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OAH 12-1800-21101-2 |
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 Jeanne Koehntop |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for hearing before
Administrative Law Judge Steve M. Mihalchick on March 18, 2010, at the
The hearing record closed at the conclusion of the hearing on March 18, 2010.
1. Did the Licensee fail to: a) provide monthly and annual documentation for all cribs in her program as required by Minn. Stat. § 245A.146; b) provide all required information on her Alcohol and Drug Use Policy as required by Minn. Stat. § 245A.04, subd. 1 (c); c) have a Grievance Policy in effect for her program as required by Minn. Stat. § 245A.04, subd. 1 (d); d) cover all electrical outlets in all licensed areas of the home as required under Minn. R. 9502.0425, subp. 18; and e) use gates in all stairways as required under Minn. R. 9502.0425, subp. 10? If so, should an Order for Conditional License be imposed on Licensee for this noncompliance?
The Administrative Law Judge finds that the Licensee did not provide appropriate monthly and annual documentation for all cribs in her program, did not have all required information on her Alcohol and Drug Use Policy, did not cover all electrical outlets in all licensed areas of the home, and did not use gates in all stairways in violation of Minn. Stat. §§ 245A.146 and 245A.04, subd. 1 (c), and Minn. R. 9502.0425, subps. 10 and 18. Accordingly, the Administrative Law Judge recommends that the Order for Conditional License be AFFIRMED.
2. Did the Licensee fail to provide monthly and annual documentation for all cribs in her program as required by Minn. Stat. § 245A.146? If so, should a fine of $200 be imposed on the Licensee for this noncompliance?
The Administrative Law Judge finds that the Licensee did not provide adequate monthly and annual crib inspection documents, concludes that the Licensee violated Minn. Stat. § 245A.146, but recommends that imposition of the fine be RESCINDED.
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
1.
Licensee provides family child care at her
mother’s home in
2. Licensee has 14 children in her day care, four of which are school-age. Licensee always has an assistant present to help her when the school-age children arrive after the school day ends. An assistant is sometimes present at lunchtime as well.[2]
3. The day care has multiple levels with three different stairways. Each stairway has a gate or similar type mechanism to make it inaccessible to the day care children. The children spend most of their time on the main floor, with the napping areas on the second floor. Licensee has five cribs in the day care, only three of which are used by day care children. The basement is sometimes used by the school-age children.[3]
4.
Elisa Ettesvold is the Child Care Licensor currently
assigned to the Licensee. Linda Wasmund
was the previous Licensor in
5.
Ms. Wasmund periodically sent newsletters to the
6. The September 9, 2005, newsletter sent out by Ms. Wasmund informed licensees of new crib safety requirements enacted during the 2005 Legislative session. Effective January 1, 2006, providers were required to complete monthly safety inspections of every crib and document that the crib meets specific safety standards.[6] In addition, providers were also required to complete an annual check of the Consumer Product Safety Commission website and document whether their crib was identified as safe or unsafe, and if unsafe, whether the crib was removed or the necessary modifications were made.[7]
7. The September 12, 2006, newsletter reminded licensees of the requirements for an Alcohol and Drug Use Policy and a Grievance Policy and included samples. Ms. Wasmund informed licensees that the Department directed that the samples would have to be redone by each licensee in his or her own words.[8]
8. Licensee does not deny receiving the newsletters. She generally skimmed the newsletters when they arrived in the mail.[9]
9. In October 2007, Linda Wasmund went to Licensee’s day care for a relicensing visit. As a result of that visit, Ms. Wasmund issued a Correction Order to Licensee for two issues, one of which was failure to complete the monthly crib inspection required by Minn. Stat. § 245A.146.[10] At the time of the visit, Ms. Wasmund gave Licensee one crib inspection form to use for her inspections.[11] The form instructs licensees to use one form for each crib and to list the crib brand name and model number.[12] Licensee corrected this violation by performing a crib inspection on November 1, 2007.[13]
