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OAH 12-1800-19911-2 |
STATE OF MINNESOTA
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 Cynthia Rootham |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before Administrative Law Judge Steve M. Mihalchick at 10:00 a.m. on Friday, October 30, 2008, at the Clay County Attorney's Office, 807 N. 11th St., Moorhead Minnesota. Michelle Winkis, Chief Assistant Clay County Attorney, appeared on behalf of the Clay County Social Services (County) and the Minnesota Department of Human Services (Department). The Licensee, Cynthia Rootham, appeared on her own behalf. She is commonly known as Cindy. The Office of Administrative Hearings hearing record closed when the hearing ended on October 30, 2008.
1. Did Licensee's then 19 and 16-year-old daughters live or work in the daycare home and were they "household members" or other persons for whom background studies were required? If so, should two fines of $200 be imposed for failure to submit background study consent forms for the daughters?
The Administrative Law Judge concludes that the 16-year-old neither lived nor worked in the daycare home and no background study was required for her. The 19-year-old did not live there but was employed there and did require a background study. One $200 fine may be imposed for that violation.
2. Did the 19-year-old daughter act as a "helper" providing care for infants in the daycare, and, if so, was she required to obtain SIDS and Shaken Baby Syndrome training? If so, should a fine of $200 be imposed for failure to obtain such training?
The Administrative Law Judge concludes that the 19-year-old was not a helper or any other person caring for infants in the daycare, and, thus, she was not required to obtain such training. Since there was no violation, no fine should be imposed.
3. Should the Licensee’s family child care license be made conditional?
The Administrative Law Judge concludes that the license should be made conditional because of the Licensee’s several failures to comply with orders and other directives from the License Worker, apparent lack of understanding of the daycare laws and rules, and substantiated past violations.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
1.
The Licensee has been providing family child
care for about 15 years, much of which was in
2.
The Licensee maintains two homes. The first is at 1368 Starr Ave, West Fargo,
ND 58078. She has owned that home since
before her marriage to Robert Rootham in 2005. The second, which has been owned by her
husband since before their marriage, is at
3. The Licensee has two daughters, Tabitha Ness, born August 1, 1988, and Chelsea Ness, born October 8, 1991. When the Licensee married Robert Rootham, she and her daughters moved into his Moorhead home. He has two children of his own, born in 1996 and 1997, who live there as well.
4. In about May of 2005, the Licensee applied for a child care license in Clay County for the Moorhead home. On July 21, 2005, Clay County Social Services completed background studies on the Licensee, her husband, and her two daughters. The County found that none of them were disqualified from providing direct contact services in the Licensee’s daycare.[2]
5.
The Licensee's daughters did not want to attend
school in Moorhead or live in the Moorhead house. They preferred to continue attending school
in West Fargo. The Licensee agreed to their
request and, in August 2005, the daughters moved back to the
6.
While they have not lived there since August
2005, Licensee's daughters occasionally visit the
7. No background checks were conducted on Licensee's daughters in 2006. The Licensee did not list them that year as persons living or working in the dwelling.[5]
8. On March 13, 2007, Kathleen Cardinal, who was the Licensee's License Worker at the time, happened to see the Licensee at the courthouse. She spoke with her and asked who was watching the daycare children. The Licensee told Ms. Cardinal that her mother, Gwen Korup, was watching the children.[6]
9. Ms. Cardinal, knowing that the Licensee's mother was not listed as a substitute for the Licensee, promptly went to the Moorhead home to investigate. There she found the Licensee's mother providing care for the daycare children. There were no infants in care at the time, although two were listed as enrolled. Ms. Cardinal asked the Licensee's mother how often she substituted for the Licensee, and was told that “it was only a few times.” [7]
10. Ms. Cardinal then spoke with the Licensee. She gave the Licensee a Correction Order that she had handwritten for "No BCA on sub Gwen Korup" in violation of "MN Stat 245A.04."[8] Later that day, she also sent the Licensee a letter later that day that stated:
This letter is a follow up to our conversation today. Your mother Gwen Korup may sub for you up to 30 hours in a year without training, if you don't have any infants in care. If you have infants she must first get SIDS and Shaken Baby training. If she subs more than 30 hours a year she must also have CPR & 1st Aid. You need to send me verification when your mom subs for you. I will need the dates and times in writing.
