approved smoke detector was not
installed in the main floor hallway of the Licensee’s facility.
i. Electrical outlets within reach of
children were not shielded or tamper proof.
j. Licensee used a bleach/water solution
for disinfecting the diapering surface that was not approved.[6]
7. On
December 14, 2007, a Correction Order was issued outlining the violations
itemized at Paragraph 6. The Correction
Order instructed the Licensee that evidence of correction of the violations
cited in the Correction Order must be submitted to Susan Welle by December 31,
2007.[7] The Correction Order further instructs the
Licensee to sign and date the Correction Order and return it to the Licensor
thereby certifying that the corrections have been made.[8]
8. On
January 9, 2008, the Licensee submitted to Stearns County Human Services an
unsigned copy of the Correction Order indicating a portion of the violations
had been corrected.[9]
9. On
January 28, 2008, Susan Welle made an unannounced visit to the Licensee’s
daycare facility for the purpose of determining compliance with the December
14, 2007 Correction Order[10]
10. As
a result of the unscheduled visit of January 28, 2008, Susan Welle issued a
Correction Order dated January 29, 2008, outlining the following ratio/capacity
limits violations:
a. The Licensee had a total of 13 children
in daycare in violation of the license 12 children maximum limit.
b. The Licensee had three children in
daycare under the age of two in violation of the license maximum of two children
under the age of two.[11]
11. On
February 5, 2008, Stearns County Human Services recommended to the Commissioner
that the Licensee’s daycare license be made conditional and a fine imposed on
the basis of violations noted in the December 14, 2007 Correction Order.[12]
12. The
January 29, 2008 Correction Order indicated a deadline of February 4,
2008, in which the Licensee was to submit evidence of correction.[13]
13. Licensee
did not submit evidence of correction of the January 29, 2008 Correction Order.[14]
14. Genni
Hadley is a food program representative who has dealt with the Licensee for a
number of years.[15]
15. On
February 6, 2008 Genni Hadley made an unannounced visit to the Licensee’s
daycare facility for the purpose of monitoring reimbursement for the food
program.[16]
16. Immediately
following the February 6, 2008 unannounced visit, Genni Hadley reported to
Stearns County Human Services that the Licensee had a minimum of 14 children at
her daycare facility with at least four being in the infant/toddler age group.[17]
17. On
or about February 8, 2008, Stearns County Department of Human Services notified
the Licensee of its recommendation to the Commissioner of the Minnesota
Department of Human Services that the Licensee’s license be revoked because of
additional and continued violations by the Licensee.[18]
18. Stearns
County Department of Human Services changed its recommendation to the
Commissioner from a recommendation for a conditional license and fine to a
revocation of the Licensee’s license because the Licensee failed to correct the
December 14, 2007 violations in a timely manner (Ex. 46); had additional
violations which the Licensee failed to correct in a timely manner (Ex. 39);
and continued to operate her daycare facility in an overcapacity/over ratio
manner.[19]
19. The
Licensee completed the necessary corrections of the December 14, 2007
Correction Order by April 1, 2008.[20]
20. On
May 12, 2008 Susan Welle conducted an unannounced visit to the Licensee’s
daycare facility. On that date, it was
determined the Licensee had a total of 13 children in her daycare facility of
which one child was a toddler and two children were infants. At that time, Susan Welle issued a Correction
Order to the Licensee which indicated that the Licensee was over limit by one child
and over ratio by two toddler/infants.[21]
21. At
the May 12, 2008 unannounced visit, Susan Welle requested that the Licensee
contact a sufficient number of parents to come to the daycare facility for the
purpose of picking up their children thereby bringing the daycare facility into
compliance on the over ratio/capacity violation. At that time, the Licensee refused, stating
that “she would do no such thing.”