10. On September 15, 2009, Ms. Ettesvold went to Licensee’s day care for an unannounced relicensing visit.[14] This visit occurred a month earlier than most of Licensee’s past relicensing visits. Ms. Ettesvold arrived just before 1:00 p.m. She noted that the gate to the upstairs stairway was open. Licensee and her helpers were still cleaning up from lunch and had just finished putting several children down for their naps.[15] In the kitchen, Ms. Ettesvold noticed that the gate blocking the stairway to the basement was pulled across the opening of the stairway but appeared not to be hooked. Ms. Ettesvold reviewed Licensee’s required paperwork and did an inspection of the licensed areas of the house. Licensee produced one crib inspection form to show that she had inspected all of her cribs as required by the statute.[16] She also produced a Complaint/Grievance Procedure form, and a document entitled Miller’s Day care Provider’s Policies dated September 1, 2009.[17] Licensee had previously provided the Grievance Procedure to each of her day care families.[18] The following language appeared at the end of this form:
Alcohol and Drug Use Policy:
No one in my child care is to abuse prescription drugs, alcohol or other mind altering chemical that could impair the individual’s ability to provide services or care in my child care home. All staff have been trained annually in regard to this policy.[19]
11. Ms. Ettesvold informed Licensee that she was required to fill out one crib inspection form per crib; that Licensee’s Complaint/Grievance Policy was inadequate because it wasn’t in Licensee’s own words; and that Licensee’s Alcohol and Drug Use Policy was not compliant because each employee had not signed it.[20]
12. During the relicensing inspection, Ms. Ettesvold noticed that the plug-in cover for the electrical outlet above the kitchen counter was not plugged into the outlet. The cover was lying on the counter directly below the outlet. The outlet is not accessible to small children. Licensee had not yet replaced the cover because she had plugged an electric frying pan into that outlet to prepare lunch for the children. Because Licensee and her helper were still in the process of cleaning up after lunch, the outlet cover had not yet been replaced. When Ms. Ettesvold inspected the basement of the home, she discovered another outlet that was not covered. Again, the plug-in cover was lying near the outlet. Licensee explained that her nephews had been playing video games in the basement the afternoon before and she had neglected to replace the cover when they left.[21] Licensee immediately corrected the problem by replacing both outlet covers.
13. During the visit Ms. Ettesvold completed a Checklist for Child Care Relicensure and a Home Safety Checklist on which she noted that Licensee had been using one crib inspection form for all five cribs for the last two years, had no Chemical Use Policy signed by each employee or Grievance Policy in force, and that electrical outlet covers and stairway gates were not in place.[22]
14. Based on the crib inspection sheets provided by Licensee on September 15, 2009, Ms. Ettesvold was unable to determine if the Licensee had researched the cribs on the U.S. Consumer Product Safety Commission website and performed individual inspections of each crib because the brand name and model numbers of the cribs were not listed. When Ms. Ettesvold requested this information from Licensee, the Licensee provided it promptly.[23]
15. At the time of the relicensing visit, Licensee had been performing monthly crib inspections on the cribs used in her day care. However, she used one sheet for all cribs. She inspected all of them, corrected any loose parts or other flaws she found, and marked the inspection sheet when she had inspected all of them and made any necessary repairs.[24]
16. Licensee is diligent about keeping the gates closed at each stairway when children under two years of age are present. Licensee does not dispute that the gate to the second floor could have been open when Ms. Ettesvold arrived on September 15, 2009, because Licensee’s helper was putting the younger children down for their naps at that time.[25]
17. Based on the relicensing visit, Ms. Ettesvold issued a Correction Order to Licensee, dated September 17, 2009, which contained the following violations: failure to make electrical outlets inaccessible (Minn. R. 9502.0425, subp. 18.A); failure to complete a crib inspection sheet for each crib for two years (Minn. Stat. § 245A.146, subd. 4); failure to have an Alcohol and Drug Use Policy in effect and signed by each employee (Minn. Stat. § 245A.04, subd. 1 (c)); failure to have a Grievance Policy in effect for her program (Minn. Stat. § 245A.04, subd. 1 (d)); and failure to have all safety gates in place (Minn. R. 9502.0425, subp. 10.C).[26] Ms. Ettesvold mailed the Correction Order to Licensee on or about September 17, 2009.[27]