If you do not follow these regulations we will be requesting a negative action and fine from the Department of Human Services. There is a $200 fine for using a sub without a background check and another $200 fine for using a sub without training. If you have any questions please call me at 299-7128. The correction order that was issued to you today must be posted in a place that is conspicuous to the people receiving services and all visitors to your daycare for two years.[9]
11. The Licensee had her mother fill out a background check form, which she delivered to Ms. Cardinal on March 14, 2007, along with the Correction Order on which she stated that she had corrected the violation by obtaining and submitting the signed background check form.[10] The County completed the background check on the Licensee's mother and on March 29, 2007, notified the Licensee that her license had been changed to include her mother as a substitute.[11]
12. No background checks were conducted on Licensee's daughters in 2007. Again, their names did not appear on any paperwork submitted by the Licensee.[12]
13. Tabitha, then 19 years old, worked in the daycare during the first two or three months of 2008. During that time, she helped in the daycare on a few occasions by going to the Moorhead home, preparing lunch for the Licensee and the daycare children, washing the lunch dishes, and cleaning up. While Tabitha did that, the Licensee cared for the daycare children. Tabitha never provided care to any infant at the daycare.[13] However, she was in the daycare working around and near any infants who were present and may have had direct contact with them.
14. There were two daycare children enrolled in April and May, 2008, who may have been infants during the period that Tabitha worked there. One was born on February 3, 2007, and the other was born on April 24, 2007.[14]
15. On April 2, 2008, the Licensee completed the information form for her annual license renewal. The County received the form on April 3, 2008. This was an "off year" renewal that did not require a full inspection of the facility. On the form, the Licensee listed her daughters and her husband and his two children in response to the question, "List all children and adults living/working in the dwelling." This was a mistaken response by the Licensee who thought it was asking for all family members. The Licensee checked "Yes" in response to the question, "Does anyone work with you in your daycare?" She listed Tabitha as that person. Tabitha had been working at the daycare since earlier in the year, but, by that date had found other employment and her work at the daycare had ended or was about to end. The Licensee listed her mother in the appropriate space on the form as her emergency substitute.[15]
16. Karen Hellem, who had become the License Worker for the Licensee, reviewed the form. She considered the Licensee's daughters as two new names because she had not seen them on previous paperwork. She called the Licensee for more information about the "new household members." The Licensee told Ms. Hellem that they were her daughters and, according to Ms. Hellem's case notes, "they spend time there and at a home in West Fargo." She also told her that Tabitha had been working in the daycare since January 1, 2008. Ms. Hellem then informed the Licensee that she had not received any background check forms for either daughter. In Ms. Hellem's view, the Licensee's story then changed because, as Ms. Hellem noted at the time, "She then stated that [they’re] not really living there or working there."[16]
17.
The family's living arrangements are unusual and
the Licensee's information form had listed her daughters as
"living/working in the dwelling" and Tabitha as working there. Ms. Hellem’s belief that the Licensee was
lying to some degree was understandable.
However, the Licensee's statements to Ms. Hellem were true. Her daughters did spend time in the
18. On April 3, 2008, Ms. Hellem issued a Correction Order to the Licensee. It cited a violation of Minn. Stat. § 245C.03, subd. 1.[18] It described the violation as:
rec'd paper-no background checks submitted for Tabitha & Chelsea-both over the age of 13 yrs old.
It also cited Minn. Stat. § 245A.50, subd. 5, for the following violation:
Tabitha used as a helper does not have required SIDS/Shaken baby training or shaken baby video.