Consequently, Susan Welle contacted some parents for the purpose of
requesting that they come to the daycare facility and pick up their
children. The purpose of this request by
Susan Welle was to bring the Licensee into compliance with the ratio/capacity
limits.[22]
22. The
Correction Order dated May 13, 2008 requires the Licensee to certify correction
of the violations by May 19, 2008. At no
time has the Licensee complied with this requirement.[23]
23. On
or about May 13, 2008, Stearns County Department of Human Services notified the
Minnesota Department of Human Services of the facts surrounding the May 12,
2008, unannounced visit to the Licensee’s daycare facility, reiterating its
recommendation that the Licensee’s license be revoked because “Ms. Yaeger
continues to disregard the licensing rules and is quite blatant in this
disregard.”[24]
24. The
Department offered into evidence documents regarding numerous past Correction
Orders, complaints and assessments regarding the Licensee, dating back to 1980,
which were received without objection.[25]
25. On
the basis of the information provided to the Minnesota Department of Human
Services by
26. The
Licensee timely requested a hearing on the revocation order.
Based on the Findings of Fact, the
Administrative Law Judge makes the following:
CONCLUSIONS
1. The
Commissioner and the Administrative Law Judge have jurisdiction in this matter
pursuant to Minn. Stat. §§ 14.50 and 245A.07, subds. 2 and 2a.
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
Commissioner is authorized to revoke the license of a license holder who does
not comply with applicable law or rule.[27]
5. The
Commissioner shall 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 person served by the program in determining whether to revoke a license.[28]
6. At
a hearing regarding a licensing sanction, the Commissioner has the burden of
proof to demonstrate that reasonable cause existed for the adverse action taken
against the family child care license.
When such a showing is made, the burden of proof shifts to the Licensee
to demonstrate by a preponderance of the evidence that the Licensee is in full
compliance with the laws and rules that the Commissioner alleges were violated.[29]
7. Evidence
of past violations, complaints and assessments regarding the Licensee which
dated back over 25 years were excluded from consideration of this matter on the
basis that the probative value of such evidence was substantially outweighed by
the danger of unfair prejudice, confusion of the issues, were misleading and so
remote in time they were not relevant.[30]
8. That
at all times material, the Licensee’s licensed capacity, child/adult ratio, age
distribution restrictions were as follows:
a total of 12 children of which 10 could be under school age and of the
total children under school age, no more than two shall be infants and
toddlers. Of this total, no more than one
shall be an infant.[31]
9. Minnesota
Statutes require all licensed childcare providers to maintain documentation for
every crib that is used in the daycare.[32]
10. Minnesota
Statutes require all licensed child care providers to be trained in cardio
pulmonary resuscitation (CPR), sudden infant death syndrome (SIDS) and shaken
baby syndrome (SBS)[33]
11. Minnesota
Rules require all licensed child care providers must have admissions and arrangement
forms and immunization records for all children in care.[34]
12. Minnesota
Rules require all daycare providers have properly installed smoke detectors on
all levels of the daycare facility and that all electrical receptacles
accessible to children be shielded when not in use.[35]
13. Minnesota
Rules require all daycare providers must use an approved disinfectant in the
diaper changing area.[36]
14. If
the Commissioner determines that the licensed holder has not corrected
violations as specified in a Correction Order, the Commissioner may revoke the
license.[37]
15. The
Licensee failed to correct the violations outlined in Exhibit 2 in a timely
fashion.[38]
16. The
Licensee was in violation of the child/adult ratio’s; age distribution
restrictions on January 28, 2008, and failed to correct the violations outlined
in the Correction Order dated January 29, 2008[39]
17. The
Licensee was in violation of the child/adult ratios; age distribution
restrictions on February 6, 2008.[40]
18. Licensee
was in violation of child/adult ratios, age distribution restrictions on May
12, 2008, and failed to correct the violations outlined in the Correction Order
dated May 13, 2008.[41]
19. On
January 28, February 6, and May 12, 2008, the Licensee gave false or misleading
information during the investigation of her compliance with applicable laws or
rules.[42]
20. The
Licensee has chronically failed and refused to comply with the laws and rules
which govern her license and that such violations severely affect the health,
safety and rights of the persons served by her daycare facility.