18. Also on September 17, 2009, Ms. Ettesvold mailed a letter to the Department recommending that Licensee’s family child care license be placed on conditional status for 12 months based upon the violations noted in the Correction Order dated September 17, 2009. As further support for her recommendation, Ms. Ettesvold noted that Licensee had been issued a Correction Order at the last relicensing visit for failure to complete crib inspection forms.[28] Ms. Ettesvold did not recommend a fine because it was her understanding from a DHS licensor that DHS did not issue fines for crib inspection sheet violations.[29]
19. Subsequent to the issuance of the September 17 Correction Order, Licensee revised her Alcohol and Drug Use Policy and had each of her assistants sign the form. She provided the revised policy to Ms. Ettesvold.[30] Licensee also revised her Grievance Policy and provided the document to Ms. Ettesvold.[31] Licensee made all the required corrections in a timely manner.[32]
20. Sometime in October 2009, DHS issued an order for a fine in another case involving failure to complete crib inspection forms.[33] Accordingly, on October 29, 2009, to be consistent with the DHS order in the other case, Ms. Ettesvold sent an email message to Molly Kelly at DHS recommending that a fine be imposed on Licensee for the crib inspection violation.[34]
21. On December 30, 2009, the Department issued a combined Order to Forfeit a Fine, Order of Conditional License imposing a $200 fine on the Licensee and making her license conditional. In the Order to Forfeit a Fine portion, the Department assessed a $200 fine for violation of Minn. Stat. § 245A.06, subd. 3. This violation was described as:
On September 15, 2009, Stevens County Human Services made a re-licensing visit to your family child care home. At the time of this visit it was determined that you failed to provide documentation that monthly and annual crib safety checks had been completed on all cribs in your program.
Previously,
on October 17, 2007,
22. The Order of Conditional License portion cited Minn. Stat. § 245A.06, subds. 1 (a), 3 and 6, which authorize the Commissioner of Human Services to issue a correction order or order of conditional under specified conditions and specify the factors that must be considered before imposing any license discipline, including a conditional license. The Order of Conditional License cited violations of the following statutes and rules: Minn. Stat. § 245A.04, subd. 1 (c) (alcohol and drug use policy); Minn. Stat. § 245A.04, subd. 1 (d) (grievance policy); Minn. Stat. § 245A.146 (crib safety requirements); Minn. R. 9502.0425, subp. 10 (stairway gates); and Minn. R. 9502.0425, subp. 18 (electrical services).[36] In addition, the Order of Conditional License cited Minn. Rule 9502.0325, subp. 1 (purpose of day care rules).
23. Minn. Rule 9502.0325, subp. 1, provides:
Subpart 1. Purpose. The purpose of parts 9502.0315 to 9502.0445 is to establish procedures and standards for licensing family day care and group family day care homes to ensure that minimum levels of care and service are given and the protection, proper care, health, safety, and development of the children are assured.
24. In addition to the above violation allegations, the Order of Conditional License cited the October 17, 2007, and September 17, 2009 Correction Orders as a basis for issuing a Conditional License and concluded:
Due to the serious and chronic nature of the above violations including repeated failure to comply with crib safety requirements, failure to ensure basic safety requirements were met, failure to have all required written policies, failure to correct violations cited in a previous correction order; and, in order to protect the health, safety, and rights of children receiving services in DHS-licensed programs, your license to provide family child care is placed on conditional status for a period of one year.[37]
25. The Order of Conditional License allowed the Licensee to continue to operate under the conditional license with 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 obtain a minimum of four hours of additional training by April 30, 2010. The training is in addition to the annual training requirements as listed in Minnesota Statutes, section 245A.50. This training must be in the area of child development. Prior to attending training, you must obtain approval from Stevens County Human Services that the training is appropriate. You must submit documentation of your attendance to Stevens County Human Services.
4. You must submit monthly documentation to Stevens County Human Services of monthly crib inspections. The records must be submitted by the 5th of each month for the previous month beginning January 5, 2010. The record must show documentation for each crib and the result of the inspection.