The Correction Order required that both violations be corrected immediately.[19]
19. The Licensee did not immediately respond to the Correction Order and did not submit any completed background check forms for her daughters. According to her contemporaneous case notes, Ms. Hellem attempted to call the Licensee about the forms on April 17, 2008. She left a phone message that was not returned. On May 13, 2008, she "attempted home visit" in the early afternoon, but "no one answered."[20]
20. On May 29, 2008, Ms. Hellem completed something called a "review home visit." The Licensee was there and Ms. Hellem told her that she had not yet received the background check forms for Chelsea or Tabitha. The Licensee responded that she thought that Ms. Hellem was to submit the forms and did not know that her daughters were to complete the forms and send them to Ms. Hellem, who would then submit them to law enforcement. Ms. Hellem issued another Correction Order.[21]
21. The May 29, 2008, Correction Order cited the same two violations: no background check for Chelsea or Tabitha in violation of Minn. Stat. § 245C.03, subd. 1, and Tabitha being used as a helper without the required SIDS/Shaken Baby training in violation of Minn. Stat. § 245A.50, subd. 5.[22]
22. On June 24, 2008, the Licensee sent in her response to the April 3, 2008, Correction Order. She stated that she had sent in the background checks for her daughters on June 8, 2008. She also stated that the training violation had been corrected on February 7, 2008, as follows:
Tabitha got a job & no longer works with me and she did watch shaken baby video. She only prepared lunch for us and she only did that for approx. 4 days. I was requiring her to get all of her requirements done b/4 she could come as my helper.[23]
23. On June 25, 2008, Ms. Hellem wrote to the Department of Human Services stating that the County was recommending that the Licensee be fined and her license made conditional for one year.[24] The recommendation was based on the following violations: "MN Statute 245C.03 Subp 1 no BCA and 245A.50 helper did not have SIDS and Shaken Baby training and infant was in care." The letter went on to state, in relevant part:
On 4-3-08 Cynthia's review packet was received by Clay County Social Services. Tabitha and Chelsea Ness were listed as household members. Tabitha's DOB 8-1-88 and Chelsea's DOB 10-8-91. I call Cindy to inquire about these household members. She stated that they were her daughters and that they stayed there. She also stated that Tabitha was helping her in her child care program. I stated that I have not received any background checks for them. She quickly said that they did not live there. I also stated that I did not have any verification of SIDS and Shaken Baby training for Tabitha. She again quickly stated that Tabitha doesn't really work there but when pressed stated that she had been helping since January 2008. I instructed her that background check forms were on our internet website and that the girls would need to complete them and return them to me. The correction order was written and sent.
On 5-29-08 a home visit was made. During my visit I stated to Cindy that I have not yet received any background check forms for Tabitha and Chelsea. She stated she thought I was supposed to do them. I told her that she and I had discussed this back in April that she needed to get them completed and turned into me. Cindy had no verification of Tabitha's SIDS or Shaken Baby training either. Cindy stated Tabitha has not yet taken them. A correction order was written for no background checks and no training.
On April 23, 2008 and May 13, 2008 phone messages were left for Cindy to contact me regarding the background checks and training. I was never contacted by Cindy.
On 3-13-07 a correction order was written by Kathleen Cardinal, Clay County Social Services licensor, for using a substitute with a background check and without SIDS and Shaken baby training. At that time a conditional license and fine was not asked for.
The County's letter recommended that the license be made conditional upon the Licensee completing six hours of certain additional training, no variance being granted for one year, the Licensee providing a written detailed supervision plan within a reasonable time, and "No additional violations of Rule or harsher negative action requested."
24. There are inconsistencies between the statements in Ms. Hellem's case notes written at the time of the events and her letter to the Department written twelve weeks after many of those events. For example the case notes do not report that the Licensee had told Ms. Hellem that her daughters, "stayed there" (in Morehead). Rather, her contemporaneous notes report that the Licensee had said that her daughters were spending time there and in West Fargo and not really living or working there. The case notes do not report that Ms. Hellem had given the Licensee any instruction on the background check forms. The date of the first telephone call was actually April 17, 2008, according to the case note prepared that day. The case notes indicate that there was only one telephone call that was not returned. On April 17, 2008, Ms. Hellem reported that she, "Attempted to call Cindy," and left a phone message. On May 13, 2008, Ms. Hellem wrote that she, "Attempted home visit. No one answered." This language indicates that she went to the house without calling first. Whether she called first or not, the notes do not say that she left any kind of message that day after no one answered. The March 13, 2007, Correction Order was not written for a substitute not having SIDS and Shaken Baby Syndrome training, rather, it was written only for not providing the background check form. In total, all these inconsistent and additional incidents reported in the letter to the Department make the Licensee's violations appear more numerous and more serious than they appeared in the case notes or in the other evidence presented at the hearing.
25. The Licensee responded to the May 29, 2008, Correction Order on June 29, 2008. She stated again that she had sent in the background checks in June. Regarding Tabitha, she stated:
Tabitha is not my helper or my backup. She prepared lunch for the daycare approx. 4 days. After I talked to Karen by phone I no longer had Tabitha come over until she fulfilled all the requirements to be my helper.[25]
At the hearing, the Licensee testified that when Ms. Hellem called her on April 3, 2008, "Tabitha was no longer helping me so I didn't understand why I still needed a background check on her."[26] These inconsistent statements by the Licensee make it impossible to determine when Tabatha actually stopped working at the daycare.