21. These
Conclusions are reached for the reasons set forth in the Memorandum below,
which is herby incorporated by reference into these Conclusions.
22. The
Administrative Law Judge adopts as Conclusions any Findings that are more
appropriately described as Conclusions, and as Findings any Conclusions that
are more appropriately described as Findings.
Based upon these Conclusions, and for
the reasons explained in the accompanying Memorandum, the Administrative Law
Judge makes the following:
RECOMMENDATION
The Administrative Law Judge
recommends to the Commissioner of Human Services that:
The order of revocation of the family
daycare license of Licensee be affirmed.
Dated: January 9, 2009
s/Scott J. Newman
|
SCOTT
J. NEWMAN Administrative
Law Judge |
Reported: Digitally Recorded
NOTICE
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
The Licensee’s license was due to
expire in January 2008. In December 2007,
the Department began the process of reviewing the records of this daycare
provider for the purpose of reissuing a current license. In the review process, the Department found
10 violations and issued an appropriate Correction Order.[43] The Licensee admitted that she did not like
paperwork,[44]
and the Licensee was very reluctant to comply with the Correction Order[45]
as evidenced by the fact that she was three and one-half months late in
completing the corrections required by the Correction Order (Ex. 2).[46] During this same three and one-half months
time period, the evidence shows the Licensee was in violation of the
ratio/capacity limits of her license on January 28 and February 6, 2008. Finally, in the following month she was again
in violation of the ratio/capacity limits of her license on May 12, 2008.
Given the Licensees confrontational
attitude,[47]
her reluctance or refusal to comply with Correction Orders issued on December
14, 2007,[48]
January 29, 2008[49]
and May 13, 2008,[50]
the undersigned believes that the Licensee has intentionally failed and refused
to comply with the laws and rules which govern her daycare license. The Commissioner is charged with the
responsibility of monitoring compliance of daycare providers because the State
of
S. J. N.
[1] Testimony
Susan Welle and Ex. 1.
[2] Test. of S.
Welle.
[3] Test. of S. Welle and Arlene Yaeger.
[4] Test. S.
Welle and Ex. 1.
[5] Test. S.
Welle.
[6] Test. S.
Welle and Ex. 2.
[7] Test. S.
Welle and Ex. 2.
[8] Ex. 2.
[9] Test. S.
Welle and Ex. 46.
[10] Test. S.
Welle and Ex. 2.
[11] Test. S.
Welle and Ex. 39.
[12] Test. Paul
Weinmann, Ex.’s 2 and 45.
[13] Ex. 39.
[14] Test. S.
Welle.
[15] Test. S.
Welle and A. Yaeger.
[16] Test. S.
Welle and A. Yaeger.
[17] Test. S.
Welle and Ex.’s 40 and 41.
[18] Test. S.
Welle, P. Weinmann and Ex.’s 38 and 42.
[19] Test. S.
Welle, P. Weinmann and Ex.’s 3, 46, 39, 41, 42 and 38.
[20] Test. S.
Welle.
[21] Test. S.
Welle and Ex. 43.
[22] Test. S.
Welle and Ex. 43.
[23] Test. S.
Welle and Ex. 43.
[24] Test. P.
Weinmann and Ex. 43.
[25] Ex. 7-34.
[26] Ex. 44.
[27]
[28]
[29]
[30] Ex. 7-34;
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38] Test. S.
Welle, P. Weinmann and Ex. 46.
[39] Test. S.
Welle, P. Weinmann and Ex. 39.
[40] Test. S.
Welle and Ex. 41.
[41] Test. S.
Welle and P. Weinmann and Ex. 43.
[42]
[43] Ex. 2.
[44] Test. A.
Yaeger.
[45] Ex. 2.
[46] Test. S. Welle.
[47] Test. S. Welle and Ex. 43
[48] Ex. 2,
[49] Ex. 39
[50] Ex. 43 and Test. S. Welle,
[51] Ex. 45
[52] Ex. 39 and 43.