5. You 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. You must obtain parent signatures for each currently enrolled child, verifying 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 Stevens County Human Services by January 15, 2010. For new families, you must submit documentation of compliance with this term to Stevens County Human Services within 5 days of any child’s admission to your child care program.
The Order also required that Licensee post a copy of the Order in a conspicuous place for two years as required by Minn. Stat. §§ 245A.07, subd. 5 (must post an order of fine), and 245A.06, subd. 8 (must post an order of conditional license).[38]
26. On January 11, 2010, the Licensee mailed an appeal of the Order to Forfeit a Fine and Order of Conditional License to the Department.[39]
27. On February 3, 2010, the County mailed a copy of the Notice of and Order for Hearing to the Administrative Law Judge and Licensee setting this matter for hearing on March 18, 2010. On February 9, 2010, the Administrative Law Judge issued and served a standard Protective Order upon the parties.
28. On February 25, 2010, the County mailed an Amended Statement of Issues and Disclosure Pursuant to the Protective Order.
29. No one disputes that Licensee is an excellent day care provider.[40]
30. 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.
31. 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.
32. 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.[41]
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.[42]
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.[43] 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.[44]
6. If the Commissioner finds that the applicant or license holder has not corrected the violations specified in a correction order or conditional license, the Commissioner may impose a fine and order other licensing sanctions.[45]
7. Licensees must maintain documentation for each of the cribs in use in their programs. License holders must perform a safety inspection on every crib used by or accessible to any child in care on a monthly basis. The Department must review the license holders’ documentation during routine licensing inspections and may issue sanctions for failure to comply.[46]
8. License holders must have a policy that prohibits license holders, employees, subcontractors, and volunteers, when directly responsible for persons served by the program, from abusing prescription medication or being in any manner under the influence of a chemical that impairs the individual’s ability to provide services or care. The license holder must train employees, subcontractors, and volunteers about the program’s drug and alcohol policy.[47]
9. License holders must also have a program grievance procedure that permits persons served by the program and their authorized representatives to bring a grievance to the highest level of authority in the program.[48]
10. Stairways must have gates or barriers when children between the ages of 6 and 18 months are in care.[49] All electrical receptacles accessible to children under first grade must be tamper-proof or shielded when not in use.[50]
11. The Order to Forfeit a Fine and Order of Conditional License alleged that the Licensee failed to provide documentation that monthly and annual crib safety checks had been completed on all cribs in her program. The Order also referred to a past Correction Order for the same violation and imposed the fine for failure to comply with the past Order. As a result of the past Correction Order, Licensee began performing monthly crib safety inspections and making repairs as necessary. Her failure to complete one form for each crib was an honest mistake and not in any way intentional. While Licensee’s actions are a violation of Minn. Stat. § 245A.146, and justify the imposition of a conditional license to monitor her future complete compliance, the fine is unwarranted in this case and should be rescinded. In fact, Ms. Ettesvold would not have recommended a fine if it were not for the recommendation of a fine in a similar case. It cannot be said that Licensee’s deficiencies regarding crib inspections were in any way chronic or severe. She was in substantial, good faith compliance with the October 17, 2007, Correction Order.
12. The Order of Conditional License alleged that the Licensee failed to provide all required information on her Alcohol and Drug Use Policy as required by Minn. Stat. § 245A.04, subd. 1 (c). Licensee had a policy in place at the time of Ms. Ettesvold’s relicensing visit and her employees had been educated regarding that policy. Licensee did not, however, obtain the signatures of her employees to demonstrate that they had been trained on the policy. The newsletters sent out by Linda Wasmund on January 11, 2005, and September 12, 2006, made clear that employee signatures were necessary to document training on the policy. The Order of Conditional License should be affirmed as to this issue.