26. By letters of July 10, 2008, the County notified the Licensee and her daughters that it had completed the background studies of the daughters and determined that they were not disqualified from providing direct contact services in the daycare.[27]
27. On August 7, 2008, 2008, the Department issued an Order to Forfeit Fine and Order of Conditional License imposing a $600 fine on the Licensee and making her license conditional.[28] Under the Order to Forfeit Fine, $400 was assessed for two violations of Minn. Stat. § 245C.03, subd. 1, and Minn. Stat. § 245C.04, subd. 1(f). The violations were described as failing to submit studies for two household members, for which correction orders were issued on April 3, 2008 and May 29, 2008. The remaining $200 of the fine was assessed for one violation of Minn. Stat. § 245A.50, subd. 5. The violation was described as failing to submit documentation on the completion of Sudden Incident Death Syndrome and Shaken Baby Syndrome training for a helper before caring for infants, for which correction orders were issued on April 3, 2008 and May 29, 2008.
28.
The Order of Conditional License cited Minn.
Stat. § 245A.06, subd. 1(a), which allows the Commissioner of Human Services to
issue a correction order and an order of conditional license if a license
holder has failed to comply with applicable law or rule and this failure does
not imminently endanger the health, safety, or rights of the persons served by
the program. It cited Minn. Stat. §
245A.06, subd. 3, which allows the Commissioner to impose a fine or other
licensing sanction if a license holder has not corrected the violations specified
in a correction order or conditional license.
The Order of Conditional License also cited Minn. Stat. § 245A.50,
subd. 5(a), and
29. The Order of Conditional License described the applicable violations as follows:
Violation(s): On May 29, 2008, Clay County Social Services made a visit to your family child care home for the purpose of re-licensing. At this visit you were issued a correction order for the following violations:
§ failure to submit background studies for two household members.
§ Failure to provide documentation on the completion of Sudden Infant Death Syndrome and Shaken Baby Syndrome training for a helper before caring for infants.
You were required to make the necessary changes by May 30, 2008, and return the correction order to Clay County. You failed to respond to the correction order.
On April 3, 2008, as part of the relicensing process, Clay County Social Services determined that you failed to submit background studies as required on two household members. Clay County also determined that you failed to provide documentation on the completion of Sudden Infant Death Syndrome and Shaken Baby Syndrome training for a helper before caring for infants. On April 3, 2008, you were issued a correction order for these violations. You failed to respond to the correction order. On April 23, 2008, and May 13, 2008, a Clay County licensor left you phone messages to contact her regarding the incomplete background studies and training. You failed to respond to the phone calls.
Previously, on March 13, 2007, Clay County made a visit to your child care home for the purpose of relicensing.[29] At this visit you were issued a correction order for failing to submit a background study for a substitute caregiver.
Due to the serious and chronic nature of the above violations including, failure to submit background studies as required; failure to ensure that a helper completed the required training before caring for infants; failure to comply with a correction order; and, in order to protect the health, safety, and rights of children receiving services in DHS-licensed programs, your family child care license is placed on conditional status for one year.
30. The Order of Conditional License allowed the Licensee to continue to operate with the conditional license under the following stipulations:
1. You follow and comply with all applicable Minnesota Rules and Laws.
2. No variances to age distribution or capacity will be granted during the conditional period.
3. You
must submit a detailed written plan to
4. You must complete six hours of additional training by October 31, 2008, of which three hours must be on child safety. The training is in addition to the annual training requirements as listed in Minnesota Statutes, section 245A.50. Prior to attending training, your must obtain approval from Clay County that the training is appropriate. You must submit documentation of your attendance to Clay County.
5. You must 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. You must obtain parent signatures for each currently enrolled child, indicating 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 Clay County by August 29, 2008. For new families, you must submit documentation of compliance with this term to Clay County within 5 days of any child’s admission to your child care program.
31. On August 20, 2008, the Department received the Licensee's timely appeal of the Order to Forfeit Fine and Order of Conditional License.[30] In general, the Licensee stated in the appeal letter that:
Citation one: the background checks were for people lived in my home and my two children do not live in the daycare home. I was going to use Tabitha (my oldest daughter) as a helper, but she found a different job early February. She did come over to my house and prepared lunch for the daycare & cleaned up after but really had no contact with the kids.
Citation two: Tabitha did view the Shaken Baby video but did not have the training on SIDS. I didn't have any infants at the time and didn't think she needed it.
I have told Karen all of this and feel like I am being harassed by her. She either doesn't hear what I say or doesn't care. I do not deserve this fine nor can I afford it.
She went on to state that she loves doing daycare and that her licensor in North Dakota appreciated what she did and knew her as a person.[31]
32. On August 25, 2008, the Department's Director of Licensing signed the Notice of and Order for Hearing in this matter and sent it to the County to be completed and served. The County made arrangements for the hearing and mailed the Notice of and Order for Hearing to the Licensee and the Administrative Law Judge on September 19, 2008.
33. At the hearing, the Licensee offered her written position on the allegations as follows:
I operate a family daycare. My own kids don't live at 1607 4th Ave S. and haven't since Aug. 2005 but they are still part of my family. When I listed all children & adults that lived with me, I mistakenly listed Tabitha & Chelsea thinking it was all family members. Tabitha was never my helper full-time. She was my daughter coming over during daycare hours helping me prepare lunch. Tabitha never assisted in the care of infants so I didn't see the need for her to take the SIDS & Shaken Baby syndrome training. When Karen called me on April 3, Tabitha was no longer helping me so I didn't understand why I still needed a background check on her. Of course I did get one on both [Tabitha and Chelsea] eventually because Karen would not listen to or believe anything I would say. The background checks came back clear on July 10, 2008 and said they were not disqualified & they may provide services for me.
Tabitha and Chelsea do not live in 1607 4th Ave., [Moorhead, Minnesota]. They have not lived there since Aug. 2005. I operate a family daycare and my children are my family. I don't feel I violated any rules by having Tabitha come over & help me get lunch ready. She did the meal preparation while I got the kids ready to eat. I also don't feel that my family members should have take a class to visit me & associate with my daycare kids. All of my daycare parents know Tabitha & Chelsea and none of them have a problem with them coming over. Again I operate a family daycare & people will come through my house and I will be present at all times. I've run a family daycare for 15 years and have never had any problems till now. I'm so confused by all the rules. I don't understand who was considered a helper or sub or contractor.
It sounds like all these rules are written for centers not family daycare. I don't feel comfortable talking to Karen. I wish I could ask questions when I have some but I always feel so intimidated. I don't dare call her to ask anything.
If I had known I still needed to have background checks on Tabitha & Chelsea I would have done so right away. But they don't live there in Tabitha was no longer coming over to help.
If Chelsea comes over to use the computer does she need a background check? When My mom & dad come over to visit do they need to take a class to say hi to the kids? Are they allowed to come over?
Maybe there should be a class to go to so we can ask questions & learn more about the rules and understand them. We, as providers have some much paperwork & so many rules to follow, a refresher course would [be] something I would definitely be willing to go to. I love attending trainings. I would be willing to go to as many hours of training you want, but I am not financially able to pay 600 fine.[32]
34. 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.
35. 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.
36. 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:
1. The Commissioner of Human Services and the Administrative Law Judge have jurisdiction to consider this matter.[33]
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.[34]
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.[35] 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.[36]
6. Minn. Stat. § 245C.03, subd. 1(a), provides, in relevant part:
Subdivision 1. Licensed programs. (a) The commissioner shall conduct a background study on:
(1) the person or persons applying for a license;
(2) an individual age 13 and over living in the household where the licensed program will be provided;
(3) current or prospective employees or contractors of the applicant who will have direct contact with persons served by the facility, agency, or program;
(4) volunteers or student volunteers who will have direct contact with persons served by the program to provide program services if the contact is not under the continuous, direct supervision by an individual listed in clause (1) or (3);
(5) an individual age ten to 12 living in the household where the licensed services will be provided when the commissioner has reasonable cause;
(6) an individual who, without providing direct contact services at a licensed program, may have unsupervised access to children or vulnerable adults receiving services from a program, when the commissioner has reasonable cause; …
7. Minn. Stat. § 245C.04, subd. 1(f), provides:
(f) Applicants for licensure, license holders, and other entities as provided in this chapter must submit completed background study forms to the commissioner before individuals specified in section 245C.03, subdivision 1, begin positions allowing direct contact in any licensed program.