13. The Order of Conditional License alleged that the Licensee failed to have a grievance policy in effect for her program as required by Minn. Stat. § 245A.04, subd. 1 (d). Licensee had a Complaint/Grievance Policy in place at the time of the relicensing visit on September 15, 2009. The parents and guardians of her day care children were aware of the policy and had a copy. The only problem is that the document wasn’t personalized to the Licensee’s program, an apparent DHS requirement that does not appear in Minn. Stat. § 245A.04, subd. 1 (d). When Licensee was told to revise the policy, she did so immediately. There is no violation of Minn. Stat. § 245A.04, subd. 1 (d). The Order of Conditional License is not justified as to this issue.
14. The Order of Conditional License alleged that the Licensee failed to cover all electrical outlets in all licensed areas of the home as required under Minn. R. 9502.0425, subp.18. The kitchen outlet was not accessible to children and Licensee was still in the process of cleaning up after lunch. As for the basement outlet, Licensee should have checked to be sure her nephews replaced the cover. All the evidence demonstrates that she operates a very good day care, but failure to cover electrical outlets is a safety issue that should be enforced. The Order of Conditional License should be affirmed as to this issue.
15. The Order of Conditional License alleged that the Licensee failed to use gates in all stairways as required under Minn. R. 9502.0425, subp. 10. Each of the three stairways in the home had a gate or barrier mechanism. While it is unfortunate that Ms. Ettesvold’s relicensing visit occurred at a time of day when the young children were being put down for their naps, resulting in high traffic on the stairway to the second floor and a temporarily-open gate, the fact is that the gate was open when Ms. Ettesvold arrived. The Order of Conditional License should be affirmed as to this issue.[51]
16. The Administrative Law Judge adopts as Conclusions any Findings that are more appropriately described as Conclusions.
17. 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 RESCINDED.
Dated: April _23rd_, 2010
/s/ Steve M. Mihalchick
__________________________
STEVE M. MIHALCHICK
Administrative Law Judge
Reported: Digitally Recorded, No Transcript Prepared.
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.
[1] Testimony of Licensee.
[2] Testimony of Licensee.
[3] Testimony of Licensee and Ashley Schmidgall. No children under the age of four are allowed in the basement unsupervised. Testimony of Ashley Schmidgall.
[4] Testimony of Elisa Ettesvold.
[5] Ex. 7.
[6]
[7] Ex. 9.
[8] Ex. 22.
[9] Testimony of Licensee.
[10] Ex. 5. The other violation cited on the Correction Order was unrelated to any of the issues in this matter.
[11] Testimony of Licensee.
[12] Exs. 11 and 12.
[13] Ex. 5.
[14] Licensee’s license was due to expire on November 1, 2009.
[15] Testimony of Licensee and Ashley Schmidgall.
[16] Ex. 11.
[17] Exs. 17 and 14, respectively.
[18] Testimony of Licensee.
[19] Ex. 14. Testimony of Licensee.
[20] Testimony of Elisa Ettesvold.
[21] Testimony of Licensee and Elisa Ettesvold.
[22] Exs. 2 and 3.
[23] Testimony of Elisa Ettesvold. Ex. 13.
[24] Testimony of Licensee.
[25] Testimony of Licensee.
[26] Ex. 4.
[27] Testimony of Elisa Ettesvold. Ex. 10.
[28] Ex. 15.
[29] Testimony of Elisa Ettesvold.
[30] Ex. 16. Testimony of Elisa Ettesvold.
[31] Ex. 18.
[32] Ex. 4. Testimony of Elisa Ettesvold.
[33] Testimony of Elisa Ettesvold.
[34] Ex. 23.
[35] Ex. 1, at 2.
[36] Ex. 1.
[37] Ex. 1.
[38] Ex. 1 (emphasis in original).
[39] Ex. 6.
[40] Testimony of Elisa Ettesvold, Shelley Evink, Tanya Carlson, and Kristin McNeill. Exs. 19-21.
[41] Minn. Stat. §§ 245A.07, subds. 1 and 3; 14.50.
[42]
[43] Minn. Stat. § 245A.06, subd. 1.
[44]
[45]
[46]
[47]
[48]
[49]
[50]
[51] As for the kitchen gate to the basement, the Department has not put forth sufficient evidence that it was open.