8. The Order to Forfeit a Fine alleged that the Licensee failed to submit background studies for two "household members," namely, Tabitha and Chelsea. The cited statutes do not require background studies for "household members." The County and the Department apparently use the term "household member" to mean an individual age 13 or over living in the household where the licensed program is provided, as specified in Minn. Stat. § 245C.03, subd. 1(a)(2). Tabitha and Chelsea were not living in the household where the licensed program was provided. Therefore, no background study of them was required under Minn. Stat. § 245C.03, subd. 1(a)(2).
9.
No background study of
10. Clause (3) applies to Tabitha as an employee and as a prospective employee, because she had direct contact with the daycare children. There is no exception under Clause (3) for the direct contact being under supervision and no requirement that the employee be providing care. The statute assumes that an employee will normally have the opportunity for unsupervised contact. The fact that Tabitha's employment turned out to be very limited in time and occurred under the supervision of the Licensee is not relevant. The cited statutes required that the background study form for Tabitha be submitted before she began working in this position that allowed direct contact with daycare children. It was not.
11. Because a background study was required for Tabitha, but not Chelsea, under Minn. Stat. § 245C.03, subd. 1, the requirement for the submission of a completed background study form under Minn. Stat. § 245C.04, subd. 1(f), applied only to Tabitha. Therefore, there was only one violation of Minn. Stat. § 245C.03, subd. 1, and Minn. Stat. § 245C.04, subd. 1(f), by the Licensee.
12. Minn. Stat. § 245A.50, subd. 5(a), provides:
Subd. 5. Sudden infant death syndrome and shaken baby syndrome training. (a) License holders must document that before staff persons, caregivers, and helpers assist in the care of infants, they are instructed on the standards in section 245A.1435 and receive training on reducing the risk of sudden infant death syndrome and shaken baby syndrome. The training in this subdivision may be provided as initial training under subdivision 1 or ongoing training under subdivision 7.
13. Caregiver, helper, infant, and substitute are defined in Minnesota Rule 9502.0315 as follows:
Subp. 6. Caregiver. "Caregiver" means the provider, substitute, helper, or another adult giving care in the residence.
Subp. 14. Helper. "Helper" means a person at least 13 years of age and less than 18 years of age who assists the provider with the care of children.
Subp. 16. Infant. "Infant" means a child who is at least six weeks of age but less than 12 months of age.
Subp. 29. Substitute. "Substitute" means an adult at least 18 years of age who assumes the responsibility of the provider as specified in part 9502.0365, subpart 5.
The term “staff person” is not given a special definition.
14. The Order to Forfeit a Fine alleged that the Licensee failed to submit documentation on the completion of Sudden Infant Death Syndrome and Shaken Baby Syndrome training for a "helper" before caring for infants. The helper referred to was Tabitha. The Licensee admits that Tabitha had not completed all the required training and that the Licensee had not submitted the required documentation. However, Tabitha was 19 years old at the time and under the child care rules could not have been a "helper." Therefore, there was no violation as alleged in the Order to Forfeit a Fine.
15. Clearly, Tabitha was not a "substitute." Although it did not do so, the Department could have argued that she was a caregiver or other adult staff person caring for infants. But the evidence does not support that. She was an adult staff person, but the she did not care for infants. One or two of the enrolled daycare children may have been infants during the time Tabitha worked there preparing lunch and cleaning up. But it was the Licensee who provided the care to them, not Tabitha. Thus, the was no violation of Minn. Stat. § 245A.50, subd. 5, by the Licensee. This statute is based upon providing care, not just having direct contact.
16. 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.[37] Considering these criteria, $200 is the appropriate sanction for the Licensee's single violation of Minn. Stat. § 245C.03, subd. 1, and Minn. Stat. § 245C.04, subd. 1(f).
17. The Order of Conditional License listed the applicable violations as 1) failure to submit background studies for two household members; 2) failure to provide documentation on the completion of Sudden Infant Death Syndrome and Shaken Baby Syndrome training for a helper before caring for infants; 3) failure to correct and respond to the May 29, 2008, correction order; 4) failure to correct and respond to the April 3, 2008, correction order; 5) failure to respond to April 23, and May 13, 2008, licensor phone messages; and 6) failure to submit a background study for a substitute caregiver for which a correction order was issued on March 13, 2007.
18. As concluded above, there was one violation of the requirement to submit background studies and no violation for failure to document completion of Sudden Infant Death Syndrome and Shaken Baby Syndrome training for a helper before caring for infants. Nonetheless, the Licensee's admitted decision not to comply with the correction orders because she believed that the background check and SIDS training requirements no longer applied to her daughters, her deliberate failures to respond to the correction orders immediately as they required, and her failure to respond to Ms. Hellem's telephone call(s) are significant violations that easily justify the conditional license as imposed. The Licensee needs to learn and understand the rules and terminology in Minnesota to maintain her license here.
19. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
20. 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 to Forfeit a Fine be MODIFIED to specify a fine of $200 and that its Order of Conditional License be AFFIRMED.
Dated: December 12, 2008
_/s/ Steve M. Mihalchick _
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Tape Recorded, one tape.
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, the Commissioner is required to serve his final decision upon each party and the Administrative Law Judge by first class mail.
There were credibility issues with both the Licensee and with the License Worker. There were certainly inconsistencies in the Licensee's versions of some of the facts in this matter. The details of Tabitha's work preparing meals were often described differently. Exactly when she started and when she last worked were not clear. How many times she worked was not clear. But the Licensee's testimony that Tabitha only prepared meals and did not provide any care to the children, particularly infants, is believable. Likewise, her testimony about her daughters actually living in West Fargo is believable. The Licensee was quite open about things that were detrimental to her. For example, she admitted that she didn't comply with the correction orders because she didn't think they properly applied to her daughters’ situations. Most of her actions and reactions were consistent with someone who did not fully understand the daycare statutes and rules.
The License Worker's testimony was troubling. There were several instances of inconsistent statements between her testimony and the record. It does not appear that she intentionally misstated anything, but there was apparently some difficulty communicating what she meant to the Licensee, and to the Administrative Law Judge. It was particularly concerning that her letter to the Department contained several inaccuracies.
S.M.M.
[1] Testimony of Cynthia Rootham.
[2] Testimony of Cynthia Rootham.
[3] Testimony of Cynthia Rootham; Exhibits 17, 18, and 19.
[4] Testimony of Cynthia Rootham; Exhibits 17, 18, and 20.
[5] Testimony of Cynthia Rootham and Karen Hellem.
[6] Testimony of Kathleen Cardinal.
[7] Testimony of Kathleen Cardinal; Exhibit 11.
[8] Testimony of Kathleen Cardinal; Exhibit 9. Minn. Stat. § 245A.04 applies to application procedures and may not apply to existing license holders such as the Licensee. The reference may have been to Subdivision 3 of the statute, which requires individuals who are required to have or initiate background studies to comply with the requirements of Minn. Stat. Chap. 245C. That chapter of Minnesota Statutes does apply to the Licensee, so the substance of the background study violation was correct in the Correction Order. Clearly the Licensee understood what violation was alleged because she submitted the completed background study form the next day. Ms. Cardinal did not explain why she found it necessary to warn the Licensee that failure to follow "these regulations" would result in the County requesting that a negative action and a fine be imposed.
[9] Exhibit 10.
[10] Exhibit 9.
[11] Exhibit 11.
[12] Testimony of Cynthia Rootham and Karen Hellem.
[13] Testimony of Cynthia Rootham; Exhibits 6, 7, 17, 18, 20.
[14] Exhibits 13 at 2 and 14
[15] Testimony of Cynthia Rootham; Exhibits 12 and 20.
[16] Testimony of Karen Hellem; Exhibit 8.
[17] Exhibits 6 and 7.
[18] Actually, it cited "HSLA 245C.03 Subp 1.” This statute is part of the Department of Human Services Background Studies Act, not the Human Services Licensing Act. While the statutory citation was somewhat erroneous, the description of the violation was clear and the error was harmless.
[19] Exhibit 6.
[20] Testimony of Karen Hellem; Exhibit 8.
[21] Testimony of Karen Hellem; Exhibits 8 and 13.
[22] Testimony of Karen Hellem; Exhibit 7.
[23] Exhibit 6.
[24] Exhibit 4.
[25] Exhibit 7.
[26] Testimony of Cynthia Rootham; Exhibit 20.
[27] Exhibit 15.
[28] Exhibit 1.
[29] The source of this information is not clear. It was not a relicensing visit. Ms. Cardinal was following up on information from the Licensee that indicated a possible violation regarding a substitute.
[30] Exhibits 2 and 3.
[31] Exhibit 3.
[32] Exhibit 20.
[33] Minn. Stat. §§ 245A.07, subds. 1 and 3; 14.50.
[34]
[35] Minn. Stat. § 245A.06, subd. 1.
[36]
[37]